Nevada Reports 1913 (36 Nev.) PDF

36 Nev.
1, 1 (1913)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
APRIL TERM, 1913
____________
36 Nev. 1, 1 (1913) Gordon v. District Court
[No. 2011]
LOUIS D. GORDON, Petitioner, v. THE DISTRICT COURT OF THE FIFTH JUDICIAL
DISTRICT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF NYE;
MARK R. AVERILL, Judge, and W. A. INGALLS, Respondents.
1. False ImprisonmentLiability of Judicial Officer.
Where a justice of the peace had jurisdiction, a party prejudiced by his decision or acts in committing him
to jail has no recourse in a civil action for damages against the justice and his sureties, even though the
latter acted with malice.
2. False ImprisonmentLiabilityJustice of the PeaceJurisdiction.
Under Comp. Laws, 4780, providing that every one who shall wilfully and unlawfully injure any property
belonging to another shall be punished, a complaint sufficiently avers ownership by another than accused,
as against collateral attack in false imprisonment against a justice of the peace, where it charges the
severance and removal of the property from the possession of the complaining witness; possession being
prima facie evidence of ownership.
3. False ImprisonmentCommitment of Offenders.
Where a justice of the peace fixed the bond of one charged with a misdemeanor at $1,000 cash, the
erroneous requirement of cash bail did not deprive the justice of jurisdiction so as to render him liable for
the improper order; it appearing that the accused made no offer of any sort of bail.
4. ProhibitionPartiesCourtsSheriff.
Where prohibition is sought to restrain enforcement of a judgment, a sheriff seeking to levy execution is a
proper party; for, if the judgment be void for want of jurisdiction, then the sheriff, who draws all of his
authority from the court, has no right to enforce the execution.
5. ProhibitionRight To.
When it is sought to prevent enforcement of void judgment upon which an execution is about to be
levied, prohibition is the proper remedy, for an appeal from an order denying a motion to quash the
summons and set aside the judgment does not afford sufficient relief; there being no provision for a stay
pending the appeal.
Original proceeding in prohibition by Louis D. Gordon against the District Court of the
Fifth Judicial District; Mark R. Averill, Judge, and W. A. Ingalls, Sheriff. Writ issued.
The facts sufficiently appear in the opinion.
Key Pittman and F. K. Pittman, for Petitioner:
The affidavit for publication of summons must state a cause of action. (Victor M. Co. v.
Justice Court, 18 Nev. 21; Comp. Laws, 3125.)
The criminal complaint against Davidson stated a public offense and invested the justice
with jurisdiction. (Comp. Laws, 2531, 4073, 4780; State v. Rising, 10 Nev. 104.)
The allegations in the complaint under consideration, that the allegations in the criminal
complaint were false and that the justice knew they were false, does not change the civil
liability of the justice of the peace. (Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652; Tyler v.
Alfred, 38 Me. 530; Wilson v. Mayor of N. Y., 43 Am. Dec. 719, note; Stone v. Graves, 40
Am. Dec. 131; Kelly v. Dresser, 11 Allen, 34; Raymond v. Bowes, 11 Cush. 317; Wells v.
Stevens, 2 Gray, 119; Sullivan v. Jones, 2 Gray, 572.)
The allegation that the justice of the peace wrongfully and maliciously fixed excessive bail
is without force. The justice had discretion to fix the amount of bail, and he is not liable for
mistakes of judgment. (Comp. Laws, 4496; 5 Cyc. 91; Bailey v. Williams, 60 Am. Dec. 650;
Downing v. Herrick, 47 Me. 462; Gilbert v. Satterlee, 88 N. Y. Supp. 871; Marks v. Sullivan,
33 Pac. 224; State v. Martinez, 11 La.
La. Ann. 23; Ex Parte Duncan, 53 Cal. 410, 54 Cal. 75.) Before a justice of the peace could
be held liable for denying a plaintiff bail, the complaint must affirmatively show that such
plaintiff presented to the judge a good and sufficient bail in the amount fixed by the court,
properly justified as provided by law, and that then said justice failed and refused to admit
such plaintiff to bail.
A justice of the peace is not civilly liable for his acts while acting within his jurisdiction,
even though he acts maliciously and wilfully and such an allegation fails to state a cause of
action. (Yates v. Lansing, 5 Johns. 282; Stone v. Graves, 8 Mo. 148, 40 Am. Dec. 133;
Wilson v. Mayor of N. Y., 43 Am. Dec. 719; Cooke v. Bangs, 31 Fed. 640; Egan v. Wolever,
26 N. E. 763; Thompson v. Jackson, 27 L. R. A. 95; Scott v. Fishblate, 30 L. R. A. 696;
Calhoun v. Little, 43 L. R. A. 632.)
There is not a misjoinder of parties respondent. (Havermeyer v. Court, 18 Am. St. Rep.
232; 32 Cyc. 603; State v. Rombaur, 16 S. W. 695.)
Prohibition is an appropriate remedy in this case. (32 Cyc. 605; State v. Wilson, 10 L. R.
A. 1132; People v. Flamberg, 26 N. Y. Supp. 329; State v. Houston, 8 Am. St. Rep. 532;
Golden v. Court, 31 Nev. 266; 16 Ency. Pl. & Pr. 1113.)
H. R. Cooke and C. H. McIntosh, for Respondents:
The writ of execution having been issued to the sheriff, and the order staying proceedings
pending the hearing of the motion to quash, and the latter motion having been denied, the
district court and the judge thereof are improperly made respondents. Prohibition cannot lie as
to acts and things already accomplished facts before application. (Hall v Court, 63 Cal. 179;
Havermeyer v. Court, 24 Pac. 121; High, Ext. Rem. 766; 16 Ency. Pl. & Pr. 1132; 32 Cyc.
603.)
The writ will not lie to a sheriff, as he is not a tribunal in a person exercising judicial or
quasi-judicial powers. (High, Ext. Rem. 764-769; 32 Cyc. 600; 2 Bailey on Jurisdiction, 449;
Cameron v. Kenfield, 57 Cal. 550.)
Petitioner has a plain, speedy and adequate remedy at law, by appeal from the order
denying motion to quash. (Winter v. Winter, 8 Nev. 129; Ballard v. Purcell, 1 Nev. 342;
Maynard v. Johnson, 2 Nev. 16; McDonald v. Agnew, 55 Pac. 125; Burge v. Court, 104 Pac.
581.)
The sufficiency of service on petitioner was a question proper for the lower court to pass
on. Error in such determination cannot be the foundation for prohibition. (People v. House, 4
Utah, 382; Mines Co. v. Court, 27 Pac. 532; Beulieu v. Court, 91 Pac. 1015; 32 Cyc. 605; 16
Ency. Pl. & Pr. 1113; High, Ext. Rem. 767; Nev. Cent. R. Co. v. Court, 21 Nev. 409; Silver
Peak v. Court, 110 Pac. 503.)
The criminal complaint filed in the justice court against Davidson wholly fails to charge a
crime. It does not charge even by inference that the article alleged to have been taken was
the property of another, as required by Comp. Laws, 4780.
When a justice accepts a complaint which he must officially know charges no crime and
when he also knows that the allegations therein made are false, he must be liable. The fixing
of bail at $1,000 is so grossly excessive as to show malice, and this is alleged to be
unlawfully and maliciously demanded in cash.
NoteCounsel for respondents cite many authorities supporting their contention that a
justice of the peace acting officially but in excess of his jurisdiction is liable, but, as the court
determined that the justice acted within his jurisdiction, no extracts are taken from that
portion of the brief.
By the Court, Norcross, J.:
This is an original proceeding in prohibition. The petitioner was a defendant in a case
determined in the lower court, entitled John F. Davidson, Plaintiff, v. George H. Keyes, John
Tabor, W. M. Doyle, and Louis D. Gordon, Defendants. The default of the defendant Louis
D. Gordon, petitioner herein, for failing to appear and answer, was entered in the case, and
subsequently judgment against him for $1,500 damages and costs was entered.
entered. Petitioner was a resident of the State of Utah, and an order for service of summons
by publication upon petitioner was granted by the lower court. Subsequently and in pursuance
of such order personal service was obtained upon petitioner in Salt Lake City, State of Utah,
in lieu of publication. After judgment was entered against petitioner, execution was issued to
the respondent W. A. Ingalls, sheriff of Esmeralda County, who was proceeding to sell
certain corporate stock of petitioner which had been attached at the time suit was instituted.
Subsequently the petitioner, Gordon, appeared specially in the action and moved for an order
to set aside and vacate judgment and to annul the writ of execution thereon, upon the ground
that at the time the judgment was entered the court below had not obtained jurisdiction over
the defendant Gordon. The motion was denied, and this proceeding was instituted to prohibit
the lower court from further proceedings under the alleged void judgment upon the same
groundswant of jurisdictionurged upon the trial court. Want of jurisdiction in the trial
court to enter an order of service of summons by publication is based upon the alleged fact
that the complaint fails to state a cause of action. (Victor Mining Co. v. Justice Court, 18 Nev.
22; Coffin v. Bell, 22 Nev. 169, 58 Am. St. Rep. 738.)
1. The defendants above named were bondsmen upon the official bond of one P. J.
Gallagher, justice of the peace in and for Gordon township, Nye County. The complaint
alleges the fact that judgment had been obtained by the plaintiff, Davidson, in a prior action
against the said P. J. Gallagher and one W. T. Mattly for damages for unlawful imprisonment
in the sum of $2,500, and that the said Gallagher and Mattly were impecunious and insolvent.
The complaint under consideration in this proceeding was to obtain judgment against the
bondsmen of said Gallagher, justice of the peace, as aforesaid, for the same alleged unlawful
imprisonment. The official bond of said Gallagher was in the penal sum of $2,000 and upon
which the petitioner, Gordon, became surety in the sum of $1,500.
The complaint alleged substantially that one W. T. Mattly wrongfully, maliciously, and
without any reasonable or probable cause, appeared before the said P. J. Gallagher as justice
of the peace and swore falsely to a pretended criminal complaint against the said John F.
Davidson; that the said P. J. Gallagher, as such justice, with knowledge of the falsity of said
alleged criminal charge, and at the malicious instigation, solicitation, and procurement of the
said Mattly, did issue a warrant of arrest upon said complaint for said Davidson; that
thereafter said Davidson was arrested and brought before the said justice, who then and there
wrongfully, maliciously, and with intent unlawfully to deprive him of his liberty, did fix the
amount of bail for said Davidson's appearance to said criminal complaint in a grossly
excessive amount, to wit, the sum of $1,000, and did wrongfully and maliciously order that
said Davidson furnish such bail in cash, well knowing that he would be unable to furnish the
same in cash; that such justice of the peace committed the said Davidson to jail pending trial
upon the complaint, and was by the constable lodged in the town jail and therein incarcerated
for two days and two nights; that said jail was poorly constructed and defectively heated, and
said Davidson suffered severely from cold, and contracted a severe cold, which caused him to
become and remain sick and sore, and that owing to the loathsome condition of the beds in
the jail and the extreme coldness he was unable to sleep, etc.; that two days after such
commitment said criminal proceeding was wholly terminated and said Davidson discharged
from custody.
It is the contention of counsel for petitioner that the complaint fails to state a cause of
action, for the reason that Gallagher, the justice of the peace, was acting judicially, and when
so acting the motives which prompted his acts cannot be a subject of inquiry in a civil action.
It is contended that the criminal complaint upon which Davidson was arrested charged the
commission of a misdemeanor; that the arrest thereupon was lawful and gave the justice
jurisdiction of the person of defendant and the subject-matter of the offense charged; that
such justice had jurisdiction to determine that defendant should furnish bail as a
condition of his release pending the trial of the charge against him, and that the amount
of such bail was a matter in the discretion of the justice, and whether the amount was
excessive or not cannot be questioned in a civil action for damages, and that, in any
event, there are no facts alleged in the complaint that would justify the conclusion that
the amount of bail fixed was excessive; that a bare allegation that the judge demanded
cash bail will not be considered, for if plaintiff failed to present personal bail properly
justified the court had no other alternative than to demand cash bail, and upon failure of
plaintiff to give it to incarcerate plaintiff.
and the subject-matter of the offense charged; that such justice had jurisdiction to determine
that defendant should furnish bail as a condition of his release pending the trial of the charge
against him, and that the amount of such bail was a matter in the discretion of the justice, and
whether the amount was excessive or not cannot be questioned in a civil action for damages,
and that, in any event, there are no facts alleged in the complaint that would justify the
conclusion that the amount of bail fixed was excessive; that a bare allegation that the judge
demanded cash bail will not be considered, for if plaintiff failed to present personal bail
properly justified the court had no other alternative than to demand cash bail, and upon failure
of plaintiff to give it to incarcerate plaintiff.
In Pratt v. Gardner, 2 Cush. 63, 48 Am. Dec. 652, Shaw, C. J., speaking for the Supreme
Court of Massachusetts in a case of first impression in that court, said: It is a principle lying
at the foundation of all well-ordered jurisprudence that every judge, whether of a higher or
lower court, exercising the jurisdiction vested in him by law, and deciding upon the rights of
others, should act upon his own free, unbiased convictions, uninfluenced by any apprehension
of consequences. * * * He is not bound, at the peril of an action for damages, or of a personal
controversy, to decide right in matter either of law or of fact, but to decide according to his
own convictions of right, of which his recorded judgment is the best, and must be taken to be
conclusive, evidence. * * * If it be said that it may be conceded that the action will not lie,
unless in a case where a judge has acted partially or corruptly, the answer is that the losing
party may always aver that the judge acted partially or corruptly, and may offer testimony of
bystanders or others to prove it; and these proofs are addressed to the court and jury, before
whom the judge is called to defend himself, and the result is made to depend, not upon his
own original convictionthe conclusion of his own mind in the decision of the original
caseas, by the theory of jurisprudence, it ought to do, but upon the conclusions of other
minds, under the influence of other and different considerations.
under the influence of other and different considerations. The general principle, which
excepts judges from answering in a private action, as for a tort, for any judgment given in the
due course of the administration of justice seems to be too well settled to require discussion;
and, as was said by Mr. Chief Justice Kent in the case of Yates v. Lansing, 5 Johns. (N. Y.)
282, has a deep root in the common law.' * * * The only remaining question is whether the
case set forth in the plaintiff's declaration was within the jurisdiction of the defendant as a
justice of the peace. Leaving out the epithets maliciously,' willfully,' falsely,' with which
the declaration is so thickly sprinkled, and which cannot change or qualify the material facts,
it is stated that the defendant, being a justice of the peace, issued a warrant against the
plaintiff, on the complaint of one Burley, charging the plaintiff with a malicious trespass on
his land. It is alleged that the complaint is false, feigned, and groundless, and that the
defendant knew it; but this was the very question to be tried, and the defendant could not
judicially know it till a trial. His private knowledge could not prevent the complainant from
having it tried. It is further alleged that the defendant wilfully and maliciously tried and
convicted the plaintiff, and sentenced him to pay a fine of $2 and costs. The plaintiff alleges
that he was not guilty, and that the defendant knew he was not guilty. These are facts which
the defendant is not bound to contest with the plaintiff.
In the case of Cooke v. Bangs (C. C.) 31 Fed. 640, cited by counsel for petitioner, Justice
Brewer, considering the question of the liability of a justice of the peace for damages in a
civil action for acts done in his official capacity, said: Under what circumstances can a
justice of the peace be held liable for a civil action for damages for an act done by him in his
capacity as justice of the peace? Nothing is more important in any country than an
independent judiciary, and nowhere is it so important, so absolutely essential, as under a
popular government.
No man can be a good judge who does not feel perfectly free to follow the dictates of his own
judgment, wheresoever they may lead him. And in a country where the people rule, and
where popular clamor is apt to sway the multitude, nothing is more important than that the
judges should be kept as independent as possible. And it is universal experience, and the
single voice of the law books, that one thing essential to their independence is that they
should not be exposed to a private action for damages for anything they may do as judges. * *
* With respect to all judicial officers, justices of the peace as well as judges of higher courts,
the settled law of the Supreme Court of the United States, and I think the plain intimation of
the supreme court of this state [Minnesota], is that, where they act within their jurisdiction,
they are not amenable to civil action for damages. No matter what their motives may be, they
cannot be inquired into.
Other cases of the same general import cited by counsel for petitioner are Stone v. Graves,
8 Mo. 148, 40 Am. Dec. 133; Wilson v. Mayor of New York, 1 Denio (N. Y.) 595, 43 Am.
Dec. 719; State, ex rel. Egan, v. Wolever, 127 Ind. 306, 26 N. E. 763; Thompson v. Jackson,
93 Iowa, 376, 61 N. W. 1004, 27 L. R. A. 95; Scott v. Fishblate, 117 N. C. 265, 23 S. E. 436,
30 L. R. A. 696; Calhoun v. Little, 106 Ga. 336, 32 S. E. 86, 43 L. R. A. 632, 71 Am. St.
Rep. 254.
Cyc., in treating of the question of the civil liability of justices of the peace, says: When a
justice of the peace has jurisdiction, he is not personally liable for any error in its exercise,
and this immunity from civil liability extends even to cases in which a justice upholds and
enforces unconstitutional law. In England a justice of the peace is civilly liable for acts done
maliciously and without probable cause, but in the United States the authorities are divided; it
having been both asserted and denied that the justice may be liable, where it is shown that he
has acted corruptly or maliciously. The general rule is that a justice of the peace who acts in a
case of which he has no jurisdiction, or who exceeds his jurisdiction, is liable in damages
to any party injured.
no jurisdiction, or who exceeds his jurisdiction, is liable in damages to any party injured. A
distinction has, however, been drawn in some cases between excess of jurisdiction and the
clear absence of all jurisdiction over the subject-matter; and it has been held that, where
jurisdiction of the subject-matter has been invested by law in the justice, the manner and
extent in which the jurisdiction shall be exercised are generally as much questions for his
determination as any other questions involved in the case, and he is not liable for error in
determining the facts necessary to his jurisdiction. So, too, it has been held that if the want of
jurisdiction over a particular case is caused by matters of fact it must be made to appear that
they were known, or ought to have been known, to the justice, in order to hold him liable for
acts done without jurisdiction. (24 Cyc. 421.)
We think the prevailing rule in the American courts is concisely stated in Curnow v.
Kessler, 110 Mich. 10, 67 N. W. 982, as follows: The justice having obtained jurisdiction of
the subject-matter, the rule is well settled that no action can be sustained against him for the
recovery of damages by one claiming to have been injuriously affected by his judicial action.
It is indispensable to the administration of justice that a judge or other judicial officer, who
acts within the scope of his jurisdiction, may act freely, without any fear of being held
responsible in a civil action, or having his motives brought in question by one injuriously
affected by his judgment. This immunity is uniformly held not to be affected by the motives
with which it is alleged that the judicial officer has performed his duty. If the officer be in fact
corrupt, the public has its remedy; but the defeated suitor cannot be permitted to obtain
redress against the judge by alleging that the judgment against him was the result of corrupt
or malicious motives. See Bradley v. Fisher, 13 Wall. 335, 20 L. Ed. 646; Mechem, Pub. Off.
619-621.
In the recent case of Lacey v. Hendricks, 164 Ala. 280, 51 South. 157, 137 Am. St. Rep.
45, Evans, J., speaking for the court, said: "It is settled law in this jurisdiction that no
action can be supported against a justice of the peace acting judicially, and who has not
exceeded his jurisdiction, however erroneous his decision or malicious his motive."
for the court, said: It is settled law in this jurisdiction that no action can be supported against
a justice of the peace acting judicially, and who has not exceeded his jurisdiction, however
erroneous his decision or malicious his motive.
2. The criminal complaint upon which Davidson was arrested in its charging portion reads
as follows: That said John F. Davidson did then and there unlawfully, maliciously, and
wilfully sever and carry away a detonator from a 15-hp. F. & M. hoist, which is located on
leasing block No. 1 of the Round Mountain Red Top Mining Company's Black Hawk claim,
without the permission and consent of the aforesaid plaintiff, W. T. Mattly, who holds
possession of said lease and hoist.
We think this complaint sufficiently charges a public offense to give the justice
jurisdiction of the person arrested upon warrant based thereon, and the subject-matter of the
charge. It is admitted that this charge was based on the provisions of section 4780 of the
Compiled Laws (Cutting), which reads: Every person who shall wilfully, unlawfully and
maliciously destroy, burn, cut, or otherwise injure any goods, chattels or other property of
any description whatever, belonging to another, shall upon conviction be punished by a fine
of not more than $500 or by imprisonment in the county jail not more than six months, or by
both such fine and imprisonment.
It is the contention of counsel for respondent that this complaint fails to charge an offense,
for the reason that it fails to allege that the article charged to have been taken by Davidson
belonged to another. The complaint alleged possession in another of the hoist from which
the defendant was charged with unlawfully, wilfully, and maliciously severing and carrying
away a detonator. It is well settled that possession is prima facie evidence of ownership.
(State v. Rising, 10 Nev. 104; State v. Parker, 16 Nev. 79.) Property in the lawful possession
of another is property belonging to another, within the meaning of the statute. Possession of
property is presumed to be a lawful possession until the contrary is shown.
contrary is shown. Upon direct attack the complaint in question might be required to be made
more specific, a point we do not decide; but considering it as upon collateral attack, as in the
present case, it cannot be said, we think, to be fatally defective as not charging the property
removed as belonging to the complainant, in whose possession it was alleged to be at the time
of the alleged unlawful removal.
3. The complaint having charged a public offense, upon the defendant being brought
before the justice, the latter had jurisdiction to commit him until the time set for trial. It may
be conceded that the justice was without power to refuse personal bail or to order that bail be
furnished in cash. The making of such erroneous orders, however, did not divest the justice of
power to commit, certainly not in the absence of an offer of a sufficient bail bond. It is not
alleged in the complaint that the defendant could have furnished any sort of a bond, either by
sureties or by deposit in lieu of bond. We need not determine the question whether the offer
of a sufficient bond would, of itself, divest the justice of jurisdiction to commit; but it is clear,
we think, that in the absence of such an offer the power to commit exists, however erroneous
the order may be. We can conceive of nothing more reprehensible in a justice than to refuse
to give one charged with a misdemeanor every opportunity to furnish a bail bond. Upon the
other hand, before the sureties upon an official bond should be held liable in damages, the
complainant should show that he has exhausted the remedies open to him, and that,
notwithstanding he has done everything within his power under the circumstances, he has
suffered injury.
In the case of State v. Davis, 14 Nev. 439, 33 Am. Rep. 563, the defendant, who was
charged with the crime of escaping from jail, sought to introduce evidence to the effect that
the jail was absolutely intolerable and injurious to the health of the defendant. Considering
error assigned in refusing to admit the offered evidence, this court said: We consider it
unnecessary to decide whether or not the proposed testimony would have been admissible in
justification had a proper foundation been laid therefor; that is to say, had appellant
shown or offered to show that he exhausted the lawful means of relief in his power before
attempting the course pursued.
admissible in justification had a proper foundation been laid therefor; that is to say, had
appellant shown or offered to show that he exhausted the lawful means of relief in his power
before attempting the course pursued. It was not shown or claimed that he had even
complained to the sheriff or the board of county commissioners, or that he had endeavored to
obtain relief by any lawful means. The plea of necessity in justification of acts which, without
such necessity, constituted the crime charged was unavailable without also showing that
lawful measures had first been adopted to accomplish the desired result. A person confined
by the law should be delivered by the law; and no other means can be justified in any case
until the officers in charge, and the law, refuse him relief; and then the evidence of the
necessity must be clear and conclusive, and the act must proceed no further than the
emergency absolutely requires. (Bishop on C. L., vol. 1, sec. 352.)
If the evidence of the character of the jail is not admissible to show justification or
mitigation of the charge of escaping from jail, in the absence of a showing that the defendant
had exhausted the appropriate and lawful means for relief therefrom, is there not a greater
reason for requiring a similar showing before damages in a civil action can be collected for
injuries alleged to have occurred by reason of unlawful confinement in a jail that is not
suitable for the purpose? We think there is.
The facts alleged in the complaint for damages may constitute malfeasance in office, and
might have supported a proceeding for removal from office; but, as the justice acted within
his jurisdiction in causing the arrest and commitment of the defendant, the justice and his
bondsmen cannot be held liable in damages in a civil action for the acts complained of, under
the well-established rule heretofore stated. This rule is for the protection of courts for the
benefit of the public, and the fact that the application of the rule in individual instances may
work a hardship, as possibly it does in this case, does not detract from the force of the rule.
The rule, to be of any benefit, must be inflexible to the extent that when it appears that a
justice of the peace is acting within his jurisdiction he cannot be held liable in a civil
action for damages for his acts committed within such jurisdiction.
be of any benefit, must be inflexible to the extent that when it appears that a justice of the
peace is acting within his jurisdiction he cannot be held liable in a civil action for damages
for his acts committed within such jurisdiction. While the state may proceed against a justice
and punish him for acts committed within his jurisdiction, which are shown to have been
done maliciously, for reasons of public policy, the individual is required to seek relief by the
various methods which the law affords him. A defendant charged with a misdemeanor may
demand an immediate trial. If for any reason this is not granted, he may demand release on
bail. If bail, in his judgment, is fixed too high, he may apply for reduction. If the justice
refuses to reduce his bail, the remedy of habeas corpus is open to him. If he is confined in a
jail that is not a suitable place for the confinement of persons charged with offenses against
the law, he may apply to the lawful authorities to remedy the condition of the jail. In extreme
cases the remedy by habeas corpus might relieve one held in such confinement. Doubtless
there are individual cases such that these and other remedies cannot afford full relief, but it is
practically impossible for laws to be devised that will afford full relief under every possible
circumstance. An innocent person always suffers a great injury when he is prosecuted for a
crime he did not commit, but society thus far has not been able to devise a suitable remedy for
the injury done in such cases. The public welfare requires the prosecution of persons for
offenses committed against society. In the administration of the penal laws, of necessity, it
occasionally occurs that the innocent suffer injury. Such injury is usually done when the
officers of the law are proceeding in strict accordance with the letter and spirit of the law, and
with due regard for the rights of the accused. The wisdom of centuries has crystallized into
law the rule that courts whose duty it is to administer the law shall not be obliged to proceed
in the performance of their judicial acts with the knowledge that they are subject to civil
actions for damages for wrongs, real or imaginary, which may be by any litigant deemed to
have been committed by the judge within the exercise of his jurisdiction.
to have been committed by the judge within the exercise of his jurisdiction. However unjust
may have been the arrest and imprisonment of Davidson, such arrest and imprisonment,
according to the allegations of the complaint, do not appear to have been occasioned by an
order or orders in excess of the jurisdiction of the justice of the peace to make, and the
complaint therefore fails to state a cause of action, and the district court did not acquire
jurisdiction in the action over petitioner.
4. Counsel for respondents in this proceeding raised two preliminary objections to the
issuance of a writ of prohibition in this case. It is contended that there is a misjoinder of
parties respondent; that the sheriff was not a necessary or proper party to the proceedings with
the court. We think a liberal rule should prevail in proceedings of this character, in so far as
parties are concerned. The sheriff is an officer of the court, and derives his powers therefrom.
If the judgment is void for want of jurisdiction to enter it, the writ which the sheriff is
proceeding to execute, and which is based on the judgment, is likewise void. The objection
that there is a misjoinder of parties is not well taken.
5. It is contended that the writ should not issue, because petitioner had a plain, speedy, and
adequate remedy by appeal. Had a motion been made to quash the service of summons prior
to the entry of judgment, doubtless an appeal would have been an adequate remedy; but
where the writ is sought to prohibit the enforcement of a void judgment, upon which
execution has issued and is about to be levied and property sold thereunder, an appeal from
an order denying a motion to quash the summons and set aside the judgment does not seem to
us to afford an adequate remedy, as there is no provision that we are aware of for a stay
pending an appeal from such orders.
The writ will issue as prayed for.
NoteMcCarran, J., having become a member of the court after the argument and
submission of the case, did not participate in the foregoing opinion.
____________
36 Nev. 16, 16 (1913) Whise v. Whise
[No. 2023]
MELCHOIR WHISE, Appellant, v. ESTHER
WHISE, Respondent.
1. JudgmentSetting AsideLiberal Construction of Statute.
Comp. Laws, 3163, permitting the court, in furtherance of justice, upon just terms, to relieve a party from
a judgment, order, or other proceeding taken against him through mistake, inadvertence, surprise, or
excusable neglect, should be very liberally construed in furtherance of its purpose.
2. DivorceNew TrialNewly Discovered Evidence.
The fact that plaintiff moved from the state after rendition of a judgment of divorce in his favor could not
be considered as newly discovered evidence affecting the material issues in an action for divorce for
cruelty.
3. DomicileResidenceIntention.
Residence is a matter of intention.
4. New TrialNewly Discovered EvidenceImpeachment of Witnesses.
Newly discovered evidence, which could only be used by way of impeachment, is not ground for granting
a new trial, unless evidence of the witness sought to be impeached was so important, and the impeaching
evidence so convincing, that a different result would necessarily follow the admission of the impeaching
evidence.
5. New TrialNewly Discovered EvidenceMateriality.
The alleged newly discovered evidence must be material or important to the party seeking a new trial.
6. New TrialNewly Discovered Evidence.
Newly discovered evidence on a matter collateral to the issues is seldom ground for a new trial.
7. New TrialNewly Discovered EvidenceWeight.
In order to compel the granting of a new trial, the newly discovered evidence must be so strong as to
make it probable that a different result would be obtained in another trial; it not being sufficient merely that
it might change the result.
8. New TrialNotice of Motion forAmendment.
Upon a proper showing, held, that the court might have permitted an amendment to the notice of motion
for a new trial.
Appeal from the Second Judicial District Court, Washoe County; Thomas F. Moran,
Judge.
Action by Melchoir Whise against Esther Whise. From an order granting defendant
permission to amend her notice of motion for a new trial, plaintiff appeals. Reversed.
36 Nev. 16, 17 (1913) Whise v. Whise
Huskey & Springer, for Appellant:
A notice of intention to move for a new trial cannot be amended after time for filing by
adding any new ground or any ground not germane to the grounds contained in the original,
except in those states where a statutory exception is made of the ground of newly discovered
evidence. (Packer v. Doray, 98 Cal. 315, 33 Pac. 118; Sullivan v. City of Helena, 10 Mont.
134, 25 Pac. 94; Fuselman v. Wabash R. Co., 139 Mo. App. 198, 122 S. W. 1137; Brinton v.
Thomas, 138 Mo. App. 64, 119 S. W. 1016; Mt. Vernon Bank v. Porter, 148 Mo. 176, 49 S.
W. 982; Merriclies v. Wabash R. Co., 163 Mo. 470, 63 S. W. 78; Hesse v. Seyp, 88 Mo. App.
66; Saxton Nat. Bank v. Bennett, 188 Mo. 494, 40 S. W. 97; Rice v. Folsom, 122 Pac. 236;
Blue Creek L. & L. Stock Co. v. Anderson, 99 Pac. 444; In re McDonnell, 83 N. E. 675;
Cincinnati N. O. & T. P. R. Co. v. Barr, 6 Ky. Law Rep. 450; Dutton v. Seevers, 89 Iowa,
302, 56 N. W. 398; Perry v. Eaves, 4 Kan. App. 26, 45 Pac. 718.)
Sherman v. Southern Pacific Company, 31 Nev. 285, is authority only for the proposition
that the court has power upon proper application to relieve a party from his default in failing
to file his notice of motion within the time fixed by law. It does not follow, as urged by
respondent, that the exercise of such a power necessarily involves the power to permit an
amendment by adding a new ground not germane to the original after the time for filing has
expired.
The authorities cited by respondent fall into three classes: First, those which are not in
point upon the proposition involved in this case. Second, those which are in point, but which
support the contention of appellant, and not the contention of respondent. Third, those which
apparently support respondent's contention, but which were based upon statutes different
from the Nevada Statute.
Mack, Green, Brown & Heer, for Respondent:
There is no decision by the supreme court of this state which passes upon the precise point.
In Sherman v. Southern Pacific Company, 31 Nev. 2S5
36 Nev. 16, 18 (1913) Whise v. Whise
Southern Pacific Company, 31 Nev. 285, this court held that under the provisions of section
3163 of the Compiled Laws of Nevada, which is reenacted in section 5084 of the Revised
Laws, a party upon proper showing may be relieved of his default in failing to move for a new
trial within the time allowed by law and permitted to file a notice of intention to move for a
new trial and a statement on motion for a new trial after the time limited by statute. We
contend that this case not only shows the policy of the laws of this state, but is in point upon
the proposition of respondent's right to amend her notice of intention to move for a new trial
setting forth the ground of newly discovered evidence.
We think the greater number of cases and better reasoned decisions can be found to
support this contention than can be found to support the contention of appellant that the
authority does not exist in the court to permit an amendment to the notice of intention to
move for a new trial after the time limited for its filing, especially in view of the new practice
that the notice of intention must be served and filed within ten days after notice of decision. It
is highly important that amendment upon the ground of newly discovered evidence should be
permitted, unless that ground for a new trial is to be rendered unavailable in a great number of
cases. The following authorities support the position of the respondent: Sherman v. S. P. Co.,
31 Nev. 285; Clark v. Rauer, 2 Cal. App. 259, 83 Pac. 291; Snelling v. Darrell, 17 Ga. 141;
Moore v. Ulm, 34 Ga. 565; Girardey v. Bessmen, 62 Ga. 654; Lunsford v. Sutton, 3 Ga. App.
94, 59 S. E. 334; Mann v. Tallapoosa R. Co., 99 Ga. 117, 24 S. E. 871; Robt. Portner
Brewing Co. v. Cooper, 116 Ga. 171, 42 S. E. 408; McLeod v. Morris, 120 Ga. 766, 48 S. E.
188; Tifton T. & G. Ry. Co. v. Chastain, 122 Ga. 250, 50 S. E. 105; S. Ry. Co. v. Hixon, 68 S.
E. (Ga.) 1100; Soudan v. Craig, 20 Iowa, 477; Spear v. Towne, 66 Iowa, 721, 24 N. W. 504;
State v. Anderson, 80 N. W. (Iowa) 430; Hawk v. Mulhall, 133 Iowa, 695, 110 N. W. 1026;
City of Lincoln v. Beckman 23 Neb. 677, 37 N. W. 593; Houston v. Kidwell, 83 Ky. 301, 7
Ky. L. R. 266; Million v. Million's Executors, 34 Ky.
36 Nev. 16, 19 (1913) Whise v. Whise
L. R. 115, 104 S. W. 768; Seagrave v. Hall, 30 Ohio Cir. Ct. R. 403; Jung v. Hamm Brewing
Co., 95 Minn. 367, 104 N. W. 233; Gullion v. Traver, 46 Neb. 51, 89 N. W. 404; Bunker v.
Taylor, 10 S. D. 526, 74 N. W. 450; Day v. Goodman, 17 S. W. (Tex.) 475; Kreilsheimer v.
Nelson, 31 Wash. 406, 72 Pac. 72; Prebble v. Bates, 37 Fed. 772; Furlong v. Reid, 12 Ont.
Pr. 201; Vary v. Muirhead, 2 U. C. Q. B. O. S. 121; Inch v. Flewelling, 29 N. Brunsw. 570;
29 Cyc. 958; Holmes v. Commission Co., 81 Mo. App. 97; Thompson v. Thompson, 109 Mo.
462, 84 S. W. 1022.
By the Court, McCarran, J.:
In this case Melchoir Whise instituted an action for divorce against Esther Whise in the
district court of the Second judicial district. The case was tried by the court on the 8th day of
June, 1911, judgment was rendered in favor of the plaintiff, appellant herein, and on June 20,
1911, a decree of divorce was granted to the plaintiff on the ground of extreme cruelty.
By order of the court, as appears from the statement on appeal, the time in which for
defendant to file her notice of intention to move for a new trial was extended, and on August
5, 1911, within the time allowed by the court, the defendant, through her attorneys, filed her
first and original notice of intention to move for a new trial.
The notice, as filed August 5, is set out in full in the statement on appeal, and is based
upon three separate grounds, to wit: First, insufficiency of the evidence to justify the decision
of the court; * * * second, that said decision is against the law; and, third, errors of law
occurring at the trial and excepted to by the defendant.
The matter seems to have rested in abeyance until the 13th day of December, 1911, on
which date, and after the expiration of the time allowed by the court for filing the notice of
intention, defendant filed notice of motion for an order permitting her to amend the former
notice by adding a new ground thereto, to wit: Fourth, newly discovered evidence material
for the defendant, which she could not with reasonable diligence have discovered and
produced at the trial.
36 Nev. 16, 20 (1913) Whise v. Whise
The hearing of the motion for permission to amend was had and determined on the 1st day
of April, 1912. At the conclusion of the hearing the court made the order granting defendant
permission to amend her original notice of intention by adding the fourth ground, i.e., newly
discovered evidence. The plaintiff, having resisted the motion to amend in the court below,
and having entered his exception, comes here on appeal from the order granting defendant the
right to amend.
The time in which defendant, respondent herein, should have filed her notice of intention
to move for a new trial had unquestionably expired, but having previously filed her original
notice of intention within the time allowed, the question is: Was it abuse of discretion, in
view of the showing made, to permit her to file, as an amendment, a fourth ground, namely,
newly discovered evidence.
1. Section 3163 of the code, in the light of which this case must be considered (Cutting's
Compiled Laws), sets forth: 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. This is in the nature of a remedial statute; its object was to
relieve litigants who through some inadvertence, such as is common to mankind, might be
deprived of a hearing upon the merits through their unintentional failure to bring themselves
within a rule. Statutes such as this were intended to relieve the harshness of rigid form by
applying the flexibility of discretion. The various text-writers and many of the recent
decisions dwelling on the subject of remedial statutes have expressed themselves as favoring
very liberal construction on the application of such statutes. (Lewis' Sutherland, Statutory
Construction, sec. 717; Black's Interpretation of Law, p. 311.)
This court, in the case of Sherman v. Southern Pacific, 31 Nev. 290, speaking through Mr.
Justice Sweeney, said: It seems clear to us that the legislature of Nevada, in passing this
remedial statute, had in mind the necessity of having a provision wherein, in proper cases,
upon a proper showing of excusable neglect, surprise, mistake, or inadvertence, in the
interests of justice, and that a full determination of litigants' rights should be received,
trial courts should, in proper cases, be permitted to grant relief by giving a further
extension of time to counsel thus aggrieved, if properly applied for."
36 Nev. 16, 21 (1913) Whise v. Whise
of having a provision wherein, in proper cases, upon a proper showing of excusable neglect,
surprise, mistake, or inadvertence, in the interests of justice, and that a full determination of
litigants' rights should be received, trial courts should, in proper cases, be permitted to grant
relief by giving a further extension of time to counsel thus aggrieved, if properly applied for.
In considering decisions of the various courts on subjects bordering upon the one under
consideration, we find none that have gone so far as has this court in the case of Sherman v.
Southern Pacific, supra. The advanced and liberal policy of the court, as expressed in that
case, is supported in other well-considered decisions, and gives the true expression to the fact
that the first place to secure judicial reform is from the bench itself. In fact, we believe it is
and should be the trend of modern law that in matters of procedure and pleading, where the
interests of justice demand, the court should have full power to disregard technicalities
minutely prescribed by statute, and should be invested with authority throughout all of a
proceeding to ignore any excusable neglect or inadvertence or defect, where such may arise or
exist without affecting the material rights of the parties. This power, however, should only be
exercised where the showing clearly justifies, and it is that question, as applicable to the case
at bar, that we will now consider.
In the Sherman case, supra, the affidavit of the attorney for the moving party sets forth
such things as would most properly entitle the court to grant the relief prayed for. There were
the uncontradicted facts of pressing and urgent business and the serious illness of the wife of
the attorney for the moving party. Together with that there was manifest diligence displayed
on the part of the attorney by proper motion in the district court. This, together with the
showing made, indicated clearly inadvertence and excusable neglect; but in the case under
consideration there is no showing that would indicate either surprise, inadvertence, or
excusable neglect, and, what is more, the record indicates a lack of diligence in pressing the
original motion to a hearing.
36 Nev. 16, 22 (1913) Whise v. Whise
in pressing the original motion to a hearing. The notice of motion to amend reads as follows:
Melchoir Whise and Messrs. Huskey & Springer, His Attorneys: You will please take
notice that on Saturday, the 3d day of December, 1911, at the hour of 10 o'clock a.m. of said
day, or as soon thereafter as counsel can be heard, defendant will move the court for an order
permitting defendant to amend her notice of motion of intention to move for a new trial, filed
and served herein on the 5th day of August, 1911, by inserting in said notice the following
fourth and additional ground upon which said motion will be made, to wit: Newly
discovered evidence material for the defendant, which she could not with reasonable
diligence have discovered and produced at the trial.'
Said motion will be made upon the ground that, since the said notice of intention to move
for a new trial was filed and served herein, the plaintiff, Melchoir Whise, has left the State of
Nevada and returned to the city of Chicago, in the State of Illinois, and has there resumed his
residence and the practice of his profession, and that the said city of Chicago is now the
permanent residence of the said plaintiff, and that at the trial of the above-entitled action said
plaintiff testified that he had taken up his permanent residence at the city of Reno and
intended to remain in said city of Reno, State of Nevada, in the permanent practice of his
profession here, and that the fact that shortly after the judgment in this case was rendered the
said plaintiff returned to the city of Chicago, which had been his home within six months and
two days prior to the commencement of this action, shows that he did not take up his
residence in the city of Reno, State of Nevada, in good faith, for the purpose of becoming a
permanent resident, and that his testimony in that behalf was false, and that the fact of the
plaintiff's return and resumption of his residence and the permanent practice of his profession
in the city of Chicago, State of Illinois, could not be known to defendant at the time of the
filing and service of intention to move for a new trial, and that the failure to include among
the grounds of such motion the newly discovered evidence herein referred to constitutes
excusable neglect on the part of the defendant.
36 Nev. 16, 23 (1913) Whise v. Whise
newly discovered evidence herein referred to constitutes excusable neglect on the part of the
defendant. * * *
The affidavit of George S. Brown, one of the attorneys for the moving party, filed in
support of the motion, sets forth the substance of plaintiff's testimony at the trial, relative to
his residence and his intention of residence, and further sets forth, in substance, that the
testimony of Whise given at the trial, relative to his intention of making Reno his permanent
residence, was false, and that his having moved from the state and taken up the practice of his
profession in the city of Chicago is indicative of its falseness.
2, 3. In her motion to amend it will be observed that the respondent used the following
words: The fact that shortly after the judgment in this case was rendered the plaintiff
returned to the city of Chicago, which had been his home within six months and two days
prior to the commencement of this action, shows that the plaintiff did not take up his
residence in the city of Reno, State of Nevada, in good faith, for the purpose of becoming a
permanent resident, and that his testimony in that behalf was false. The fact, if it be a fact,
that Whise moved from the State of Nevada after the rendition of a judgment and the filing of
the decree, could not, we think, be considered as newly discovered evidence that would affect
the material issues of the case. Residence is a matter of intention, and has been generally so
held. Both parties to this action had submitted themselves to the jurisdiction of the trial court,
in which court there had been a trial and determination of all of the issues, and at the
conclusion of the controversy either party had the right to go wherever he or she saw fit.
Moreover, the act or acts of appellant in moving to another state after the termination of the
litigation could, at best, be only considered as impeachment of his testimony given at the trial
of the case, and then an impeachment by inference only. In fact, as shown from the motion
itself, the defendant seeks only to use such evidence for the purpose of impeaching the
testimony of the plaintiff, Whise, at the trial.
36 Nev. 16, 24 (1913) Whise v. Whise
4. By a strong line of authorities it has been held that, where newly discovered evidence
could serve only the purpose of impeachment, it will not constitute grounds that will warrant
the court in granting a new trial. If, from the nature of the evidence that the moving party
seeks to rely upon as disclosed by their motion and affidavits, it is apparent no purpose can be
served other than the impeachment of the testimony of an adversary, or a witness of the
adverse party, a new trial should not be granted, unless the testimony of the witness sought to
be impeached was so important to the issue, and the evidence impeaching the witness so
strong and convincing, that a different result must necessarily follow. It follows that an
amendment, by inserting the new ground of newly discovered evidence, offered after the time
had expired, should not be permitted, where the evidence that might be offered by reason of
the amendment could not warrant the court in granting a new trial.
5-7. Newly discovered evidence, to have any weight in the consideration of a trial court,
must be material or important to the moving party. Evidence on a matter collateral to the
issue is seldom grounds for a new trial, and it is not sufficient that the new evidence, had it
been offered in the trial, might have changed the judgment. It must be sufficiently strong to
make it probable that a different result would be obtained in another trial. The new evidence
must be of a decisive and conclusive character, or at least such as to render a different result
reasonably certain.
The evidence sought to be relied upon in this instance, the nature of which was set forth in
the motion and the affidavits, was clearly for the purpose of impeachment only. It was not
such as should or would render a different result probable on a retrial of the case. Hence there
would be no material rights lost to the moving party by denying the motion to amend, in that
the evidence to be introduced by reason of the amendment could avail the moving party
nothing, and the proposed amendment would serve no purpose. On the other hand, the
granting of the motion might work great annoyance to the adverse party, and would be
sure to result in delay and involved litigation.
36 Nev. 16, 25 (1913) Whise v. Whise
the granting of the motion might work great annoyance to the adverse party, and would be
sure to result in delay and involved litigation.
8. Had the motion to amend been made within a reasonable time and been supported by a
showing clearly indicating inadvertence, surprise, or excusable neglect, and had there been a
manifestation of due diligence of the moving parties, and had the nature of the evidence
sought to be relied upon been such as would warrant the court in entertaining it in furtherance
of their motion for a new trial, the court might, in the light of the decision of this court in the
Sherman case, supra, have permitted the amendment. But in this case, as indicated by the
motion and by the several affidavits in support thereof, all of these essential elements were
lacking, and we think that it was an abuse of discretion on the part of the trial court to permit
the amendment after the time had expired, in view of the showing made.
The order appealed from is reversed.
____________
36 Nev. 26, 26 (1913) Wolf v. Humboldt County
[No. 2028]
PHILLIP H. WOLF, Respondent, v. HUMBOLDT
COUNTY, a Corporation, Appellant.
1. Appeal and ErrorAppeal from Judgment AloneReviewPresumptions.
The court on appeal from a judgment only, will presume that the evidence is sufficient to support the
findings of the trial court.
2. Accord and SatisfactionActs ConstitutingEvidence.
To support a plea of accord and satisfaction, it must clearly appear from the evidence that there was in
fact a meeting of the minds of the parties on that point, and the proof may not depend on the construction
that may be placed on a statute.
3. Accord and SatisfactionEstablishmentBurden of Proof.
A party seeking to avail himself of a plea of accord and satisfaction has the burden of proving clearly a
meeting of minds of parties, accompanied by a sufficient consideration.
4. Accord and SatisfactionClaims Against CountyDisallowance in PartEffect of
Acceptance of Part Allowed.
A party who accepts the amount allowed on his claim against a county, disallowed in part, is not estopped
from recovering the part disallowed, unless the acceptance was under circumstances disclosing a settlement
or compromise of the matters in dispute.
5. CountiesClaimsDisallowance in PartEffect of Acceptance of Part Allowed.
Under Rev. Laws, 1523, prohibiting actions on a demand against a county, unless first presented to the
county commissioners and county auditor for allowance, and providing that where they fail to allow the
same, or some part thereof, the claimant may sue, and sections 1535 and 1541, providing that demands
against a county must be presented in the form of bills, one having several liquidated claims may put them
in one bill, and where specified demands are allowed and others rejected the claimant may accept the
amount allowed and sue for the claims disallowed in whole or in part; and a constable presenting monthly
bills made up of various items for services rendered, for which the statute prescribes fees, may accept the
part allowed and sue for the part disallowed, though in the case of an unliquidated demand the allowance of
a part requires claimant to accept the part as satisfaction for the claim, or sue for the entire demand.
6. SheriffsConstablesCompensationContractsValidity.
The constable of a town, who performs services, the fees for which are fixed by statute, may not accept a
greater sum, nor may the county commissioners tender a less sum; and an agreement to accept a greater is
illegal, and an agreement to accept a less sum is void, as contrary to public policy.
Appeal from the Sixth Judicial District Court, Humboldt County; L. N. French, Judge,
presiding.
Action by Phillip H. Wolf against Humboldt County. From a judgment for plaintiff,
defendant appeals. Affirmed.
Salter & Robins, for Appellant:
As respondent accepted and was paid the allowance on these claims made by the county
commissioners, he is not entitled to sue for the amounts so disallowed. See 117 Ill. App. 622;
75 Pac. 569; 81 N. Y. S. 648; 94 N. Y. S. 517; 104 Ill. App. 268; 107 N. Y. S. 796; 11 L. R.
A. (N. S.) 1021; 14 L. R. A. (N. S.) 443; 27 L. R. A. (N. S.) 439; 56 N. W. 438; 66 N. W.
834; 51 Am. St. Rep. 695; 20 L. R. A. 785; 1 Cyc. 333; Cooper v. R. Co., 82 Miss. 634, 643,
35 S. 162; 75 Pac. 117; Wapello County v. Sinnaman, 1 G. Greene (Iowa) 413; Looney v.
Jackson County, 105 Ala. 597; Board v. Sewll, 41 Pac. (Okla.) 592; Yavapai Co. v. O'Neill,
29 Pac. (Ariz.) 432; Eakin v. Nez Perces Co., 36 Pac. (Idaho) 702; Chase v. Saratoga Co., 33
Barb. 603; People v. Greene Co., 33 Hun, 303; U. S. v. Adams, 7 Wall. 463; Rev. Laws, 1508
(subd.2), 1509, 1523, 1526.
Section 1523, Rev. Laws, is significant in the fact that it presumes that an aggrieved
claimant will forego the amount allowed by the board, and sue for the full sum claimed.
With reference to a county of this state, it makes no difference whether the claims are
liquidated or unliquidated; whether in accepting the warrants for the amounts allowed, the
plaintiff did or did not protest.
The entire scheme laid out by the statutes of this state, and the limited power that is placed
on the commissioners, show that the county does occupy a different position from an ordinary
debtor.
The Colorado decisions upon which the learned judge decided the question here presented
are not applicable under the laws of this state. In Colorado, as it appears from those
decisions, the powers of the commissioners are not limited in this respect as in this state.
from those decisions, the powers of the commissioners are not limited in this respect as in
this state. There the board can reject, or partially reject, a claim against a county and again
reconsider their action.
Mack, Green & Heer, for Respondent:
Items of service, for which compensation is fixed by statute, are liquidated demands,
because the law itself liquidates such demands. The law relating to accord and satisfaction
cannot apply in this case.
There was no evidence introduced at the trial that the delivery of any warrant was
accompanied by any declaration or notice that if such warrant was accepted by the respondent
it would be accepted upon condition that it constituted payment in full of the claim upon
which it was allowed.
The burden of proving accord and satisfaction was cast upon the defendant. No proof was
offered upon the subject other than that offered by the plaintiff to the effect that he never had
attended the meetings of the board of county commissioners, and no person authorized to
represent the county in any capacity had given him any notice that the amount allowed was
upon condition that if it be accepted at all it constituted payment in full. (Board v. Darnell, 17
Colo. App. 85, 66 Pac. 1073; McDavitt v. McNay, 78 Ill. App. 396; Standard Sewing M. Co.
v. Gunter, 46 S. E. 690, 102 Va. 568; Jennings v. S. Whitley Hoop Co., 98 N. E. 194.)
Accord and satisfaction can only arise from an implied contract. No legal or equitable
rights in favor of appellant could be created by a void contract. Any contract which
respondent might make with appellant regulating his compensation for services in criminal
cases would be in violation of public policy and the positive provisions of law, and therefore
void. (Rev. Laws, 2009; Wolf v. Humboldt Co., 32 Nev. 174; Mechem, Pub. Off. 377.)
The mere acceptance by respondent of a county warrant drawn for an amount allowed by
the county commissioners upon a claim for a larger amount does not constitute an accord and
satisfaction and does not preclude the respondent from recovering the balance due on his
claim.
an accord and satisfaction and does not preclude the respondent from recovering the balance
due on his claim. (Board v. Hobkirk, 13 Colo. App. 180, 56 Pac. 993; Board v. Darnell, 17
Colo. App. 85, 66 Pac. 1073; Fulton v. Monona Co., 47 Iowa, 622; Wilson v. Palo Alto Co.,
65 Iowa, 18, 21 N. W. 175; Centers v. Breathitt Co., 90 S. W. 1054; Hudgens v. Carter Co.,
115 Ky. 133, 72 S. W. 730; People v. Supervisors, 56 Hun, 459, 10 N. Y. S. 88; People v.
Supervisors, 58 Barb. 139; People v. Board of Police, 75 N. Y. 38; Kehn v. State, 93 N. Y.
291; Clark v. State, 142 N. Y. 101, 36 N. E. 817; City of Toledo v. Sanwald, 13 Ohio Cir. Ct.
496; Wilkinson v. Township, 74 Mich. 68, 41 N. W. 861; Pease v. Common Council, 126
Mich. 436, 85 N. W. 1082; Bell v. Waupaca Co., 62 Wis. 214, 22 N. W. 398; Rettinghouse v.
City of Ashland, 106 Wis. 595, 82 N. W. 555; Settle v. Sterling, 1 Idaho, 259; State v. Mayor
of Nashville, 15 Lea, 697; Goldsborough v. U. S., Fed. Case No. 5519, 10 Fed. Cases, 560;
Smith v. Salt Lake City, 83 Fed. 784; Brown v. First Nat. Bank, 137 Ind. 655, 37 N. E. 158,
24 L. R. A. 206.)
This is an action wherein Phillip H. Wolf, the constable of Lake township, Lovelock,
Humboldt County, brought suit in the district court in and for Humboldt County to recover on
certain claims for services rendered by him, acting as constable of said township. His claims
had been presented to the board of county commissioners of Humboldt County, and were by
said board disallowed in part. The case was tried in the district court of Humboldt County,
with Hon. L. N. French, judge of the Eighth judicial district for Churchill County, presiding.
Judgment in the lower court was rendered in favor of the plaintiff, and a lengthy decision in
writing was filed by the learned judge. No motion for a new trial was made, and the case
comes to this court on appeal from the judgment alone.
In their opening brief counsel for appellant submit but one contention for this court to
determine, namely: "As respondent accepted and was paid the allowance on ten claims
made by the county commissioners, is he entitled to sue for the amounts so disallowed?"
As respondent accepted and was paid the allowance on ten claims made by the county
commissioners, is he entitled to sue for the amounts so disallowed?
The picture of the ten claims in question is here given:
Demand Allowed For Difference
$222.55 $202.55 $20.00
34.95 32.25 2.70
192.40 54.20 138.00
210.45 166.90 43.55
437.40 427.40 10.00
334.15 318.55 15.60
168.80 166.00 2.80
454.35 28.80 425.55
241.05 139.65 101.40
431.35 250.00 181.35

__________ __________ __________

Total $2,727.45 $1,786.50 $940.95
1. Appellant claims that the judgment entered below should be reduced in the sum of
$940.95, for the reason that respondent's acceptance of the part allowed constituted accord
and satisfaction, and he is barred from recovering the balance. It is a well-settled rule that, on
an appeal from a judgment only, the reviewing court will presume that the evidence was
sufficient to support the conclusions of the trial court. The only thing left for this court to
decide is: Did the acts of respondent in accepting the part allowed by the commissioners on
the various claims constitute a bar to his suit for that part rejected by the commissioners?
2. In order to support a plea of accord and satisfaction, it must clearly appear from the
evidence that there was in fact and in reality a meeting of the minds in accord and in
satisfaction. The conclusion of accord and satisfaction should not be supported by mythical or
theoretical reasoning; nor should a matter so important rest upon any finespun argument.
Proof of accord and satisfaction should not depend upon the construction that might be placed
upon a statute; nor should it be maintained as a pitfall into which the unwary may fall by
some act wholly unintended to express his acquiescence in a transaction, wherein his lack of
experience or lack of knowledge of technical law might debar him from a right of
actionmight deprive him of his "day in court."
knowledge of technical law might debar him from a right of actionmight deprive him of his
day in court.
3. The general trend of modern decisions indicates that the courts are determined to
establish a principle that he who avails himself of a plea of accord and satisfaction must bear
the burden of proof; he must establish clearly that there was a meeting of the minds of the
parties, accompanied by a sufficient consideration.
4. The appellant cites the cases of Wapello County v. Sinnaman, reported in 1 G. Greene
(Iowa) 413, Fulton v. Monona County, 47 Iowa, 622, and Brick v. Plymouth County, 63 Iowa,
462, 19 N. W. 394. These cases were referred to and commented upon in a later case decided
by the Supreme Court of Iowa, entitled Wilson v. Palo Alto County, reported in 65 Iowa, 19,
21 N. W. 175. In this latter case the court very properly said with reference to the former
decisions: The general principle on which these cases were decided, and, as we think, upon
which all others involving like states of facts must be decided, is this: Unless the party has
accepted the amount allowed on his claim, under such circumstances as that a settlement or
compromise of matters in dispute between the parties can be inferred therefrom, he is not
precluded thereby from maintaining his action for the portion disallowed. If the board of
supervisors, in passing upon a claim against the county should allow a certain per cent of the
whole amount claimed and refuse to allow the remainder thereof, they would thereby say to
the claimant, in effect, that his claim, as made by him, was regarded as unjust or invalid, but
that they were willing to pay the amount allowed in settlement or compromise of it; and if,
with full knowledge of the action which had been taken on his claim, the claimant should,
without objection, accept the amount allowed, this should be regarded as an acceptance by
him of the terms of compromise offered, and he ought to be precluded from maintaining an
action for the portion disallowed. But if the claim should include some items about which
there was no dispute between the parties, and others that were denied, and the former should
be allowed and the latter rejected, we see no reason for holding that his acceptance of
the amount which was not at all disputed should bar his right of action for the items
which were denied and disallowed."
denied, and the former should be allowed and the latter rejected, we see no reason for holding
that his acceptance of the amount which was not at all disputed should bar his right of action
for the items which were denied and disallowed.
We think that this expresses the true trend of modern law and puts a correct interpretation
upon the whole principle, and we would go even further, as does the Colorado Court of
Appeals (Rio Grande County v. Hobkirk, 13 Colo. App. 180, 56 Pac. 993), and say that proof
of accord and acceptance in satisfaction must be clear.
Independent of any controlling statutory provisions modifying the law of accord and
satisfaction, so far as claims against counties are concerned, there is nothing in this case that
amounts in law to accord and satisfaction. We recognize that it is within the power of the
legislature to control the manner of action upon claims against counties. Many of the
decisions that have been cited to this court are based upon peculiar statutory provisions of the
states from which the decisions are cited.
5. The section of our general county government act applicable to this case is as follows:
No person shall sue a county in any case for any demand, unless he or she shall first present
his or her claim or demand to the board of county commissioners and county auditor for
allowance and approval, and if they fail or refuse to allow the same, or some part thereof, the
party feeling aggrieved may sue the county; and if the party suing recover in the action more
than the said board allowed, or offered to allow, said board and auditor shall allow the
amount of said judgment and costs as a just claim against the county; but if the party suing
shall not recover more than the board and auditor shall have offered to allow him or her, then
costs shall be recovered against him or her by the county, and may be deducted from such
demands. (Rev. Laws, 1523; Gen. Co. Gov. Act, sec. 24.)
No other state, so far as we have been able to find, has a similar provision, and this section
has not heretofore been construed by this court.
been construed by this court. In the case of Russell v. Esmeralda County, 32 Nev. 304, which
was an action by the constable of Goldfield township for the balance alleged to be owing on
account of several claims presented against that county for fees as constable, the question was
raised in the final brief of appellant, under the section cited, supra, that, as the plaintiff had
accepted and was paid the amount allowed upon the several claims, he was not entitled to sue
for the amount disallowed. The question was not raised in the lower court, and hence was not
determined in this court.
The effect of section 24, supra, depends upon the construction to be placed upon the word
demand used in that section. By sections 1535 and 1541 of the Revised Laws it is provided
that claims or demands against a county must be presented in the form of bills, but no
particular form is prescribed for the presentation of the same. Several claims or demands may
be included in one or several bills. If the person having several claims or demands puts the
same on one bill, each separate demand must necessarily be acted upon by the board of
county commissioners. If certain specific demands are allowed and others rejected, we do not
think it was the intent of the section of the statute to prohibit the claimant from accepting the
amount allowed for the undisputed demands and bringing his action for the demands which
have been disallowed in whole or in part. The fees of the constable are fixed by statute, and
hence the fees for each service rendered by him in his official capacity constitute a separate
item of demand against the county. If there is no dispute as to the service, or as to the
performance of the specific official act for which a fee item is claimed, there can be no
question as to the amount he is entitled for such service or act. Where, as in this case, the
constable presents monthly bills made up of various items for services rendered, for which
the statute prescribes a fixed fee, and the board of commissioners allows certain of these
items and disallows others, the acceptance of the amount allowed is not a bar to an action
upon the demands disallowed.
action upon the demands disallowed. Where there is no dispute as to the services rendered,
the fee for the service is a liquidated claim against the county.
In the case of an unliquidated demand against a county, the allowance of a part by the
board of commissioners makes it incumbent upon the claimant to accept the part allowed as
entire satisfaction for the claim, or sue for the entire amount of the demand.
In the case of Clarke v. Lyon County, 7 Nev. 75, the county employed an attorney to
represent it in certain litigations. A claim was presented for the reasonable value of services
rendered. This was an unliquidated demand, and was disallowed in part only. If there had
been an acceptance of the part allowed, it would have been a ratification and a bar to the right
of action for the balance.
The appellant contends that respondent should have refused to accept the part allowed by
the board, and should have sued for the whole sum. We do not believe this is sound
reasoning. If there was no meeting of the minds by way of compromise, then there was no
compromise of the disputed claims; hence the part allowed was only a part of what might be
legally due. The very extreme application of the principle of acceptance of a part of a claim
being a bar to an action for the balance is expressed by the Supreme Court of Arizona in the
case of Yavapai County v. O'Neill, reported in 3 Ariz. 363, 29 Pac. 432, and this was
rendered in the light of a particular statute. We can see no good reason why one who may be
in the service of a county in any capacity, with fixed fees for services, where the county board
allows one part of his claim, should be precluded from drawing down the part allowed and
submitting his claim for the balance by way of a suit in a court having power to try and
determine the controversy along legal lines. In our opinion, the claimant should not be
compelled to go without the benefit of the part allowed until the courts might adjudicate his
right to the part disallowed, unless it clearly appears that he accepted the amount offered in
compromise or satisfaction for the whole, and when that is established his right of action
ceases.
compromise or satisfaction for the whole, and when that is established his right of action
ceases.
In the case under consideration the one question for the court to determine is: Did the
acceptance of a part of the claim constitute a bar to an action for the remainder of the claim
disallowed by the commissioners? If there had been a compromise voluntarily entered into
between the board and Wolf, if there had been a meeting of the minds, wherein the officer
had agreed to accept the part received in satisfaction for the whole, if the trial court could
reasonably infer that the officer at the time of drawing the warrant took the sum tendered in
settlement or compromise, if there had been a reconsideration on the part of the claimant and
a voluntary acceptance of the part of his claim in discharge of the whole, then the plea of
accord and satisfaction would have been well founded, and under that state of affairs the
claimant would have been barred from maintaining an action for the balance. But it was
incumbent upon the appellant, as defendant in the court below, to prove some of these
conditions clearly. The trial court found that these requisites had not been proven, and, this
being an appeal from the judgment only, this court is compelled to presume that the evidence
presented to the trial court was such as supported the findings of that tribunal. The mere
acceptance of the part of an itemized claim allowed, where such items are liquidated, will not
debar the claimant from maintaining an action for the items disallowed.
6. It is scarcely necessary for us to consider the right of the respondent in this case to
accept a less sum than that fixed by law as a fee for each particular service rendered, and we
do not consider this point particularly vital in this case. Notwithstanding that, however, we
may say that, as constable of Lake township, the fees of the respondent for each service
performed were fixed by statute. He would have no right to accept a greater sum than that
which the law prescribed; nor would the board of county commissioners have the right to
tender a less sum than that which the law prescribed for each item of service.
service. The former would be illegal, and the latter would be contrary to public policy; and
any agreement that might be entered into between the board of county commissioners and the
respondent in this case for the payment and acceptance of a less sum for any particular service
than that fee fixed by statute would be void, being contrary to public policy. (Mechem, Pub.
Off. 377.)
The contention of appellant has been ably briefed and presented by Messrs. Robins &
Salter, special counsel for the defendant county, and their position is somewhat sustained by a
line of decisions setting forth, as we have expressed it, the extreme limits to which a plea of
accord and satisfaction may go; but it is our opinion that in this case, as in all others involving
the same matters, the broader and more liberal view is supported by a stronger reasoning
expressed in the more modern line of decisions.
The judgment of the trial court is affirmed.
____________
36 Nev. 37, 37 (1913) Jensen v. Wilslef
[No. 2035]
MATHIAS JENSEN and ANNA JENSEN, His Wife, Respondents, v. PETER P. WILSLEF
and NIELS WILSLEF, Appellants.
1. Vendor and PurchaserVendor's Lien.
While a vendor ordinarily has a lien on the land for the unpaid purchase money, his right to hold and
maintain such lien must be determined from the nature of the transaction, the circumstances surrounding
the conveyance, and the intention of the parties at the time of making the contract, for the right of a vendor
cannot be determined by subsequent acts of either party.
2. Vendor and PurchaserVendor's LienRight To.
Though vendor ordinarily has a lien for unpaid purchase price, such lien cannot be claimed where vendor
has accepted other security for payment of the price, such as a promissory note or a mortgage.
3. Vendor and PurchaserVendor's LienPresumptions.
It requires no express waiver on the part of a vendor to destroy his vendor's lien for the unpaid purchase
price; the law presuming a waiver whenever the vendor accepts any independent security.
4. Vendor and PurchaserVendor's LienRight To.
Where a vendor of land accepted a certificate of deposit in payment of the purchase price, or at least as
security for that portion of the purchase money indicated by the face of the certificate of deposit, and there
was nothing to show that the vendor was imposed upon by artifice or trick, his right to a vendor's lien was
waived.
5. PaymentChecks Effect.
A debt cannot be discharged with an unpaid check, except upon a clear showing that the creditor at the
time accepted such check absolutely and unconditionally.
6. Appeal and ErrorReviewFindings.
Where the evidence is conflicting, a finding of the trial court will not be disturbed on appeal.
7. Bills and NotesCertificates of DepositEffect.
Certificates of deposit are promissory notes, and have the same force and effect as a promissory note;
indorsers thereon being bound by the same rules that apply to indorsers on a note.
8. Bills and NotesIndorsementEffect.
A person who indorses a note in blank usually warrants the solvency of the parties.
9. Bills and NotesIndorsementLiability of Indorser.
Under Revised Laws, 2613, providing that every indorser, without qualification, warrants that on due
presentment it shall be accepted or paid, and that, if dishonored, he will pay the amount thereof to the
holder, one who indorses in blank a certificate of deposit is liable to the holder where
the paper is dishonored owing to the insolvency of the bank.
amount thereof to the holder, one who indorses in blank a certificate of deposit is liable to the holder where
the paper is dishonored owing to the insolvency of the bank.
10. Bills and NotesIndorsementLiability of IndorserBurden of Proof.
In general, where an indorser contends that his indorsement was understood to be other than a warranty of
payment, he has the burden of proving the same.
11. Bills and NotesIndorsementEffect of Indorsement.
Where a certificate of deposit already indorsed in blank is negotiated by the holder, nothing that the
holder can do will alter the liability of the indorser.
12. Vendor and PurchaserLiability of Purchaser.
A vendee who is the real purchaser is liable for the purchase price, even though he directs the title to be
transferred to another.
Appeal from the First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Action by Mathias Jensen and wife against Peter P. Wilslef and another. From a judgment
for plaintiffs, defendants appeal. Affirmed in part, and reversed in part.
Alfred Chartz, for Appellants:
The evidence was insufficient to support the finding that said certificate of deposit was
not received or accepted as unconditional payment of the balance due on the purchase price of
said land, but was intended to constitute payment in the event the said certificate was paid.
There is not a word of testimony to show any such conditional acceptance, and all the
circumstances and acts of the parties deny and repel such idea.
During the trial of the case, as shown by the transcript of the evidence, the main contention
of respondents was to the effect that appellants were trying to vary the terms of a written
contract, and in their brief they cite the court to thirty-one authorities, and some more. But the
truth is that appellants were not trying to vary the terms of a written contract, but to enforce it
as written, and as pleaded: and then and there endorsed the same to plaintiffs as part
payment of the purchase price of said land.
Counsel for appellants introduced evidence to confirm and prove the fact that said
certificate of deposit was endorsed as part payment of the purchase price of said land, and
counsel for respondents introduced evidence in an attempt to vary said terms of said contract
as alleged, trying to prove that the same was not accepted as part payment, only in the event
that it was paid. So the mass of authorities cited by counsel for respondents applies against
their contention.
That respondents accepted said time certificate of deposit on the State Bank and Trust
Company, there can be no doubt. They delivered their deed and accepted a time certificate of
deposit on the Gardnerville bank, and accepted the Allerman note, and accepted part cash,
and allowed appellants to discount interest due to date of execution and delivery of deed on
the time certificate of deposit on the State Bank and Trust Company, making a complete
transaction between the parties, and the incident should be closed in accordance with their
own acts, clearly proving their mutual understanding of the meaning of the words quoted
It is the intention of the parties that governs, and the endorsements of the several
partiesappellants and respondentswere made for the purpose of enabling respondents to
collect said time certificate of deposit, not for the purpose of insuring the payment thereof;
and the said time certificate of deposit on the State Bank and Trust Company was accepted by
respondents as partial payment of the purchase price of said land, as pleaded in the complaint;
and the delivery of the deed to appellants, and acceptance of cash and the Allerman note, and
time certificate of deposit on the Douglas County Bank of A. Jensen, and acceptance of the
time certificate of deposit on the State Bank and Trust Company, became one and the same
transaction between the parties, and became a closed incident and transaction, there being no
fraud alleged or proved between the parties.
Where a note is taken as collateral security for an existing debt, and on the faith thereof,
the consideration is sufficient, and the holder is a purchaser for value in due course of
business.
is sufficient, and the holder is a purchaser for value in due course of business. (Samson v.
Ward, 132 N. W. 629.)
I argue, a fortiori, the taking of a certificate of deposit, and acceptance thereof, and
delivery of deed, binds the transaction more firmly than the taking of a note, and shows more
strongly the intention of the parties. (Lindsey v. McClelland, 18 Wis. 485; Stats. Nev. 1907,
p. 117, art. 3, Negotiation, secs. 30, 31; Van Doren v. Tjader, 1 Nev. 387; Comptoir
d'Escompte de Paris v. Dresbach, 78 Cal. 15; Hall v. Stevens, 116 N. Y. 201, 22 N. E. 374,
Craig v. Craig, 24 Am. Dec. 390; Crutchfield v. Robbins, 42 Am. Dec. 417; Ware v. Street,
75 Am. Dec. 755; Bangor v. Warren, 56 Am. Dec. 657; Smith v. Bettgar, 34 Am. Rep. 256.)
Mack, Green & Heer, for Respondents:
There is no evidence showing, or tending to show, that either the plaintiffs or defendants
intended to release Niels P. Wilslef from his liability as an endorser on said certificate.
This court has held that the terms of a written contract cannot be varied by parol
testimony. (Travis v. Epstine, 1 Nev. 116; Menzies v. Kennedy, 9 Nev. 152.)
Counsel in his brief insists that in the complaint the plaintiffs allege that they took the time
certificate as part payment of the purchase price of their land. In this counsel is mistaken.
Plaintiff made no such allegation. What the plaintiffs did allege is: and then and there
endorsed the same to plaintiffs as part payment of the purchase price of said land. Nowhere
in the complaint did plaintiffs allege that they took the certificate for part payment, but, on the
contrary, they allege that the defendants endorsed the time certificate as part payment.
Nowhere in the complaint and nowhere in the evidence is it shown that plaintiffs took the
certificate as absolute payment, but, on the contrary, it is alleged and shown that it was given
to plaintiffs by defendants, and plaintiffs took it on the strength of the endorsement.
In this action the plaintiffs, Mathias Jensen and Anna Jensen, his wife, seek to recover
judgment against Peter P. Wilslef and Niels P. Wilslef for the sum of $1,400, with interest,
and for a decree of the court declaring a vendor's lien against certain premises conveyed and
for a decree foreclosing said lien in favor of the plaintiffs and against the defendants. The
facts disclose that on the 6th day of June, 1907, Peter P. Wilslef and wife visited the home of
Mathias Jensen and wife, and there negotiated for the purchase of a 40-acre tract of land, the
home of the Jensens. The agreed purchase price was $4,500. On the occasion of negotiating
the purchase Mr. Wilslef paid $50 to bind the bargain, and exhibited to Mr. Jensen certain
certificates of deposit and other collateral, the aggregate of which amounted to approximately
$4,500. On the 12th day of June, 1907, the parties met at the courthouse at Genoa, Douglas
County, for the purpose of closing the transaction. It was the understanding that the deed
should be made to Niels P. Wilslef, son of Peter P. Wilslef, but by mistake it was made to
Peter P. Wilslef. At the time of making the delivery of the deed Peter P. Wilslef turned over
to Jensen certificates of deposit on the Gardnerville Bank, a personal note drawn by a private
party, and the certificate of deposit on the State Bank and Trust Company of Carson City, the
latter for the sum of $1,400. This certificate was payable to Niels P. Wilslef, and the date of
maturity was March 8, 1908, and was endorsed by Niels P. Wilslef in blank. Together with
these certificates Peter P. Wilslef paid over approximately the sum of $300 in cash. Some
months subsequent to the transaction the State Bank and Trust Company suspended, and on
the 9th day of March, 1908, the respondents presented the certificate of deposit to the State
Bank and Trust Company at its office in Carson City, and, payment being refused, the
certificate was protested, and notice of refusal and protest was served upon appellants. The
case was tried in the district court of the First judicial district in and for Douglas County,
and judgment rendered for plaintiffs, respondents herein, decreeing a vendor's lien in
favor of the plaintiffs and rendering a personal judgment against the defendants for the
sum of $1,400, with interest at 7 per cent.
case was tried in the district court of the First judicial district in and for Douglas County, and
judgment rendered for plaintiffs, respondents herein, decreeing a vendor's lien in favor of the
plaintiffs and rendering a personal judgment against the defendants for the sum of $1,400,
with interest at 7 per cent. A motion for a new trial was made and denied, and from the order
denying defendant's motion for a new trial and from the judgment an appeal is taken to this
court.
It is the contention of the respondents that they took over the certificate of deposit solely as
security for a part of the purchase money, while the appellants contend that the certificate was
received in full payment for that portion of the purchase money represented by its face.
By the pleadings in the case two questions are presented to this court: First, are plaintiffs,
respondents herein, entitled to an equitable lien against the premises conveyed for a part of
the purchase money; and, second, are respondents entitled to personal judgment against
appellants?
1. The right of a vendor's lien against an estate conveyed was recognized at common law,
and we find that many of the early English decisions have dealt exhaustively upon the vexing
problem.
The Lord Chancellor Eldon, in a very early English case, speaking upon the subject, said:
It has always struck me considering this subject that it would have been better at once to
have held that the lien should exist in no case, and the vendor should suffer the consequences
of his want of caution, or to have laid down the rule the other way so distinctly that a
purchaser might be able to know, without the judgment of a court, in what cases it would and
in what it would not exist. (Mackreth v. Symmons, 15 Vesey Jr.'s Reps. 339.) In that case the
chancellor set forth what was then and has since been the generally accepted doctrine relative
to vendor's lien, in that there may be security which will have the effect of waiving the lien,
and that is especially true if the security be totally distinct and independent.
of waiving the lien, and that is especially true if the security be totally distinct and
independent. Where a distinct and independent security is taken by the vendor, it becomes a
substitution for the lien, instead of a credit given on account of the lien. The intention of a
vendor to waive an equitable lien may be manifest from the very nature of the security taken
by him at the time of the transaction, and hence a court of equity must determine largely from
the facts and circumstances surrounding the transaction as to whether or not the vendor in fact
intended to reserve his equitable lien against the premises conveyed.
No other single topic, says Mr. Pomeroy in his work on Equity Jurisprudence,
belonging to the equity jurisprudence has occasioned such a diversity and even discord of
opinion among the American courts as this of the grantor's lien. Upon nearly every question
that has arisen as to its operation, its waiver or discharge, the parties against whom it avails,
and the parties in whose favor it exists, the decisions in different states, and sometimes even
in the same state, are directly conflicting. (3 Pomeroy, Eq. Jurisp. 1251.)
From a careful reading of the ancient authorities dwelling upon the application of a
vendor's lien at common law, it will be observed that the right of a lien in favor of the vendor
upon real estate sold to the vendee is not based upon contract. It is not an equitable mortgage;
it cannot be regarded as accruing to the vendor by reason of the vendee holding the estate
with the purchase money unpaid. The whole thing resolves itself down to be a simple equity
raised and administered by courts of chancery. No fixed rules have even been made that
measure it, and it does not depend upon any particular set of facts. Each case rests upon its
own particular conditions, and courts of equity passing upon the applicability of vendors'
liens have given or denied the lien according to its rightfulness and equity growing out of the
facts developed in each particular case. Courts of equity in many of the states of the Union
have either ignored or refused to recognize a vendor's lien.
equity in many of the states of the Union have either ignored or refused to recognize a
vendor's lien. In Connecticut, Delaware, Georgia, Kansas, Maine, Massachusetts, Nebraska,
New Hampshire, North Carolina, South Carolina, Oregon, Pennsylvania, Vermont, Virginia,
Washington and West Virginia, the doctrine of a vendor's lien has been either condemned by
the courts or enacted against by the legislature. Mr. Pomeroy, in discussing the subject under
American Jurisprudence, says: The original grounds and reasons for admitting the grantor's
lien do not exist here, and the lien itself is not in harmony with our general real property law.
The tendency both of our legislation and of our social customs is to make land a subject of
commerce and its transmission as free as possible, while the rights of grantors can be fully
protected by mortgages which under nearly all the states are widely different from the
instrument bearing the same name in England.
Chief Justice Marshall, speaking for the Supreme Court of the United States, in the case of
Bayley v. Greenleaf, 7 Wheat. 46, 5 L. Ed. 393, says: It is a secret invisible trust, known
only to the vendor and vendee and to those to whom it may be communicated in fact. To the
world, the vendee appears to hold the estate divested of any trust whatever; and credit is given
him in the confidence that the property is his own, in equity as well as law. A vendor relying
upon this lien ought to reduce it to a mortgage, so as to give notice of it to the world. If he
does not, he is in some degree accessory to the fraud committed on the public by an act which
exhibits the vendee as the complete owner of an estate on which he claims a secret lien. The
right of a vendor to hold and maintain a lien against an estate conveyed is one that must be
determined from the nature of the transaction, the circumstances surrounding the conveyance,
and the intention of the parties at the time of entering into the transaction. The right of a
vendor to maintain an equitable lien against an estate, which he may have conveyed, cannot
in justice be determined either from the subsequent acts of the vendee or the subsequent
acts of the vendor, but must be determined from the facts immediately surrounding the
transaction.
of the vendee or the subsequent acts of the vendor, but must be determined from the facts
immediately surrounding the transaction.
2. Whenever it appears from all the facts surrounding the transaction that a separate and
distinct security was offered by the vendee and accepted by the vendor, the presumption is
that the lien was waived. Any agreement by parol or otherwise to accept a security and rely
upon it will discharge the vendor's lien for the unpaid purchase money. (Porter v. Dubuque,
20 Iowa, 445.)
The question of a vendor's lien has never been touched upon by the legislative branch of
our state government, and hence our statute is silent on that subject, save and except in so far
as we declaratively adopted the common law, but the right of a vendor to hold an equitable
lien against an estate conveyed, under certain circumstances at least, was sanctioned to some
extent by this court in the case of Reese v. Kinkead, 18 Nev. 126, but that decision, rendered
as it was in the light of a very peculiar set of circumstances, touched but inferentially upon
the subject. The general practice in equity has been to give the vendor a lien for the price of
the estate sold without any special agreement, but the better line of reasoning in cases
touching upon this subject, both in English jurisdictions and in America, has been to preclude
the vendor from an equitable lien where he assumes to take other security than the estate
itself. If he carves out a security for himself, he precludes himself from a vendor's lien. If the
security taken be totally distinct and independent, it will then become a case of substitution
for the lien, instead of a credit given because of the lien. For instance, a mortgage may be
given upon another estate of the vendee, and in no wise mention the estate conveyed by the
vendor. This principle applies not only in a case where a mortgage is given by the vendee to
the vendor upon a separate estate, the property of the vendee, but also where a mortgage is
given upon a part of the estate conveyed by the vendor, and it applies equally with regard to
any other pledge given by the vendee and accepted by the vendor for the purchase money or
any part thereof.
the vendor for the purchase money or any part thereof. (Nairn v. Prowse, 6 Vesey Jr.'s Rep.
760.)
In a case where the vendor accepts a negotiable note of the purchaser, indorsed by a third
party, for the residue of the purchase money, it is such a separate security as will by its very
nature extinguish the lien. (Brown v. Gilman, et al., 4 Wheat. 255, 4 L. Ed. 564; Corlies v.
Howland, 26 N. J. Eq. 311; Dudley v. Dickson & Matlack, 14 N. J. Eq. 252.)
Professor Kent in his Commentaries says: Taking a note, bill, or bond with distinct
security, or taking distinct security exclusively by itself, either in the shape of real or personal
property from the vendee, or taking the responsibility of a third person, is evidence that the
seller did not repose upon the lien, but upon independent security, and it discharges the lien.
Any act on the part of the vendor in the way of taking distinct security either in the shape of
real or personal property from the vendee, or taking the responsibility of a third person,
implies a waiver of the lien. Any act which indicates that it was not the intention of the
parties that the purchase money should continue a lien upon the land conveyed is a waiver of
the lien. In the case of Ilett v. Collins, et al., 103 Ill. 74, the supreme court of that state had
occasion to pass upon the subject of a vendor's lien, where the vendee had offered and the
vendor had accepted stock in a corporation as security for the purchase price of an estate, and
the court said: The taking of such collateral security was a clear waiver by the vendors of
any lien on the property for the purchase money, and when once waived it cannot, of course,
be reasserted to by the vendors.
3, 4. The testimony of the respondent given at the trial in this case indicates clearly to our
mind that he had no intention or thought of holding a lien or incumbrance, either expressed or
implied, upon the estate conveyed. His testimony in part is as follows:
Q. And he pulled out his certificates of deposit and put them on the table, so you could see
them, and told you, he could pay only so much money, and give you the balance in the
certificates of deposit?
balance in the certificates of deposit? That is to say, a check on the Gardnerville Bank, we
will call it the Gardnerville Bank for convenience, and give you a time certificate on the
Carson Bank, is that right? A. Yes. He said there was some in the Gardnerville Bank and
some in the Trust Bank in Carson, but he didn't say the amounts that day.
At another place in his evidence he testified as follows:
Q. Did you accept them in that way? A. Yes; I to cash them when they came due.
Q. Did you accept them? A. Yes.
Q. Was it agreeable to you? A. Yes; I could spare the money.
Later on in his cross-examination he testified as follows:
Q. Have you any reason to give to the court why you gave an absolute deed, if you didn't
accept these checks as absolute payment? A. Because, I didn't expect the bank to close up
until they became due.
Q. That is your reason why you did not? You did not know the bank was going to close
up? A. No.
Q. You had no reason to suspect these checks? A. Not at that time; not in the way we took
the check. Everybody would take them, if it was necessary for me to transfer them.
Q. And you believed it? A. Yes; that is what Wilslef told me when I took them, That
anybody would take them.' I took them on the strength of that.
Q. Did you doubt that? A. I didn't that day. I always heard the Trust Company was very
solid, and won't close or anything.
From this it will be observed that, if the plaintiff Jensen did not take the certificate of
deposit in question as absolute payment of a part of the purchase money, he by his own
statement admits that at least he took the certificate as security for a part of the purchase
money to the amount of $1,400. Having done this, we are of the opinion in the light of all the
authorities that he expressly placed himself in a position where he could not afterwards insist
upon the enforcement of a vendor's lien. Moreover, the facts in the case as developed by the
testimony of respondent himself clearly indicates that it was his intention at the time of
delivering the deed to convey the estate absolutely unincumbered.
testimony of respondent himself clearly indicates that it was his intention at the time of
delivering the deed to convey the estate absolutely unincumbered.
It is to be observed in this case that, although Peter P. Wilslef was the negotiator of the
transaction and the real purchaser, he turned over to Jensen the certificate of deposit in
question, and the latter accepted it without requiring the endorsement of Peter P. Wilslef.
This of itself, we think, if it stood alone, is sufficient to warrant the presumption that at the
time of the delivery of the deed Jensen had no intention or desire to hold any lien whatever
against the estate conveyed. It requires no express waiver on the part of the vendor to destroy
the lien. The law presumes that the lien is waived where a vendor accepts independent
security either in payment of part or all of the purchase money. If Jensen relied upon the
certificate of deposit, either as absolute payment, or as security for the payment of part of the
purchase money, the burden of proof would be upon him to establish by appropriate evidence
that he did not waive an equitable lien upon the premises conveyed. (Cresap v. Manor, 63
Tex. 485.) In taking the certificate of deposit indorsed by Niels P. Wilslef, the respondent was
taking the obligation of a fourth party, indorsed by a third party, and not indorsed by the
second party to the transaction. This of itself indicates that the vendor reposed upon the
certificate if not in full payment at least as security for that portion of the purchase money
indicated by the face of the certificate of deposit, and he is precluded from enforcing an
equitable lien. (Marshall v. Christmas, 3 Humph. Tenn. 616, 39 Am. Dec. 199.)
In a recent case decided by the Supreme Court of California, the conditions of which are
very much analogous to those belonging to the case under consideration, that court decided
that the receipt of a note, made by a third party to the transaction and given as security for a
part of the purchase money, worked an absolute waiver of the vendor's lien. This decision
was rendered in the light of a statutory provision appertaining to a vendor's lien.
lien. (Jones v. Allert, et al., 161 Cal. 234, 118 Pac. 794.) The decision and reasoning of Judge
Henshaw, in Jones v. Allert, supra, we find especially interesting, in that it is applicable to
both phases of the case under consideration.
As a general proposition, we find the trend of modern decisions to be in disapproval of the
doctrine of a vendor's lien in cases, where that subject has been passed upon by courts of last
resort in the various jurisdictions in the United States, where the facts disclosed that the
vendor relied upon separate security. In this state we find the statute silent upon the subject,
but this court, in at least one case (Reese v. Kinkead, supra), recognized the right of a
vendor's lien, but the conditions surrounding that case, as will be observed, were entirely
different from the one under consideration. The policy of our legislation generally has been to
make the title of real estate as simple and easily understood as possible, and has been along
lines to discourage all secret or implied equities not of record. In fact, the general trend of
modern legislation has been to require incumbrances and conveyances alike to be made
matters of public record where they affect realty. The doctrine of equitable lien unexpressed
by record title is little suited to modern conditions under our existing laws, and is not entirely
essential to the interest of justice. There might be instances, however, where, as between the
parties to the transaction, a gross injustice might be worked upon the vendor, where, by
means of some fraud or trick, he might be deprived of his estate or the proper recompense
therefor, in which case the right of equitable lien should operate, if it be shown that the
vendor relied entirely upon the estate, or the credit and honor of the vendee, and no separate
security was taken for all or part of the purchase money. The conditions surrounding this case
under consideration are clearly such as to dispel all presumption that a vendor's lien should
apply.
5, 6. If the plaintiffs are not entitled to a vendor's lien, are they entitled to personal
judgment against the defendants, and, if so, should the judgment apply against defendants
jointly, or is one of the defendants amenable to the judgment to the exclusion of the
other?
defendants jointly, or is one of the defendants amenable to the judgment to the exclusion of
the other? In approaching this subject of personal judgment in this case we must first consider
whether or not the certificate of deposit in question was accepted by Jensen pro tanto of that
portion of the purchase money represented by the face of the certificate, or was it taken as
security only? In the case of Roberts, Johnson & Rand Shoe Co. v. McKim, 34 Nev. 197, this
court, speaking through Justice Norcross upon a subject very much analogous to the one
under consideration, said: Unfortunate as it may be for the individual who has money on
deposit in a suspended or insolvent bank, he can only discharge his indebtedness with unpaid
checks upon such a bank upon a clear showing that the one to whom he is indebted at the
time accepts such check absolutely and unconditionally in discharge of the debt, and even
then, to be binding, doubtless it would have to appear that the checks were of some value.
It is undoubtedly true that the check in question in this case was good in so far as being
worth its face value at the time of the transaction, but it did not mature until a date subsequent
to the suspending of the institution, out of which this and so many other similar unfortunate
instances have accrued. The facts disclosed from the testimony taken at the trial are
exceedingly conflicting. Five witnesses in all were sworn, who gave testimony with reference
to the transaction. Mathias Jensen and Anna Jensen, his wife, testified in substance that they
took the certificate only as security; while, on the other hand, Peter P. Wilslef and his wife
testified in substance that the certificate was tendered and accepted in full payment for that
portion of the purchase money. The testimony of H. C. Jepsen, county clerk and disinterested
party, throws but little light upon the subject. The trial court found that the certificate of
deposit issued by the State Bank and Trust Company was taken by Jensen only as security for
a part of the purchase money. The rule of this court has universally been that, where the facts
are conflicting, the judgment of the trial court should not be disturbed.
should not be disturbed. The findings of the trial court being to the effect that the certificate
was taken only as security for the portion of the purchase money, the judgment must stand
against Niels P. Wilslef, the indorser of the certificate, by reason of the fact that having
indorsed the certificate in blank he thereby made himself amenable to the general law
governing such indorsements.
7. As a general principle of law and by a strong line of authorities, certificates of deposit
have been held to be promissory notes and to have the same force and effect as a promissory
note. Moreover, indorsers on certificates of deposit have generally been held bound by the
same rules as those that apply to the indorser upon a note. (1 Parsons, Bills & Notes, p. 26;
Bank of Orleans v. Merrill, 2 Hill, 295; Pardee v. Fish, 60 N. Y. 269, 19 Am. Rep. 176.)
8-10. It is a well-settled rule, the general principle of which is almost universally applied,
that one who indorses a bill binds himself to pay it at its maturity, if on presentation it is not
accepted according to its purport, providing he is notified of the dishonor. One who indorses
an accepted bill or a note is bound to pay it if it be not honored or paid by the acceptor or
maker. Should the drawer or maker refuse to honor or pay the bill or note, the reasons for
dishonor or nonpayment constitute no defense of which the indorser may avail himself. One
who indorses in blank engages to meet the obligation when he has been duly notified of its
dishonor. Any indorser in blank as a general rule warrants the solvency of the parties; he also
warrants that it will be paid either by the maker or by himself. (Daniel's Neg. Inst. 671.) By
his act in indorsing the certificate of deposit in blank, Niels P. Wilslef warranted thereby that
the instrument was genuine in all respects, and was in reality what it purported to be; that he
had a good title to it; that all prior parties had capacity to contract; that the instrument at the
time of his indorsement was valid and subsisting, and, in addition, he engaged that on due
presentation it would be accepted or paid, or both, according to its tenor, and that, if it were
dishonored and the necessary proceedings for dishonor should be taken, he would pay the
amount thereof to the holder or any subsequent indorser who might be compelled to pay
it.
the necessary proceedings for dishonor should be taken, he would pay the amount thereof to
the holder or any subsequent indorser who might be compelled to pay it. (Rev. Laws, 2612,
2613; sections 65, 66, Neg. Inst. Act, as approved March 14, 1907, c. 62.)
11. The general rule is that, where an indorser contends that his indorsement was
understood to be other than a warranty of payment, he must bear the burden of proving the
same. No attempt was made on the part of either of the plaintiffs in this case to prove any
understanding or agreement that would relieve Niels P. Wilslef of his obligation under the
law as an indorser in blank. The evidence as produced at the trial discloses that Niels P.
Wilslef was not present either at the first or second meeting of the parties, and in fact he does
not appear to have taken any part in the transaction whatever, except to have indorsed the
certificate at some previous occasion. The certificate was turned over by Peter P. Wilslef to
Jensen with the indorsement of Niels P. Wilslef. No agreement that might be entered into
between Peter P. Wilslef and Jensen in the absence of Niels P. Wilslef could have either been
binding upon him or have relieved him from the obligation which the law imposes upon an
indorser in blank.
12. We must next consider whether personal judgment should be rendered against Peter P.
Wilslef, who was not an indorser of the certificate. The evidence in this case is clear upon one
point, namely, that Peter P. Wilslef negotiated for the purchase of the estate in question, paid
the money to bind the bargain on the 6th day of June, exhibited the certificates that he
proposed to turn over to respondent, and later delivered the certificates to respondent, and the
deed was delivered to him. The deed was by mistake made to Peter P. Wilslef, but he was in
fact the real purchaser, and would be so considered, even though the deed had been made to
Niels P. Wilslef. (Jones v. Allert, et al., 161 Cal. 234, 118 Pac. 794.)
The general course of conduct of Peter P. Wilslef evidences that he was the real purchaser,
and we think the judgment of the lower court in so far as it renders a personal judgment
against these appellants was sufficiently sustained.
the judgment of the lower court in so far as it renders a personal judgment against these
appellants was sufficiently sustained.
From the foregoing, it follows that the judgment of the lower court in so far as it decreed a
vendor's lien to the plaintiffs must be reversed, and that in all other respects the judgment
should be affirmed.
It is so ordered.
____________
36 Nev. 53, 53 (1913) Boyce v. Third Chance Mining Co.
[No. 1947]
A. E. BOYCE, Respondent, v. GOLDFIELD THIRD CHANCE MINING COMPANY;
JESSIE F. BAILEY, J. F. DOUGHERTY, and MARVIN ARNOLD, Interveners and
Appellants.
1. JudgmentMotion to Set AsideDiscretion of Court.
B., as plaintiff, brought action against defendant corporation, of which he was the president, and
recovered judgment. B., as judgment creditor, then redeemed property of defendant corporation sold upon
execution under a judgment previously obtained against defendant corporation in favor of A. M. A., father
of A., and other stockholders of defendant corporation, intervened and moved to set aside the judgment in
favor of B., upon the ground of fraud in its procurement. B., consenting thereto, and interveners not
objecting, the court made an order, that the judgment in favor of B. would be set aside providing the
property sold upon A.'s judgment was redeemed in favor of the corporation prior to the expiration of the
last day for such redemption, and continued the hearing until such last day. No redemption in favor of the
corporation from the A. judgment having been made within the time prescribed in the order and it
appearing that no such redemption would be made, the motion to set aside the judgment in favor of B. was
denied, and further hearing upon the motion to set aside was also denied. Held, that the orders of the court
were not erroneous.
2. ProcedureDiscretion of Court.
When an indisputable fact appears upon a hearing in any case that makes necessary or proper the making
of a certain order or the imposing of a certain condition, the court has the discretion to make the order or
impose the condition at once without waiting for counsel to conclude.
3. JudgmentFraud in ProcurementRemedy.
An action in equity will lie to set aside a judgment which is procured by fraud.
4. CorporationsPresidentFiduciary Relation.
A president of a corporation cannot take advantage of his position to gain a private benefit. Equity will
decree a benefit gained by such fiduciary relation to inure to the benefit of the corporation or its
stockholders.
5. Supreme CourtProcedurePreliminary Motions to Dismiss.
It is the practice of the supreme court to hear motions to dismiss and other preliminary motions together
with the merits unless special reasons for the contrary exist.
6. Supreme CourtProcedureDismissals Not Favored.
An appeal regularly taken will not be dismissed unless it clearly appears the appeal was taken for delay,
or apparent want of prosecution is not accounted for.
Appeal from the Seventh Judicial District Court; Theron Stevens, Judge.
Motion by Marvin Arnold and others, as interveners, to set aside a default judgment in
favor of the plaintiff A. E. Boyce against the Goldfield Third Chance Mining Company,
defendant. Motion denied. Interveners appeal from the judgment and order. Affirmed.
James K. Redington, for Appellants.
John F. Kunz and R. G. Withers, for Respondent.
This is an appeal from a default judgment entered on the 1st day of November, 1909, and
from an order made on the 31st day of January, 1910, overruling motion of interveners to
vacate and set aside the default and the default judgment. Notice of appeal was filed March
30, 1910. The transcript was filed in this court January 2, 1911. Nothing further appears to
have been done in the case until March 15, 1912, when counsel for respondent filed a motion
and notice of motion to dismiss for want of prosecution; that the appeal was without merit
and taken for delay merely. Affidavits were filed April 1 following upon the part of the
appellants to the effect that the delay was due to an oral agreement between counsel that the
case was to be taken up and disposed of at some time mutually agreeable to respective
counsel.
Together with the affidavits, the brief on the part of appellants was filed. Conforming to the
general practice in this court, the motion to dismiss was heard with the argument upon the
merits. While the delay is not accounted for with entire satisfaction, the excuse for the delay,
set out in the affidavits filed upon the part of appellants, is not controverted. We are not
inclined to dismiss appeals regularly taken unless it clearly appears the appeal was taken
merely for delay, or the apparent want of prosecution is not accounted for.
The motion to dismiss is denied.
The only questions discussed in the briefs and oral argument relate to the order refusing to
set aside the default judgment. Upon an ex parte order made after the entry of judgment,
based upon a petition verified by Marvin Arnold, the applicants were permitted to intervene
upon behalf of themselves and other stockholders of the defendant company, who may elect
to appear and become parties thereto, for the purpose of moving to set aside the judgment and
permit a defense to be interposed to the action. Subsequently the motion to set aside was
made and by the court denied.
It appears from the statement on appeal that, prior to the commencement of the action by
the plaintiff Boyce, an action had been commenced in the lower court by the said Marvin
Arnold against the above-named defendant, Goldfield Third Chance Company, and judgment
obtained and entered on March 11, 1909; that on the 1st day of July, 1909, an execution
issued on said judgment, and pursuant thereto a levy was made upon all the property of the
said defendant, consisting of two mining claims in the Goldfield mining district, and on July
31, 1909, all right, title, and interest of the defendant was sold to Emery Arnold, the son of
the plaintiff in said action, and the period for redemption of said real property by the said
defendant under said sale expired on January 31, 1910; that on or about the 11th day of
January, 1910, the plaintiff, A. E. Boyce, sold, transferred, and assigned for a valuable
consideration all his right, title, and interest in and to his judgment obtained on November 1,
1909, to Carl G.
Carl G. Johnson and Frank E. Johnson; that on or about the 13th day of January, 1910, the
said Carl G. Johnson and Frank E. Johnson served notice upon the said Emery Arnold and his
attorney, James K. Redington, and also served said notice upon J. F. Bradley, sheriff of
Esmeralda County, State of Nevada, of notice of intention to redeem the said property as
redemptioners and assignees of the said judgment obtained by the said A. E. Boyce, and
thereupon paid to the sheriff the amount paid by said Emery Arnold for said property under
said execution sale, together with all penalties and assessments as required by law, said notice
of intention to redeem being accompanied by the requisite affidavits as required by law
showing their right to redeem from said execution sale.
The record further shows that upon the hearing of the motion to set aside the judgment,
and after certain documentary evidence had been introduced and the testimony of certain
witnesses taken, and while a witness was on the stand, counsel for plaintiff offered to
stipulate, and without objection or exception made or offered by or on the part of the
interveners, or any one of them, and S. L. Carpenter, attorney at law, being present in court,
as the representative of 200,000 shares of stock in the defendant company of certain eastern
stockholders, and no objection or exception being offered or taken by the said S. L. Carpenter
or by James K. Redington, attorney for the interveners, owning 90,000 shares of stock, it then
appearing from the evidence and by the admissions of counsel for the interveners and by the
records and files of the court that the effect of granting the motion would be, in the event that
the company did not redeem its property sold under execution sale on the judgment obtained
by Marvin Arnold, one of the interveners, against the defendant, and purchased at said
execution sale by Emery Arnold, son of the said Marvin Arnold, that the said Emery Arnold
would take the entire property of the company, and it further appearing that the assignees of
the judgment of the plaintiff, A. E. Boyce, would be deprived of all possibility of realizing on
the judgment, if the property sold was not redeemed by the company, and it appearing by
the records, papers and files in this action and in the action entitled Marvin Arnold v.
Goldfield Third Chance Mining Company that the said motion, if granted, would not be of
any benefit whatsoever to the stockholders of the defendant as such, but would inure
solely to the benefit of Emery Arnold, son of the intervener Marvin Arnold, and that
therefore said motion was not made in good faith by the said interveners in behalf of the
company, thereupon, in pursuance of the stipulation offered by counsel for plaintiff and
not objected to or excepted to by the interveners, and which stipulation so offered was
acquiesced in and accepted by the said interveners, the court made an order, which order
was entered upon the minutes of the court and is as follows, to wit:
"'At this day this cause comes on in its regular order to be heard by the court, on the
intervening petitioners' motion to set aside and vacate default judgment. Plaintiff
appearing by his attorneys, S. W. Smith, Jno. F. Kunz, and R. G. Withers, Esqs., and the
intervening petitioners by their attorney James K. Redington, Esq., the defendant
company not being represented. Intervening petitioners present part of their oral and
documentary evidence; witness McGarry is on the stand when the court orders in the
premises that hearing be continued until Monday, January 31, 1910, at 3 o'clock p.m.;
that, if property is redeemed from Arnold judgment in favor of the company by that time,
plaintiff Boyce's default judgment be vacated and set aside; that, if Arnold judgment is
not redeemed in favor of company by said time, the order will go denying this motion
without prejudice to stockholders or company to take such proceedings as they may be
advised for the purpose of protecting the rights of the company.'
judgment, if the property sold was not redeemed by the company, and it appearing by the
records, papers and files in this action and in the action entitled Marvin Arnold v. Goldfield
Third Chance Mining Company that the said motion, if granted, would not be of any benefit
whatsoever to the stockholders of the defendant as such, but would inure solely to the benefit
of Emery Arnold, son of the intervener Marvin Arnold, and that therefore said motion was
not made in good faith by the said interveners in behalf of the company, thereupon, in
pursuance of the stipulation offered by counsel for plaintiff and not objected to or excepted to
by the interveners, and which stipulation so offered was acquiesced in and accepted by the
said interveners, the court made an order, which order was entered upon the minutes of the
court and is as follows, to wit:
At this day this cause comes on in its regular order to be heard by the court, on the
intervening petitioners' motion to set aside and vacate default judgment. Plaintiff appearing
by his attorneys, S. W. Smith, Jno. F. Kunz, and R. G. Withers, Esqs., and the intervening
petitioners by their attorney James K. Redington, Esq., the defendant company not being
represented. Intervening petitioners present part of their oral and documentary evidence;
witness McGarry is on the stand when the court orders in the premises that hearing be
continued until Monday, January 31, 1910, at 3 o'clock p.m.; that, if property is redeemed
from Arnold judgment in favor of the company by that time, plaintiff Boyce's default
judgment be vacated and set aside; that, if Arnold judgment is not redeemed in favor of
company by said time, the order will go denying this motion without prejudice to
stockholders or company to take such proceedings as they may be advised for the purpose of
protecting the rights of the company.'
January 31, 1910, upon the resumption of the hearing of said motion under said last
above-mentioned order, the court being first advised by the attorneys representing the several
interests that no redemption had been made by the defendant company or by any one for it or
in its behalf, or that no redemption under the execution sale of the real property of the
defendant would be made by the intervening stockholders or by any other stockholder of
the company, the attorney for the interveners moved the court as follows: 'Come now said
interveners and move the court to vacate, set aside, and for naught hold so much of the
action, ruling, or order of the court, taken, made, or passed upon the 2Sth day of January,
1910, and entered upon the minutes, as reads as follows: "That, if the property is
redeemed from the Arnold judgment in favor of the company by that time, plaintiff
Boyce's default judgment be vacated and set aside; that, if Arnold judgment is not
redeemed in favor of the company by said time, the order will go denying this motion
without prejudice to stockholders or company to take such proceedings as they may be
advised for the purpose of protecting the rights of the company."'
"This motion is based upon the following grounds, appearing upon the face of the record:
behalf, or that no redemption under the execution sale of the real property of the defendant
would be made by the intervening stockholders or by any other stockholder of the company,
the attorney for the interveners moved the court as follows: Come now said interveners and
move the court to vacate, set aside, and for naught hold so much of the action, ruling, or order
of the court, taken, made, or passed upon the 28th day of January, 1910, and entered upon the
minutes, as reads as follows: That, if the property is redeemed from the Arnold judgment in
favor of the company by that time, plaintiff Boyce's default judgment be vacated and set
aside; that, if Arnold judgment is not redeemed in favor of the company by said time, the
order will go denying this motion without prejudice to stockholders or company to take such
proceedings as they may be advised for the purpose of protecting the rights of the company.'
This motion is based upon the following grounds, appearing upon the face of the record:
(1) Said action, ruling, or order was improvidently taken, made, or passed during the
presentation of the moving papers and the taking of testimony on behalf of said interveners,
and before the conclusion of such presentation and such testimony, and while said interveners
were proceeding, in regular order, under the rules of this court, to present said moving papers
and testimony.
(2) Said action, ruling, or order was taken, made, or passed without jurisdiction; the
moving papers and testimony on behalf of said interveners not having been fully presented to
or heard by the court.
(3) Said action, ruling, or order was erroneous, because made before the full submission
of the moving papers and testimony on behalf of the interveners.
(4) Said action, ruling, or order was an abuse of the discretion vested in the court by law
upon a motion to open or set aside a default or default judgment, for the reason: First, that the
same was made without full opportunity to the interveners to present all their moving papers
and testimony; second, that upon the moving papers and testimony, so far as presented, the
interveners have clearly established a right to have such default and default judgment
vacated and set aside.
papers and testimony, so far as presented, the interveners have clearly established a right to
have such default and default judgment vacated and set aside.
(5) It was error for the court to decide the motion, either tentatively, conditionally, or
otherwise, upon consideration of any fact connected with the Arnold judgment, or any
redemption of the same; such judgment and no fact in connection with the same being before
the court or within the judicial knowledge of the court.
The foregoing motion was overruled by the court, to which action of the court the
attorney for interveners then and there excepted. Whereupon attorney for the interveners
further moved the court as follows: Come now the interveners and move the court for
permission to resume the presentation of their moving papers and the introduction of
testimony in support of said motion, and hereby offer and ask leave to introduce the oral
testimony of the following-named witnesses, viz., L. E. McGarry, Marvin Arnold, A. E.
Boyce, and any and all other witnesses whose names are included in the notice of motion
served upon plaintiff. Interveners hereby also offer to introduce other and additional
documentary evidence in support of said motion.'
The foregoing motion was overruled by the court, to which action of the court attorney
for interveners then and there excepted.
It then appearing that no redemption had or would be made by the company defendant
from the execution sale in the case of Marvin Arnold (one of the interveners) v. Goldfield
Third Chance Mining Company (the defendant herein), and S. L. Carpenter, attorney at law,
appearing in behalf of eastern stockholders, holding 200,000 shares of stock, stating that no
redemption had or would be made and that the time to redeem from said judgment would
expire that day, the following order was made, filed, and entered after settlement: On this
31st day of January, 1910, this cause came on to be heard upon the motion of interveners,
Jessie F. Bailey, J. F. Dougherty, and Marvin Arnold, to vacate and set aside the default and
default judgment heretofore, to wit, upon the 1st day of November, 1909, entered in said
cause, and also upon the motion of plaintiff to vacate and set aside the order of the court
heretofore, to wit, upon the 19th day of January, 1910, found in said cause, permitting
said interveners to intervene in the action and to appear and defend the same on behalf of
the defendant; and the moving papers in connection with both of said motions having
been read, and the oral testimony of some, but not all, of the witnesses on behalf of said
interveners having been taken, and counsel for the respective parties having been heard,
it is hereby ordered: {1) That said motion of interveners to vacate and set aside said
default and default judgment be, and the same is hereby, overruled, upon the ground and
for the reasons that, if granted, certain real estate of the defendants heretofore, to wit,
July 31, 1909, sold under execution sale in the case of Marvin Arnold v. Said Defendant,
and not at the date of this hearing redeemed by said defendant, will be lost to it; that, if
overruled, said defendant will have two months from January 14, 1910, in which to
redeem the same from the plaintiff, under redemption by him, as a redemptioner under
his said judgment of November 1, 1909, from the purchaser at said sale of July 31, 1909,
and that, under these circumstances, it would be inequitable to now and in this
proceeding set aside said judgment of November 1, 1909.
and default judgment heretofore, to wit, upon the 1st day of November, 1909, entered in said
cause, and also upon the motion of plaintiff to vacate and set aside the order of the court
heretofore, to wit, upon the 19th day of January, 1910, found in said cause, permitting said
interveners to intervene in the action and to appear and defend the same on behalf of the
defendant; and the moving papers in connection with both of said motions having been read,
and the oral testimony of some, but not all, of the witnesses on behalf of said interveners
having been taken, and counsel for the respective parties having been heard, it is hereby
ordered: (1) That said motion of interveners to vacate and set aside said default and default
judgment be, and the same is hereby, overruled, upon the ground and for the reasons that, if
granted, certain real estate of the defendants heretofore, to wit, July 31, 1909, sold under
execution sale in the case of Marvin Arnold v. Said Defendant, and not at the date of this
hearing redeemed by said defendant, will be lost to it; that, if overruled, said defendant will
have two months from January 14, 1910, in which to redeem the same from the plaintiff,
under redemption by him, as a redemptioner under his said judgment of November 1, 1909,
from the purchaser at said sale of July 31, 1909, and that, under these circumstances, it would
be inequitable to now and in this proceeding set aside said judgment of November 1, 1909.
This order is without prejudice to the right of said interveners to take any such further
proceedings to vacate and set aside said default and default judgment as they may be
thereunto legally advised.'
That the court did not err in denying the motion to set aside the judgment is, we think,
manifest from a mere reading of the record. As soon as the court's attention was called to the
fact that the time for redemption of the property of the defendant, sold upon the Arnold
judgment, would expire on January 31, following, the court was justified in imposing a
condition to further proceedings that the property be redeemed in favor of the defendant
company. Otherwise, to set aside the Boyce judgment could be of no benefit to the
stockholders and would forever prevent Boyce from realizing on his claim, for the title to
the property would be absolute in Emery Arnold, the son of one of the interveners.
judgment could be of no benefit to the stockholders and would forever prevent Boyce from
realizing on his claim, for the title to the property would be absolute in Emery Arnold, the son
of one of the interveners. True, the interveners had not completed their showing in support of
their motion to set aside at the time the order of January 28 was made, but the showing made
thus far justified the order. No request at the time was made to be permitted to then conclude
the hearing, nor was any exception taken to the order.
The motion subsequently made to set aside the order upon the ground that the court was
without jurisdiction to make it is so clearly without merit as not to require any extended
consideration. When an indisputable fact appears upon a hearing in any case that makes
necessary or proper the making of a certain order or the imposing of a certain condition, the
court has the discretion to make the order or condition at once, without waiting for counsel to
conclude. It would seem from the record that counsel for the plaintiff was willing to have the
judgment set aside, if the property was redeemed from the Arnold judgment in favor of the
defendant company, and this notwithstanding that the testimony of interveners' witnesses who
had testified, including the secretary of the company and one of the interveners, was quite to
the contrary of the allegations made by interveners that the company had a defense to
plaintiff's action or that he had secured his default judgment by fraudulent means.
If, as alleged by interveners, the plaintiff Boyce had secured his default judgment
fraudulently, and interveners were acting in the interest of the stockholders and not selfishly
to secure the benefit of the sale under the Arnold judgment, as alleged by the plaintiff, their
rights were not cut off by the order denying the motion to set aside, for the same was made
without prejudice. An action in equity would still lie to set aside the judgment for fraud.
(Nevada Con. M. Co. v. Lewis, 34 Nev. 500.) Boyce, being president of the company, could
not take advantage of his position to gain a private benefit, and if he acted fraudulently, as
alleged, equity doubtless would decree his redemption from the sale under the Arnold
judgment as accruing to the corporation or its stockholders.
and if he acted fraudulently, as alleged, equity doubtless would decree his redemption from
the sale under the Arnold judgment as accruing to the corporation or its stockholders.
The court exercised a sound legal discretion in refusing to grant the motion to set aside the
Boyce judgment, and the judgment, subject to the order, and the order are affirmed.
____________
36 Nev. 62, 62 (1913) Montgomery Shoshone Mines Co. v. Las Vegas and Tonopah R.R. Co.

[No. 2033]
MONTGOMERY SHOSHONE MINES COMPANY, a Corporation, Respondent, v. LAS
VEGAS AND TONOPAH RAILROAD COMPANY, a Corporation, Appellant.
1. CarriersRates of FreightOreEntire Contents.
Under a tariff fixing freight rates on ore at a valuation of not less than $100 per ton, determined from the
gross assay value of the entire contents according to the market price of the metal product at destination
after deducting the charges for assay, smelting, and handling at the smelter, and then fixing the actual rate
at certain figures based on the value per ton, ore on which the assay value per ton, exclusive of moisture,
was $57.88 as against $63.96 per ton for dry ore, was properly valued for the purpose of determining the
freight rate at its valuation per ton including the moisture content; moisture being included in the words
entire contents.
2. CarriersCarriage of GoodsRates on OreConclusiveness of Smelter's Certificate.
Upon a shipment of ore under tariff rates providing for determining the valuation from the gross assay
value of the entire contents at destination after deducting the charges for assaying, etc., the carrier was not
bound to accept the certificate of valuation furnished by the smelting company receiving it, where such
certificate was not determined in accordance with the carrier's rules and regulations.
Appeal from the Fifth Judicial District Court, Nye County; Mark R. Averill, Judge.
Action by the Montgomery Shoshone Mines Company, a corporation, against the Las
Vegas and Tonopah Railroad Company, a corporation. Judgment for plaintiff, and defendant
appeals. Affirmed.

C. O. Whittemore, for Appellant:
The railroad company is governed and controlled absolutely, under the provisions of its
published tariff, in fixing the freight rate, by the certificate of valuation furnished to it by the
smelter company.
The court below arrived at the conclusion that the moisture in the ore is a part of the
entire contents, of which the assay value is to be determined. That this conclusion is
erroneous needs only to be stated to be seen. The only contents in the ore which have a
value are the metal contents, the gold and silver; the water or moisture in the ore has no
value, so that the words entire contents relate to the metal contents, and have no reference
to water or moisture contained in the ore. This is further evident when we consider that the
value of the entire contents is fixed according to the market price of the metal product at
destination.
The provisions of the published tariff referred to, which are binding both upon the
respondent and the appellant, make the smelter company the arbiter of the valuations of the
ore shipments.
Key Pittman and F. K. Pittman, for Respondent:
It is apparent that, if the words entire contents referred simply to the silver and gold in
the ore, the only difference in the value of various ores would be the difference in proportion
in weight of gold and silver in the rock, and naturally no ore whose entire contents are
considered to be either gold or silver could be of a less value than $8,000 per ton.
The fact that the smelter company paid the railroad company excessive freight charges
does not relieve the appellant of the necessity of refunding such money to respondent,
because it was the money of respondent that was paid by the smelter company to the railroad
company, and the railroad company, the appellant herein, now holds money belonging to
respondent that it obtained possession of through a mistake and without consideration.
The contract with the smelter company is based upon dry ore, while the contract with the
appellant herein, the transportation company, is based upon the value of the entire
contents.

transportation company, is based upon the value of the entire contents. The smelter was not
appointed the arbitrator, but the gross value of the entire contents as certified by the smelter
was to be used in determining the value to be placed upon the ore for the purpose of freight
charges.
This is an action by respondent against appellant to recover damages for alleged excess
charges in the transportation of ore over appellant's railroad and certain connecting lines from
Rhyolite, Nevada, to Murray, Utah; the ore being consigned to the American Smelting and
Refining Company at the latter point. There is no dispute as to facts in this case, and the sole
question to be determined is as to whether or not the trial court erred in its construction of
appellant's published tariff and schedule, which constituted the contract governing the charges
for such ore shipments.
The court found, among other facts, the following:
That at the time said ores were agreed to be shipped and were received and transported
from the said town of Rhyolite to the said consignee at Murray, Utah, there were on file in the
office of the Interstate Commerce Commission at Washington, D. C., and in the local office
of said defendant at Rhyolite, Nevada, certain tariffs, rate sheets, schedules and rules and
regulations publishing the freight rates on ores shipped from Rhyolite, Nevada, to Murray,
Utah, and other points. That said tariffs, schedules, rates, etc., so filed and published, in
fixing the rates to be charged on the shipment of such ore or ores of such character from said
town of Rhyolite to the said American Smelting and Refining Company at Murray, Utah,
contained the following words and figures, to wit: In Dollars and Cents per Ton of 2,000 lbs.
Value per ton of 2,000 lbs. Not exceeding: Value $20, rate $5.00; value $30, rate $6.00; value
$40, rate $6.50; value $50, rate $8.00; value $60, rate $9.00; value $70, rate $10.00; value
$80, rate $10.50; value $90, rate $11.00; value $100, rate $12.00; value $150, rate $14.00;
value $200, rate $15.50; value $250, rate $17.60; value $350, rate $1S.50.

$11.00; value $100, rate $12.00; value $150, rate $14.00; value $200, rate $15.50; value
$250, rate $17.60; value $350, rate $18.50. Agents must forward ore at rates applying on
valuation of not less than one hundred dollars ($100.00) per ton of 2,000 pounds, which rates
will be subject to change according to certificate of valuation furnished by the smelting and
refining companies at destination, said valuation being determined as follows: From the gross
assay value of the entire contents, according to the market price of the metal product at
destination, deduct the charges for assaying, smelting and handling at the smelter. Actual rate:
Freight charges will be applied on the result in valuation per ton in accordance with the rates
shown in this tariff.' The caption of the excerpt from the tariffs and rate schedules, reading In
Dollars and Cents per Ton of 2,000 lbs. Value per ton of 2,000 lbs. Not exceeding:' qualifies
each of the valuations following under such caption. For instance: Ore not exceeding $20,
rate $5.00; ore not exceeding $30, rate $6.00; and so through the schedule.
There were introduced in evidence and made a part of the findings of fact, for the purpose
of illustration, the certificates furnished by the smelting company to appellant and respondent
with regard to a certain shipment known as shipment No. 39. The certificate furnished by the
smelting company to the shipper, respondent herein, showed the gross weight of ore received;
the percentage of moisture therein; the net or dry weight of the ore after deducting the amount
of moisture; the value per ton, based on such net or dry weight; and the amount deducted per
ton as a smelting or working charge. The moisture content, according to this certificate, was
9.5 per cent, aggregating 6,604 pounds, which being deducted from the gross weight for
which the smelting company paid the plaintiff at the rate of $63.96 per ton after deducting
freight advanced at $10 per ton upon the gross weight, amounted to $347.60.
The certificate furnished the appellant railroad company on account of said shipment No.
39 gave the weight as 69,520 pounds and the actual value at $63.96 per ton of 2,000
pounds.

as 69,520 pounds and the actual value at $63.96 per ton of 2,000 pounds. No mention
whatever of the moisture content was made in the certificate.
1. Based upon the weight of the ore, inclusive of the moisture content, the assay value per
ton, after deducting smelting charges, of shipment No. 39 would be $57.88, as against $63.96
per ton, the corresponding value of the dry ore. Whether the moisture should or should not be
considered in determining the value of the ore for rate purposes under the tariff and schedule
of the appellant would make a difference of one dollar per ton in the freight charge upon this
particular ore shipment. The evidence shows that, in the several ore shipments involved in the
case, the moisture content of the ore varied from about 7 per cent to about 20 per cent. The
freight rate actually charged the respondent was based on the value of the dry ore per ton, and
this rate was applied to the weight of the ore inclusive of moisture. It was the contention of
plaintiff, and so held by the court below, that the value of the ore for purposes of determining
the freight rate, under appellant's tariff and schedule, was the value per ton inclusive, and not
exclusive, of the moisture content. We think this is the only reasonable construction to be
placed upon the words gross assay value of the entire contents, used in the rules adopted by
the appellant company for determining the proper freight rate to be applied to ore shipments.
The moisture content must be transported by the carrier, and the shipper must pay freight
upon the same, although no values can be extracted from such moisture. As of necessity it
must be included in determining the weight, upon which the rate shall be applied, no good
reason suggests itself why it should not be considered in determining the value of the ore
shipped for the purpose of determining the proper rate to be applied. The moisture being a
part of the contents of the ore transported, it is included within the meaning of the words
entire contents used in the rule for determining the proper assay value from which the rate
is determined.

2. Counsel for appellant urges the point that, according to the regulations published, the
carrier is bound to accept the certificate of valuation furnished by the smelting and refining
company. We think this contention is without merit, where it is shown that the certificate of
valuation furnished by the smelting company is not determined in accordance with the rules
and regulations of the carrier for making such determination. The carrier is bound to obtain
from the smelting company the value of the ore per ton based upon the entire contents of
the shipment, upon which the rate, based upon such value, is to apply.
The judgment is affirmed.
____________
36 Nev. 67, 67 (1913) Ex Parte Melosevich
[No. 2065]
In the Matter of the Application of TRIFKE
MELOSEVICH for a Writ of Habeas Corpus.
1. Criminal LawIndeterminate SentenceLength of Sentence.
Rev. Laws, 7260, provides that, when a person is convicted of any felony for which no fixed period of
confinement is imposed by law, the court shall direct such person to be confined in the state prison for a
term of not less than the minimum nor greater than the maximum term of imprisonment prescribed by law;
section 7261 provides that the board of pardons may at any time after the expiration of the minimum term
of imprisonment direct that such prisoner shall be released by parole; while section 6638 provides that any
person convicted of grand larceny shall be punished by imprisonment in the penitentiary for a term not less
than one nor more than fourteen years. Held, that under the first-mentioned statute, the court, upon
conviction, could only impose an indeterminate sentence from one to fourteen years and could not fix a
greater or lesser minimum than that provided by the statute, for the board or pardons may parole the
prisoner at any time after the expiration of the minimum sentence.
2. PardonPower of Board of Pardons.
The right to apply to the board of pardons and its power to act exist independent of statute.
3. Criminal LawIndeterminate SentenceValidity.
An indeterminate sentence whereby the trial court imposed a greater minimum than that fixed by statute
is not void on collateral attack, for a prisoner is not entitled to his discharge as a matter of right until the
expiration of the maximum term, and, even though he is subject, under the statute, to be paroled at the
expiration of the minimum term, a prisoner may at the expiration of the minimum fixed by statute apply
to the board of pardons, whose power to pardon exists independent of the
indeterminate sentence law.
apply to the board of pardons, whose power to pardon exists independent of the indeterminate sentence
law.
4. Criminal LawIndeterminate SentenceJudgment.
The statute fixing the minimum and maximum sentence, under the indeterminate sentence law, will be
read into the judgment.
Original application of Trifke Melosevich for a writ of habeas corpus. Writ denied.
H. Pilkington, for Petitioner:
Upon the legislature alone is conferred the power to fix the minimum and maximum for
the punishment of all crimes. (People v. Whitney, 105 Mich. 622; People v. Smith, 94 Mich.
644.)
Indeterminate sentence provides extreme penalty and provides mitigation, and any
attempted sentence short of this is a nullity. (State v. Page, 60 Kan. 664.)
Fixing maximum penalty where fixed by law is a nullity and full maximum must be
imposed. (Ex Parte Duff, 141 Mich. 623.)
Was not the very foundation of the indeterminate sentence that the court which merely
tried the case should not, from that alone, rule the destiny of the convicted one, but that all the
circumstances of conviction, conduct and future usefulness to society, or the safeguarding of
society from the criminal, be construed by those to whose charge the prisoner should be
committed and temporary judgment be reached by parole or final judgment after a long
continuous investigation of the personal makeup of the convicted one?
Geo. B. Thatcher, Attorney-General, and E. T. Patrick, Deputy Attorney-General, for
Respondent:
The said judgment is not void but, perhaps, voidable. It may have been erroneous, but, if
so, such error should have been corrected by appeal. A writ of habeas corpus is not the proper
remedy to correct such error, and, petitioner's right to appeal having expired, he is without
remedy in the premises.
The prevailing rule is that a whole sentence is not void because of an excess. (State v.
Clock, 48 La. Ann. 67; In re Graham, 74 Wis. 450; In re Bonner, 151 U. S. 258; Ex Parte
Tani, 29 Nev. 385; U. S. v. Pridgeon, 153 U. S. 148.)
If the court erred in imposing the sentence fixed herein, petitioner was not injured thereby.
The fixing of the minimum term was unauthorized. It was mere surplusage. (In re Duff, 141
Mich. 624.)
Under the indeterminate sentence law the provisions of the statute become a part of the
sentence. The law fixes the term of imprisonment. (In re Duff, 141 Mich. 624; People v.
Joyce, 246 Ill. 133; People v. Nowasky, 254 Ill. 146.)
This is an original proceeding in habeas corpus. The petition alleges that the applicant is
unlawfully confined in the state prison because of the alleged fact that the commitment by
virtue of which he is so confined is based upon a void judgment. Applicant was regularly
indicted, tried, and convicted of the crime of grand larceny. Based upon the jury's verdict of
guilty, on August 14, 1912, judgment was entered, upon the order of the court, that
defendant, Trifke Melosevich, be confined in the penitentiary at Carson City, Nevada, for the
period of not less than two years and not to exceed three years. The commitment was in
accordance with the judgment as entered.
1. The statute of this state provides that a person convicted of the crime of grand larceny
shall be punished by imprisonment in the state prison for any term not less than one year nor
more than fourteen years. (Rev. Laws, 6638.)
Section 7260, Rev. Laws, provides: Whenever any person shall be convicted of any
felony for which no fixed period of confinement is imposed by law, the court shall, in
addition to any fine or forfeiture which he may impose, direct that such person be confined in
the state prison for a term not less than the minimum nor greater than the maximum term of
imprisonment prescribed by law for the offense of which such person shall be convicted;
and where no minimum term of imprisonment is prescribed by law, the court shall fix the
minimum term in his discretion at not less than one year nor more than five years; and
where no maximum term of imprisonment is prescribed by law, the court shall fix such
maximum term of imprisonment."
by law for the offense of which such person shall be convicted; and where no minimum term
of imprisonment is prescribed by law, the court shall fix the minimum term in his discretion
at not less than one year nor more than five years; and where no maximum term of
imprisonment is prescribed by law, the court shall fix such maximum term of imprisonment.
Section 7261, Rev. Laws, provides: The board of pardons may at any time after the
expiration of the minimum term of imprisonment for which such prisoner was committed
thereto, direct that any prisoner confined in such institution shall be released on parole upon
such terms and conditions as in their judgment they may prescribe in each case.
The sections above quoted relative to an indefinite or indeterminate sentence were
incorporated into the law of this state for the first time in the revised criminal practice act
passed by the legislature of 1911, which took effect January 1, 1912. Under the old statute,
trial judges in all cases were required to impose a definite sentence. Some misconception
appears to have existed for a time in the minds of a number of trial judges as to how
sentences should be imposed under the new law. In a number of cases that have been under
consideration by the board of pardons, sentences were imposed like that now in question. The
court, upon imposing sentence, had assumed that it had discretion to fix a greater minimum
or a less maximum sentence than the minimum and maximum sentence prescribed in the
statute for the particular offense, for the commission of which judgment was imposed. This
was not in accordance with the purpose designed to be accomplished by the indeterminate or,
more properly speaking, the indefinite sentence law.
Under the law which had existed for centuries in English-speaking countries, and until the
adoption, in recent years, of certain reforms in criminal procedure, the imposition of definite
sentences resulted in great inequality in the term imposed by different judges for similar
offenses. Whether for a certain offense the court would have imposed a sentence of one
year, five, ten, or twenty years, would depend, to a considerable extent, upon the
viewpoint of the individual judge who happened to have tried the case.
would have imposed a sentence of one year, five, ten, or twenty years, would depend, to a
considerable extent, upon the viewpoint of the individual judge who happened to have tried
the case. If the judge happened to be of the opinion that severity of punishment was the best
method of suppressing crime, a heavy sentence would be imposed. If it happened to fall to the
lot of the offender to be tried before a judge inclined to the view that a greater degree of
leniency would accomplish the desired result, a comparatively light sentence would be
imposed.
One purpose of the indeterminate sentence law was to minimize the personal equation of
the trial judge. Exact justice in the punishment of an offender is probably unattainable. If,
however, from the light of all facts and circumstances having a bearing upon a particular case,
a sentence, say of two years, would generally be accepted as a just measure of punishment to
be imposed, but it appeared that, because of the view of the case peculiar to the mind of the
trial judge who happened to have the say, a sentence of five or ten years is imposed, there has
been a miscarriage of justice which only some pardoning power could remedy.
As said by Chief Justice Winslow, of the Supreme Court of Wisconsin, in a recent address
delivered before the American Institute of Criminal Law and Criminology, of which
organization he is the president: The court should have power to impose an indeterminate
sentence, leaving the question of length of term to a board acting on accurate knowledge of
the criminal's history, behavior, and apparent progress toward reformation. Again he says:
Power should be vested in some responsible and discreet board in cases where reform is
possible to parole prisoners under proper supervision.
These observations, in a measure, express the purpose sought to be accomplished by the
legislature in the enactment of these new provisions in the criminal code of 1912.
Where, as in the crime of grand larceny, the statute fixed a minimum and a maximum
sentence, the trial court had no discretion to fix a greater minimum or less maximum
sentence than that which the statute prescribed.
sentence than that which the statute prescribed. (Miller v. State, 149 Ind. 607, 49 N. E. 894,
40 L. R. A. 109; Terry v. Byers, 161 Ind. 360, 68 N. E. 596; In re Duff, 141 Mich. 623, 105
N. W. 138.)
The effect of section 7260, Rev. Laws, supra, was to cause the commitment of every
defendant, convicted of felony, to the state prison for the maximum term fixed by statute for
the particular offense for which conviction was had, unless the trial court deemed it a proper
case for the suspension of the sentence under the provision of Rev. Laws, 7259. (Cases cited,
supra.)
The length of service under the sentence was left entirely in the discretion of the board of
pardons. It is manifestly the purpose of this statute to leave the period of confinement to the
determination of the board of pardons, from a consideration of the circumstances of the
crime, the defendant's past history, his conduct within the prison, the probabilities of or for
reformation, and every other fact and circumstance which might have a bearing upon a
determination of a just measure of punishment. While the powers of the board of pardons,
composed of the governor, the justices of the supreme court, and the attorney-general, are
derived from the constitution (Const. art. 5, sec. 14; Rev. Laws, 307) and are even greater
than those specifically expressed in the section of the statute quoted, supra, it was clearly the
intention of the legislature that the board of pardons should, when in its judgment a prisoner
was deserving of release from confinement, discharge him from such confinement upon
parole, thus giving him a further opportunity to establish his reformation while mingling with
society, subject to the power of the board, if he proved unworthy of the confidence reposed in
him, to return him to prison, and upon the other hand, when he established a just claim
therefor, to grant him a full pardon. The judgment entered in this case should have been that
the defendant be confined in the state prison for the period of not less than one year and not to
exceed fourteen years.
2, 3. It does not follow, however, that, because the court did not so construe the provisions
of the statute, the judgment is void and may be so declared upon collateral attack. Upon
suggestion to the trial court, the judgment could have been amended to conform to the law, or
upon appeal it would have been so modified. If it could be successfully urged that the
applicant here was, by reason of the judgment, deprived of his right to apply to the board of
pardons for release upon parole until he had served the minimum sentence fixed therein, there
might be some basis for saying that he was deprived by the judgment of a substantial right,
and that the judgment for that reason might be void. As the right to apply to the board of
pardons and its power to act exists independent of statute, it cannot be said that a judgment
fixing a greater minimum of imprisonment than that prescribed by law has deprived a
defendant of any substantial right. A prisoner does not have an absolute right of discharge
after serving a minimum sentence. Such right exists only when he has served the maximum
term. It is presumed, however, that the board of pardons will discharge upon parole, pardon,
or commutation of sentence, whenever the justice of the case warrants.
4. In the case of In re Cummins, 138 Mich. 39, 100 N. W. 1008, the court refused to
discharge on habeas corpus a prisoner sentenced for the maximum and minimum period of
five years, but held that the sentence was to be treated as though the petitioner had been
sentenced for the maximum period of five years and the minimum period of one year.
There was a statute of Michigan considered in the Cummins case, which specificlly declared
that such judgments should not be considered void, but in effect should be deemed to have
been properly entered and so construed. While the court based its decision upon the statute, it
could, we think, have reached the same conclusion based upon the weight of authority which
holds that, where a sentence is merely excessive, it is valid to the extent that the court had
power to impose it, and void only as to the excess.
impose it, and void only as to the excess. (12 Cyc. 782, and see, also, Ex parte Tani, 29 Nev.
385, 91 Pac. 137, 13 L. R. A., N. S., 518.)
In the Tani case, this court, speaking through Talbot, C. J., said: The most of the
decisions, and especially those more in consonance with reason and justice, are averse to the
discharge of criminals who have been duly convicted when the application for their release is
by petition for habeas corpus based upon some error, omission, or mistake in the sentence
which might have been cured or corrected by writ of error or appeal.
In Re Duff, 141 Mich. 623, 105 N. W. 138, a judgment was attacked upon habeas corpus
where a less maximum was fixed than that prescribed by law. The court said: It was held by
this court (In re Campbell, 138 Mich. 597, 101 N. W. 826) that the trial court had no
authority, on a conviction for larceny under the indeterminate sentence act, to fix a maximum
term of imprisonment, but that the statute must be referred to for the determination of such
maximum term. In the case at bar the trial judge did fix the minimum term of imprisonment,
and, striking out the provision for a maximum term, the sentence was a lawful sentence. The
fixing of a maximum term of imprisonment was unauthorized and void. It was mere
surplusage, as much so as though the sentence had provided what clothes the convict should
wear, what food he should eat, or when he should be paroled. Rejecting the unauthorized and
illegal surplusage, all of the elements of a strictly legal sentence remain. It is no more
necessary to look beyond the sentence to determine its full extent and scope than in the
Campbell case, supra. In that case the sentence was to confinement in the Detroit house of
correction for a period not less than one year,' fixing no maximum term. It is necessary in all
such cases to refer to the statute to determine the maximum term, since that is fixed by the
statute and need not be referred to in the sentence at all. The sentence need only be consulted
for the determination of the minimum term. A sentence under the indeterminate sentence law
is to be interpreted in the light of the statute upon which it is based, and the maximum
punishment fixed by law should be read into and considered a part of the sentence and
mittimus.
is to be interpreted in the light of the statute upon which it is based, and the maximum
punishment fixed by law should be read into and considered a part of the sentence and
mittimus. (People, ex rel. Bradley, v. Illinois State Reformatory, 138 Ill. 413, 36 N. E. 76, 23
L. R. A. 139; Miller v. State, 149 Ind. 607, 618, 49 N. E. 894, 40 L. R. A. 109.) The
unauthorized fixing of the maximum term in the sentence was without force or effect and
conferred no rights upon petitioner.
We see no more reason for reading the maximum sentence into a judgment or commitment
than reading into them the minimum. The statute fixing a schedule of credits for the good
conduct of prisoners is not taken account of usually, if ever, in entering judgment, yet it is
read into the judgment. (Ex Parte Darling, 16 Nev. 98, 40 Am. Rep. 495; Ex Parte
Woodburn, 32 Nev. 136.)
Reading into the judgment the provisions of the statute, relative to an indeterminate sentence,
is supported by reason and authority. It does not deprive a prisoner of any right and does not
entitle him to discharge upon habeas corpus.
____________
36 Nev. 76, 76 (1913) Proskey v. Colonial Hotel Co.
[No. 2007]
WILLIAM S. PROSKEY, Appellant, v. COLONIAL
HOTEL COMPANY, a Corporation, Respondent.
1. ContractsAction for BreachSufficiency of Cause StatedHotels.
A complaint alleging that respondent had entered into a contract with appellant to lease him a certain
apartment in respondent's hotel, appellant to have the sole and exclusive control, use and occupancy of said
apartment for the safe keeping of his personal effects and papers, during a contemplated absence of several
months, at an agreed rental per month until his return, which rental was paid as agreed; that the sole
inducement and consideration for making such contract was the safe keeping and security of appellant's
personal effects and papers; that during the absence of appellant and without his knowledge or consent,
respondent rented said apartment to divers and sundry persons, thus permitting them to have access to
appellant's said papers and effects, if such persons so desiredfails to state a cause of action for total
failure of consideration, it not appearing from the complaint that the personal effects of appellant were not
safely kept, or that any person did view, observe, or in any way molest his effects or papers or gained any
knowledge therefrom, and that part of the amount sued for was for time when appellant was in actual
personal occupancy of the leased apartment.
2. Landlord and TenantLease from Month to Month.
A lease for an indefinite term, with monthly rental reserved, creates a tenancy from month to month,
unless certain special circumstances alter the rule.
Appeal from the Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by William S. Proskey against the Colonial Hotel Company, a corporation, to
recover damages for rental paid, upon the ground of a total failure of consideration. Demurrer
to complaint sustained as not stating a cause of action. From a judgment for defendant for
costs, plaintiff appeals. Affirmed.
Dodge & Barry, for Appellant:
Where the failure of the consideration is totalwhich implies, of course, that nothing of
value has been received under the contract by the party seeking to rescindit is not
necessary that a formal rescission be made before bringing suit.
not necessary that a formal rescission be made before bringing suit. In such cases a suit may
always be maintained for the recovery of the consideration paid. (Santa Clara Fuel Co. v.
Tuck, 53 Cal. 304; Rose v. Ford, 96 Cal. 154; Hayes v. Los Angeles Co., 99 Cal. 79; Chitty
on Pleading, 362, note z; Russ Co. v. Muscupiabe Co., 120 Cal. 527.)
If the failure is such as in effect and reality to take away all the value of the consideration,
it will be regarded as having wholly failed. (9 Cyc. 371; Clark v. Continental Imp. Co., 57
Ind. 135; Carlisle v. Terre Haute R. Co., 6 Ind. 316; Corliss v. Putnam, 37 Vt. 119.)
Parker & Frame, for Respondent.
In this action the appellant, W. S. Proskey, appeals from the judgment of the Second
judicial district court sustaining the demurrer to the complaint of the appellant, filed in said
court against the Colonial Hotel Company, a corporation. The principal part of his complaint
is as follows:
(3) That in the month of April, 1910, plaintiff was occupying an apartment in said hotel
or apartment house of the said defendant, and at said time plaintiff desired to leave the State
of Nevada, to be absent for some months; that plaintiff at that time had numerous personal
effects and valuable papers in his possession and in the apartment which he was then
occupying in said hotel or apartment house of defendant; that, for the purpose of procuring a
secure and safe place for said personal effects and said valuable papers, the plaintiff at said
time made an agreement with said Colonial Hotel Company by, through, and with its duly
authorized agent and manager, George T. Crosby, by the terms of which said agreement it
was agreed between plaintiff and defendant that the plaintiff should have the sole and
exclusive occupancy of said apartment for the safe keeping of his said personal effects and
said papers until the return of plaintiff to the State of Nevada in the month of November or
December, 1910; that, in consideration of the plaintiff so having the exclusive use,
occupancy, and control of said apartment for and during the time and for the purpose
aforesaid, the plaintiff paid to said defendant the sum of $40 per month for the months of
May, commencing May 6, June, July, August, and September, 1910, and at the rate of $70
per month for the months of October and November down to the 6th day of December,
1910, the same being the price fixed upon and agreed to by said defendant and plaintiff;
that said price so fixed and paid was the regular price charged by defendant for said
rooms during said months if actually occupied; that defendant had offered to keep said
personal effects and papers of plaintiff in the basement of said hotel, free of charge, but
plaintiff desired to have his said personal effects and papers kept secure and safe from
inspection beyond any question, and was willing to pay the price hereinabove set forth for
the purpose of securing such security and safety for his said personal effects and papers,
and that such security and safety of his said personal effects and papers was the sole
inducement and consideration for making said agreement and paying said price, and that
plaintiff never would have made said agreement or paid said price, except for the belief
that he would secure such security and safety for his said personal effects and papers.
December, 1910; that, in consideration of the plaintiff so having the exclusive use,
occupancy, and control of said apartment for and during the time and for the purpose
aforesaid, the plaintiff paid to said defendant the sum of $40 per month for the months of
May, commencing May 6, June, July, August, and September, 1910, and at the rate of $70 per
month for the months of October and November down to the 6th day of December, 1910, the
same being the price fixed upon and agreed to by said defendant and plaintiff; that said price
so fixed and paid was the regular price charged by defendant for said rooms during said
months if actually occupied; that defendant had offered to keep said personal effects and
papers of plaintiff in the basement of said hotel, free of charge, but plaintiff desired to have
his said personal effects and papers kept secure and safe from inspection beyond any
question, and was willing to pay the price hereinabove set forth for the purpose of securing
such security and safety for his said personal effects and papers, and that such security and
safety of his said personal effects and papers was the sole inducement and consideration for
making said agreement and paying said price, and that plaintiff never would have made said
agreement or paid said price, except for the belief that he would secure such security and
safety for his said personal effects and papers.
(4) That plaintiff was absent from the city of Reno and said hotel or apartment house
from the month of April, 1910, until the first part of November, 1910; that, during the said
absence of plaintiff, plaintiff did not have the sole and exclusive occupancy of said apartment
in said hotel or apartment house, but that during the absence of the plaintiff the said
defendant, without the knowledge or consent of plaintiff, rented said apartment to divers and
sundry persons and permitted such persons to use and occupy the same, and thus have access
to plaintiff's said papers and effects if such persons so desired; that by reason of the defendant
leasing said apartment during the absence of plaintiff and permitting said divers and sundry
persons to occupy the same, as aforesaid, plaintiff did not have the exclusive control, use,
or occupancy of said apartment, and was thus deprived of the safety and security of his
said personal effects and papers, which he desired, contracted, and paid for, and by
reason thereof the consideration for the said agreement between plaintiff and defendant
as to plaintiff entirely failed, and the object and purpose for which said agreement was
made by the plaintiff was thus destroyed and rendered of no effect, and plaintiff was thus
deprived of any consideration whatever for the money so paid to defendant, as
aforesaid."
aforesaid, plaintiff did not have the exclusive control, use, or occupancy of said apartment,
and was thus deprived of the safety and security of his said personal effects and papers, which
he desired, contracted, and paid for, and by reason thereof the consideration for the said
agreement between plaintiff and defendant as to plaintiff entirely failed, and the object and
purpose for which said agreement was made by the plaintiff was thus destroyed and rendered
of no effect, and plaintiff was thus deprived of any consideration whatever for the money so
paid to defendant, as aforesaid.
To this complaint a demurrer was interposed principally on the grounds that the complaint
did not state facts sufficient to constitute a cause of action; and the demurrer more
specifically is as follows:
That said amended complaint does not state facts sufficient to constitute a total failure of
the consideration, and that the facts therein stated, if true, would only constitute a breach of
the covenant of quiet enjoyment, and consequently in that regard only a breach of the rental
contract, and not a total failure thereof. That the same does not state facts sufficient to
constitute a substantial breach of the contract of rental, but on the contrary thereof shows that
the same was substantially performed and that the alleged breach of the contract attempted to
be pleaded, as set forth in the amended complaint, would only constitute a technical and
unsubstantial violation thereof. That the amended complaint does not state facts sufficient to
show and does not allege that any damage in fact resulted to the plaintiff by reason of the
alleged violation by the defendant of the rental contract, whereby the plaintiff would not have
the exclusive possession of the apartments for all of the time mentioned in the said amended
complaint, and that at most said allegation would only amount to a trespass upon the
defendant's right of possession, for which his only remedy would be for damages, if any had
been sustained.
From the allegations of the complaint it will be observed that no claim is made by the
plaintiff that his personal effects and papers were not restored to him in their original
condition and position, nor is it directly averred that any person did in fact view or
observe, or in anywise disturb or molest, his papers or effects, nor is it alleged that any
person or persons gained any knowledge or information from the personal effects or
papers.
their original condition and position, nor is it directly averred that any person did in fact view
or observe, or in anywise disturb or molest, his papers or effects, nor is it alleged that any
person or persons gained any knowledge or information from the personal effects or papers.
As set forth in the complaint there was a rental agreement of $40 a month for certain
months and a rental agreement of $70 per month for certain other months, to wit, October,
November, December, etc. As appears from the face of the complaint the plaintiff returned
during the first part of November and occupied the apartment, paying rental therefor as before
agreed until the first part of December, and it must be inferred from the allegations of the
complaint that the plaintiff did not have knowledge that any person had been permitted to
enter the apartment during his absence or, having knowledge, made no complaint. In any
event, the rental agreement of $40 a month for certain months and $70 a month for certain
other months was duly paid by the plaintiff, and he seeks to recover by his complaint the
return of the total amount paid, amounting in all to $340.
1. To constitute a tenancy from month to month a special agreement to that effect may be
made, or the tenancy may be implied from the manner in which the rental is paid. A lease for
an indefinite term, with monthly rental reserved, creates a tenancy from month to month.
2. However general this principle of law may be, it is unquestionably true that a lease for a
definite term less than a year, the limits of which are specifically stated in the agreement,
would not come under this rule, even though the rental was paid monthly. It is immaterial in
this case as to whether the agreement alleged in the complaint created a tenancy from month
to month, as contended by counsel for respondent, or created a tenancy for a definite period or
term of months, with monthly rental reserved, as contended by the appellant.
monthly rental reserved, as contended by the appellant. The appellant bases his right to
recover upon the theory of a total failure of consideration, and he cites authorities supporting
his contention. A careful reading of the authorities cited by appellant, however, discloses that
in those cases there was an entire or total absence of consideration. The most that can be said
in the case under consideration is that there was but a partial breach of an alleged contract.
Appellant's personal effects and belongings were safely kept in the apartment during all of the
time of his absence as well as after his return. The complaint fails to state either inferentially
or otherwise that the papers or personal effects were actually molested, viewed, or observed
by any person, or that any information contained in the papers or personal effects was ever
gained or obtained by any one. It is manifest that the consideration did not fail in this case
between the time the plaintiff is alleged to have returned, to wit, the first part of November,
and the 6th day of December, the date on which it is alleged that he discontinued his tenancy
and between which dates he was personally present and occupying the apartment. According
to the complaint the alleged special or extraordinary agreement was only to continue during
the absence of the appellant, but in his complaint appellant prays for judgment, not only for
the return of the rent paid for the time during which he was absent, but also for the return of
the rent paid for the time after his return. The amount of rental covering the time of his
absence was less than $300, and if he had sued for that alone he could not have brought his
action in the district court. Whether a prayer for the recovery of an additional month's rent not
within the alleged special contract ought to be considered as stating a cause of action within
the jurisdiction of the district court, so far as the amount in controversy is concerned, is a
doubtful proposition. Conceding, however, for the purposes of this case, that it may be done,
even then we are confronted with an additional allegation which clearly shows that there
was not a total failure of consideration, there being no averment of interferences with
appellant's possessions after his return.
shows that there was not a total failure of consideration, there being no averment of
interferences with appellant's possessions after his return.
Appellant is not entitled to recover the rent paid under the allegations of the complaint,
because the facts alleged do not show an entire failure of consideration, but at most only a
partial breach of the contract, for which no actual damage is alleged.
As was well said in the case of Bishop v. Stewart, 13 Nev. 41, no principle is better settled
than that a party cannot rescind a contract and at the same time retain possession of the
consideration in whole or in part which he has received under it; he must rescind in toto or
not at all. It has been held in a degree almost to a uniformity that courts will refuse to decree a
right of rescission in favor of a party to a contract, because such contract was only partially
executed or because of only a partial failure of consideration. In order for a litigant to prevail
under such a state of affairs the parties to the agreement or contract must be replaced in their
previous condition.
Even should this special agreement be construed as constituting a tenancy for a definite
period, the alleged fact that divers and sundry persons were permitted to have access to
appellant's leased apartment would not constitute a total absence of consideration, in view of
the fact that during all of that time appellant's personal effects were being safely kept, and in
view of the further fact that appellant had personal occupancy of the apartment during a
portion of the time for which he seeks to recover the rental paid.
In the allegations of the complaint there is no hint of actual damages, much less a positive
averment of such.
The respondent in this action moved to dismiss the appeal upon the ground that appellant
failed to cause the sureties on the appeal bond to justify when an exception was filed to the
sufficiency thereof, but, as the case must be decided in favor of the respondent, it is not
necessary for us to go into that matter at this time.
It follows that the order of the lower court sustaining the demurrer to the complaint should
be affirmed.
It is so ordered.
Norcross, J.: I concur.
Talbot, C. J., concurring:
I concur in the order for judgment as written by Justice McCarran.
Although it has been held that where a lease is taken on property for an indefinite period,
with the rent payable monthly, it will be construed as a lease from month to month, I think,
under the facts alleged in the complaint, the agreement for the rental of the room for the
keeping of plaintiff's papers and things, without other persons to have access to the room, for
some months until plaintiff returned, with a lease for the time he was absent and one which
the parties had a right to make, and consequently it was legal and binding, and as much so as
if the lease had been made for four or five months, or for a definitely specified period of five
months, with the rent payable monthly. (Harty v. Harris, 120 N. C. 408, 27 S. E. 90.)
If the hotel company had attempted to cancel the lease one or two months after the plaintiff
had gone and before he returned, and had put his things out, it ought to be liable for any
damages resulting. A lease for some months until the tenant returns implies that it is to run
until he returns at some time not less than a few months and less than a year. No good reason
appears why persons going on an extended trip should not be allowed to rent apartments for
the storage and keeping of their property during their absence, and, if the landlord agrees that
the lease shall run for some months until the tenant returns, the law ought to require the
landlord to keep his agreement during that time.
If, as alleged, the plaintiff leased the room and paid the rent, and the defendant breached
the lease by allowing persons to occupy the room during plaintiff's absence, it becomes
necessary to consider what damages, if any, the plaintiff sustained, for he cannot recover
without alleging and showing the injury suffered or the amount he has been damaged.
if any, the plaintiff sustained, for he cannot recover without alleging and showing the
injury suffered or the amount he has been damaged. For counsel to argue that the allowing of
other persons to occupy the room and have access to plaintiff's papers contrary to the
agreement might have injured plaintiff many thousands of dollars if the occupants of the
room, by obtaining information from the papers, prevented the consummation of important
mining or other deals by the plaintiff, is not sufficient to show that there was any actual
damage to the plaintiff in this regard for which he can recover from the defendant. Aside from
the money paid for rent, there is no indication that the plaintiff sustained any damage. If,
because the agreement was breached by the defendant, the plaintiff, as claimed, is entitled to
recover all the rent he paid for the exclusive use of the room for the safe and undisturbed
keeping of his things during his absence, regardless of whether defendant could offset a
reasonable sum for the keeping of the property during plaintiff's absence, the amount, as
shown by the allegations, is only $270, and consequently the complaint fails to state a cause
of action within the original jurisdiction of the district court, and under the facts alleged the
case is one which could only be brought in the justice's court, and of which the district court
would have jurisdiction only on appeal. (Const., art. 6, sec. 6; Rev. Laws, 321, 4840; Moore
v. Orr, 30 Nev. 461.)
The complaint does not allege the particular month or months that the contract was breached;
and whether it be treated as a lease from month to month with one or more months breached,
or be treated as a lease for the period the plaintiff was absent, with monthly payments, and as
being breached for the entire time he was away, the jurisdiction would fall in the justice's
court whether plaintiff is entitled to recover for the breach the rent he paid, or only the rent
less a reasonable amount for the keeping of his papers and property when other persons were
allowed access to his room.
The allegation that plaintiff occupied the room for a month after he returned, and paid $70
for that month, being beyond the agreement for the keeping of his things during his
absence which is alleged to have been breached, does not indicate any cause of action; it
fails as much to show any liability as would an allegation that the plaintiff had bought a
horse from defendant and paid him $100 for it, or had borrowed some amount or given a
note and had repaid it.
being beyond the agreement for the keeping of his things during his absence which is alleged
to have been breached, does not indicate any cause of action; it fails as much to show any
liability as would an allegation that the plaintiff had bought a horse from defendant and paid
him $100 for it, or had borrowed some amount or given a note and had repaid it.
____________
36 Nev. 85, 85 (1913) Worrell v. Jurden
[No. 2054]
W. D. WORRELL, Respondent, v. A. W. JURDEN,
Appellant.
1. Schools and School DistrictsSchool TrusteeContractsInterest.
Stats. 1907, c. 182, provide that no school trustee shall be pecuniarily interested in any contract made by
the board of trustees of which he is a member. Held, that where plaintiff, a school trustee, had no pecuniary
interest or understanding with defendant at the time defendant's bid for the construction of a schoolhouse
was accepted by the board, the fact that plaintiff was a trustee did not deprive him of the right to lawfully
contract thereafter to furnish defendant materials to be used in the performance of his contract, nor afford
defendant a defense to an action for the price.
2. Schools and School DistrictsSchoolhousesConstructionFurnishing
MaterialInterest of Trustee.
Where defendant, after obtaining a contract to build a schoolhouse, obtained labor and materials from
plaintiff, who was one of the trustees, defendant could not successfully claim that the contract was valid as
between himself and the school district and invalid as between himself and the trustee, under Stats. 1907, c.
182, providing that no trustee shall be pecuniarily interested in any contract made by the board of which he
is a member.
Appeal from the Fourth Judicial District Court, Clark County; E. J. L. Taber, Judge.
Action by W. D. Worrell against A. W. Jurden. From a judgment for plaintiff, defendant
appeals. Affirmed.
Stevens & Van Pelt, for Appellant:
In the absence of an express enactment of the legislature, the rule of the common law is
that any contract entered into by a public officer which places him or may place him in a
position where his personal interests are, or may be, adverse to and inconsistent with his
duties to the public as such public officer, is void and unenforceable as against public
policy.
may place him in a position where his personal interests are, or may be, adverse to and
inconsistent with his duties to the public as such public officer, is void and unenforceable as
against public policy.
When the states through their legislature enact statutes similar to section 37 of the said act
of the legislature of the State of Nevada, they do nothing more than to express in a solemn
enactment the well-established injunction and rule of the common law as it existed prior to
the enactment. (Noble v. Davison, 96 N. E. 325; Bellaire Goblet Co. v. The City of Findlay
and the Board of Trustees, 5 Ohio Cir. Ct. 418; San Diego v. S. D. L. A. R. R. Co., 44 Cal.
106; McManus v. Scheele, 116 La. 71, 40 South. 535; Robinson v. Patterson, 71 Mich. 141;
Foster v. Cape May, 60 N. J. L. 78; Knippa v. Stewart Iron Works, 66 S. W. 322; O'Neil v.
Flannagan, 98 Me. 426, 57 Atl. 591; Dalzell v. City of Findlay, 5 Ohio Cir. Ct. 435; Doll v.
State, 45 Ohio St. 445; Smith v. City of Albany, 61 N. Y. 444; 28 Cyc. 650; 35 Cyc. 954; 9
Cyc. 481; McQuillin, Mun. Corp. vol. 2, sec. 513; Dillon, Mun. Corp. 5th ed. sec. 773, vol.
2.)
Any direct or indirect interest in the subject-matter of a public contract is sufficient to taint
the contract of the officer with illegality, if the interest be such as to affect the judgment and
conduct of the officer either in the making of the contract or in its performance, providing
that the interest of the officer is of a pecuniary interest. Pecuniary interest is any interest by
which a person will gain or lose something in contradistinction to general sympathy, feeling,
or bias. (Dillon, Mun. Corp. 5th ed. vol. 2, secs. 773, 1145-6; Nuckols v. Lyle, 8 Idaho, 589,
70 Pac. 401; Texas Anchor Fence Co. v. City of Antonio, 30 Tex. Civ. App. 561; Bell v. Quin,
2 Sandf. 146; Gregory v. Jersey City, 34 N. J. L. 390; Hunnings v. Williamson, 11 Q. B. D.
533; Jacques v. City of Louisville, 106 S. W. 308; Northport v. Northport Townsite Co., 27
Wash. 543, 68 Pac. 204.)
The case of Escondido Lumber Company v. Baldwin, 2 Cal. App. 606, 84 Pac. 284, was
the sole authority which influenced the trial court in the case at bar to render judgment
against the appellant.
judgment against the appellant. The facts of this case are materially different from the facts in
the case at bar. In the Escondido case the plaintiff was a corporation, which corporation was
suing upon an implied contract for materials furnished to the general contractor, and the
school trustee was a stockholder in said corporation. In the case at bar the respondent is an
individual suing the general contractor, first, upon an implied contract for materials, work and
labor, and, secondly, upon an express contract. However, the Escondido case was not well
considered, is bad law, and is not founded upon the principles of law applicable to the facts
established in the case at bar. A careful consideration of the Escondido case discloses the fact
that the court absolutely ignored the controlling principle announced in the majority of all the
cases in point, not only of other jurisdictions, but of the State of California itself. (Finch v.
Riverside and Arlington Ry. Co., 87 Cal. 597, 25 Pac. 765; Santa Ana Water Co. v. Town of
San Buena Ventura, 65 Fed. 323; Sims v. Petaluma Gas L. Co., 131 Cal. 656; McGinn v.
Willey, 6 Cal. App. 111; Butler v. Agnew, 9 Cal. App. 327; Spence v. Harvey, 22 Cal. 336;
Capital Gas Co. v. Young, 109 Cal. 140; Capron v. Hitchcock, 98 Cal. 427; Shakespeare v.
Smith, 77 Cal. 638; Tracy v. Colby, 55 Cal. 67; Berka v. Woodward, 125 Cal. 119.)
F. R. McNamee, for Respondent:
In determining whether these contracts fall under the ban of this statute the facts in
evidence must be measured by the provisions of the statute itself. At the outset we concede
that had the respondent entered into the contracts, not with appellant, but with the board of
trustees, or had respondent entered into the contract with appellant prior to the execution of
the latter's contract with the board, or had respondent been a partner with appellant at the time
appellant entered into his contract with the board, or had respondent been an officer in a
corporation which entered into a contract with the board of school trustees, a different case
would be presented. We might concede still further that if the work done and labor
performed by respondent for appellant were under a contract in any manner contingent
upon appellant's contract with the board of trustees, a nice question might then arise.
done and labor performed by respondent for appellant were under a contract in any manner
contingent upon appellant's contract with the board of trustees, a nice question might then
arise. We might also concede that if the contracts of respondent with appellant hinged at all
upon the acceptance of the building or the payment of the contract price by the board of
trustees, a still more delicate question would confront us.
It will be observed, as we review the authorities cited by appellant and the facts of those
cases, that in making the foregoing concessions we have negatived every decision cited by
counsel for appellant as an authority in the case at bar. Appellant's authorities are all
distinguishable from the case at bar either because the facts differ widely from the facts in the
case at bar, or because the provisions of the statute take a wider scope than the statute here
under consideration.
All the research by counsel and by court has discovered in all the books but one case
where the facts and the statute both are almost parallel with the statute and facts at bar. It is
the case of Escondido Lumber Co. v. Baldwin, 2 Cal. App. 606, 84 Pac. 284.
We have had the privilege of examining the original papers in the Escondido case,
including the transcript of testimony, the briefs of opposing counsel, the petition for
rehearing, the answer thereto, and the decisions thereon, and we confess our admiration of the
painstaking consideration displayed therein by court and counsel. Every California case
referred to by counsel for appellant here, and averred to be opposed to the law of the
Escondido case, was reviewed at great length in the briefs of counsel in that case.
Respondent's contracts with appellant are not void because contrary to the public policy of
the State of Nevada. (Richardson v. Millish, 2 Bing. 299, 9 Eng. Com. Law, 557; 2 Beach on
Modern Law of Contracts, 1498; Barret v. Carden, 65 Vt. 431; Richmond v. Dubuque Ry.
Co., 26 Iowa, 191; Kellogg v. Larkin, 3 Wis. 123, 56 Am. Dec. 164; Walsh v. Fussell, 6 Bing.
163, 19 Eng. Com.
Law, 21; Enders v. Enders, 164 Pa. St. 266, 27 L. R. A. 56; U. S. v. Trans.-Mo. Assn., 166 U.
S. 290, 41 L. Ed. 1007; Printing Co. v. Sampson, 32 L. T. Rep. N. S. 354.)
This is an appeal from the judgment and from an order denying defendant's motion for a
new trial. Action was brought by the plaintiff to recover the sum of $2,317, balance alleged to
be due for certain goods, wares, and merchandise sold and delivered to defendant between the
29th day of May, 1910, and the 9th day of February, 1911, and for work and labor performed
in and about the installation of certain of the said goods, wares, and merchandise in a building
constructed by the defendant. The case was tried before Judge E. J. L. Taber without a jury,
and judgment was awarded in favor of plaintiff in the sum of $2,217.78 and costs.
1. The only question presented upon appeal is whether the contract sued upon is void, as
alleged in defendant's answer, under the provisions of section 37 of an act entitled An act to
provide for a reorganization of the system of school supervision and maintenance, etc.,
approved March 29, 1907 (Stats. 1907, p. 388), which section reads: No trustee shall be
pecuniarily interested in any contract made by the board of trustees of which he is a member.
It appears from the evidence that upon the 26th day of March, 1910, the defendant,
appellant herein, was awarded the contract for the construction of a schoolhouse for Las
Vegas school district in Clark County, upon his bid for the construction of the same for the
sum of $27,706; he being deemed the lowest and best bidder by the board of school trustees
of said district. At the time of the acceptance of appellant's said bid, and at all times
mentioned in the action, the plaintiff, respondent herein, was a regularly elected, qualified,
and acting member of the board of school trustees of said district. It is not contended that at
the time the contract was awarded to appellant for the construction of said school building
respondent was in any way interested in said contract, or that there was any
understanding between appellant and respondent that the latter should furnish any labor
or material in the construction of said building.
school building respondent was in any way interested in said contract, or that there was any
understanding between appellant and respondent that the latter should furnish any labor or
material in the construction of said building. A great many authorities have been cited by
counsel for appellant in support of his contention that the contract sued upon is void.
Practically all of these cases were considered by the learned judge in an elaborate opinion
rendered in deciding the case in the court below. Many of the authorities cited are based upon
statutes differing in material respects from the statute under consideration in this case, and in
most, if not all, the cases in which a right to recover has been denied the officer was directly
or indirectly interested in the contract at the time the same was awarded. We shall not attempt
to distinguish this case upon fact from the many cases that have been cited. There are but one
or two cases in which the facts are substantially similar to the case at bar.
The court below based its decision upon the recent case of Escondido Lumber Co. v.
Baldwin, 2 Cal. App. 606, 84 Pac. 284. A rehearing was applied for in the Escondido case
before the Supreme Court of California, which was denied; thus the decision has the approval
of all the courts of California. The statute involved in that case is also more nearly like ours
than any other to which our attention has been called. From the Escondido case we quote the
following: From the record it appears that G. V. Thomas was on July 12, 1904, one of the
trustees of the Escondido school district, and at the same time was a stockholder in and
director and general manager of the plaintiff corporation; that on said date the school district
entered into a contract with one S. M. Stewart to construct a schoolhouse for the sum of
$750; that Stewart was at the time solvent and with means to pay for the materials necessary
for use in such house otherwise than from money to arise upon such contract; that when said
contract was entered into no agreement, express or implied, existed between Stewart and said
trustees, or either of them, with reference to the furnishing of the materials, or any portion
of them, necessary for use in such construction; that after the execution of such contract,
Stewart purchased from plaintiff corporation certain of the lumber used in said building
and said Thomas knew of its intended use when delivered.
them, with reference to the furnishing of the materials, or any portion of them, necessary for
use in such construction; that after the execution of such contract, Stewart purchased from
plaintiff corporation certain of the lumber used in said building and said Thomas knew of its
intended use when delivered. The schoolhouse was regularly and properly constructed, and by
said trustees accepted. * * * The refusal of the school superintendent to draw such
requisitions is based on the proposition that the contract was void because in violation of
section 1876 of the political code, which reads: No school trustee or member of any board of
education must be interested in any contract made by the board of which he is a member; and
any contract made in violation of this provision is void.' This contention is untenable. The
contract was valid under the findings of the court when executed. The mere fact that the
contractor, without a previous arrangement or agreement, saw fit to buy of a corporation for
which one of the trustees was an agent certain materials used in the construction of the house
would not render the contract void, voidable, or ordinarily subject it to merited criticism. The
only possible conflicting interest which could in any sense be said to exist, whereby the
trustees' act could be influenced, would be in connection with the acceptance of the building
when completed. But it is not pretended or claimed that the building was not properly
constructed, from which the formal acceptance would be imperative. It must be borne in mind
that the plaintiff corporation had no particular interest in the acceptance of the house. It had a
claim against a solvent purchaser of the lumber. It was not necessary for it even to serve the
statutory notices which are said to amount to an equitable garnishment under the lien law. We
are unable to perceive even a slight interest on the part of a stockholder of plaintiff
corporation, as was the case in Wickersham v. Crittenden, 93 Cal. 29, 28 Pac. 788. The
Supreme Court of the United States in Bank v. Owens, 2 Pet. 529, 7 L. Ed. 508, has said that
no court of justice can in its nature be the handmaid of iniquity.' That office would be
performed were the court, under the circumstances of this case, to refuse its aid in
enforcing the demands of a 'laborer worthy of his hire' against a public corporation, which
has received all to which it was entitled, and which seeks to avoid the payment of an
honest obligation on account of a mere surmise that the possibility of profit from a
subsequent independent contract had an influence upon the minds of the officials
connected with the execution of the original contract. 'A bare suspicion that under the
stimulus of such a contract a party might do some prohibited act would not be sufficient
to justify a court in declaring it void. There must be something in it to indicate that its
natural tendency would be to produce such an effect.' {Casserleigh v. Wood, 14 Colo.
can in its nature be the handmaid of iniquity.' That office would be performed were the court,
under the circumstances of this case, to refuse its aid in enforcing the demands of a laborer
worthy of his hire' against a public corporation, which has received all to which it was
entitled, and which seeks to avoid the payment of an honest obligation on account of a mere
surmise that the possibility of profit from a subsequent independent contract had an influence
upon the minds of the officials connected with the execution of the original contract. A bare
suspicion that under the stimulus of such a contract a party might do some prohibited act
would not be sufficient to justify a court in declaring it void. There must be something in it to
indicate that its natural tendency would be to produce such an effect.' (Casserleigh v. Wood,
14 Colo. App. 274, 59 Pac. 1028.)
In this case, like in the Escondido case, the material and labor furnished by the respondent
to the appellant was satisfactory. There was some dispute between the board of school
trustees and the appellant relative to other portions of the work which under the contract was
submitted to arbitration, but no such question involved that portion of the work performed or
material furnished by the respondent. It must be conceded that the question presented in this
case is a close one, but it seems not to have entered into the consideration of appellant that, if
the contract between himself and respondent was void, his own contract with the board of
school trustees, at least to the extent of the work and labor performed by respondent, would
be subject to the same infirmity. Some of the argument indulged in by the counsel for
appellant, to the effect that there was evidence indicating a prior understanding between
appellant and respondent such that the respondent was an interested party at the time the
contract was executed between the board of school trustees and the appellant would, with
equal force, support the view that appellant's contract was void. If the respondent was
interested, directly or indirectly, in the contract at the time the same was awarded to
appellant, the contract of the latter, according to many of the authorities cited, would be
void.
authorities cited, would be void. The court, however, did not find that the respondent was in
any way interested in the contract at the time appellant's bid was accepted. Appellant will not
be heard in the contention that a certain state of facts would render his contract with
respondent void while at the same time he contends that his own contract with the board of
school trustees is in all respects valid. If the question of the invalidity of the contract sued
upon in this action was being urged by some one else, we might be disposed to give it more
serious consideration.
2. The contract sued on in this case cannot be both valid and void. If the plaintiff could not
recover from the defendant for the value of his labor and material furnished, then the
defendant cannot recover therefor from the school district. (Northport v. Townsite Co., 27
Wash. 543, 68 Pac. 204.) Respondent in his contract with the appellant necessarily was
obliged to look to the latter for payment for the labor and material furnished. He had no claim
upon the school district for the same. As between the parties to this action, we are not
disposed to resolve doubts against the validity of this contract or enter into a consideration of
the niceties of public policy contended to affect the contract sued upon, when to do so, under
our view of the case, would avail neither party to the suit. We agree with the trial judge that
the Escondido case presents a correct exposition of the law under a statute like that involved
in this case; and, as he found no facts which would militate against applying the law of that
case to the one at bar, it is our conclusion that the judgment should be affirmed.
It is so ordered.
____________
36 Nev. 94, 94 (1913) Ex Parte Dickson
[No. 2069]
In the Matter of the Application of ALEXANDER
DICKSON for a Writ of Habeas Corpus.
1. Criminal LawPetit LarcenyGeneric Offense.
Petit larceny as defined by statute is a generic offense and is not an offense included within the crime of
grand larceny.
2. Criminal LawJudgment of Guilty of Petit Larceny Under Indictment for Grand Larceny
VoidJurisdiction.
A judgment entered upon a plea of guilty of petit larceny under an indictment charging grand larceny is
void as in excess of the jurisdiction of the court to enter.
Original proceeding in habeas corpus. Alexander Dickson was permitted to plead guilty to
petit larceny under an indictment for grand larceny. Judgment was entered accordingly, and
he brings habeas corpus to be relieved from imprisonment upon the judgment. Petitioner
discharged from commitment on judgment, but not from indictment.
W. H. Deal and R. Gilroy, for Petitioner:
Larceny is not a crime consisting of degrees, and under an indictment for grand larceny a
district court is without jurisdiction to enter judgment of conviction for petit larceny. (People
v. Price, 7 Pac. 745; People v. Prather, 53 Pac. 259; People v. Nelson, 56 Cal. 77; People v.
Canon, 61 Cal. 476; People v. Sherman, 32 Pac. 879; People v. Chue Ying, 34 Pac. 1080; Ex
Parte Dela, 25 Nev. 346; Rev. Laws, 6640.)
There is a broad distinction between a magistrate and a court. A magistrate, as such,
cannot finally try, hear and dispose of a criminal case and enter final judgment.
Petitioner is not estopped, nor is he questioning the sufficiency of the indictment. He
complains that he is held under a commitment showing on its face that the court had no
jurisdiction to pronounce the judgment entered, which is a ground for discharge on habeas
corpus. (Rev. Laws, 6245.)
Geo. B. Thatcher, Attorney-General, and J. A. Callahan, District Attorney, for
Respondent:
The sufficiency of the indictment cannot be tested by habeas corpus. (Ex Parte Winston, 9
Nev. 91; Ex Parte Breckenridge, 34 Nev. 275; In re Crandall, 34 Wis. 177.)
The petitioner is estopped to question the sufficiency of the indictment in this court.
(Sellers v. People, 6 Ill. 183.)
The district judge, when imposing the sentence upon petitioner, was acting as a magistrate
(Rev. Laws, 6929), and after his plea of guilty of the crime of petit larceny the said court had
jurisdiction of petitioner and of the subject-matter, and had the power to lawfully impose the
sentence here in question, and acted within its power.
This is an original proceeding in habeas corpus. The writ in this case was heretofore
issued upon a duly verified petition alleging that the petitioner was unlawfully confined and
restrained of his liberty by the sheriff of Humboldt County.
The petitioner, Alexander Dickson, as appears from his petition, was indicted by the grand
jury of Humboldt County, and in said indictment was charged with grand larceny. The
indictment is as follows:
The defendant, Alexander Dickson, above is accused by the county of Humboldt, State of
Nevada, of a felony committed as follows, to wit: That said defendant, Alexander Dickson,
on the 6th day of February, A. D. 1913, or thereabouts, and before the finding of this
indictment, at the said county of Humboldt, State of Nevada, did then and there wilfully,
unlawfully, and feloniously steal, take, and carry, lead, drive, and entice away one hog, the
personal property of one S. A. Dedman. All of which is contrary to the form of the statute in
such case made and provided, and against the peace and dignity of the State of Nevada.
Upon being arraigned under the foregoing indictment, the defendant at first entered a plea
of not guilty.
Later, as appears from the record, the defendant with his attorney appeared in court and was
permitted to withdraw his plea of not guilty and enter a plea of guilty of petit larceny.
At a later date, to wit, March 14, 1913, the following proceedings took place, as appears
from the record: This being the time heretofore designated by the court for pronouncing
judgment and sentence upon defendant herein, the said defendant, Alexander Dickson, being
present in court and represented by his counsel, W. S. Bonnifield, Jr., Esq., who was also
present, the said defendant was informed by the court of the nature of the indictment against
him, charging him with having committed the crime of grand larceny, in said county and state
on or about the 6th day of February, A. D. 1913, also of the nature of his plea of not guilty
thereto, of the fact that on the 13th day of March, A. D. 1913, in open court, he was by
permission of the court permitted to withdraw his said plea of not guilty, which plea he did
then and there withdraw; of the fact that he was therefore at said last-mentioned time and
place permitted to plead guilty of petit larceny, an offense necessarily included within the
offense charged in the indictment, which said plea of guilty he did then and there enter; of the
nature of said plea of guilty, and to the effect thereofwhereupon the said defendant was
asked whether he had any legal cause to show why judgment should not now be pronounced
by the court. And no legal cause appearing to the court why judgment should not be
pronounced at this time, it is therefore ordered and adjudged, and it is the judgment of this
court, that you are guilty of the offense of petit larceny, an offense the commission of which
is necessarily included within the offense charged in the indictment, to wit, grand larceny, and
it is the sentence of the law pronounced upon you by the court that for that offense, to wit,
petit larceny, you be confined in the county jail of Humboldt County, Nevada, at
Winnemucca, Nevada, for the term of five months. The said defendant, Alexander Dickson,
was thereupon remanded to the custody of the sheriff of Humboldt County, State of
Nevada, for the serving of said sentence."
was thereupon remanded to the custody of the sheriff of Humboldt County, State of Nevada,
for the serving of said sentence.
The petitioner, after serving the greater part of the time for which he was sentenced, comes
to this court on petition for a writ of habeas corpus to restore him to his liberty.
Counsel for petitioner contend that the judgment and commitment in this case are void for
the reason that the court was without jurisdiction to receive the plea of guilty of petit larceny,
under the indictment, or to pass judgment upon the petitioner, by reason of such plea. In
general, they contend that the crime of petit larceny is not included within the crime of grand
larceny, as set forth in this indictment.
At common law the only subjects of larceny were tangible, movable chattels, something
which could be taken into possession and carried away, and which had some, although
trifling, intrinsic value.
Section 373 of the crimes and punishments act of Nevada is as follows: Every person
who shall feloniously steal, take, and carry away, lead or drive away, the personal goods or
property of another, of the value of fifty dollars or more, shall be deemed guilty of grand
larceny, and upon conviction thereof, shall be punished by imprisonment in the state prison
for any term not less than one year nor more than fourteen years.
Section 374 of the same act is as follows: Every person who shall steal, take, and carry,
lead, or drive away, the personal goods or property of another, under the value of fifty dollars,
shall be deemed guilty of petit larceny, and upon conviction thereof, shall be punished by
imprisonment in the county jail not more than six months, or by fine not exceeding five
hundred dollars, or by both such fine and imprisonment. (Rev. Laws, 6638, 6639.)
The general distinction between grand and petit larceny depends upon the value of the
goods stolen, and it was undoubtedly the intention of the legislature to fix the degree of
crime, and the punishment as well, upon the value of the property stolen, and therefore
the felonious stealing or taking, or carrying away property of the value of $50 or more is
by this act designated "grand larceny," while petit larceny, punishable only by jail
imprisonment, or a limited fine, is feloniously taking the property of another of the value
of less than $50.
degree of crime, and the punishment as well, upon the value of the property stolen, and
therefore the felonious stealing or taking, or carrying away property of the value of $50 or
more is by this act designated grand larceny, while petit larceny, punishable only by jail
imprisonment, or a limited fine, is feloniously taking the property of another of the value of
less than $50.
But an aggravated form of larceny was declared, by the legislature, punishable without
reference to the value of the goods stolen; hence section 375 of the crimes and punishments
act is as follows: Every person who shall feloniously steal, take and carry, lead, drive or
entice away any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one
or more head of cattle or horses, or any sheep, goat, hog, shoat or pig, not his own property
but belonging to some other person; and every person who shall mark or brand, or cause to be
marked or branded, or shall alter or deface, or cause to be altered or defaced, a mark or brand
upon any horse, mare, gelding, colt, cow, bull, steer, calf, mule, jack, jenny, or any one or
more head of cattle or horses, or any sheep, goat, hog, shoat or pig not his own property but
belonging to some other person, with intent thereby to steal the same or to prevent the
identification thereof by the true owner or to defraud; and every person who, with intent to
defraud, or to appropriate to his own use, shall wilfully kill any animal running at large, not
his own, whether branded, marked or not; and every person who shall sell or purchase, with
intent to defraud, the hide or carcass of any animal the brand or mark on which has been cut
out or obliterated, shall be deemed guilty of grand larceny, and upon conviction shall be
punished by imprisonment in the state prison for any term not less than one year nor more
than fourteen years. (Rev. Laws, 6640.)
As will be observed, the asportation of any of the animals named in the last statute quoted
constitutes grand larceny, without reference or regard to the value of the animal. The only
difference between the crime of stealing an animal under section 375 and larceny at common
law is that the statute abolishes the degree of the crime, and makes the stealing of any of
these animals a felony, without regard to the amount of their value.
common law is that the statute abolishes the degree of the crime, and makes the stealing of
any of these animals a felony, without regard to the amount of their value. By the statute
quoted above, the crime of stealing, taking, carrying, leading, driving, or enticing away any of
the animals mentioned therein is grand larceny and not divisible into degrees.
It is admitted in this case, by attorneys for the state, that the petitioner was indicted under
section 375, and they contend that the crime of petit larceny is necessarily included within the
statutory crime of grand larceny as set forth in that section. In fact counsel for the state in this
case assumes two positions as against the perpetuation of the writ: First, that petit larceny is
necessarily included within this statutory crime of grand larceny; and, second, that, the
petitioner having pleaded guilty to the crime of petit larceny, he is estopped from questioning
the jurisdiction of the court, or the validity of the indictment.
As to the first contention it is our opinion that, this being a crime expressly created by
statute, without regard to value, it is not divisible into degrees, and hence the lesser crime of
petit larceny is not included. Under indictments for statutory larceny, such as the one under
consideration, a conviction of petit larceny cannot be had, when under the statute no petit
larceny could be committed under the circumstances charged.
Under the Revised Code of Alabama several articles and chattels are enumerated, the
larceny of which is made a felony without reference to their value, and among which
enumerated chattels is part of an outstanding crop of corn. In the case of Gregg v. State, 55
Ala. 116, it appears that the indictment charged that defendant feloniously took and carried
away fifty ears of corn, a part of an outstanding crop of corn, the property of, etc. The jury
returned a verdict of guilty of petit larceny. The Supreme Court of Alabama in reviewing the
case said: The statute which created this offense defined its grade and declared the
punishment therefor.
There is no statute or principle of the common law which declares that it is a public offense to
take or carry away growing or ungathered corn, under any circumstances other than those
which, under the act of February 20, 1875, make it a felony and punish it as such. It follows
from this that while an outstanding crop of corn or cotton may be the subject of felonious
larceny, it cannot be the subject of petit larceny. The final determination of the court in that
case was that the stealing of any of the enumerated articles was made grand larceny per se, no
matter what may have been the value of the article stolen, and the defendant, having been
charged in the indictment with statutory grand larceny, could not be found guilty of petit
larceny.
In the case of The State v. Davidson, 73 Mo. 428, the defendant having been indicted for
larceny committed in a dwelling house, was found guilty of petit larceny. The Supreme
Court of Missouri, in passing upon the case, said: But the judgment cannot be affirmed on
the merits. On examination of the record, of which the verdict forms part, we find that the
defendant, though indicted for larceny committed in a dwelling house,' was found guilty, not
as charged in the indictment, but merely guilty of petit larceny,' a totally distinct offense, one
which the indictment does not charge. This does not fall within the purview of section 14, p.
513, 1 Wagner's Statutes, whereby a party indicted for an offense consisting of different
degrees' may be found not guilty of the offense charged in the indictment,' but guilty of any
degree of such offense inferior to that charged in the indictment, or of any attempt,' etc.,
because there are no degrees of the offense of larceny committed in a dwelling house.' The
party accused of such offense is either guilty as charged, or not guilty at all, so far as concerns
that particular charge. He is brought before the court to answer to a specific and statutory
charge of larceny committed in a dwelling house,' and not for that offense committed
otherwise or elsewhere. In short petit larceny committed outside of the dwelling house is not
an offense inferior in the degree of larceny committed inside of a dwelling house."
is not an offense inferior in the degree of larceny committed inside of a dwelling house.
By the provisions of our statute the taking of any of the animals enumerated, with intent to
deprive the owner, constitutes grand larceny per se. The value of the animal cuts no figure; it
is not divisible into degrees. Petit larceny is not included either necessarily or otherwise.
The petitioner having raised no objection either to the sufficiency of the indictment or to
the jurisdiction of the court, and having entered a plea of guilty of petit larceny, can he now
question either? The effect of the plea of guilty, generally speaking, is a record admission of
whatever is well charged in an indictment, but if the latter be insufficient, either from a
standpoint of failing to confer jurisdiction or to set forth facts sufficient to constitute a public
offense, the plea of guilty confesses nothing. (Bishop's New Criminal Procedure, vol. 1, 795.)
In a case of this kind the indictment is the basis of the court's jurisdiction, to either pass
judgment or impose punishment, and a plea of guilty does not cure the jurisdictional defects
in an indictment. A plea of guilty amounts to nothing more than an acknowledgment of the
facts charged in the indictment, but whether such facts constitute an offense at law is left
open to be decided by the court. (Crow v. State, 6 Tex. 334.)
In the case of State v. Levy, et al., 119 Mo. 436, 24 S. W. 1026, the attorney for the people
admitted that the indictment in the case was bad, but contended that the defendants, having
pleaded guilty, waived any exceptions to the validity or invalidity of the judgment, and,
having invited the sentence of the court, the judgment and all other proceedings were regular
and the defendant had no right to complain, or be heard to complain, of the judgment
rendered at their instance. The court, speaking through Sherwood, J., said: The effect of such
a plea only amounts to an admission by record of the truth of whatever is sufficiently alleged
in the indictment, and no confession, however large and explicit, will prevent a defendant
from taking advantage of the faults apparent of record.
of record. If no crime is charged in the indictment, then none is confessed by pleading guilty
thereto.
In the case of Fletcher, et al., v. State, 12 Ark. (7 Eng.) 169, it was the contention of the
attorney-general that inasmuch as the defendants plead guilty in the circuit court below they
thereby waived all defects in the indictment. The supreme court in passing upon the case said:
The law has been long settled otherwise. No confession, however large and explicit, can
have any such effect. * * * The defendants here but confessed themselves guilty in manner
and form as charged against them in the indictment; and, if no offense against the law is
charged, they have not confessed themselves guilty of any. But, if the confession was still
broader and embraced a crime, when the indictment fell short of it, and punishment followed,
it would be the punishment of a crime not proceeded for by indictment.
In the case under consideration the petitioner was permitted to plead guilty and was
adjudged guilty of a crime not included in the crime sought to be charged in the indictment.
He was before the court on an indictment for statutory grand larceny, and could be adjudged
guilty only of the crime of which he was accused. The crime of petit larceny, of which he was
adjudged guilty, was a separate and distinct offense not included in the indictment, and hence
the judgment imposed punishment for a crime not proceeded for by indictment.
This court, in the case of Ex Parte Webb, 24 Nev. 242, speaking through Mr. Justice
Bonnifield, said: There are three essential elements necessary to render convictions valid.
These are, that the court must have jurisdiction over the subject-matter, the person of the
defendant, and authority to render the particular judgment. If either of these elements is
lacking, the judgment is fatally defective, and the prisoner held under such judgment may be
released on habeas corpus.
The indictment in this case charged the petitioner with the crime of grand larceny. He was
indicted under section 375 of the crimes and punishment act. Under that indictment he could
be convicted of the crime of grand larceny, or nothing.
indictment he could be convicted of the crime of grand larceny, or nothing. Had the petitioner
gone to trial, and the facts disclosed by the prosecution failed to bear out the allegations of the
indictment, the jury could not have found the petitioner guilty of petit larceny. No set of facts,
no mitigating statements or conditions, could warrant the court in passing judgment upon the
petitioner for a crime not included within the crime for which he was indicted. His failure to
except to the jurisdiction of the court, or to raise, by demurrer or otherwise, defects in the
indictment, and his voluntary act in pleading guilty of the crime of petition larceny, does not,
in our opinion, preclude the petitioner from raising these defects or interposing these
objections at this time. The crime of petit larceny not being included in the statutory crime of
grand larceny where, by statutory enactment, the taking of any one of certain enumerated
animals constitutes grand larceny, the court had no power, and hence no jurisdiction, to
accept the plea of the petitioner to petit larceny, and hence no power or jurisdiction to pass
judgment or impose sentence upon the petitioner.
In releasing the petitioner from the commitment, by reason of which he is now held, it
does not follow that he is released from the indictment which is still pending in the district
court of Humboldt County, and in which indictment the petitioner is charged with the crime
of grand larceny.
It therefore follows that the commitment under which and by reason of which petitioner is
now detained is invalid and void, and petitioner is legally entitled to be discharged therefrom.
It is so ordered.
____________
36 Nev. 104, 104 (1913) Jaksich v. Guisti
[No. 2041]
PETER JAKSICH, Respondent, v. JOHN GUISTI,
Appellant.
1. AttachmentMalicious ProsecutionJudgment Within the Issues.
In an action for damages for malicious prosecution of attachment, a judgment will not be reversed that is
within the issues made by the pleadings and submitted to the court, although the court found as a fact that
the attachment was issued without notice and upon probable cause.
2. AttachmentMalicious ProsecutionPleading and Proof.
Malice and want of probable cause are essential facts to be alleged and proved in an action for damages
for malicious prosecution.
3. AttachmentWrongful IssuanceRemedies.
The defendant whose property has been wrongfully attached has an action under the statute upon the
attachment bond, or, where the attachment was issued maliciously and without probable cause, defendant
may proceed under the common law for malicious prosecution.
4. AttachmentWrongful IssuanceParties to Action.
An action upon an attachment bond may be instituted without joining the sureties.
5. AttachmentWrongful IssuanceMerger in JudgementLiability.
The fact that an attachment lien was merged in a judgment lien and the property attached sold under
execution does not relieve from liability upon the attachment bond.
6. AttachmentWrongful IssuanceRecovery for Malicious Prosecution Bar to Action on
Bond.
A judgment for damages obtained for malicious prosecution of attachment is a bar to further action upon
the bond.
7. JudgmentReversedEffect on Sale Under ExecutionLiabilityMeasure of Damages.
Where property has been sold under execution upon an erroneous judgment which is reversed upon
appeal, the plaintiff is liable in damages to the defendant for the value of the property sold, such value to be
determined as of the time of the execution of sale.
Action by Peter Jaksich against John Guisti for damages for malicious prosecution of
attachment. Judgment for plaintiff for damages for unlawful attachment, and defendant
appeals. Affirmed.
Statement of Facts
This is an appeal from the judgment on the judgment roll alone. The complaint alleged in
substance that defendant, on the 1st day of June, 1912, did falsely and maliciously and
without probable cause swear to an affidavit, in a suit pending in the justice court of Tonopah
township, Nye County, for attachment and, by the filing of an attachment bond, did falsely
and maliciously and without probable cause procure a levy upon and sale of the personal
property of plaintiff to his damage in the sum of $3,000. It is further alleged that, by reason of
a verdict of a jury on appeal from the justice court, it was ascertained and determined that no
part of the debt described in the affidavit for attachment was owing. The complaint further
alleged specific damages to the plaintiff's business standing in the sum of $500, and also
damages to the extent of $500 for being compelled to walk the streets of Tonopah and beg
and borrow from his friends sufficient funds for his business.
To the said complaint defendant filed his answer specifically denying the facts alleged as
special damage, and also denying that the said attachment was made maliciously, falsely, or
without probable cause, and denying further that the verdict of the jury determined that there
was nothing owing to this defendant, plaintiff in the said attachment action.
Defendant, by way of affirmative defense, further alleged that theretofore, on May 17,
1911, this defendant leased to the plaintiff herein the premises known as the U. & I. Saloon
and Boarding House in Tonopah, that a dispute arose between the said parties as to the
payment of the rent reserved by said lease; that defendant refused to pay the rent, amounting
to $80 for the month of May, 1912, and thereupon this defendant was compelled to institute
the said action in which the attachment issued for the purpose of recovering the rent and
obtaining possession of said premises; that upon the advice of his attorney, after a full and
fair statement of his case, he swore to the affidavit for attachment complained of; that
thereafter, on June 10, 1912, judgment was rendered in said justice's court in favor of
defendant for $160, rent for May and June, and $5 damages and for the possession of the
said premises; that on June 26, 1912, plaintiff filed his notice of appeal in said action,
together with an appeal bond for costs, but failed and refused to file a bond staying the
execution of the judgment; that thereafter, on June 29, 1912, an execution sale of the
personal property of this plaintiff was had, after due and legal notice and upon process
duly issued by the said justice's court in said action on June 1S, 1912; that thereafter the
said appeal was heard in the district court, and a verdict was rendered in the following
language: "We, the jury in the above-entitled cause, find for the plaintiff in the restitution
of the premises described in the complaint herein"and, thereupon, judgment was duly
given and made by the district court in favor of this defendant for the possession of the
said premises and property; that defendant acted in good faith in all of his proceedings in
the said cause and solely for the purpose of obtaining possession of his property and what
was rightfully due him; that the property sold under execution from the justice's court
was only sufficient in value to pay the costs awarded to this defendant by said court, and
this defendant was compelled to bid it in for such sum.
thereafter, on June 10, 1912, judgment was rendered in said justice's court in favor of
defendant for $160, rent for May and June, and $5 damages and for the possession of the said
premises; that on June 26, 1912, plaintiff filed his notice of appeal in said action, together
with an appeal bond for costs, but failed and refused to file a bond staying the execution of
the judgment; that thereafter, on June 29, 1912, an execution sale of the personal property of
this plaintiff was had, after due and legal notice and upon process duly issued by the said
justice's court in said action on June 18, 1912; that thereafter the said appeal was heard in the
district court, and a verdict was rendered in the following language: We, the jury in the
above-entitled cause, find for the plaintiff in the restitution of the premises described in the
complaint hereinand, thereupon, judgment was duly given and made by the district court
in favor of this defendant for the possession of the said premises and property; that defendant
acted in good faith in all of his proceedings in the said cause and solely for the purpose of
obtaining possession of his property and what was rightfully due him; that the property sold
under execution from the justice's court was only sufficient in value to pay the costs awarded
to this defendant by said court, and this defendant was compelled to bid it in for such sum.
To such answer plaintiff filed a reply in which he denied there was any rent due, as alleged
in the answer, or that defendant acted in good faith in causing the said attachment to issue, or
that plaintiff ever refused to pay the rent, or that the said property levied upon and sold was
only worth the amount of the costs, or that the sale was conducted fairly and honestly by the
officers in charge of the same, and alleged that the sale was in one lump sum to defendant for
the sum of $115.
The court filed its findings of fact and conclusions of law in which it finds in substance
that the plaintiff was the owner of certain personal property specifically described; that on
June 1, 1912, the defendant did recklessly, and therefore to some extent oppressively, falsely
swear to an affidavit, in a suit then pending in the justice's court of Tonopah township,
county of Nye, State of Nevada, wherein the defendant above named was plaintiff and the
plaintiff above named was defendant; that there was due and owing from said defendant
to said plaintiff in said action the sum of two hundred and ninety {$290) dollars," and did
procure an attachment out of said justice's court and did close the business of said
plaintiff and take from him the possession of said property; that said attachment was not
procured maliciously, and that the defendant acted with probable cause in instituting the
said action, and causing the issuance and levy of the said attachment.
swear to an affidavit, in a suit then pending in the justice's court of Tonopah township, county
of Nye, State of Nevada, wherein the defendant above named was plaintiff and the plaintiff
above named was defendant; that there was due and owing from said defendant to said
plaintiff in said action the sum of two hundred and ninety ($290) dollars, and did procure an
attachment out of said justice's court and did close the business of said plaintiff and take from
him the possession of said property; that said attachment was not procured maliciously, and
that the defendant acted with probable cause in instituting the said action, and causing the
issuance and levy of the said attachment. The court also found the value of the property so
levied upon and sold to be $480; that the plaintiff failed to comply with the covenants of the
said lease for the return of certain personal property of the value of $84.47; that the costs
awarded to defendant in the original action in the justice's court amounted to $58.90, and the
costs on appeal in said action, awarded to defendant, amounted to $48.60.
As conclusions of law the court determined plaintiff entitled to judgment for $480 as the
value of said personal property, less the said costs and the value of the leased property
destroyed, leaving a net judgment of $283.13 in favor of the plaintiff, upon which findings
and conclusions judgment was duly entered.
P. E. Keeler, for Appellant:
The cause of action set forth in plaintiff's amended complaint alleges all the elements
required at common law and under the code for a malicious prosecution, to wit, the false and
malicious attachment of plaintiff's attachment of plaintiff's goods without probable cause.
(Levey v. Fargo, 1 Nev. 415, Fenstermaker v. Page, 20 Nev. 290; Cassinelli v. Cassinelli, 24
Nev. 182; Tisdale v. Major, 68 Am. St. Rep. 278.)
The only duty resting upon an execution creditor, where sale has been had, is to restore
what he has illegally received by virtue of the execution sale.
The judgment in the justice's court in the case of Guisti v. Jaksich was in full force, effect
and virtue at the time of the execution sale and of such character as to protect not only the
officers, but the judgment creditor in proceeding under it. (Freeman, Judgments, 482; Wait,
Fraud. Conv. 2d ed. secs. 443, 444; Thompson v. Reasoner, 7 L. R. A. 496; Brignardello v.
Gray, 17 L. Ed. 693; Tilley v. Bonney, 55 Pac. 798; Purser v. Cady, 49 Pac. 180; 17 Cyc.
1310.)
No modification of a judgment which does not set aside all authority to sell under it will
affect a sale made by its authority before modification.
The said judgment in the justice's court not being void, but, at most, voidable on appeal,
and the judgment creditor therein being thereby protected until reversal, he is not liable to an
action at law for damages, but if he has received any money or property, by virtue of such
execution sale, in excess of the amount awarded on appeal, equity compels him to refund the
benefit of any value which he has thus received in excess of his legal right. (Thompson v.
Reasoner, supra; U. S. Bank v. Bank of Washington, 31 U. S. 8; Reynolds v. Hosmer, 45 Cal.
616; McJilton v. Love, 13 Ill. 486; Gott v. Powell, 41 Mo. 416; Galpin v. Page, 85 U. S.
350-374; Gay v. Smith, 38 N. H. 171; Bryant v. Fairfield, 51 Me. 149; Freeman, Executions,
346-7; Hermann, Executions, 608; Miller v. Adams, 52 N. Y. 409; Palmer v. Foley, 71 N. Y.
106; Dusenbury v. Keiley, 35 N. Y. 383; Hayden v. Shed, 11 Mass. 500; Prentice v.
Harrison, 4 Ad. & El. 852; Marks v. Townsend, 97 N. Y. 590; Day v. Bach, 87 N. Y. 56.)
The execution debtor is, on reversal, only entitled to so much as the creditor received.
(Peck v. McLean, 30 N. W. 759; Eubank v. Ralls, 4 Leigh, 308; Bickerstaff v. Dillinger, 1
Murph. 272; Lovett v. German Ref. Church, 12 Barb. 67.)
The restitution upon a reversal or modification of the judgment is of the goods in specie,
not of its value. (Galpin v. Page, supra.)
Instead, therefore, of being an action for damages for malicious attachment, the case was
shifted by the court in its rulings during the trial and its decisions and conclusions of law
filed herein, to a proceeding for restitution of property sold under an execution issued
upon a judgment which was afterwards modified.
in its rulings during the trial and its decisions and conclusions of law filed herein, to a
proceeding for restitution of property sold under an execution issued upon a judgment which
was afterwards modified.
In so viewing the case the court goes contrary to all the learning with reference to forms of
action which held such a prominent place in the common-law procedure, but which, to a
certain extent at least, has been abrogated by the code practice. It is possible the plaintiff may
be entitled, after laying the case in the form of an action for tort, upon the trial to contend that
he has a right to recover in the mode and under the rulings formerly existing in equity. But, in
any event, the code has not relaxed the rules of pleading that one may recover upon a cause of
action which is not substantially set forth in the allegations of his complaint. In other words,
the plaintiff cannot have relief which is not consistent with the theory of his action, although
the evidence warrants it. (23 Cyc. 817, Mondran v. Goux, 51 Cal. 151; Davis v. Hinchcliffe,
34 Pac. 915; Mertz v. Mapes Co., 63 N. Y. Supp. 455.)
The rule that allegata and probata must correspond has never been abrogated by the
statute. (Stout v. Coffin, 28 Cal. 67.)
The amended complaint does not state facts justifying a judgment against this defendant
for the full market value of personal property sold under execution for about one-fourth of
what the court finds such market value to be. (Teasdale v. Stoller, 54 Am. St. Rep. 703;
Williams v. Hunter, 14 Am. Dec. 597; McFadden v. Whitney, 18 Atl. 62; Collins v. Shannon,
30 N. W. 730; Veitch v. Gebell, 76 Am. St. Rep. 914; Hall v. Leaming, 86 Am. Dec. 213.)
The sole action for wrongful attachment is on the attachment bond. (4 Cyc. 832, 845;
Frantz v. Hanford, 54 N. W. 474; Storz v. Finkelstein, 66 N. W. 1020, 30 L. R. A. 644; Day
v. Bach, 87 N. Y. 56; Mitchell v. Silver Lake Lodge, 45 Pac. 798; Stewart v. Sonneborn, 98
U. S. 187.)
Bartlett & Thatcher, for Respondent.
By the Court, Norcross, J. (after stating the facts):
It is the contention of counsel for appellant that the judgment cannot be sustained for the
reason that this was an action for the malicious prosecution of an attachment, and the court
having found that the attachment was not procured maliciously, and that plaintiff in the
attachment suit, appellant herein, acted with probable cause in instituting the action and
causing the issuance and levy of said attachment, had no other alternative than to render
judgment for the appellantciting Levey v. Fargo, 1 Nev. 415; Fenstermaker v. Page, 20
Nev. 290; Cassinelli v. Cassinelli, 24 Nev. 182.
All authorities agree that malice and want of probable cause are essential facts to be alleged
and proved in an action for damages for malicious prosecution. In this action it appears,
however, that the several pleadings filed by the respective parties set up all the facts growing
out of the action instituted by the appellant herein for the recovery of the leased premises, and
for damages for the rent alleged to be due and the unlawful detention of the premises.
All the facts being before the court, the question arises whether the court, notwithstanding
the failure to establish malice and want of probable cause in the issuance of the attachment,
could, nevertheless, order a judgment entered in accordance with other facts actually found
within the issues made by the pleadings, and which the parties may have and which it would
seem they did actually litigate before the court. There is no bill of exceptions showing that
any objection was made to a consideration of any other questions than those of malice and
want of probable cause, and we are not called upon to determine what should have been the
course pursued by the court below if such objection had been interposed.
In this state the defendant in an attachment suit, where the attachment has been wrongfully
issued, has an action upon the attachment bond for actual damages sustained not exceeding
the amount of the penalty of the bond. If the attachment has been procured maliciously and
without probable cause, he may proceed under the common law in an action for malicious
prosecution.
and without probable cause, he may proceed under the common law in an action for
malicious prosecution. (Mitchell v. Silver Lake Lodge, 29 Or. 294, 5 Pac. 798.)
In the latter action all damages that might be recovered in an action upon the bond may be
recovered, but the defendant in the attachment suit is not limited in his right to recover
damages in his action for malicious prosecution of the attachment, as he is in the case of an
action upon the bond for a wrongful attachment merely. (Hall v. Forman, 82 Ky. 505.)
An action upon the attachment bond may be instituted without joining the sureties. (Bank
v. Mayer, 100 Ga. 87, 26 S. E. 83; 4 Cyc. 850.)
The fact that the attachment lien was merged in the judgment lien, and that the property
attached was sold under execution upon the judgment, does not relieve from liability upon the
attachment bond. (Bennett v. Brown, 20 N. Y. 99; Ball v. Gardner, 21 Wend. 270.)
Where an action has been brought for the malicious prosecution of an attachment and a
judgment for damages recovered, it has been held that no further right of action exists upon
the bond, for the reason that all damages that could be recovered upon the bond may be
recovered in the other action. (Hall v. Forman, supra.)
There is another element of liability shown by the facts of this case. The attachment could
only be justified upon the allegation in the complaint in the attachment suit that rent was due
and unpaid by the terms of the lease. It appears from the opinion of the learned judge of the
court below embodied in the record that the terms of the lease required that the rent be paid
three months in advance, and it was doubtless this provision which occasioned a judgment for
rent by the justice's court which was not awarded upon the trial upon appeal. Be that as it
may, no allowance was made in the judgment upon appeal for any rent alleged to be due, and
which was awarded to the plaintiff in the judgment rendered in the justice's court from which
the appeal was taken. While the judgment upon appeal was in favor of the plaintiff for the
restitution of the leased premises, the same is in the justice's court, the disallowance of
any judgment for rent or damages was such a modification of the judgment as to make it
inequitable to allow to stand the sale of the attached property upon execution upon the
judgment entered in the justice's court.
favor of the plaintiff for the restitution of the leased premises, the same is in the justice's
court, the disallowance of any judgment for rent or damages was such a modification of the
judgment as to make it inequitable to allow to stand the sale of the attached property upon
execution upon the judgment entered in the justice's court. (Martin v. Victor M. Co., 19 Nev.
197). See, also, section 430, Drake on Attachment.
Freeman in his work on Judgments, sec. 482, says: Upon the reversal of the judgment
against him, the appellant is entitled to the restitution from the respondent of all the
advantages acquired by the latter by virtue of the erroneous judgment. * * * Whether the
defendant may elect to affirm the sale, notwithstanding the reversal of the judgment, and
recover of the plaintiff the damages resulting therefrom, is an unsettled question. In
California the defendant may, at his election, affirm the sale, and recover of plaintiff the value
of the property lost thereby. (Reynolds v. Hosmer, 45 Cal. 630.)
This court in Martin v. Victor M. Co., supra, quoted from the California decision last cited
the following: The doctrine formerly prevailed that whenever a sale was made under an
erroneous decree or judgment, which was afterwards reversed, the court rendering the
judgment having jurisdiction of the person and subject-matter, the purchaser acquired a good
title, notwithstanding the reversal. It was enough, it was said, for the buyer to know that the
court had jurisdiction, and exercised it; and that the judgment, on the faith of which he
purchased, was made, and authorized the sale. With the errors of the court he had no concern.
The former owner was then turned over to an action for damages to make good the loss of his
property. That doctrine is now so far modified that, if the plaintiff in the judgment be himself
the purchaser, the former owner, after reversal, may at his election, either have the sale set
aside and be restored to the possession, or have his action for damages.
We need not determine what rule should have applied if it had been found that the
property purchased at the execution sale by the appellant was in his possession at the time of
the trial in the court below. If, prior to the trial, he had disposed of it, he was unquestionably
liable for its value to the plaintiff in the attachment suit. It does not appear that there was any
offer to restore this property, or that there was any request for a finding as to the possession,
or a request for a modification of the judgment directing its restoration in lieu of the judgment
for its value.
Upon the question of the measure of damages, we think it well settled that it is the value of
the property at the time of the execution sale, rather than the amount for which the property
may have been sold.
As said in Smith v. Zent, 83 Ind. 87, 43 Am. Rep. 61: The amount received at such sale
may not, however, compensate the owner for the loss sustained, and hence it is equally well
settled that where personal property in sold upon a judgment, which is afterwards reversed,
the owner may recover the value of the property sold from the judgment plaintiff. (Reynolds
v. Hosmer, 45 Cal. 616; South Fork Canal Co. v. Gordon, 2 Abbott, U. S. 479; McJilton v.
Love, 13 Ill. 486, 54 Am. Dec. 449; Bank of United States v. Bank of Washington, 6 Pet. 8, 8
L. Ed. 299; Freeman, Judgments, 482.)
It would seem from the record in this case that the judge of the court below, after
determining that there was not malice or want of probable cause in the procurement of the
attachment, proceeded and tried the cause upon the theory of the liability of the defendant to
respond in damages to the extent of the value of property wrongfully attached and
subsequently sold upon execution to satisfy a money judgment, which upon appeal was, in
effect, set aside. The right of the court to enter such a judgment, in view of the nature of the
action, is contested by counsel for appellant in an exceptionally able and exhaustive brief. We
have reached the conclusion to affirm the judgment, notwithstanding the nature of the
action, because, as we have before intimated, the questions determined by the court
could in the absence of objection have been litigated in the action, for the action for
damages for the alleged malicious prosecution of the attachment included a consideration
of all the facts upon which the judgment actually entered was based.
conclusion to affirm the judgment, notwithstanding the nature of the action, because, as we
have before intimated, the questions determined by the court could in the absence of
objection have been litigated in the action, for the action for damages for the alleged
malicious prosecution of the attachment included a consideration of all the facts upon which
the judgment actually entered was based. It was very natural for the court to seek a final
determination of the controversy between the parties and to avoid a multiplicity of suits with
attendant costs.
It was to the advantage of the litigants that their rights be determined in that action, and
that the legal effect of the facts established be declared rather than to require a resort to
another suit where the change in the character of the action would be more of form than of
substance.
Where upon appeal it is simply a question of whether the judgment is supported by the
pleadings and findings, a liberal rule should prevail; and if it appear that the judgment is in
accordance with facts found, which findings were appropriate to the issues framed by the
pleadings and litigated in the action, we think the judgment ought to be affirmed.
Judgment affirmed.
____________
36 Nev. 115, 115 (1913) Miller v. Miller
[No. 2055]
ALEX. McVEIGH MILLER, Petitioner, v. MITTIE POINT MILLER, and HON. E. J. L.
TABER, as District Judge of the State of Nevada, in and for the Fourth Judicial District,
Respondents.
1. Appeal and ErrorExceptionsSettlement of Bill or StatementRefusal of Trial
JudgeProcedure.
An application to the supreme court, under the provisions of section 374 of the civil practice act (Rev.
Laws, 5316), to have exceptions settled according to the facts, upon the ground that the trial judge has
refused to so settle the same, to be sufficient should specifically set forth: First, the exception during the
trial or proceeding to a ruling actually made; second, the facts supporting the exception; third, that such
exception and the facts supporting it were in truth and in fact presented to the trial judge for settlement and
allowance; fourth, the actual settlement by the trial judge, or judicial officer, of the statement; fifth, that on
the settlement of the statement or bill the trial judge, or judicial officer, has failed or refused to allow the
exception as stated; and, sixth, that the exception refused by the trial judge, and which the applicant seeks
to prove, is material to and affects the substantial rights of the parties.
2. Appeal and ErrorBill of ExceptionsSettlement by the Supreme CourtProcedure.
An application to the supreme court to have settled certain alleged exceptions according to the fact, is
premature if made before actual settlement made by the trial judge.
3. Appeal and ErrorStatement or Bill of ExceptionsSettlementProvince of Supreme
Court.
This court cannot require the trial court to add or take from the statement or bill of exceptions as settled
by the trial judge. Upon a proper showing that an exception was insisted upon before the trial court and
refused, the supreme court, if the exception is clearly proven, will determine the exception and ruling and
the facts applicable thereto to be a part of the record on appeal, not in the nature of an amendment to the
bill or statement as settled by the trial judge, but with the same force and effect.
4. Appeal and ErrorRefusal of Trial Judge to Settle StatementProcedure in Supreme
Court.
If a trial judge, having had a statement or bill of exceptions presented to him, refuses to settle the same,
the aggrieved party may proceed in the supreme court under section 392 of the civil practice act (Rev.
Laws, 5334).
Original proceeding by Alex. McVeigh Miller to have settled a sttement on appeal in the
case of Alex.
McVeigh Miller v. Mittie Point Miller, by inserting therein certain matters stricken therefrom
by Hon. E. J. L. Taber, the trial judge, and by striking therefrom certain matters required by
said respondent judge to be inserted therein. Application denied.
Augustus Tilden, for Petitioner:
A statement on appeal is distinguishable from a bill of exceptions in this, that the second is
the mode of perpetuating a specific exception, while the first is intended to embody in the
record all of the evidence introduced on the trial. (3 Ency. Pl. & Pr. 384, note 3.)
To allow an exception is one thing; to settle the statement is another. The first is the
language of the California code (C. C. P. sec. 652); the second, of our own practice act (Rev.
Laws, 5333).
Counsel's entire case is based on California decisions; and it ignores the fundamental
distinction between the California and Nevada provisions.
Section 5333 provides that if a judge * * * refuses to settle the statement in accordance
with the facts, that section may be invoked.
To settle the statement is not alone to allow an exception or exceptions, but also to settle
the facts upon which the exception or exceptions are to stand or fall.
The learned judge admits that to strike out the disputed minutes would, as he believes, be
striking out something that is true, and he says that he thinks unquestionably that he had the
minutes in mind when he wrote the opinion. He says that it might have been a superfluous
thing for counsel to introduce those minutes in the face of the stipulation read into the record,
to wit: The Court: Counsel have agreed then that the court may, without objections from
either side, have the right to examine any of the records in either case which may be deemed
necessary. He says that he remembers using Reporter B. M. Wilson's transcript of the
proceedings, in that part of his decision relating to laches, and he thinks its recitals are the
"absolute truth" as far as they go.
thinks its recitals are the absolute truth as far as they go.
He says that the recital: And the court read and used all of such evidence, papers and
proofs in this cause introduced by either party hereto in rendering its decision, opinion and
findings hereinis in accordance with the fact, as far as it goes; because in rendering my
decision I had that whole record before meall the affidavits and everything. My recollection
is that I considered everything, though there might have been some of the minutes that I did
not consider. And he says that to expunge the matter quoted would be putting out of the
record something that is the truth according to the way I have explained it.
But, says counsel, this proceeding is premature, because the statement was not settled by
Judge Taber, and it is not to be supposed that he will not settle it in accordance with the facts
until it is settled.
This is a plea in abatement, which has been waived by pleading to the merits; but what is
the judge's written opinion, attached to the petition, if not a settlement?
And has not Judge Taber, from his own lips, in the language of section 5333, refused to
settle the statement in accordance with the facts?
What of that part of the section which provides that the statement when proven must be
certified by the chief justice * * * and filed, * * * and when so filed it shall have the same
force and effect as if settled by the judge who tried the cause?
The averments of the petition have been established without conflict. We have established
that the rulings of the lower court complained of in the matter of settlement suppress the
truth. To hold us without remedy would be as effectually to deny us the right of appeal as to
wipe out the sections governing appeal. We cannot conceive that any stress of business in this
court, whatever its magnitude, would justify such a course.
Stevens & Van Pelt, for Respondent.
This is an application under section 374 of the civil practice act (Rev. Laws, 5316), in
which application petitioner, Alex. McVeigh Miller, through his attorney, Augustus Tilden,
Esq., petitions this court as follows:
Petitioner respectfully prays that upon such notice to respondent Hon. E. J. L. Taber and
to respondent Mittie Point Miller, to be served upon her counsel, she being now in
Massachusetts or West Virginia, as to the court shall seem adequate, petitioner be permitted
to prove his said statement and exceptions, and that the matters required by respondent Hon.
E. J. L. Taber to be stricken from said statement be permitted to stand, and that said statement
be settled without the insertion of the matter required by respondent Hon. E. J. L. Taber to be
inserted therein; and that petitioner have such other, different or additional relief as to the
court may seem just.
The section of the statute under which this application is made, and the only section under
which such an application could be made, is found in section 374 of the civil practice act, and
this section must be read in connection with section 373 of the civil practice act (Rev. Laws,
5315). They are as follows:
373. An exception is an objection upon a matter of law to the decision made by a court,
judge, referee, or other judicial officer, in an action or proceeding. The exception must be
taken at the time the decision is made, except as provided in the next section. No exception
shall be regarded on a motion for a new trial or on an appeal unless the exception be material
and affect the substantial rights of the parties. (Rev. Laws, 5315.)
374. The point of the exception shall be stated and may be delivered in writing to the
judge or taken by the stenographic reporter of the case, if there be one, or, if the party require
it, shall be written down by the clerk. When delivered in writing or written down, as above, it
shall be made conformable to the truth, or be at the time corrected until it is so made
conformable.
corrected until it is so made conformable. If the judge shall in any case refuse to allow an
exception in accordance with the facts, any party aggrieved thereby may petition the supreme
court for leave to prove the same, and shall have the right so to do, in such mode and manner
and according to such regulations as the supreme court may prescribe, or by rules impose, and
such exceptions as are allowed by said supreme court shall become a part of the record of the
case. (Rev. Laws, 5316.)
The provisions of the statute above quoted must not be confounded with section 392 of the
civil practice act (Rev. Laws, 5334), which bears upon the refusal of a judge or judicial
officer to settle a bill of exceptions. The statute reads as follows:
392. When the decision excepted to was made by a referee or any judicial officer other
than a judge, the statement shall be presented to such referee or judicial officer, and be settled
and signed by him in the same manner as it is required to be presented to, settled, and signed
by a court or judge. A judge, referee, or judicial officer may settle and sign a statement after
as well as before he ceases to be such judge, referee or judicial officer. If such judge, referee
or judicial officer, before the statement is settled, dies, is removed from office, becomes
disqualified, is absent from the state, or refuses to settle the statement, or if no mode is
provided by law for the settlement of the same, it shall be settled and certified in such manner
as the supreme court may, by its order or rules, direct. (Rev. Laws, 5334.)
After relating the facts relative to the several orders of the court appealed from, and the
filing and submission of a proposed statement on appeal, and the filing and service of
amendments thereto, the petition reads as follows:
That thereafter and on or about the 8th day of December, 1912, said proposed statement
and proposed amendments were submitted to respondent Hon. E. J. L. Taber, as judge of said
district court for settlement, and on or about the 20th day of December, 1912, the said
respondent rendered a written decision in the matter of said settlement, a copy of which
written decision marked 'Exhibit B' is hereto attached and made a part hereof.
on or about the 20th day of December, 1912, the said respondent rendered a written decision
in the matter of said settlement, a copy of which written decision marked Exhibit B' is hereto
attached and made a part hereof.
That by said decision petitioner is deprived of the benefit of his exceptions in said matter
duly reserved, in the following particulars:
Petitioner relied and relies on the failure of respondent Mittie Point Miller to bring her
motion for an order vacating default and judgment on for hearing within the six months
period prescribed by law, and upon her neglect and refusal to bring the same on for hearing at
the first available opportunity thereafter, and to establish his exception based on said
circumstances set forth in his said proposed statement at pages 92 and 95, inclusive, the
minutes of the said court showing that sessions thereof were held, presided over by Hon.
Peter J. Somers, a district judge of said state, by request of the respondent Hon. E. J. L. Taber,
on the 30th day of June, 1911, and the 1st day of July, 1911, both dates being within said six
months period, and on September 25, 1911, and December 19, 1911, both of said
last-mentioned dates being after the expiration of said six months period, and also set forth
the formal requests in writing made by respondent Hon. E. J. L. Taber to Hon. Peter J.
Somers, so to preside, showing that there was no legal or any reason why such motions could
not, without impropriety or error, have been heard by Hon. Peter J. Somers.
That the contents of said minutes were actually and constructively known to respondent
Hon. E. J. L. Taber, and said minutes bore his signature at the time that he made and gave the
orders from which petitioner is seeking to appeal, and the said letters of request were written
by said Hon. E. J. L. Taber, and there is no controversy as to the facts herein set forth;
nevertheless and although respondent Hon. E. J. L. Taber comments and specifically passes
upon said question of laches in his written opinion upon which said orders are based and
makes specific reference to the said correspondence between himself and Hon.
passes upon said question of laches in his written opinion upon which said orders are based
and makes specific reference to the said correspondence between himself and Hon. Peter J.
Somers, he by his decision in the matter of the settlement of said proposed statement on
appeal requires all of said minutes and letters of request to be stricken therefrom, thereby
depriving petitioner of the benefit of, and to all intents and purposes denying him, his
exception in the premises.
That it is also an uncontested fact that at the said December 19, 1911, session of the said
court petitioner called to the court's attention, Hon. Peter J. Somers presiding, the pendency
of said motion to vacate said default and judgment and called the same up for hearing, and
that the judge presiding then and there said from the bench that he would hear said motion if
respondent Mittie Point Miller would consent thereto; but said respondent, by her counsel,
refused to consent thereto and the court thereupon, upon the sole ground of defendant's
refusal to consent thereto, refused to hear the same; all of which is set forth at page 95 of said
proposed statement on appeal, but respondent Hon. E. J. L. Taber by his decision in the said
matter of settlement requires the same to be stricken from said statement, thereby depriving
petitioner of the benefit of, and to all intents and purposes denying him, his exceptions in the
premises.
The petitioner's said proposed statement on appeal, together with the matter proposed by
amendment and accepted by petitioner, embodies all oral evidence and documentary proof
and necessary reference to every circumstance before respondent Hon. E. J. L. Taber, and
upon which he bases his decision and order vacating the default and judgment; and contains
the words, and the court read and used all of such affidavits, papers and proofs in this cause
introduced by either party thereto in preparing and rendering its decision, opinion and
findings herein,' but the respondent Hon. E. J. L. Taber, by his decision in said matter of
settlement not only requires that the above-quoted words be striken from the statement
on appeal, but requires that the following words be inserted therein, to wit: 'Except those
matters and proceedings within the personal knowledge of the judge who presided at the
trial of said case No.
decision in said matter of settlement not only requires that the above-quoted words be striken
from the statement on appeal, but requires that the following words be inserted therein, to wit:
Except those matters and proceedings within the personal knowledge of the judge who
presided at the trial of said case No. 89, and before whom the said motion to amend the
record and the said motion to vacate default and decree were heard and taken into
consideration by him in making the said orders.' That by striking out said first-mentioned
matter and causing to be inserted said last-mentioned matter said statement on appeal is made
to justify the impression and construction that other material, relevant and competent facts
and circumstances were before and moved the court in making the orders sought to be
appealed from, but which alleged and pretended facts and circumstances are not proposed by
amendment or in any wise brought to petitioner's notice, and no opportunity is given to insert
them in said statement or be heard as to their propriety as part of said statement, but if the
action of respondent, Hon. E. J. L. Taber, is permitted to stand, this honorable court may be
compelled to take the position that, notwithstanding the manifold errors appearing in the
record and the divers particulars of insufficiency of the evidence to justify the orders sought
to be appealed from, such defects are cured by said alleged and pretended other facts and
circumstances not appearing in the statement on appeal, whereby petitioner will be deprived
of the benefit of and denied his exception as to every error and particular of insufficiency of
evidence in the record, and will to all intents and purposes be denied his right of appeal.
That by respondent Hon. E. J. L. Taber's decision in said matter of said settlement on
appeal respondent is required to insert in said statement the following:
The record and files of this court fail to show that the reporter's transcript, of which the
foregoing is a copy, was admitted in evidence at the special hearing in May, 1912. The said
transcript, however, is referred to in the decision of the court, and for that reason the same
is permitted in this statement.
in the decision of the court, and for that reason the same is permitted in this statement. At the
time said transcript was offered in evidence by Mr. Tilden, for the plaintiff, at the special
hearing in May, 1912, the defendant objected to its admission, on the ground that the hearings
on the motions had already been submitted, but stated that, should such evidence be admitted,
defendant desired to be given an opportunity to offer evidence tending to rebut any inference
of laches or delay which might be drawn from the proceedings as reported in said transcript.
The matter seems to have been definitely disposed of by the court at such special hearing in
May, 1912, and the defendant was therefore precluded from offering any testimony at that
time tending to rebut any inference of laches or delay which might be inferred from the
proceedings as recorded in said transcript. This court at all times has considered the
contention of plaintiff that defendant was guilty of laches and delay without any merit, and
the said transcript was considered by this court chiefly because of the representations shown
by said transcript to have been made by Attorney Busteed to the court at that time, Judge
Somers presiding.'
That said quoted matter embodies respondent Hon. E. J. L. Taber's reasons for his rulings
in the matter of said settlement, e.g., the said transcript, however, is referred to in the
decision of the court, and for that reason the same is permitted to remain in this statement,'
and argumentative observations not embodying any fact, e.g., the matter seems not to have
been definitely disposed of by the court at such special hearing in May, 1912, and the
defendant was therefore precluded from offering any testimony at that time tending to rebut
any inference of laches or delay,' and this court at all times has considered the contentions of
plaintiff that defendant was guilty of laches and delay without merit, and the transcript was
considered by the court chiefly because of the representations shown by said transcript to
have been made by Attorney Busteed to the court at that time, Judge Somers
presiding'none of which matters has any place in the statement on appeal, and is
prejudicial to petitioner's rights on appeal."
Judge Somers presiding'none of which matters has any place in the statement on appeal,
and is prejudicial to petitioner's rights on appeal.
To the petition, part of which is set forth above, respondents have interposed a demurrer
upon three separate grounds:
FirstThat said petition does not state facts sufficient to constitute a cause of action.
SecondThat said petition does not state facts sufficient to show that petitioner is
entitled to any relief whatsoever.
ThirdThat it does not appear from said petition that there has been any refusal by the
respondent, E. J. L. Taber, as judge or otherwise, to allow an exception in accordance with
the facts or at all.
The petition in this case, we think, falls within the rule laid down by the Supreme Court of
California in the Matter of the Estate and Guardianship of Horace Hawes, et al., Minors, 68
Cal. 414, 9 Pac. 457. The application in that case was brought under a provision of a code of
civil procedure almost identical to that of ours, and the court there said: In opposition to the
application it is contended that the petition should set forth the exceptions taken and the
evidence in support thereof. We think this the proper practice, and as the petition in this case
does not show any of these facts, it should be denied.
By the prayer of the petition, petitioner seeks to invoke the power of this court to prove
his said statement and exceptions, and that the matters required by respondent Hon. E. J. L.
Taber to be stricken from said statement be permitted to stand, and that said statement be
settled without the insertion of the matter required by the respondent Hon. E. J. L. Taber to be
inserted therein.
The statute (sec. 374), as set forth above, provides only that if the judge shall for any cause
refuse to allow an exception in accordance with the facts, any party aggrieved thereby may
petition the supreme court for leave to prove the same, but petitioner seeks to prove his
statement and exceptions and that the statement be settled without certain insertions.
settled without certain insertions. We think this is a matter that this court has no power to do.
Where a court fails or refuses to settle the statement, or, if there were no mode provided by
law for the settlement of the same, it might be settled by this court in such a manner as the
rules of the court might provide, or as might be directed by this court, but this is not a case
where the judge, in so far as the record discloses or the petition asserts, refused to settle the
statement, and if it be anything it is only a case in which certain exceptions contended for by
petitioner have not been allowed.
If the trial court, in the act of settling a statement, should refuse to allow an exception
which had been duly taken during the course of the trial, it would be the duty of the
petitioner, who sought to avail himself of the provisions of the statute (section 374, Civil
Practice Act), to set forth the exception and also the evidence in support thereof in his
petition. In this latter respect petitioner has failed in so far as his application goes.
In order for an application to be sufficient, under the provisions of our code, it should
specifically set forth certain requisites: First, the exception taken during the trial or
proceeding to a ruling actually made; second, the facts supporting the exception; third, that
such exception and the facts supporting it were in truth and in fact presented to the trial judge
for settlement and allowance; fourth, the actual settlement by the trial judge, or judicial
officer, of the statement; fifth, that in the settlement of the statement or bill the trial judge, or
judicial officer, has failed or refused to allow the exception as stated; and, sixth, that the
exception refused by the trial judge, and which the applicant seeks to prove, is material to and
affects the substantial rights of the parties.
The application in this case is lacking in the requisites as set forth, and, moreover, it does
not appear that there has as yet been an actual settlement of the bill of exceptions by the trial
judge. The application sets forth that on or about the 20th day of December, 1912, the
respondent Hon. E. J. L. Taber rendered a written decision in the matter of the settlement, and
petitioner attaches to his application a copy of a part of that decision, but nowhere does he
state in his application, nor is it stated in the so-called decision by the trial judge, that the
statement was actually or is actually settled.
application a copy of a part of that decision, but nowhere does he state in his application, nor
is it stated in the so-called decision by the trial judge, that the statement was actually or is
actually settled. We know of no reason why a decision should be rendered by a trial judge in
the settlement of a bill of exceptions, but in a case of this kind if the trial judge saw fit to
render an opinion or decision in the settlement of such a bill, it cannot be regarded as a final
settlement of the bill, such as is contemplated by statute, and until a final settlement of a bill
has been performed by the trial judge no party is actually aggrieved and the matter is still
open for the consideration and approval of the trial judge.
But this court cannot be called upon under this provision of the statute to strike from or
add to any record or proceeding of the trial court. It is not within the province of this court,
under the provisions of the statute, to enlarge upon or detract from a bill of exceptions or
statement on appeal. The sole purpose and aim of the statute is to permit a party aggrieved,
under a proper application, to prove an exception actually taken to a ruling actually made, and
when so proven the exception and ruling and the facts applicable thereto become a part of the
record on appeal, but not in the nature of an amendment to the bill of exceptions or statement
on appeal as settled by the trial court. It should affirmatively appear that the exception to be
proven or allowed is in accordance with the facts, and that a proper application has been
made to the trial court to allow such exception, and that the judge of the trial court, having
had the application presented to him and having considered the same, has refused to act as
requested.
That a trial judge has not settled a bill of exceptions or statement on appeal precisely as
proposed or not in accordance with the facts does not in itself constitute such a refusal as is
contemplated by the statute. Before an applicant's petition can be considered good to
authorize this court in allowing him to prove an exception, the desired exception must have
been insisted upon by the party and the trial judge's refusal must clearly appear.
desired exception must have been insisted upon by the party and the trial judge's refusal must
clearly appear. (Plano Mfg. Co. v. Person, 11 S. D. 539, 79 N. W. 833.)
The provision of the civil practice act of California (section 652) is almost identical to that
of ours in this respect. It is as follows: If the judge in any case refuse to allow an exception
in accordance with the facts, the party desiring the bill settled may apply by petition to the
supreme court to prove the same. The application may be made in the mode and manner, and
under such regulations as that court may prescribe; and the bill, when proven, must be
certified by the chief justice as correct, and filed with the clerk of the court in which the
action was tried, and when so filed it has the same force and effect as if settled by the judge
who tried the cause.
The Supreme Court of California, speaking through Mr. Chief Justice Beatty, in Re
Dolbeer's Estate, 147 Cal. 359, 81 Pac. 1098, relative to this subject, said: It cannot be held
that a judge has refused to allow an exception, unless it is shown that he has been properly
requested to allow it, and therefore the petition for leave to prove an exception should show
that the petitioner has taken the proper steps to procure the settlement of the bill of
exceptions, that he included in his proposed bill a statement of the particular exceptions
which he desires to prove, and that the judge in settling the bill refused to allow that he had
taken such exception.
It is our judgment that it was never intended that this particular statute (sec. 374, Civil
Practice Act) should afford relief where a trial court has refused to settle a bill of exceptions.
In that case it is our opinion that another remedy should be resorted to. It is not within the
province of this court to compel a trial court, under a proceeding of this kind, to insert in a
bill of exceptions any matter which in the first instance he has refused to do, nor to eliminate
matters which he has previously inserted. The sole object of the statute is to afford relief to a
party aggrieved when a trial judge has refused to allow an exception according to the facts;
that is, where he has refused to admit by allowance that a particular ruling was made and
excepted to when in fact it was made and excepted to.
to allow an exception according to the facts; that is, where he has refused to admit by
allowance that a particular ruling was made and excepted to when in fact it was made and
excepted to. If a trial judge, having had a bill of exceptions or statement on appeal presented
to him, refuses to settle the same, the aggrieved party may proceed in this court under section
392 of the civil practice act, but if the trial judge, having had a bill of exceptions or statement
on appeal presented to him, settles the same, the bill so settled is complete and unchangeable
as to every exception therein contained. If either party to the action feel aggrieved by reason
of matters either inserted in or omitted from the statement, that party may apply to this court
under section 374 of the civil practice act to prove either certain exceptions were reserved to
rulings actually made, or that no such rulings or no such exceptions were made or reserved;
and upon the hearing the party may prove and have allowed matters material to the ruling or
the exception. If the exception or exceptions be proven they then become a part of the record
in the case with the same force and effect as the statement settled by the trial judge, but, as we
have already stated, before the aggrieved party can proceed, his application to this court must
contain certain specific requisites and allegations already enumerated.
The application in this case is subject to all of the grounds stated in the demurrer.
Moreover, it is subject to the objection that the application is premature.
For the foregoing reasons the application will be denied.
It is so ordered.
____________
36 Nev. 129, 129 (1913) Long v. Tighe
[No. 1920]
C. W. LONG and H. F. BARTINE, Appellants, v. THOMAS TIGHE, HARRY WHEELER,
and WILLIAM JACOBS, Respondents.
1. ProcessServiceProof of Service.
Where personal service was had upon a nonresident, a certificate of the notary who administered the
affidavit to the person making the service is prima facie proof of official character, and cannot be
overturned in the absence of rebutting evidence.
2. JudgmentCollateral AttackVoid Judgments.
A void judgment may be collaterally attacked.
3. JudgmentEntry of JudgmentAuthority of ClerkService by Publication.
Rev. Laws, 5236, subd. 3, providing that, in actions where service is by publication, the plaintiff upon the
expiration of the time within which the defendant is required to answer may apply for judgment, and the
court shall thereafter require proof of publication, does not govern in actions where personal service is had
upon a nonresident, even though the statute declares such service equivalent to publication, for there could
be no proof as in case of publication, and the obvious intent of the statute was to protect the rights of
nonresidents; hence a default in such case may be entered by the clerk.
4. AttachmentReturnEffect.
Where a judgment was had upon attachment of property of a nonresident and the personal service of
summons, it cannot be presumed, as against the sheriff's return of service of the attachment, that there was
an occupant upon the land attached.
5. ExecutionSalesWho May Question.
Where land was sold upon execution, persons not tracing their title through the judgment debtor cannot
question the sufficiency and validity of the sheriff's deed.
Appeal from the Seventh Judicial District Court, Esmeralda County; Peter J. Somers,
Judge.
Action by C. W. Long and H. F. Bartine against Thomas Tighe, Harry Wheeler, and
William Jacobs. From a judgment and order sustaining a motion for nonsuit, plaintiffs appeal.
Reversed and remanded.
Thompson, Morehouse & Thompson, for Appellants:
The certificate, under seal of the notary of California, to the affidavit of service of
summons was sufficient to admit the summons in evidence, as due service upon
Brunswick.
36 Nev. 129, 130 (1913) Long v. Tighe
admit the summons in evidence, as due service upon Brunswick. (Comp. Laws, 2728; Pardee
v. Schanzlin, 86 Pac. 812.)
The clerk had the right to enter the default and the judgment. (Comp. Laws, 3244, 3247;
Jennings v. Rocky Bar, 70 Pac. 136; Hunter v. Wenatchee, 79 Pac. 40.)
At most the entry of default and judgment by the clerk would only be an irregularity, and,
the court having jurisdiction, the judgment is not subject to collateral attack. (Estate of
Newman, 75 Cal. 213; Alderson v. Bell, 9 Cal. 231; Mibetule v. Aten, 37 Kan. 33; Keybers v.
McConeber, 67 Cal. 399; Peel v. Strauss, 30 Cal. 678; 3 N. Y. S. 122; Heinrich v. Englund,
34 Minn. 395; Brunded v. Egbert, 30 Atl. 503.)
The sheriff was acting under his official oath, and, in the absence of any showing to the
contrary, we must presume that he did his duty. The presumption is that every public official
does his duty. This applies with full force to the official acts of a sheriff. (Cyc. vol. 35, 1827;
Cyc. vol. 16, 1076.)
Detch & Carney, for Respondents:
The certificate of service by one Caldwell at Los Angeles fails to show what age the party
making the service was at the time the service was made. The failure to so state was fatal.
(Sherwin v. Sherwin, 33 Nev. 321; Lyons v. Cunningham, 4 Pac. 938; French v. Ajax, 87 Pac.
359; Howard v. Galloway, 60 Cal. 10; Maynard v. MacCrillish, 57 Cal. 355.)
The certificate of the notary public in California to the affidavit of service of summons
was not sufficient. There is no statute in this state similar to section 1875 of the code of civil
procedure of California enumerating matters of which courts will take judicial notice, among
them being the seal of a notary public. Our statutes being silent as to what the courts will take
judicial notice of, and failing to state that the seals of notaries public outside the state shall be
prima facie of the genuineness thereof, should it be presumed that the mere naked certificate
of a notary public with seal attached, taken without the state, is a sufficient
authentication of the instrument to which it is attached?
36 Nev. 129, 131 (1913) Long v. Tighe
certificate of a notary public with seal attached, taken without the state, is a sufficient
authentication of the instrument to which it is attached? We respectfully submit it should not
be, for it leaves open a great method by which frauds can be practiced upon the courts and
citizens of this state.
The entry of default and judgment by the clerk was not sufficient in conformity with
section 3247 of the Compiled Laws. Subdivision 3 of section 3247 specifies the method of
procedure for taking judgment in such cases. It is a judicial procedure for the court, and not
ministerial for the clerk.
The return of the sheriff in this case fails to show affirmatively that there was no occupant
of the premises, which it should have done, so that he would be permitted to post a copy
thereof; neither was there any evidence introduced in said cause, or attempted to be
introduced, showing or tending to show that there was no occupant. Such being the case and
there having been a failure in creating a lien by virtue of the attempted levy of attachment, the
court never acquired jurisdiction in the matter. (Schwartz v. Cowell, 12 Pac. 252.)
This is an appeal from a judgment entered upon an order sustaining a motion for a nonsuit.
Appellants brought their action for restitution of a certain parcel of land described as lot 1 in
block 3 of the Phenix North addition to the town of Goldfield. The complaint alleged that on
the 26th day of August, 1905, and for a long time prior thereto, one George Brunswick was
the owner of said lot. That on the day last mentioned the plaintiff, C. W. Long, brought his
certain action upon a money demand against the said Brunswick, and attached the said lot in
question; that thereafter, and on the 9th day of January, 1906, judgment was obtained in said
action in favor of the plaintiff Long and against the said defendant Brunswick; that execution
was issued upon said judgment, and the said property therefore attached was sold under
execution to the appellants in this action, and after the time for redemption had expired a
sheriff's deed was executed and delivered to appellants; that between the time of the levy
of the writ of attachment and the execution and delivery of the said sheriff's deed, the
respondents did, without right or title, enter into and upon said lot, and did take full
possession thereof and did oust and eject the said Brunswick and all persons claiming
under him therefrom.
36 Nev. 129, 132 (1913) Long v. Tighe
sold under execution to the appellants in this action, and after the time for redemption had
expired a sheriff's deed was executed and delivered to appellants; that between the time of the
levy of the writ of attachment and the execution and delivery of the said sheriff's deed, the
respondents did, without right or title, enter into and upon said lot, and did take full
possession thereof and did oust and eject the said Brunswick and all persons claiming under
him therefrom. The answer, in addition to other matters, denied the validity of the judgment
obtained by plaintiff Long in his suit against Brunswick, and the validity of the sheriff's deed
executed in pursuance of the sale on execution based on said judgment. At the trial, as part of
appellant's case, the judgment roll in the case of Long v. Brunswick and the papers in the
execution sale were offered in evidence. Objection was made thereto upon the ground that the
judgment was void upon the face of the judgment roll, and the objection sustained.
1. The judgment in the Brunswick case was entered upon default. Personal service of
summons was had upon Brunswick in California, following an order for publication of
summons, and, the defendant having failed to answer within the time allowed by law, his
default and a judgment upon default were entered by the clerk. It is contended, first, that there
was not sufficient proof of service, for the reason that the affidavit of the person making the
service does not appear to have been made before a person authorized by law to take and
certify to an affidavit. The affidavit purports to have been sworn to before one G. F.
McLellon, a notary public in and for the county of Los Angeles. The certificate is in due form
and under the seal of the notary, and the date when his commission expires is appended.
Conceding, for the purposes of this case, that this is a question which could be raised by
objection to the introduction of the judgment roll, the question is one which was decided by
this court some forty-six years ago, contrary to the respondents' contention. In Sargent v.
Collins, 3 Nev. 272, this court held that a certificate to a deposition under the seal of the
notary was prima facie evidence of official character, and that further proof of that fact
could only be required after such evidence was overcome by rebutting testimony.
36 Nev. 129, 133 (1913) Long v. Tighe
held that a certificate to a deposition under the seal of the notary was prima facie evidence of
official character, and that further proof of that fact could only be required after such evidence
was overcome by rebutting testimony. See, also, Blackie v. Cooney, 8 Nev. 41, 48.
It is next contended that the affidavit fails to show that the person making the service was
over 21 years old, as required by the statute, at the time of making the service. This objection
is without the slightest merit. The affidavit sets forth that the affiant is over the age of 21
years, and the affidavit was made on the same day that the service was made.
2, 3. The point mainly relied on is the authority, or want of authority, of the clerk to enter
the judgment. If the clerk entered the judgment without authority so to do, it is void and
subject to collateral attack. It is the contention of counsel for respondent that, in cases where a
defendant is personally served without the state in lieu of publication of summons which has
been ordered, the clerk cannot enter judgment for failure to answer without the order of the
court, as in the case where the defendant is served within the state. In the case where there has
been personal service without the state, it is contended that subdivision 3, Rev. Laws, 5236,
controls.
Subdivision 3 reads: In actions where the service of the summons was by publication, the
plaintiff, upon the expiration of the time, within which by law the defendant is required to
answer, may, upon proof of the publication and that no answer has been filed, apply for
judgment; and the court shall thereupon require proof to be made of the demand mentioned in
the complaint, and if the defendant be not a resident of the state, shall require the plaintiff, or
his agent, to be examined on oath respecting any payments that have been made to the
plaintiff, or to any one for his use, on account of such demand, and may render judgment for
the amount which he is entitled to recover. * * *
While the section of the statute relative to publication of summons provides that personal
service without the state "shall be equivalent to publication," etc., we are not of the
opinion that these words are of any force in construing the provisions of subdivision 3,
supra.
36 Nev. 129, 134 (1913) Long v. Tighe
state shall be equivalent to publication, etc., we are not of the opinion that these words are
of any force in construing the provisions of subdivision 3, supra. While personal service
outside the state is equivalent to publication, it is not service by publication. Where there
has been personal service, there can be no proof of the publication, as required in
subdivision 3, supra, for there has been no publication. Subdivision 3, doubtless, was
intended for the protection of defendants where substituted service by publication has been
had, in which cases actual notice of the action may never, in fact, have reached the defendant.
The court, we think, erred in excluding the judgment roll from evidence.
4, 5. The contention of respondents that the return of the writ of attachment fails to show
that the sheriff served a copy of the writ upon the occupant of the attached property is, we
think, without merit. As against the return of the sheriff, there is no presumption that there
was an occupant. Where, as in this case, it appears that a judgment was obtained against
Brunswick, and that there was a sale upon execution of the interest of Brunswick in the
property in question to the appellants in this action, respondents, not claiming title through
Brunswick, are not in position to question the validity of the sheriff's deed issued in
pursuance of the execution sale.
Judgment reversed, and cause remanded for a new trial.
____________
36 Nev. 135, 135 (1913)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
JULY TERM, 1913
____________
36 Nev. 135, 135 (1913) Fleming v. Fleming
[No. 2021]
R. M. FLEMING, Appellant, v. MARY C. FLEMING,
Respondent.
1. DivorceJurisdictionResidence of PlaintiffResided.
Actual living in the county by plaintiff for the six months is necessary to give the court jurisdiction under
Rev. Laws, 5838, providing that divorce may be obtained by complaint to the district court of the county in
which plaintiff shall have resided six months before suit brought.
Resided means permanency as well as continuity.
Actual residence is the place of actual abode; of physical presencethe abiding place.
Legal residence may be merely ideal, but actual residence must be substantial.
Where residence is made the basis of jurisdiction, parties who seek to invoke the power of the court to
relieve them from the marriage tie must bring themselves clearly and affirmatively within the jurisdiction of
the court.
Appeal from Second Judicial District Court, Washoe County; John S. Orr, Judge.
Action by R. M. Fleming against Mary C. Fleming. From an order denying an order for
publication of summons, based on affidavit, plaintiff appeals. Affirmed.
C. R. Reeves, for Appellant.
This is an appeal from an order made and entered by the judge of the Second judicial
district in and for Washoe County denying plaintiff an order for publication of summons.
On the 15th day of January, 1912, the appellant, R. M. Fleming, filed with the clerk of the
district court a complaint, by reason of which complaint prayed for a decree of divorce from
Mary C. Fleming, his wife. On the 17th day of January, 1912, appellant filed an affidavit in
the same court and cause in support of his application for an order directing that service be
had upon the defendant, who was a nonresident, by the publication of the summons under the
provisions of the statute.
The judge, in refusing the order for publication, took into consideration the complaint on
file and affidavit of plaintiff, but stated in substance that from both of these instruments it
appeared that there were not sufficient facts to give the court jurisdiction of the subject-matter
of the action.
It appears from the complaint on file in this case that the defendant Mary C. Fleming, wife
of appellant herein, is a resident of the city of New York. It further appears from the
complaint that plaintiff arrived in the city of Reno on the morning of July 11, 1911, and on
the following day engaged rooms at 445 South Virginia Street, in that city.
Section 5838 of the Revised Laws provided: Divorce from the bonds of matrimony may
be obtained, by complaint under oath, to the district court of the county in which the cause
therefor shall have accrued, or in which the defendant shall reside or be found, or in which
the plaintiff shall reside, if the latter be either the county in which the parties last cohabited,
or in which the plaintiff shall have resided six months before suit be brought. * * *
The legislature of Nevada in 1911 passed an act entitled An act defining what shall
constitute legal residence in the State of Nevada. (Stats. 1911, c. 158.)
The statute as approved is as follows: The legal residence of a person with reference to
his or her right of suffrage, eligibility to office, right of naturalization, right to maintain or
defend any suit at law or in equity, or any other right dependent on residence, is that place
where he or she shall have been actually, physically and corporeally resent within the state or
county, as the case may be, during all of the period for which residence is claimed by him or
her; provided, however, should any person absent himself from the jurisdiction of his
residence with the intention in good faith to return without delay and continue his residence,
the time of such absence shall not be considered in determining the fact of such residence.
For the purpose of securing an order for the publication of the summons in this case, the
plaintiff made an affidavit, in which affidavit he set forth the averments of his complaint
relative to his residence within Washoe County. The averment is as follows: * * * The
plaintiff arrived at Reno 4 o'clock a.m. July 11, 1911, and registered at the Riverside Hotel on
said 11th day of July, 1911, and that upon the 12th day of July, 1911, plaintiff engaged and
secured rooms, and took up his residence at 445 South Virginia Street, with Mr. and Mrs. F.
M. Schadler, and entered said rooms and remained and occupied and slept in said rooms each
and every night from the 12th day of July, 1911, until the 12th day of August, 1911; that prior
to the 12th day of August, 1911, the plaintiff was employed by Captain Strover,
superintendent of survey of the office of the surveyor-general of the State of Nevada, to go to
work for the United States government with a United States surveying party; that upon the
12th day of August, 1911, plaintiff left Reno with said surveying party, and went to Churchill
County, and lived in the field in tent and in the open without shelter, moving camp from
township to township as surveyed, from August 12, 1911, to November 14, 1911, when said
survey party of the United States in which and by which plaintiff was employed was ordered
to return to Reno, and on the 14th day of November, 1911, plaintiff arrived in Reno from
said surveying party; that during all this time plaintiff's postoffice address was Reno,
Nevada, all mail arriving being forwarded to the field through the surveyor-general's
office, all personal belongings that plaintiff has, except field clothing, was continuously in
said rooms at 445 South Virginia Street, and at all times said 445 South Virginia Street
was his home and since the said 14th day of November, 1911, he has resided and
occupied continuously in person his said home; and that it is plaintiff's intention to
continue an actual bona fide resident of Reno in the future; that he has taken up his
residence in Reno with the intention to make the State of Nevada and Reno his
permanent residence, and that the same is his permanent home."
Reno, and on the 14th day of November, 1911, plaintiff arrived in Reno from said surveying
party; that during all this time plaintiff's postoffice address was Reno, Nevada, all mail
arriving being forwarded to the field through the surveyor-general's office, all personal
belongings that plaintiff has, except field clothing, was continuously in said rooms at 445
South Virginia Street, and at all times said 445 South Virginia Street was his home and since
the said 14th day of November, 1911, he has resided and occupied continuously in person his
said home; and that it is plaintiff's intention to continue an actual bona fide resident of Reno
in the future; that he has taken up his residence in Reno with the intention to make the State
of Nevada and Reno his permanent residence, and that the same is his permanent home.
Under the provisions of the statute quoted above (section 5838, Rev. Laws) a residence for
a period of six months within the county was made a prerequisite for the commencement of
an action for divorce from the bonds of matrimony. The act of 1911, aside from the proviso,
neither limited nor enlarged upon the original provision of the statute as quoted above. If it
did anything, it emphasized the original statute (section 5838, Rev. Laws) by declaring that
the legal residence of a person who sought to maintain or defend any suit at law or in equity
should be considered that place in which he or she had been actually, physically, and
corporeally present within the state or county; hence by the provisions of this statute actual
residence, as distinguished from domicile or legal residence, was made the basis upon which
courts would determine the status of the party litigant and acquire jurisdiction. In this respect
residence must be distinguished from domicile. One may have his domicile in one state, and
yet be a resident of another.
It is the contention of the appellant that the word shall as it appears in the statute of 1911
should be construed as may. We do not agree with this contention, however, in that we
believe that it was the intention of the legislature to prescribe that actual, physical
presence should be imminently essential to constitute a residence for the purpose of
making that residence legal, where the party had any right dependent on residence.
intention of the legislature to prescribe that actual, physical presence should be imminently
essential to constitute a residence for the purpose of making that residence legal, where the
party had any right dependent on residence. It will not be necessary for us to dwell upon the
question of domicile in this case and especially in cases of this character. That question
applicable to the marriage relation was dwelt upon by the Supreme Court of the United States
in the case of Haddock v. Haddock, 201 U. S. 563, 26 Sup. Ct. 525, 50 L. Ed. 867, 5 Ann.
Cas. 1, and the rule there laid down by Mr. Justice White. The code of civil procedure of the
State of Texas is somewhat similar to that of ours, in that it prescribes that no suit for divorce
shall be maintained unless the petitioner at the time of exhibiting the petition is an actual
bona fide inhabitant of the state and shall have resided in the county where the suit is filed six
months preceding the filing thereof. (Revised Statutes of Texas, art. 2978.)
The Court of Civil Appeals of the State of Texas, speaking through Mr. Chief Justice Gill,
in the case of Owens v. Owens, 40 Tex. Civ. App. 641, 90 S. W. 664, in discussing a question
very much analogous to the one at bar, passing upon the sufficiency of the allegation of
residence under the statute, said: The averment must amount to an allegation of personal
presence in the state and an inhabitant for the time required.
In the case of Haymond v. Haymond, 74 Tex. 414, 12 S. W. 90, the Supreme Court of
Texas held that an allegation of residence that plaintiff is a bona fide citizen of Bell County
and has been for more than six months did not satisfy the requirement of the statute, because
the allegations may be true, and still the plaintiff may not have been an inhabitant of the
county during any of the period covered by the allegation.
Giving to the word resided, as used in the statute (section 5838, Rev. Laws), its plain,
ordinary significance, it must necessarily be construed to require an actual living in the county
for six months preceding the filing of the suit.
the suit. The word resided in its general acceptation carries with it the idea of permanency
as well as continuity. It does not mean living in one place and claiming a home in another; it
does not mean a constructive or imaginary residence in Washoe County, while actually living
or abiding or being in some other county. Our statute as contrasted with similar statutes in
other states makes no provision as to residence in the state, but bases the jurisdiction upon the
residence in the county, hence actual residence in the county where the suit for divorce is
instituted is necessary to convey jurisdiction to the court in which the complaint is filed. In
this respect there must be a keen contrast drawn between a mere legal residence, sometimes
termed domicile, and an actual residence. Legal residence consists of fact and intention
combined; both must concur, and, when one's legal residence is fixed, it requires both fact
and intention to change it. Actual residence, on the other hand, is the place of actual abode, of
physical presencethe abiding place. One may have an actual residence in one county and a
legal residence or domicile in another.
It is our judgment that the residence required by the statute (section 5838, Rev. Laws) and
contemplated by the session act of 1911 was actual residence; that is, physical corporeal
presence and not alone legal residence or domicile. (Tipton v. Tipton, 87 Ky. 243, 8 S. W.
440; Michael v. Michael, 34 Tex. Civ. App. 630, 79 S. W. 74; Graham v. Graham, 9 N. D.
88, 81 N. W. 44.)
The proviso in the act of 1911 makes it incumbent upon the litigant who finds himself
called from the jurisdiction of his residence to return without delay. It is our judgment that it
was not the intention of the legislature, when it made this prescription, that one who sought to
avail himself of the power of the court could take up residence in a county for a day or a
month, as the case might be, and then go into another state or another county, when not called
by emergency, and remain there with no definite time for return. The first part of the statute
of 1911 made actual, physical, and corporeal presence necessary during all of the period for
which residence is claimed, hence we think it was not the intention of the legislature to
vary or modify that provision, but, on the other hand, in our judgment the legislative
department by the proviso made provision for one who by urgent necessity was called
from the jurisdiction of his residence, or who absented himself with the intention of
returning without delay, or who returned without delay or as soon as the urgency had
terminated.
presence necessary during all of the period for which residence is claimed, hence we think it
was not the intention of the legislature to vary or modify that provision, but, on the other
hand, in our judgment the legislative department by the proviso made provision for one who
by urgent necessity was called from the jurisdiction of his residence, or who absented himself
with the intention of returning without delay, or who returned without delay or as soon as the
urgency had terminated.
From the allegations of the complaint in the case under consideration, the plaintiff was not
physically or actually present in Washoe County between the 12th day of August, 1911, and
the 14th day of November, 1911, and his absence from the county was one of an indefinite
nature. By reason of his employment and the nature thereof, the length of time during which
plaintiff might be absent was wholly uncertain. It might have been terminated in a week, or it
might have continued a year. In absenting himself from the county for some months as
alleged, it is manifest that it was not his intention to return without delay, as the statute
requires. Taking all the circumstances of this case into consideration, it is our judgment that
the proviso in the statute would not warrant as long an absence. It may be contended that
during all of the time of appellant's absence his domicile or legal residence was in Washoe
County, but even that will not relieve him of the positive requirement of the statute that his
actual, physical, and corporeal presence within the county constituted the basis of his
residence, and, even though his domicile was during all of that time in Washoe County, his
physical presence during the greater part of the time being in some other county, Washoe
County could not be considered his abiding place during that time. A person's legal residence
may be merely ideal, but his actual residence must be substantial.
In our judgment it is not necessary in this case to pass upon the constitutionality of the act
of 1911. The former statute (section 5838, Rev. Laws) is of sufficient force and effect to
warrant our conclusions herein stated. Suffice it to say, in view of the inherent powers
which governments must possess over the marriage relation, its formation and
dissolution in so far as affecting its own citizens is concerned and where the state,
through its legislative department, prescribes certain prerequisites as a basis of
jurisdiction whereby courts may try and determine the marriage status, or may dissolve
the marriage contract, such action is binding in that state as to all parties who seek to
avail themselves of the power of the courts in that state, and before they can invoke that
power for the purpose of relieving them from the marriage tie they must bring themselves
clearly and distinctly and affirmatively within the jurisdiction of the courts, and especially
is this true where the question of residence is made the basis of jurisdiction.
to say, in view of the inherent powers which governments must possess over the marriage
relation, its formation and dissolution in so far as affecting its own citizens is concerned and
where the state, through its legislative department, prescribes certain prerequisites as a basis
of jurisdiction whereby courts may try and determine the marriage status, or may dissolve the
marriage contract, such action is binding in that state as to all parties who seek to avail
themselves of the power of the courts in that state, and before they can invoke that power for
the purpose of relieving them from the marriage tie they must bring themselves clearly and
distinctly and affirmatively within the jurisdiction of the courts, and especially is this true
where the question of residence is made the basis of jurisdiction. (Maynard v. Hill, 125 U. S.
190, 8 Sup. Ct. 723, 31 L. Ed. 654; Haddock v. Haddock, 201 U. S. 569, 26 Sup. Ct. 525, 50
L. Ed. 867, 5 Ann. Cas. 1.)
From the foregoing it follows that the judgment of the trial court in denying appellant's
petition for an order for publication of summons on the ground that there were not sufficient
facts to give the court jurisdiction over the subject-matter of the action should be affirmed.
It is so ordered.
____________
36 Nev. 143, 143 (1913) State v. Dye
[No. 2016]
THE STATE OF NEVADA, Respondent, v. WILLIAM
DYE, Appellant.
1. Criminal LawEvidenceVoluntary Confession.
Where the defendant with two others was indicted for arson, and the complaining witness and the sheriff
advised him to protect himself, that it would be better for him if he told the truth, the theory of the
prosecution being that his codefendants were the principals who had instigated him to burn the prosecuting
witness's store, and the prosecuting witness told him that he only wanted the principals, and others told him
that his statements to a detective while in jail were sufficient to send him to prison, a confession elicited
under such circumstances is not voluntary; for to be voluntary a confession must be made without hope or
inducement of reward.
Appeal from the Fourth Judicial District Court, Elko County; Mark R. Averill, Judge,
presiding.
William Dye was convicted of arson, and he appeals. Reversed and remanded.
Patrick A. McCarran, Perky & Crow, and King & King, for Appellant.
Cleveland H. Baker, Attorney-General, James Dysart, District Attorney, F. S. Gedney, and
Lewers & Henderson, for Respondent.
Appellant was jointly indicted with Antone Primeaux and Roy Primeaux in the Fourth
judicial court, in and for Elko County, for the crime of arson. A severance of trials was
obtained, and the appellant was tried prior to his codefendants, and convicted of arson in the
second degree. From a judgment entered upon the verdict and from an order denying his
motion for a new trial, defendant has appealed.
The trial of appellant lasted nearly forty days, and the record on appeal is embodied in four
volumes aggregating about five thousand typewritten pages. Since the trial and appeal of the
case against defendant Dye, the trial of his codefendants has been had, and the latter
acquitted.
36 Nev. 143, 144 (1913) State v. Dye
trial of his codefendants has been had, and the latter acquitted. The indictment charged: That
the said defendants, Antone Primeaux, Roy Primeaux, and William Dye, on or about the 10th
day of June, A. D. 1910, in the town of Tuscarora, county of Elko, State of Nevada, and
before the finding of this indictment, without authority of law, did, feloniously, unlawfully,
wilfully, and maliciously burn and cause to be burned, a certain building, then and there
situated in the town of Tuscarora, county of Elko, State of Nevada, and then and there the
property of A. W. Sewell and J. W. Linnell, copartners doing business under the firm name
and style of A. W. Sewell & Co., which said building was then and there of the value of
$2,000, and was known as and called the A. W. Sewell & Co. store, which said building was
then and there occupied as a store by said corporation, and contained a stock of goods, wares,
and merchandise of the value of $15,000, then and there the property of said A. W. Sewell
and J. W. Linnell.
It was the theory of the state upon the trial of appellant that Dye and his codefendants had
entered into a conspiracy to burn the store building of A. W. Sewell & Co.; the motive being
that A. W. Sewell & Co. was a rival business competitor of the defendant Antone Primeaux.
The record contains many assignments of error, but we think it necessary to consider only
one.
It is contended by appellant that the court erred in admitting in evidence a confession made
by defendant Dye implicating his codefendants. It is contended that this confession was
inadmissible for the reason that it appeared, under the undisputed testimony, to have been
given under promise and inducements of reward made by the sheriff, who had the defendant
in charge, and by the prosecuting witness, A. W. Sewell, and by agents of the latter. We think
the objection to the admissibility of this confession should have been sustained, and that its
admission was prejudicial error. It clearly appears from the testimony that the complaining
witness, A. W. Sewell, considered the appellant but a tool of the defendants Primeaux, whom
he regarded as the originators of the conspiracy, and they were the parties whose
conviction he most desired.
36 Nev. 143, 145 (1913) State v. Dye
Primeaux, whom he regarded as the originators of the conspiracy, and they were the parties
whose conviction he most desired. It is clear that this view of the situation was both directly
and indirectly impressed upon the mind of the appellant. Prior to the confession a
conversation was had between the sheriff and the defendant in the county jail, in which the
sheriff said to appellant: Bill, you watch out for Bill Dye. The sheriff also testified to the
effect that he probably told appellant: If you tell the truth, it will be a whole lot better for
you. In a conversation between the appellant and the prosecuting witness, had in the county
jail prior to the confession, the latter said to appellant: Bill, you ain't to blame. It is others I
blame. It is better for you to take care of yourself. The witness also testified that he probably
told appellant that it would be better for him to tell what he knew of the case. At the time of
the conversation with the complaining witness at which the confession was obtained, the
complaining witness admits that he said: Bill, I want the principals in this proposition. It
wouldn't do me much good to send you to prison, for they could hire some one to do the job
again. Bill, I want the head man in this. Besides these conversations had with the defendant
by the sheriff and the complaining witness, it appears that a number of other parties in the
employ of the complaining witness were seeking to obtain a confession from the appellant;
that, among others, one Dewey, an employed detective, was placed in the jail with appellant,
who also advised appellant in effect that it would be better for him to make a confession.
Appellant was also told by counsel for the prosecution that statements which he had made to
the detective Dewey while the latter was in jail with him were sufficient to send him to
prison. During this time the appellant is shown to have been in poor health.
It is clear from all of the testimony and circumstances relative to this confession that the
idea was thoroughly impressed on the mind of the appellant by agents of the prosecution that
a confession implicating his codefendants Primeaux was what they wanted, and that if he
would make such a confession it would be better for him.
36 Nev. 143, 146 (1913) State v. Dye
would make such a confession it would be better for him. That this was not a voluntary
confession, made without hope or inducement of reward, offered by persons in authority, we
think too clear for extended argument or consideration.
In State v. Carrick, 16 Nev. 129, this court speaking through Hawley, J., said: The law
excluding confessions is based in a spirit of charity for the weakness of human nature, and
rests upon the theory that a man, when charged with crime, and threatened with the
punishment of the law, or promised immunity therefrom, may be induced, while in an
alarmed and excited condition of mind, to make statements that are not true. Such statements,
when so made, are and should be excluded by the courts. * * * It is only in cases where the
confession is obtained by mob violence, or by threats of harm, or promises of favor or
worldly advantage held out by some person in authority, or standing in such intimate relation
from which the law will presume that his promises or threats will be likely to exercise such an
influence over the mind of the accused as to induce him to state things that are not true, that
will authorize the courts to exclude the confession or admission. The law in its general
application to this question, as well as others, is founded in reason and common-sense. Its
object is to ascertain the truth, and it is not its purpose to reject any reliable and competent
means of attaining it.
The admission of the confession in evidence was strenuously opposed. Six days were
devoted to this one question. Many facts and circumstances were detailed in the evidence, but
the main facts referred to, supra, appear without substantial contradiction. In support of the
rule that confessions secured in the way in which this one was, are inadmissible, we cite
People v. Barric, 49 Cal. 342; People v. Thompson, 84 Cal. 598, 24 Pac. 384; People v.
Castro, 125 Cal. 521, 58 Pac. 133; State v. Jackson, 3 Penniwell (Del.) 15, 50 Atl. 270;
Dixon v. State, 113 Ga. 1039, 39 S. E. 846; Mitchell v. State (Miss.) 24 South. 312;
Commonwealth v. Myers, 160 Mass. 530, 36 N. E. 481; Commonwealth v. Curtis, 97 Mass.
574; State v. York, 37 N. H. 175; People v. Kurtz, 42 Hun. {N. Y.)
36 Nev. 143, 147 (1913) State v. Dye
Commonwealth v. Curtis, 97 Mass. 574; State v. York, 37 N. H. 175; People v. Kurtz, 42
Hun. (N. Y.) 335; State v. Wintzingerode, 9 Or. 153; Searcy v. State, 28 Tex. App. 513, 13 S.
W. 782, 19 Am. St. Rep. 851; Newman v. State, 49 Ala. 9; Territory v. Underwood, 8 Mont.
131, 19 Pac. 398; State v. Jay, 116 Iowa, 264, 89 N. W. 1070; Sullivan v. State, 66 Ark. 506,
51 S. W. 828, 12 Cyc. 461.
Judgment reversed, and cause remanded for a new trial.
Talbot, C. J.: I concur.
McCarran, J., having been attorney for the defendant in the case when it was tried in the
lower court, did not participate in the opinion.
____________
36 Nev. 147, 147 (1913) Arnold v. Florence-Goldfield
[No. 1948]
MARVIN ARNOLD, Appellant, v. THE FLORENCE GOLDFIELD MINING COMPANY
and THE JANUARY JONES LEASING AND MINING COMPANY (a Corporation),
Respondents.
1. Appeal and ErrorAffirmanceWant of Prosecution.
Judgment was entered July 16, 1910, and notice of appeal was filed and served July 20, and statement on
appeal was filed August 6, 1910. The record on appeal was filed January 2, 1911. After being passed for
several terms, the case was set for hearing for January 30, 1913, and when called appellant's counsel asked
for further time to file a brief, without offering any excuse for not filing it before. The case was continued
to March 25, with fifteen days to file a brief. On that day the argument was further continued to June 25,
for illness of counsel, with sixty days to file a brief, and on June 25 a further extension of thirty days to file
brief was given. No brief was ever filed. Held, that a motion to affirm for want of prosecution should be
granted.
Appeal from the Seventh Judicial District Court, Esmeralda County; Theron Stevens,
Judge.
Judgment affirmed for want of prosecution.
James K. Redington, for Appellant.
R. G. Withers, for Respondent.
Judgment in this case was entered upon the 16th day of July, 1910. On August 6
following, statement upon appeal was filed and served. No amendments were filed thereto,
and it is the contention of counsel for respondent that the statement was not filed in time.
Notice of appeal was filed and served July 20, 1910. The record was filed in this court
January 2, 1911. No briefs upon the part of appellant have ever been filed. The case was
carried on the calendar of this court and passed for several terms. On the calling of the
calendar at the January term of the present year the case was set down for oral argument
January 30, 1913. On January 28, 1913, respondent filed motions to strike out the statement
because not filed and served in time, and to dismiss the appeal for want of prosecution. On
January 30, 1913, the case was called, and appellant's counsel was present in court. No
excuse was then offered why the statement was not filed in time, or why the appeal was not
docketed in time, or why briefs had not been filed, but counsel for appellant requested that the
several motions be heard, in accordance with the practice of this court, at the same time as the
hearing upon the merits, and that appellant be granted further time to file a brief. This court
thereupon continued the setting of the case until March 25, 1913, and gave appellant fifteen
days in which to file his brief and a corresponding time for respondent to reply thereto. No
briefs having been filed within the time allowed by order of the court, on March 11, 1913,
respondent filed and served a motion to affirm the judgment for want of prosecution. On
March 25, 1913, the court, having the previous day been advised of the serious illness of
counsel for appellant, ordered that oral argument be continued until June 25, 1913, and
granted sixty days to appellant to file and serve his brief. On June 25, 1913, a further order
was made, giving appellant thirty days thereafter in which to file a brief.
It must be conceded that the various orders made extending time to appellant in which to
file a brief on appeal have been made without any sufficient showing upon the record.
appeal have been made without any sufficient showing upon the record. The several orders
have been made principally upon unofficial knowledge of the illness of appellant's counsel
and the courtesy of counsel for the respondent.
Under the well-settled rule established by numerous decisions of this court, the judgment
must be affirmed. (Potosi Zinc Company v. Mahoney, 34 Nev. 295; Linville v. Clark, 30 Nev.
113; Gardner v. Gardner, 23 Nev. 214; Matthewson v. Boyle, 20 Nev. 88; Robinson v.
Longley, 18 Nev. 71; Goodhue v. Shedd, 17 Nev. 141; Finlayson v. Montgomery, 14 Nev.
397; State v. Myatt, 10 Nev. 166; Fulton v. Day, 8 Nev. 80.)
Judgment affirmed.
____________
36 Nev. 149, 149 (1913) Jones v. West End Consol. Mining. Co.
[No 2000]
GEORGE JONES, Respondent, v. THE WEST END CONSOLIDATED MINING
COMPANY (a Corporation), Appellant.
1. PleadingComplaintWaiver of Objections.
A defendant by filing an answer to a complaint within the time allowed by order of court waived all the
grounds of the demurrer, except that it did not state facts sufficient to constitute a cause of action.
2. Master and ServantMachinery and AppliancesDuty of Master.
A mining company must exercise reasonable care in providing an employee with reasonably safe
appliances and machinery for his work.
3. Master and ServantInjuryContributory NegligenceSufficiency of Evidence.
Evidence in an action against a mining company for an injury to an employee, caused by the falling of the
hoist bucket on which he was mounted, held to warrant a finding that the employee was not guilty of
contributory negligence.
4. Appeal and ErrorReviewFinding.
The weight of the evidence and the credibility of witnesses is within the exclusive province of the trial
court, and this court will not disturb a judgment unless it can be said, as a matter of law, that there is no
substantial evidence in support of it.
5. Master and ServantAssumption of RiskDefective Appliances.
A miner assumes all the ordinary risks incident to his employment; but he does not assume any risks from
danger resulting from defective hoisting machinery, over which he had no control, and of which he was
ignorant.
Action for damages for personal injuries by George Jones against West End Consolidated
Mining Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.
J. H. Morris, for Appellant.
V. S. Thomas, for Respondent.
This is an action for damages for personal injuries sustained by respondent while working
as a miner and machine man in appellant's mine in Tonopah. From a judgment in favor of
plaintiff for the sum of $1,166 and costs, and from an order denying a motion for new trial,
defendant appeals.
The case was tried before the court without a jury. The complaint alleged that, while
plaintiff was employed at the place and at the work to which he had been directed by the
defendant, he was, without fault upon his part, precipitated by the falling of the hoist bucket,
on which he had mounted from the 400-foot station of the mine shaft to the bottom thereof,
causing the injuries for which judgment was demanded.
The sixth paragraph of plaintiff's complaint reads as follows:
That defendant failed in its duty to the plaintiff, its employee, in the following respects, to
wit:
(a) In not providing and maintaining safe equipment, machinery, and appliances; but, on
the contrary, furnishing and maintaining equipment, machinery, appliances (to wit, the engine
and hoisting apparatus employed in the sinking of the shaft from the 400 level) that were
improper, unsuitable, defective, and dangerous, as defendant knew and had full
opportunity and reason to know.
in the sinking of the shaft from the 400 level) that were improper, unsuitable, defective, and
dangerous, as defendant knew and had full opportunity and reason to know.
(b) In not warning plaintiff of the aforesaid dangers.
(c) In not interposing to prevent plaintiff from getting onto the bucket, when defendant
knew that he was about to do so and that it was dangerous so to do, as the engine would not
hold under the circumstances then existing; the defendant being aware thereof and having full
opportunity so to interpose.
(d) In not providing employees in sufficient numbers for safety.
(e) In allowing and directing the engineer of the aforesaid engine to leave his post thereat
at a time when the hoisting apparatus was likely to be used and when only the muscular
strength of the engineer could prevent the engine from letting the bucket fall, if any weight
were put upon it.
(f) In leaving said engine unattended at the time and under the circumstances previously
mentioned.
(g) In negligently employing and retaining negligent employees, knowing or having
reason to know them to be suchreference being had to the engineer in charge of the
aforesaid engine and to one Richie, the foreman or underground superintendent, having full
charge and control of the machinery and of the men and place and work at said 400 station
and said shaft and the sinking thereof.
(h) In permitting and directing, through the said Richie, acting in the line of his duty and
giving said permission and order within the scope of his authority, the plaintiff to mount the
bucket (for the purpose of being lowered thereon) at a time and under circumstances when it
was dangerous so to do, as defendant knew and had opportunity and reason to know; the
plaintiff having acted under said permission and order. In all the aforesaid respects defendant
was grossly, recklessly and wilfully negligent, and thereby naturally, directly and proximately
caused the injuries and damages complained of; the plaintiff having mounted the bucket
{the falling of which, owing to the yielding of the engine, precipitated him some fifty feet
down the shaft), without fault or negligence upon his part, in the proper discharge of his
duties, for the purpose of being lowered into the shaft, for which purpose, inter alia, said
bucket, engine and hoisting apparatus was provided, and not knowing or having reason to
know of any danger."
of; the plaintiff having mounted the bucket (the falling of which, owing to the yielding of the
engine, precipitated him some fifty feet down the shaft), without fault or negligence upon his
part, in the proper discharge of his duties, for the purpose of being lowered into the shaft, for
which purpose, inter alia, said bucket, engine and hoisting apparatus was provided, and not
knowing or having reason to know of any danger.
1. Counsel for appellant assigns error in the overruling of defendant's demurrer. The
demurrer was based upon several grounds, one of which was that the complaint failed to state
facts constituting a cause of action. By filing an answer to the complaint within the time
allowed by order of court, defendant waived any objections to the complaint, excepting the
ground assigned that it failed to state facts sufficient to constitute a cause of action.
2. We think it cannot be said that the complaint fails to state a cause of action. It was the
duty of the defendant to exercise reasonable care in providing plaintiff with reasonably safe
appliances and machinery for his work. The complaint sets up a breach of this duty upon the
part of defendant and consequent injuries therefrom. While the complaint may not be a model
of excellence in pleading, it does allege facts sufficient to constitute a cause of action.
In addition to denials of a number of allegations in plaintiff's complaint, defendant sets up
as a defense contributory negligence upon the part of the plaintiff.
3. The main question argued by counsel for appellant is as to the sufficiency of the
evidence to support the judgment in view of the defense of contributory negligence.
The evidence shows that the appellant company was operating its mine to the 400-foot
level by a hoisting engine upon the surface. The company, having determined to extend the
shaft to the 500-foot level, first used a windlass in sinking, but subsequently lowered to a
station on the 400-foot level a small engine, previously used upon the surface for hoisting ore
from the dump into ore bins. This small hoist was lowered some one or two days after
respondent entered the employ of the appellant company, and was not in shape for use
for some ten or twelve days later.
after respondent entered the employ of the appellant company, and was not in shape for use
for some ten or twelve days later. The hoist had been in actual use some four or five days
when the accident occurred. The hoist was provided with a friction brake, but there was no
ratchet attached which would hold the brake, and it could only be held when the engineer was
at his place and his hand on the lever. The ratchet had been previously ordered, but owing to
some defect therein had not been installed prior to the accident. The appellant company had
imposed an additional duty upon the man in charge of the hoist of caging cars from the
400-foot level, which latter duty required his leaving his post at the small hoisting engine.
The injuries to respondent were occasioned by his stepping upon the bucket at a time when
the engineer was absent from the hoist engaged in performing his other duties. Evidence was
introduced upon the part of respondent that he was not aware of the defective condition of the
hoist, nor that the engineer, by reason of other duties, was not at all times in actual control of
the hoist, and that he had never been warned not to step upon the bucket without first
ascertaining that the engineer was at his place and in control of the engine. Upon the part of
the appellant evidence was introduced tending to establish knowledge upon the part of
respondent of the defective condition of the engine, and that he had been particularly
instructed not to step upon the bucket for the purpose of being lowered down the shaft
without first seeing that the engineer was at his place. It was also shown upon the part of
appellant that immediately following the accident the respondent had made statements to the
effect that it was his own fault that the accident occurred. It was also shown that the appellant
company had provided a ladder down the shaft which could have been used by respondent.
Concerning these portions of the evidence, the trial judge in his opinion says: The first
and most serious of these to the contentions of the plaintiff, in my opinion, is the alleged
admission by Jones of his own carelessness.
is the alleged admission by Jones of his own carelessness. That he said something to this
effect is undisputed even by himself; he simply says that he has no recollection of it or any
distinct recollection of anything else during a certain period just after his fall. That his remark
was within the period of shock is admitted; this period having had a duration of about
twenty-four hours. I take the same view of it as one of the physiciansthat it meant nothing.
It was the irrational talk of a man in a semiconscious condition, in agony, depending for help
upon those about him. That it meant nothing is demonstrated by its very untruth; there was no
carelessness on his part, except perhaps his choice of ways of reaching the lash rope, and it
may have been this that was uppermost in a mind seriously impaired temporarily by shock
and pain. And this one of the defensesimproper choice of ways or meansthat he should
have chosen the safer method; that is, as contended by the company, by climbing down the
ladder to get the lash rope. I give this suggestion little consideration for the reason that I think
the way was designated by the company, when the underground superintendent told the
engineer to go to his engine and let Jones down. But even if it had not been, the evidence
does not indicate that the ladder was the safer way. A man on a vertical ladder in a shaft has
but one arm free, while on a bucket he can easily use both without danger by keeping the rope
between them and close to his body. The untying of a lash rope may well require both hands.
If the air line was in danger of being struck by the bucket, for which reason it was tied close
to the wall with the lash rope, a man on a ladder was in just as much danger of being struck,
and there was nothing certain about the bucket remaining in its place even by itself. If Jones
knew the brake could not be set and held except by the engineer, he was not called upon to go
under a bucket hanging loose in the shaft. The ladders were there for emergency, not for
ordinarily going up and down the shaft in the course of a miner's duty. The evidence shows
that they were for emergency and auxiliary to the hoist, and for those purposes only.
shows that they were for emergency and auxiliary to the hoist, and for those purposes only.
The use of the bucket was the usual and ordinary method of going up and down, and Jones
had a right to use it for that purpose in preference to the ladder.
4. While it may be conceded that the appellant made a strong showing in support of its
allegation of contributory negligence, the evidence upon this question was conflicting. It has
been too frequently decided that the determination of the weight of the evidence and the
credibility of the witnesses is within the exclusive province of the trial court. This court
cannot disturb the judgment unless we can say, as a matter of law, that there is not substantial
evidence to support it. This, we think, cannot be said.
5. Counsel for appellant further contends that the respondent is not entitled to recover
under the doctrine of assumption of risk. Under the findings in this case, we think this
contention without merit. Underground mining is a hazardous occupation, and we may
concede, for the purpose of this case, that the miner assumes the ordinary risks incident to the
character of his employment; but we are not willing to subscribe to the doctrine that he
assumes risks from danger resulting from the operation of hoisting machinery, over which he
has no control, known by the master to be defective, and of which defects he is ignorant, as
we must assume him to have been under the findings.
Judgment affirmed.
____________
36 Nev. 156, 156 (1913) Goodin v. Pitt
[No. 1979]
W. H. GOODIN, Respondent, v. W. C. PITT,
Appellant.
1. ReferenceConfirmation of ReportConstruction.
Where a referee's report recited that the amount due from defendant to plaintiff was $1,396.56, but
expressly stated that he did not report on the issue as to whether this was due at the institution of the action,
as that was a question of law, and the court in all things allowed, approved, and confirmed the report, and
rendered judgment for the amount reported, the adjudication by the court of the amount found was, in
effect, an adjudication by the court that the amount was due at the institution of the suit.
2. PartnershipExistence of RelationShare of Profits as Salary.
A contract provided that plaintiff was to work for defendant in the business of flour manufacturing, and
was to receive a salary of $125 per month, and, in addition thereto, one-half of the profits over $3,000.
Held, that though the compensation was measured in part by the profits, the contract did not create the
partnership relation, but one of employment.
3. Master and ServantAction for WagesForm.
Where an employee was, by his contract of employment, to receive as compensation a percentage of the
profits of the business, a bill in equity for an accounting is not necessary, but an action of assumpsit at law
will lie to enforce payment.
Appeal from Sixth Judicial District Court, Humboldt County; John S. Orr, Judge,
presiding.
Action by W. H. Goodin against W. C. Pitt. From a judgment in favor of plaintiff,
defendant appeals. Affirmed.
William S. Bonnifield and Summerfield & Curler, for Appellant.
J. A. Callahan, for Respondent.
Plaintiff, respondent herein, brought his action against appellant to recover judgment for
an alleged balance due him of $1,640.38, by virtue of the provisions of a written contract
entered into between the parties, and reading as follows: "This agreement made, this 17th
day of June, A. D. 1907, between W. C. Pitt the party of the first part and W. H. Goodin the
party of the second part.
36 Nev. 156, 157 (1913) Goodin v. Pitt
This agreement made, this 17th day of June, A. D. 1907, between W. C. Pitt the party of
the first part and W. H. Goodin the party of the second part. Witnesseth: That the above
named parties have this day entered into agreement as follows: W. C. Pitt agrees to pay to W.
H. Goodin $125 per month wages commencing from the 15th day of June, 1907. That said
Goodin shall work for said Pitt in the business of flour manufacturing and selling flour,
buying and selling grain, etc. And it is further agreed that commencing on the first day of
July, A. D. 1907, and in further consideration of services performed by said Goodin for Pitt,
that after said Pitt shall receive from said milling business $3,000 profit per year that said
Goodin shall receive one-half of the profits above that amount. Except that if over $12,000
shall be invested in the business outside of the costs of the milling plant, said Pitt shall
receive 8% on amount above that which shall be considered as part of the expense. [Signed]
W. C. Pitt. [Signed] W. H. Goodin.
The complaint alleged that in pursuance of said contract, plaintiff entered into the employ
of defendant on the 15th day of June, 1907, and so continued until the 30th day of June, 1908;
that the profits of said business during said time, after allowing defendant the exemption
mentioned in the contract, amounted to $4,398.15. The answer, in addition to other denials
not material upon this appeal, denied that the profits amounted to $4,398.15, or any other
sum whatever, in any money or currency. The answer further alleges: That at the end of the
year referred to as aforesaid, there was a large lot of unsettled accounts and bills owing to said
business and to defendant, amounting to over $3,500, and which at the time of the
commencement of this action had not been collected, which has not yet been collected, and
some parts of which, defendant alleges, may never and probably never will be or can be
collected; that aside from these uncollected accounts and bills, all of which were made in the
course of the business carried on as referred to in the complaint, there were no profits at all,
and there are no profits yet, and without the collection of said bills and accounts there can
be no profits, as referred to and intended and meant in said contract and agreement; * *
* that at the end of said year there were on hand and undisposed of a lot of the articles
dealt in in the said business, referred to in said contract and agreement; that aside from
these unsold and undisposed of articles there was no profit whatever in the said business
for the said year; that a large lot of such articles are yet unsold and undisposed of; that at
the time of the commencement of this action there were a large lot of such uncollected
bills and accounts, and a large lot of such unsold and undisposed of articles; and that,
aside from these said accounts and bills and unsold articles, there was not, and there
never has been, either at the commencement of this action, or at any time before that
since the expiration of said year, or at the expiration of said year, any profits whatever.
36 Nev. 156, 158 (1913) Goodin v. Pitt
are no profits yet, and without the collection of said bills and accounts there can be no profits,
as referred to and intended and meant in said contract and agreement; * * * that at the end of
said year there were on hand and undisposed of a lot of the articles dealt in in the said
business, referred to in said contract and agreement; that aside from these unsold and
undisposed of articles there was no profit whatever in the said business for the said year; that
a large lot of such articles are yet unsold and undisposed of; that at the time of the
commencement of this action there were a large lot of such uncollected bills and accounts,
and a large lot of such unsold and undisposed of articles; and that, aside from these said
accounts and bills and unsold articles, there was not, and there never has been, either at the
commencement of this action, or at any time before that since the expiration of said year, or at
the expiration of said year, any profits whatever. * * * And defendant hereby sets up, pleads,
objects to, and demurs to plaintiff's pretended cause of action on the ground, and for the
reason, that no cause of action whatever was accrued, or due, or owing from defendant to
plaintiff at the time of the commencement of this action, and at the time there were no profits
whatever, under and by virtue of the said contract and agreement, or anything else.
The defendant alleged a violation of the contract, upon the part of plaintiff, to his damage
in the sum of $3,000.
A referee was appointed to take the testimony and report the facts, and the following
extracts are from his report: That the plaintiff received his salary of one hundred and
twenty-five dollars ($125) per month, provided in said contract during said time, and in
addition thereto received the sum of five hundred and fifty-eight dollars and sixty-nine cents
($558.69) from the profits of the business mentioned in the contract, accruing during the time
covered by the contract; that there remained due the plaintiff under the contract at the time
this was instituted (excluding a consideration of the issue of law hereinafter mentioned) the
sum of $1,396.56. It appeared in the evidence that the profits, or a portion thereof, covered
by the contract consisted in merchandise on hand and book accounts.
36 Nev. 156, 159 (1913) Goodin v. Pitt
in the evidence that the profits, or a portion thereof, covered by the contract consisted in
merchandise on hand and book accounts. Such accounts as were shown by the evidence, in
my judgment, to be worthless were by me deducted from the total accounts before figuring
profits. I deem the issue made by the pleadings in this cause as to whether the cause of action
had accrued at the time of the institution of the suit, by reason of the book accounts having
been at that time uncollected, to be an issue of law, and do not report upon that issue.
The court adopted the findings of the referee, and the judgment recites that the cause was
submitted to the court for consideration and decision, and * * * the court finds that the report
of the referee should be and the same is hereby, in all things, allowed, approved, and
confirmed.
1. It is contended by counsel for appellant that this statement in the judgment shows that
the court below, also, never determined the issue of law whether the cause of action had
accrued at the time of the institution of the suit. We think the fact that the court directed
judgment in favor of the plaintiff for the amount found by the referee was, in effect at least, a
determination that the cause of action had accrued at the time the suit was instituted.
2. The question of the character of the action, and whether the cause of action had accrued,
involves the main contentions upon the appeal. The following excerpt from the brief
succinctly states the position of appellant: That the plaintiff was employed by the defendant
at a stipulated salary per month, which salary was paid him, and in addition thereto a certain
amount of the profits of the business, and that is for this certain amount of the profits the
plaintiff is seeking to recover in this action; that these profits consist of certain articles of
merchandise and a certain amount of uncollected book accounts; that there never was any
balance struck or settlement or accounting had between the parties, and that therefore the
demand made by the plaintiff is an unliquidated demand, and only susceptible to be made
liquidated and certain when these uncollected book accounts have been collected, and the
expenses of collection, etc., have been properly charged, and this can only be done in a
suit for accounting in a court of equity, which alone has plenary powers for that purpose."
36 Nev. 156, 160 (1913) Goodin v. Pitt
unliquidated demand, and only susceptible to be made liquidated and certain when these
uncollected book accounts have been collected, and the expenses of collection, etc., have
been properly charged, and this can only be done in a suit for accounting in a court of equity,
which alone has plenary powers for that purpose.
Counsel for appellant cites many authorities supporting the general rule that before one
partner can sue another partner at law there must have been a prior settlement of all
partnership business. If as to the profits of the business the plaintiff and defendant should be
regarded as partners, the contention of appellant doubtless would have to be sustained. We
think, however, that the language of the contract is not susceptible of the interpretation of a
partnership relation between the parties, or any relation otherwise than that of employer and
employee. The share in the profits of defendant's business which plaintiff was to receive was,
as specifically stated in the contract, in further consideration of services performed by said
Goodin for Pitt. Goodin had no ownership or interest as a partner in the business. His
compensation as an employee was, in part, to be determined by the profits of the business of
his employer, but this did not create a partnership relation. (Morrow v. Murphy, 120 Mich.
204, 79 N. W. 193, 80 N. W. 255; Stockman v. Michell, 109 Mich. 348, 67 N. W. 336;
Galliers v. Peppers, 76 Iowa, 521, 41 N. W. 205; Teller v. Hartman, 16 Colo. 447, 27 Pac.
947; McRae v. Marshall, 19 Canada Sup. Ct. 10; Mack v. Shortle, 76 App. Div. 586, 79 N. Y.
Supp. 109; 26 Cyc. 1035.)
3. Actions upon contracts, of the character involved in this case, have quite frequently
been before the courts, and it is quite universally held that a bill for an accounting is not
necessary, but that an action at law will lie to enforce payment of a percentage of the profits
of the business according to the contract. (Howell v. Crosby, 89 Hun, 355, 35 N. Y. Supp.
328; Boisnot v. Wilson, 109 App. Div. 569, 96 N. Y. Supp. 581; Conville v. Shook, 144 N. Y.
686, 39 N. E. 405; Gaul v. Kiel Co., 199 N. Y. 472, 92 N. E.
36 Nev. 156, 161 (1913) Goodin v. Pitt
1069; Thomas v. Columbia Co., 144 Wis. 470, 129 N. W. 522; Strauss v. Samuel, 149 Ill.
App. 207; Olds v. Regan, 32 Atl. 827.)
While we have not found, nor has our attention been called to, a case holding that
assumpsit would not lie to enforce a contract for a percentage of profits, where the contract
created only the relation of employer and employee, there are a number of cases holding, in
effect, that an action may be brought, either in assumpsit or in equity, for an accounting.
(Stockman v. Michell, supra; Mack v. Shortle, supra; Channon v. Stewart, 103 Ill. 541; Street
v. Thompson, 131 Ill. App. 546.)
In the brief filed for appellant it has been assumed that a partnership relation existed
between the plaintiff and the defendant, and the theory of the law contended for has been
based on this assumption, but, as heretofore pointed out, a partnership relation was not
created by the contract.
The only contention upon appeal, that the plaintiff has mistaken his remedy, and that
therefore the complaint fails to state a cause of action at law, is without merit.
Judgment affirmed.
____________
36 Nev. 162, 162 (1913) Ex Parte Boyd
[No. 2081]
In the Matter of the Application of OLIVER
BOYD for a Writ of Habeas Corpus.
1. ArrestCivil ActionsOrderAffidavit and Complaint.
Under civil practice act, secs. 146, 148 (Rev. Laws, 5088, 5090), providing for the arrest of a defendant
in civil actions whenever about to depart the state or dispose of or remove his property with intent to
defraud creditors, an order of arrest can be based both upon a verified complaint and an affidavit for arrest,
and if both, taken together, are sufficient to justify the order, it is not improperly issued.
2. StatutesProcedure ActConstruction.
As the groundwork of the civil practice act of this state was the code of civil procedure of the State of
New York, decisions of New York courts construing their procedure are especially in point in construing
similar provisions of the practice act in this state.
3. ArrestIn Civil ActionMotion to Vacate.
Under civil practice act, secs. 170-1 (Rev. Laws, 5112, 5113), providing that a defendant arrested in a
civil action may apply to the court to vacate the order of arrest, if the only ground of the motion to vacate is
because the affidavit upon which the order for arrest was based was insufficient, the court, on the hearing
of the motion, will look alone to the affidavit, and if insufficient, defendant will be discharged; but, if the
motion contains the further ground that the actual facts do not justify his arrest, the motion will be heard
upon affidavits of defendant, counter affidavits of plaintiff, and any other evidence, and defendant is not
entitled to be discharged if the proof justifies his being held, though the original affidavit was insufficient.
Original proceeding in habeas corpus by Oliver Boyd for discharge from civil arrest.
Dismissed.
J. M. Frame, for Petitioner.
Albert D. Ayres and W. M. Gardiner, for Respondent.
This is an original proceeding in habeas corpus. The petitioner is held in custody by the
sheriff of Washoe County under an arrest and commitment in a civil action instituted in the
Second judicial district court by H. Feingold and J. Gluckman, copartners, plaintiffs, against
the petitioner, Oliver Boyd, as defendant. The writ was issued upon the averment of the
petitioner that the court below was without jurisdiction to issue the order of arrest
because the affidavit upon which it was based failed to state facts sufficient to justify the
order, and that the same, therefore, was void.
36 Nev. 162, 163 (1913) Ex Parte Boyd
issued upon the averment of the petitioner that the court below was without jurisdiction to
issue the order of arrest because the affidavit upon which it was based failed to state facts
sufficient to justify the order, and that the same, therefore, was void. The return to the writ
sets up all the papers and an account of the proceedings had in the lower court, excepting the
complaint in the action, but it was agreed by respective counsel that the complaint stated a
cause of action. From the return it appears that subsequent to the arrest of petitioner, the latter
moved to vacate the order of arrest under the provisions of section 170 of the civil practice
act (Rev. Laws, 5112), upon the ground of insufficiency of the affidavit and complaint, upon
which the order was based, to justify the order, and further that defendant, petitioner herein,
had a meritorious defense to the action, that he did not intend to depart the state with intent to
defraud his creditors, and that all his acts and intentions were in the utmost good faith. The
motion was supported by the affidavit of the defendant petitioner. Counter affidavits were
filed upon the part of plaintiffs. The motion came on for hearing, and was heard upon the
affidavits of the respective parties and upon oral testimony. The oral testimony was not
reported, and is not before us, with the possible exception of portions thereof stated by
counsel upon this hearing and conceded to have been given. The motion to vacate was
denied, and the respondent justifies his authority to hold petitioner, both upon the original
order of arrest and upon the order denying the motion to vacate and the further order of
commitment after the hearing of the motion.
1. It is the contention of counsel for petitioner, if the affidavit upon which the original
order of arrest was made fails to state facts sufficient to justify the order, that petitioner is
entitled to be discharged, notwithstanding any additional showing which may have been made
upon the hearing of the motion to vacate, for the reason that if the original affidavit is
insufficient, it cannot be cured by a subsequent showing upon the hearing of the motion, and
further that upon the whole record, as shown by the return, petitioner should be
discharged.
36 Nev. 162, 164 (1913) Ex Parte Boyd
motion, and further that upon the whole record, as shown by the return, petitioner should be
discharged. Needless to say, these contentions of counsel for the petitioner are controverted
by counsel for respondent.
The following provisions of the civil practice act (Rev. Laws, 5088, 5090, 5112, 5113) are
controlling in the consideration of the questions presented:
Sec. 146. The defendant may be arrested * * * in the following cases arising after the
passage of this act: 1. In an action for the recovery of money or damages on a cause of action
arising upon contract, express or implied, when the defendant is about to depart from the state
with intent to defraud his creditors. * * * 5. When the defendant has removed or disposed of
his property, or is about to do so, with intent to defraud his creditors.
Sec. 148. The order may be made whenever it shall appear to the judge, by the affidavit
of the plaintiff or some other person, that a sufficient cause of action exists, and the case is
one of those mentioned in section 146. The affidavit shall be either positive or upon
information and belief; and when upon information and belief, it shall state the facts upon
which the information and belief are founded. * * *
Sec. 170. A defendant arrested may, at any time before the justification of bail, apply to
the judge who made the order, or the court in which the action is pending, upon reasonable
notice to the plaintiff, to vacate the order of arrest or to reduce the amount of bail. If the
application be made upon affidavits on the part of the defendant, but not otherwise, the
plaintiff may oppose the same by affidavits or other proofs in addition to those on which the
order of arrest was made.
Sec. 171. If, upon such application, it shall satisfactorily appear that there was not
sufficient cause for the arrest, the order shall be vacated. * * *
The affidavit upon which the order of arrest was based, after the entitlement of the court,
reads: H. Feingold and J. Gluckman, Copartners, etc., Plaintiffs, v. Oliver Boyd, Defendant.
36 Nev. 162, 165 (1913) Ex Parte Boyd
Boyd, Defendant. State of Nevadass. County of Washoe. H. Feingold, being first duly
sworn, deposes and says that he is one of the plaintiffs in the above-entitled action; that at
different times within two months last past plaintiffs cashed for defendant, at the special
instance and request of defendant, certain checks drawn by defendant upon a bank in Fresno,
Cal.; that plaintiffs also loaned and advanced defendant the further sum of $50; that of the
amounts so paid and advanced to defendant the total sum of $450.65 remains unpaid; that
defendant has stopped payment upon the checks so cashed by plaintiffs, and that the bank
upon which they are drawn has refused to pay the same; that defendant has declared that he
will not pay to plaintiffs the amount so advanced by them; and that he is about to go to
Susanville, Cal. Wherefore affiant alleges that defendant is about to depart from the state with
intent to defraud plaintiffs, creditors of defendant, and asks that an order be made for the
arrest of defendant.
It appears, both from the order of arrest and from the motion to vacate the order, that the
order was based upon both the complaint and the affidavit of one of the plaintiffs. It is
entirely proper to base an order of arrest both upon a verified complaint and an affidavit for
arrest, and if both together are sufficient to justify the order, the order is not improvidently
issued. (Brady v. Bissell, 1 Abb. Prac. 76; Turner v. Thompson, 2 Abb. Prac. 444; Hoffman's
Provisional Remedies, N. Y. Code, p. 45.)
In Brady v. Bissell, supra, Hoffman, J., speaking for the court, said: A sworn complaint is
equivalent to an affidavit. In a late case, where the affidavit was in one point defective, but
the defect was supplied by the complaint, I granted the order reciting that it appeared by
affidavit, and the complaint duly sworn to, that a cause of action existed, etc. I am of opinion
that where the summons and complaint have been served, and are laid before the judge, upon
an application for an arrest upon an affidavit, the plaintiff is entitled to refer to it in order to
sustain the order, where the affidavit itself is defective.
36 Nev. 162, 166 (1913) Ex Parte Boyd
In other words, both documents may be treated as forming the grounds of the order, although
but one of them is mentioned.
In Hoffman's Provisional Remedies, page 45, the author says: In cases in which the
complaint should show the grounds of arrestcases where these are identical with the cause
of actionthe complaint may suffice as an affidavit. And where the complaint and summons
have been served, as are laid before the judge, upon an application for an arrest, upon an
affidavit which was defective, the complaint was resorted to in order to supply the defect. The
order recited that it appeared by affidavit and complaint that a cause of action existed, etc.
The sworn complaint was equivalent to an affidavit. In Seely v. Hoyt, April 13, 1854, it was
held at Special Term, Superior Court, with the approval of all the judges, that the analogy of
the 220th section respecting injunctions should prevail. The phraseology there was nearly
identical with that used in the 181st section and the weight of authority was in favor of the
proposition that a complaint sworn to is equivalent to an affidavit. See 6 Howard, 210.
2. The legislature of 1866, in appointing a commissioner to prepare and report to a
subsequent session for its adoption a civil practice act, provided in the act that the
groundwork of said act shall be the code of civil procedure now in force in the State of New
York, and the civil practice act of California. (Stats. 1866, p. 158.) Hence we think these
early New York authorities, which do not appear to have been overruled by later decisions,
are especially in point in construing similar provisions in our own statute.
This, we think, disposes of the contention of counsel for petitioner that the affidavit is
fatally defective in that it does not state a cause of action, particularly because it does not
allege that the plaintiffs were copartners.
3. We need not, we think, enter into a consideration of the question as to whether the
affidavit, of itself, states facts sufficient to justify the order. When a motion is made to vacate
the order, supported by affidavits, and counter affidavits are filed, and a hearing is had
upon such affidavits and the testimony of witnesses, the defendant is not entitled to be
discharged if the showing upon the hearing justified his being held, even though the
original ex parte showing was insufficient.
36 Nev. 162, 167 (1913) Ex Parte Boyd
counter affidavits are filed, and a hearing is had upon such affidavits and the testimony of
witnesses, the defendant is not entitled to be discharged if the showing upon the hearing
justified his being held, even though the original ex parte showing was insufficient. It has
been held, and we think with reason, that a defendant arrested in a civil action may move for
a discharge on the grounds that the affidavit or affidavits upon which the order was made are
insufficient, and if he takes that course alone, and the affidavits are insufficient, he is entitled
to be discharged, but if he joins with such grounds of motion the further ground that the
actual facts do not justify arrest, and supports the latter ground by affidavits, the plaintiff may
make a counter showing, and the order of the court in granting or denying the motion is based
upon the entire showing made at the hearing of the motion. This would seem to be the only
conclusion properly deducible from the provisions of our statute.
In Ziporkes v. Chmelniker, 15 N. Y. St. Rep. 215, the court said: The claim that the order
of arrest and attachment should have been set aside upon the papers upon which granted is
not well taken, because the papers were sufficient in the first instance; and, even if they were
not, affidavits being served with the order to show cause, the plaintiff had the right to read
additional affidavits in support of the process.
In Knickerbocker Life Ins. Co. v. Ecclesine, 42 How. Prac. (N. Y.) 201, the court said: A
judge upon granting an order of arrest is only bound to see that the plaintiff presents a prima
facie case, and if at the same time the plaintiff tenders a sufficient undertaking * * * an order
of arrest under our present system of practice is often granted as a matter of course. In such
case, the judge granting the order hears only one side; the plaintiff's statements may be highly
colored and strained; different conclusions may be drawn from them; the judge applied to,
being pressed with other business, has not the time to examine them very minutely, but grants
the order in the expectation that, if the defendant is able to overcome or explain the case
as made by the plaintiff, he will not neglect to do so, and set himself right before the
court, either upon the plaintiff's own papers, or upon new affidavits, prepared on behalf
of the defendant."
36 Nev. 162, 168 (1913) Ex Parte Boyd
order in the expectation that, if the defendant is able to overcome or explain the case as made
by the plaintiff, he will not neglect to do so, and set himself right before the court, either upon
the plaintiff's own papers, or upon new affidavits, prepared on behalf of the defendant.
In the case of Harriss v. Sneeden, 101 N. C. 273, 7 S. E. 801, the court said: The
defendant may, at any time before judgment, move to vacate the order of arrest upon the
ground that it was irregularly granted, or that the evidence and the facts found were
insufficient to justify it. In such case the plaintiff cannot be allowed to offer additional
evidence to support his motion improperly granted. (The Code, sec. 317; Bear v. Cohen, 65
N. C. 511; Devries v. Summit, 86 N. C. 126.) But the defendant may also support his motion
by producing counter affidavits and other appropriate evidence to prove that the plaintiff's
motion for the order of arrest was not well or sufficiently founded. In this case the plaintiff
may produce additional affidavits and other pertinent evidence to cure defects and strengthen
his case. (Clark v. Clark, 64 N. C. 150; Devries v. Summit, supra.) The court, having the
order of arrest and the motion to vacate it before it, will determine whether or not for any
cause the order was improvidently granted, and, if need be, finding the facts from the whole
evidence and considering and applying the same, it will direct that the order remain
undisturbed; that it be modified in some particular, or vacated, accordingly as it may be of
opinion, one way or the other.
A motion to vacate the order of arrest should be allowed, if, upon all the facts found and
the law arising thereon, the court should be satisfied that the order ought to be vacated. But
when the order was properly granted, as the facts at first appeared, a mere denial by the
defendant of the plaintiff's allegation sufficiently made would not be sufficient to prompt the
court to allow a motion to vacate the order. Nor ordinarily would the admission of the
material facts upon which the order was granted, and facts made to appear in avoidance of the
case made by the plaintiff, be sufficient, unless such facts in avoidance should have such
point and weight as to satisfy the court that the plaintiff's grounds for the order of arrest
were not well founded.
36 Nev. 162, 169 (1913) Ex Parte Boyd
to satisfy the court that the plaintiff's grounds for the order of arrest were not well founded.
The order regularly and properly grantedthat is, granted upon sufficient proof to warrant it
upon the applicationshould not be vacated, but upon convincing proof that it should be.
(Hale v. Richardson, 89 N. C. 62; 1 Whit. Prac. 4th ed. 421, 422; 3 Estee's Pleading, sec. 401,
41, et seq.; 1 Gray's N. Y. Prac. 91, et seq.)
As the legality of the petitioner's detention by the respondent, sheriff, resolves itself into
the question of the sufficiency of the showing made upon the motion to vacate, it would be
sufficient to say that all the evidence before the court below is not before us in this
proceeding.
Taking the affidavits alone which were filed by the respective parties, and which are
embodied in the return, and we think we would not be justified in ordering the petitioner's
discharge. We may concede, for the purposes of this case, that had defendants not filed
counter affidavits, the court may have been justified in releasing petitioner from arrest.
Defendant in his affidavit alleged facts which if true might be a defense to the action, a
question upon which we express no opinion, and which would negative any intent to leave
the state for the purpose of defrauding creditors. But the defendant's affidavit is negatived by
the counter affidavit of the plaintiffs in the action; besides, they have filed the affidavits of a
number of other parties upon the disputed questions of fact. Defendant avers that he had no
intention of leaving the state with intent to defraud creditors, but he does not say that he did
not intend to leave the state. The affidavits of plaintiffs and other parties in their behalf were
to the effect that the defendant had actually been paid by plaintiffs the money upon the checks
upon the Fresno (Cal.) bank, upon which payment had been stopped by defendant. If the
affidavits upon the part of plaintiffs were true, and we must presume them to be upon this
hearing, then we have the fact of defendant receiving from plaintiffs several hundred dollars
on his checks, subsequently his stopping payment at the bank, repudiating his indebtedness
and announcing his intention to leave the state.
36 Nev. 162, 170 (1913) Ex Parte Boyd
announcing his intention to leave the state. In addition to this it is shown without
contradiction that after he had stopped payment on his checks, but before plaintiffs were
informed thereof, he borrowed $50 additional from plaintiffs for which he gave no check.
The facts may be as counsel for petitioner asserts; that defendant has been grossly wronged
by plaintiffs; that they took advantage of his intoxicated condition to induce him to indorse
checks and deliver the same to them under circumstances which virtually was a fraud upon
the defendant; that he was justified in stopping payment upon the checks; and that plaintiffs
have imposed another great wrong upon defendant by causing his arrest and detention, but
were not warranted in this proceeding in adopting counsel's version of the merits of the case.
We cannot say from the return to the writ that the defendant is now being held under
commitment improvidently issued, and the proceedings therefore must be dismissed.
It is so ordered.
____________
36 Nev. 171, 171 (1913) In Re Swall
[No. 2075]
In the Matter of the Application of J. C. SWALL and ELLEN E. SWALL (His Wife) for a
Writ of Habeas Corpus on Behalf of ALBERT EDMOND SWALL (a Minor), against
ANDREW F. SWALL and MARGARET A. SWALL (His Wife.)
1. Habeas CorpusScope of RemedyCustody of Children.
A writ of habeas corpus for the custody of a minor child held by persons other than his parents will not
be denied because it is not held by actual force but remains with the respondents because of natural
inclination.
2. Habeas CorpusCustody of MinorsContracts.
An oral agreement whereby the father of a minor child surrendered its custody to a third person is not
void as against public policy, but will be enforced for the benefit of the minor.
3. Habeas CorpusCustody of InfantContracts.
An oral agreement entered into by the father of a minor in California, giving its custody to a third person,
is valid and binding on the mother, where the parents had separated by agreement; the custody of the minor
having been given to the father.
4. Habeas CorpusCustody of ChildEvidenceSufficiency.
In habeas corpus for the custody of a minor child held under an agreement by respondents, who were not
his parents, with his father, evidence held to show that it is for the benefit of the minor to enforce the
agreement.
Original proceeding in habeas corpus. Application by J. C. Swall and Ellen E. Swall for
writ of habeas corpus on behalf of Albert Edmond Swall against Andrew F. Swall and
Margaret A. Swall. Writ denied.
Lunsford & Fowler, for Petitioners.
Dixon & Miller, for Respondents.
This is an original proceeding in habeas corpus.
The petitioners for the writ, J. C. Swall and Ellen E. Swall, are the natural parents of the
said Albert Edmond Swall, a minor, born November 16, 1897. The petition charges that the
said minor is unlawfully detained, held, kept, and restrained by Andrew F. Swall and
Margaret A.
36 Nev. 171, 172 (1913) In Re Swall
A. Swall at their home, known as the Swall ranch, situate about eight miles from the city of
Reno. The petition for the writ set up the fact that prior to the application to this court a
similar application had been made to the Second judicial court, Hon. T. F. Moran, Judge, and,
after hearing upon return of the writ, the proceedings were dismissed. The return to the writ in
this case raises the question of the authority of this court to take cognizance of the questions
presented otherwise than on appeal from the order of the lower court entered on the
proceedings therein. The return also sets forth the following allegations of fact: That Albert
Edmond Swall, otherwise known as Albert Swall, is not now, nor was at the time of issuing
the annexed writ, in the custody or possession of or confined, held, or kept or restrained of his
liberty by said respondents. That your respondents have not, nor has any one by their
authority, exercised any physical restraint over the said Albert Edmond Swall before or since
the issuance of said writ; and said respondents further say that they know of no obstacle or
impediment to prevent the said Albert Edmond Swall from being present before this
honorable court at the time and place fixed in the said writ; but, in order to comply with the
order of your honorable court, these respondents have requested, and now request, the said
Albert Edmond Swall to appear, and they have no doubt he will voluntarily appear at the time
and place fixed in said writ. That about thirteen or fourteen years ago the said Ellen L. Swall,
one of the petitioners for said writ, deserted her husband (the said J. C. Swall) and at the same
time deserted her child (the said Albert Edmond Swall), then about 2 years of age; that after
said desertion the said Albert Edmond Swall remained in the care and custody of his said
father for a period of two or three years and during such period, owing to the dissolute habits
of the said J. C. Swall, was not properly cared for, and at the end of said time was taken care
of by a sister of the said J. C. Swall, to wit, Louisa Tomlinson, for about one year. That, while
the said Albert Edmond Swall was so in the care and custody of the Louisa Tomlinson, the
said respondents made a visit to the said Louisa Tomlinson, in Sonoma County, State of
California, and saw the said Albert Edmond Swall and took a great liking for him.
36 Nev. 171, 173 (1913) In Re Swall
so in the care and custody of the Louisa Tomlinson, the said respondents made a visit to the
said Louisa Tomlinson, in Sonoma County, State of California, and saw the said Albert
Edmond Swall and took a great liking for him. That the said Albert Edmond Swall, then some
5 or 6 years of age, returned the affections bestowed upon him by said respondents,
whereupon the said respondents asked the said J. C. Swall and the said Louisa Tomlinson for
the boy, whereupon the said J. C. Swall, with the consent of the said Louisa Tomlinson, gave
the said Albert Edmond Swall to said respondents to be by them taken and treated as their
own son and adopted as such, so that he might become an heir by inheritance of such
respondents. That thereupon said respondents took the said Albert Edmond Swall with them
to their home and he has ever since lived with said respondents and has been educated and
treated by them in every respect and loved by them as their own son. That the said Albert
Edmond Swall has never at any time been restrained of his liberty or detained against his will,
but he has at all times voluntarily remained and lived with said respondents, has looked upon
them as his parents, and has at all times desired and now desires to remain with them and be
adopted formally as their son. That respondents have at all times had and now have great
affection for the said Albert Swall, and said affection has been fully returned by him, and it
would cause him great distress if he were forcibly or otherwise taken from the care,
companionship, and relationship of son to the respondents. That no children have resulted
from the marriage of said respondents and they have recently filed a petition in the Second
judicial district court of the State of Nevada to be allowed to adopt the said Albert Edmond
Swall as their son, and the said Albert Edmond Swall has become a party to said petition and
consented to and requested that the prayer of said petition may be allowed, and that he be
adopted as the son of the said Andrew F. Swall and Margaret A. Swall. That recently the said
Andrew F. Swall filed another petition in said Second judicial district court of the State of
Nevada, in and for the county of Washoe, to be appointed guardian of said Albert Edmond
Swall, and the said Albert Edmond Swall has in said proceedings made and filed a
nomination of guardian, a copy whereof is hereunto annexed marked Exhibit B, wherein
and whereby he nominated the said Andrew F.
36 Nev. 171, 174 (1913) In Re Swall
another petition in said Second judicial district court of the State of Nevada, in and for the
county of Washoe, to be appointed guardian of said Albert Edmond Swall, and the said
Albert Edmond Swall has in said proceedings made and filed a nomination of guardian, a
copy whereof is hereunto annexed marked Exhibit B, wherein and whereby he nominated the
said Andrew F. Swall as the guardian of his person. That the said respondents are the owners
of property worth between $15,000 and $20,000, over and above all debts owed by them, and
they desire that the said Albert Edmond Swall, otherwise known as Albert Swall, should
become heir to the said property. Said respondents have been informed and believe, and
therefore ever, that said J. C. Swall and Ellen E. Swall are possessed of very little property
and depend for their living almost entirely upon the daily labor of the said J. C. Swall and
Ellen Swall and two other children who are assisting in their support.
1. If the contention of counsel for petitioners is correct, that they are entitled to the custody
of their minor child by virtue of the mere fact that they are his natural parents and are not
shown otherwise to be improper persons to be intrusted with the custody of such minor,
petitioners should prevail unless there is something in the contention of respondents that they
are not holding said minor under any physical restraint. In this, as in probably most cases
where a minor is abiding with persons who as to him are in loco parentis, no physical
restraint is necessary, for the natural inclination of the child does away with any necessity of
force. But where, as in this case, a right to the possession of the minor is claimed, the right to
retain such possession by such force as may be necessary may be assumed and that, if
necessary, it would be exercised. Proceedings in habeas corpus have so frequently been
resorted to to determine the right to the possession of a minor that the question of physical
restraint need be given little or no consideration where a lawful right is asserted to retain
possession of the child.
36 Nev. 171, 175 (1913) In Re Swall
2. Respondents assert a legal right to the possession of the minor, Albert Edmond Swall,
by virtue of an oral agreement made by the minor's father, one of the petitioners, at a time
when such minor was but 5 or 6 years old, and at a time when the petitioners were living
separate and apart from each other and such minor was in the actual custody and control of
his father, but residing with an aunt, a sister of the father, which agreement was to the effect
that said minor be given to respondents to be by them taken and treated as their own son and
heir, which agreement has been acted upon for nearly ten years. There are cases holding that
agreements of this kind are void as against public policy and that they will not be enforced
against the claim of the natural parents or either of them. The weight of modern authority,
however, seems to recognize such agreements as enforceable where it appears to the
advantage of the minor to enforce the same. This latter view seems to us to be supported by
the better reason. It recognized the superior rights of natural parents, all other matters being
equal, but places the interest of the child as the first consideration, and, where it appears that
the interest of the child will manifestly be advanced by enforcing such agreement, the same
will not be disturbed. (Stanford v. Gray, 129 Pac. 423; Matter of McDowle, 8 Johns. 328;
Curtis v. Curtis, 5 Gray, 537; Dumain v. Gwynne, 10 Allen, 270; Legate v. Legate, 87 Tex.
248, 28 S. W. 281; Miller v. Miller, 123 Iowa, 165, 98 N. W. 631; Hohenadel v. Steele, 237
Ill. 229, 86 N. E. 719; Carpenter v. Carpenter, 119 Mich. 167, 77 N. W. 703; Anderson v.
Young, 54 S. C. 388, 32 S. E. 448, 44 L. R. A. 277; Fletcher v. Hickman, 50 W. Va. 244, 40
S. E. 371, 55 L. R. A. 896, 88 Am. St. Rep. 862; Lamar v. Harris, 117 Ga. 993, 44 S. E. 866;
Clark v. Bayer, 32 Ohio St. 299, 30 Am. Rep. 593.) See, also, 29 Cyc. 1591-1601.
In the very recent case of Stanford v. Gray, supra, the court said: There are some
authorities which hold that a contract made by a parent in which he surrenders the care,
control, and custody of his minor child to another is void as against public policy.
36 Nev. 171, 176 (1913) In Re Swall
care, control, and custody of his minor child to another is void as against public policy. The
great weight of authority, however, sustains the position of appellants that a parent may by
contract legally transfer and surrender his infant child into the custody of another where the
interest of the child is not prejudiced by the transaction; and, in all controversies arising
respecting the custody of the child after such transfer and surrender have been made, the
paramount consideration (the question of controlling importance) is the interest, welfare, and
happiness of the child. In other words, while contracts of this kind, fairly and voluntarily
entered into, are valid as between the parties, they will not be enforced to the detriment of the
child.
In Legate v. Legate, supra, the court said: The right of the parent or the state to surround
the child with proper influence is of a governmental nature, while the right of the child to be
surrounded by such influences as will best promote its physical, mental, and moral
development is an inherent right, of which, when once acquired, it cannot be lawfully
deprived. Ordinarily the law presumes that the best interest of the child will be subserved by
allowing it to remain in the custody of the parents, no matter how poor and humble they may
be, though wealth and worldly advancement may be offered in the home of another. Where,
however, a parent, by writing or otherwise, has voluntarily transferred and delivered his
minor child into the custody and under the control of another, as in the case at bar, and then
seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the
exercise of the equitable discretion of the court to disrupt private domestic relations which he
has voluntarily brought about, and the court will not grant the relief, unless upon a hearing of
all the facts it is of the opinion that the best interests of the child would be promoted thereby.
It is sometimes said that such a voluntary transfer is void' or that it is contrary to public
policy'; but the cases using such language show that it is not used in an absolute sense, but in
the sense that such transfer is no impediment to the action of the court in determining
what is best for the interest of the child.
36 Nev. 171, 177 (1913) In Re Swall
that such transfer is no impediment to the action of the court in determining what is best for
the interest of the child. The law does not prohibit such a transfer, but on the contrary allows
the child to reap the benefit thereof when it is to its interest so to do.
Upon the hearing upon the return of the writ, testimony, subject to objection, was heard
upon the part of petitioners and respondents. The petitioner J. C. Swall, father of the minor,
was not present at the hearing, and there was no attempt to dispute the agreement as testified
to by the respondents, Andrew F. Swall and his wife, Margaret A. Swall, by the terms of
which agreement the child in question was given to them by the father to be kept and raised
as their own son, and that this agreement has been carried out by respondents in letter and
spirit for nearly ten years.
It is contended by counsel for petitioner that, as the agreement in question was made in
California, the law of that state controls, and it is claimed that the decisions of the courts of
that state sustain the contention of petitioners. Counsel cites the cases of Ex Parte Clark, 87
Cal. 638, 25 Pac. 967, Johnson's Estate, 98 Cal. 531, 33 Pac. 460, 21 L. R. A. 380, and Ex
Parte Hart (Cal. App.) 130 Pac. 704, in support of this view. In none of the cases cited does it
appear that the precise question involved in this case was presented. Questions involved in
those cases grew out of proceedings in guardianship or adoption which are controlled by
statute. We think it would be unreasonable to assume, from anything which appears in the
cases cited, that the court of last resort of California would refuse to enforce a contract such
as is involved in this case where it clearly appeared to be to the best interest of the minor to
enforce it.
In Re Campbell, 130 Cal. 380, 62 Pac. 613, the court said: The father's right is, however,
coupled with the obligation to support and educate the child (Civ. Code, 196), and is also
qualified and strictly limited by the fact that the child itself is a human being, and as such
vested with rights for which it is entitled to protection. Hence it is the clear right and duty of
the state, to the extent the protection of the child may require, to control and limit, and
under certain circumstances to terminate, the right of the father.
36 Nev. 171, 178 (1913) In Re Swall
it is the clear right and duty of the state, to the extent the protection of the child may require,
to control and limit, and under certain circumstances to terminate, the right of the father.
Accordingly, independently of numerous statutory enactments, courts of equity have always,
by the appointment of guardians and otherwise, exercised a liberal jurisdiction over the
persons and estates of minors; and this jurisdiction may be said to be limited only by the
principle on which it rests, namely, the necessity of protecting the rights of the child. But the
question here does not relate to the general right of the state, as exercised by the English court
of chancery or courts of equity in this country, but to the special powers conferred by the
codes on the superior court for the appointment of guardians. These do not purport to confer
upon the superior court, acting in the special proceeding, all the powers hitherto exercised by
courts of equity, but only the power to appoint guardians in certain cases (Code Civ. Proc.
1747) and under certain conditions (Code Civ. Proc. 1751); and the case is therefore to be
determined by these provisions. By the former section the power of the court to appoint
guardians is limited to the case of minors who have no guardian legally appointed by the will
or deed'; and the same limitation is prescribed by section 243 of the civil code and section
241 therein cited. In the latter section the power of the parent to dispose of the custody of the
child by will or deed is expressly recognized; and this must be taken as a recognition of the
general right of the parent to dispose of the custody of the child, of which it is but a special
example. For it would be unreasonable to suppose that the legislature intended to limit or
restrict a right, universally recognized in our own and all systems of law, to the single case
provided for, which must therefore be regarded simply as an application of the recognized
principle.
In Stanford v. Gray, supra, the Supreme Court of Utah said: There being no evidence to
the contrary, it will be presumed that the law of the State of California relating to the
forfeiture of the custody of minor children is the same as the law of this state.
36 Nev. 171, 179 (1913) In Re Swall
to the forfeiture of the custody of minor children is the same as the law of this state. * * * The
portion of the decision referred to (130 Cal. 380; 62 Pac. 613) no doubt was put in evidence
for the purpose of showing the state of the law in California' on the question here in
controversy, as construed by the supreme court of that state, and the decision seems to
recognize the validity of contracts of the character of the one under consideration.
Section 197 of the civil code of California provides; The father of a legitimate,
unmarried, minor child is entitled to its custody, services and earnings; but he cannot transfer
such custody or services to any other person, except the mother, without her written consent,
unless she has deserted him, or is living separate from him by agreement.
The proof in this case shows that some time in the year 1900 the petitioners separated and
lived separate and apart from each other until the year 1909, when they again resumed marital
relations. At the time of the separation two of their four children were taken by the mother
and have since remained with her. The minor in question in this case was left with the father,
who subsequently placed him in the care of a married sister, where he remained until he was
taken by respondents. The other child at some time, which does not appear from the evidence,
was placed with another married sister of the father, where she still remains.
3. While there is no direct evidence that petitioners were living separate from each other
by agreement, we are warranted, we think, in arriving at that conclusion from the evidentiary
circumstances in the case. The case of Ex Parte Hart, supra, supports the view that a
relinquishment of the right of custody of a minor by the father at a time when the mother was
living separate from him by agreement would be binding on both. So that, if we concede that
the law of California controls, it is our judgment that the father's agreement is binding unless
it be shown that it would be to the best interests of the minor not to enforce such agreement.
36 Nev. 171, 180 (1913) In Re Swall
4. After petitioners resumed marital relations in 1909, no effort was made to gain
possession of the minor child until June of this year. It may be conceded from the showing
that petitioners are now able to care for the child in controversy. It does not appear, however,
that the minor's welfare will be promoted if the agreement as to custody is not enforced. The
allegations in the return to the writ are in the main supported by the evidence introduced. The
respondents are the uncle and aunt of the minor. For the past nine years, in pursuance of the
agreement, they have cared for and given him the advantages of schooling the same as if he
were their own son. They have regarded him as a son and he has regarded them as the only
parents he ever knew. Respondents have no children of their own and are desirous of making
him heir to their estate. The minor himself has expressed a strong preference to remain with
respondents, and he has arrived at that age when his preference should be given
consideration. The undisputed facts of this case, we think, amply warrant the enforcement of
the agreement for the best welfare of the minor.
Nothing in this decision should be taken as affecting the jurisdiction or discretion of the
district court in determining the proceedings in guardianship or adoption mentioned in the
return to the writ, but those proceedings should be determined as the facts therein presented
and the law warrant.
This proceeding is dismissed.
____________
36 Nev. 181, 181 (1913) Konig v. Nevada-Cal.-Ore. Ry.
[No. 2017]
WILLIAM KONIG, Respondent, v. THE NEVADA-CALIFORNIA-OREGON RAILWAY
(a Corporation), Appellant.
1. Appeal and ErrorNotice of AppealFiling and Service.
Where it appeared that a copy of notice of appeal was served on the attorneys for the respondent on the
same day that the original notice was filed with the clerk, it would be presumed, in the absence of proof to
the contrary, that the filing preceded the service.
2. Appeal and ErrorNotice of AppealFiling and Service.
The indorsements and the file marks on the original notice of appeal filed with the clerk of the court were
no part of the notice, and a failure to include them in the copy served on the adverse party did not affect its
validity.
3. Appeal and ErrorMotions to DismissEvidence.
Where, on a motion to dismiss an appeal on the ground that the copy of the notice of appeal was served
on the respondent before the filing of the original, it appeared that the filing and service were on the same
day, and the affidavit of respondent's counsel that the original was filed after the service of the copy was
apparently based upon the assumption that the copy should have included a copy of the indorsements on
the original, contained no facts showing any particular knowledge of the order of filing and service, other
than that gained from the documents, and was contradicted by the affidavit of the appellant's attorney that
the filing preceded the service, the presumption that they were filed in regular order was not overcome.
4. Appeal and ErrorUndertakingExceptions to SuretiesNotice.
While Comp. Laws, 3443, providing that the adverse party may except to the sufficiency of the sureties in
an undertaking on appeal, does not require such party to serve notice of his exceptions upon the appellant,
the appellant is entitled to such notice, in view of district court rule 10, providing that motions, except ex
parte motions, etc., shall be noticed at least five days before the day specified for a hearing.
5. Appeal and ErrorUndertakingExceptions to SuretiesRequisites and Sufficiency.
Comp. Laws, 3443, provides that the adverse party may except to the sufficiency of the sureties in an
undertaking on appeal, and that unless they or other sureties justify before the judge or clerk the appeal
shall be regarded as if no such undertaking had been given. Section 3699 provides that, where sureties are
required to justify, they shall appear before the officer or person authorized to take the
justification, and may be examined under oath touching their qualifications as
sureties.
officer or person authorized to take the justification, and may be examined under oath touching their
qualifications as sureties. The act of March 26, 1909, sec. 5 (Rev. Laws, 698), provides relative to the
justification by a surety company that a certificate of the secretary of state, showing that such company is
authorized to do business in the state, shall be prima facie evidence of all matters therein stated, that any
printed copy of a circular issued by the United States treasury department, stating the amount of the capital
and surplus of any such company, shall be prima facie evidence of the amount of such capital and surplus,
and that, if accompanied with the certificate of the secretary of state, it shall be a complete justification for
any amount not exceeding 10 per centum of the capital and surplus. Held, that an instrument excepting to
the sufficiency of the surety on an undertaking on appeal, and asking that such surety appear before the
judge and justify as required by section 3443, although probably sufficient where personal sureties are
given, was not a sufficient exception where the undertaking was executed by a surety company; section 698
having provided an entirely different method for the justification of such companies.
6. NegligencePleadingNegativing Contributory Negligence.
In an action for damages for personal injuries, contributory negligence is a matter of defense, and
plaintiff need not allege that the injury was caused without his fault, unless in stating his cause of action he
details facts disclosing prima facie that he was guilty of contributory negligence or that his acts were the
proximate cause of the injury, in which case he must allege that the injuries occurred without his fault.
7. NegligencePleadingContributory NegligenceIssues.
Contributory negligence must be specially pleaded as an affirmative defense, and cannot be proved under
a general denial, and a denial that plaintiff was exercising ordinary care and diligence, or any care and
diligence, or that he was without fault or negligence, as unnecessarily alleged by him, did not raise such
issue.
8. NegligenceActions for InjuriesQuestions for Jury.
Where plaintiff's evidence shows contributory negligence without dispute, or so conclusively that the
court, in the exercise of sound judicial discretion, would be compelled to set aside a verdict for plaintiff, a
verdict for defendant should be directed; but where it only tends to show contributory negligence, or only
raises an inference thereof, the question should be submitted to the jury.
9. NegligenceActions for InjuriesContributory Negligence.
Where plaintiff's evidence discloses contributory negligence, defendant may take advantage thereof by a
motion for a nonsuit or a directed verdict, or in the argument to the jury, even though contributory
negligence has not been pleaded; but if plaintiff's evidence does not show contributory negligence as a
matter of law, defendant cannot introduce additional evidence to show such negligence.
10. Master and ServantLiability for InjuriesProximate Cause.
The ripsaw operated by the plaintiff had become dished and would not run straight, as a result of which
the material which was being sawed had a tendency to jump away from the saw. While plaintiff was sawing
a buffer block, the saw started to buckle and tried to throw the block off. Plaintiff tried to push the block
through, whereupon the saw pulled it from his hand, throwing it against him and injuring him. Held, that
the defect in the saw, and not plaintiff's act in attempting to force the block against it, was the proximate
cause of the accident.
11. NegligenceLiabilityProximate Cause.
Where the first wrong done is the probable cause of an injury or accident, and the final injurious
consequences are such as might have been foreseen, the consequence, as well as every intervening result, is
the proximate result of the first wrongful cause.
Where a new cause intervenes between the first wrongful cause and the final injurious consequences,
which is not under the control of the first wrongdoer, and which he could not with reasonable diligence
have foreseen, and except for which the final catastrophe could not have happened, the final result is too
remote to furnish the basis of an action.
13. Master and ServantActions for InjuriesQuestions for Jury.
In an employee's action for injuries caused by a ripsaw binding and heating, and throwing the block
which he was sawing against him, evidence held to make a question for the jury as to whether he was
negligent in attempting to push the block through, instead of drawing it back or turning off the power.
Where a succession of events are so linked together as to make a natural whole, and all so connected with
the first event as to be in legal contemplation the natural result thereof, the first negligent act is the
proximate cause of the resulting catastrophe, although there may be intervening agencies, one of which is
the act of the party injured.
15. Master and ServantLiability for InjuriesAssumption of Risk.
An employee cannot recover for injuries brought about by his own negligence in performing an act, the
danger of which was so obvious and threatening that a reasonably prudent man under similar circumstances
would have avoided them, if in his power to do so; he being deemed to have assumed the risks involved in
such a reckless exposure of himself to danger.
In determining whether an employee recklessly exposed himself to danger, or exercised the care that a
prudent person would exercise for his own personal safety, the imperfections of human
reasoning and the peculiar conditions surrounding each particular case and each
particular individual must be given consideration.
would exercise for his own personal safety, the imperfections of human reasoning and the peculiar
conditions surrounding each particular case and each particular individual must be given consideration.
17. Master and ServantLiability for InjuriesContributory Negligence.
An employee is only required to exercise ordinary, and not extraordinary, diligence for his own safety.
In an employee's action for injuries caused by the defective condition of the saw which he was operating,
evidence held to make a question for the jury as to whether the defect had been called to the employer's
attention.
Where an employee, noting a defect in machinery, complains thereof to the employer, who promises to
remedy the defect, the employee, in reliance upon such promise, may continue in the service for a
reasonable time without assuming the risk, unless the danger is so imminent and immediate that a person of
ordinary prudence would refuse to continue in the service; but continuance in the service for a period of
time beyond which it would be reasonable to expect that the promise would be kept defeats the employer's
liability.
In an employee's action for injuries caused by the dished condition of a ripsaw, evidence held sufficient
to make a question for the jury as to whether the danger from such condition was so imminent and
immediate that a reasonably prudent man should have refused to continue in the service in reliance on the
employer's promise to repair.
In an employee's action for injuries caused by a defective ripsaw which he was operating, evidence held
sufficient to make a question for the jury as to whether it was his duty to set and file the saws used by him.
22. Master and ServantLiability for InjuriesDefective Machinery.
An employer, whose attention had been drawn to a defect in a machine operated by an employee, could
not avoid the obligation to repair the defect by any rule imposing the duty of repair on the employee.
23. EvidenceOpinion EvidenceUsurping Functions of Jury.
In an employee's action for injuries caused by defects in a saw, witnesses could testify as to its condition
and the circumstances which came under their observation, but could not draw inferences and conclusions
as to the danger or safety; these matters being for the jury.
24. Master and ServantContributory NegligenceActs of Third Persons.
Contributory negligence on the part of an employee could not be proved by testimony as to what other
persons did, might do, or were in the habit of doing under like conditions.
In an action for injuries claimed to have been caused by a defective ripsaw binding and heating, and
throwing the block which plaintiff was sawing against him, evidence held sufficient to make a question for
the jury as to whether the accident occurred in the manner claimed.
26. Master and ServantLiability for InjuriesAppliances and Places to Work.
An employer is only required to exercise reasonable care to furnish an employee a reasonably safe place
in which to work and reasonably safe appliances with which to work, and to maintain this condition.
27. Master and ServantTrialActions for InjuriesInstructions.
An instruction that it was the duty of an employer to use due care in providing an employee with safe
machinery and in keeping and maintaining the machinery in such condition as to be reasonably and
adequately safe for use was not erroneous, as requiring the employer to do more than to exercise reasonable
care to furnish reasonably safe appliances, especially in view of a further instruction that an employer was
not required to use more than ordinary care and diligence for the protection of employees, that he was not
bound to provide the very best materials, implements, or accommodations which could be procured, nor
those which are absolutely the most convenient or most safe, that his duty was sufficiently discharged by
providing those which were reasonably safe and fit, and that he performed his whole duty by using as much
care in furnishing instrumentalities for the use of his servants as a man of ordinary prudence in the same
line of business, acting with a prudent regard for his own safety, would do in supplying similar things for
himself, if he were doing the work.
28. Master and ServantActions for InjuriesInstructions.
An instruction that if a servant, having the right to abandon the service, refrained from doing so in
consequence of assurances that a danger would be removed, such assurance removed all ground for the
argument that the servant, by continuing in the employment, engaged to assume the risks, was too narrow,
since it failed to take into consideration the period of time during which the servant might reasonably rely
on the promise to repair, and failed to make any mention of the servant's duty, where he knew that an
accident was liable to occur.
29. TrialInstructionsCure of Defects.
An instruction that an assurance by an employer that a danger would be remedied removed all ground for
the argument that the employee by continuing in the employment engaged to assume the risk, was
cured by other instructions that under such conditions the employee might continue
in the service without assuming the risk, provided the danger was not of so imminent
a character that a person of ordinary prudence would refuse to continue in the
service, and that, where an employer had expressly promised to repair a defect, the
employee could recover for an injury occurring by reason thereof, within such period
of time after the promise as it would be reasonable to allow for its performance.
engaged to assume the risk, was cured by other instructions that under such conditions the employee might
continue in the service without assuming the risk, provided the danger was not of so imminent a character
that a person of ordinary prudence would refuse to continue in the service, and that, where an employer had
expressly promised to repair a defect, the employee could recover for an injury occurring by reason
thereof, within such period of time after the promise as it would be reasonable to allow for its performance.
30. Master and ServantActions for InjuriesInstructionsReckless.
In an employee's action for injuries, and instruction that it was for the jury to determine whether a defect
in a saw was such that no one but a reckless millman, careless of his safety, would have operated it without
it being repaired, was not objectionable because of the use of the word reckless, as the court might have
used the word heedless, careless, or indifferent with the same force and effect.
31. Master and ServantActions for InjuriesInstructionsBurden of Proof.
In an employee's action for injuries, where defendant failed to plead contributory negligence or assumed
risk, and therefore could rely thereon only so far as they might appear from plaintiff's case, an instruction
that, where defendant relied on the defense that plaintiff assumed the risk by reason of the ripsaw operated
by plaintiff being so imminently and immediately dangerous that a reasonably prudent person, situated as
the plaintiff was, would not have used it, this was an affirmative defense, the burden of establishing which
by a preponderance of the evidence rested on the defendant, was sufficient so far as it went, although the
court might properly have stated that if it appeared that plaintiff was the proximate cause of his own
injuries, and had so conducted himself as to assume the risk, defendant was entitled to take advantage of
that fact.
32. DamagesActions for InjuriesInstructionsAmount of Damages.
In an employee's action for injuries, it was not error to charge that, if the jury found for plaintiff, they
should assess his damages at a sum not greater than that claimed in the complaint; this not obligating the
jury to find a verdict in that specific amount.
33. Master and ServantActions for InjuriesEvidenceAssumption of Risk.
The facts that a ripsaw used by an employee was in a defective condition, which was known to the
employee up to and including the time of the injury, and that he was injured as a result of the defective
condition, did not in themselves prove that the ripsaw was so openly and obviously dangerous that a
reasonably prudent person would not have used it.
34. TrialInstructionsAssuming Facts.
In an employee's action for injuries, an instruction that the mere facts that prior to the injury the ripsaw
used by him was in a defective condition, which was known to him up to and including the time of the
injury, and that he was actually injured as a result of such defective condition, did not in themselves
establish that the ripsaw was so openly and obviously dangerous on account of such defects that a
reasonably prudent person would not have used it, was not erroneous or misleading, as assuming the facts
therein stated to have been proved or admitted.
35. TrialInstructionsCure by Other Instructions.
An instruction that the jury were at liberty to and should take into consideration all of the facts and
circumstances surrounding the testimony of the witnesses in determining the weight, credit, and value to be
given such testimony, that if their statements were contradicted by other witnesses the jury should give their
testimony only such credit as they might believe it was entitled to under all the circumstances detailed in
evidence, and that if they believed that any witness had wilfully sworn falsely to any material fact they
might disregard the whole or any part of such witness's testimony, except in so far as the same is
corroborated by some other credible witness or witnesses, was not erroneous, notwithstanding the failure
of the quoted portion to take into account circumstantial evidence, or the circumstantial features of the
case; the first part of the instruction having taken these elements into consideration.
36. NegligenceActions for InjuriesInstructions.
In an employees's action for injuries, an instruction that negligence was the want of such attention to
the nature or the probable consequence of an act or omission as a reasonably prudent person ordinarily
bestowed in acting in his concerns of like importance, although it might have been differently worded, was
not erroneous or misleading, or open to the construction that, if plaintiff's injuries were the consequence of
defendant's omission, then a want of attention to such injuries constituted negligence.
37. Master and ServantActions for InjuriesInstructionsOrdinary Care.
In an employee's action for injuries, and instruction defining ordinary care as such care as a person of
ordinary prudence usually exercised about his own affairs of ordinary importance was correct in the
abstract and not misleading.
38. Master and ServantActions for InjuriesInstructionsRisks Incident to the
Employment.
In an employee's action for injuries, an instruction that by risks incident to the employment was meant
such risks as existed after the master had performed his full duty to his servant in furnishing
instrumentalities, machinery, and appliances reasonably safe for the purpose for which they were
intended, that this included keeping them in reasonably safe repair, that by the
assumption of risk incident to the employment was not meant any additional or extra
hazard, occasioned by the master's negligence in failing to keep his tools, machinery,
and appliances in reasonably safe repair, was not erroneous or misleading.
intended, that this included keeping them in reasonably safe repair, that by the assumption of risk incident
to the employment was not meant any additional or extra hazard, occasioned by the master's negligence in
failing to keep his tools, machinery, and appliances in reasonably safe repair, was not erroneous or
misleading.
39. TrialInstructionsCure by Other Instructions.
It was not error to refuse an instruction, the subject-matter of which was covered by an instruction given.
40. Master and ServantActions for InjuriesPleadingAssumption of Risk.
In an employee's action for injuries, assumed risk, if relied upon by defendant, must be specially pleaded.
41. DamagesExcessivenessPersonal Injuries.
In an action for injuries to an employee 58 or 59 years old, who prior to the injury was earning between
$80 and $90 a month, it appeared that the injuries were of a severe and painful nature, permanently
affecting one side of his body and depriving him of the use of one arm, but it did not appear that he would
be entirely deprived of ability to enter into lines of employment involving less laborious tasks than his
former employment. It also appeared that he had suffered from malarial fever, pneumonia, and
cerebro-spinal fever, verging on cerebro-spinal meningitis, which might or might not materially affect his
expectancy of life. A physician's testimony that in his opinion a man in plaintiff's condition prior to the
accident could perform labor for at least ten years longer was uncontradicted. Held, that a verdict for
$15,000 was excessive, and required a new trial, unless plaintiff would consent to a modification of the
judgment to $10,000.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by William Konig against the Nevada-California-Oregon Railway. From a
judgment for plaintiff, and an order denying a new trial, defendant appeals. Heard on motion
to dismiss the appeal and on the merits. Motion denied, and judgment and order reversed, and
new trial granted, unless plaintiff consents to a modification of the judgment. Consent filed
and judgment affirmed as modified.
James Glynn, and Mack, Green, Brown & Heer, for Appellant:
Plaintiff's complaint shows that the act of the plaintiff was the proximate cause of the
injury. (Longabaugh Case, 9 Nev. 294
Case, 9 Nev. 294; Edgar v. Rio Grande Co., 11 L. R. A. n.s. 739; Kreigh v. Westinghouse, 11
L. R. A. n.s. 684; Milwaukee and St. Paul R. R. v. Kellogg, 94 U. S. 469; Thompson Neg.
vol. 1, sec. 50, 57, 2d ed. and cases cited.)
Regardless of whether the act of plaintiff was, or was not, the proximate cause of the
injury, having alleged in his complaint that he was exercising ordinary care and diligence,
and was without fault or negligence, and without any carelessness or negligence on his part,
the denial thereof in the answer raised an issue of contributory negligence. (Watkind v. S. P.
Ry., 4 L. R. A. 239; Berry v. Lake Erie, 170 Fed. 193.)
Under the facts in this case as shown by the complaint it was necessary to allege freedom
from contributory negligence. (Badovinac v. N. P. Ry. Co., 104 Pac. 543; Schroeder v.
Montana Iron Works, 100 Pac. 619; 29 Cyc. 575, 576, and cases cited; Wharton on
Negligence, 2d ed. sec. 426.)
Even though no issue is raised by the pleadings, if the testimony on direct or
cross-examination raises a presumption of contributory negligence, an instruction on
contributory negligence is proper.
Plaintiff pleads in his complaint the happening of a physical impossibility and testifies
fully to the same. Plaintiff testified, in accordance with the complaint, that the block had
passed the saw before the saw caught it. Facts which are axiomatic in character, or such as are
so universally accepted as to be part of the common knowledge of mankind, are required to
be judicially noticed by the court. (Hunter v. N. L. R. Co., 6 L. R. A. 246; Rogers v. Cady,
104 Cal. 288, 43 Am. St. 100; 16 Cyc. 852; French v. State Senate, 146 Cal. 604, 69 L. R. A.
556; Mullen v. State, 114 Cal. 578, 34 L. R. A. 262; Edsen v. S. P. Ry., 144 Cal. 182.)
Plaintiff's instructions given (No. 1, No. 4, No. 4a, and No. 4b) are erroneous. Plaintiff's
instruction No. 5 is erroneous. Nowhere in this instruction is the jury directed to a
consideration of the evidence, nor does the word evidence appear in the instruction. The
direction given is to return a verdict according to their judgment for alleged injuries.
direction given is to return a verdict according to their judgment for alleged injuries. This is
an example of the roving commission to find such damages as they please spoken of in
volume 4, Sedgwick on Damages, 9th ed. (1912) sec. 1320a, and held erroneous in Lexington
Ry. Co. v. Herring, 97 S. W. 1127 (Ky.); Camp. v. Wabash R. Co., 68 S. W. 96 (Mo.).
Plaintiff's instruction No. 6 assumes facts as proven, and informs the jury what the assumed
facts do not establish.
Instructions should not intimate that any fact is either proven or disproven which is
controverted. The jury should not be instructed in words or by intimation as to what inference
should or should not be drawn by them from any testimony given in the case.
Under the testimony given by plaintiff in this case the standard of ordinary care given in
this instruction (No. 9) is erroneous. The true rule is stated in Solen v. V. & T. R. R. Co., 13
Nev. 106; Beach on Con. Neg. 3d ed. sec. 21; Bailey, Personal Injuries, 2d ed p. 17.
A protest and promise to repair may be shown, and the servant may yet be guilty of
contributory negligence in using a dangerous and defective machine. (Green v. Cross, 79
Tex. 132; Railway Co. v. Sommers, 14 S. W. 779; Ry. Co. v. Bryant, 27 S. W. 825; Texas and
N. O. R. Co. v. Bingle, 29 S. W. 674.)
Parker & Frame, for Respondent:
The undertaking was made by a surety company. The points made on the bond are:
First, there was no showing made that the surety company making this bond was qualified
to transact any business in this state, or to make this bond. Second, the bond was never
presented to or approved by the judge of the lower court who tried the case. Third, the failure
of the surety company to justify after its sufficiency had been excepted to. Fourth, the bond is
void for uncertainty.
An examination of the statutes (Stats. 1903, p. 63, and Stats. 1909, p. 315) clearly shows
that an appeal bond made by a surety company is to be presented to, and approved by, the
trial judge.
and approved by, the trial judge. When the bond is so presented there are two things that must
be shown. One is that the surety company has complied with the laws of this state so as to be
qualified to transact business at all; the other is, Has it made a bond that is satisfactory in the
particular case?
We maintain that under the statutes this bond should have been presented to the trial
judge, and when so presented it should have been made to appear to the satisfaction of the
trial judge that under the charter of this company it had the power to make bonds on appeal. It
should have been further made to appear that this surety company had fully complied with the
laws of the State of Nevada. And it should have been made to further appear that this
company was financially able to make a bond in this amount. (Dodge v. Corliss, 68 Pac.
177.)
From the language of the statute it is apparent that it was the intention of the legislature
that surety companies were required under the law to justify whenever the sufficiency of the
said surety was excepted to, just the same as a private person. (Stats. 1909, p. 315; Fox v.
Hale & Norcross, 32 Pac. 446.)
Appellant cannot urge with any degree of consistency that this verdict is excessive, when
they never made any effort whatever to show that Konig was not permanently and seriously
injured. The very fact that they did not put the railroad doctor on the stand to testify as to the
extent of the injuries of the plaintiff, is a very strong circumstance going to show that the
injury and damage of the plaintiff was very serious and permanent.
The issue to be tried by the jury was whether or not the plaintiff while using the saw noted
the fact that it was out of repair, and whether or not the plaintiff reported this defective
condition to the master mechanic, and whether or not the master mechanic promised to have
the defect remedied and the saw repaired, and whether or not the plaintiff relied upon this
promise and continued to use the saw, and whether or not the plaintiff was injured and
damaged while using the saw in its defective condition by reason of said defects.
defective condition by reason of said defects. (Kirman v. Gilman, 2 Pac. 224; Taylor v. N.
C. O. Ry., 26 Nev. 415.)
Appellant says that the answer denies that at the time of the alleged injury plaintiff was
exercising ordinary care and diligence or any care and diligence, and denies that plaintiff was
without fault or negligence on his part.
In regard to this we will quote from one of appellant's own authorities: While such a
denial of a negative is objectionable, it must be held sufficient, unless objection thereto is
made in the lower court. (Smock v. Railway Co., 48 Pac. 681-683.) But all the evidence
offered by the appellant attempting to show contributory negligence was objected to, all
through this case. In fact, about sixty-five errors were assigned in the lower court, because the
objections of the plaintiff to the introduction of expert testimony for this purpose were
sustained by the court.
This is an action wherein William Konig, plaintiff and respondent, brought suit in the
Second judicial district court against the appellant herein, Nevada-California-Oregon
Railway, a corporation. The respondent, a man about 58 years old and of foreign birth, had
been in the employ of the defendant company for a period of about seven years, during which
time he had been more or less constantly engaged as a millman, performing services in and
about appellant's mill, and operating machinery and equipment therein, among which was a
circular ripsaw fourteen inches in diameter. Respondent was earning approximately $3 a day.
On the 1st day of December, 1909, at about 10 o'clock in the morning, the respondent was
injured by being struck with a piece of timber he had been cutting down to the proper
dimensions, with a circular ripsaw, for a buffer block for one of appellant's cars, pursuant to
instructions given him. By reason of the injuries thus sustained, respondent's left arm was so
maimed as to become entirely useless, his ribs on the left side were broken, and he was
internally injured.
broken, and he was internally injured. As a result of his injuries he was confined to his bed
for several months and forced to undergo an operation more or less serious in its nature. On
the 2d day of January, 1911, the respondent brought suit against the defendant corporation
and in due time the case was tried before a jury.
The defendant corporation joined issues with the plaintiff by an answer setting up specific
denials of each and every allegation of the complaint, omitting any plea of affirmative
defense. The result of the trial was a verdict for the sum of $15,000, by reason of which
verdict judgment was rendered in favor of the respondent and against the appellant. Motion
for a new trial having been made before the trial court, the same was denied, and from the
judgment and order denying defendant's motion for a new trial appeal is taken to this court.
A motion to dismiss the appeal has been made in this case on behalf of the respondent, and
two grounds are relied upon in support of that motion: First, that the copy of the notice of
appeal was served prior to the filing of the same; and, second, that the surety on the
undertaking on appeal failed to justify after exception was filed to the sufficiency thereof.
1-3. As to the first proposition, it appears that the notice of appeal was dated and filed
December 28, 1911, and there is attached to the original notice the affidavit of James Glynn,
attorney for appellant, set forth as follows: That on the 28th day of December, 1911, and
within the time allowed by law, at Reno, Nevada, he served a true copy of the within notice of
appeal on Parker & Frame, attorneys for plaintiff, by delivering to J. S. Parker, of said firm, a
true copy of said notice. Attached to the respondent's motion to dismiss is the affidavit of J.
S. Parker, one of the attorneys for respondent, which is in part as follows: * * * That at the
time of service of the copy of the notice of appeal the original notice of appeal had not been
filed in the office of the clerk of the Second judicial court, in and for Washoe County,
Nevada; that the notice of appeal as filed with said clerk was filed after the copy of the
same was served upon the attorneys for the plaintiff and respondent; that the notice
served upon the plaintiff and respondent was not and is not a copy of the notice of appeal
now on file herein; that the notice of appeal served upon the attorneys for the plaintiff
and respondent in this case on the 2Sth day of December, 1911, is attached hereto and
made a part of this affidavit."
was filed after the copy of the same was served upon the attorneys for the plaintiff and
respondent; that the notice served upon the plaintiff and respondent was not and is not a copy
of the notice of appeal now on file herein; that the notice of appeal served upon the attorneys
for the plaintiff and respondent in this case on the 28th day of December, 1911, is attached
hereto and made a part of this affidavit. The copy of the notice of appeal, attached to the
affidavit of J. S. Parker, quoted above, and made a part thereof, is a correct carbon copy of the
original notice of appeal, save and except that it does not contain a copy of the file marks of
the clerk.
In the case of Elder v. Frevert, 18 Nev. 279, this court held that when a transcript on
appeal fails to show that the notice of appeal was served as required by the statute, and a
motion is made to dismiss the appeal on that ground, the court may grant leave to the
appellant to supply this omission by filing an affidavit as to the proof of service upon the
argument of the motion.
In the case under consideration, after the motion to dismiss the appeal was filed in this
court, and on the 27th day of April, 1912, James Glynn, attorney for appellant, filed his
affidavit, in which he makes oath that a copy of the notice of appeal was served after the
filing of the original. In this respect the affiant, James Glynn, goes considerably into detail as
to the manner of filing and service. It appears from the record that the notice of appeal was
filed in the clerk's office on the same day on which it is admitted in the affidavit of
respondent's counsel the copy, as attached to the affidavit, was served on him. This court has
held that, where the proof shows that the service of copy was made on the same day as the
filing of the original, and in the absence of proof to the contrary, there is a presumption that
the filing and service proceeded in regular order; that is, that the notice was filed before the
copy was served. (State v. Alta S. M. Co., 24 Nev. 230.)
Counsel for respondent in its motion places great stress upon the fact the copy served does
not show the indorsements upon the back thereof, nor copy of the file marks of the clerk; but
in this respect it is our judgment that the indorsements upon the back of the original
notice are no part of the notice, and a failure to include all or any of them does not affect
the copy served.
of the clerk; but in this respect it is our judgment that the indorsements upon the back of the
original notice are no part of the notice, and a failure to include all or any of them does not
affect the copy served. It would seem that the affidavit of J. S. Parker, to the effect that the
original notice was filed after the service of a copy, was based, to some extent at least, upon
the assumption that the copy of the notice must also include a copy of all indorsements.
Nowhere in his affidavit does counsel for respondent set forth extrinsic facts which would
tend to show that he had any particular knowledge of the order of filing and service, other
than that gained from the documents themselves.
Even aside from the affidavits in this case, the record shows that the copy was served on
the same day on which it was filed. Therefore, in the absence of proof, the presumption is that
they were filed in regular order; hence it is incumbent upon counsel for respondent to
overcome this presumption. This, we think, in view of the counter affidavits in behalf of the
appellant, has not been accomplished.
4, 5. As to the second proposition relied upon in furtherance of respondent's motion to
dismiss, the record discloses that, on the day following the filing of the notice of appeal and
the undertaking on appeal, respondent filed his exception to the sufficiency of the surety in
the following form: Comes now the plaintiff in the above-entitled action and excepts to the
sufficiency of the securities on the undertaking filed herein on appeal and on stay of
execution on the 28th day of December, 1911, and asks that the said surety or sureties on said
undertaking appear before the judge of the Second judicial court in Washoe County, Nevada,
and justify sureties as required by section 3443 of the Compiled Laws of Nevada.
The statute in force at the time at which this appeal was taken did not require the party
excepting to the sufficiency of the surety to serve notice of his exception upon the adverse
party, and it is admitted in this case that no notice of respondent's exception was served upon
the appellant.
upon the appellant. It is contended by counsel for the respondent that under the provisions of
the statute they were not required to give or serve notice on appellant of a demand for
justification of the surety, but that appellant was bound, at its own peril, to take notice of any
such demand, and authorities are cited in support of that contention. To say the least, the
recognition and enforcement of a rule of this kind would be exceedingly harsh, and in view of
rule 10 of the district court, which we believe applicable to matters of this character, it is our
judgment that the appellant is entitled to notice of exception to the sufficiency of the surety
and demand for justification. Furthermore, this court held, in the case of Pratt v. Rice, 7 Nev.
123, that if on motion there is no good cause for haste or concealment, and if facts are to be
found in the ascertainment of which the opposite party is deeply interested, such party has a
right to notice and an opportunity to be heard.
In this case the appellant did not offer personal surety, but, on the other hand, the United
States Fidelity and Guaranty Company executed appellant's bond on stay of execution
pending the hearing and determination of the motion for a new trial, and the trial judge on the
16th day of November, 1911, approved the bond given on stay of execution. The rules of the
district court require that bonds given to stay execution, pending the determination of motion
for a new trial, must be approved by the court. The statute under which this appeal was taken
did not require the approval of undertakings upon appeal, in the absence of a demand for
justification of the surety.
The undertaking on appeal in this case was given pursuant to the provisions of the act of
March 26, 1909, authorizing surety companies to become sole surety upon official or other
bonds. The Revised Laws, secs. 695-701, supersede the prior act of 1887, as amended (Stats.
1903, p. 63). Applicable to this subject this court held, in the case of Botsford v. Van Riper,
32 Nev. 214, that the former act was a general law, which did not repeal the provisions of the
practice act relative to undertakings, but provided an additional method for furnishing such
undertaking at the option of the appellant.
but provided an additional method for furnishing such undertaking at the option of the
appellant.
Section 5 of the act of 1909 (Rev. Laws, 698) provides how surety companies shall justify
when required so to do. The section is as follows: The certificate or any duplicate certificate
issued by the secretary of state in accordance with the provisions of this act shall be prima
facie evidence in all the courts of this state of all matters herein stated; provided, such
certificate be not more than six months issued. Any printed copy of a circular issued by the
treasury department of the United States known as Form No. 356, stating the amount of the
capital and surplus of any such surety company, and not more than six months old, as appears
from the date of issuance thereof, shall be prima facie evidence of the amount of such capital
and surplus and of the amount to which such company is entitled to be received as sole surety
on any bond in this state, and shall, if accompanied with the certificate of the secretary of
state herein mentioned, be a complete justification for any amount not exceeding ten per
centum of such capital and surplus, whenever any such company shall be required to justify
on any bond or undertaking; provided, that the party requiring such justification may produce
competent evidence to show that such surety company is not worth such sum over and above
all its just debts and liabilities exclusive of property exempt from execution; provided,
further, that bonds and undertakings on which such company may have become surety shall
not be considered as debts or liabilities unless the obligation thereon shall have accrued and
the obligee shall have demanded payment from such company.
Section 3443 of the statute under which this appeal was taken (Comp. Laws) relates to the
justification of personal sureties, and in that respect the method of justification of personal
sureties was provided for by section 3699 of that statute (Comp. Laws). That statute makes
provision for the examination of the sureties upon oath touching their qualifications. An
entirely different method is provided by section 69S, Revised Laws, supra, for the
justification of the surety, when the same is a surety company.
method is provided by section 698, Revised Laws, supra, for the justification of the surety,
when the same is a surety company.
The exception to the surety filed by respondent in this case might be sufficient and
applicable where personal sureties were given on the bond, but it is our judgment that it was
not applicable, nor sufficient, where the bond was executed by a surety company. Hence the
motion to dismiss is without merit.
There is no question in this case more vital to be considered than that of the pleadings of
plaintiff and defendant, in view of the assignments of error made by appellant. The complaint
sets forth, in section 8, the following allegation: Plaintiff further avers that, in and about the
operation of the said saw at the time of the injury aforesaid, he was exercising ordinary care
and diligence and was without fault or negligence on his part. In the answer the defendant,
appellant herein, relied entirely upon specific denials of each and every allegation and
averment of the complaint, without setting up affirmative matter or an affirmative defense of
any kind; and, by reason of the attitude of the defendant in so relying upon denials for a
defense, we are confronted with the question of whether or not contributory negligence or
approximate cause or assumed risk are properly defenses in this case and, if so, to what
extent.
The only attempt on the part of the defendant to raise the question of contributory
negligence was a specific denial of the above-quoted allegation as follows: Defendant denies
that, in and about the operation of said saw at the time of the alleged injury, plaintiff was
exercising ordinary care and diligence, or any care and diligence, and denies that plaintiff was
without fault or negligence upon his part.
6. Appellant contends that by this denial, as set forth herein, the issue of contributory
negligence became an element in the case sufficient to warrant the defendant in introducing
evidence in support of that defense. We find the authorities, especially in American
jurisdictions, to be exceedingly concurrent in declaring that, in an action for negligence or
personal injury, the plaintiff need not allege that the injury of which he complains was
caused or occasioned without his fault.
find the authorities, especially in American jurisdictions, to be exceedingly concurrent in
declaring that, in an action for negligence or personal injury, the plaintiff need not allege that
the injury of which he complains was caused or occasioned without his fault. He need not
aver that he was not guilty of contributory negligence (in other words, he need not negative
his own negligence or fault), the general reason for this being that it is properly considered a
matter of defense; and it is not necessary to allege matters which more properly would or
should come from the other side. At common law there was no procedure or rule requiring
the plaintiff in a case of negligence to assert that he was free from fault or negligence. No rule
was laid down at common law which would require of the pleader any independent or explicit
allegation that he was without fault. (Lee v. Troy Citizens' Gaslight Co., 98 N. Y. 115.)
The Supreme Court of the United States, in the case of Texas and Pacific Railroad Co. v.
Volk, 151 U. S. 73, 14 Sup. Ct. 239, 38 L. Ed. 78, speaking through Mr. Justice Gray, laid
down the rule as follows: By the settled law of this court, not controverted at the bar,
contributory negligence on the part of the plaintiff need not be negatived or disproved by him,
but the burden of proving it is upon the defendant.
This same doctrine has been reasserted in other decisions of the supreme court, and this
general rule is therefore well established in that court. (Washington R. Co. v. Harmon's
Admr., 147 U. S. 571, 13 Sup. Ct. 557, 37 L. Ed. 284; Hough v. Railroad Co., 100 U. S. 213,
25 L. Ed. 612; Indianapolis R. Co. v. Horst, 93 U. S. 291, 23 L. Ed. 898.) The rule, in the
state jurisdictions, applicable to this phase has been largely to the same effect, with some
slight exceptions to that laid down both at common law and in the federal court. (Crane v.
Mo. Pac. R. Co., 87 Mo. 588; Mary Lee Coal Co. v. Chambliss, 97 Ala. 171, 11 South. 897;
House v. Meyer, 100 Cal. 592, 35 Pac. 308; Mayes v. Chicago R. Co., 63 Iowa, 562, 14 N.
W.
340, 19 N. W. 680; Thompson v. No. Mo. R. Co., 51 Mo. 190, 11 Am. Rep. 443; Higley v.
Gilmer, 3 Mont. 90, 35 Am. Rep. 450; Grant v. Baker, 12 Or. 329, 7 Pac. 318.)
The allegation of the complaint quoted above, which tends to negative the negligence or
fault of the plaintiff, was unnecessary. It could have been entirely eliminated in view of the
other allegations of the complaint. It is true that should the plaintiff in stating his cause of
action detail facts which disclose prima facie that he was guilty of contributory negligence, or
that his acts were the proximate cause of the injury, it becomes incumbent upon him, for the
purpose of overcoming such inferences, to allege that the injuries occurred without fault on
his part; and, unless such disclosures show clearly that the plaintiff was in fault, such
averment is unnecessary and superfluous.
In the case of Grant v. Baker, supra, the Supreme Court of Oregon, speaking through Mr.
Justice Thayer, said: The impression seems to have prevailed, to some extent at least, that
this court there held (Walsh v. O. R. & N. Co., 10 Or. 250) that a plaintiff would not be
entitled to recover in an action for negligence without showing affirmatively that the injury
was not the result of his own negligence; that he would have to first establish that there was
no contributory negligence upon his part. I do not think that is the law, nor that the case of
Walsh v. Oregon Railway and Navigation Company intended to hold any such doctrine. In
this same case the court, in attempting to establish the rule, said: I think it has always been
understood by this court that contributory negligence is a defense, and must be averred as
such * * * where the injury results from the direct act or omission of the defendant, which
prima facie is negligence in itself, and the plaintiff received an injury in consequence thereof,
while pursuing his ordinary course of affairs, he will not be compelled, in order to recover his
damages, to prove that he was free from fault.
In the case of Johnston v. O. S. L. R. Co., 23 Or. 100, 31 Pac. 285, referring to the
Grant-Baker decision, supra, the supreme court said: "We think the correct rule is laid
down by Thayer, J., in Grant v.
supreme court said: We think the correct rule is laid down by Thayer, J., in Grant v. Baker,
supra, and that in order to recover for personal injury it is not necessary to allege that the
plaintiff has been free from negligence, or to deny that any act of his contributed to the injury
sustained; that contributory negligence is a defense which must be pleaded; and that while the
burden of proof is on the plaintiff to show that the appliance was defective, and that the
master had knowledge or notice thereof, or ought to have had, the burden of proof is on the
defendant to show that the servant did know the defect and that his negligence has
contributed to the injury. To the same effect is the case of Northern Pacific Ry. Co. v. Hess,
2 Wash. 387, 26 Pac. 866.
7. In view of the position taken by appellant and in view of its offer of certain evidence,
presumably for the purpose of establishing an affirmative defense of contributory negligence,
the phase of the case applicable to the pleadings is especially interesting and vital. The
appellant contends that the specific denial of the allegation of ordinary care and diligence was
sufficient to raise the issue of contributory negligence and was sufficient to take the place of
an affirmative plea of contributory negligence and was sufficient to warrant the court in
admitting testimony which would tend to establish this special defense. We think that the
answer fails to raise the issue of contributory negligence by its specific denial. If the
defendant had evidence that would have established negligence on the part of the plaintiff
contributing to the accident, it was the duty of the defendant, if it sought to avail itself of that
evidence, to specially plead contributory negligence, and without such a special plea the
affirmative defense of contributory negligence was not an element in the case, except as
hereinafter discussed.
The authorities are not altogether uniform on this particular phase. The greater line of
authorities, however, hold that contributory negligence must be especially pleaded. It is
interesting to follow the rule from its earlier adoption to the present time and especially to
note the application of this rule in cases where common law strictly prevailed.
earlier adoption to the present time and especially to note the application of this rule in cases
where common law strictly prevailed. Lord Chancellor Ellenborough, in the case of Knapp v.
Salisbury, Campb. Reps. vol. 2, 500, laid down the rule applicable at that time. In that case
the chancellor asserts that contributory negligence ought to be especially pleaded, and this
decision of the chancellor is quoted approvingly in many of the later English cases. By far the
greater number of the state jurisdictions have adopted a similar doctrine.
In the case of Nelson v. City of Helena, 16 Mont. 21, 39 Pac. 905, the court said: It is the
doctrine of this jurisdiction that contributory negligence is a matter of defense, and that
plaintiff need not allege or prove its absence.
The above rule was again referred to and approved in the case of Nelson v. Boston and
Montana M. Co., 35 Mont. 229, 88 Pac. 785.
In the case of Kennedy v. S. P. R. Co., 59 S. C. 535, 38 S. E. 169, the Supreme Court of
South Carolina, in passing upon this subject, appropriately quotes its former decision upon a
similar matter and says: In actions for injuries to person or property alleged to have resulted
from the defendant's negligence, he may prove, under a general denial, that the wrong was
caused by the negligence of third persons, not agents of the defendant, and for whom he was
not responsible. * * * Where a party desires to avail himself of the defense of contributory
negligence, he must set up such defense in his answer in order to entitle him to offer evidence
to sustain such defense. * * * The reason why testimony is admissible, under a general denial,
to prove that the injury was caused by the negligence of a fellow servant is because its
tendency is to show that there was no negligence whatever on the part of the defendant. On
the other hand, the reason why it is necessary to set forth in the answer the defense of
contributory negligence on the part of the plaintiff is because the testimony showing such
contributory negligence does not disprove the allegation of the complaint that the injury was
caused by the negligence of the defendant.
by the negligence of the defendant. The defendant, by setting up in his answer the defense of
contributory negligence on the part of the plaintiff, does not attempt to escape liability by
showing a failure of negligence on his part but, because the plaintiff has done that which
prevents a recovery against him, although he (the defendant) may have been guilty of
negligence. Such facts would constitute an affirmative defense, of which the defendant could
not get the benefit unless it was set up in the answer.
Mr. Pomeroy, in his work on Remedies and Remedial Rights, is emphatic in his
declarations, and the learned author's assertion in this respect is borne out by well-considered
opinions. (Pomeroy's Remedies and Remedial Rights, 671-675; Wilson v. Charleston and So.
Ry. Co., 51 S. C. 79, 28 S. E. 91.)
As we have already said, the courts are by no means uniform in their holding on this phase
of pleading. Some jurisdictions have held that contributory negligence need not be pleaded.
(St. Anthony Falls River Co. v. Eastman, 20 Minn. 277; Levy v. Metropolitan Street Ry. Co.,
34 Misc. Rep. 220, 68 N. Y. Supp. 944; McQuade v. Chicago Ry. Co., 68 Wis. 616, 32 N. W.
633; N. Y. R. R. Co. v. Robbins, 38 Ind. App. 172, 76 N. E. 804.)
It must be observed, however, from a very careful consideration of the decisions of the
various courts, that by far the greater number of jurisdictions and the stronger reasoning favor
the doctrine that the defense of contributory negligence cannot be raised under a general
denial, and that there must be a special plea of contributory negligence in order to render
evidence of it admissible. (Kansas City R. Co. v. Crocker, 95 Ala. 412, 11 South. 262; De
Amado v. Friedman, 11 Ariz. 56, 89 Pac. 588; D. & R. G. Ry. Co. v. Smock, 23 Colo. 456, 48
Pac. 681; Jacksonville Elec. Co. v. Sloan, 52 Fla. 257, 42 South. 516; Willis v. City of Perry,
92 Iowa, 297, 60 N. W. 727, 26 L. R. A. 124; Western Union Tel. Co. v. Morris, 10 Kan.
App. 61, 61 Pac. 972; Hudson v. Wabash Western R. Co., 101 Mo. 13, 14 S. W. 15; Collins
v. Fillingham, 129 Mo.
Mo. App. 340, 108 S. W. 616; Birsch v. Citizens' Elec. Co., 36 Mont. 574, 93 Pac. 940;
Brown v. Sullivan, 71 Tex. 470, 10 S. W. 288; Smith v. Ogden R. Co., 33 Utah, 129, 93 Pac.
185; Thompson's Commentaries on Law of Negligence, sec. 365.)
In the many cases of damages growing out of personal injuries decided by this court, this
particular question of pleading has never been raised, or at least has never been directly
passed upon in so far as we are able to discover, and hence we believe that we are
establishing the rule for the first time in this jurisdiction as to the necessity of an affirmative
plea where the defendant proposes to rely upon contributory negligence as a defense.
The plea of contributory negligence is generally conceded and regarded as one in the
nature of confession and avoidance. It is a plea which tends to admit the negligence of the
defendant, but to avoid the consequences to the defendant by asserting that through the
negligent acts of the plaintiff in contributing to the accident the injuries resulted. In the case
of Horton v. Ruhling & Co., 3 Nev. 498, this court said: New matter which is simply an
avoidance of the cause of action made out by the plaintiff should always be specially pleaded.
Such is the rule declared by Chitty, and it is unchanged under the modern practice. * * * No
proof of new matter in avoidance can therefore be admitted unless it is so pleaded as to
apprise the opposing party of the nature of the defense.
A special plea, setting up an affirmative defense is in our judgment the only proper
pleading in a case of this character under which or by reason of which evidence can be
introduced at the trial to sustain the issue of contributory negligence. It will not suffice if the
defendant in an action of this character merely denies the allegation of plaintiff, wherein the
latter avers the negligence of the defendant, even though he negative negligence or fault on
his part.
In the case of Hudson v. Wabash Western R. Co., 101 Mo. 13, 14 S. W. 15, this question
was passed upon by the Supreme Court of Missouri under conditions very similar to those
presented in the case under consideration in that the pleadings in that case were almost
identical to those of this case.
to those presented in the case under consideration in that the pleadings in that case were
almost identical to those of this case. In that case the complaint set forth: That by said
negligent acts and without any fault on his part he was then and there caught between the two
of said cars. To this allegation the defendant answered by denying this averment, and by
their specific denial they contended that the defense of contributory negligence was raised
without a special plea or defense asserting negligence on the part of the plaintiff. The
Supreme Court of Missouri, speaking through Sherwood, J., in passing upon the case, said:
It is the unquestioned law of this state that contributory negligence is strictly an affirmative
defense, and, in order to avail a defendant as a matter of pleading, it must be affirmatively
pleaded. (O'Connor v. Railroad Co., 94 Mo. 155, 7 S. W. 106, 4 Am. St. Rep. 364;
Donovan v. Railway Co., 89 Mo. 147, 1 S. W. 232; Schlereth v. Railroad, 96 Mo. 509, 10 S.
W. 66.)
The doctrine laid down in the Hudson case, supra, is affirmed in a very recent case
(Goodloe v. Metropolitan Street Ry. Co., 120 Mo. App. 194, 96 S. W. 482) to the effect that
contributory negligence is an affirmative defense which must be pleaded.
Again, in the case of Collins v. Fillingham, 129 Mo. App. 340, 108 S. W. 616, the court
said: Contributory negligence, when not pleaded, is not available as a defense, unless
plaintiff's evidence affirmatively shows contributory negligence.
In the case of Fechley v. Springfield Traction Co., 119 Mo. App. 358, 96 S. W. 421, the
court held that where, in an action for negligence, the only answer remaining in the record,
after the issues were made up, consisted in a general denial, plaintiff's contributory negligence
was no defense, unless the testimony he introduced so clearly showed that he was negligent in
a manner contributing to the accident that the court would have been warranted in denying
him relief.
8, 9. In the case under consideration the defendant, having failed to especially plead
contributory negligence, seeks to avoid this by invoking the doctrine that, when the
plaintiff's own evidence makes out a case of contributory negligence, there can be no
recovery.
when the plaintiff's own evidence makes out a case of contributory negligence, there can be
no recovery. Under the authorities establishing the rule, this contention may be maintained,
but the plaintiff's case must be of such a character as to warrant the trial court in saying, as a
matter of law, that the plaintiff has been so flagrantly guilty of contributory negligence as to
defeat his action. Where the question of contributory negligence is a debatable one, or one
upon which reasonable minds might differ, the question should be submitted to the jury.
There is an exception to the rule requiring contributory negligence to be especially
pleaded. This exception is generally stated thus: When the fact of contributory negligence is
disclosed by the evidence offered in behalf of the plaintiff, in such a case a defendant is
entitled to take advantage of such disclosure, notwithstanding the fact that he has made no
plea of contributory negligence. A very appropriate application of this rule is stated in the
case of McMurtry v. L. N. O. & T. Ry. Co., 67 Miss. 607, 7 South. 403, wherein the court
said: If plaintiff's pleadings and proof had left the case blank as to his contributory
negligence, and it had become necessary for the defendant to take the affirmative and to show
as a defense plaintiff's contributory negligence, there, we suppose, it would be the practice to
require such defense to be set up under an especial plea. But when, as in this case,
contributory negligence is palpably made to appear by the plaintiff's evidence, we are aware
of no rule, nor can we see the reason for any rule, requiring the defendant to either plead or
prove such contributory negligence.
As was asserted by the Supreme Court of Utah, in the case of Bunnell v. Railroad Co., 13
Utah, 314, 44 Pac. 927, contributory negligence is a matter of defense and must be alleged
and proven by the defendant; but where the testimony on the part of the plaintiff, who seeks
to recover damages for injuries resulting from negligence, shows conclusively that his own
negligence or want of ordinary care was the proximate cause of the injury, he will not be
permitted to recover, even though the answer contains no averment of contributory
negligence.
will not be permitted to recover, even though the answer contains no averment of
contributory negligence. As a matter of fact, even though there be no defense of contributory
negligence in the trial of the case, if the evidence is undisputed or is of such a conclusive
character that the court in the exercise of sound judicial discretion would be compelled to set
aside the verdict by reason of the evidence of the plaintiff disclosing flagrant contributory
negligence, it is well established that the court may withdraw the case from the jury altogether
and direct a verdict for the defendant. In a case of that kind it would be unnecessary for the
defendant to either plead or prove a special defense of contributory negligence.
The authorities generally hold under this exception to the rule that, where the testimony of
the plaintiff shows circumstances of contributory negligence which absolutely defeat his right
of action and disprove his own case, the defendant is at liberty to take advantage of such
testimony, though produced by the adversary. This principle, however, does not apply to the
pleadings, and applies only to instances where the testimony produced on the part of the
plaintiff is such as to absolutely defeat his right of action by showing conclusively either that
the accident occurred through wilful neglect or that he was so flagrantly guilty of negligence
as to preclude the possibility of the defendant being liable. Where testimony of such a nature
is produced by the plaintiff's case, the defendant may take advantage of it either for the
purpose of moving a nonsuit or in any way that he may see fit. This, however, would not
permit the defendant to introduce evidence tending to prove contributory negligence on the
part of the plaintiff, unless by an especially pleaded allegation in the answer the question was
raised. From this, then, it will be observed that the contributory negligence of the plaintiff
must either appear unequivocally by the allegations of the complaint or must be raised and
produced by conclusive evidence given in behalf of the plaintiff in order to warrant the
defendant in taking advantage of such disclosure.
Here it may be questioned: How far may the defendant go in taking advantage of the
disclosure of contributory negligence coming from the plaintiff's own case? It is our judgment
that the defendant may take advantage of such disclosures only to the extent of using the
evidence produced or the averments of the complaint as matters tending to defeat the
plaintiff, and may rely upon such disclosures either for the purpose of nonsuit, where, at the
conclusion of the plaintiff's case, it is manifest that the case should not go to the jury, or for
the purpose of argument in favor of a verdict finding against the plaintiff; but, under no line
of reasoning can we conceive, in view of the rule generally established, that such disclosures
on the part of the plaintiff would take the place of an affirmative plea or defense of
contributory negligence. Moreover, such evidence, if produced during the presentation of
plaintiff's case in chief, will not open the door for defendant to introduce new evidence
independent of the plaintiff's testimony in support of contributory negligence, unless he is
prepared for the introduction of such testimony by pleading a special defense of contributory
negligence.
Mr. Thompson, in his Commentaries on the Law of Negligence, sec. 369, clearly and
concisely states the rule which, in our opinion, is the better one to be applied by courts in the
trial of cases of this character and under conditions such as present themselves in this case.
He says: The doctrine intended to be stated by such courts, and clearly stated by others, is
that, where the plaintiff's own evidence, whether delivered by his own mouth or the mouth of
his witnesses, shows that he, or the person killed or injured, was guilty of negligence
contributing to the death or injury, there can be no recovery, whether the defense of
contributory negligence has been pleaded or not. If, on the other hand, the conduct of the
plaintiff is compatible with the conclusion that he exercised reasonable care, he cannot be
nonsuited, but the case must go to the jury. The learned author quotes approvingly from a
recent decision of the Supreme Court of Pennsylvania as follows: Contributory negligence is
a matter of defense, and the onus probandi is on the defendant, unless the plaintiff's own
evidence sufficiently discloses the fact of contributory negligence.
of defense, and the onus probandi is on the defendant, unless the plaintiff's own evidence
sufficiently discloses the fact of contributory negligence. In that event plaintiff cannot
recover, and of course the defendant is relieved from the necessity of proving what has
already been established by the plaintiff's evidence. If, however, the plaintiff makes out a
prima facie case without disclosing contributory negligence, the defendant must assume the
burden of making out his defense. (Thompson's Commentaries on Law on Neg. sec. 369, et
seq.)
It may be questioned in the light of these authorities: How may this rule, if applied, affect a
defendant in a case of this character, who has failed or refused to especially plead the defense
of contributory negligence, and a prima facie case is made out by the plaintiff, such as to
warrant the court, at the conclusion of his case, to submit the case to the jury? The answer is
obvious that the affirmative plea of contributory negligence not having been raised by the
defendant in his pleadings, and the evidence produced establishes a prima facie case, in the
light of all the authorities it must follow that under such a state of affairs the defendant has by
his act precluded himself from offering evidence tending to establish contributory negligence
as against the plaintiff; and, where the court under such conditions holds evidence of this
character inadmissible, it is not error. It is only where the plaintiff's case conclusively
discloses negligence on his part that such disclosure may be taken advantage of by defendant
in authorizing the court to advise a verdict for him. If, however, the evidence only tends to
show, or only raises an inference of, contributory negligence, the question should properly go
to the jury to be determined like any other question of fact. The mere suspicion of negligence
arising from the plaintiff's case will not warrant the court in taking such action. On the
contrary, the inference of negligence on the part of the plaintiff must be so strong as to be
unavoidable and conclusive. Where some evidence disclosed during the plaintiff's case
merely tends toward the conclusion of contributory negligence, but lacks that cogency to
make it conclusive, then it merely raises a question for the jury and should be submitted
to the jury.
it conclusive, then it merely raises a question for the jury and should be submitted to the jury.
(Thompson's Commentaries on Law of Neg. vol. 1, sec. 471.)
The testimony of Konig, the respondent, as to his acts leading up to the accident must be
reviewed in the light of these observations as to the law, and in that connection, and bearing
directly upon the condition of the implement and the circumstances before, at the time of, and
after the accident, the testimony of Webber and Pearl is to be considered.
10. The manner in which this accident occurred is described by the plaintiff in his
testimony, and his acts detailed on direct and cross-examination are to be scrutinized in
determining what part his acts may have played in bringing about the catastrophe. His
immediate acts attending the accident are best related in his own language: So I start in to
run that piece through. The saw ran all right so far when I got about the end of that piece of
timber where on the end wider than it was in front by the start. So that got tight between the
gage and the saw. * * * That made the saw hot on the point. It has get hot start in buckling so
I have to push that block through, and it got pretty near the end and tried to throw that block
off so the saw took the block out of my hand, caught that block on the edge, and run that
block here on the arm, right in the left side; that threw me back about sixteen feet, knocked
me out of the wind.
On cross-examination the plaintiff testified as follows:
Q. Why did you not go and turn off the power? A. I had no time.
Q. There was nothing for you to do except push it clear through? A. Yes, sir.
Q. Now, as a millman, could you not walk away or have gone over here and shut off the
power? A. No, can no do it.
Q. Do you know you could leave the block right there and let the saw turn over and over?
A. It is dangerous; there is danger.
Q. There is danger? A. Yes, I had to hold it right down unless the saw catch it and turn it
over.
Q. You cannot draw it back? A. No, I don't want to do that.
Q. And cannot go and turn off the power? A. No.
Q. And the only thing you could do was to keep pushing it right through? A. Yes, sir.
The witness Webber testified in his deposition relative to the condition of the saw as
follows: The ripsaw on which Mr. Konig was working was dished; the saw would not run
straight; and the material had a tendency to jump up and apparently to try and get away from
the saw. If I fed a little too fast, the saw became hot and would scorch the edge of the lumber.
* * * The other men began wanting material for car repairs, which Mr. Konig had been
getting out for the shop, and it had become necessary for someone to run the machine, so I
assumed the responsibility of getting it out for them, until other arrangements were made.
When Mr. Meyers came in I told him I had been running the machine and had gotten out stuff
for the boys. He said, That is all right, but you must be careful.'
The testimony of W. E. Pearl, as to things that came within his observation at the instant of
the accident, was in substance to the effect that the block, after it struck the plaintiff, struck
the wall on the opposite side, about eighteen feet from the saw. Afterwards he examined the
block, picked it up and looked at it, and saw the mark where the saw cut the end of the stick.
He further stated that on the day before the accident he examined the saw and found some
burned spots on it that millmen call thickened.
In determining whether, by reason of the facts disclosed during the plaintiff's case, this
case comes within the exception, or in determining whether contributory negligence was
disclosed by the plaintiff's case to such an extent as to warrant the defendant in taking
advantage of it, or to warrant the court in withdrawing the case from the jury, we must first
dwell upon the phase of proximate cause and determine whether or not the evidence
indicates that plaintiff was the proximate cause of his own injury.
proximate cause and determine whether or not the evidence indicates that plaintiff was the
proximate cause of his own injury.
In the case of Longabaugh v. V. & T. R. R. Co., 9 Nev. 271, this court, without going very
far into the subject, said: Proximate cause * * * means that which immediately precedes and
produces the effect as distinguished from remote. In examining the authorities it will be found
that immediate' and proximate' are indiscriminately used to express the same meaning.
In the case of Milwaukee and St. Paul Ry. Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256, Mr.
Justice Strong, speaking for the Supreme Court of the United States, said: In the nature of
things, there is in every transaction a succession of events more or less dependent upon those
preceding, and it is the province of a jury to look at this succession of events or facts and
ascertain whether they are naturally and probably connected with each other by a continuous
sequence or are dissevered by new and independent agencies, and this must be determined in
view of the circumstances existing at the time.
The various authorities and text-writers in attempting to formulate a definition for
proximate cause or immediate cause have found themselves confronted with great
difficulty, and nearly every court that has had occasion to pass upon the question of proximate
cause has formulated a definition of its own more or less applicable to their ideas of what
constitutes proximate cause.
It has been said that intervening agencies sometimes interrupt the current of responsible
connection between negligent acts and injuries, but as a rule these agencies, in order to
accomplish such result, must entirely supersede the original culpable act and be in themselves
responsible for the injury and must be of such a character that they could not have been
foreseen or anticipated by the original wrongdoer. If it require both agencies to produce the
result, or if both contributed thereto as concurrent forces, the presence and assistance of one
will not exculpate the other, because it would still be an efficient cause of the injury.
will not exculpate the other, because it would still be an efficient cause of the injury.
Proximate cause is not necessarily the one nearest to the event, but the primary cause may be
the one proximately responsible for the result, although it may operate through one or more
successive instruments. If the primary cause was so linked and bound to the events
succeeding it that altogether they create and become one continuous whole, the one event so
operating upon the other as to tie the result to the primary cause, the latter (i. e., the primary
cause) will be the proximate cause of the injury. (White Sewing Machine Co. v. Richter, 2
Ind. App. 334, 28 N. E. 446; Shippers Company v. Davidson, 35 Tex. Civ. App. 558, 80 S.
W. 1032.)
In the case of Milwaukee and St. Paul Ry. Co. v. Kellogg, supra, the court said: The
primary cause may be the proximate cause of a disaster, though it may operate through
successive instruments, as an article at the end of a chain may be moved by a force applied to
the other end, that force being the proximate cause of the movement, or as in the oft-cited
case of the squib thrown in the market place. (2 Bl. Rep. 892.) The question always is: Was
there an unbroken connection between the wrongful act and the injurya continuous
operation? Did the facts constitute a continuous succession of events, so linked together as to
make a natural whole, or was some new and independent cause intervening between the
wrong and the injury?
In the very recent case of St. Louis and San Francisco R. Co. v. Davis, 132 Pac. 337,
decided by the Supreme Court of Oklahoma, in which the question of proximate cause was
under consideration, that court quoted approvingly the case of Kellogg v. Railroad Co., 26
Wis. 223, 7 Am. Rep. 69, and also the case of Milwaukee and St. Paul Ry. Co., supra, in
saying: An efficient, adequate cause, being found, must be considered the true cause, unless
some other cause not incidental to it, but independent of it, is shown to have intervened
between it and the result.' Where there is no intermediate efficient cause, the original
wrong must be considered as reaching to the effect and proximate to it."
Where there is no intermediate efficient cause, the original wrong must be considered as
reaching to the effect and proximate to it.
It is argued in this case that, if the respondent had failed or refused to force the block
against the saw, no accident would have occurred, but with the same degree of logic it might
be argued that had he not been required to size down the buffer block, or in any wise use the
saw, the accident would not have occurred. The primary cause in this instance was the defect
in the saw. There was an intervening cause, namely, the forcing of the block through the saw;
but when we apply the rule laid down in the several cases cited, and particularly in the case of
Shippers' Compress and Warehouse Co. v. Davidson, supra, which we think correctly states
the rule, the primary cause, namely, the defect in the saw, was so linked and bound to the acts
of the respondent succeeding that, taking them all together, they create and become one
continuous whole. The act of the respondent in forcing the block through the saw being an
intervening cause of the accident that resulted, and the defect in the saw being the primary
cause, the latter should properly be considered the proximate cause of the injury.
11, 12. It will be seen from the various expressions made by the authorities upon this
vexing subject that the test is to be found in the probable injurious consequences which were
to be anticipated, and not in the number of subsequent events or agencies which might arise.
In other words, if the probable cause of an injury or accident is the first wrong done, then that
becomes the proximate cause, regardless of how many acts may have been performed or how
many agencies may have intervened between the first act or wrong and the catastrophe. Any
number of causes may intervene between the first wrongful act and the final injurious
consequences, and, if with reasonable diligence they are such as might have been foreseen,
the consequences as well as every intermediate result are to be considered in law as the
proximate result of the first wrongful cause. Whenever a new cause intervenes which is not
the consequence of the first wrongful cause, and which is not under the control of the
first wrongdoer, and which he could not with reasonable diligence have foreseen, and
except for which the final catastrophe could not have happened, then such a result must
be held too remote to furnish the basis of an action.
cause intervenes which is not the consequence of the first wrongful cause, and which is not
under the control of the first wrongdoer, and which he could not with reasonable diligence
have foreseen, and except for which the final catastrophe could not have happened, then such
a result must be held too remote to furnish the basis of an action. In all cases where no other
cause intervenes between the original act or omission contributing or producing the resultant
catastrophe, negligence of the first wrongdoer is to be regarded as the proximate cause of an
injury. (Thompson's Commentaries on Law of Neg. vol. 1, sec. 49.)
The difficulty encountered by the courts, commentators and text-writers in formulating a
definition comprehensible to proximate cause has been no less great than that encountered in
attempting to apply their definitions to the circumstances of particular cases. Each case
presents its own particular set of circumstances, and a definition of proximate cause which
might apply to one might be entirely inapplicable to another.
13. In the case under consideration it is seriously contended by appellant that the
respondent, Konig, was the proximate cause of his own injury, by reason of his act in forcing
the block against the saw when he found that the implement was binding and heating. In this
respect the respondent testified on cross-examination:
Q. Now, Mr. Konig, will you testify as an expert millman that you could not take a block
that was twenty-six inches long back when you saw it was binding and pinching? A. No. I
would not want to do it.
Q. And you never did do that? A. No.
Q. You have sawed a great many of these bumper blocks? A. Yes, sir.
Q. And you never took it back when you saw it was pinching or binding? A. Not short
blocks.
Q. If the saw gets hot, what do you do? A. Well, if it is a short piece you push it through.
No can take it back.
Q. If the saw binds there is but one thing to do; that is, force it right on through? A. A
short piece I have to push it through.
The witness Pearl, on cross-examination, touching upon this subject testified:
Q. Now, Mr. Pearl, you have stated that you have run a saw that was thickened or cupped
and it ran untrue. I will ask you whether or not, from your experience in using a saw in that
condition, whether in the cutting of a small, short block, say about twenty-six inches long,
where a saw running untrue and becoming bound near the end, or where the saw would leave
the piece that was being cut, and where theand in case, where on that account there was a
tendency of the piece being caught to climb up over the saw, to be thrown up over the saw,
whether from your judgment and from your experience the operator of the saw could safely
hold back the piece being cut and take it out of the saw, or whether it would be necessary to
run the piece on through? A. I would consider it no more dangerous to push it on through.
Q. I will ask you to state whether there would be danger in attempting to remove that
piece, of it being thrown by the saw, in taking the piece back. I will ask you to state whether
there would be danger of the piece being thrown over the saw? A. There would.
In response to interrogatories by counsel for defendant, touching upon the same subject,
the witness testified:
Q. Will you say if you started to saw there with the defective saw, a saw that you knew to
be spotted and cupped, and you started a block and it commenced to bind by reason of the
saw running off and making it bind at one end, that there is only one safe thing to do, and that
is running the block on through? A. That is the question in my mindto shove that block
right on through, I think I would take just as many chances as to pull it back.
Q. Why? A. Because the saw would spring back and catch the block in the same way.
Q. Then there is only one thing when the saw binds, and that is to shove the block right on
through? A. I wouldn't say that.
Q. Is that as safe a thing to do as anything else? A. To the best of my knowledge it is.
Q. That is safer than going and trying to turn off the power? A. If at the very moment you
could turn off the power or stop it that quick, perhaps it would not be.
Q. I want an answer to that question, Yes, or No. Shoving the block is safer than
turning off the power? * * * A. Well, there is a doubt in my mind. * * * I could not say
without knowing all the circumstances; no, sir.
Q. Would there be any way to dodge to one side when you saw the saw was beginning to
bind just a little? A. I think not, if it was tight enough to throw the block.
Q. Before you could get out of the way? A. Yes, sir.
Q. Did you saydo you think a careful millman would start sawing with a cupped or
spotted saw? A. Yes, sir.
As appears from the record, the button by which the power was turned off and on was
located approximately thirty feet from the saw.
There is a decided conflict in the testimony on the subject of the safest course to pursue
under the conditions; the testimony of Pierson and Myers being to the effect that in their
judgment the safest thing to do under the conditions was to draw the block back from the
saw. As to whether or not the respondent pursued the safer method after he found the
conditions present was a question to be determined by the jury.
It is difficult for us to perceive how a servant operating with a defective implement, the
defect of which had been brought to the attention of the master, could be held to be the
proximate cause of his own injury, when he was performing the work required of him, at the
place required, with the implement furnished, and doing his work in the manner in which
such service was ordinarily performed by him. If the defect was brought to the attention of the
master, and it is manifest that the jury believed the testimony of the plaintiff in that respect,
then the final injurious consequences were such as with reasonable diligence might have been
foreseen by the master, and was the proximate result of the master's first wrongful act, in
failing to repair the defective implement.
master, and was the proximate result of the master's first wrongful act, in failing to repair the
defective implement.
The case of Gonzales v. City of Galveston, 84 Tex. 3, 19 S. W. 284, 31 Am. St. Rep. 17,
presents a state of facts which to our mind typifies the definition of proximate cause, as being
not necessarily the last act of cause, or the act nearest to the injury. The action grew out of an
injury occurring to Pauline Gonzales, a minor. It seems that lumber had been piled in the
street in the city of Galveston by lumber dealers and had remained there for some years. A
drayman hauling lumber had occasion to turn into the street from an alley and to pass by the
pile of lumber at the time at which Pauline Gonzales and another child were close to the pile
of lumber and on the opposite side, out of sight of the drayman. His load came in contact with
the pile of lumber and knocked off some heavy pieces, killing one of the children and injuring
Pauline Gonzales. The defendant city interposed as a defense the careless driving on the part
of the drayman causing the injury without any fault on the part of the defendant, also that the
injury was not caused by any careless piling of the lumber. The trial court instructed the jury
as follows: The proximate cause of plaintiff's injury was not the pile of lumber, but was the
act of the drayload of lumber being driven against the pile of lumber, which, although on the
street, was properly piled, and therefore the law will not in such case cause any liability on
the part of the city, and you should find a verdict for the defendant.
The Supreme Court of Texas, in passing upon the case, said: The most important
question was: Was it negligence for the city to suffer the lumber to remain in the street at all?
Was the lumber pile an obstruction in the street, and was the city negligent in not removing it
or causing it to be done? If there was no negligence in this, or the city could lawfully allow
the obstruction in the street (but we do not say that it would be lawful for the purpose shown),
then the manner of piling the lumber might become important to show negligence, or if
negligence is shown in allowing it to be there, the manner of piling might be an additional
proof of negligence; but it does not occur to us that the petition raises this question.
if negligence is shown in allowing it to be there, the manner of piling might be an additional
proof of negligence; but it does not occur to us that the petition raises this question. If it were
unlawful and negligent to fail to remove it from the street, the fact that it was carefully and
safely piled would be immaterial; provided its being there was a concurring proximate cause
of the injury. By proximate cause we do not mean the last act of cause, or nearest act to the
injury, but such act, wanting in ordinary care, as actively aided in producing the injury as a
direct and existing cause. It need not be the sole cause, but it must be a concurring cause,
such as might reasonably have been contemplated as involving the result under the attending
circumstances.
In the case of Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552, this court held in
substance that in an action for death the question whether the decedent was guilty of
negligence proximately causing the accident was for the jury. In that case, however, the issues
to be decided both by the trial court and by the reviewing court were entirely different from
the one under consideration. In the Christensen case, supra, contributory negligence was
made an affirmative defense and was specially pleaded, and the question of proximate cause
was one that could be supported by proof offered in behalf of the defendant, in support of its
defense of contributory negligence. In this case the one question is: Did the evidence offered
by the plaintiff present a state of facts substantially showing that plaintiff himself was the
proximate cause of his own injury? It must be observed in this case that the defendant, by its
own act in voluntarily omitting the defense of contributory negligence, precluded itself from
offering evidence in support of that defense, and the only matter for this court to determine in
that particular is whether or not the plaintiff's case warrants the conclusion that he was the
proximate cause of his own injury.
In the case of Gould v. Schermer, 101 Iowa, 583, 70 N. W. 699, the Supreme Court of
Iowa, passing upon an instruction given to the jury by the trial court said: The rule of law is
well settled that the mere fact that some other cause operates with the negligence of the
defendant to produce the injury does not absolve defendant from liability.
rule of law is well settled that the mere fact that some other cause operates with the
negligence of the defendant to produce the injury does not absolve defendant from liability.
His original wrong, concurring with some other cause, and both operating proximately at the
same time in producing the injury, makes him liable whether the other cause was one for
which the defendant was responsible or not. This rule laid down in the Gould case was
passed upon again by the Supreme Court of Iowa in the case of Pratt v. Chicago, R. I. & P.
Ry. Co., 107 Iowa, 292, 77 N. W. 1064.
14. However difficult it may be, in the first instance, to formulate a proper definition of
proximate cause and, in the second instance, to apply such definition to a set of facts, one
general rule is applicable to all cases, regardless of the facts that may be presented in any
particular case, and that is, where the evidence discloses a succession of events so linked
together as to make a natural whole and all so connected with the first event as to be in legal
contemplation the natural result thereof, the latter will be deemed the primary cause, or
proximate cause, as it is more often termed. There may be concurrent circumstances, and
there may be intervening agencies, and one of the intervening agencies may be the acts of the
party injured; but if the culminating fact, or the resultant catastrophe, came about by reason of
all these agencies working together concurrently, then the first negligent act is and should
properly be deemed the proximate cause. (Detzur v. Stroh Brewing Co., 119 Mich. 282, 77 N.
W. 948, 44 L. R. A. 500; Cornelius v. Hultman, 44 Neb. 441, 62 N. W. 891; Milwaukee and
St. Paul Railway Co. v. Kellogg, 94 U. S. 469, 24 L. Ed. 256.)
In the case under consideration the defective implement was the primary cause. There
were intervening concurrent agencies, namely, the acts of the plaintiff performing his work in
cutting down the buffer block, and his act in forcing it through the saw. The culminating
catastrophe would not have happened in the absence of either the primary defect or the
intervening agencies; hence they operated concurrently, and the primary negligence,
namely, the defective implement, must in the light of all the rules laid down by the
authorities be deemed to have been the proximate cause and not the act of the plaintiff in
performing his services.
of either the primary defect or the intervening agencies; hence they operated concurrently, and
the primary negligence, namely, the defective implement, must in the light of all the rules laid
down by the authorities be deemed to have been the proximate cause and not the act of the
plaintiff in performing his services. (Rice v. Reese, Tex. Civ. App. 110 S. W. 502.)
15, 16. Another question which naturally arises in determining proximate cause is that of
the plaintiff's act in exercising the proper care for his own personal safety, in view of the fact
that he admitted knowledge of the defect of the implement that he was using. It is contended
by the appellant that plaintiff was the efficient proximate cause of his own injury in using the
implement, knowing the same to be defective, and in forcing the block against or through the
saw, after he found the same to be binding and heating. The law is well settled that a plaintiff
cannot prevail in an action for damages where his injuries, sustained in the course of his
employment, were brought about by his own negligence in performing an act, the danger of
which was so obvious and threatening that a reasonably prudent man, under similar
circumstances, would have avoided them, if in his power to do so. In such a case the plaintiff
will be deemed to have assumed the risks involved in such a reckless exposure of himself to
danger, but in determining as to whether or not one was reckless or did recklessly expose
himself to danger, or as to whether or not he exercised the care that a prudent person would
exercise for his own personal safety, the law is humane and takes into consideration as much
as possible the imperfections of human reasoning and the peculiar conditions surrounding
each particular case and each particular individual.
In the case of Kane v. Northern Central Ry. Co., 128 U. S. 91, 9 Sup. Ct. 16, 32 L. Ed.
339, the Supreme Court of the United States, speaking through Mr. Justice Harlan, said: In
determining whether an employee has recklessly exposed himself to peril, or failed to
exercise the care for his personal safety that might reasonably be expected, regard must
always be had to the exigencies of his position; indeed, to all the circumstances of the
particular occasion."
the care for his personal safety that might reasonably be expected, regard must always be had
to the exigencies of his position; indeed, to all the circumstances of the particular occasion.
The same doctrine was again enunciated in the case of Union Pacific Ry. Co. v.
McDonald, 152 U. S. 281, 14 Sup. Ct. 627, 38 L. Ed. 434, and the court in the latter case
said: Where human life or personal safety is involved, and the issue is one of negligence, the
law will not lightly impute negligence to an effort, made in good faith, to preserve the one or
to secure the other, unless the circumstances under which that effort was made show
recklessness or rashness.
This same principle, applicable to exercise of proper care, was again enunciated by the
Supreme Court of the United States in the case of Choctaw Ry. Co. v. Holloway, 191 U. S.
334, 24 Sup. Ct. 102, 48 L. Ed. 207.
The principles set forth in the several cases last cited are not in conflict with the
declaration of this court in the case of Solen v. V. & T. R. R. Co., 13 Nev. 106, declaring that
plaintiff's prudence is to be measured in proportion to the danger; the greater the risk, the
greater the degree of care required.
17. The accident that occurred, out of which the respondent received his injury, was one
that could not reasonably have been anticipated. It was one that occurred in an instant,
without any considerable degree of warning. It is contended by appellant that when the
plaintiff found the saw binding he should have shut off the power, or withdrawn the block
from the saw or dodged under the table. There appears to be a decided conflict in the
testimony as to which of the three things he should have done to afford the greatest degree of
safety, and it is a question as to whether either could have been done in view of the
suddenness of the accident, and from the testimony the jury could reasonably infer that, by
reason of the peculiarity of the accident and the sudden manner in which it occurred, the
respondent could not have averted the accident. This is especially true in view of the
conflicting testimony on the subject as to the safest method to have pursued.
true in view of the conflicting testimony on the subject as to the safest method to have
pursued. In this respect it must be said that there is a wide difference between ordinary
diligence and extraordinary diligence. The former is incumbent upon the plaintiff, but the
latter is not. (Bunting v. C. P. R. R., 14 Nev. 360.)
18. Appellant contends that as the defect was known to the respondent, and in view of his
knowledge and experience, he assumed the risk by forcing the block through the saw.
Knowledge of the defective condition of the implement is admitted by the respondent in his
testimony, wherein he states that he brought the defect to the attention of the master
mechanic. As to whether or not the defect in the saw was drawn to the attention of the master
by the servant in this case, in view of the conflicting testimony, was a matter to be determined
and was determined by the jury, and it is manifest that the jury concluded that the defect had
been drawn to the attention of the master.
The respondent at the trial testified as follows: * * * I told Mr. Meyers that saw was out
of repair. I was afraid I get hurt on that some time. Mr. Meyers got a rule, put that rule and
leave it on, and said: All right, you go right on. I take that saw over to the Nevada Planing
Mill and get it fixed for you.' At another place in his testimony he repeated this incident and
said: I saw the saw got some spots on the side; there was a burn. Then the saw made gotten
dished, as they call it. So I told Mr. Meyers that saw were out of order, so I were afraid I get
hurt on that saw. Mr. Meyers take that rule, and said: All right, you go right on. I take that
saw over to the Nevada Planing Mill and get it fixed for you.'
These declarations of complaint on the part of the servant and promise on the part of the
master in this case are to our mind borne out to some degree at least by the testimony of
witness Webber, dwelling on events and statements a day or two subsequent to the accident.
His testimony in that respect is a follows: Q.
Q. State fully what Mr. Meyers said at this time about this saw and its condition. A. Mr.
Meyers said, No one could run a saw like that. * * * Mr. Meyers came through and seeing
the two men at work, asked what was the matter. When told, he turned to me and said,
Webber, you don't want to be wasting too much time fixing up this damned old machinery.
* * * He then said, Let it wear out, then we will get a new one. He called them rattle
traps.
While this particular piece of testimony does not establish the condition of the saw prior to
the accident, nevertheless it goes a long way toward indicating a rather remarkable attitude on
the part of the master mechanic. If it had any weight with the jury, it must have indicated a
decided carelessness on the part of the master in this instance as to the condition of the
implement or implements being used by its servants.
19, 20. It is a matter of law that continuance in service by the servant for a period of time
beyond which it would be reasonable to expect that the promise of the master to repair would
be kept would tend to defeat the servant's claim for damages for injuries resulting from the
defect. The general rule is that if the servant, noting the defect in the machinery, complains to
the master of such defect, and the latter promises to remedy the same, 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 so imminent and immediate in character
that a person of ordinary prudence would refuse to continue in the service. It is established by
the testimony of some of the witnesses in this case that, where spots occur in a circular saw, it
indicates that the temper has gone out of the metal in those places, but such defects do not
necessarily immediately impair the usefulness of the implement and may be repaired by a
process of hammering. It does not appear that any attempt was made by the appellant to resort
to this process, for the purpose of repairing the defects which were manifestly there.
The testimony of Webber discloses that the saw was wabbly, and that by reason of such
defect it would not saw true. This important fact is also borne out by the testimony of Meyers,
the master mechanic, when he said that when he saw the block after the accident it was
bigger at the back edge than the front edge. Meyers also testified on cross-examination that
the saw had blue spots on it. In the testimony of Pearl, he states that on the day before the
accident he examined the saw and found some burnt spots on it that millmen call thickened.
These defects, known to the servant in this instance, and drawn to the attention of the master,
while undoubtedly dangerous, were not of such character as to cause the danger to be
imminent or immediate, but were such as might be termed progressively dangerous. The
witness Meyers testified that spots on a saw would not always indicate that the saw was out
of condition.
The witness Pearl on direct examination testified as follows:
Q. Ever had any experience in using a ripsaw that was burnt or thickened as this saw was
on the day before this accident? A. I have.
Q. You have? A. Yes, sir; had experience.
Q. You may state what you have observed as to the use of that kind of a saw inA. Well,
when those saws are in shape, running right, they are just as good, I suppose, as any, for a
while anyway.
Defendant's witness Pierson, in response to questions from counsel for appellant, testified:
Q. Mr. Pierson, are you acquainted with the condition of ripsaws known as cupped or
dished? A. Yes, sir.
Q. What does that mean, Mr. Pierson? A. Well, the tension of the spring is out of it, and it
won't stand up to the work; it needs hammering.
Q. It is saucer shaped? A. The tension is out of the saw; it does not run true; you have to
put a straight edge, a little steel edge on it to seeto find where it needs pounding or
hammering. I am not a hammerman.
Q. Do you know what effects spots upon the sawof the saw being dishedwould have
upon the safety of using that saw in that condition? A. Well, it would, of course, it should be
hammered, and it becomes heated and kinked then with less provocation than a saw that was
not dished or had been spotted, as they say.
Bearing upon the same subject, the witness Pierson testified:
Q. Have you had experience sawing with spotted saws, saws that were dished? A. Yes, sir;
I have sawed with them that were in bad shape.
Q. Have you seen saws operated in that condition? A. Yes, sir; I have seen them operated
and also sawed with themthat is, started to.
From this and other evidence produced at the trial it was for the jury to say whether the
danger was so imminent and immediate that the respondent, as a reasonably prudent man,
should have refused to continue in the service after a promise of repair had been made by the
master. It cannot be said that, because the respondent knew that the machinery was getting
dangerous or was defective and because the accident did happen, as a matter of law and a
matter of fact the danger was immediate and imminent, or was such as would cause a
reasonably prudent man to apprehend immediate danger. (Taylor v. N. C. O. Ry. Co., 26 Nev.
415.)
The testimony in this case discloses that the respondent used the saw about three times
between the time on which the master mechanic promised to repair and the accident. The
time in which a servant may reasonably continue in the service after drawing a defect or a
danger to the attention of the master is one that must be governed by the attending
circumstances. The nature of the defect, its imminence to danger, the probability of danger
occurring, and the experience of the servantthese elements, together with every other
attending fact and circumstance, are the things that will determine as to whether or not a
servant, acting as a prudent man, should refuse to continue in the service after a promise to
repair, without assuming the risk. Where the evidence presenting these conditions is
conflicting, the verdict of the jury in favor of the plaintiff will not be disturbed by a
reviewing court.
these conditions is conflicting, the verdict of the jury in favor of the plaintiff will not be
disturbed by a reviewing court. This has been the policy of this court and has been the policy
in nearly all jurisdictions in cases of this character. (Taylor v. N. C. O. Ry. Co., 26 Nev. 415.)
21. It is contended by appellant that respondent was the cause of his own injuries in failing to
keep the saw, with which he was operating, filed and set. As to whether or not it was the duty
of respondent to set and file the saws used by him, the testimony is decidedly conflicting. Mr.
Meyers, the master mechanic in charge at the time of the accident, testified that it was the
duty of respondent to set and file the saws that he operated. This is contradicted by
respondent in his testimony, and also by witness Webber; but there are salient features in the
testimony of Meyers from which we think the jury might have believed that the testimony of
the respondent in that respect was correct. Meyers, in answering interrogatories relative to the
events that transpired after the accident, testified that the saw had to be gummed out and
needed filing and setting, and, with reference to Mr. Webber having taken the respondent's
place after the accident and having complained of the condition of the saw, said: I came
through the mill, which I did about once in thirty minutesthis Mr. Webber claimed to be a
millman, and he was trying to get a piece through the saw, and he told me that no man could
use a saw like that, dull, and no set in it, and I told him I would go and get it filed and set.
Taking this statement, together with the testimony of Webber and Konig, the jury could
reasonably have arrived at two conclusions: That the equipment and implements for filing
and setting were not at hand, or that it was not the duty of the operator to file and set his saws.
If it was regularly the duty of the operator to file and set his own saws, there would have been
no necessity for Meyers to go and get it filed and set. Webber had been placed in
respondent's position at the saw after the accident; Webber was supposed to be a millman; he
was so recognized by the master mechanic to such an extent that he was placed in charge of
that saw.
was placed in charge of that saw. It must be assumed in this respect that Webber took the
position of the respondent after the accident; he would not only perform the same service, but
would be imposed with the same duties.
Further questions and answers propounded to Mr. Meyers are suggestive of the same
conclusion:
Q. It is not true then, at all, Mr. Meyers, and you are positive it is not true, that it was your
duty, and that you had to look after, and had given directions about, the making of repairs up
to the time Mr. Konig was injured? A. I did; certainly I did.
Q. And it was your duty to do it? A. Sure.
He later testified:
Q. After Mr. Konig was hurt, this saw was continued to be used under your directions? A.
Yes, sir.
Q. And used some time before it was taken to the Nevada Planing Mill and put in proper
repair? A. It was not out of repair; it was in good condition outside of it being dull, and I took
it to the Nevada Mill.
Relative to the equipment kept in the shops of the defendant for setting saws, the witness
Meyers, on cross-examination, testified as follows:
Q. Did you ever see the machines they use for setting saws? A. I have seen quite a few and
made quite a few.
Q. Did you have any machine of that kind in the shops at that time? A. No, sir.
He later stated on cross-examination that the only equipment kept for that purpose was a
short piece of railroad iron. He further stated in his testimony on cross-examination that he
put Mr. Webber in charge of all the machinery.
The witness Pearl, on cross-examination, and in response to interrogatories propounded by
counsel for appellant, testified: That usually when saws needed repairing they were taken to
the Nevada Planing Mill.
From all these statements, together with the positive testimony of the respondent, the jury
might reasonably conclude that according to the custom followed by appellant it was not the
duty of respondent to file or set saws with which he operated, and hence from all the
evidence it is to be presumed that they found that the respondent was not responsible for
the condition of the saw in any respect.
with which he operated, and hence from all the evidence it is to be presumed that they found
that the respondent was not responsible for the condition of the saw in any respect. The
conflicting nature of the testimony on this particular phase of the case precludes this court
from in any wise interfering with what we believe to be the jury's conclusion.
22. In the case under consideration, whatever may have been the master's duty or
obligation toward keeping the implements in proper condition prior to the time at which the
defect was drawn to the attention of the master mechanic, they could not have avoided their
obligation to repair the defect after their attention had been so drawn. The courts generally,
and the textwriters as well, have looked with disfavor upon any attempt of the master to
create or impose between himself and the servant any rule claiming to operate as a contract
against the negligence and dereliction of the master. It has been well said that contracts of this
nature, or rules of this general character, are nothing but an attempt to make laws under the
guise of rules, and, so far as they are claimed to operate as a contract against the negligence
and dereliction of the defendant, they are void as against public policy. (Ault v. Nebraska Tel.
Co., 82 Neb. 434, 118 N. W. 73, 130 Am. St. Rep. 659; Consolidated Coal Co. v. Lundak,
196 Ill. 594, 63 N. E. 1079; O'Neil v. Lake Superior Iron Co., 63 Mich. 690, 30 N. W. 688;
Mo. Ry. Co. v. Wood, 35 S. W. 879; Roesner v. Hermann, 8 Fed. 782; Lake Shore R. Co. v.
Spangler, 44 Ohio St. 471, 8 N. E. 467, 58 Am. Rep. 833; Little Rock Ry. Co. v. Eubanks, 48
Ark. 460, 3 S. W. 808, 3 Am. St. Rep. 245; Willis v. Grand Trunk Ry. Co., 62 Me. 488.)
In considering the question of assumed risk, we think it well to consider what might be
termed, and in fact has been termed, and exception to the rule, and yet we think
exception scarcely covers, for the reason that it is more of a modification to the rule than an
exception. There are instances where if an employee continues in the employment of the
master with knowledge of any special or extraordinary risks attending his employment, or if
there is risk attendant on his employment, so obvious and imminent that serious injury
may probably result from a continuance of the work, then the doctrine that the employee
can proceed, relying upon the promise to repair, does not apply.
there is risk attendant on his employment, so obvious and imminent that serious injury may
probably result from a continuance of the work, then the doctrine that the employee can
proceed, relying upon the promise to repair, does not apply. This modification, if we may so
term it, is supported by good reasoning, among which is that it is not consistent with
reasonable prudence for one to submit himself voluntarily to imminent danger or probable
immediate serious injury, relying upon a mere promise on the part of anybody that such
danger will be removed after a time; and further that when such danger exists there is no such
thing as a reasonable time to repair, other than immediate, and before the work proceeds
further. If the service cannot be continued without constant, immediate, and imminent danger,
and the danger and its character are fully known to the employee, he assumes the risk, if he
continues in the employment regardless of the promise of the master. Where an employee,
with experience sufficient to give knowledge of the nature of the implements with which he
operates, voluntarily incurs a known, imminent, and immediate danger, he cannot free
himself from his own negligence by a plea of the master's promise to repair.
One of the most striking examples of the application of this rule we find in the case of
Erdman v. Illinois Steel Co., 95 Wis. 6, 69 N. W. 993, 60 Am. St. Rep. 66. This case is so
analogous to the one under consideration that we deem it worthy of contrast and comparison.
Erdman's duties consisted in assisting in the operation of sawing and shearing heated bars and
plates of iron by the use of a circular saw four feet in diameter, set in a frame. On the day on
which he was injured, before commencing work the attention of the foreman was called to the
fact that the saw was cracked and defective. Erdman, who had fourteen years' experience in
such work, knew of the defect and asked the foreman if he could change the saw. The
foreman replied. No, you will have to work one heat with it. Erdman, apparently
apprehensive of danger, directed that the saw should be let down on the iron with great care
on account of its condition.
iron with great care on account of its condition. Shortly after commencing work the saw
broke, and the shaft upon which it ran left its bearings, and fragments of the saw and the shaft
struck the plaintiff Erdman upon the body, causing severe injury.
The Supreme Court of Wisconsin, in reviewing the Erdman case, contrasted it with other
cases in which that court had held that the servant could rely upon the promise of the master,
for a reasonable time, without assuming the risk, and after reasserting the general proposition
that when an employee notifies a master of a special risk and objects to continuing the work
under the existing conditions and is induced to continue such work by a promise to remove
the danger within a reasonable time, then for such time the employee is not presumed to
assume the risk. This doctrine, they say, is by no means without limitations: If the risk is so
obvious and immediate that serious injury may probably result from a continuance of the
work, then the doctrine that the employee can proceed, relying upon the promise to repair or
to remove the danger, does not apply. * * * A person 35 years of age, with fourteen years'
experience with machinery, circumstanced as plaintiff was, must be presumed to know the
operation of natural laws and the dangers, which such a defect as the one in question would
naturally suggest to a person of ordinary intelligence. * * * It does not require an expert, even,
to understand that a saw four feet in diameter, running at a speed of 1,700 revolutions a
minute, cracked three inches from the outside, when let down upon a large iron plate or bar
and operated with sufficient force to cut it in two, is in danger of flying to pieces and
seriously injuring all who may be in the vicinity. That a person of plaintiff's experience with
such a machine did not know of such danger is beyond comprehension. It was negligence to
the point of recklessness to work with such a defective saw at all under the circumstances.
That brings the case clearly within the exception to the rule that a protest by the employee to
continuing in the employ of the master because of the existence of some special risk
attending it, a promise by the employer to remove the danger within a reasonable time,
and a continuance in such employment under consideration of such promise, relieves such
employee from the charge of contributory negligence, if injured because of said danger
within such time."
employ of the master because of the existence of some special risk attending it, a promise by
the employer to remove the danger within a reasonable time, and a continuance in such
employment under consideration of such promise, relieves such employee from the charge of
contributory negligence, if injured because of said danger within such time.
It may be well to contrast the circumstances of the Erdman case, supra, with that of the
case under consideration. In the former case the saw four feet in diameter was being operated
in cutting iron bars and plates; it was found to be cracked, the crack running some three
inches from the circumference. There, by reason of the nature of the work, there was
obviously imminent and immediate and constant danger of the saw being broken. In the case
under consideration, the saw was being operated in an entirely different manner, under
different conditions; the defects, to wit, the kinking or cupping of the saw, were not such as in
our judgment would cause a person to apprehend immediate results, although they were such
as, if unrepaired, might in time bring about dangerous results. They were defects which would
increase by constant use and to that extent would become progressively dangerous. While the
Erdman case, supra, is perhaps most striking in the application of the modification or
exception to the rule of assumed risk, we find the same rule laid down under somewhat
similar circumstances in other cases. (Crookston Lumber Co. v. Boutin, 149 Fed. 680, 79 C.
C. A. 368; Shea v. Seattle Lumber Co., 47 Wash. 70, 91 Pac. 623; Reiser v. So. Planing Mill
Co., 69 S. W. 1085.) But, on a careful reading of all of these cases, where there has been an
application of an exception to the general rule of assumed risk, the circumstances of the
particular cases set forth conditions where the danger was imminent, immediate and obvious.
We think the evidence in the case under consideration tends to show that both the
appellant and the respondent thought the danger was not so great nor so imminent that the use
of the implement should be discontinued, and, even though the defect in the saw was present,
it was a fair question for the jury as to whether the risk of an accident was so great or
imminent that a reasonably prudent person would have continued to work.
was a fair question for the jury as to whether the risk of an accident was so great or imminent
that a reasonably prudent person would have continued to work. (Dowd v. Erie R. Co., 70 N.
J. Law, 451, 57 Atl. 248; Dunkerley v. Webendorfer Mach. Co., 71 N. J. Law, 60, 58 Atl. 94.)
Referring to appellant's assignments Nos. 27, 29, and 32, wherein it assigns error to the
trial court in sustaining respondent's objections to the questions propounded to witness C. J.
Pierson, we think, in view of the form of the questions, and more particularly in view of the
issues involved by reason of the peculiar pleadings of the defendant, there was no error
committed by the trial court in sustaining those objections. Pierson was a witness for the
defendant, and by the interrogatories propounded to him to which objections were made, and
which objections were sustained by the court, the defendant was attempting to establish a
defense of contributory negligence. This it was precluded from doing by reason of the nature
of its own pleadings, in that the defendant had failed to plead a defense of contributory
negligence.
23. With reference to appellant's assignments Nos. 33, 35, 36, 38, 41, and 42, wherein
appellant assigns error to the trial court for having sustained the objections to several
questions propounded to defendant's witness E. A. Burns, we think in view of the issues
raised and in view of the fact that no defense of contributory negligence was pleaded by the
defendant, the court did not err in sustaining the objections raised to the several questions
propounded to defendant's witness. These interrogatories were further objectionable in view
of the fact that they sought to have the witness testify to inferences and conclusions as to
danger or safety, and these were matters which were for the jury alone. It would have been
proper for the witness to have testified as to the condition of the saw, of the circumstances
which came under his observation, but it was for the jury to draw inferences and conclusions
as to the danger or safety. (Detzur v. Stroh Brewing Co., 119 Mich. 282, 77 N. W. 948, 44 L.
R. A. 500.)
The trial judge, in passing upon the objection raised by respondent in the lower court, and
addressing himself to Mr. Barry, attorney for appellant, said: I will go this far with you, Mr.
Barry: I will let you show that the saw was not properly operated on this day. It might be
contended that the court was drawing very close lines on the defendant, but in view of the
pleadings we think that the court properly stated the limits to which the defendant was
entitled to go by way of affirmative proof; there being no issue of contributory negligence
raised by the answer of the defendant.
24. The questions propounded by counsel for defendant to its witnesses Burns and Pierson
sought to elicit testimony bearing upon the question as to what others would do or have done
under similar conditions, with a view of establishing whether respondent performed his duty
with such lack of care or degree of negligence as contributed to bring about the accident.
These questions were objectionable, and the objections interposed to them were properly
sustained for the reason that what others did or might do, or were in the habit of doing under
like conditions, did not tend to prove the plaintiff's contributory negligence, even assuming
that contributory negligence was an issue in this case. What others might have done under
like conditions would not prove or tend to prove what the respondent should have done, nor
would it to any degree establish his lack of care. (Union Wire Mattress Co. v. Wiegref, 133
Ill. App. 506; Temperance Hall Association v. Giles, 33 N. J. Law, 260; Hinckley v.
Barnstable, 109 Mass. 126; Crocker v. Schureman, 7 Mo. App. 358).
25. Counsel for appellant very ably argue that in the light of the testimony given at the trial
it was a physical impossibility for the accident to have happened in the manner in which it is
claimed to have happened. In this respect the record discloses no eye-witness to the accident,
save and except the plaintiff himself, and from his testimony, and the manner in which it is
given, and the peculiar way in which he answers the questions, it is manifest, and must
have been manifest to the jury, that the plaintiff is an illiterate man, unable to explain
situations and circumstances, a foreigner by birth, and with but a limited vocabulary of
English.
peculiar way in which he answers the questions, it is manifest, and must have been manifest
to the jury, that the plaintiff is an illiterate man, unable to explain situations and
circumstances, a foreigner by birth, and with but a limited vocabulary of English. This is
apparent from many of his answers in which the words used convey but little sense or
meaning, so far as the record discloses. He alone could describe the way or manner in which
the accident occurred; his description, together with the evidence of other witnesses as to
what they saw and observed immediately after the accident, was in our mind sufficient to
warrant the jury in believing that the accident occurred in the manner which the plaintiff
alleges.
That there were defects in the saw, which defects are usually caused or brought about from
the metal losing its tension, was fairly well established by the evidence, and that when a
circular saw becomes cupped or thickened it runs untrue and wabbles was testified to by
witnesses both for appellant and respondent. The witness Pearl, having testified that he was
accustomed to the use of circular saws, also testified that, where necessity requires, an
operator may continue to use a saw after it is cupped or thickened. He states, further, that the
very saw in question had been used by Webber after the accident had occurred to the plaintiff.
If the saw was cupped and thickened, then it was a question for the jury as to whether or not
its condition caused the accident. The plaintiff was not obliged to cover all doubt as to the
cause of the accident, but was bound only to show, by a fair preponderance of the evidence,
that the cause was one for which the defendant was or could be found to be liable. There
seems to be no other cause, in so far as the record discloses, which the jury could have
regarded so adequate to explain the accident as that related by the plaintiff, in view of the fact
that the condition of the saw, as testified to by plaintiff, was borne out by the testimony of
Webber and Pearl, and by the testimony of Meyers on cross-examination.
the testimony of Meyers on cross-examination. Moreover the physical appearance of the
block after the accident, as described by the witness Meyers, bears out the testimony of the
respondent as to the manner in which the accident occurred. (Pickquett v. Wellington Wild
Coal Co., 200 Mass. 470, 86 N. E. 899.)
Moreover, it was a warrantable inference for the jury to arrive at, in view of the fact that a
cause was shown which might produce an accident of that particular character, and it is
especially true in the absence of a showing of other causes. The showing was such, in our
judgment, as warranted the jury in inferring that the cause alleged was the operative agency in
bringing about the result, and hence their determination in that respect should not be
disturbed. (Rase v. Minneapolis, St. P. & S. S. M. Ry., 107 Minn. 260, 120 N. W. 360, 21 L.
R. A. n.s. 138; Lunde v. Cudahy Packing Co., 139 Iowa, 688, 117 N. W. 1063;
Bolen-Darnall Coal Co. v. Williams, 164 Fed. 669, 90 C. C. A. 481; Miller v.
Kimberly-Clark Co., 137 Wis. 138, 118 N. W. 538; Swick v. Aetna Co., 147 Mich. 454, 111
N. W. 113.)
26, 27. Appellant charges error in plaintiff's instruction No. 1, wherein the court charged
the jury as follows: * * * The jury is further instructed that, as a consequence of such
employment, it was the duty of the said corporation to use due care in providing the plaintiff
with safe machinery and with a safe ripsaw, and in keeping and maintaining the said
machinery or ripsaw in such condition as to be reasonably and adequately safe for use by the
plaintiff.
The appellant contends that this instruction does not correctly charge the measure of the
master's duty; the true rule being to exercise reasonable care to furnish a reasonably safe place
in which to work, and reasonably safe appliances with which to work, and to maintain this
condition. Appellant's contention in this respect is correct. We think, however, that this was
properly stated in the latter part of the instruction, wherein reasonably and adequately safe
are used by the court. Moreover, the entire subject-matter as to the measure of the
master's duty was covered by defendant's instruction No.
the entire subject-matter as to the measure of the master's duty was covered by defendant's
instruction No. 2, given by the court, in which the court instructed: The master is not
required to use more than ordinary care and diligence for the protection of his servants. The
master is not bound to provide the very best materials, implements, or accommodations
which can be procured, nor those which are absolutely the most convenient or most safe. His
duty is sufficiently discharged by providing those which are reasonably safe and fit. * * * The
master performs his whole duty by using as much care in furnishing instrumentalities for the
use of his servants as a man of ordinary prudence in the same line of business, acting with a
prudent regard for his own safety would do in supplying similar things for himself, if he were
doing the work. * * *
An instruction similarly framed was given by the trial court in the case of Christensen v.
Floriston Pulp and Paper Co., 29 Nev. 567, and this court, in reviewing the case, held that
there was no error in the instruction in view of the circumstances of the case. Moreover, we
think that the defects in this instruction were met and overcome by defendant's instruction
No. 1, dwelling upon the same subject.
The same reasoning applies to appellant's assignment of error applicable to plaintiff's
instruction No. 4.
28, 29. Appellant assigns error in giving the plaintiff's instruction No. 4a, which reads as
follows: The jury is instructed that, if the servant, having a right to abandon the service
because it is dangerous, refrains from doing so in consequence of assurances that the danger
shall be removed, the duty to remove the danger is manifest and imperative, and the master is
not in the exercise of ordinary care until he makes his assurances good. However, the
assurances remove all ground for the argument that the servant by continuing in the
employment engages to assume the risks.
The latter part of this instruction is entirely too narrow in its presentation of the law. First,
it fails to take into consideration the period of time during which the servant may
reasonably rely on the promise to repair; secondly, it fails to even make mention of the
duty of the servant under conditions where he finds that he is working with defective
implements, from which an accident is liable to occur.
consideration the period of time during which the servant may reasonably rely on the promise
to repair; secondly, it fails to even make mention of the duty of the servant under conditions
where he finds that he is working with defective implements, from which an accident is liable
to occur. These criticisms, however, we think are met and overcome by the amendment to
plaintiff's instruction No. 2, setting forth that under such conditions the servant may continue
in the service without assuming the risk, providing the danger is not of so imminent a
character that a person of ordinary prudence would refuse to continue in the service. It is
further met by plaintiff's instruction No. 3, wherein the court charged the jury and instructed
that, where a master has expressly promised to repair a defect, the servant can recover for the
injury occurring by reason of such defect within such period of time after the promise as it
would be reasonable to allow for its performance, and for an injury suffered within any period
which would not preclude all reasonable expectation that the promise might be kept.
The defect complained of in plaintiff's instruction No. 4a is further met, we think, and
cured by defendant's instructions numbered 3, 9, 11, and 13, in which instructions the court
laid down the proper rule applicable to a master's promise to repair. Speaking upon this
subject, the Supreme Court of Indiana, in the case of McFarlan Carriage Co. v. Potter, 153
Ind. 107, 53 N. E. 465, said: A promise to repair is confession to a breach of duty, and when
a master, to right himself, requests and induces a postponement, either for convenience or
profit, no principle of justice will lay the burden of delay upon the unoffending servant. The
whole question is bottomed upon the wrong of the master, and it is sophistry to argue that the
servant, by confiding in the master's promise, for a reasonable time in which to clear the
defect, clearly * * * waived the master's duty to him, and assumed the additional risk
himself.
30. We think that plaintiff's instruction No. 4b, with the amendment made to it by the
court, contains no element of error, and was a fair statement of the law. It was especially so
in view of the fact that the latter part of the instruction very properly stated: "That it is
the function and the duty of the jury to determine from the evidence and evidentiary
circumstances in this case whether the defect in the saw, if any existed, was such that
none but a reckless millman, careless of his safety, would have operated the saw in
question, without the same first being repaired."
was especially so in view of the fact that the latter part of the instruction very properly stated:
That it is the function and the duty of the jury to determine from the evidence and
evidentiary circumstances in this case whether the defect in the saw, if any existed, was such
that none but a reckless millman, careless of his safety, would have operated the saw in
question, without the same first being repaired. Appellant especially takes exception to the
word reckless used in the instruction of which the foregoing is a quotation. The court might
well have used either the word heedless, careless, or indifferent in place of the word
reckless, with the same force and effect.
31. Plaintiff's instruction No. 4c was as follows: The jury is further instructed that where
the defendant relies upon the defense that the plaintiff assumed the risk, by reason of the
ripsaw being so imminently and immediately dangerous that a reasonably prudent person,
situated as the plaintiff was, would not have used the same, is an affirmative defense, and the
burden of establishing the same, by a preponderance of the evidence, rests upon the
defendant.
Without dwelling upon the grammatical construction of this instruction, we believe that it
was a fair attempt to fairly state the rule. Appellant comments upon this instruction in its
assignments, and we admit that the court might properly have gone further had it seen fit, and
might have stated that, if it appeared from the evidence that the plaintiff was the proximate
cause of his own injuries, and had so conducted himself as to assume the risk, the defendant
was entitled to take advantage of that fact. Under the circumstances of this case, however, it
is our opinion that the instruction as given was sufficient in so far as it went. This we think is
especially true in view of the fact that the defendant by its own act had precluded itself from
the defense of contributory negligence or assumed risk or proximate cause, save and except
so far as these elements might appear from the plaintiff's case. In its assignment of error, in
connection with this instruction, appellant refers to its offer of the testimony of Pierson,
Burns, Gardner and Meyers; but as we have already dwelt upon this subject it is not
necessary to again comment upon it.
testimony of Pierson, Burns, Gardner and Meyers; but as we have already dwelt upon this
subject it is not necessary to again comment upon it. Suffice it to say that the testimony
sought to be elicited from the witnesses was not admissible under the pleadings interposed by
the defendant in this case.
32. Plaintiff's instruction No. 5 is assigned as being erroneous; but in our judgment there
was nothing in this instruction that would be to any degree misleading. The court had the
right to fix the limit at which damages could be assessed at the amount sued for by the
plaintiff.
This identical matter was passed upon by this court in the case of Cutler v. Pittsburg Silver
Peak G. M. Co., 34 Nev. 51, and in that case the court, speaking through Mr. Chief Justice
Sweeney, said: As we construe the plain and unambiguous language at the end of the
instruction, viz, that it is your duty to find a verdict for the plaintiff in a sum not greater than
$15,000,' the jury was in no way obligated to find a verdict in this specific amount; but, as
specifically stated in the instruction, if the jury find from the evidence the elements making
the defendants liable in damages previously stated in the instruction to be true, then it is their
duty to find a verdict they may believe proper, ranging from one cent to the limit of $15,000,
but no more. It plainly appears from the instruction excepted to that the premises therein
stated all the elements which, if true, would warrant the finding of a verdict for the plaintiff,
and legally it would then become the duty of the jury to render a verdict in such amount of
damages as they believed to be just and proper under the evidence and instructions of the
court. We believe the court very properly stated to the jury the maximum damages they might
be allowed to assess, if they found the evidence such that the plaintiff was entitled to a
judgment.
The reasoning set forth in the Cutler case, supra, in our judgment applied equally to the
instruction complained of by appellant in this case.
33, 34. Appellant assigns as error plaintiff's instruction No. 6, which is as follows: The
jury is further instructed that the mere facts that prior to the injury the said ripsaw used by
the plaintiff was in a defective condition, and that the same was known to the plaintiff up
to and including the time of the injury, and that the plaintiff was actually injured as a
result of said defective condition, standing alone, do not in themselves establish the fact
that at the time of the injury the said ripsaw used by the plaintiff was so openly and
obviously dangerous on account of said defects that a reasonably prudent person would
not have used the same."
that the mere facts that prior to the injury the said ripsaw used by the plaintiff was in a
defective condition, and that the same was known to the plaintiff up to and including the time
of the injury, and that the plaintiff was actually injured as a result of said defective condition,
standing alone, do not in themselves establish the fact that at the time of the injury the said
ripsaw used by the plaintiff was so openly and obviously dangerous on account of said
defects that a reasonably prudent person would not have used the same.
This instruction, we think, is not objectionable from a standpoint of a misstatement of the
law. The rule upon which the court sought to instruct the jury is one that is generally
accepted, and has received the sanction of this court in the case of Taylor v. N. C. O. Ry. Co.,
26 Nev. 428, wherein the court said: It will not do to say that, because respondent knew the
machinery was getting dangerous, and because the accident did happen, as a matter of law,
and a matter of fact, the danger was immediate and imminent. To so hold would absolutely
destroy the legal effect of the master's promise under the rule stated.
We think this instruction is not subject to the objection insisted upon by appellant that the
court in giving the instruction assumed the facts therein stated to have been proven or
admitted. It would have been better, perhaps, had the court stated the instruction in another
way; but we think there was nothing in the instruction to mislead the jury. This is especially
true in view of the fact that in defendant's instruction No. 13 the same subject-matter was
covered, and again in defendant's instructions numbered 3 and 9 the subject was so dwelt
upon that the defendant could not have been prejudiced by reason of the manner in which the
court gave the instruction numbered 6.
35. Appellant assigns as error plaintiff's requested instruction No. 7. We think this
instruction was not subject to the objection interposed to it by appellant. At the very
beginning of the instruction the court advised the jury that they were at liberty and should
take into consideration all of the facts and circumstances surrounding the testimony of
the witnesses in determining the weight, credit, and value that was to be given testimony.
take into consideration all of the facts and circumstances surrounding the testimony of the
witnesses in determining the weight, credit, and value that was to be given testimony. At the
conclusion of the instruction, the court advised as follows: The fact, if it be a fact, that such
statements of witnesses are contradicted by other witnesses, you will give to the testimony
only such credit as you may believe it to be entitled to under all of the circumstances detailed
in evidence, and, if you believe that any witness has wilfully sworn falsely to any material
fact, you are at liberty to disregard the whole or any part of such witness's testimony, except
in so far as the same is corroborated by some other credible witness or witnesses. This latter
part of the instruction as quoted should also have taken into account the elements of
circumstantial evidence, or the circumstantial features of the case, as it is termed by appellant;
but, in view of the fact that the first part of the instruction took these elements into
consideration, and properly advised the jury with reference to them, we think the appellant
was not prejudiced by the instruction as a whole.
36-38. The appellant assigns error in the giving of plaintiff's instruction No. 9, which
instruction was as follows: The court further instructs the jury that the term negligence,' as
used in these instructions, imports the want of such attention to the nature or the probable
consequence of any act or omission, as a reasonably prudent man ordinarily bestows in acting
in his concerns of like importance; while ordinary care is such care as a person of ordinary
prudence usually exercises about his own affairs of ordinary importance. With these
definitions well in mind, you will determine the question as to whether the defendant was
negligent in providing for the safety of its employee, the plaintiff, and also whether the
plaintiff exercised that degree of care for his safety which, under the circumstances, he ought
to have exercised. The court further instructs the jury that by the risks incident to the
employment is meant such risks as exist after the master has performed his full duty to his
servant in furnishing instrumentalities, machinery, and appliances reasonably safe for the
purpose for which it was intended, and this includes keeping the same in reasonably safe
repair.
machinery, and appliances reasonably safe for the purpose for which it was intended, and this
includes keeping the same in reasonably safe repair. And, in this connection, you are
instructed that by the assumption of risk incident to the employment is not meant any
additional or extra hazard to the employee, occasioned by the negligence of the master in
failing to keep his tools, machinery, and appliances in reasonably safe repair.
In this instruction it will be observed that the court sought to give a definition for
negligence and for ordinary care. Both definitions, as given by the court, could have been
differently worded; but we see nothing about either of them that would tend to mislead the
jury or to prejudice the appellant. Appellant in its brief says: Let it be admitted for
argument's sake only that the injury to plaintiff was the consequence of the omission of
defendant to repair the saw, then the want of attention to the consequences, viz, the plaintiff's
injuries, constituted negligence under this definition, and no such case is present by the
pleadings.
The definition of negligence given by the court in this instruction was not subject to such
distortion of reasoning as that set out by appellant. The definition of negligence, as given by
the court, summed up in few words means a disregard for probable consequences.
The court's definition of ordinary care, as given in this instruction, was correct in the
abstract. In the latter part of the instruction the court sought to define risks incident to the
employment. While we are inclined to believe that this instruction was extremely limited in
its attempt to define the three elements important to the case, and while we do not sanction
the definition, as set forth in this instruction, as being the best that could be given, yet we
believe that the jury was in no wise misled, and, in view of other instructions given by the
court touching the same subject-matter, we think the appellant was in no wise injured by this
one.
Appellant complains of the failure of the court to give defendant's offered instruction No.
6, and in its brief appellant states that the jury might well have found that the plaintiff simply
protested against the use of the saw, and that no promise to repair was made, and if so
the instruction was correct.
the plaintiff simply protested against the use of the saw, and that no promise to repair was
made, and if so the instruction was correct. There was nothing in the evidence to warrant any
inference of this kind. The record discloses the position statement on the part of the plaintiff
relative to his drawing the attention of the master to the defect, and a positive statement on
the part of Meyers, the master mechanic, denying that the plaintiff ever complained of the
saw or mentioned the defect to him. There was no middle ground to which defendant's
refused instruction numbered 6 could properly apply.
39. It was not error to refuse defendant's offered instruction numbered 7, the subject-matter
sought to be touched upon in defendant's refused instruction No. 7 having been very properly
covered by the defendant's instruction numbered 13, and in the latter instruction the correct
rule was stated.
Defendant's instruction numbered 8, refused by the trial court, dealt with the question of
contributory negligence the same as if it had been set up as a defense by the appellant in this
case. We have already dwelt upon that subject at length, and our opinion is that it was not
error for the court to refuse this and similar instructions.
40. The same reasoning applies to defendant's refused instruction No. 12. Assumed risk,
like contributory negligence, if relied upon at all by defendants in a case of this character,
must be especially pleaded.
Our opinion and reasoning as applied to defendant's refused instructions numbered 8 and
12 applies equally to defendant's refused instructions numbered 14, 17, and 18. These
instructions, bearing upon the question of contributory negligence, assumed risk, and
proximate cause, were properly refused in the manner in which they were offered, in view of
the fact that there was no plea on the part of the defendant involving these special defenses.
The contentions of appellant are ably presented in its brief, and many of the authorities
would bear out its theory, if the primary conditions of the case were analogous to those cited;
but appellant at the very outset assumed a false premise in declaring that the defense of
contributory negligence is interposed by the answer, and its entire brief and argument is
poised on this erroneous assumption, and hence as to the assignments heretofore
considered they cannot prevail.
outset assumed a false premise in declaring that the defense of contributory negligence is
interposed by the answer, and its entire brief and argument is poised on this erroneous
assumption, and hence as to the assignments heretofore considered they cannot prevail.
41. Appellant contends that the judgment in this case is so excessive as to clearly indicate
the existence of passion or prejudice on the part of the jury. It will be observed that in this
case the plaintiff was a man some 58 or 59 years of age at the time of the injury. According to
the testimony of the physician, who had been a family physician to some extent in years past,
and according to the testimony of the plaintiff himself, his life had been marked by instances
of illness of more or less severity; he had suffered from malarial fever to some extent; he had
endured an attack of pneumonia; he had been treated for what was termed cerebro-spinal
fever, verging on cerebro-spinal meningitis. These afflictions might or might not materially
affect his expectancy of life.
The testimony is undisputed that it was the appellant's regularly employed physician, Dr.
Morrison, who waited on the respondent after the injuries, and who officiated at the operation
performed on the respondent in the hospital, and who must necessarily have been cognizant
of the nature and extent of the injuries and physical condition of the respondent.
Notwithstanding this, however, Dr. Morrison was not called upon to testify, and, in the
absence of his testimony, the testimony of Dr. Hershiser, the respondent's physician, stands
alone and unmodified. From his testimony we gather that it was his opinion that a man in the
condition of life of the plaintiff before the accident could perform labor for at least ten years
longer. From the record of his testimony the nature, seriousness, extent, and effect of
respondent's injuries are set forth, also his physical condition after the accident as compared
with his condition prior to the accident. His normal expectancy would be in the neighborhood
of fourteen years; but it is not to be presumed that in the latter years of his life a man, who
had been subjected to hard toil more or less during his lifetime, and who had been
subjected to the weakening effects of maladies, would be capable of performing labor
such as that imposed upon the plaintiff at the time of his injury for the period of his
normal expectancy.
subjected to hard toil more or less during his lifetime, and who had been subjected to the
weakening effects of maladies, would be capable of performing labor such as that imposed
upon the plaintiff at the time of his injury for the period of his normal expectancy.
At the time of the injury and for a long time prior thereto, so far as we are advised from the
record, the plaintiff had been earning between $80 and $90 per month. From his earnings he
was supporting a wife and eight children. Assuming that the physician's estimate was fairly
correct, wherein he stated that the plaintiff could perform labor for at least ten years longer,
we may infer that he could earn and could have contributed to the family dependent upon him
in the neighborhood of $10,000.
We are inclined to believe that the damages assessed by the jury in this case were
excessive, in view of the circumstances of the case, and in view of the condition, age, and
circumstances of the plaintiff. While the evidence in this case discloses that the injuries
sustained by the respondent were of a severe and painful nature, permanently affecting one
side of his body, and depriving him of the use of one arm, yet we are not satisfied that the
respondent will be entirely deprived of the ability to enter into lines of employment involving
less laborious tasks. In other words, it does not appear that the respondent is or will be
entirely unable to contribute to his own support or to the support of his family.
In view of the foregoing reasoning, we are of the opinion that the order of the trial court
denying defendant's motion for a new trial should be affirmed as to all the assignments of
error made, except as to the error assigning the judgment to be excessive. For this latter error
it is ordered that the judgment be reversed, and a new trial granted, unless the plaintiff,
respondent herein, within thirty days after the receipt of a copy of this opinion and order from
the clerk of this court, file in this court a written consent to a modification of the judgment to
$10,000, in lieu of the judgment rendered against the defendant corporation.
In the event such written consent of plaintiff is filed in this court within the time
designated, assenting to the reduction of said judgment to $10,000, it is ordered that the
judgment of the lower court be modified accordingly, and that the judgment, as modified, and
the order of the lower court denying defendant's motion for a new trial be affirmed, and that
respondent be allowed his costs.
It is so ordered.
____________
36 Nev. 247, 247 (1913) Forrester v. Southern Pacific Co.
[No. 1860]
MAMIE A. FORRESTER, as the Administratrix of the Estate of DICK FORRESTER,
Deceased, Respondent, v. SOUTHERN PACIFIC COMPANY (a Corporation), Appellant.
1. Appeal and ErrorReviewVerdictConflicting Evidence.
On appeal from a verdict for the plaintiff, in an action where the testimony was conflicting, facts may be
regarded as shown by the evidence for the plaintiff.
2. Executors and AdministratorsAppointmentCollateral Attack.
The appointment of an administratrix cannot be attacked collaterally, in an action instituted by a decedent
before his death and continued by the administratrix, where the court appointing her had jurisdiction to
make the appointment.
3. Executors and AdministratorsAppointmentJurisdiction of CourtExistence of
Assets.
Where the plaintiff, in an action to recover damages for the wrongful expulsion from a train, who was a
nonresident and had no other property in the state, died while the action was pending, his right of action
was property upon which letters of administration might issue in the county in which the case was pending,
even though the action might also have been instituted in the state of his residence.
4. Abatement and RevivalDeath of PartySurvival of ActionAction on
ContractTransitory Action.
Under Comp. Laws, 2951, providing that actions founded upon contracts may be maintained by executors
and administrators in all cases where they might be maintained by the decedent in his lifetime, an action for
damages caused by wrongful ejection of a passenger from a train, where the passenger had paid his fare
and received a ticket, is a transitory action upon a contract which may be continued by the administratrix of
the plaintiff after his death.
5. CourtsUnited States CourtsAuthority of State DecisionConstruction of State
Statute.
The federal courts follow the decisions of the highest courts of the states in construing the constitution
and laws of the state, unless they conflict with the United States constitution or laws.
6. Abatement and RevivalStatutesConstructionReference to Common Law.
It is not the duty of the court, in construing a statute providing for the survival of actions, though in
derogation of common law, to hold that the legislature did not intend what the language of the act clearly
indicates, or that cases which would not survive at common law should be excluded from the operation of
the statute, where they come within the ordinary meaning of the words employed.
7. ActionsNatureTortExpulsion of Trespasser from Train.
An action for damages for injuries due to the use of excessive force in ejecting a trespasser from a train is
an action in tort, and not upon breach of contract.
8. Abatement and RevivalDeath of PartyRevival of ActionsStatutory Provisions.
The legislature has the power to provide that actions for the tortious breach of contract shall survive the
death of the plaintiff.
9. DamagesExemplary DamagesBreach of Contract.
Exemplary damages are allowable in proper cases, and may be recovered in an action for the tortious
breach of a contract as well as for a tort unconnected with any contract.
10. CarriersCarriage of PassengersAction for Wrongful
EjectmentEvidenceRatification of Tort.
In an action for wrongful ejectment of a passenger by a train agent, who had special authority to take up
tickets and remove passengers, evidence held sufficient to show that the company had ratified the acts of
the agent in ejecting the passenger, if such ratification was necessary to render it liable for exemplary
damages.
11. Principal and AgentMaster and ServantExemplary DamagesLiability for Acts of
Employee.
A principal or master is liable for exemplary damages for the wrongful, wanton, and oppressive acts of
his agents or servants when acting within the scope of his employment, although the particular acts were
not authorized or ratified.
12. Appeal and ErrorReviewVerdictAmount of Recovery.
In actions in which there is no legal rule for the measure of damages, the allowance by the jury will not be
disturbed as excessive, unless it is so flagrantly improper as to indicate prejudice or corruption in the jury,
especially where the trial court has approved the award by denying a new trial.
13. CarriersWrongful EjectionExcessive DamagesInjuries to the Person.
A passenger bound for San Francisco on a through ticket was wrongfully ejected by the train agent, who
humiliated and insulted him by charging that he had stolen his ticket. He was put off at the sidetrack in the
desert, though the company's agent knew that he was sick and did not have enough money to pay his fare to
his destination. After his ejection, the district agent of the company refused to give him transportation, and
further insulted him. As a result, the passenger was compelled to walk and ride in box and coal cars for a
considerable distance in inclement weather, in consequence of which he contracted pneumonia, which
resulted in consumption, eventually causing his death, while the action was pending. Held, that a verdict for
$11,115, of which $1,115 was for railroad fare and medical and hospital bills, was not so excessive as to
require a reversal.
14. EvidenceRes GestaeWrongful Ejection of Passenger.
Declarations made by a train agent while ejecting a passenger, such as that We put them off here, and
they sleep in box cars, and similar statements, are admissible as part of the res gestae in an action to
recover damages for wrongful ejection.
15. CarriersPassengersWrongful EjectionInstructionsDegree of Care.
In an action for the wrongful ejection of a passenger who had a ticket, and who was sick and unable to
pay his fare to his destination, an instruction that a common carrier of passengers must exercise the highest
practicable degree of care the human judgment and foresight is capable of to make the passenger's journey
safe, is proper.
16. TrialInstructionsCure by Other InstructionsAmount of Recovery.
An instruction that the refusal of the agents of a carrier to honor a ticket properly issued renders the
company liable, even though the agent was honestly mistaken concerning its validity, is not erroneous as
authorizing a recovery of exemplary damages for such an honest mistake, even though the court had ruled
that under the testimony exemplary damages might be recovered, where the jury was also instructed that if
the ejection of a passenger was in good faith and without malice or unnecessary force on the part of the
railroad servants, the company was not liable beyond the actual damage.
17. CarriersCarriage of PassengerWrongful EjectionDefective Ticket.
Where a train agent falsely charged that a passenger had stolen his ticket or bought it from a scalper, and
ejected him from the train, the company is liable for the ejection, even though the ticket had been
mistakenly punched as to the time limit more than once, where none of the other punch marks indicated
a time limit subsequent to the purchase of the ticket as stamped on the back, and
prior to the ejection from the train.
indicated a time limit subsequent to the purchase of the ticket as stamped on the back, and prior to the
ejection from the train.
18. Appeal and ErrorHarmless ErrorInstructions.
In an action for the wrongful ejection of a passenger holding such a ticket, an instruction requiring the
company to exercise the highest degree of care, if erroneous, was harmless, since the company would be
liable under such circumstances if only required to exercise ordinary care.
19. CarriersCarriage of PassengersWrongful EjectionDefective TicketMistake of
ticket Agent.
A provision in a railroad ticket that it should be void if it showed any alterations, or if more than one date
was canceled, does not relieve the carrier from liability for wrongfully ejecting a passenger upon whose
ticket extra punch marks had been placed by the ticket agent.
20. CarriersPassengersAction for Wrongful EjectionInstructionApplicability to
Evidence.
An instruction that the face of a ticket is conclusive between the train agent and the passenger, and that
the former is not bound to listen to explanations on the part of the passenger where the ticket is defective,
but may eject the passenger if he refuses to pay fare, is not applicable in an action for the expulsion of a
passenger from a train, where the ticket was sufficient to entitle him to transportation even though extra
punch marks had been placed thereon by mistake.
21. CarriersPassengersUnreasonable ConditionsTicket.
A condition in a railroad ticket that in case of controversy the passenger agrees to pay the regular fare and
apply for reimbursement at the office of the company, is unreasonable and void.
Appeal from Second Judicial District Court, Washoe County; W. H. A. Pike, Judge.
Action by Mamie A. Forrester, administratrix of Dick Forrester, deceased, against the
Southern Pacific Company. Judgment for plaintiff, and defendant appeals. Affirmed.
Statement of Facts
Dick Forrester, a painter and paper hanger by trade, 27 years of age and married,
purchased at Houston, Texas, from the Houston and Texas Central Railroad Company, acting
for itself and as agent of the appellant, a railroad ticket entitling him to transportation from
Houston to San Francisco over the lines of railroad of the selling company, its connecting
lines, and over the appellant's railroad from Ogden to San Francisco.
railroad from Ogden to San Francisco. While properly aboard one of appellant's passenger
cars, en route from Ogden to his destination, and, according to the evidence on behalf of the
plaintiff, after complying with different requirements and requests for the validation of the
ticket, he was, on September 22, 1907, by the train agent of the appellant, insulted and
humiliated in the presence of other passengers, deprived of his ticket upon the claim that he
was not the purchaser, that he was not Forrester, or that he had stolen the ticket or obtained it
from a scalper, and without his consent his suit case was searched, and he was finally ejected
from the train at Montello, Nevada.
It is said by appellant's attorney that he was put off the train because the ticket contained
too many punch marks, and because the agent was not satisfied with Forrester's attempts to
identify himself by test signatures which differed in appearance from the signatures on the
ticket. These signatures are before us, and appear to be in the same handwriting as the two
signatures of Forrester upon his ticket. This is not denied.
For the respondent it is said no objection that the ticket contained too many punch marks
was made by the train agent to Forrester. The train agent was authorized to confiscate tickets,
and in addition to salary was allowed by appellant company a commission upon each invalid
ticket taken up by him, and charged for improperly confiscating tickets.
At the time Forrester was expelled from the car he was ill, and his sickness was known to
appellant's employees. He was without means to purchase a ticket to continue to his
destination, and was compelled to proceed to Reno, a distance of about 400 miles, where he
had acquaintances, by riding upon cars in exposed situations, in inclement weather, and as a
consequence he contracted pneumonia, and shortly after reaching Reno he was treated for
pneumonia in the county hospital. The disease caused great and continued pain, suffering, and
physical and mental distress. Afterwards he went to Stockton, Cal. where he had friends and
acquaintances, but his sickness there continued to develop, resulting in consumption."
Stockton, Cal. where he had friends and acquaintances, but his sickness there continued to
develop, resulting in consumption.
This action was brought by him against the appellant in the district court at Reno, but
before it was tried he died there, about five months after the time when he was ejected from
the train. After his death his widow petitioned for letters of administration upon his claim
against the appellant, which letters were granted to her by the district court at Reno, and on
motion she was substituted as plaintiff in the case.
After such substitution there was a trial, and judgment and verdict in favor of the plaintiff
for $11,115, of which $1,115 was for such items as fare, hospital, nursing, and physician's
fees.
The answers made by witnesses to a few questions upon the trial give a better
understanding of the facts in the case.
In his deposition, taken by stipulation at the request of appellant's counsel about twelve
days before his death, and which was introduced on the trial, Forrester gave testimony
regarding the taking of his ticket and his ejection from the train, in part as follows:
Q. What was that trouble? A. Well, the whole trouble, why, he comes around taking up
tickets. I suppose he was a train detective or train agent; everybody was giving him his ticket.
Then this conductor followed, checking hats; there was three of them. I don't know what the
other man was. I gave him the ticket, and he takes it, and signs it, and gives it back to me, and
then he says: Wait a minute. He says: Give me back your ticket. I took it and gave it to
him, and he says: Sign this piece of paper; this piece of card. He says: Sign your name.
He had forgotten to get me to sign it. I turned around and signed it in the window of the car.
There were three men in the seat and it was crowded. I signed it and gave it back to him. He
takes it and says: Wait a minute. He went away and came back again. He went away two or
three different times, and he came back and says: "This ain't your ticket."
and he came back and says: This ain't your ticket. And I says: It's my ticket. He said:
Where did you get it? I said: I bought it in Houston, Texas, for $25. He says: Go on and
tell the truth here, he says, about this thing. You either swiped this ticket, or got it from the
scalpers; tell the truth about it and go on and pay your fare. He asked me the time I had had
the ticket, and I told him it had been taken up four days and four nights about. Well, he
says, you have got to get off, and the ticket is no good; that isn't your name. Well, I showed
him, I never had any letters, but showed him some union cards, a couple of working permits
from Houston that was made out within the same week I purchased my ticket. I showed them
to him, and he looked at them, and gave them back. He said: They don't belong to you. I
says: I suppose they are good. I had a receipt for money written on the back of one permit
to be sent to California for clearance card of different union, and of course I showed him that,
and he was mad. He got sore and picked up my suit case, and went all through it looking at
my laundry marks. He began to talk louder and got saucy. There were five or six men in the
car takes it up, and he got pretty tough. You know they took it up on my behalf, so he finally
says: We put off five or six men here very day. I says: You do? I says: All right, you will
have to put me off. I paid my fare, that's all there is to that. I had a fever at the time from
being changed in climate, and I told him: I am not in no condition to be put off, especially on
a desert like this, and I haven't got sufficient money to pay my way across the desert, as it
amounted to more than where I started from, but I don't know exactly the fare from there,
Montello to San Francisco.
Q. What happened next? A. Well, the conductor then he says: Well, what are you going
to do with this man? This fellow Lilly says: Well, I will attend to that. He takes my ticket
and goes off. He says: You get off at Montello; you will find a box car there to sleep in. He
says: We put them off here every day, five and six and dozens of them.
and dozens of them. It is a good place for them. Well, I told him he would have to put me
off. I wouldn't get off. He turned around to the conductor and brakeman and takes my grip
and slammed it back together, and threw it in the aisle and said, when we get to Montello, he
says: You get off this train. He turns around to the conductor and brakeman and says that
this man is to be put off at Montello, so he gets off at the next station. He takes my ticket
with him. A while after he goes, the conductor came to me and he says: Why did you let him
take your ticket away? Well, you see, why don't you, he just reached over and pulled it out
of my hand and asked to look at it the third time. The conductor then says: You have got
nothing now to show the next conductor. You can't show anything that you was ever on this
train. I says: All right, you fellows just take hold of me and lead me to the door; that's all I
want. He says: If we have to do that, we will. I says: All right, you do it. One got on
each side of me. I says: You will have to take me and put me offand he says: All right,
we are instructed to do that, and we will have to do that. He says: You have got no ticket
even to show the next man that you was ever on this train, which I didn't have after this
agent had taken it up. Well, he led me to the door, and the brakeman takes my grip and puts it
off the train, and sets it down, and helped me down off the car, and the conductor says to me,
he says: You have got a fever; you don't seem well. * * *
Q. After the train agent finally took your ticket from you, did you ask him to return it to
you? A. Yes, sir; I asked him for a receipt for it, and he says: No; you don't need it, the ticket
don't belong to you. Then he says: I will give you a receipt under a different name, but not
under the name of Dick Forrester.
Q. Now, what did he say when you asked him for the ticket? A. He said: No, the ticket
belonged to him.
Q. He said: No, the ticket belonged to him; did he say then and there in a loud tone of
voice that the ticket was not your ticket? A. Yes, sir.
Q. Did he say that you did not buy it at Houston? A. Yes, sir.
Q. Did he say the ticket didn't belong to you? A. Yes, sir.
Q. Did he say that you had swiped it or had procured it from the scalpers? A. Yes, sir.
Q. Did he say that your name was not Dick Forrester? A. Yes, sir.
Q. Then he demanded that you sign your full name? A. He did.
Q. Was that said in a loud or low tone of voice? A. Loud voice.
Q. Could the other passengers hear that? A. Did they? Yes, sir.
Q. Well, now how did you feel when he talked in that way? A. Well, I felt that it wasn't
anybody's business.
Q. Did you feel insulted? A. I did. I had a right to.
Q. Did you feel mortified? A. I did.
Q. Now then when the conductor and brakeman put you off of the train at Montello, what
did they say, and what did they do? A. Well, I told him He said: Come on and get off; this
is Montelloand I says: You got to put me off; I can't get off of my own accord very well,
because I have been told by the passengers not to. So one gets one arm and the other the
other, and the brakeman takes my grip and sets it on the outside; and they, one on each side of
me, leads me outside of the train.
The following appears in the testimony of James Watson, one of the witnesses for the
plaintiff, who was a passenger in the car at the time:
Q. What, if anything, first attracted your attention to Forrester? A. Why a man sitting in
the aisle across from me in the seat there, he looked to me as if something was wrong with
him, sick or something, I don't know.
Q. What was his appearance with reference to his state of health at that time? A. Well, he
looked sick to me, and that was the reason I went over and spoke to him. * * *
Q. Now when he came back you say the train agent asked him to sign his name again? A.
Yes, sir.
Q. What did Forrester do then? A. He signed it.
Q. And when he signed his name what did he do with the paper that he had signed? A.
Why, the train agent had the ticket in his hand, a long ticket about that long (shows), and he
says, That ain't your name, and there were some threats in it, some threats that it was not
right, and I can't recollect what the threats were now, and he said the ticket did not belong to
him, and that he thought he had stolen the ticket, and that he would have to get off the train.
Q. What did Forrester say when he saidwhen the train agent said he stole the ticket? A.
He said he would have to put him off. * * *
Q. What was the train agent's manner and tone of voice at the time that he accused
Forrester of stealing the ticket? A. Why it was very loud and boisterous. * * *
Q. Just state what the train agent himself said. A. With reference to the ticket he made the
remark: We put them off here and they sleep in box cars. * * *
Q. What did Forrester do when the train agent made these remarks and accusations? A.
You mean after he signed his name?
Q. No, I mean when the train agent directed these remarks to him, and accused him of
stealing the ticket, and told him they put off passengers there and they slept in box cars? A.
Well, he got nervous and kind of collapsed. I don't know what you would call it.
Q. Collapsed? A. Yes, sir.
A part of this testimony is contradicted by the train agent and the testimony of appellant.
This appeal is taken from an order denying defendant's motion for a new trial.
C. R. Lewers and Lewers & Henderson, for Appellant:
The court had no jurisdiction to appoint Mamie A. Forrester as administratrix, or to
substitute her as plaintiff. In re Bailey's Estate, 31 Nev. 377; Mallory v. Burlington Ry.,
Burlington Ry., 36 Pac. 1059: Cushman v. Thayer Mfg. Co., 76 N. Y. 365.)
The right to attack the validity of an administrator's letters, in any action brought by him,
on the ground that the court that appointed him did not have jurisdiction over the
subject-matter, is sustained by the great weight of authority. (Simmons v. Saul, 138 U. S. 439;
Coe Brass Co. v. Savlik, 93 Fed. 519; Garrett v. Boeing, 68 Fed. 51; Holmes v. Oregon Ry., 5
Fed. 523; Boston and Maine Ry. v. Hurd, 108 Fed. 116; Broughton v. Bradley, 34 Ala. 694;
Matthews v. Douthitt, 27 Ala. 273; Moore v. Philbrick, 32 Me. 102; Ewing v. Mallison, 70
Pac. 369; Anderson v. Walter, 99 Pac. 270; Union Pac. Ry. v. Dunden, 14 Pac. 501; Davis v.
Packard, 6 Wend. 327; Hoes v. New York Ry., 173 N Y. 435, 66 N. E. 119; Wales v. Willard,
2 Mass. 120; Cutts v. Haskins, 9 Mass. 543; Holyoke v. Haskins, 9 Pick. 259; Jochumsen v.
Suffolk Bank, 3 Allen, 90; Gillett v. Needham, 37 Mich. 143; Quindart v. Pergeaux, 18 N. J.
Eq. 472; Peoples Savings Bank v. Wilcox, 15 R. I. 258, 3 Atl. 211; Fisk v. Norvel, 9 Tex. 13;
King's Estate, 75 N. W. 657; Nash v. Sawyer, 87 N. W. 707; Elgutter v. Mo. Pac. Ry., 74 N.
W. 255; Langworthy v. Baker, 23 Ill. 484; Fletcher's Admr. v. Sanders, 7 Dana, 345; Johnson
v. Carpening, 4 Iridell's Equity, 216; Wall v. Wall, 123 Pa. St. 545; Sitzman v. Pacquette, 13
Wis. 291.)
The entire action abated at the death of Dick Forrester. (Wheatley v. Lane, 1 Saunders,
216a, 85 Eng. Reprint, 228; Williams on Executors, 6th Am. ed. p. 867; Henshaw v. Miller,
17 How. 212; Aldrich v. Howard, 8 R. I. 125, 86 Am. Dec. 615; Holmes v. Moore, 5 Pick.
257; Chase v. Fitz, 132 Mass. 359; Mason v. Union Pac. Ry., 24 Pac. 796.)
The real test is not whether the action is one of contract or tort, but whether the injury is
personal to the deceased. (1 Cyc. 49; In re Schreiber, 110 U. S. 76; Webber v. St. Paul Ry., 97
Fed. 145; Gorman v. S. P. Co., 97 Cal. 1; Denver Tramway Co. v. Cloud, 40 Pac. 779; Feary
v. Hamilton, 39 N. E. 516; Smith v. Sherman, 4 Cush. 408; Chase v. Fitz, 132 Mass. 359;
Corbett v. Twenty-third-St. Ry., 114 N. Y. 579; Boor v. Lowrey, 103 Ind. 468, 53 Am. Rep.
519; Hess v. Lowrey, 122 Ind.
Lowrey, 122 Ind. 225; 17 Am. St. Rep. 355; Zabriskie v. Smith, 13 N. Y. 322, 64 Am. Dec.
551, 554; Ward v. Blackwood, 41 Ark. 295; Aldrich v. Howard, 8 R. I. 125, 86 Am. Dec.
615; Lee's Admr. v. Hill, 87 Va. 497, 24 Am. St. Rep. 666; Ott v. Kaufman, 11 Atl. 580;
Payne's Appeal, 65 Conn. 397; Fitzgerald v. Western Union Telegraph Company, 15 Tex.
Civ. App. 143.)
The common-law rules as to survival of actions have not been changed in any way by
statute in Nevada. (Comp. Laws, 2950, 3111; Grubb's Admr. v. Sult, 32 Gratt. 203, 34 Am.
Rep. 765; Wade v. Kalbfleisch, 58 N. Y. 282; Gerling v. B. & O. Ry., 151 U. S. 673.)
These statutes are not intended to create new rights of action, but merely to regulate
procedure and to prevent the necessity of bringing a new suit in cases where at common law
the cause of action survived. (Gerling v. B. & O. Ry., 151 U. S. 673; Cunningham v. Sayre,
21 W. Va. 440; B. & O. Ry. v. Ritchie, 31 Md. 191; Petts v. Ison, 11 Ga. 151; Mason v.
Union Pacific Ry., 24 Pac. 798.)
In California by statute punitive damages are allowed in actions for the breach of an
obligation not arising from contract. Under this statute it was held that an action for ejecting
a passenger, although framed as a contract action, was clearly in tort for breach of duty.
(Gorman v. S. P. Co., 97 Cal. 1; Head v. Georgia Pac. Ry., 79 Ga. 358; Denver Tramway Co.
v. Cloud, 40 Pac. 779.)
Punitive damages are not allowed in Nevada. There is no statute in this state authorizing
the allowance of punitive damages, except possibly the death act (Comp. Laws, 3984) where
it is said that damages pecuniary and exemplary may be given. This act was passed in 1871,
and in the light of the early confusion in the use of the word exemplary, as pointed out by
Justice Hawley in Quigley v. C. P. R. R., 11 Nev. 350, it is greatly to be doubted whether the
legislature meant exemplary damages in the modern sense, but really intended to include
compensatory damages not strictly pecuniary.
At best, however, this statute can have no bearing on our case, as this is not an action
under the death act. (East Tenn. Ry. v. King, 81 Ala. 177, 2 South. 152.) We are therefore
left to the common law alone to determine whether punitive damages may be allowed.
are therefore left to the common law alone to determine whether punitive damages may be
allowed. If the true principles of the law, interpreted historically and logically, do not permit
such damages, then this court has no power to permit them. This question came before this
court in 1876, in the case of Quigley v. C. P. R. R., 11 Nev. 350. This was an action very
similar in its facts to our own case. Justice Hawley discusses and quotes the case of Fay v.
Parker, 53 N. H. 342, the leading case denying punitive damages, with quite apparent
approval, and he also points out the fact that the term exemplary had been quite generally
used in reference to actual damage. His entire opinion, in fact, is consistent only with the
view that such damages cannot be allowed. Justice Beatty, in his concurring opinion, follows
the same general line of argument, but does not hesitate to definitely express his opinion at
page 376.
This conclusion is amply sustained by authority ancient and modern. Blackstone defines
damages as the money given to a man by a jury as a compensation or satisfaction for some
injury sustained. (2 Bl. Comm. 438.) Lord Denman, in Fillites v. Phippond, 12 Jur. 202,
204, said: The principle on which actions are maintainable is not the punishment of guilty
persons but compensation to innocent sufferers. As is pointed out in the elaborate discussion
in Fay v. Parker, the idea of strictly punitive damages was entirely unknown to both the civil
law and the early common law. To the same effect and holding that such damages cannot now
be allowed, see 2 Greenleaf on Ev. sec. 253 and long note; Fay v. Parker, 53 N. H. 270, 16
Am. Rep. 270; Hendrickson v. Kingsbury, 21 Iowa, 379; Barnard v. Poor, 21 Pick. 379;
Bayer v. Barr, 8 Neb. 68; Detroit Daily Post v. McArthur, 16 Mich. 447; Welch v. Ware, 32
Mich. 84; Murphy v. Hobbs, 7 Colo. 541; Pegram v. Stortz, 31 W. Va. 220; Spokane Truck
Co. v. Hoefer, 25 Pac. 1072; Ford v. Cheever, 105 Mich. 679; Meidel v. Anthis, 71 Ill. 241;
Ratheree v. Chapman, 79 Ga. 574; Brown v. Swineford, 44 Wis. 282.
Punitive damages are not recoverable in this action. Conceding, for the purpose of
argument, that punitive damages may be recovered in this state in a proper case, they
cannot be recovered in this action.
damages may be recovered in this state in a proper case, they cannot be recovered in this
action.
If punitive damages are anything, they are purely personal. They were not part of the estate
or property of Forrester when the cause of action arose. On no theory that has been suggested
in any case can they survive. And it is uniformly held that such damages do not survive the
death of the wrongdoer. (Welch v. Ware, 32 Mich. 84; 13 Cyc. 113, 120; Lexington Ry. v.
Lyons, 104 Ky. 23, 46 S. W. 209.)
The facts of this case as shown by the entire record could not possibly warrant punitive
damages. All that appears is that the train agent refused to accept the ticket offered by
Forrester on the ground that the ticket had too many punch marks and because he was not
satisfied with the identification of Forrester. There were no circumstances of fraud,
oppression, malice, gross wrong or wantonness of any sort. No force was used in putting
Forrester off. Punitive damages can be given only where something closely akin to
criminality is present. Here nothing of the kind existed. All the evidence indicates that the
train agent was endeavoring to enforce a rule of the company requiring him to take up bad
tickets. The fact that he was mistaken, or even that he should have known he was mistaken,
could make no difference. In such a case no punitive damages can be allowed. (Quigley v. C.
P. R. R., 11 Nev. 350; Sutherland on Damages, sec. 393; Atchison, T. & S. F. Ry. v. Hogue,
31 Pac. 698; Railroad Co. v. Gants, 39 Kan. 608; Paine v. Ry. Co., 45 Iowa, 569; Denver
Tramway Co. v. Cloud, 40 Pac. 779; Lyles v. Perrin, 51 Pac. 332; Inman v. Ball, 65 Iowa,
543; Alabama Ry. Co. v. Arnold, 84 Ala. 159; Hamilton v. Third Ave. Ry. Co., 53 N. Y. 25;
Ward v. Blackwood, 41 Ark. 295; Hoffman v. Northern Pac. Ry., 45 Minn. 53; Phila.
Traction Co. v. Orbann, 119 Pa. 37; Vicksburg Ry. v. Marlett, 78 Miss. 872, 29 South. 62;
McGhee v. Reynolds, 117 Ala. 413, 23 South. 68.)
There was no authorization or ratification by defendant. If we are to allow punitive
damages at all, it must be as a punishment to the wrongdoer. Therefore, they cannot be
imposed on a principal, whether a natural person or a corporation, who did not either
direct the oppressive or wanton conduct or afterwards ratify it with knowledge.
be imposed on a principal, whether a natural person or a corporation, who did not either
direct the oppressive or wanton conduct or afterwards ratify it with knowledge. (Lake Shore
Ry. v. Prentice, 147 U. S. 101; Warner v. S. P. Co., 113 Cal. 112, 34 Pac. 187; Turner v.
Railroad Co., 34 Cal. 594; Hagan v. Railroad Co., 3 R. I. 88; Craker v. Chicago Ry., 36 Wis.
657, 17 Am. Rep. 504; Cleghorn v. N. Y. Ry., 56 N. Y. 47, 15 Am. Rep. 375; Jeffersonville
Ry. v. Rogers, 28 Ind. 1, 92 Am. Dec. 276; Allegheny Valley Ry. v. McLain, 91 Pa. St. 442;
Hays v. Houston Ry., 46 Tex. 272; Ricketts v. Chesapeake Ry., 33 W. Va. 433, 25 Am. St.
Rep. 901; Hill v. New Orleans Ry., 11 La. Ann. 292; Edelman v. St. Louis Transfer Co., 3
Mo. App. 503; Ackerson v. Erie Ry. Co., 32 N. J. L. 254; Sullivan v. Oregon R. R. Co., 12 Or.
393, 7 Pac. 508; Norfolk Ry. v. Lipscomb, 90 Va. 146, 17 S. E. 809; Pullman Palace Car Co.
v. Lawrence, 74 Miss. 804, 22 South. 53.)
The damages are excessive. The allowance of $10,000 as a punishment was clearly
excessive. If allowable at all, it could be allowed only for the acts of the train agent before
and at the time Forrester was put off the train. The consequences which followed, no matter
how serious, cannot be considered.
In cases where punitive damages are excessive in themselves, or out of all proportion to
the actual damage, they may be set aside. (Saunders v. Mullen, 66 Iowa, 728, 24 N. W. 529;
Louisville Ry. v. Monogue, 90 Ky. 369, 14 S. W. 357; McCarthy v. Niskern, 22 Minn. 90;
Railroad Co. v. Telephone Co., 69 Tex. 277, 5 Am. St. Rep. 45; Boardman v. Goldsmith, 48
Vt. 403.)
J. B. Dixon and Summerfield & Curler, for Respondent:
That the lower court had no jurisdiction to appoint Mamie A. Forrester as administratrix of
her deceased husband's estate constitutes a purely collateral attack on the letters of
administration granted to respondent.
The lower court had jurisdiction to grant respondent letters of administration. (Stats. 1905,
p. 249; Coyne v. S. P. Co., 155 Fed. 684; Nonce v. Richmond Co., 33 Fed. 435.) A right of
action for the negligent killing of a person is an asset sufficient to warrant the appointment
of an administrator for his estate.
is an asset sufficient to warrant the appointment of an administrator for his estate. (Jordan v.
Chicago Ry. Co., 1 L. R. A. n.s. 885; In re Mayo, 38 S. E. 634; Friedley v. Chicago Ry. Co.,
64 N. W. 733; Hutchins v. St. Paul Ry. Co., 46 N. W. 79.)
An action to recover damages for personal injuries sustained in Nevada is no longer a
common-law action but is a statutory action. (Stats. 1905, p. 249.)
There is no escape from the meaning of this statute. It is the absolute equivalent of saying
that if an action of this kind is brought by the injured person in his lifetime in a court of
competent jurisdiction in this state, the action exists until the liability is ascertained and
adjudged by such court. (1 Woerner, Am. Law of Ad. 2d ed. sec. 292; Hooper v. Gorham, 45
Me. 209, 212; Comp. Laws, 2951.)
That the present action was founded upon contract we think admits of no doubt. The
violation of this contract by appellant was the foundation of all complaint in the premises.
When Nevada and certain other states passed death acts, modeled upon the Lord Campbell
act, they expressly authorized the recovery of exemplary damages. (Tiffany, Death by
Wrongful Act, sec. 155.)
The common law did permit the allowance of exemplary damages in proper cases, when
the injured party survived, and our law-making power deemed it proper to allow such
damages in cases brought under the death act, notwithstanding the fact that the common law
permitted no action for damages whatever for wrongful death.
It is argued that this court, in Quigley v. C. P. R. R. Co., 11 Nev. 350, so framed its
decision that it is consistent only with the view that such damages cannot be allowed. We
do not so read the decision, but read it to the contrary. We submit the trend of the decision is
favorable to the allowance in a proper case of exemplary damages.
The United States Circuit Court for the District of Nevada has expressed an unqualified
opinion that exemplary damages in a proper case may be awarded. (Brown v. Evans, 17 Fed.
912.)
Respondent does not claim that this action is a contract action. We claim that it is founded
upon contractthe contract of carriage. There is a vast difference between an action to
enforce contractual rights and an action to recover damages for injuries sustained where the
foundation of the claim was a breach of contract.
The acts of its train agent, Lilly, were ratified by appellant. Its district train agent, Young,
upon receiving the dispatch advising him that the ticket was all right, and requesting authority
to allow Forrester to proceed to his destination, refused such authority, and declared Forrester
to be bogus. (Goddard v. Grand Trunk Ry., 57 Me. 202; Watson on Damages for Personal
Injuries, secs. 717, 718, and authorities cited.)
Prior to the American revolution punitive damages were allowed in England. (Lake Shore
Ry. v. Prentice, 147 U. S. 101.)
It necessarily follows that in Nevada punitive damages are allowable by reason of our
adoption of the English common law as a rule of decision.
When antecedent authority emanates from a principal to an agent to do an act, which with
its attendant consequences is the subject of complaint, neither direction nor ratification are
necessary to make the principal answerable for exemplary damages. Such is unquestionably
the prevailing rule of law. (Kline v. C. P. R. R. Co., 37 Cal. 400; McKinley v. Chicago Ry.
Co., 44 Iowa, 314; Clegham v. N. Y. Cent. Ry. Co., 50 N. Y. 47; Sullivan v. Oregon Ry. Co.,
12 Or. 392; Houston Ry. Co. v. Cowser, 57 Tex. 293; Downey v. Chesapeake R. Co., 28 W.
Va. 732; Robinson v. Superior Ry. Co., 94 Wis. 346; Redwood v. Metropolitan R. Co., 6 D.
C. 302.)
The amount of punitive damages in any given case is particularly within the discretion of
the jury, depending upon the particular circumstances surrounding each case. (Day v.
Wordsworth, 13 How. 363; Voltz v. Blackmor, 64 N. Y. 440; Farwell v. Warren, 70 Ill. 28;
Louisville Ry. Co. v. Ballard, 85 Ky. 307; Chicago Ry. Co. v. Scurr, 59 Miss. 456; Foster v.
Pitts, 63 Ark. 387; Canfield v. Chicago Ry. Co., 59 Mo.
Chicago Ry. Co., 59 Mo. App. 354; Webb v. Gillman, 80 Me. 177; Rosland v. Barrett, 76 Va.
128; Rogers v. Henry, 32 Wis. 327.)
By the Court, Talbot, C. J. (after stating the facts):
1. Any conflict in regard to the testimony was for the jury, and the facts may be regarded
as shown by the substantiated evidence for the plaintiff. (Lowman v. Bank, 31 Nev. 306;
Murphy v. So. Pac. Co., 31 Nev. 120, 21 Ann. Cas. 502; Sultan v. Sherwood, 18 Nev. 454;
McGurn v. McInnis, 24 Nev. 370; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7
Sup. Ct. 1039, 30 L. Ed. 1050.)
In the able briefs and arguments of respective counsel the contentions of the parties have
been clearly presented. On behalf of the appellant it is urged that the entire action abated on
the death of Dick Forrester; that the court had no jurisdiction to appoint Mamie A. Forrester
as administratrix, or to substitute her as plaintiff; that punitive damages are not allowed in
Nevada, and are not recoverable in this action; that the damages are excessive; and that the
court erred in the admission of hearsay testimony and in the giving and refusing of
instructions.
2. The attack upon the letters of administration is purely collateral. If it be admitted that
such attack may be made when the court is without jurisdiction, we conclude it cannot avail
here, because under the facts shown the court had jurisdiction to grant the letters. Reliance is
placed upon the opinion in Re Bailey's Estate, 31 Nev. 378, Ann. Cas. 1912a, 743. Aside
from the holding there that letters may be granted to a nonresident, the facts are
distinguishable. Bailey was killed by the explosion of an engine in Lincoln County, and left
no property except a gold watch and ring and a little money on his person, and a right of
action for damages for his alleged wrongful death. Letters were issued in a different county,
and the decision was in a direct proceeding to have them set aside. No question was presented
similar to the one raised here as to whether the district court may grant letters of
administration in the county in which a person dies, upon his estate consisting of a
pending suit brought by him in that county for breach of contract or damages.
district court may grant letters of administration in the county in which a person dies, upon
his estate consisting of a pending suit brought by him in that county for breach of contract or
damages.
3. For respondent it is claimed that the action, being one to recover damages sustained in
Nevada, is statutory, and did not abate on the death of Dick Forrester, that letters of
administration were properly issued, and that the respondent is entitled to recover under the
following statutes:
Section 1. Whenever any person shall suffer personal injury by wrongful act, neglect or
default of another, the person causing the injury shall be liable to the person injured for
damages; and where the person causing such injury is employed by another person or
corporation responsible for his conduct, such person or corporation so responsible shall be
liable to the person injured for damages.
Sec. 2. Such liability, however, where not discharged by agreement and settlement, shall
exist only in so far as the same shall be ascertained and adjudged by a state or federal court of
competent jurisdiction in this state in an action brought for that purpose by the person
injured. (Stats. 1905, p. 249.)
Sec. 165. Actions for the recovery of any property, real or personal, or for the possession,
and all actions founded upon contracts, may be maintained by and against executors and
administrators in all cases where the same might have been maintained by or against their
respective testators or intestates in their lifetime. (Comp. Laws, 2951.)
We are also cited to the following cases, which hold that the right of action for the
negligent killing of a person is an asset of his estate, and warrants the appointment of an
administrator: Jordan v. Chicago Ry. Co., 125 Wis. 581, 104 N. W. 803, 1 L. R. A. n.s. 885,
110 Am. St. Rep. 865, 4 Ann. Cas. 1113; In re Mayo, 60 S. C. 401, 38 S. E. 634, 54 L. R. A.
660; Findlay v. Chicago Ry. Co., 106 Mich. 700, 64 N. W. 733; Hutchins v. St. Paul Ry. Co.,
44 Minn.
44 Minn. 5, 46 N. W. 79. In the note, 1 L. R. A. n.s. 885, it is said that this proposition is
sustained by the preponderance of the authorities, and that the right to make collateral attack
on the appointment of an administrator on the ground that there were no assets to sustain such
appointment is denied in most of the decisions, as cited in the note in 18 L. R. A. 243.
If the deceased left any claim or right of action in the pending suit, we see no reason why it
should not be regarded as property, nor why letters of administration may not be granted upon
it in the county in which the case is pending if he is a nonresident and leaves no other
property in the state. If it be conceded that there is also a right of action in California, this
would not make the appellant liable for damages, for as in ordinary rights of action between
individuals upon which suits may be brought in different states the judgment of the court first
taking jurisdiction may be pleaded as a bar to further recovery. If no right of action survived,
this would be a complete defense for the appellant, without attacking collaterally, or
otherwise, the letters of administration. The right of action was a transitory one, and the
action pending in Washoe County at the time of Forrester's death there was property upon
which letters of administration could be issued.
In the case of Pyne, Administrator of the Estate of Henry C. Austin, Deceased, v. Railway
Company, 122 Ky. 304, 91 S. W. 742, 5 L. R. A. n.s. 756, Austin, a citizen of Indiana, was
injured by being run over by an engine in Jeffersonville, Ind. He brought suit in Kentucky to
recover damages for the injury, which he claimed was caused by the gross negligence of the
company's servants in charge of the engine. Some time after this suit was filed, and while still
residing in Indiana, he died. Aside from the suit or cause of action, he owned no property in
Kentucky. An administrator was appointed in Kentucky, and the suit was revived in his name.
The company defended, denied negligence, pleaded contributory negligence, and alleged that
at the time of his death Austin was a resident of Jeffersonville, Ind.; that he owned no estate
of any kind in Kentucky, and had no debt owing to him in Kentucky.
owned no estate of any kind in Kentucky, and had no debt owing to him in Kentucky. It was
also asserted as a defense by the company that the injury occurred in Indiana, the cause of
action arose under the laws of that state, and that it was provided by the statute in Indiana
that: A cause of action arising out of an injury to the person dies with the person of either
party, except in cases in which an action is given for an injury causing the death of any person
and actions for seduction, false imprisonment, and malicious prosecution.
The statutes of Kentucky provided that letters of administration might be granted in that
state in the county where the decedent died, or where his estate or part thereof shall be, or
where there may be any debt or demand owing him. The court said: Construing these
sections, it has been held that where a nonresident has been killed in this state by the tort of
another, administration will be granted upon his estate in this state, even for the sole purpose
of suing to recover damages for the tort, because the statute which gives the right of action to
the estate of such decedent for such death, ex necessitate rei, confers jurisdiction, by
implication, to appoint an administrator to prosecute the suit. (Brown v. Louisville & N. R.
Co., 97 Ky. 228, 30 S. W. 639.) It has also been held that where a resident of this state is
killed by the tort of another out of this state, administration may be granted upon his estate in
this state. But it has been held, also, that where a nonresident of this state is killed by the tort
of another out of the state, and who has not estate or property in this state, there cannot be
administration granted upon his estate in this state. (Hall v. Louisville & N. R. Co., 102 Ky.
484, 43 S. W. 698, 80 Am. St. Rep. 358; Turner v. Louisville & N. R. Co., 110 Ky. 879, 62 S.
W. 1025.) * * * Whether an action should survive to the personal or real representatives of
the plaintiff is a matter of policy to be settled for itself by each state. It goes to the remedy
alone, and does not really affect the cause of action as being actionable. Such remedies are
not extraterritorial. Generally the remedy is governed by the law of the forum, and not by the
lex loci.
and not by the lex loci. As the plaintiff's cause of action accrued to him, not by the statute of
Indiana, but under the common law, prevailing there as it does here, when he sued upon it in
this state, whether upon his death before the termination of the suit, it would be allowed his
personal representative to continue to prosecute it, affects the remedy only, and is a matter
wholly within the control of the state where the suit is pending. (Baltimore & O. R. Co. v.
Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.) In this state, as we have seen, the cause
of action is permitted to survive, and a revivor in the name of the personal representative of
the decedent is allowed.
In the Joy case the United States Supreme Court held that the right of an administrator to
revive and continue an action for personal injuries commenced before the death of the person
injured, is controlled by the law of the place where the action is pending, and not by the law
of the state where the injury occurred and the cause of action arose; that an action brought in
Ohio by the injured person to recover damages for injuries sustained by the negligence of the
defendant in Indiana does not abate upon the death of the person injured, but may be
continued by his administrator appointed in Ohio, although if no suit had been brought the
action would have abated both in Indiana and Ohio, and if suit had been brought in Indiana
the action would have abated in that state. The following is the last paragraph of the opinion
in that case: It is scarcely necessary to say that the determination of the question of the right
to revive this action in the name of Hervey's personal representative is not affected in any
degree by the fact that the deceased received his injuries in the State of Indiana. The action
for such injuries was transitory in its nature, and the jurisdiction of the Ohio court to take
cognizance of it upon personal service or on the appearance of the defendant to the action
cannot be doubted. Still less can it be doubted that the question of the revivor of actions
brought in the courts of Ohio for personal injuries is governed by the laws of that state,
rather than by the laws of the state in which the injuries occurred."
state, rather than by the laws of the state in which the injuries occurred.
In Martin v. Wabash Ry. Co., 142 Fed. 650, 73 C. C. A. 646, 6 Ann. Cas. 582, it was held
that an action for personal injuries survived under the statute of Illinois, and the court said:
Whether a cause of action survives by law is not a question of procedure, but of right, and is
determinable when the action is one arising at common law, not by the law of the state where
the injuries were inflicted, but by the law of the state where the action is brought. (Martin,
Admr., v. Baltimore and Ohio R. R. Co., 151 U. S. 691, 14 Sup. Ct. 533, 38 L. Ed. 311;
Baltimore and Ohio R. R. Co. v. Joy, 173 U. S. 226, 19 Sup. Ct. 387, 43 L. Ed. 677.)
In Webber v. St. Paul City Ry. Co., 97 Fed. 140, 38 C. C. A. 79, it was held that an action
for personal injuries did not abate on the death of the person injured, under the statute of
Minnesota. It is said in the opinion: There is nothing in the statute to the effect that a cause
of action ex contractu, arising out of an injury to the person, shall survive, while such a cause
ex delicto shall abate. In order to sustain the contention of counsel for the plaintiff in error, it
is necessary to ingraft a sweeping exception upon the act of the legislature, so that it will
read: A cause of action arising out of an injury to the person dies with the person, except in
cases in which the injury was the breach of a contract.' * * * When the legislature has
lawfully established a rule which limits the time or manner of maintaining a class of actions,
and has made no exception to that rule, the conclusive presumption is that it intended to make
none, and the courts have no power to do so. (Madden v. Lancaster Co., 27 U. S. App. 528,
539, 12 C. C. A. 566, 573, and 65 Fed. 188, 195; McIver v. Ragan, 2 Wheat. 25, 29, 4 L. Ed.
175; Bank of State of Alabama v. Dalton, 9 How. 522, 528, 13 L. Ed. 242; Vance v. Vance,
108 U. S. 514, 521, 2 Sup. Ct. 854, 27 L. Ed. 808.) * * * Counsel for the respective parties to
this action have presented a careful and exhaustive review of the decisions of the English and
American courts upon the rule of the common law that a personal action dies with the
person.
common law that a personal action dies with the person. But the statute of Minnesota is so
plain and positive in its terms that we do not feel at liberty to disregard, evade, or explain it
away, and we must decline to follow them in this discussion. * * * When the language of a
statute is unambiguous, and its meaning is clear, arguments by analogy or from history and
attempted judicial construction serve only to create doubt and to confuse the judgment. They
serve to obscure far more than to elucidate the meaning of the law. There is no safer or better
canon of interpretation than that, when the terms of a statute are plain and its meaning is
clear, the legislature must be presumed to have meant what is expressed, and there is no room
for construction. (Knox County v. Morton, 32 U. S. App. 513, 516, 15 C. C. A. 671, 673, 68
Fed. 787, 789; U. S. v. Fisher, 2 Cranch, 358, 399, 2 L. Ed. 304; Railway Co. v. Phelps, 137
U. S. 528, 536, 11 Sup. Ct. 168, 34 L. Ed. 767; Bedsworth v. Bowman, 104 Mo. 44, 49, 15 S.
W. 990; Warren v. Paving Co., 115 Mo. 572, 576, 22 S. W. 490; Davenport v. City of
Hannibal, 120 Mo. 150, 25 S. W. 364.)
In Atchison, Topeka and Santa Fe R. R. Co. v. Sowers, 213 U. S. 55, 29 Sup. Ct. 397, 53
L. Ed. 695, it was decided that an action brought by a resident of Arizona for an injury
sustained in New Mexico could be maintained in Texas, notwithstanding the statute of New
Mexico, which by its terms would restrict the bringing of the action to the courts of New
Mexico; and it was held that the rights of action which exist regardless of statute, such as
rights of action for personal injuries, are maintainable wherever courts may be found that
have jurisdiction of the parties and the subject-matter, when not inconsistent with any local
policy, and that no state can pass laws having force over persons and property beyond its
jurisdiction. The court said: An action for personal injuries is universally held to be
transitory, and maintainable wherever a court may be found that has jurisdiction of the parties
and the subject-matter. (Rover on Interstate Law, 154, 155; McKenna v. Fisk, 1 How. 242,
11 L. Ed. 117; Dennick v. Railroad Co., 103 U. S. 11, 1S, 26 L. Ed. 439.)"
on Interstate Law, 154, 155; McKenna v. Fisk, 1 How. 242, 11 L. Ed. 117; Dennick v.
Railroad Co., 103 U. S. 11, 18, 26 L. Ed. 439.)
In Christensen v. Floriston Pulp and Paper Co., 29 Nev. 552, we held that a right of
action for damages for death resulting from personal injuries suffered in California was
transitory, and that a suit for their recovery could be maintained in this state.
4. In the construction given to our act of 1905 by the United States Circuit Court for Utah
(Coyne v. Southern Pacific Company, 155 Fed. 683), the question regarding whether an
action like the present one survives was not before the court, and it is not assumed that
consideration was given to the question before us for determination.
5. We have high regard for the decisions of the federal courts, and when they construe
federal laws they are binding upon the tribunals of the different states. On the other hand, the
federal courts follow the decisions of the highest court of a state construing the constitution
and laws of a state, unless they conflict with the United States constitution or federal laws,
notwithstanding that the federal court may believe that the opinion of the state court is
improper. (N. Y. Cent. R. Co. v. Miller, 202 U. S. 584, 26 Sup. Ct. 714, 50 L. Ed. 1155;
Union National Bank v. Railway Co., 163 U. S. 331, 16 Sup. Ct. 1039, 41 L. Ed. 177; Bacon
v. Texas, 163 U. S. 221, 16 Sup. Ct. 1023, 41 L. Ed. 132; Supreme Lodge v. Meyer, 198 U. S.
508, 25 Sup. Ct. 754, 49 L. Ed. 1146.)
Although some courts with judges trained in the principles of the common law have
declined to give a liberal construction to statutory enactments which are derogatory to and
would overturn common-law principles, and in some instances may have been inclined to
adhere to the rule that actions for damages resulting from torts, even when coupled with
breach of contract, did not survive, notwithstanding statutory provisions, we conclude that the
language of the sections before quoted include the cause of action alleged in this case. As
these statutes provide that "all actions founded upon contracts may be maintained by and
against executors and administrators in all cases where the same might have been
maintained by or against their respective testators or intestates in their lifetime," and
that persons causing another to suffer personal injury by neglect or default shall be liable
for damages in an action brought by the person injured, and as the injury here arose from
the neglect and default of the defendant to keep its contract, and there is nothing in the
words used excepting actions founded upon a tortious breach of a contract, and as this
action is founded upon contract and is transitory and was properly brought and
maintained by the person injured, the decedent, in his lifetime, it follows that it may be
continued by his administratrix.
statutes provide that all actions founded upon contracts may be maintained by and against
executors and administrators in all cases where the same might have been maintained by or
against their respective testators or intestates in their lifetime, and that persons causing
another to suffer personal injury by neglect or default shall be liable for damages in an action
brought by the person injured, and as the injury here arose from the neglect and default of the
defendant to keep its contract, and there is nothing in the words used excepting actions
founded upon a tortious breach of a contract, and as this action is founded upon contract and
is transitory and was properly brought and maintained by the person injured, the decedent, in
his lifetime, it follows that it may be continued by his administratrix.
6. It is not the duty of the court to hold that the legislature did not mean what the language
clearly indicates, or did not intend that this statute which they had taken the time to enact
should have some effect different from the law existing at the time it was passed, or that cases
which did not survive at common law should be excluded from the operation of the statute if
they come within the ordinary meaning of the words employed.
7. Notwithstanding the argument that the cause of action should be treated as one in tort
which abated upon the death of Forrester, the injury and damage to Forrester and his
hardships and suffering while trying to reach his destination resulted from the failure of
defendant to comply with its contract for carriage, as evidenced by the ticket sold to Forrester,
and the insulting and humiliating words and conduct of the agent of the defendant at the time
he ordered him to leave the train were inseparably connected with the breach of the contract
by the defendant company. If this were not so, we would still be unable to escape the
conclusion that the action is founded upon contract, for if Forrester had not obtained,
possessed, or paid for the ticket, which was undoubtedly a contract, or paid fare, the payment
of which would in effect be a contract, the company would have been authorized to eject him
from the train.
In Samuels v. New York City Ry. Co., 52 Misc. Rep. 137, 101 N. Y. Supp. 534, the court
said: If the plaintiff's story is true, he was grossly assaulted, wantonly insulted, and
wrongfully ejected from the defendant's car by its servant. * * * On this evidence the
defendant clearly committed a breach of its contract of carriage, for which the plaintiff is
entitled to recover substantial damage, even though he proved no loss of wages or of time, or
physical injuries. He is entitled to recover compensatory damages for injury done to his
feelings, and for the indignity suffered. (Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25;
Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102
Am. St. Rep. 503; Hines v. Dry Dock, 75 App. Div. 391, 78 N. Y. Supp. 170.)
If the action were not based upon the ticket contract both by allegation and proof, it may
be assumed that the defendant would have demurred or moved for a nonsuit, because the
plaintiff could not recover for being ejected from the train when traveling without a ticket or
payment for passage amounting to a contract, when, as in this case, no more force was used
than was necessary to remove Forrester from the car, and such removal constituted a breach
of contract of carriage. If the action were for some insult, assault, or tortious act of the train
agent not connected with the breach of the contract, and Forrester had been given passage in
compliance with the terms of the ticket, the provision of the statute for the survival of all
actions founded upon contract would not apply.
Cases may arise, and have arisen, in which damages would be recoverable purely in tort
for the expulsion of a person from a train when traveling without a ticket or the payment of a
fare, with the right of the company to eject him in the absence of a contract or obligation of
passage. If a person without a ticket or right to be carried were injured by being put off a
moving train, or on a bridge or desert, under circumstances of unusual hardship, damages
would be recoverable for injuries sustained, but an action for their recovery would not be
based upon contract.
8. If damages for a tortious breach of a contract are recoverable by the party injured, it was
within the power of the legislature to provide that an action commenced by him for their
recovery should not abate upon his death. Some states have statutes providing that all causes
of action survive, others that all causes of action with specified exceptions survive, and others
that certain specified actions survive. Under these statutes actions survive notwithstanding
they would abate at common law.
In Melzner v. N. P. Ry. Co., 41 Mont. 162, 17 Pac. 148, it was urged under the citation of
cases that the Montana statute providing for the survival of actions did not affect the
abatement of an action for personal injury, and applied only to actions which survived at
common law. It was held that the suit, which was purely in tort for injuries to a boy from
being struck by a locomotive, survived, and that the damages could be recovered by his
administrator.
We should not adhere too closely to common-law distinctions or obsolete methods of
pleading abolished by our code which might result in a denial of the right to recover damages
for any injury inflicted. The statutes control, regardless of the common-law principles under
which actions for tort abated, and exemplary damages were not recoverable in actions on
contract or in tort after the death of the person injured. The legislature long ago abolished the
distinction in the forms of action, and in later passing the statutes we have quoted may not
have intended to carry the common-law distinctions not mentioned as exceptions to the
statute which if allowed to control would leave the statutes without any force in this case. A
liberal view in regard to the form of the action for expulsion of a passenger was taken by the
court in Railway Co. v. Brauss, 70 Ga. 368, and in Railroad Co. v. Hine, 121 Ala. 234, 25
South. 857.
9. If exemplary damages are allowable at all, there is no good reason why, if warranted by
statute, and there is wantonness, oppression, and hardship, they should not be recoverable in
an action for the tortious breach of a contract, or in a case where the passenger has
bought a ticket or paid his fare, and is injured by failure of the company to keep its
contract of carriage, as well as if he were injured by a tort in no way connected with the
breach of a contract, or were expelled from the train with undue force, or under
unwarrantable circumstances, when the company had a right to eject him for
nonpayment of fare.
be recoverable in an action for the tortious breach of a contract, or in a case where the
passenger has bought a ticket or paid his fare, and is injured by failure of the company to keep
its contract of carriage, as well as if he were injured by a tort in no way connected with the
breach of a contract, or were expelled from the train with undue force, or under unwarrantable
circumstances, when the company had a right to eject him for nonpayment of fare. Under our
statutes such an action brought by the person injured and based on contract survives. The
damage resulted from the failure of the company to perform its duty and keep its contract, and
if exemplary damages are allowable, against public carriers as a warning or punishment, and
to prevent a repetition of practices injurious to people traveling, they should be allowed under
our statute for a wanton and oppressive breach of carriage, and to prevent railroad companies
from ejecting passengers who are entitled to transportation.
Although railroads, as the best means for the convenient and speedy transportation of
passengers and commodities, are among the most important factors in the progress and
prosperity of the civilized world, and when properly managed are of great service and benefit,
they are not without their obligations to the public. Many of the great railway systems of the
country were built with the aid of government, state and municipal land grants and subsidies,
and all of any importance depend upon or exist under public laws providing for incorporation,
franchises, and condemnation of private property for right of way. From the profits of these
roads, collected from the public, they have been improved and extended, and other roads have
been built. Also, it is with money collected from the public that the railroad companies are
enabled to pay high salaries and compensation to officers, attorneys, political agents, and
other talented and skilful men to manage the business of the railroad companies, so that the
best dividends may be paid and the largest revenues may be collected from the public, which
is dependent upon the roads for transportation.
It has long been settled by the courts of the country, including the highest, that when the
rates fixed by the railroad companies are excessive they may be regulated or reduced by
public authority. It must also be conceded that a railroad is liable for damages for failure to
comply with its contract, or the terms of the ticket which it has sold. The passenger, whether
traveling in a special car or on a first- or second-class ticket, is entitled to be carried to his
destination without being insulted or subjected to discourteous treatment by the employees of
the company. We have heretofore held that railroad companies are bound to the highest
degree of care for the safety and protection of passengers, and are responsible for the slightest
negligence or want of skill in either themselves or their servants. (Murphy v. Southern Pacific
Co., 31 Nev. 125, 21 Ann. Cas. 502; Sherman v. Southern Pacific Co., 33 Nev. 404, and
cases cited.)
In view of the amount of the verdict and the important principles of law involved, we have
given careful consideration to the contentions of the appellant that punitive damages are not
allowable in any case under the established principles of the law, and particularly that this is
so in Nevada under the case of Quigley v. C. P. R. R., 11 Nev. 350, 21 Am. Rep. 757, that if
punitive damages may be recovered in this state in a proper case, they cannot be recovered in
this action, and that the company is not liable for the act of the agent in ejecting Forrester
from the train.
In considering objections to the allowance of punitive damages, the Supreme Court of
Kansas, in Cady v. Case, 45 Kan. 733, 26 Pac. 448, said: The principal question discussed in
this case upon the argument was whether exemplary damages ought to be allowed in any civil
action, and we are asked to reexamine this question, and reverse the prior decisions of this
court permitting exemplary or vindictive damages. Our own decisions for a long time have
established that, whatever the elements of fraud, malice, gross negligence, or oppression
mingle in the controversy, the law allows the jury to give what is called exemplary or
vindictive damages.
is called exemplary or vindictive damages. We could not depart from this doctrine now
without overruling all of the prior decisions of this court upon this subject, and we are not
willing to do so. * * * And after all this discussion the Supreme Court of the United States
decides the law as laid down in these instructions. Mr. Justice Grier, delivering the opinion of
the court, well says: If repeated judicial decisions for more than a century are to be received
as the best exposition of what the law is, the question will not admit of argument. By the
common as well as by the statute law, men are often punished for aggravated misconduct or
lawless acts, by means of a civil action, and the damages, inflicted by way of penalty or
punishment, given to the party injured. We have no doubt that such is the law. Whether it be
founded in sound reason or not is not so much our province to say as to determine if it be law.
The writer hereof believes it to be not only good law, but founded on sound principles, and
beneficial in its application. It often furnishes the only restraint upon a bad man, who cares
little for his neighbor's character, his person, or his property. The party injured pursues the
wrongdoer to punishment when society is too careless to do so.' These decisions have since
been followed in the cases of Hefley v. Baker, 19 Kan. 9; Titus v. Corkins, 21 Kan, 722;
Jockers v. Borgman, 29 Kan. 109, 44 Am. Rep. 625; Winstead v. Hulme, 32 Kan 568, 4 Pac.
994; Railway Co. v. Rice, 38 Kan. 403, 404, 16 Pac. 817, 5 Am. St. Rep. 706; Clark v. Weir,
37 Kan. 98, 14 Pac. 533; West v. Telegraph Co., 39 Kan. 93, 17 Pac. 807, 7 Am. St. Rep.
530; Manufacturing Co. v. Boyce, 36 Kan. 351, 13 Pac. 609, 59 Am. Rep. 571.
Mr. Sedgwick, in his work on Damages (9th ed.), at sections 351 and 352, quotes the
foregoing language of the Supreme Court of the United States, and from many decisions,
showing that courts generally sustain the allowance of punitive damages. He says: These
authorities were followed by such a multitude of cases that the principle became, by the
middle of the last century, as fully established by weight of authority as any doctrine of the
law.
of the law. In the first edition of this treatise, the doctrine was recognized as so established;
and this opinion, in the face of able and persistent opposition, has prevailed. * * * So in
Connecticut, in an action on the case for gross negligence, it was held by Church, J., in
delivering the opinion of the Supreme Court of Errors: There is no principle better
established and no practice more universal than that vindictive damages or smart money may
be and are awarded by the verdict of juries, and whether the form of the action be trespass or
case.' So in Pennsylvania, Gibson, J., delivering the opinion of the court, said: In cases of
personal injury, damages are given not to compensate but to punish.'
At sections 365 and 366, over the citation of authorities, Mr. Sedgwick says: Oppression,
brutality, or insult in the infliction of a wrong is a cause for the allowance of exemplary
damages. * * * A woman in delicate health is wrongfully turned out of her house at night in a
storm; she may recover exemplary damages. A passenger, wrongfully ejected from a railroad
train with rudeness and violence, may recover exemplary damages, though mere indecorous
conduct in expelling a passenger is held not to be sufficient cause for their infliction. So
exemplary damages may be recovered where the wrongful act is accompanied with
circumstances of insult and outrage. * * * If the injury is wantonly inflicted, exemplary
damages may be recovered; as, for instance, where the act was done with reckless disregard
of the rights of others, or of the consequences of the act. Thus in Baltimore and Yorktown
Turnpike Road v. Boone, where the company exacted illegal fare, and the plaintiff on his
refusal to pay was forcibly ejected, it was held that he could recover exemplary damages on
the ground that the company had been guilty of criminal indifference to the obligations of
public duty, which amounted to malice; and so, generally, exemplary damages may be given
against a carrier for ejection of a passenger in wanton disregard of his rights, or for deliberate
refusal to stop a train on signal. Thus, also, exemplary damages may be recovered for an
unprovoked and causeless battery, and for reckless defamation."
may be recovered for an unprovoked and causeless battery, and for reckless defamation.
Another eminent text-writer, Mr. Cooley, in volume 2 (3d ed.) of his work on Torts, page
1017, states: The master is liable for the acts of his servant, not only when they are directed
by him, but also when the scope of his employment or trust is such that he has been left at
liberty to do, while pursuing or attempting to discharge it, the injurious act complained of. It
is not merely for the wrongful acts he was directed to do, but the wrongful acts he was
suffered to do, that the master must respond. * * * So when a railway company puts a
conductor in charge of a train, and he purposely and wrongfully ejects a passenger from the
cars, the railway company must bear the blame and pay the damages. In this case the
company chooses its servant and puts him in charge of its business, and the injury is done
while performing it, and in the exercise of the power conferred. If the corporate authorities
did not direct the act to be done, they nevertheless put a person of their own selection in a
position requiring the exercise of discretionary authority, and, by intrusting him with the
authority and with the means of doing the injury, have, through his agency, caused it to be
done. As between the company and the passenger, the right of the latter to compensation is
unquestionable. So for an assault upon a passenger by the conductor, brakeman, or other
employee. A railroad company is liable for the use of excessive force by its employees in
ejecting a passenger from its cars. And generally the master is liable for the wilful or
intentional wrongs of his servant committed in the performance of his duty as servant or
within the scope of his employment.
In Hale on Damages (2d ed.) at page 326, it is said: It is usually held that corporations are
liable to exemplary damages for the acts of their agents or servants, in cases where the agent
or servant would be liable for such damages. This is placed upon the ground that otherwise
corporations would never be liable for exemplary damages, since they can act only by
agents or servants.
since they can act only by agents or servants. Thus it has been said: We confess that it seems
to us that there is no class of cases where the doctrine of exemplary damages can be more
beneficially applied than to railroad corporations in their capacity of carriers of passengers,
and it might as well not be applied to them at all as to limit its application to cases where the
servant is directly or impliedly commanded by the corporation to maltreat and insult a
passenger, or to cases where such act is directly or impliedly ratified; for no such cases will
occur.' And in the same work at page 381: Where a carrier fails to carry a passenger to his
destination, and sets him down at some intermediate point, compensation may be recovered
for all the expenses of delay, including loss of time and cost of a reasonable conveyance to
his destination. He may also recover compensation for the indignity of the expulsion from the
train, and, if there are aggravating circumstances, he may recover exemplary damages. Where
by the fault of the carrier's agents, and without the passenger's fault, the ticket is not such a
one as he should have to entitle him to passage, the carrier will be liable in damages for
expelling him.
In Philadelphia and Reading R. R. Co. v. Derby, 14 How. (55 U. S.) 468, 14 L. Ed. 502,
the Supreme Court of the United States held that the master is liable for the tortious acts of
his servant done in the course of his employment, even in disobedience of his master's orders.
In Railroad Co. v. Hanning, 15 Wall. 657, 21 L. Ed. 220, that court said: The rule extracted
from the cases is this: The principal is liable for the acts and negligence of the agent in the
course of his employment, although he did not authorize or did not know of the acts
complained of. So long as he stands in the relation of principal or master to the wrongdoer,
the owner is responsible for his acts. When he ceases to be such and the author is himself the
principal and master, not a servant or agent, he alone is responsible.
In Railroad Co. v. Quigley, 21 How. (62 U. S.) 202, 222, 16 L. Ed. 73, it was held that a
corporation was liable for the acts of its agents, in contract or in tort, in the course of its
business and of their employment, the same as an individual is responsible under similar
circumstances.
the acts of its agents, in contract or in tort, in the course of its business and of their
employment, the same as an individual is responsible under similar circumstances.
It was held by the Supreme Court of the United States in Day v. Woodworth, 13 How. 363,
14 L. Ed. 181, that in an action for trespass and actions on the case the jury may give
vindictive damages, and in support of this holding a number of cases are cited in the note at
page 181, 14 L. Ed.
Apropos to the opposing views of counsel regarding the case of Quigley v. C. P. R. R., 11
Nev. 350, 21 Am. Rep. 757, it is said, in section 359 of Sedgwick on Damages (9th ed.), that
the doctrine of the Supreme Court of West Virginia that exemplary damages, so-called, are
allowed, but are compensatory or undetermined damages, as the court calls them, appears to
be the law in Nevada under the Quigley case. As Earle, J., did not participate in the decision
in the Quigley case, any statements in the opinion of Hawley, C. J., and Beatty, J., in which
both did not concur, are not binding as law because lacking the concurrence of a majority of
the court. In that case a number of decisions are cited which sustain the award of exemplary
damages, and no rule is promulgated different from the one generally approved by the courts,
holding that in proper cases the party injured may recover exemplary, punitive or vindictive
damages, which are usually considered the same. (Hacket v. Smelsley, 77 Ill. 109; Roth v.
Eppy, 80 Ill. 283; Giles v. Eagle Ins. Co., 2 Metc. 146; Louisville & P. R. Co. v. Smith, 2
Duv. 556; Stoneseifer v. Sheble, 31 Mo. 243; Kennedy v. North Missouri R. Co., 36 Mo. 351;
Green v. Craig, 47 Mo. 90; Freese v. Tripp, 70 Ill. 496; Meidel v. Anthis, 71 Ill. 241;
Freidenheit v. Edmundson, 36 Mo. 226, 88 Am. Dec. 141; McKeon v. Citizens' R. Co., 42
Mo. 79.)
10. In support of the contention of the appellant that if punitive damages are allowed at all,
they cannot be imposed on the principal whether a natural person or a corporation, who did
not either direct the wanton or oppressive conduct or afterwards ratify it, we are cited to a
number of cases, foremost of which is Lake Shore Railway Co. v. Prentice, 147 U. S. 101,
13 Sup. Ct. 261, 37 L. Ed. 97.
to a number of cases, foremost of which is Lake Shore Railway Co. v. Prentice, 147 U. S.
101, 13 Sup. Ct. 261, 37 L. Ed. 97. In that case it was held that a railroad company was not
liable for exemplary damages for the illegal and oppressive arrest of a passenger by the
conductor of one of its trains, which it had in no way authorized or ratified. The present case
is distinguishable because here the train agent, in taking up the ticket and ordering the
removal of Forrester from the train, was acting within the line of the special authority which
the company had given him to take up tickets and have passengers removed, while in the
Prentice case the company had not authorized the conductor to have the passenger arrested.
If it were admitted for the purposes of this case that, as claimed, punitive damages cannot
be recovered from a principal, whether a corporation or natural person, for the act of the agent
when the principal did not direct or ratify the act, it is still apparent that the jury could allow
punitive damages in this case, not only because the train agent was specially authorized,
above the conductor, by the company, to confiscate tickets and have persons removed from
the trains, and there is evidence from which the jury may have inferred that the train agent, in
addition to having arrogantly insulted and humiliated Forrester and removed him from the
car, was in the habit of ejecting people from the train, and that his conduct in this regard had
been known and ratified by the company by keeping him in a position where he would
continue to so treat passengers, but also by reason of the ratification by the company of the
removal of Forrester from the train by continuing to refuse to give him transportation after
notice to the district agent of the company of Forrester's removal from the train and request
for transportation for him. By giving the train agent special authority to eject passengers and
take up tickets, and allowing him extra compensation for invalid tickets taken up, and by
refusing, after such notice and request for transportation, to give relief from his oppressive
and wrongful acts in ejecting Forrester from the train, the company may be deemed to have
ratified the act of their agent so authorized and approved.
agent so authorized and approved. The Supreme Court of the United States has often
sustained the liberal award of damages for personal injuries caused by the acts of agents or
servants acting within the scope of their employment, although the acts were not authorized
or ratified.
In the case of Singer Mfg. Co. v. Rahn, 132 U. S. 518, 10 Sup. Ct. 175, 33 L. Ed. 440, a
man was employed by a corporation under a written contract to sell sewing machines, with a
provision that his services were to be paid for by commissions on sales and collections. It was
held that he was a servant of the company, and that the company was responsible to third
persons injured by his negligence in the course of his employment. A judgment was sustained
against the company for $10,000 for personal injuries resulting from his careless driving of a
horse and wagon.
In New Jersey Steamboat Co. v. Brockett, 121 U. S. 645, 7 Sup. Ct. 1041, 30 L. Ed. 1050,
it is said in the opinion: The plaintiff was entitled, by virtue of that contract, to protection
against the misconduct or negligence of the carrier's servants. Their misconduct or negligence
whilst transacting the company's business, and when acting within the general scope of their
employment, is, of necessity, to be imputed to the corporation which constituted them agents
for the performance of its contract with the passenger. Whether the act of the servant be one
of omission or commission, whether negligent or fraudulent, if,' as was adjudged in Phila. &
R. R. R. Co. v. Derby (55 U. S.) 14 How. 486, 14 L. Ed. 502, it be done in the course of his
employment, the master is liable; and it makes no difference that the master did not authorize
or even know of the servant's act or neglect, or even if he disapproved or forbade it, he is
equally liable if the act be done in the course of his servant's employment.' See, also, Phila.
W. & Balt. R. R. Co. v. Quigley, (62 U. S.) 21 How. 210, 16 L. Ed. 73. This rule,' the Court
of Appeals of New York well says, is founded upon public policy and convenience. Every
person is bound to use due care in the conduct of his business. If the business is committed to
an agent or servant, the obligation is not changed.' {Higgins v. Watervliet Turnpike Co., 46
N. Y. 27, 7 Am.
is committed to an agent or servant, the obligation is not changed.' (Higgins v. Watervliet
Turnpike Co., 46 N. Y. 27, 7 Am. Rep. 293.) The principle is peculiarly applicable as
between carriers and passengers; for, as held by the same court in Stewart v. Brooklyn & C.
R. R. Co., 90 N. Y. 591, 43 Am. Rep. 185, a common carrier is bound, as far as practicable, to
protect its passengers, while being conveyed, from violence committed by strangers and
copassengers, and undertakes absolutely to protect them against the misconduct of its own
servants engaged in executing the contract.
11. Differently from the Prentice case, the decisions generally hold that the principal or
master is liable in exemplary damages for the wrongful, wanton, and oppressive acts of the
agent or servant when acting within the scope of his employment, although not authorized or
ratified.
In Rucker v. Smoke, 37 S. C. 380, 16 S. E. 41, 34 Am. St. Rep. 760, the court said: As we
understand it, the proposition contended for by the counsel for appellant is that a principal
cannot be held liable for exemplary damages on account of a wrongful, wanton, or malicious
act done by his agent, within the scope of his agency, unless such act be previously authorized
or subsequently ratified by the principal. We do not think that this proposition can be
sustained either by reason or authority. When one person invests another with authority to act
as his agent for a specified purpose, all of the acts done by the agent in pursuance or within
the scope of his agency are, and should be, regarded as really the acts of the principal. If,
therefore, the agent, in doing the act which he is deputed to do, does it in such a manner as
would render him liable for exemplary damages, his principal is likewise liable, for the act is
really done by him. * * * This view is, we think, fully sustained by authority. In Story on
Agency, sec. 452, quoted with approval by Mr. Justice McGowan in Reynolds v. Witte, 13 S.
C. 18, 36 Am. Rep. 678, we find the rule laid down as follows: It is a general doctrine of law
that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for
the acts or misdeeds of his agent, unless, indeed, he has authorized or cooperated in
them, yet he is held liable to third persons in a civil suit, for the frauds, deceits,
concealments, misrepresentations, negligences, and other malfeasances, misfeasances,
and omissions of duty of his agent, in the course of his employment, although the
principal did not authorize, or justify, or participate in, or, indeed, know of such
misconduct, or even if he forbade the acts or disapproved of them.
sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has
authorized or cooperated in them, yet he is held liable to third persons in a civil suit, for the
frauds, deceits, concealments, misrepresentations, negligences, and other malfeasances,
misfeasances, and omissions of duty of his agent, in the course of his employment, although
the principal did not authorize, or justify, or participate in, or, indeed, know of such
misconduct, or even if he forbade the acts or disapproved of them. In all such cases the rule
applies, respondeat superior; and it is founded on public policy and convenience, for in no
other way could there be any safety to third persons in their dealings, either directly with the
principal, or indirectly with him through the instrumentality of agents. In every such case the
principal holds out his agent as competent and fit to be trusted, and thereby, in effect, he
warrants his fidelity and good conduct in all matters within the scope of his agency. The rule
is also well stated in 1 Am. & Eng. Ency. of Law, at page 410, in these words: A principal is
liable to third parties for whatever the agent does or says; whatever contracts, representations,
or admissions he makes; whatever negligence he is guilty of; and whatever fraud or wrong he
commits: provided, the agent acts within the scope of his apparent authority, and provided a
liability would attach to the principal if he was in the place of the agent.' This rule has been
repeatedly recognized or acted upon in this state, as shown by the following cases cited by
respondent's counsel: Parkerson v. Wightman, 4 Strob. (S. C.) 363; Redding v. South
Carolina R. R. Co., 3 S. C. 1, 16 Am. Rep. 681; Epstein v. Brown, 21 S. C. 599; Hall v.
South Carolina Ry. Co., 28 S. C. 261, 5 S. E. 623; Avinger v. South Carolina Ry. Co., 29 S.
C. 271, 7 S. E. 493, 13 Am. St. Rep. 716; and Quinn v. South Carolina Ry. Co., 29 S. C. 381,
7 S. E. 614, 1 L. R. A. 682.
A number of Illinois cases upholding this doctrine of liability are cited in the note in 34
Am. St. Rep. 761.
In Calloway v. Millett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St. Rep. 238, it was held
that a person who pays his fare and in good faith accepts a ticket from the ticket agent,
who assures him that it will be good for passage, has a right to board a train as a
passenger; and, if his ticket is rejected by reason of expired limitation, and he is ejected
from the train for nonpayment of fare, he may recover exemplary damages.
his fare and in good faith accepts a ticket from the ticket agent, who assures him that it will
be good for passage, has a right to board a train as a passenger; and, if his ticket is rejected by
reason of expired limitation, and he is ejected from the train for nonpayment of fare, he may
recover exemplary damages. It is stated in the opinion: It is true that in actions for breach of
contract exemplary or punitive damages are allowable only where the act complained of has
been committed wilfully and maliciously, or, in the absence of actual malice, where it has
been committed under circumstances of violence, oppression, outrage, or wanton
recklessness.
In Southern Railway Co. v. Wooley, 158 Ala. 447, 48 South. 369, in an action against a
railway company for leaving a passenger at a station short of her destination, there was
evidence justifying an inference that the railway company's flagman was guilty of wantonness
in directing plaintiff to remove to the wrong car, and it was held that punitive damages could
be recovered.
In Company v. Lowry, 79 Miss. 431, 30 South. 634, the conductor on signal failed to stop
the streetcar until it had passed a brick crossing from twenty to forty feet, and refused to back
the car, as there was a regulation of the company against backing cars. The conductor insulted
and ridiculed the passenger upon his refusal to go through the mud to the car, and he had
several blocks to walk. It was held that the jury in assessing damages were authorized to
allow, not only just compensation for the injury, but to inflict a proper punishment for the
company's disregard of public duty.
In Harlan v. Wabash Ry. Co., 117 Mo. App. 537, 94 S. W. 737, the collector told a
passenger to get off at a station before he reached his destination, and that the train would not
stop at his destination. The collector refused to put the passenger off at his station, carried
him to the next station, where he was detained for two or three hours, and he was carried back
to his destination free of charge. It was held that he was entitled to exemplary damages.
In Alabama R. R. Co. v. Sellers, 93 Ala. 9, 9 South. 375, 30 Am. St. Rep. 16, the
conductor, after having passed a station without allowing a passenger to alight, refused to
return with the train to the station, and compelled the passenger to alight in a driving rain, two
hundred yards from the railroad station, whereby she was exposed to the elements while she
was walking that distance, to the injury of her health. It was held that exemplary damages
might be awarded, although the actual injury suffered was nominal. It is said in the opinion:
If the jury believed the testimony we have detailed, they would have been justified in the
conclusion that the defendant's conductor, within the range of his employment, wilfully
refused to move the train back to the station and wilfully compelled the plaintiff to alight in a
driving rain several hundred yards from any shelter, so encumbered with her child and
baggage as to be unable to protect herself, and necessitating exposure to the elements while
walking this distance. We cannot hesitate to affirm that this misconduct on the part of
defendant's employee with knowledge of the situation, was such a wilful wrong, committed in
such reckless disregard of the necessarily injurious consequences to the plaintiff, as
authorized the jury to punish the defendant therefor by the imposition of exemplary damages.
(New Orleans R. R. Co. v. Hurst, 36 Miss. 660, 668, 669, 74 Am. Dec. 785; Wilkinson v.
Searcy, 76 Ala. 176; Alabama R. R. Co. v. Frazier, 93 Ala. 45, 9 South. 303, 30 Am. St. Rep.
28.)
* * * Acts readily conceivable, which involve malice, wilfulness, or wanton reckless
disregard of the rights of others, though not within the calendar of crimes, and inflicting no
pecuniary loss or detriment measurable by a money standard on the individual, yet merit such
punishment as the civil courts may inflict by the imposition of exemplary damages. And upon
these considerations the law is, and has long been, settled in this state that the infliction of
actual damage is not an essential predicate to the imposition of exemplary damages. (Parker
v. Mise, 27 Ala. 480, 62 Am. Dec. 776; Western Union Tel. Co. v. Henderson, S9 Ala.
Union Tel. Co. v. Henderson, 89 Ala. 510, 7 South. 419, 18 Am. St. Rep. 148; Alabama R. R.
Co. v. Heddleston, 82 Ala. 218, 3 South. 53.) See, also, 1 Sutherland on Damages, 748.
In Sommerfield v. Transit Co., 108 Mo. App. 718, 84 S. W. 172, a streetcar conductor
refused to accept transfer checks, and demanded the payment of cash fare. Such payment
being refused, he ejected the passengers from the car. It was held that the award of exemplary
damages was proper. The court said: The plaintiff was not confined in his recovery to actual
damages; the law is firmly established that where the commission of a tort is attended with
circumstances denoting malice, or oppression, or where the defendant acts wilfully and with
wanton disregard of the rights of others, exemplary or punitive damages may be allowed, as
well for the punishment of the wrong inflicted as to deter repeated perpetration of similar
acts. (2 Sutherland, Damages, 3d ed. sec. 391.) The propriety of allowing juries to award such
class of damages in cases of unlawful eviction from vehicles of common carriers of
passengers has been sanctioned alike by this court and the supreme court. (Hicks v. Railroad,
68 Mo. 329; Malecek v. Railroad, 57 Mo. 17; Evans v. Railroad, 11 Mo. App. 463; Kellett v.
Railroad, 22 Mo. App. 356.) The cases relied on by defendant are instances where the
elements of oppression, insult, and abuse in aggravation of the wrong were wholly absent,
and the agents enforcing eviction acted erroneously, but in good faith and without force or
violence.
In City Railway v. Brauss, 70 Ga. 368, the plaintiff and his wife entered a streetcar, gave
tickets to the conductor, and told him where they wished to go. He had them transferred to
another car, but gave them no transfer checks. The conductor of the latter car removed them a
short distance from a corner, and they had to walk in the mud and in the presence of a number
of people. The court said: We think, as we have before shown, that this is an action ex
delicto, founded upon the failure of the defendant to perform a duty imposed by its contract,
and that the plaintiff was entitled to recover damages in consequence of this breach of duty,
and that the motion was properly overruled.
damages in consequence of this breach of duty, and that the motion was properly overruled.
* * * The circumstances under which he was put off, and the place where he and his wife
were landed, were well calculated to wound the feelings and mortify the pride of any man of
ordinary sensibility.
In Louisville Ry. Co. v. Fowler (Ky.) 107 S. W. 703, it was held that a railroad company
had the right to eject a passenger who did not present a ticket or pay fare, but it was liable for
punitive damages for injuries resulting from expelling a person from the train, and for insult
and indignity offered by the conductor.
In Illinois Cent. Ry. Co. v. Reid, 93 Miss. 458, 46 South. 146, 17 L. R. A. n.s. 344, a
passenger recovered punitive damages for ejection from a railway train at the last stop before
his destination, which was not a regular station. He had made a special contract with the
carrier's agent to have his train stop at his destination, but the last conductor threw the tickets
in the passenger's lap, telling him he must alight, and refusing to listen to any explanation,
saying, I have heard that before.
In Kibler v. Southern Railway, 64 S. C. 242, 41 S. E. 977, a judgment awarding punitive
damages for refusing plaintiff passage on a train on tender of fare was affirmed. The court
said: When the conductor of a train wilfully, wrongfully, unlawfully, and intentionally
refuses a citizen passage thereon after he has offered to pay the legal fare for such passage,
and actually causes him to leave the train before arriving at his destination, a cause of action
for punitive damages exists. * * * The evidence tended to show that the citizen who tendered
the legal fare was ordered from the train, and that there were other passengers on board to
witness the plaintiff's humiliation, when required to leave the train. This testimony was before
the jury. * * * It was for the jury to weigh it to see if there was malice, fraud, wantonness, etc.
The circuit judge committed no error, as here pointed out. * * * It is quite true that punitive
damages do not result from ordinary negligence. Nevertheless, such damages do arise from
wantonness, oppression, or rude and insulting conduct of a conductor to a passenger.
oppression, or rude and insulting conduct of a conductor to a passenger. It was the duty of the
jury, and not the circuit judge, to determine if the testimony offered by plaintiff established
such a delict in the conductor toward this passenger.
In Kansas, Fort Scott and Memphis R. R. Co. v. Little, 66 Kan. 378, 71 Pac. 820, 61 L. R.
A. 122, 97 Am. St. Rep. 376, it was held that a passenger has the right to rely upon the
representations of the local ticket agent that the train will stop at a point to which he has
purchased a ticket, and that the company is liable if he is compelled to leave the train before
arriving at his destination, because by the general rules of the company, unknown to the
passenger, such train is not scheduled to stop at that station. It was held that exemplary
damages may be allowed where a wrong has in it the elements of negligence which is gross or
wanton or wilfully oppressive, and that an indignity need not be done to one in the presence
of a number of people in order to entitle the person wronged to recover damages for the
humiliation and disgrace suffered.
A passenger wrongfully ejected from a train may recover damages without direct proof of
the shame and humiliation suffered by him. (Chicago R. R. Co. v. Chisholm, 79 Ill. 584.)
In Dixon v. Northern Pac. Ry. Co., 37 Wash. 310, 79 Pac. 943, 68 L. R. A. 895, 107 Am.
St. Rep. 810, 2 Ann. Cas. 620, it was held that it is prima facie within the implied authority of
the brakeman of a railroad train to eject trespassers, and that if in removing them he does not
exercise care and caution, but acts wantonly or maliciously, the railroad company will be
liable for resulting injury. A number of cases pertaining to this question were considered, and
the court said: But, notwithstanding this distinction, the law, out of regard for common
humanity, will not permit a master to allow his servant to unnecessarily abuse or imperil the
life or limb even of a trespasser, and, if the company, through its servants, wilfully injure him,
it will be liable, even though he may have been guilty of contributory negligence.
though he may have been guilty of contributory negligence. It is well settled, generally, that a
railroad company is responsible in damages to a trespasser for torts committed upon him by a
servant who, in the commission of the tort, is acting within the line of his employment, and
within the scope of his authoritynot within the scope of his authority as applied to the
commission of the tort, for no authority for such commission could be conferred, but within
the scope of his authority to rightfully do the particular thing which he did do in a wrongful
manner. And, while the master will not be liable for the wilful act of the servant not done to
further or protect the master's interest, or with a view to the master's service, if the servant is
authorized to perform the duty, but in the performance of that duty acts wilfully or negligently
to the detriment of another, the master will be held liable. So that the pertinent question in
this case is: Was the brakeman acting within the actual or implied scope of his employment
when he committed the act complained of? * * * It may be that these powers have increased
with the changing conditions incident to railroading, and that the observation of this increase
in his powers is the cause of the change in judicial decision on this question; for it is
noticeable that most of the cases holding to the theory that the brakeman is not acting within
the scope of his authority or employment, when ejecting a trespasser from the train, were
decided many years ago, while the great majority of the cases holding to the other doctrine are
of modern announcement. While this authority, of which we have been speaking, may not be
strictly conferred upon the brakeman by the terms of the employment contract, we think that
it must be a matter of common observation that such authority is an inference from the nature
of the business, and its actual daily exercise.
In Lindsay v. Oregon S. L. R. Co., 13 Idaho, 483, 90 Pac. 985, 12 L. R. A. n.s. 187, the
court said: It is contended by counsel for the appellant that the brakeman had no authority to
expel a passenger, and for that reason was acting outside of his authority if he had expelled
him, and the company would not be liable therefor.
acting outside of his authority if he had expelled him, and the company would not be liable
therefor. There is nothing in this contention, for the correct doctrine on this point is laid down
in 3 Thomp. Neg. sec. 3176; Patterson, Railway Acci. Law, sec. 111; 6 Cyc. Law and Prac. p.
561. As stated in the last-cited authority, it is the duty of the carrier to afford protection for its
passengers, and if it has in its employ a brakeman who ejected a passenger from a train who
was entitled to ride, the company is certainly liable.
The Supreme Court of Georgia, in Seaboard Air Line Ry. Co. v. O'Quin, 124 Ga. 357, 52
S. E. 427, 2 L. R. A. n.s. 472, held that punitive damages were recoverable by a passenger
who was expelled from the train by the conductor or other employees in charge, and that
when the company undertakes to eject a passenger guilty of disorderly conduct, it acts at its
peril in determining his identity; and if by mistake the wrong passenger is ejected, the carrier
will be liable to respond in damages for the acts committed by its servants, their good faith
being available only in defeating a recovery of punitive damages. The court approved the
instruction that: In every tort there may be aggravating circumstances, either in the act or in
the intention; and in that event the jury may give additional damages, either to deter the
wrongdoer from repeating the trespass, or as a compensation for the wounded feelings of the
plaintiff.
In Louisville and Nashville R. R. Co. v. Garrett, 8 Lea (Tenn.) 438, 41 Am. Rep. 640, it
was held that a passenger who ignorantly and in good faith tenders a tax certificate for his
fare may not be ejected as a trespasser; and if before he is removed from the train another
person offers to pay his fare for him, the carrier must receive it and carry him, or be liable for
punitive damages.
In Southern Light and Traction Co. v. Compton, 86 Miss. 629, 38 South. 629, it was held
that punitive damages were properly awarded to a woman who was rudely ejected from a
streetcar by the conductor, and compelled to walk some distance in the mud, because of her
refusal to comply with the demand of the conductor that she change her seat in the car.
walk some distance in the mud, because of her refusal to comply with the demand of the
conductor that she change her seat in the car.
In Louisville R. R. Co. v. Ballard, 88 Ky. 139, 10 S. W. 429, 2 L. R. A. 694, an action to
recover for being taken past a station to which the passenger purchased a ticket, it was held
proper to give an instruction that if any of the employees of the company were insulting in
words, tone, or manner, the jury should find for the plaintiff damages in their discretion, not
exceeding the amount claimed.
In Yazoo R. R. v. Fitzgerald, 96 Miss. 197, 50 South. 631, and Cinn. Ry. Co. v. Strosnider
(Ky.) 121 S. W. 971, it was held that insulting and oppressive conduct toward a passenger,
without expulsion, will warrant the recovery of punitive damages.
Where the original purchaser of a ticket was ejected by the conductor because the selling
agent had erroneously punched the ticket for a female instead of for a male, and the conductor
said it was a bogus ticket, and ejected the passenger from the train without giving him an
opportunity for an explanation, it was held that a recovery of both actual and exemplary
damages was warranted. (Illinois Central Ry. Co. v. Gortikov, 90 Miss. 787, 45 South. 363,
14 L. R. A. n.s. 464, 122 Am. St. Rep. 324.) The court said: Whether the ticket was in fact
or not, when bought, punched in the wrong place, so as to show that it was issued to a female,
is in our view wholly immaterial. That was a matter for the convenience of the railroad
company, and no passenger should be held to be bound by the mistakes of the agent in using
his punch. * * * According to the testimony of the plaintiff there was no talk from the
conductor on the subject of an erasure or change in the name until the trial of the cause. * * *
This ticket shows that it was bought October 27, 1904, and that the return limit was punched
so as to show December 14, although that very ticket provides, as all such did, that it is good
for ninety days from its date, to be not later than December 31, 1904.
31, 1904. This is conclusive of the contract, regardless of the mistake which the agent says he
made in punching the ticket, and was a matter for explanation, to say the least of it, if the
conductor had made the point or been willing to accept explanation. In any case it is the duty
of the conductor, when doubt arises as to a ticket, whether a general ticket or a special touring
ticket with reduced rates, to listen to and accept any reasonable explanation offered, or take
the chances. (Railroad Co. v. Harper, 83 Miss. 560, 35 South. 764, 64 L. R. A. 283, 102 Am.
St. Rep. 469; Railroad Co. v. Holmes, 75 Miss. 371, 23 South. 187; Railroad Co. v. Riley, 68
Miss. 765, 9 South. 443, 13 L. R. A. 38, 24 Am. St. Rep. 309; Railroad Co. v. Drummond, 73
Miss. 813, 20 South. 7cited by counsel for appellee.) This court is in line with those cases
holding that a passenger is not required to see that the selling agent of the ticket made the
proper punch marks. The fact that the passenger did not do so does not destroy the validity of
the contract. (Railroad Co. v. Holmes, 75 Miss. 371, 20 South. 187.) In the case at bar it was
clearly the conductor's duty to accept the explanation, regardless of the punch marks. But, as
we have said, the evidence on the part of the plaintiff is that the conductor made no such
objection to the ticket, but put his refusal explicitly on the ground that the ticket had been
issued to a female, and was a bogus ticket.' Looking to all that appears on this ticket, the
expulsion was unnecessary, and from the circumstances shown on the part of the plaintiff it is
our opinion that they warranted the recovery of both actual and exemplary damages.
Examining the whole ticket, it is clear that the contract was not to expire until December 31,
and, if the punch mark contradicted this, it should not have been considered by the conductor,
because the printed contract should be taken most strongly against the railroad company
which issued it.
In Louisville & N. R. R. Co. v. Hine, 121 Ala. 234, 25 South. 857, it was held that for an
injury caused by a breach of duty which a common carrier owes to its passengers an action
lies in tort, as well as on the contract of carriage, and humiliation and indignity are
elements of actual damage.
of carriage, and humiliation and indignity are elements of actual damage. The court said:
The carrier cannot shield himself from the consequences of misconduct or mistake on the
part of one of its agents acting within the scope of his duties, which has naturally betrayed
another of its agents into the final act of injury to the passenger. (Murdock v. Boston and
Albany R. Co., 137 Mass. 293, 50 Am. Rep. 307; Lake Erie & W. R. R. Co. v. Fix, 88 Ind.
381, 45 Am. Rep. 464; Hufford v. Grand Rapids and Ind. R. Co., 64 Mich. 631, 31 N. W.
544, 8 Am. St. Rep. 859; Head v. Ga. Pac. R. Co., 79 Ga. 358, 7 S. E. 217, 11 Am. St. Rep.
434; L. & N. R. R. Co. v. Gaines, 99 Ky. 411, 36 S. W. 174, 59 Am. St. Rep. 465.) * * * The
issue being found in favor of the plaintiff, he was entitled to recover the damages proximately
resulting to him from the wrong, including the expense and inconvenience to which he was
put. Humiliation and indignation, if suffered by him from the ejection, are also elements of
actual damages. Such damages may arise from a sense of injury and outraged rights
engendered by the ejection alone, without regard to the manner in which it was effected, and
though done only through mistake. (Head v. Ga. Pac. R. Co., supra; Chicago and Alton R.
Co. v. Flagg, 43 Ill. 364, 92 Am. Dec. 133; Phila. R. Co. v. Hoeflich, 62 Md. 300, 50 Am.
Rep. 223; Smith v. Pittsburg R. Co., 23 Ohio St. 10.)
If a passenger have a misunderstanding and contention with the conductor, and is ordered
to leave the train, he is under no duty to remain on the train until expelled by force, and if he
refuses when commanded he is coerced. (Georgia R. R. Co. v. Eskew, 86 Ga. 641, 12 S. E.
1061, 22 Am. St. Rep. 490; Atchison T. & Santa Fe R. Co. v. Gants, 38 Kan. 608, 17 Pac. 54,
5 Am. St. Rep. 780.)
12. The amount awarded by the jury is large, and we have considered carefully whether it
ought to be set aside or reduced. In actions for damages in which the law provides no legal
rule of measurement it is the special province of the jury to determine the amount that ought
to be allowed, and the court is not justified in reversing the case or granting a new trial on the
ground that the verdict is excessive, unless it is so flagrantly improper as to indicate
passion, prejudice, or corruption in the jury.
that the verdict is excessive, unless it is so flagrantly improper as to indicate passion,
prejudice, or corruption in the jury.
In Solen v. V. & T. R. R. Co., 13 Nev. 138, it is said: There being no absolute, fixed, legal
rule of compensation, appellate courts ought not to interfere with the verdict unless it clearly
appears that there has been such a mistake of the principles upon which the damages were
estimated, or some improper motive or bias indicating passion or prejudice on the part of the
jury. (Worster v. Proprietors of Canal Bridge, 16 Pick. 547; Boyce v. Cal. Stage Co., 25 Cal.
461; Schmidt v. M. & St. P. R. Co., 23 Wis. 192, 99 Am. Dec. 158; Klein v. Jewett, 26 N. J.
Eq. 480; Penn. R. Co. v. Allen, 53 Pa. 276; Sedgwick on Measure of Damages, 601, 602, and
authorities there cited.) The amount of the verdictalthough perhaps greater than we would
have givenis not, in our opinion, inconsistent with the exercise of an honest judgment upon
the part of the jury, whose special province it was to determine this question. This language
was quoted with approval, and numerous other causes cited following the rule, in Burch v.
Southern Pacific Co., 32 Nev. 106, Ann. Cas. 1912b, 1166; Wedekind v. So. Pac. Co., 20
Nev. 301, and Engler v. W. U. T. Co., 69 Fed. 188.
In Cleveland, Cinn. O. & St. L. Ry. Co. v. Hadley, 170 Ind. 204, 82 N. E. 1025, 84 N. E.
13, 16 L. R. A. n.s. 527, 16 Ann. Cas. 1, the Supreme Court of Indiana sustained a judgment
for $10,000 for an injury to the elbow joint, caused by the falling of a window sash, affecting
chiefly the ulnar nerve, resulting in a numb feeling in the arm and the little and ring fingers,
and shrunken condition of the muscles of the arm, and loss of grip. The court said: The
general principle is well established that this court will not reverse the judgment of the court
below in refusing to grant a new trial on the ground of excessive damages, unless, at first
blush, the damages assessed appear to be outrageous and excessive, or it is apparent that
some improper element was taken into account by the jury in determining the amount.
(Michigan City v. Phillips, 163 Ind. 449, 71 N. E. 205; Indianapolis St. R. Co. v. Schmidt,
163 Ind.
Schmidt, 163 Ind. 360, 71 N. E. 201; Illinois Cent. R. Co. v. Cheek, 152 Ind. 663, 53 N. E.
641; Ohio R. Co. v. Judy, 120 Ind. 397, 22 N. E. 252; Louisville R. Co. v. Miller, 141 Ind.
533, 37 N. E. 343; Evansville R. Co. v. Talbot, 131 Ind. 221, 29 N. E. 1134; Carthage
Turnpike Co. v. Andrews, 102 Ind. 138, 1 N. E. 364, 52 Am. Rep. 653; Farman v. Lauman,
73 Ind. 568; Westerville v. Freeman, 66 Ind. 255; Yater v. Mullen, 23 Ind. 562; Picquet v.
McKay, 2 Blackf. 465.) The determination of the extent of the injury complained of, and the
proper compensation therefor, were peculiarly within the province and power of the trial jury,
and when its judgment has been fairly obtained and, in the light of all the incidents of the
trial, confirmed by the presiding judge, an abuse of this right and power must be clearly
manifest to warrant an appellate court in disturbing the judgment on the ground of excessive
damages. (Hudelson v. Hudelson, 164 Ind. 694, 74 N. E. 504; Creamery Package Mfg. Co. v.
Hotsenpiller, 159 Ind. 99, 64 N. E. 600; Mead v. Burk, 156 Ind. 577, 60 N. E. 338; Lee v.
State, 156 Ind. 541, 60 N. E. 299.)
13. If the case did not present so many unusual and serious circumstances of oppression,
hardship, and injury, we would feel less inclined to allow the verdict to stand. To insult and
humiliate a passenger who is ill and traveling on a ticket he has regularly purchased, search
his baggage, take up his ticket when knowing that he is without means to again pay for his
passage, eject him from the train at a station which is little more than a sidetrack, several
hundreds of miles from his destination and friends, leaving him to beg for assistance, and
make his way while ill by walking or riding in exposed positions on coal cars or freight trains,
is a serious matter, and a verdict for a liberal amount, which will tend to stop such treatment
of passengers by public carriers, is justifiable. From the testimony that the train agent gloated
over putting off other passengers, and the fact that the company paid him an extra amount for
each ticket he took up as invalid, the jury may have inferred that such was the habit of the
company. If there were others ejected, who were able to pay fare for traveling on the next
train in a few hours, they may have suffered little damage to warrant the institution of a
suit and prolonged litigation with the company, or may have been unable to employ
counsel.
traveling on the next train in a few hours, they may have suffered little damage to warrant the
institution of a suit and prolonged litigation with the company, or may have been unable to
employ counsel.
It may be doubted whether, for the amount of the verdict, if considered as covering actual
damage, the officers and stockholders of the company would want to undergo all that the
evidence on the part of the plaintiff indicates Forrester was made to endure by reason of the
acts of the train agent; the insult, searching of baggage, accusation that he had stolen the
ticket, ejection from the train in the presence of other passengers, the later insulting refusal of
the district agent to give transportation when solicited, the humiliation of seeking assistance,
the pain and suffering of body and mind in traveling hundreds of miles on engines and coal
cars during inclement weather while ailing, the taking of pneumonia, the suffering from it in
the hospital, the incapacity for work, and the evident shortening of life. In view of all these
circumstances, and compared with the amounts allowed by juries and sustained by courts in
other cases not nearly so serious, in which insult, humiliation and illness were elements of
damage, we are unable to say that the jury acted upon prejudice or passion, or that the verdict
ought to be set aside. In comparison with the circumstances, injury inflicted and
consequences, verdicts as liberal have been upheld as meeting the actual damage sustained,
and without consideration of the right to award exemplary damages. The amount allowed for
personal injuries in different cases has varied greatly, according to the circumstances and the
determination of the jury. Seldom has a case come before the courts regarding the expulsion
of a passenger in which the conditions were so aggravated and the consequences so serious.
The charges of theft and different insults heaped upon Forrester, according to the testimony,
his submissive conduct and earnest attempts to identify himself and show his right to remain
upon the train, the humiliating denial of his request for transportation after his expulsion from
the train, coupled with the charge that he or his case was bogus, and more especially the
long distance from his destination when he was ill and without means to buy another
ticket, and the resulting privation, hardship, suffering, disease, and shortening of life
justify the award of a much larger amount as damage than in ordinary cases where the
most injurious of these conditions are lacking.
train, coupled with the charge that he or his case was bogus, and more especially the long
distance from his destination when he was ill and without means to buy another ticket, and
the resulting privation, hardship, suffering, disease, and shortening of life justify the award of
a much larger amount as damage than in ordinary cases where the most injurious of these
conditions are lacking. Verdicts for about half the amount of the one in this case have been
held not excessive when the aggravation and injury were not half so great.
The Supreme Court of Mississippi, in Railroad Co. v. Hurst, 36 Miss. 660, 74 Am. Dec.
785, said: It is always matter of grave consideration with courts of the last resort to disturb
the verdict of a jury fairly rendered, upon the evidence before them, and more especially
when sanctioned by the direct judgment of the court before whom it was rendered, on a
motion for a new trial. But, in cases of this character, when the application is based solely on
the ground of excessive damages, to warrant the interposition of this court, the verdict must
be so flagrantly improper as to evince passion, prejudice, or corruption in the jury. In personal
torts, the courts will look narrowly into the circumstances, as they very rarely grant a new trial
for excessive damages. (3 Graham & Waterman on New Trials, 1131, and cases cited.) It is
an authority to be exercised with great caution and discretion. It is the peculiar province of a
jury to assess damages, and when, as in actions sounding damages merely, the law furnishes
no legal rule of measurement save their discretion, under the evidence before them, it is very
rare indeed that a court will feel itself justified in setting aside a verdict merely for excess. It
is not enough that, in the opinion of the court, the damages are too high. It may not rightfully
substitute its own sense of what would be a reasonable compensation for the injury for that of
the jury. The jury are allowed, and indeed it is their duty in all such cases where the law
provides no other penalty, to consider the interests of society, as well as justice to the
plaintiffs, and by their verdict, while they make just compensation for the private injury, also
to inflict proper punishment for the disregard of public duty.
for the private injury, also to inflict proper punishment for the disregard of public duty. (Cook
v. Hill, 3 Sandf. 341; Collins v. Albany & S. R. R. Co., 12 Barb. 492; Schlencker v. Risley, 3
Scam. 483, 38 Am. Dec. 100; Vreeland v. Berry, 21 N. J. Law, 183; Thompson v. Morris
Canal and Banking Co., 17 N. J. Law, 480; Bodwell v. Osgood, 3 Pick. 379, 15 Am. Dec.
228; McNamara v. King, 2 Gilman, 432; Johnson v. Moulton, 1 Scam. 532; Vanzant v. Jones,
3 Dana, 464; Worford v. Isbel, 1 Bibb, 247, 4 Am. Dec. 633; North v. Cates, 2 Bibb, 591;
Roberts v. Swift, 1 Yeates, 209, 1 Am. Dec. 295; Taylor v. Giger, Hardin, 586; Deacon v.
Allen, 4 N. J. Law, 338; Vanch v. Hall, 3 N. J. Law, Webber v. Kenny, 1 A. K. Marsh. 345;
Respass v. Palmer, 2 A. K. Marsh. 365; Allen v. Craig, 13 N. J. Law, 294; Tillotson v.
Cheetham, 2 Johns. 74, 3 Johns. 56, 3 Am. Dec. 459; Whipple v. Cumberland Mfg. Co., 2
Story, 661, Fed. Cas. No. 17, 516; Coleman v. Southwick, 9 Johns. 45, 6 Am. Dec. 253;
Southwick v. Stevens, 10 Johns. 443.) The law has not intrusted the court with the discretion
to estimate damages, but has devolved the power on a jury, as a matter of sentiment and
feeling, to be exercised by them according to their sound discretion, duly weighing all the
circumstances of the case. * * * Judges, therefore, should be very careful how they overthrow
verdicts, given by twelve men, on their oaths, on the ground of excessive damages. (Per
Parsons, C. J., in Coffin v. Coffin, 4 Mass. 1, 3 Am. Dec. 189; Simpson v. Pittman, 13 Ohio,
365; Fisher v. Patterson, 14 Ohio, 418; Clark v. Pendleton, 20 Conn. 495; Sedgwick on
Damages, 39, et seq., and authorities cited.) The cases, both English and American, while
fully admitting the power and discretion of the court, uniformly concur in the doctrines above
laid down.
In an English case the jury gave 500 damages for merely knocking a man's hat off, and the
court refused a new trial. (Merest v. Harvey, 5 Taunt. 442.)
In Dagnall v. Southern Ry. Co., 69 S. C. 110, 48 S. E. 97, the plaintiff paid full fare for a
ticket which he did not know was limited by the punch marks, and was expelled from the
train when using the ticket after the limitation. It was held that he was entitled to passage, as
he had paid full fare, notwithstanding the limitation on the ticket, and that as his
expulsion was wanton and wilful on the part of the defendant's employees, he was
entitled to recover punitive damages, and a judgment for $1,200 was sustained.
as he had paid full fare, notwithstanding the limitation on the ticket, and that as his expulsion
was wanton and wilful on the part of the defendant's employees, he was entitled to recover
punitive damages, and a judgment for $1,200 was sustained.
In White v. Metropolitan St. Ry. Co., 132 Mo. App. 339, 112 S. W. 278, defendant street
railway company's conductor wrongfully refused to accept a transfer, the plaintiff refused to
pay his fare, and the conductor seized him and pulled him off the car, saying that he could not
return without paying the fare, and thereupon the plaintiff paid the fare and returned to the
car, but the conductor continued to treat him in an insolent manner. It was held that whether
the conductor was insulting and abusive in his language and demeanor and acted with malice
was a question for the jury and that a verdict for $250 punitive damages was not excessive.
In Cagney v. Manhattan Ry. Co. (City Ct. N. Y.) 2 N. Y. Supp. 402, plaintiff purchased a
ticket for a ride on the elevated railroad, and deposited it in the canceling box without the
knowledge of the gateman, who refused to allow him to board the train, although the ticket
agent, who was superior in authority, said he had sold the plaintiff the ticket and told the
gateman to let him ride. There were many people, and plaintiff was apparently mortified at
the imputation of attempting to ride without payment. Unable to secure a train without buying
another ticket, plaintiff walked home. It was held that the defendant was liable for the
malicious act of its agent, the gateman, within the line of his duty, and that both actual and
exemplary damages were recoverable. A verdict for $500 was sustained as not excessive.
In Rand v. Butte Electric Ry. Co., 40 Mont. 398, 107 Pac. 88, the employees of a streetcar
company seized, beat, and roughly handled the plaintiff, so that his head and face were badly
cut, his nose broken, and he was confined to his bed under the care of a physician for several
weeks. In favor of the company it was claimed that he was drunk and disorderly, and that the
assault resulted from an attempt to put him on the streetcar and send him away from the ball
grounds back to Butte City, a distance of two miles.
him away from the ball grounds back to Butte City, a distance of two miles. A verdict of
$2,500 was sustained.
In Little Rock Ry. & E. Co. v. Dobbins, 78 Ark. 553, 95 S. W. 788, an award of $500
compensatory damages and $250 exemplary damages for the ejection of a passenger from a
streetcar with insulting language by the conductor, and for causing the passenger's arrest for
alleged disorderly conduct, was sustained.
In Craker v. Chicago & N. W. Ry. Co., 36 Wis. 657, 17 Am. Rep. 504, the conductor
kissed a female passenger, and for his conduct was promptly dismissed from the service of
the railroad. A verdict against the company for $1,000 was sustained. In the opinion it is said:
She was entitled to liberal damages for her terror and anxiety, her outraged feeling and
insulted virtue, for all her mental humiliation and suffering. We cannot say that the damages
are excessive. We might have been better satisfied with a verdict for less. But it is not for us,
it was for the jury, to fix the amount. And they are not so large that we can say that they are
unreasonable. Who can be found to say that such an amount would be in excess of
compensation to his own or his neighbor's wife or sister or daughter? (Hewlett v. Crutchley, 5
Taunt. 276.) We cannot say that it is to the respondent. * * * The judgment of the court below
is affirmed.
In Railway Co. v. Mynott, 83 Ark. 6, 102 S. W. 380, a passenger was beaten by trainmen,
insulted by profane and abusive language, expelled from the train with humiliation before
reaching his destination, and compelled to make his way home in the night. On the part of the
company it was claimed that he was drunk. A verdict for $1,500 was held not excessive.
In Louisville & N. Ry. Co. v. Cottongim (Ky.) 119 S. W. 751, a passenger after tendering
his fare was wrongfully and roughly ejected from the train, and was thrown against the
ground so hard that his leg was badly bruised and swollen, and he was compelled to walk
while so injured a mile and a half to the next town. The court authorized punitive damages,
and it was held that a verdict for $2,500 was not excessive.
In the case of Morrison v. The John L. Stevens, 17 Fed. Cas. 838, the libelant Morrison
paid for passage and the exclusive use of a stateroom for himself and his wife, who was an
invalid, from New York to San Francisco. Relying on the waybill, which was different from
the ticket Morrison had secured, the agent at Panama attempted to place a male passenger in
the stateroom with Morrison and his wife. Morrison objected, and pleaded for the exclusive
use of the room for himself and wife, but she was given a berth in a stateroom with two other
females from Panama to San Francisco, and he was deprived of having the exclusive
company of his wife. Damages in the amount of $2,500 were awarded.
In New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049,
Brockett was a deck passenger on the boat from Albany to New York City, and went to sleep
on a bale of hops on a part of the boat on which passengers were not allowed. He was
assaulted by the watchman, caught by the collar of his coat, and pulled headlong from the
freight, and his shoulder struck a barrel standing near and was dislocated. A verdict for
$5,500 as compensatory damages was sustained.
In Union Mill Co. v. Prenzler, 100 Iowa, 540, 69 N. W. 876, it was held, under a statute
providing for the survival of actions, that the death of the party injured, pending suit brought
by him for wrongful attachment, and the substitution of his administrator, will not prevent the
recovery of exemplary damages which might have been recovered by the decedent himself. A
verdict for $770 actual damages and $5,000 exemplary damages for wrongful attachment of
the property of a debtor who was seriously ill, and the allowance of $1,200 as attorney's fees,
was sustained in favor of the administrator. It is said in the opinion: When the action is
brought by the representative of one deceased, it is to right the wrong done to his estate, and
to take from the defendant that which will make the estate whole. But when the action, as in
this case, is brought by the person injured, who dies during the pendency of the action, the
law attempts to remedy the wrong done to him, and not necessarily to his estate; and the
damages in such case are not only compensatory, but may include exemplary as well.
to his estate; and the damages in such case are not only compensatory, but may include
exemplary as well. * * * The third objection to the allowance of exemplary damages is that
they are and were excessive, and out of all comparison with the actual damages assessed.
Now, while they are, no doubt, large, yet, as the matter of allowing such damages and the
amount thereof rests peculiarly with the jury, we do not think we ought to interfere, except in
extreme cases.
In Chicago R. Co. v. Mochell, 193 Ill. 208, 61 N. E. 1028, 86 Am. St. Rep. 318, a verdict
for $15,000 for injuries, which did not appear to be permanent, to a stenographer, causing
nervous prostration and organic disturbance of the valves of the heart, was reduced to
$10,000.
In actions by the husband for damages for injuries making the wife an invalid, verdicts
were upheld for $10,000 in Cannon v. Brooklyn City R. Co., 14 Misc. Rep. 400, 35 N. Y.
Supp. 1039, and for $12,000 in Gulf Ry. Co. v. Higby (Tex. Civ. App.) 26 S. W. 737.
For injuries to the nervous system weakening the heart, verdicts for $10,000 have been
sustained in Galveston R. Co. v. Worth, 53 Tex. Civ. App. 351, 116 S. W. 365, and Galloway
v. Chicago R. Co., 56 Minn. 346, 57 N. W. 1058, 33 L. R. A. 442, 45 Am. St. Rep. 468.
In Galveston R. Co. v. Volrath, 40 Tex. Civ. App. 46, 89 S. W. 279, a woman was made a
nervous wreck, and to suffer with insomnia, pleurisy, and neuralgia, and a verdict for $14,000
in her favor was upheld.
In the extended note in 16 Ann. Cas., page 8, there is a classification of many actions for
damages with reference to the amounts allowed.
In the federal court for the district of Nevada, in Brown v. Evans (C. C.) 17 Fed. 912, it
was held that in actions where fraud, malice, cruelty, oppression, or wantonness is shown,
exemplary damages may be recovered, and that in this class of action evidence may be given
of defendant's wealth, and the verdict for $8,000 for a brutal assault and battery was
sustained.
The same court in Engler v. W. U. T. Co. (C. C.) 69 Fed. 185, sustained a verdict for
$15,000 for a serious compound comminuted fracture of the bones of an ankle.
compound comminuted fracture of the bones of an ankle.
In Schafer v. Gilmer & Salisbury, 13 Nev. 330, the plaintiff claimed that pneumonia
resulted from the upsetting of the stagecoach on which he was riding, and that the disease of
his lungs had become incurable. It was held to be the duty of the jury to determine the nature
and extent of the injury received by the person injured as a passenger, and a verdict for
$5,000 was sustained.
Among the damage cases in this court verdicts have been sustained for liberal amounts. In
Wedekind v. S. P. Co., 20 Nev. 292, there was an award of $7,500 for a rupture received from
a slight jolt of a car, which threw the plaintiff against the seat.
In Powell v. N. C. O. Ry., 28 Nev. 40, $6,000 was recovered for an injury resulting from a
fall which caused concussion of the brain and atrophic condition of the muscles of the right
arm.
In Murphy v. S. P. Co., 31 Nev. 120, 21 Ann. Cas. 502, a passenger had his leg injured in a
collision by being thrown against the seat in front of him. The evidence was conflicting as to
whether varicose veins resulted from the injury, or from his failure to take proper care of the
injury. The court refused to set aside the verdict for $7,500.
In Burch v. S. P. Co., 32 Nev. 75, Ann. Cas. 1912B, 1166, the plaintiff, while employed by
the company, was struck by a switch and run over by the cars, necessitating amputation of the
left leg three inches above the knee, and three toes of the right foot. A verdict for $18,000
was sustained in the federal court, and one for $20,000 rendered on the trial in the state
district court after the remanding of the case from the federal court was sustained by this
court.
In Sherman v. S. P. Co., 33 Nev. 385, the amount awarded was $15,000 for injuries which
crippled Sherman for life, and for suffering in a temperature twenty degrees below zero at the
time of the derailment of the train.
In Cutler v. Pittsburg Silver Peak M. Co., 34 Nev. 45, the plaintiff, an employee of the
company, suffered the loss of one finger, burns about the hands and shoulder, by coming in
contact with an electric wire negligently maintained.
by coming in contact with an electric wire negligently maintained. His fingers and arms and
shoulder were partially stiffened, but the arm and shoulder were not shown to be permanently
injured. It was held that a verdict for $15,000 should be reduced to $7,500.
14. It is urged that certain statements made by the train agent and the conductor at the time
Forrester's ticket was taken up and he was ejected from the train should have been excluded
as hearsay testimony. The language asserted to have been used by the train agent that we put
them off here, and they sleep in boxcars, is an illustration of these statements. It is said that
he had no authority to make such remarks, that an admission by an agent is not receivable
against his principal unless he has actual or implied authority to make the admission, and that
he may have authority to act, but not to talk. In answer to these contentions it is sufficient to
say that following the decisions in Crandall v. Boutell, 95 Minn. 114, 103 N. W. 890, 5 Ann.
Cas. 122; Louisville & N. R. Co. v. Whitman, 79 Ala. 328; Phila. & Reading R. Co. v. Derby,
14 How. (55 U. S.) 468, 14 L. Ed. 502, and other cases, we have already concluded that a
master is responsible for the negligent conduct of his agents or servants within the scope of
their duty in the furtherance of the master's business, although in excess of express
instructions.
The declarations of the train agent and conductor made at the time of the taking of the
ticket from Forrester and of his ejection from the train were properly admitted as part of the
res gestae. In New Jersey Steamboat Co. v. Brockett, 121 U. S. 649, 7 Sup. Ct. 1043, 30 L.
Ed. 1052, the supreme court said: The defendant objected, at the trial, to the competency of
the statements of the mate. The objection was overruled and an exception taken. It is now
insisted that the defendant is not responsible for the brutal language of its servants, and that
the declarations of the mate of the plaintiff were not competent as evidence against the
carrier. We are of the opinion that these declarations constitute a part of the res gestae. They
were made by one servant of the defendant while assisting another servant in enforcing its
regulation as to deck passengers.
assisting another servant in enforcing its regulation as to deck passengers. They were made
when the watchman and the mate, according to the evidence of the plaintiff, were both in the
very act of violently pushing' him, while in a helpless condition, to that part of the boat
assigned to deck passengers. Plainly, therefore, they had some relation to the inquiry, whether
the enforcement of that regulation was attended with unnecessary or cruel severity. They
accompanied and explained the acts of the defendant's servants out of which directly arose the
injuries inflicted upon the plaintiff. (Vicksburg & M. R. Co. v. O'Brien, 119 U. S. 99, 105, 7
Sup. Ct. 118, 30 L. Ed. 299; Ohio & Miss. R. Co. v. Porter, 92 Ill. 437, 439; Toledo &
Wabash R. Co. v. Goddard, 25 Ind. 190, 191.) See, also, White v. St. Ry. Co., 132 Mo. App.
339, 112 S. W. 279.
Exceptions were taken to the following instructions given at the request of the plaintiff:
No. 5The jury is instructed that the law requires a common carrier of passengers to
exercise the highest practicable degree of care that human judgment and foresight are capable
of, to make its passenger's journey safe. Whoever engages in the business of a common
carrier impliedly promises that its passengers shall have this degree of care.
No. 6The jury is instructed that a common carrier's obligation is to carry its passengers
safely and properly, and to treat them respectfully, and if it intrusts this duty to its servants the
law holds it responsible for the manner in which they execute the trust. The law is well settled
that the carrier is obliged to protect its passengers from violence and insult from whatever
source arising. The carrier is not an insurer of its passenger's safety against every possible
source of danger, but it is bound to use all such reasonable precautions as human judgment
and foresight are capable of to make its passenger's journey safe and comfortable. The carrier
must not only protect its passengers against violence and insults of strangers and
copassengers, but also against the violence and insults of its own servants. If this duty to the
passenger is not performed, if this protection is not furnished, but, on the contrary, the
passenger is assaulted, through the negligence or wilful misconduct of the carrier's
servants, the carrier is necessarily responsible.
to the passenger is not performed, if this protection is not furnished, but, on the contrary, the
passenger is assaulted, through the negligence or wilful misconduct of the carrier's servants,
the carrier is necessarily responsible.
No. 7The jury is instructed that a passenger who has paid his fare to a common carrier,
and has received a ticket properly issued and delivered to him evidencing such payment, is
entitled to have the same honored by the carrier, and that a refusal to honor it by an agent, or
the agents of the carrier, even though honestly mistaken concerning its validity, does not
relieve the carrier from responsibility for such refusal to honor it.
No. 8The jury is instructed that if it believes from the evidence in this case that
improper punch marks, or other mutilations, were made upon the railroad ticket submitted in
evidence, were made by any agent of defendant of his own volition, and without the consent
of the rightful owner thereof, such fact constitutes no defense to defendant for refusing to
honor such ticket.
We find no error in these instructions as applied to the circumstances in this case. They
appear to have been prepared from the opinion of the Supreme Court of Main in the Goddard
case, as approved by the Supreme Court of Montana and the decisions of other courts.
15. No. 5 follows closely the decision of this court in the Sherman case regarding injuries
resulting from accident. We need not determine whether, in regard to the degree of care, it
would be applicable in the case suggested in the brief of a passenger who might be injured by
stumbling over a suit-case in the aisle. We do conclude that a high degree of care ought to be
required before a passenger who is ill and without sufficient means to buy another ticket is
expelled from the train hundreds of miles from his destination under the circumstances shown
in this case.
Nos. 6, 7, and 8 are supported by different cases which we have heretofore considered, and
No. 8 by what we hereafter state regarding defendant's refused instruction No. 11.
In Taillon v. Mears, 29 Mont. 161, 74 Pac. 421, 1 Ann. Cas. 613, it was held that a public
carrier of passengers is bound to exercise the highest degree of care for their protection and
safety, and is responsible for the negligent acts of his servants injuring a passenger, though
such acts are not within the scope of the servant's employment. It is said in the opinion:
From the nature of the business, the actual transportation of passengers is usually intrusted
to servants. These servants, therefore, must be charged with the exercise of the same care
toward the passenger as is charged upon the master under the statutes and the contract of
carriage; and it necessarily follows that any negligence or wrong committed to the passenger
by the servant is a violation of such statute and contract, and if injury results therefrom the
master is liable. The carrier is bound to do certain acts, and cannot excuse himself from
liability upon the ground that he has committed their performance to others. The proper doing
of the acts by another, appointed by him alone, is just as obligatory and binding upon him as
though he undertook to perform them himself. He is bound to discharge his statutory and
contractual obligations to the letter, and, if he commits the performance of these obligations
to another, he does so at his own peril. There is no way in which he can shirk or evade their
performance. If the servant in such cases does what the master could not do without violating
the duties resting upon him, then the master must be held responsible for the acts of the
servant, no matter how wrongful, wilful, or even malicious they may be. Therefore, whenever
the misconduct of the servant causes a breach of the obligation or the violation of the duty of
the master, the master is liable for such acts, if injury follow. (Wood on Master and Servant,
sec. 321; Dillingham v. Russell, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep.
753; Weed v. Panama R. Co., 17 N. Y. 362, 72 Am. Dec. 474; Stewart v. Brooklyn R. Co., 90
N. Y. 588, 43 Am. Rep. 185; Milwaukee Railroad Co. v. Finney, 10 Wis. 388.) This principle
is further illustrated and emphasized by cases where the servant of a carrier commits a
wilful assault upon a passenger.
where the servant of a carrier commits a wilful assault upon a passenger. If such act is a
violation of the contract of carriage, a fortiori mere negligence on the part of the servant is
such a violation. Yet the rule is well established that such an act is a violation of the contract
of carriage, and renders the carrier liable. The courts will not allow the carrier to shield
himself behind the objection that such act was beyond the scope of the servant's employment.
One of the leading cases upon this proposition is that of Goddard v. Grand Trunk R. Co., 57
Me. 202, 2 Am. Rep. 39, where the plaintiff, a passenger on the railroad of defendant, was
insulted and assaulted by the brakeman on the train. The defendants contended that they were
not liable because the brakeman's assault upon the plaintiff was wilful and malicious, and was
not directly or impliedly authorized by them. Judge Walton says: The fallacy of this
argument, when applied to the common carrier of passengers, consists in not discriminating
between the obligation which he is under to his passenger and the duty which he owes a
stranger. It may be true that, if the carrier's servant wilfully and maliciously assaults a
stranger, the master will not be liable, but the law is otherwise when he assaults one of his
master's passengers. The carrier's obligation is to carry his passenger safely and properly, and
to treat him respectfully; and, if he instrusts the performance of this duty to his servants, the
law holds him responsible for the manner in which they execute the trust. The law seems to
be now well settled that the carrier is obliged to protect his passenger from violence and
insult, from whatever source arising. He is not regarded as an insurer of his passenger's safety
against every possible source of danger, but he is bound to use all such reasonable
precautions as human judgment and foresight are capable of to make his passenger's journey
safe and comfortable. He must not only protect his passenger against the violence and insults
of strangers and copassengers, but a fortiori against the violence and insults of his own
servants.
against the violence and insults of his own servants. If this duty to the passenger is not
performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted
and insulted through the negligence or wilful misconduct of the carrier's servant, the carrier is
necessarily responsible. * * * The grounds of the carrier's liability may be briefly stated thus:
The law requires the common carrier of passengers to exercise the highest degree of care that
human judgment and foresight are capable of to make his passenger's journey safe. Whoever
engages in the business impliedly promises that his passenger shall have this degree of care.
In other words, the carrier is conclusively presumed to have promised to do what, under the
circumstances, the law requires him to do. We say conclusively presumed, for the law will
not allow the carrier, by notice or special contract even, to deprive the passenger of this
degree of care. If the passenger does not have such care, but, on the contrary, is unlawfully
assaulted and insulted by one of the very persons to whom his conveyance is intrusted, the
carrier's implied promise is broken, and his legal duty is left unperformed, and he is
necessarily responsible to the passenger for the damages he thereby sustains. * * * As to them
the contract of carriage imposes upon the carrier the duty, not only to carry safely and
expeditiously between the termini of the route embraced in the contract, but also the duty to
conserve by every reasonable means their convenience, comfort, and peace throughout the
journey. And this same duty is, of course, upon the carrier's agents; they are under the duty of
protecting each passenger from avoidable discomfort and from insult, from indignities, and
from personal violence. And it is not material whence the disturbance of the passenger's
peace and comfort and personal security or safety comes or is threatened. * * * It is wholly
inapt and erroneous to apply the doctrine of scope of employment, as ordinarily understood,
to such an act. Its only relation to the scope of the servant's employment rests upon the
disregard and violation of a duty imposed by the employment.
the servant's employment rests upon the disregard and violation of a duty imposed by the
employment. This is, beyond question, we think, the true doctrine on principle; and while, as
indicated above, there are adjudications against it, the great weight of authority supports it.' In
addition to the above-cited authorities, further reference is hereby made to 4 Elliott on
Railroads, sec. 1638; 3 Thompson on Negligence; Richmond R. Co. v. Jefferson, 89 Ga. 554,
16 S. E. 69, 17 L. R. A. 571, 32 Am. St. Rep. 87, and note 90 to 100; Stranhan Bros.
Catering Co. v. Coit, 55 Ohio St. 398, 45 N. E. 634, 4 L. R. A. n.s. 506; Stokes v. Saltonstall,
13 Pet. 181, 10 L. Ed. 115; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct.
1039, 30 L. Ed. 1049; Kellow v. Central Iowa R. Co., 68 Iowa 470, 23 N. W. 740, 27 N. W.
466, 56 Am. Rep. 858; Thompson v. Yazoo R. Co., 47 La. Ann. 1107, 17 South. 503; Perez v.
New Orleans R. Co., 47 La. Ann. 1391, 17 South 869; Gallagher v. Bowie, 66 Tex. 265, 17
S. W. 407; Anderson v. Scholey, 114 Ind. 553, 17 N. E. 125; Farish v. Reigle, 11 Grat. 697,
62 Am. Dec. 666; Stockton v. Frey, 4 Gill, 406, 45 Am. Dec. 138; Sherley v. Billings, 8 Bush,
147, 8 Am. Rep. 451; Bayley v. Manchester R. Co., L. R. 7 C. P. 415; Tuller v. Talbot, 23 Ill.
357, 76 Am. Dec. 695; Derwort v. Loomer, 21 Conn. 245; Roberts v. Johnson, 58 N. Y. 613;
Frink v. Coe, 4 G. Greene, 555, 61 Am. Dec. 141; Gillingham v. Ohio River R. Co., 35 W.
Va. 588, 14 S. E. 243, 14 L. R. A. 798, 29 Am. St. Rep. 827; Chicago R. Co. v. Flexman, 103
Ill. 546, 42 Am. Rep. 33; Lakin v. Oregon Pac. R. Co., 15 Or. 220, 15 Pac. 641; Penn. R. Co.
v. Vandiver, 42 Pa. 365, 82 Am. Dec. 520; Dwinelle v. New York Cent. R. Co., 120 N. Y.
117, 24 N. E. 319, 8 L. R. A. 224, 17 Am. St. Rep. 611; White v. Norfolk R. Co., 115 N. C.
631, 20 S. E. 191, 44 Am. St. Rep. 489; Houston R. Co. v. Washington, Tex. Civ. App. 1895,
30 S. W. 719; Haver v. Central R. Co., 62 N. J. Law, 282, 41 Atl. 916, 43 L. R. A. 84, 72
Am. St. Rep. 647.
16. It is said that the prejudicial effect of instruction No. 7 is apparent when considered
with the ruling of the court that the defendant is liable for punitive damages.
court that the defendant is liable for punitive damages. In this regard it should be observed
that the instruction does not mention punitive damages, and that the court, quite favorably to
the defendant, in its instruction No. 2, told the jury that if it believed from the evidence that
Forrester was wrongfully ejected from the train, but that such ejection was accomplished in
good faith by the defendant's agents, and without malice or unnecessary force, and without
any wilful and wanton disregard for Forrester's rights, the company was not liable beyond the
actual damage sustained by Forrester for the price of the ticket, the lost time resulting from
the expulsion, and the actual expenses incurred by him in the employment of physicians and
nurses and for hospital indebtedness.
17. If there were any statements in these instructions regarding the mutilation of the ticket
which were not law, still their presentation to the jury would be error without prejudice. From
the evidence it appears that the train agent claimed to take up the ticket because Forrester was
not the purchaser, notwithstanding he complied with different requests to show that he was
the purchaser, and the signatures he made for the train agent were sufficient to identify him as
being the person that originally subscribed his name to the ticket as the purchaser. The ticket
contains extra L punch marks from being doubled over and punched twice instead of once
when its limitation was punched. The date of the sale, Grand Central Depot Company,
Houston, Texas, Sep. 22, 1907, is clearly stamped in four places on the back of the ticket,
and its limitation, September 27, 1907, is clearly indicated by three punch marks over the
figures 1907, the letters Sep. and the figures 27. The other scattering L punch marks,
not directly over dates, do not possibly indicate any earlier limitation after the sale of the
ticket or that it had expired at the time it was taken up. If two dates of limitation had been
punched on the ticket, one of which had expired at the time Forrester was expelled from the
train, we can see how a train agent, while acting with due care and in good faith, might have
taken up the ticket if the punch marks showing that it had expired were not satisfactorily
explained, so that the company would be relieved from punitive damages.
good faith, might have taken up the ticket if the punch marks showing that it had expired
were not satisfactorily explained, so that the company would be relieved from punitive
damages. But scattering or extra punch marks on the ticket, none of which show any date for
its expiration after its sale which had expired at the time it was taken up, cannot be an excuse
for the confiscation of the ticket and expulsion of the passenger, even if, as contended by the
appellant, the law required only ordinary care to be exercised by the company.
18. Consequently, in this regard, if plaintiff's instruction No. 5, requiring extraordinary
care, did not state the law applicable to this case, its giving was harmless error, for the
defendant would not have been less liable for rejecting the ticket because it contained extra
punch marks if the law and instruction required only ordinary care.
19. The ticket provides that if limited as to time it is not good for passage unless used to
destination before midnight of the date canceled by the L punch in the margin. As there was
no such date after the sale of the ticket punched, which had arrived at the time of Forrester's
expulsion from the car, the company was not warranted under this provision in refusing to
carry him. The ticket also provides: 6th. This ticket will be void if it shows any alterations or
erasures, or if more than one date is canceled, and if more than one station is designated as
the terminal point, it will be honored only to that station, indicated by punch marks nearest
the starting point of that coupon.
Passengers are required to observe all the reasonable regulations made by a public carrier,
but such carrier is not authorized to eject a passenger, and cannot relieve itself of liability for
failure to keep its contract of carriage because one of its agents may accidentally place extra
punch marks upon the ticket, as in this case, for which the passenger is in no way responsible.
We have already referred to decisions sustaining this conclusion, and it is apparent that a
railroad company, or any party to any contract, cannot justify a breach of its agreement by
the negligent or wilful act of its agent when the other party to the contract is without
fault.
to any contract, cannot justify a breach of its agreement by the negligent or wilful act of its
agent when the other party to the contract is without fault.
In McGinnis v. Mo. Pac. R. Co., 21 Mo. App. 399, it was held that one who purchases a
ticket of the railroad company's agent at its office has a right to rely upon the agent to give
him a ticket expressive of the contract, including the time for carriage. This decision is in
consonance with the one in Calloway v. Mellett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St.
Rep. 238, and Illinois Cent. R. Co. v. Gortskov, to which we have heretofore referred, and
with the opinion of the United States Circuit Court of Appeals, by Judge Hawley, in N. P. R.
Co. v. Pauson, 70 Fed. 585, 17 C. C. A. 287, 30 L. R. A. 730. This and other cases are cited
with approval in Scofield v. Pennsylvania Co., 112 Fed. 855, 50 C. C. A. 553, 56 L. R. A.
224, and Pennsylvania Co. v. Lenhart, 120 Fed. 61, 56 C. C. A. 467.
20. Exception was taken to the refusal of the court to give defendant's instructions Nos. 3
and 11, which are somewhat similar. The following, No. 11, included substantially the
objection involved in regard to No. 3, and may be considered as the antipode of plaintiff's
instructions Nos. 7 and 8: The jury are instructed that the face of the ticket is, as between the
conductor or train agent and the passenger, conclusive evidence of the latter's right to
transportation, and, where the ticket is defective or invalid, even through the fault of an agent
of the carrier the conductor or train agent cannot be expected to listen to the passenger's
account of the transaction, but the passenger should either pay his fare or leave the train, and
if the invalidity or defect of the ticket was due to the fault of some agent of the company, the
passenger would be entitled to bring an action against the company for breach of contract,
but, should he attempt to retain his place in the car without paying fare, and be expelled by
the conductor or train agent, he can recover no damages for the expulsion. Hence, if the jury
believe, in the case at bar, that at the time Dick Forrester presented his ticket to the
defendant's train agent, such ticket was defective by reason of having too many dates
punched out, and the jury further believe that the defective condition of such ticket was
due to a mistake or fault, on the part of some agent of the company, other than the agent
to whom such ticket was presented for transportation, and the agent to whom such ticket
was presented for transportation refused to honor the same because of its defect, then I
instruct you that it was the duty of Dick Forrester to either pay his fare or leave the train,
and that neither he nor the plaintiff in this action can recover any damage because the
said Dick Forrester was ejected from defendant's train as a result of his refusal to pay his
fare or leave the train of his own volition."
case at bar, that at the time Dick Forrester presented his ticket to the defendant's train agent,
such ticket was defective by reason of having too many dates punched out, and the jury
further believe that the defective condition of such ticket was due to a mistake or fault, on the
part of some agent of the company, other than the agent to whom such ticket was presented
for transportation, and the agent to whom such ticket was presented for transportation refused
to honor the same because of its defect, then I instruct you that it was the duty of Dick
Forrester to either pay his fare or leave the train, and that neither he nor the plaintiff in this
action can recover any damage because the said Dick Forrester was ejected from defendant's
train as a result of his refusal to pay his fare or leave the train of his own volition.
If it be conceded that ordinarily, as contended by the appellant, the conductor has a right to
treat the ticket as conclusive, and that when there is any doubt the passenger should make a
full explanation of how he came by the ticket, it is apparent from the evidence that Forrester,
in addition to making signatures which were sufficient, duly endeavored to show that he was
the original purchaser of the ticket, and as there were no punch marks or anything on the
ticket showing that it had expired, these instructions were inapplicable to the facts in the case,
even if the law were as appellant contends, for the ticket, not having expired, taken for its
face value with the extra punch marks, did not warrant Forrester's expulsion from the train.
21. There was nothing in the circumstances which required him to pay a second time for
his passage in order to have the right to be carried to his destination. A condition printed upon
a ticket that, in case of controversy with the conductor and his refusal to accept it, the
passenger agrees to pay the regular fare and apply for reimbursement at the office of the
company, has been held to be unreasonable and void. (O'Rourke v. Street Ry. Co., 103 Tenn.
124, 52 S. W. 872, 46 L. R. A. 614, 76 Am. St. Rep.
639; Cherry v. R. Co., 191 Mo. 489, 90 S. W. 381, 2 L. R. A. n.s. 695, 109 Am. St. Rep.
830.)
The judgment and the order of the district court are affirmed.
McCarran, J., having become a member of the court after the argument and submission of
the case, did not participate in the opinion.
On Petition for Rehearing
By the Court, Talbot, C. J.:
After examination of the extended petition for rehearing and the answer thereto, which
cover the points previously presented by briefs and argument, we see no reason for changing
the decision, which was reached only after mature deliberation.
It is urged that the importance of the questions involved justifies a rehearing before the full
court; but, as the present members of the court who heard the argument and approved the
opinion are satisfied with the conclusion reached, after a careful consideration of the petition
for rehearing it seems to be unnecessary to further delay the case and put counsel to the
trouble incident to a rehearing.
The writer of the opinion frankly confesses error in referring to Montello as being a place
which is little more than a sidetrack. This was true when he passed there at different times
years ago, but it seems the place is now considerably more than a sidetrack, and is a small
town. This error is not regarded as being of such consequence as to justify a change in the
judgment.
The petition for rehearing is denied.
____________
36 Nev. 319, 319 (1913)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
OCTOBER TERM, 1913
____________
36 Nev. 319, 319 (1913) Tax Commission v. Douglas County
[No. 2091]
NEVADA TAX COMMISSION, Petitioner, v. J. H. CAMPBELL, LEO SPRINGMEYER,
and H. W. SETTLEMEYER, the Board of County Commissioners and ex officio Board of
Equalization of Douglas County, and H. C. JEPSEN, County Clerk and ex officio Clerk of
the Board of County Commissioners and County Board of Equalization, and ex officio Tax
Receiver of Douglas County, Respondents.
1. TaxationEqualizationPowers of State Boards.
The act of March 20, 1913 (Stats. 1913, c. 134), sec. 3, requires the state tax commission to hold a
regular session on the second Monday in October, at which session it shall equalize property valuations as
provided in section 6. Section 4 provides that the commission shall have power to exercise general
supervision and control over the entire revenue system of the state, in pursuance whereof it shall possess
special power, among others, to require assessors, sheriffs, as ex officio collectors of licenses, and the
clerks of county boards of equalization, to furnish such information in relation to assessments, licenses or
the equalization of valuations as it may demand. Section 6 provides that at its regular session in October it
shall review the tax rolls of the various counties, and may raise or lower, for the purpose of state
equalization, the valuations therein. Held, that while there is no express provision requiring revenue
officers of the several counties to deliver or transmit to the commission the assessment roll,
where the commission determines that, for the performance of its duties, it is
convenient or necessary to have such rolls and makes demand therefor, it is the duty
of the county revenue officers to comply with such demand.
deliver or transmit to the commission the assessment roll, where the commission determines that, for the
performance of its duties, it is convenient or necessary to have such rolls and makes demand therefor, it is
the duty of the county revenue officers to comply with such demand.
2. TaxationDutiesLegislative Regulations.
The act of March 20, 1913 (Stats. 1913, c. 134), sec. 4, authorizing the state tax commission to exercise
general supervision and control over the entire revenue system of the state, does not trespass upon any
inherent right of county revenue officers; their duties being within the control of the legislature.
3. MandamusPetitionSufficiency.
Where, in a mandamus proceeding by the state tax commission to compel county revenue officers to
deliver or transmit to the commission the assessment rolls and tax lists of the county, the petition did not
allege a demand upon the respondents, it would not be presumed that such a lawful demand would be
refused.
4. MandamusDefensesPremature Application.
Mandamus would not issue to compel county revenue officers to transmit the county assessment rolls and
tax lists to the state tax commission for use at its session, commencing on the second Monday in October,
until such time arrived, since such revenue officers were not in default until that time, and mandamus will
not issue in anticipation of an officer's failure to perform a duty.
Original proceeding in mandamus by the Nevada Tax Commission against the Board of
County Commissioners, and as the ex officio board of Equalization, the Clerk of said boards
and the ex officio Tax Receiver, of Douglas County. Premptory writ denied.
Geo. B. Thatcher, Attorney-General, for Petitioner.
F. E. Brockliss, District Attorney of Douglas County, and Wm. Woodburn, for
Respondents.
This is an original proceeding in mandamus to require respondents to forward to the
petitioner, the Nevada Tax Commission, at Carson City, the tax and assessment roll of
Douglas County, for the year 1913.
The petition alleges that respondents have in their custody, control, and possession the said
county tax and assessment roll, and that under and by virtue of an act of the legislature
entitled "An act in relation to the public revenues, creating the Nevada Tax Commission,
defining its powers and duties, and matters relating thereto, and repealing all acts and
parts of acts in conflict herewith," approved March 20, 1913 {Stats.
assessment roll, and that under and by virtue of an act of the legislature entitled An act in
relation to the public revenues, creating the Nevada Tax Commission, defining its powers and
duties, and matters relating thereto, and repealing all acts and parts of acts in conflict
herewith, approved March 20, 1913 (Stats. 1913, p. 175), it is the duty of respondents to
forward the said tax and assessment roll to the said Nevada Tax Commission, at its office at
Carson City, as soon as said tax and assessment roll has been corrected by the county board of
equalization, and not later than the second Monday in October, 1913; that respondents have
completed and made all corrections required by law as such county board of equalization; that
respondents as custodian of such tax and assessment roll, refuse and neglect, and will
continue to refuse and neglect, to forward such tax and assessment roll to said Nevada Tax
Commission before the regular session of said commission beginning on the second Monday
in October, 1913, or at any other time and place as required by law; that unless the petitioner
shall have before it at the said time and place the said tax and assessment roll, it will be
impossible for it to review the tax and assessment rolls of the various counties of the state,
and to perform its duties as required by law. In response to the alternative writ issued and
served in this proceeding, respondents have answered, admitting certain allegations of the
petition, and, further answering, they deny that the said Nevada Tax Commission has any
right to compel respondents, or either of them, to forward to the office of petitioner the said
tax and assessment roll as prayed for in the petition, but that when ordered by this honorable
court so to do, they are ready and willing to forward the same to said commission; deny that it
will be impossible for petitioner to perform its duties as required by law until said tax and
assessment roll shall be before the said commission at its office in Carson City, for the reason
that all necessary information can be obtained at the office of the county clerk at the
county-seat of Douglas County.
1. By the act of March 20, 1913, supra, it is provided in section 3 that said state tax
commission shall keep its office at Carson City, and that it shall hold annually two regular
sessions, and that one regular session shall be held annually beginning on the second
Monday in October of each year, at the same hour (10 o'clock a.m.), and continue from day to
day until the business is completed, at which said commission shall equalize property
valuations in the state as provided in section 6 of this act.
Section 4 of the act, among other things, provides: Said Nevada Tax Commission,
hereinafter and heretofore referred to as said commission,' is hereby empowered to exercise
general supervision and control over the entire revenue system of the state; and in pursuance
whereof shall possess the following special powers: FirstTo confer with, advise and direct
assessors, sheriffs (as ex officio collectors of licenses), and the county boards of equalization,
as to their duties, and to direct what proceedings, actions or prosecutions shall be instituted to
support the law. * * * ThirdTo have final powers (other than the courts) to equalize
property valuations as provided in section 6 of this act. * * * FifthTo require assessors,
sheriffs (as ex officio collectors of licenses) and the clerks of county boards of equalization to
furnish such information in relation to assessments, licenses or the equalization of property
valuations as said commission may demand. * * * The enumeration of the said foregoing * *
* special powers shall not be construed as excluding the exercise of any needful and proper
power and authority of said commission, in the exercise of its general supervision and control
over the entire revenue system of the state not in conflict with law.
Section 6 of said act provides: At the regular session beginning on the second Monday in
October of each year, said commission shall review the tax rolls of the various counties as
corrected by county boards of equalization, and may raise or lower, for the purpose of state
equalization, the valuations therein as established by county assessors and county boards
of equalization, on any class of property, or piece of property, in whole or in part in any
county; and on certification thereof to the auditor of any county wherein such property is
assessed, said auditor shall make the changes required in the assessment roll prior to the
delivery of his completed tax roll to the ex officio tax receiver."
equalization, the valuations therein as established by county assessors and county boards of
equalization, on any class of property, or piece of property, in whole or in part in any county;
and on certification thereof to the auditor of any county wherein such property is assessed,
said auditor shall make the changes required in the assessment roll prior to the delivery of his
completed tax roll to the ex officio tax receiver.
The state tax commission, by the provisions of section 4, quoted supra, is empowered to
exercise general supervision and control over the entire revenue system of the state. It may
require all subordinate revenue officers to furnish such information relative to assessments,
licenses, and the equalization of property valuations as such commission may demand. In
order to perform all duties imposed on the commission by the provisions of section 6, supra,
it is a matter of the greatest convenience, if not an absolute necessity, that the commission
have before it the assessment and tax rolls of the several counties of the state. While there is
no specific provision in the statute, in so many words, specifying the duties of the revenue
officers of the several counties, in whose custody the assessment roll may be, to deliver or
transmit to the tax commission for the purpose of equalizing the same for state purposes,
there is a duty imposed upon such revenue officers to furnish such information in relation to
assessments or the equalization of property valuations as such commission may demand. If
the commission determine that it is convenient or necessary to have the assessment rolls
before it for the purpose of performing their duties as prescribed in section 6 of the act, and
make demand therefor, we think there can be no question but that it becomes the duty of the
revenue officers, upon whom such demand is made, to comply therewith.
2. Certainly the legislature did not intend to give the commission the power to demand
action upon the part of revenue officers consistent with carrying out the powers and functions
of the commission without intending to impose the corresponding duty upon such officers
to obey such demand.
impose the corresponding duty upon such officers to obey such demand. County governments
are a part of the state government, and the revenue systems of the state and of the several
counties are inseparably interwoven. The state pays a portion of the salaries of certain county
officers who have to do with the assessment and collection of state and county taxes. The
duties of such officers are within the control of the legislature, and when it has given to a
state commission the power to exercise general supervision and control over the entire
revenue system of the state, it has not trespassed upon any inherent right of such county
officers, and when a duty is imposed upon such commission, which duty, to be carried out,
requires some act upon the part of some county revenue officers, such as the delivery to or
transmission of the assessment rolls for use at the meeting at which it is made the specific
duty of the commission to review the rolls, or certified copies of all or a portion thereof, for
use then, or at any other time, and demand upon such officer is made therefor, we think an
official duty is imposed by law for such official to comply with the lawful demands of such
state commission.
3. We need not now consider whether a duty is imposed by law upon the respondents in
the absence of any demand therefor upon the part of petitioner to deliver or transmit to the
petitioner the said assessment rolls and tax lists prior to the second Monday in October of this
year. There is no specific allegation in the petition that any demand has been made upon the
respondents to deliver to or transmit said assessment roll or tax list, and it is not to be
presumed that such a lawful demand will be refused.
4. Conceding, for the purposes of this case, that the allegation that respondents have
refused to deliver the assessment roll is equivalent to an allegation that demand therefor has
been made, nevertheless it is well settled that mandamus will not issue in anticipation that an
officer will not perform his duty. Respondents could not be in default prior to October 13,
1913. It would have been sufficient to have denied the issuance of the peremptory writ
upon this ground alone; but, as the question presented is of such great public importance,
and as counsel upon neither side has sought to avoid a decision upon merits, we have
deemed it advisable to determine the same.
have been sufficient to have denied the issuance of the peremptory writ upon this ground
alone; but, as the question presented is of such great public importance, and as counsel upon
neither side has sought to avoid a decision upon merits, we have deemed it advisable to
determine the same.
A peremptory writ will at this time be denied, with privilege of petitioner to renew
application for the same at a future time, if it is so advised.
____________
36 Nev. 325, 325 (1913) Roberts v. Ingalls
[No. 2072]
JOHN L. ROBERTS, Appellant, v. W. A. INGALLS,
Sheriff of Esmeralda County, Respondent.
1. Sheriffs and ConstablesFees Upon ExecutionRight to Fee.
Under Comp. Laws, sec. 2472, fixing the sheriff's commission for receiving and paying over money on
execution where lands or personal property have been sold at three-fourths of 1 per cent, on all sums over
$1,500, and allowing only one-half per cent for receiving and paying over money on execution without
levy, a sheriff who sells land under execution is entitled to his commission, even if it is bought in by the
judgment creditor for the amount of the judgment.
2. Sheriffs and ConstablesFeesExecution FeesPersons Liable.
Although Comp. Laws, sec. 2472, fixing the fees of sheriffs, provides that the fees shall be collected from
the defendant by virtue of the execution, the sheriff is not required to look to the judgment debtor
personally, but rather to property held under execution, and so can make the payment of his fees a
condition precedent to the execution of a certificate of sale, even though the property is bought in by the
judgment creditor for the amount of the judgment.
3. ExecutionRedemptionsCharges.
Where property sold at execution was bought in by the judgment creditor, the amount of the sheriff's fees
which had to be paid by the creditor, together with the amount of the judgment, becomes a charge against
the redemptioner.
Judge.
Petition by John L. Roberts for writ of mandamus against W. A. Ingalls, Sheriff. From a
judgment sustaining a demurrer to the petition, plaintiff appeals. Affirmed.
Milton M. Detch, for Appellant.
M. A. Diskin, for Respondent.
In this case the plaintiff secured a judgment in the district court of the Seventh judicial
district against the Nevada Exploration Company, for the sum of $36,488.81, and after the
entry and filing of said judgment an alias execution was issued out of that court and delivered
to the defendant, W. A. Ingalls, sheriff of said county, with instructions from plaintiff herein
to execute the same by levying upon and selling certain real estate, the property of the said
Nevada Exploration Company.
1. As appears from the record all the preliminary steps, as prescribed by statute, were by
the said sheriff performed, and pursuant to notice, duly given and published, the property of
said Nevada Exploration Company was by the sheriff offered for sale in front of the
courthouse of the county of Esmeralda. At this sale the judgment creditor, appellant herein,
bid for the property the sum of $36,488.81, the same being the highest and best bid offered at
said sale. Pursuant to said bid, on the part of the appellant, the property levied upon was
struck off to appellant and the amount credited upon the judgment. Subsequent to said sale
appellant made demand upon the sheriff for the certificate of sale to the said property. The
respondent refused to deliver said certificate of sale until the appellant paid to him the sum of
$72.40 for advertising, levy of execution, posting of notice on said property, and for selling
and offering for sale the property, and the sum of $292.42, commission for selling the said
property.
Appellant applied to the district court of the Seventh judicial district for a writ of
mandamus to compel said respondent, as sheriff of Esmeralda County, to deliver the
certificate of sale. To the petition for a writ of mandamus the respondent demurred upon the
ground that the facts stated in said petition were not sufficient to warrant the issuance of a
writ of mandate against the defendant, and, the matter being submitted to the court, judgment
was entered sustaining the demurrer of defendant, and from said judgment appeal is taken to
this court.
The statute applicable in this case and pertinent to the subject-matter (Cutting's
Compilation, sec. 2472) is as follows: * * * For commission for receiving and paying over
money on execution or process, where lands or personal property have been levied on,
advertised and sold, on the first five hundred dollars, three per cent; not exceeding one
thousand dollars, but over five hundred, one and one-half per cent; and on all sums over
fifteen hundred dollars, three-fourths of one per cent; for commissions for receiving and
paying over money on execution without levy, or when the lands or goods levied on shall not
be sold, one-half of one per cent. The fees herein allowed for the levy of an execution, for
advertising and for making and collecting money on execution, shall be collected from the
defendant by virtue of such execution, in the same manner as the same may therein be
directed to be made.
Statutes similar in verbiage to ours have been construed by many of the courts of last
resort, and counsel for the appellant rely upon the case of Peery v. Wright, decided by the
Supreme Court of Utah, 13 Utah, 480, 45 Pac. 46, wherein the court, in construing a statute
identical to ours, followed the rule laid down in the cases of Coleman v. Ross, 14 Or. 349, 12
Pac. 648; State v. Prince, 9 Wash. 107, 37 Pac. 291, and State v. Pugh, 9 Wash. 694, 38 Pac.
79.
In the case of Peery v. Wright, supra, the court said: Obviously, the legislature intended
the commissions provided for in the statute as compensation to the officer for the risk and
responsibility of handling the money, and not for his services in crying the sale."
and not for his services in crying the sale. In that case the court decided that where the
plaintiff, at a sale of execution, bid in the property and directed the amount of his bid to be
credited on the execution and no money in fact passed, the sheriff was not entitled to
commission.
In view of the fact that the opinion in the Peery-Wright case, supra, followed the reasoning
of the cases of Coleman v. Ross, 14 Or. 349, 12 Pac. 648, and State v. Prince, 9 Wash. 107,
37 Pac. 291, and those opinions having been rendered upon a statute containing a different
provision to that of ours, we do not deem it advisable to follow the rule laid down in that
case.
In the cases of Coleman v. Ross, supra, State v. Prince, supra, and State v. Pugh, supra,
the courts of the respective jurisdictions were construing a statute, the language and meaning
of which were different to ours.
The statute of Oregon, construed in the Coleman-Ross case, supra, reads as follows: * * *
For all sums of money actually made on any process and returned to the clerk. * * * (Session
Laws of Oregon 1885, p. 121.)
The statute of Washington, construed in the cases of State v. Prince, and State v. Pugh,
reads as follows: * * * Percentage on all moneys actually made and paid to the sheriff on
execution or order of sale. * * * (Session Laws of Washington 1893, p. 423.)
It will be observed that the statute of Nevada in this respect is couched in the following
words: * * * For commission for receiving and paying over money on execution. * * *
(Cutting's Compiled Laws, sec. 2472.)
In a very early case decided by the Supreme Court of New York (Hildreth v. Ellice, 1
Caines, 192) construing an act regulating sheriff's fees for serving an execution, the court
stated, in substance, that where the sheriff proceeds to sell, he is entitled to his poundage only
on the sum actually raised. And whenever the plaintiff interposes, and a compromise takes
place, he is entitled to poundage on the sum realized by the plaintiff, or that might have been
collected from the property levied on. In that case the court said: To say that a sheriff should
be entitled to no poundage where a compromise takes place would be manifestly unjust.
be entitled to no poundage where a compromise takes place would be manifestly unjust. He
may have incurred all the risk and responsibility for the safe-keeping of the property, and it
will then be in the power of the parties to deprive him of compensation for it. It may be said
there is no risk where the levy is on land; that may be true, but it is observable that perhaps in
nine-tenths of the cases, the money on executions is raised out of personal property, and the
act makes no distinction. Suppose on the very day of sale, and before the vendue commences,
the defendant should pay the sheriff the money, would he not be entitled to his poundage?
And I can see no material distinction whether the money be paid to the plaintiff or the sheriff
in that stage of the business.
The case of Hildreth v. Ellice, supra, followed the reasoning in the case of Alchin v. Wells,
5 Term Rep. 471, where a construction was placed upon an English statute (St. 29 Eliz. c. 4)
prescribing the sheriffs' fees for poundage. This earlier case construed the statute above cited
on the theory that the fees paid to a sheriff were to compensate him for the responsibility
incurred by him in his act in taking and safe-keeping the property.
In a case very analogous to the one at bar the Supreme Court of Tennessee, passing upon a
statute somewhat similar to that of ours, said: No provision is expressly made by the statute
for his (the sheriff's) compensation, where the land seized is sold at public sale, and bid in by
the execution creditor. The execution in this case was satisfied by the sale, and the duty
imposed by law upon the sheriff discharged, and it would be anomalous, indeed, if no
compensation could be allowed him for his performance. No money,' in the language of the
statute, was collected; but the land sold was voluntarily accepted by the creditor in lieu of the
money, and thereby, under our practice, the execution satisfied. The sheriff did all he was
commanded to do by law. He could not do more under his process. Every duty and
responsibility enjoined by it were assumed and faithfully discharged; and we think, by a fair
and just interpretation of the statute, he is entitled to compensation for his services.
discharged; and we think, by a fair and just interpretation of the statute, he is entitled to
compensation for his services. The execution creditor was not bound to bid in the land. He
did it at his own option, and, it is to be presumed, for his own interest. Strictly, the sheriff
might have demanded of him, as of any other purchaser, the payment of his bid, at which the
land was struck off, and returned it with the fieri facias, into court, when it would have been
paid over by the clerk to the judgment creditor. But such has not been our practice, and we
have no disposition to disturb it. It has been sanctioned by long usage, and it is doubtlessly
often convenient and highly beneficial to both parties. (Arnold v. Dinsmore, 3 Cold. 235.)
It will be observed that the statute governing sheriff's fees (section 2472, Cutting's
Compiled Laws) makes an especial provision for a much less fee to be paid to the sheriff for
commission for receiving and paying over money on execution without levy, or when the
land or goods levied shall not be sold. In the case at bar if a compromise or settlement had
been effected and no levy had been made by the sheriff, and no sale had been carried out by
him, he would have been entitled to a much less fee as prescribed by statute; it being therein
stated that under such conditions the sheriff is entitled to only one-half of one per cent. The
meaning and intention of the statute applicable to sheriff's fees, and the reason for making
fees in such cases, may well be traced back to that purpose construed in the ancient statutes,
wherein the question of the risk and responsibility for the poundage and safe-keeping of the
property was the paramount thought, and it was the evident intendment of the statute to make
a fee payable to the sheriff commensurate with his risk and obligation in a case where, upon
levy duly made, he carried out and sold the property levied upon; but, on the other hand, in a
case where the sheriff was relieved of the risk and responsibility of levy and sale by a
compromise or settlement prior thereto, a much less fee was allowed, but one that would
compensate him for the minor services performed.
less fee was allowed, but one that would compensate him for the minor services performed.
In other words, the discrimination in the fees paid to the sheriff is a recognition of the extent
of his services, and is commensurate to the liability incurred by him in carrying out the
several steps necessary to the completion of the levy and sale.
It will be observed from the terms of the statute that the sheriff is allowed fees for
receiving and paying over money on execution or process, where he conducts the sale of
property levied upon, and he is also allowed commission for receiving and paying over
money on execution where no levy is made by him, and where no sale is conducted. In both
instances enumerated by the code he is entitled to commission for receiving and paying over
money on execution.
There is no provision made in the statute (Cutting's Compilation) for a different
commission, or for a modification or elimination of commissions in a case where, upon sale
conducted by the sheriff upon execution and levy, the property is struck off to the judgment
creditor. Under the strict interpretation of the statute the purchaser at such a sale must pay
over to the sheriff on demand the purchase price. There is no provision made whereby the
judgment creditor bidding in the property, and having the same struck off to him by reason of
the fact that his bid is the highest and best, stands in any different position from any other
purchaser under like conditions.
In the case of Sweeney v. Hawthorne, 6 Nev. 129, this court, speaking through Lewis, C.
J., said: But counsel argue that where, as here, the judgment creditor is the purchaser, no
money need be paid, the bid itself authorizing the officer to return the execution satisfied.
This, however, may not always be so, for that officer himself often has a claim upon a
portion, if not all of the sum bid, for his fees. When he has such claim, can it be said that he
cannot demand the payment of money, at least to the extent of his costs? Certainly not; and it
is not unfrequently the case that the costs are equal to the sum bid.
unfrequently the case that the costs are equal to the sum bid. Cannot he in such case demand
the entire sum, and, if refused, proceed to resell? It is clear he may.
From this it will be seen that this court has long since construed that a judgment creditor,
making the successful bid at an execution sale, stands in the same position as that of any
other purchaser. It is true that it has been almost a universal practice, not only in this state, but
in others, that if the property be struck off to the judgment creditor in order to avoid circuity
of action, he is not required to go through the ceremony of paying the money to the sheriff
and receiving it back from the clerk. However universal this practice may be, the judgment
creditor in such a case, occupying as he does the same position as any other purchaser, is
presumed to be a bidder and purchaser in good faith, and the amount that he liquidates by
reason of his purchase under execution and sale is in fact the amount received by the sheriff
by reason of said sale, although the money may not actually change hands. The judgment
creditor has by the levy and sale acquired the thing which, as between him and the judgment
debtor, is money received and paid over on process, and it must be likewise regarded as
between the judgment creditor and the sheriff who made the sale. In our judgment, his fee is a
claim against the sum bid, and attaches thereto as soon as the property is truck off to the
purchaser.
In the case of Jurgens v. Hauser, 19 Mont. 184, 47 Pac. 809, the Supreme Court of
Montana, in construing a statute identical with that of ours, speaking upon this phase of the
subject, said: It would be anomalous if the very statute which so explicitly gives the sheriff
his commissions where he collects without a sale, and thus generally without much labor, and
but slight risk of liability on his bond, should deprive him of all allowances where he
performs considerable service, and does make a sale, thus perhaps incurring liability, simply
because the mortgagee has voluntarily bid in the property included in the mortgage, and so
accepted the realty in lieu of the money.
Such a construction is less reasonable, we think, than that which regards the sale by the
sheriff as upon a like footing, whether made to the mortgagee or to any other purchaser.
Our statute applicable in this case is to be distinguished from that of either Oregon or
Washington, in that the provisions of the statutes in those states provide for fees on money
actually made, whereas our statute provides for commission for receiving and paying over
money, and we think the construction as placed upon a similar statute to that of ours by the
the Supreme Court of the State of Montana, in the Jurgens case, supra, is the more reasonable
construction. This reasoning is also announced by the Supreme Court of Minnesota, in the
case of Sharvey v. Central Iron Co., 57 Minn. 216, 58 N. W. 864, and also by the Supreme
Court of Iowa in the case of Litchfield v. Ashford, 70 Iowa, 393, 30 N. W. 649, in which that
court, in construing a statute very similar to ours, applicable to the question of sheriffs' fees,
asserted that the sheriff was entitled to a percentage under the statute upon the amount of an
execution sale of real estate, where the judgment plaintiff is the purchaser and the amount of
the bid is not paid to the sheriff, but credited on the judgment.
2, 3. Counsel for appellant in this case contend that the statute under which respondent
attempts to collect his commission especially provides that the commission shall be collected
from the judgment debtor. It is our opinion that the phase of the statute referred to by counsel
for appellant in this respect, which states that the fees allowed for the levy of an execution,
etc., shall be collected from the defendant, by virtue of such execution, does not contemplate
the sheriff shall look to the judgment debtor for his fees in the premises, but rather to that
property of the judgment debtor held by the sheriff under execution or process. When the
judgment creditor places himself in the position of a purchaser at the sheriff's sale, and by
reason of his bid has the property struck off to him, he stands between the judgment debtor
and the sheriff in so far as the fees provided for are concerned, and, having taken over the
property by acquiring the title thereto, if the sale becomes absolute, there is secured to
him, by means of the execution and sale, the amount of the bid less the fees and expenses
provided for.
debtor and the sheriff in so far as the fees provided for are concerned, and, having taken over
the property by acquiring the title thereto, if the sale becomes absolute, there is secured to
him, by means of the execution and sale, the amount of the bid less the fees and expenses
provided for. If there be a redemption of the property thereafter the amount of the judgment,
together with the fees accrued and paid out by the judgment creditor, becomes a charge
against the redemptioner. (Sharvey v. Central Iron Co., 57 Minn. 216, 58 N. W. 864; Jurgens
v. Hauser, 19 Mont. 184, 47 Pac. 809.)
From the foregoing reasoning, it follows that the judgment of the lower court in sustaining
the demurrer to appellant's petition for a writ of mandamus should be affirmed.
It is so ordered.
____________
36 Nev. 334, 334 (1913) State v. Reno City Council
[No. 2088]
STATE OF NEVADA, ex rel. C. O. DAVIES, Relator, v. FRED L. WHITE,
SAM FRANK, E. TWADDLE, ROBERT NELSON, PETER STEFFES, and
ROY J. FRISCH, as the City Council of the City of Reno, County of Washoe,
State of Nevada, Respondents.
1. MandamusMunicipal CorporationsOrdinancesInitiative and Referendum.
Mandamus will not issue to compel a city council to submit to a vote of the electors of such city a
proposed ordinance that would be void even if approved by a majority of electors under the initiative and
referendum provisions of the city charter.
2. Municipal CorporationsOrdinancesSpecial Privileges.
An ordinance, the purpose of which is stated in the titledirecting the issue of a license to D. for the
keeping or conducting of a restaurant at a designated place, with the privilege in connection therewith of
selling, furnishing, serving or otherwise disposing of wine, malt and spirituous liquors in sealed
packagesis void because it grants a special privilege to a single individual to conduct a private business
of a character subject to general police regulations, and in which no public interest is subserved.
3. Municipal CorporationsOrdinances.
An ordinance violative of the provisions of a city charter, or of the general law, is void.
4. Municipal CorporationsOrdinancesInitiative and Referendum.
The fact that a proposed ordinance has been initiated by the electorate of a city adds no additional
validity to such proposed ordinance. If it would not be valid if adopted by the city council, its infirmity
would not be cured by an affirmative vote of the electors of the city.
Original proceeding in mandamus by C. O. Davies to compel the City Council of the City
of Reno to submit a proposed ordinance to the electorate of the city under the initiative and
referendum provisions of the city charter. Writ denied.
Dixon & Miller, for Petitioner.
E. F Lunsford, City Attorney, for Respondents.
This is an original proceeding, upon notice, for a peremptory writ of mandamus
commanding respondents, as the City Council of the City of Reno, to submit a certain
proposed ordinance designated Ordinance No. 184, to a vote of the electors of the said city of
Reno, at a special election to be called for that purpose, in accordance with the initiative and
referendum provisions of the act incorporating the city of Reno.
The character and purpose of the proposed ordinance sought to be submitted to the
electorate of the city of Reno is sufficiently indicated by its title, which reads: An ordinance
directing the issue of a license or licenses to C. O. Davies for the keeping or conducting of a
restaurant on the island in the Truckee River known as Belle Isle,' with the privilege, in
connection therewith, of selling, furnishing, serving or otherwise disposing of wine, malt and
spirituous liquors in sealed packages.
It is conceded that the petition for the submission of the ordinance is in due form and
contains the requisite number of signatures of qualified electors to meet the requirements of
the initiative and referendum provisions of the city charter, but it is the contention of
respondents that, nevertheless, the writ ought not to issue, for the reason that the
subject-matter of the proposed ordinance is not such a subject-matter as could be
enacted into a valid ordinance, and for the further reason that the provisions of the city
charter providing for the initiative and referendum of city ordinances are unconstitutional,
for the reason that they were enacted prior to the adoption of the amendment to the state
constitution relative to the initiative and the referendum.
for the reason that the subject-matter of the proposed ordinance is not such a subject-matter as
could be enacted into a valid ordinance, and for the further reason that the provisions of the
city charter providing for the initiative and referendum of city ordinances are
unconstitutional, for the reason that they were enacted prior to the adoption of the amendment
to the state constitution relative to the initiative and the referendum.
As it is unnecessary to consider the constitutional question raised, the same will not be
determined.
1. The proposition that a writ of mandate will not issue to compel respondents to submit to
the electors of the city a proposed ordinance that would be void even if approved by a
majority of the electors, is too clear for discussion or the citation of authorities.
It remains only to consider whether the proposed ordinance would be valid if enacted.
2, 3. The proposed ordinance is special in character as it is designed to grant to a single
individual a privilege in which the public at large has no interest or benefit.
By the provisions of section 10 of article 12 of the city charter, the city council is invested
with power to fix, impose and collect a license tax on, regulate, prescribe the location of, or
suppress, * * * any and all places where intoxicating drinks are sold or given away. (Stats.
1905, p. 121.)
It is admitted in this proceeding that general ordinances are in force in the city of Reno
under the provisions of which the relator could have applied for a license such as is sought to
be obtained through the enactment of the special ordinance under consideration, and that such
application could be granted or refused by the city council.
It is a serious question whether the proposed ordinance is not directly violative of the city
charter which invests a certain discretion in the city council in the matter of granting or
refusing liquor licenses. If violative of the provisions of the charter, it would, for that reason,
be void.
It is sufficient to hold the ordinance void upon the broad ground that it grants a special
privilege to a single individual to conduct a private business of a character subject to
general police regulations, and in which no public interest can be said to be subserved.
individual to conduct a private business of a character subject to general police regulations,
and in which no public interest can be said to be subserved.
A by-law will be held bad when it appears to have been passed not to subserve the
interests of the corporation, that is, the public, but those of some private person or class of
persons. (McQuillin on Municipal Ordinances, sec. 39.)
The same author, in section 14, says: The general requisites of a valid municipal
ordinance, one legally binding upon all whom it is designed to operate, may be thus briefly
summarized: * * * 3. It must relate to a subject within the scope of the corporation. 4. It must
be in harmony with the constitution of the United States and the state, the laws of the United
States and the state, the municipal charter and general principles of the common law in force
in the state. * * * 10. It must be enacted in good faith, in the public interest alone and
designed to enable the corporation to perform its true functions as a local governmental
organ.
Numerous authorities supporting the text are cited by the author. See, also, Lewis v. Webb,
3 Me. 326; City of Richmond v. Dudley, 129 Ind. 112, 28 Am. St. Rep. 180.
The authorities cited by counsel for relator all go to the question of the right to the writ of
mandamus, assuming that the proposed ordinance would be a valid municipal law if enacted.
Neither in the brief nor in the oral argument of counsel for relator has there been an authority
cited that would support the validity of the proposed ordinance. In view of the facts that the
city attorney had advised the city council, in effect, that the proposed ordinance would be
void if enacted, because it granted a special privilege, and that the city council had refused to
submit the proposed ordinance to popular vote because of this reason, and that no serious
attempt appears to have been made to controvert this contention, we are justified in assuming
that counsel for relator were unable to find authority to the contrary.
4. Counsel for relator dwell upon the fact that the provisions of the charter relative to the
initiative and referendum of city ordinances have been complied with, and, if we
understand their position correctly, it is their contention that that is decisive of the case.
referendum of city ordinances have been complied with, and, if we understand their position
correctly, it is their contention that that is decisive of the case. But a so-called proposed
ordinance in proper form, that could never be an ordinance in substance, is not a proposed
ordinance any more than an act of a legislature in violation of the constitution would be a
statute. The initiative and referendum provisions of the city charter provide an additional
method for the adoption of ordinances, but the fact that such method is pursued adds no
additional validity to the ordinance. If the ordinance would be void if adopted by the city
council, the infirmity would not be cured by its adoption by a vote of the electors of the city.
(Long v. City of Portland, 53 Or. 92, 98 Pac. 1111; Brazell v. Ziegler, 26 Okl. 826, 110 Pac.
1052; Giddings v. Trustees, 133 Pac. 479.)
The writ prayed for is denied.
McCarran, J.: I concur.
I concur. The so-called proposed ordinance, the passage of which by the voters of the city
is sought to be obtained by compelling the council to call a special election, would, if carried
at such an election, be a license, which is distinguishable and ordinarily understood to mean
something different from an ordinance. Any general regulation regarding city licenses may be
regarded as an ordinance, but an ordinance such as may be submitted for passage at a
referendum vote at a special election under the city charter is a municipal law, rule or
regulation of a more public and permanent nature than a mere license to an individual to sell
liquor. Such a license is defined by the Standard Dictionary: In municipal law, an official
permit to carry on a business not otherwise allowed; and by Webster: A formal permission
from the proper authorities to perform certain acts or to carry on a certain business which
without such permission would be illegal; also, the document embodying such permission; as,
a license to preach, to practice medicine, to sell gunpowder or intoxicating liquors."
license to preach, to practice medicine, to sell gunpowder or intoxicating liquors.
Among the references in Words and Phrases Judicially Defined, the following appear in
volume 6, page 5024:
In Dill. Mun. Corp. (4th ed.) sec. 307, it is said that in this country the word ordinance' is
limited in its application to the acts or regulations in the nature of local laws, passed by the
proper assembly or governing body of the corporation. An ordinance' means a local law
prescribing a general and permanent rule. (Citizens' Gas and Mining Co. v. Town of Elwood,
16 N. E. 624, 626, 114 Ind. 332; Shattuck v. Smith, 69 N. W. 5, 11, 6 N. D. 156.) * * * An
ordinance is in the nature of a local statute. * * * (Evison v. Chicago, St. P., M. & O. R. Co.,
45 Minn. 370, 375, 48 N. W. 6, 11 L. R. A. 434.) The word ordinance,' as applicable to the
action of a municipal corporation, should be deemed to mean local laws passed by the
governing body. The legislature of the state passes laws and makes rules for the government
of its procedure. So, a municipal corporation passes laws, called ordinances,' and enacts
rules. The same distinction that exists between laws and rules made by the legislature should
be held to exist between rules and ordinances enacted by a municipal corporation. * * *
(Armatage v. Fisher, 26 N. Y. Supp. 364, 367, 74 Hun, 167.)
In the note (Dill. Mun. Corp. vol. 1, p. 384) it is stated that: A resolution is an order of
the council of a special and temporary character; an ordinance prescribes a permanent rule of
conduct or government. (Blanchard v. Bissell, 11 Ohio St. 96, 103.)
In my opinion, the power of the city council is absolute under the special provision of
section 10, article 12, of the charter, which authorizes the council to fix, impose and collect
a license tax on, regulate, prescribe the location of or suppress any and all places where
intoxicating drinks are sold or given away. It is apparent that by so specifically giving the
control of such licenses to the council, and providing that elections may be called for the
submission to the voters of proposed ordinances, without stating, either in the section
relating to ordinances or as a proviso to the one relating to licenses, that an election may
be called to determine whether licenses shall be issued, the legislature under the usual
definitions and distinctions, treated "ordinances" as distinct from "licenses," and made no
provision for an election regarding them.
submission to the voters of proposed ordinances, without stating, either in the section relating
to ordinances or as a proviso to the one relating to licenses, that an election may be called to
determine whether licenses shall be issued, the legislature under the usual definitions and
distinctions, treated ordinances as distinct from licenses, and made no provision for an
election regarding them.
In McQuillin on Municipal Corporations, volume 1, page 825, it is said that: Where the
grant conferring the power is a complete enactment within itself, the provision, whether
charter or statutory, becomes self-enforcing, and therefore legislation by ordinance is not
required.
If, contrary to the will of the city council, the relator may force the calling of a special
election, every other applicant who is denied such a license may also demand or require the
calling of a special election. If a city liquor license were held to be a city ordinance or
municipal law, in order to be consistent it would be necessary to hold that a county or state
liquor license is a state law, and any person who is refused a state liquor license under the
statute providing for the issuance of such licenses could by referendum demand submission at
a state election of the question whether he should be granted a license.
Under our statute and decisions it is well settled that a license may be revoked. (Wallace v.
City of Reno, 27 Nev. 71.) If a license were considered as an ordinance or law which could be
passed and enforced by referendum vote, the further question might arise whether any person
whose license had been revoked by proper authority or had expired at the end of the quarter if
a city or county license, or at the expiration of a year if a state license, would have the right by
referendum to ask the voters at an election, city, county, or state, to determine whether his
license should be restored or a new one granted to him, and we might soon have a long list of
ordinances and municipal and state laws carried or rejected at numerous expensive elections,
which when passed would be nothing more than licenses as commonly understood and the
issuance of which to any individual is within the detail and routine work of the city
council, under the ordinances and laws of a general nature relating to such licenses.
understood and the issuance of which to any individual is within the detail and routine work
of the city council, under the ordinances and laws of a general nature relating to such licenses.
____________
36 Nev. 341, 341 (1913) Radovich v. Western Union Tel. Co.
[No. 2058]
J. L. RADOVICH, Petitioner, v. WESTERN UNION TELEGRAPH COMPANY and
L. N. FRENCH, District Judge, Presiding in the Second Judicial District Court
of the State of Nevada, Respondents.
1. CostsTaxationBill of CostsStriking Out.
The court has jurisdiction to strike from the files a cost bill not filed within the time allowed by law.
2. CertiorariExceeding JurisdictionBill of CostsStriking Out.
An erroneous order striking out a cost bill duly filed is in excess of the court's jurisdiction, and may be
annulled on certiorari, especially as, if the error was not held jurisdictional, there would be no remedy
where no appeal lies, although the mere lack of a remedy would not in itself require the error to be
jurisdictional.
3. CostsTaxationBill of CostsServiceProcess.
Under Rev. Laws, sec. 5387, providing that the party prevailing must deliver to the clerk a memorandum
of the items of his costs, and serve a copy upon the adverse party, and section 5375, providing that where a
party has an attorney the service of papers shall be upon the attorney, with certain exceptions, service of a
cost bill should be made upon the attorneys for the adverse party, since their authority is not terminated so
long as the amount of costs remains open to settlement, and service of the cost bill upon the resident agent
of a foreign corporation was irregular, if not void, since under section 5024, requiring foreign corporations
to keep in the state an agent upon whom all legal process may be served, only papers in the nature of
process may be served upon the resident agent, and under section 5475, providing that, unless otherwise
apparent from the context, the word process means a writ or summons issued in the course of judicial
proceedings, the cost bill is not a process.
4. CostsTaxationBill of CostsService.
Where plaintiff's bill of costs was filed, but no copy thereof was filed in the county clerk's office, there
was no service on defendant's attorneys under Rev. Laws, sec. 5369, providing that where the party on
whom the service is to be made does not reside at the county-seat, the service may be made
by filing the papers to be served in the county clerk's office, even if that section
applies, since under section 53S7, requiring the party claiming costs to deliver a
memorandum of the items of his costs to the clerk and serve a copy upon the adverse
party, the paper required to be served was a copy of the cost bill.
not reside at the county-seat, the service may be made by filing the papers to be served in the county clerk's
office, even if that section applies, since under section 5387, requiring the party claiming costs to deliver a
memorandum of the items of his costs to the clerk and serve a copy upon the adverse party, the paper
required to be served was a copy of the cost bill.
5. CostsBill of CostsServiceWaiver.
Plaintiff's failure to serve a copy of his cost bill upon the defendant's attorneys was waived, where they
moved to retax the costs, without questioning the service or reserving the right to so question it.
6. CostsTaxationMotion to Retax.
A party who did not serve a copy of his cost bill on the attorneys for the adverse party, as required by
law, could not attack a motion to retax the costs as not having been filed in time.
ON PETITION FOR REHEARING
7. CourtsJurisdictionOrders of Dismissal or to Strike.
When a cause or matter is properly before a court for determination upon the merits, an order to dismiss
or to strike is an act in excess of jurisdiction.
8. Appeal and ErrorPractice on AppealQuestions Not Raised by Counsel.
The supreme court may consider and determine the merits of an appeal or proceeding upon questions
other than those considered by counsel. But, where such questions suggest themselves to the court, the
better practice would be to request counsel to consider the same and afford them opportunity to be heard
thereon.
9. CostsService of Cost BillMotion to Retax.
Where a cost bill is filed in time, the filing of a motion to retax, without reservation, is a waiver of any
question of the regularity of service.
10. CostsMotion to RetaxOrder to StrikeJurisdiction.
Where a cost bill has been filed in time, and thereafter a motion to retax is made without reservation of
any question of service, a subsequent order to strike because of defective service is in excess of
jurisdiction.
11. Waiver May Be Waived.
The party entitled to assert a waiver upon the part of the adverse party may himself waive such waiver.
12. Appeal and ErrorPresumptions in Favor of Order of Lower CourtException to Rule.
All presumptions are in favor of an order made by the court below where no reasons are given for the
order, but this rule does not apply where the court below expressly bases its order upon an erroneous
conception of fact or law.
Original proceeding. Action by J. L. Radovich against Western Union Telegraph
Company. To review an order of L. N. French, District Judge, presiding in the Second
Judicial District, striking from the files his cost bill, the plaintiff brings certiorari.
an order of L. N. French, District Judge, presiding in the Second Judicial District, striking
from the files his cost bill, the plaintiff brings certiorari. Order annulled, subject to further
consideration upon other questions. Rehearing denied..
Mack & Green, for Petitioner.
Lewers & Henderson and Walter M. Kennedy, for Respondent.
This is an original proceeding in certiorari, to review an order of the Second Judicial
District Court, L. N. French, judge, presiding, striking from the files a cost bill filed on behalf
of the plaintiff in an action on appeal from the justice's court in and for Reno township in
which the petitioner, J. L. Radovich, is plaintiff and the Western Union Telegraph Company
is defendant. The motion to strike the cost bill was granted by the judge of the lower court,
upon the ground that there was no service thereof as required by law.
1, 2. Unquestionably, a court has jurisdiction to strike out a cost bill not filed within the
time allowed by law, but whether an order, made upon motion duly noticed, striking out a
cost bill duly filed, is in excess of jurisdiction so that the same may be annulled on certiorari
is not so clear. We think the rights of parties will better be preserved by holding that an
erroneous order, striking out papers properly filed, is an excess of jurisdiction. In cases in
which a remedy by appeal does not lie, there is no way in which such an erroneous order
could be corrected if it were not deemed to be jurisdictional. Of course, such an order should
not be deemed jurisdictional simply because by so doing a remedy can be provided for
correcting the error. Important rights may depend upon papers filed. If they have been filed in
accordance with law, the power ought not to be held to lie in any court to strike them from
the files and thus destroy the basis of a right.
strike them from the files and thus destroy the basis of a right.
The record in this proceeding, certified upon from the court below shows that the case
was tried by a jury on the 21st day of November, 1912, and verdict for the plaintiff returned,
and that upon the same day judgment in pursuance of the verdict was entered. On the next
day, November 22, plaintiff filed his cost bill, and on the same day served a copy thereof
personally upon George L. Morgan, the manager and agent for the service of papers of [on]
the defendant in the State of Nevada; that there was no service of a copy of such cost bill
upon the attorneys who appeared in the action for the defendant; that on the 27th day of
November following, defendant, through its attorneys, filed and served a motion to retax the
costs by striking out certain items and reducing the amount of certain other items; that on the
4th day of December following, plaintiff, through his counsel, filed a notice of motion to
strike the motion to retax upon the ground that the same was not filed in time, a copy of
which was served the preceding 30th of November; that on the 7th day of December,
defendant, through its counsel, filed and served a motion to strike out the cost bill upon the
ground that the said alleged cost bill was never served upon the defendant as required by the
statute; that on the 26th day of December defendant, by leave of court, filed an amendment
to its motion to retax so as to include a motion to strike out the several items because of
failure to serve the defendant with a copy of the bill as required by law; that on April 1, 1913,
the order striking out the cost bill was entered and filed.
The affidavit of service attached to the original cost bill sets forth that C. E. Mack, one of
the counsel for the plaintiff, served the annexed cost bill * * * personally upon George L.
Morgan, the manager and agent for the service of papers of [on] the defendant in the State of
Nevada; * * * that the attorneys for the defendant, Messrs. Lewers & Henderson, are absent
from Washoe County, Nevada, and have no office or residence in Washoe County, Nevada,
and for that reason the cost bill could not be served upon the attorneys for the
defendant."
County, Nevada, and for that reason the cost bill could not be served upon the attorneys for
the defendant.
3. Section 445 of the civil practice act (Rev. Laws, 5387) provides: The party in whose
favor judgment is rendered, and who claims his costs, must deliver to the clerk, and serve a
copy upon the adverse party, within five days after the verdict or notice of decision * * * a
memorandum of the items of his costs. * * * Within three days after service of the
memorandum, the adverse party may move the court, upon two days' notice, to retax and
settle the costs, a copy of which motion shall be filed and served on the prevailing party
claiming costs.
Section 433 of the civil practice act (Rev. Laws, 5375) provides that: In all cases where a
party has an attorney in the action or proceeding, the service of papers, when required, shall
be upon the attorney instead of upon the party, except subpenas, or writs, and other processes
issued in the suit, and of papers to bring him into contempt.
It is the contention of counsel for the petitioner that service of the cost bill could not be
properly made upon the attorneys for the party against whom judgment is entered, for the
reason that the entry of judgment terminated the authority of the attorneys to act. We may
concede, for the purposes of this case, that when a judgment reaches such a finality that it
cannot thereafter be affected, except by appeal, the authority of the attorneys for the losing
party in the case may be deemed to be terminated; but as long as the judgment may be
affected by a motion for new trial, motion to modify or to vacate, or the amount of costs to be
inserted therein remains a matter open for settlement, we think the authority of counsel has
not terminated. The affidavit of service attached to the cost bill contains a paragraph
explanatory of the reason why the cost bill was not served upon the attorneys for the
defendant in the action. It is manifest from this that counsel for the plaintiff considered
counsel for defendant the proper persons to serve if they had been residing or had an office
in the county where the suit was tried.
persons to serve if they had been residing or had an office in the county where the suit was
tried. The resident agent of the foreign corporation, defendant, of course, is not the adverse
party any more than its attorneys. Only such papers may be served upon such resident agent
as are authorized by the statute. The only papers which may be served upon the resident agent
are such as are in the nature of process. (Rev. Laws, 5024, 5375.) A cost bill cannot, we
think, be regarded a process, as that term is used in the statute. (Rev. Laws, 5475, 5476.)
4. Section 427 of the civil practice act (Rev. Laws, 5369) provides how service may be
made, and section 431 (Rev. Laws, 5373) provides how service may be made by mail.
Section 427, supra, contains the following proviso: That in all cases where the party on
whom the service is to be made has no office, or does not reside at the county seat where the
action or proceeding is pending, the service may be made by filing the papers or notice to be
served in the county clerk's office and the service shall be deemed complete at the expiration
of ten days from the date of such filing. It has been contended that, even though service was
not properly made upon the resident agent of the defendant corporation, the service was valid
under the above proviso. This contention is without merit, for it is not claimed or shown that
a copy of the cost bill, which is the paper required to be served, was filed in the county clerk's
office, even conceding, without so deciding, that service upon defendant's attorneys could be
made in this way.
5. We think it clear that the service should have been made upon the attorneys for the
defendant, and that the service upon the agent, Morgan, was irregular, if not void. It does not
follow, however, from the facts shown by the record, that defendant's motion to strike the cost
bill should have been well taken. Defendant had previously moved to retax the costs, without
questioning the service, and without reserving any right to so question it.
it. This, we think, was a waiver of any question of service, and the subsequent motion to
strike ought not to have been entertained. (Johnson v. Wells Fargo Co., 6 Nev. 224, 3 Am.
Rep. 245; Iowa M. Co. v. Bonanza M. Co., 16 Nev. 64; Smith v. Wells' Estate, 29 Nev. 411;
Bliss v. Grayson, 24 Nev. 422; Botsford v. Van Riper, 32 Nev. 214; Burnham v. Hays, 3 Cal.
115, 58 Am. Dec. 389; State v. District Court, 33 Mont. 529, 85 Pac. 367; Naylor v. Adams,
15 Cal. App. 353, 114 Pac. 997; Hammer v. Downing, 39 Or. 504, 528, 64 Pac. 651, 65 Pac.
17, 990, 67 Pac. 30.)
6. Plaintiff, not having served his copy of the cost bill in the manner required by law, is not
in position to question the filing of the motion to retax in time.
It is our conclusion that the order striking out the cost bill was in excess of the jurisdiction
of the court and void, and that the motion to retax is properly before the court for
determination.
The order under consideration is annulled.
Counsel for respondent in his petition for rehearing expresses the conviction that the
decision in this case foreshadows the breaking down of rules that have long been a part of
our law. Coming from one whose standing at the bar entitles his expressions to great respect,
we have carefully reviewed the opinion with the view of ascertaining whether therein is
expressed any new, dangerous, or revolutionary rule.
7. The opinion comports with the recent decision in Floyd v. Sixth Judicial District Court
(No. 2070; see page 349 of this volume), in which, in effect, we held that, when a cause or
matter is properly before a court for determination upon the merits, an order to dismiss or to
strike is an act in excess of jurisdiction. It is true, in so holding, we ceased to longer follow
some precedents in this and other courts, but we were not without illustrious precedents in
making the change which we are convinced is abundantly supported both in reason and
justice.
illustrious precedents in making the change which we are convinced is abundantly supported
both in reason and justice.
8. Before determining the questions involved in the case as affected by the doctrine of
waiver, it would, doubtless, have been the better practice to have asked respective counsel to
have considered that question, but it would, we think, be unfortunate if it were an inflexible
rule that a court of last resort, in all cases, could only consider questions actually discussed in
the briefs.
9, 10. There can be no question, we think, but that the filing of the motion to retax, without
reservation, was a waiver of any question of irregularity of service. Unless the waiver itself
was waived, the cost bill and the motion to retax were regularly before the court. Under these
circumstances an order striking the cost bill was in excess of jurisdiction.
11, 12. It may be, as contended by counsel for the respondent, that the plaintiff in the court
below waived the waiver, and that the case is within the rule laid down by this court in Iowa
M. Co. v. Bonanza M. Co., 16 Nev. 64. The record brought to this court, however, is silent
upon the facts that would be controlling upon that point. If the court below had simply
entered the order to strike, without stating any reason therefor, there might be ground for
contention that all presumptions are in favor of the order, including a presumption that the
waiver was waived. The court, however, expressly put its order upon the ground that there
was no proper service of the cost bill, while the record before us discloses that defendant had
waived service by the filing of a motion to retax.
The court below correctly decided that there had not been a proper service, but that
question became immaterial when counsel filed his motion to retax, and could only again
become material in the event that the plaintiff waived his right to assert a waiver upon the
part of defendant, upon consideration of the motion to strike. (Iowa M. Co. v. Bonanza M.
Co., supra.)
The order heretofore made annulling the order to strike will stand, but it is conditioned
upon the power of the court below to reconsider the question submitted upon the motion to
strike with reference to the questions of waiver.
Rehearing denied.
____________
36 Nev. 349, 349 (1913) Floyd v. District Court
[No. 2070]
ELIZABETH FLOYD and JAMES GUTHRIE, Petitioners, v. THE DISTRICT COURT OF
THE SIXTH JUDICIAL DISTRICT OF NEVADA, IN AND FOR THE COUNTY OF
HUMBOLDT, and HON. L. N. FRENCH, Judge of the Eighth Judicial District Court of the
State of Nevada, Respondents.
1. MandamusPurpose of WritCompelling Judicial Action.
While errors committed in the exercise of a judicial discretion cannot be reviewed or corrected by
mandamus, if the district court erroneously decides that it has no jurisdiction and refuses to hear an appeal
from a justice's court pursuant to the constitution, art. 6, sec. 6, as by dismissing the appeal, mandamus is
the proper remedy to compel it to assume jurisdiction and proceed.
2. MandamusPurpose of WritControl of Inferior Courts.
An inferior court which erroneously refuses to entertain jurisdiction on a matter preliminary to a hearing
on the merits, may be required to proceed by mandamus.
3. Justices of the PeaceCosts BondForm.
The Nevada statute (Comp. Laws, 3679) provides that an appeal from a justice's court shall not be
effectual unless an undertaking be filed in the sum of $100 in gold coin, for the payment of the costs on
appeal, and further provides that a deposit of the amount of the judgment appealed from, including all
costs, shall be equivalent to the filing of the undertaking in this section mentioned. Held, that a deposit
with a justice of a sum equal to the amount of the judgment appealed from, including costs, is equivalent to
the filing of an undertaking for the payment of the costs on appeal. Whether such deposit is sufficient to
also stay execution, not determined.
Original proceeding. Application by Elizabeth Floyd and James Guthrie for a writ of
mandate against the Sixth Judicial District Court in and for Humboldt County, and
Honorable L. N. French, Judge of the Eighth Judicial District Court, presiding.
and Honorable L. N. French, Judge of the Eighth Judicial District Court, presiding. Writ
issued. Petition for rehearing. Denied.
W. H. Dial and R. Gilray, for Petitioners.
Salter & Robins, for Respondents.
In this case judgment was rendered against the petitioners in the justice court of Union
township, Humboldt County, Nevada, for the sum of $300, and for the further sum of
$105.75 assessed as costs. Within the time prescribed by statute the petitioners filed and
served notice of appeal to the District Court of the Sixth Judicial District, in and for
Humboldt County, and on the same day, and after the filing and service of said notice of
appeal, petitioners deposited with the justice of the peace the sum of $405.75 in gold coin.
This fact is evidenced by the minutes of the justice court as follows: That heretofore, on
the 11th day of September, 1911, defendants appeared herein by their attorney, R. Gilray,
Esq., and filed herein notice of appeal in writing, and deposited with the justice of said court
the sum of $405.75, the amount of the judgment appealed from including costs. J. T. Dunn,
Justice of the Peace.
Following this is the further entry of the justice of the peace, as follows: Sept. 11th,
Oastler v. Floyd. Notice of appeal filed by deft. and $405.75 paid into court in lieu of appeal
bond. $2.00 appeal fees paid.
Subsequent to this the justice of the peace deposited with the clerk of the district court a
certified copy of his docket and the papers filed in the case, and also the sum of $405.75,
deposited with him as hereinabove set forth. The plaintiffs in the justice court moved the
district court to dismiss the appeal on the ground that more than thirty days and elapsed since
the judgment was made and rendered in the justice court, and that no undertaking had been
filed in said justice in the sum of $100 for the payment of costs on appeal.
had been filed in said justice in the sum of $100 for the payment of costs on appeal. The
motion to dismiss was granted, and an order dismissing the appeal was entered. Petitioners
ask that a writ of mandate issue out of this court directing the district court to take cognizance
and jurisdiction of the said case and try and determine the same on its merits.
To the petition filed herein a demurrer is interposed on the ground that the petition does
not state facts sufficient to authorize a writ of mandate, for the reason that it appears from the
petition that respondent Judge French proceeded with the case, and decided that a certain sum
of money deposited with the justice of the peace was made in lieu of the undertaking to stay
proceedings, and that there was no undertaking to stay proceedings, and that there was no
undertaking or deposit on appeal. Respondents in their demurrer rely on former decisions of
this court, and say: Assuming that the action of the respondent judge was error, still it was
within the exercise of jurisdiction, and mandamus will not lie to review its action. In support
of their contention they cite: State, ex rel. Treadway, v. Wright, 4 Nev. 119; Andrews v. Cook,
28 Nev. 269; Breckenridge v. Lamb, 34 Nev. 275.
The primary question to be determined in this proceeding is: Will mandamus lie to review
the action of the district court and to compel the district court to proceed in a case in which
that court has divested itself of jurisdiction by erroneously dismissing an appeal? There is no
controversy in this case respecting the facts, as set forth in the petition, and respondents in
this matter rely entirely upon the doctrine, as previously announced by this court, that where
the district court erroneously divests itself of jurisdiction to try a cause appealed from a
justice court, its action in that respect is final and will not be disturbed. As early as 4 Nevada
this court laid down the rule that where, in matters of this kind, the district court made an
order disposing of a cause, no matter how erroneous it may have been, it could not be
reviewed in this court. This principle has been followed in all of the cases in which the
matter has been presented, and in a recent decision {Andrews v. Cook, supra) this court
approvingly quoted the language of Lewis, J., in the Treadway case, supra, and also the
language of Hawley, J., in the case of Floral Springs W. Co. v. Rives, 14 Nev. 431
been followed in all of the cases in which the matter has been presented, and in a recent
decision (Andrews v. Cook, supra) this court approvingly quoted the language of Lewis, J., in
the Treadway case, supra, and also the language of Hawley, J., in the case of Floral Springs
W. Co. v. Rives, 14 Nev. 431. In the case of Breckenridge v. Lamb, 34 Nev. 275, this court
again gave sanction to the rule in a statement to the effect that the action of the district court
in dismissing a matter appealed from the justice court, even though erroneous, was final and
not subject to review.
The rule laid down by this court in the several cases heretofore referred to was concurred
in by courts of last resort of other jurisdictions, and the Supreme Court of California, in the
case of Buckley v. Superior Court of Fresno County, 96 Cal. 119, 31 Pac. 8, expressly
overruled their former decisions relative to this matter, and by a divided court laid down the
new rule to the effect that where the superior court had dismissed an appeal from a justice
court, though erroneous, was nevertheless final, and a writ of review would not lie. This
doctrine, however, as annunciated in the Buckley case, supra, was overruled in the case of
Golden Gate Tile Co. v. Superior Court of California and City and County of San Francisco,
et al., 159 Cal. 474, 114 Pac. 978, and in the case of Edwards, et al., v. Superior Court of
Alameda County, 159 Cal. 710, 115 Pac. 649, and the rule set forth in the former decisions
again annunciated.
1. In the case at bar the dismissal of the appeal was a refusal on the part of the court to give
appellant a hearing in the case. In a case where the district court takes jurisdiction and acts, its
acts will not be subject to review by a writ of mandate, but where such tribunal refuses to take
jurisdiction at all, when by law it ought to do so, or where having obtained jurisdiction it
refuses to proceed in its exercise, mandamus is the proper remedy. Errors committed in the
exercise of judicial discretion cannot be made the subject of review, nor can they be corrected
by a writ of mandamus, but where a district court erroneously decides that it has no
jurisdiction, the writ of mandamus is the proper remedy to compel that tribunal to do that
which the law prescribes it should doassume jurisdiction and proceed with the cause.
mandamus is the proper remedy to compel that tribunal to do that which the law prescribes it
should doassume jurisdiction and proceed with the cause. (Hollon Parker, Petitioner, 131
U. S. 221, 9 Sup. Ct. 708, 33 L. Ed. 123.) The dismissal of a case is a refusal on the part of
the dismissing court to hear and determine the cause, and the party aggrieved in such a
proceeding may properly invoke a writ of mandamus to compel the court to set the case and
proceed to its determination. (Harrington v. Holler, 111 U. S. 796, 4 Sup. Ct. 697, 28 L. Ed.
602.) The right of a party litigant to a judgment of a court upon the merits of the matter
litigated is the fundamental aim of the law. The object of courts primarily is that they should
assume the function of legal and equitable arbiters and decide controversies upon their merits.
2. While it may be said that in cases of this character the lower court had jurisdiction to
grant or deny a motion to dismiss, nevertheless that court could not refuse to hear a matter
upon its merits when it was regularly before it for that purpose, nor could it divest itself of
jurisdiction by an erroneous order any more than it could assume jurisdiction by arbitrarily
saying that it had the right to proceed. The rule has been approvingly stated to the effect that
where a inferior court refuses to entertain jurisdiction on a matter preliminary to a hearing on
the merits, the writ of mandamus may be resorted to for the purpose of requiring the court to
proceed. (Brown v. Min. Co., 105 Mich. 653, 63 N. W. 1000; Castello v. St. Louis Circuit
Court, 28 Mo. 259.)
Mr. Bailey, in his treatise on the Law of Special Remedies, dwelling upon the subject of
Mandamus and referring to the rule as stated above, says: I observe that it has been
contended by some judges and lawwriters that this rule (if it be a rule) extends to embrace
erroneous construction of some question of law or of practice which is preliminary to the
whole case. If it were confined to questions relating to the power or jurisdiction of the court,
then there is abundant authority for the position assumed. If, on the other hand, it is intended
to assert that the rule embraces all cases where the court refuses to proceed to the merits,
then I should very much doubt the application of any such rule.
the court refuses to proceed to the merits, then I should very much doubt the application of
any such rule. Courts often err in determining questions of law or practice upon demurrer or
motion, whereby the merits of an action are not reached, and the party has an adequate
remedy by appeal or writ of error. If mandamus would lie, it certainly would transform that
writ into a writ of error. (Bailey on Habeas Corpus, vol. 2, p. 883.)
It has been well stated, in substance, that, although a writ of mandamus is not a means by
which the manner of conducting proceedings, the rulings of a court upon questions of
evidence, or jurisdictional matters involving the merits can be reviewed, its scope, however,
embraces the right of the reviewing court to compel an inferior tribunal to proceed in a case
where, by an erroneous ruling, it has diverted itself of jurisdiction. (Golden Gate Tile Co. v.
Superior Court of California and City and County of San Francisco, et al., 159 Cal. 474, 114
Pac. 978.)
The jurisdiction of the district courts of the State of Nevada is prescribed by section 6,
article 6, of the constitution of the state, which is in part as follows: They shall, also, have
final appellate jurisdiction in cases arising in justices' courts and such other inferior tribunals
as may be established by law. This constitutional grant of jurisdiction is also a prescription
that the district court must assume final appellate jurisdiction in cases arising in a justice
court, and hence it is the duty which the district court cannot either refuse or divest itself of,
and when the record in a case discloses that the cause should be heard on its merits, the
dismissal of the appeal is a refusal on the part of the court to entertain the cause, and such
refusal is properly the subject for the issuance of a writ of mandamus. (Levy v. Superior
Court, 66 Cal. 292, 5 Pac. 353; State v. District Court, 13 Mont. 370, 34 Pac. 298; Bailey on
Habeas Corpus, vol. 2, p. 893.)
As was said by Judge Beatty, speaking for the Supreme Court of California in the case of
Edwards, et al., v. Superior Court, 159 Cal. 710, 115 Pac. 650, when according to the
uncontroverted facts it appears that an appeal to the district court has been duly
perfected and diligently prosecuted, a dismissal of such appeal is in fact nothing more nor
less than an attempted abdication of the jurisdiction which the court is bound in every
proper case to exercise.
to the uncontroverted facts it appears that an appeal to the district court has been duly
perfected and diligently prosecuted, a dismissal of such appeal is in fact nothing more nor less
than an attempted abdication of the jurisdiction which the court is bound in every proper case
to exercise. In other words, it is a refusal to decide a cause which it is a plain statutory duty of
the court to decide, the remedy for which dereliction is the writ of mandate.
The Supreme Court of Utah, in touching upon the subject, annunciated the doctrine in
substance that, where an appeal was properly taken and the requirements of the statute
complied with, and the court failed to exercise the jurisdiction conferred upon it by virtue of
the appeal and refused to proceed with the trial, the plaintiff's remedy was by mandamus.
(Hansen v. Anderson, et al., 21 Utah, 286, 61 Pac. 219.)
The rule applicable to the issuance of a writ of mandamus, in matters of this character, as
first asserted in the case of Treadway v. Wright, 4 Nev. 119, and subsequently adhered to in
several decisions by this court, is, to say the least, a harsh one, and to our mind fails to carry
out the spirit of the law. Summed down to a nicety, it means that the action of the district
court in dismissing an appeal from the justice court, regardless of how glaring the error may
be, is without the scope of review and beyond the power of relief by a higher tribunal.
It is in the justice court that the small controversies of the business world are litigated. It
has been termed with more or less propriety the poor man's court, and our legislature in
enacting its earlier laws recognized this as being generally true, and made the forms of
pleadings and rules of practice much more simple than in other courts.
To say that a justice court litigant, desirous of presenting his cause to the district court and
being denied that privilege by a ruling of that court, which ruling is manifestly and palpably
erroneous, cannot be relieved of the effects of that error by the mandate of this court is to
our mind so harsh as to be without the pale of the true intendment of the law.
and palpably erroneous, cannot be relieved of the effects of that error by the mandate of this
court is to our mind so harsh as to be without the pale of the true intendment of the law. It is
our judgment that the better rule is that as stated by the Supreme Court of California in the
case of Golden Gate Tile Co. v. Superior Court, supra, and approved in the case of Edwards
v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649; the same rule being
followed in the cases of State v. District Court, 13 Mont. 370, 34 Pac. 298, and Hansen v.
Anderson, 21 Utah, 286, 61 Pac. 219.
It follows from the foregoing reasoning that the rule heretofore announced by this court,
having its inception in the case of State, ex rel. Treadway, v. Wright, and adhered to in all
cases down to and including Ex Parte Breckenridge, 34 Nev. 275, should be, and they are
hereby, expressly overruled.
3. Having determined that this court is invested with jurisdiction to compel, by writ of
mandamus, the district court to proceed in a case where it has refused to take jurisdiction, or
where, by an erroneous ruling, it has divested itself of jurisdiction, we now come to the
remaining question for our consideration in this case, viz: Did the district court erroneously
divest itself of jurisdiction by sustaining the motion to dismiss the appeal?
Section 3679 of the Statutes of Nevada, applicable at the time at which this appeal was
taken (Cutting's Compilation), is as follows:
An appeal from a justice's court shall not be effectual for any purpose unless an
undertaking be filed, within five days after filing the notice of appeal, with two or more
sureties, in the sum of one hundred dollars, in gold coin of the United States, for the payment
of the costs on the appeal, or if a stay of proceedings be claimed, in a sum equal to twice the
amount of the judgment, including costs, when the judgment is for the payment of money, or
twice the value of the property, including costs, when the judgment is for the recovery of
specific personal property, and shall be to the effect, when the action is for the recovery
of money, that the appellant will pay the amount of the judgment appealed from, and all
costs, if the appeal be withdrawn or dismissed, or the amount of any judgment, and all
costs that may be recovered against him in said action in the district court.
personal property, and shall be to the effect, when the action is for the recovery of money,
that the appellant will pay the amount of the judgment appealed from, and all costs, if the
appeal be withdrawn or dismissed, or the amount of any judgment, and all costs that may be
recovered against him in said action in the district court. * * * A deposit of the amount of
judgment appealed from, including all costs, or of the value of the property, and all costs, in
actions for the recovery of specific personal property, with the justice, shall be equivalent to
the filing of the undertaking in this section mentioned.
It will be observed that in this case counsel for petitioners sought to avail themselves of
the latter part of section 3679, set forth above, and under the provisions of that section they
deposited, as appears from the record, a sum amounting to the judgment appealed from,
including all costs. This the statute provides is equivalent to the filing of an undertaking,
mentioned in the first part of the section.
The learned judge of the lower court in dismissing the appeal took the position that the
deposit could only serve the purpose to take the place of an undertaking to stay proceedings,
and that the deposit could not be taken in lieu of an undertaking for costs on appeal. It is our
judgment that the section referred to will not admit of the construction placed upon it by
respondent. The language of the statute is plain and obvious; moreover, in our judgment, it is
free from ambiguity. By this statute one undertaking, and only one, is contemplated to make
an appeal effectual to the extent of giving the district court jurisdiction, and a deposit as
provided for in the latter part of the section may be made in lieu of such undertaking, i.e., it is
optional with the appellant in taking his appeal to either file an undertaking, as provided for
by the first part of section 3679, or make a deposit, as provided for by the latter part of the
same section. When a litigant, with the view of perfecting an appeal from the justice court,
deposits with the justice of the peace a sum of money equal to the amount of the judgment
appealed from, including all costs, this act on his part is equivalent to the filing of the
undertaking, mentioned in the first part of the section, to make the appeal effectual.
of the peace a sum of money equal to the amount of the judgment appealed from, including
all costs, this act on his part is equivalent to the filing of the undertaking, mentioned in the
first part of the section, to make the appeal effectual.
The docket entry and minutes of the justice of the peace recite that the deposit was made
in lieu of appeal bond. In the case of State v. Brown, 30 Nev. 500, this court is passing
upon the sufficiency of an undertaking said: Whether or not it was the intention of the
defendant by this undertaking to procure a stay of proceedings is immaterial so far as the
proceeding in this court is concerned. If it is good as an undertaking to pay the costs on the
appeal, it is sufficient to clothe the district court with jurisdiction, whether it is sufficient to
accomplish any other purpose or not. * * * As the undertaking does not express a condition
that it is given to stay proceedings, it would be unwarranted to read such a condition into the
bond when so to do would destroy its effect.
The question of the stay of proceedings is not before us at this time, and it is not necessary
for us to dwell upon that phase of the statute. (Hansen v. Anderson, 21 Utah, 286, 61 Pac.
219; Edwards v. Superior Court of Alameda County, 159 Cal. 710, 115 Pac. 649; State v.
Brown, 30 Nev. 495.)
From the foregoing it follows that the district court, and Judge L. N. French presiding,
erroneously divested itself of jurisdiction, and the writ prayed for should issue, and it is
therefore ordered that a peremptory writ issue out of this court, directing the Sixth Judicial
District Court of the State of Nevada and Judge L. N. French, presiding in this case, to take
cognizance and jurisdiction of said cause, and to proceed to try and determine the same on its
merits.
Talbot, C. J.: I concur.
Norcross, J., concurring:
I concur in the opinion and order of my learned associate. However, as the decision in this
case reverses a number of former decisions of this court, I feel that the question is
deserving of some further comment.
a number of former decisions of this court, I feel that the question is deserving of some
further comment. This court in a number of cases has had occasion to say, as other courts
have said, that, where a question of law has once been determined, the ruling thereon should
not be changed, except for very weighty and conclusive reasons. Especially is this true where
the decision has repeatedly been followed. This rule applies with particular force to decisions
upon mere questions of practice. (Reese M. Co. v. Rye Patch M. Co., 15 Nev. 341; State v.
Brown, 30 Nev. 495.)
The question of the power of a district court to dismiss an appeal regularly taken is something
more than a question of practice. It is a question of fundamental law. Some extended
examination into the decisions of the courts of the various states which have had occasion to
consider the question discloses that it has been found to be one that has given rise to much
difference of opinion. Not only have the courts of one state disagreed with the courts of
another state upon the question, but the opinions of the same court have varied. Particularly
has this been the case in our sister jurisdiction of California.
In People v. Weston, 28 Cal. 639, the court, by Sawyer, J., in denying a writ of mandamus,
held that a dismissal of an appeal from a justice's court was a judicial act within the
jurisdiction of the county court and its determination, though erroneous, is final.
In Lewis v. Barclay, 35 Cal. 214, the same question was involved and the ruling the same.
See, also, Beguhl v. Swan, 39 Cal. 411.
In Levy v. Superior Court, 66 Cal. 292, 5 Pac. 353, Hall v. Superior Court, 68 Cal. 24, 8
Pac. 509, and Carlson v. Superior Court, 70 Cal. 628, 11 Pac. 788, it was held that the
superior court could not divest itself of jurisdiction by the erroneous dismissal of an appeal
from a justice's court.
These latter cases were all reversed by the case of Buckley v. Superior Court, 96 Cal. 119,
31 Pac. 8, decided by a divided court.
In the case of Golden Gate Co. v. Superior Court, 159 Cal. 474, 114 Pac. 978, the Buckley
case was reversed. The overruling of the Buckley case has been emphasized by the case of
Edwards v. Superior Court, 159 Cal. 710, 115 Pac. 649, and a number of other decisions by
the Supreme Court and the Court of Appeals of California. We may, I think, safely conclude
that our sister jurisdiction has finally settled the question to its satisfaction.
The Supreme Court of Utah, by a divided court, in the case of Crooks v. District Court, 21
Utah, 98, 59 Pac. 529, followed the Buckley case in 96 Cal., but in the more recent case of
Griffin v. Howell, 38 Utah, 357, 113 Pac. 326, it is held that: A court having conferred upon
it jurisdiction may not divest itself of jurisdiction not depending upon facts, by an erroneous
decision on matters of law that it has no jurisdiction. Mandamus was accordingly issued to
reinstate an appeal, erroneously dismissed, and to proceed with the cause.
The Supreme Court of Montana, in State v. District Court, 24 Mont. 494, 498, 62 Pac.
820, also followed the Buckley case, but in both prior and subsequent decisions that court has
held that mandamus will lie to compel a district court to proceed and try a case, where it has
refused to take cognizance of the same under a mistaken view that it was without jurisdiction.
(State v. District Court, 38 Mont. 166, 99 Pac. 291, 35 L. R. A. n.s. 1098, 129 Am. St. Rep.
636.)
In State v. Phillips, et al., Judges, 97 Mo. 331, 10 S. W. 855, 3 L. R. A. 476, decided in
1888, the court says: The same diversity of opinion as to when the action of the lower courts,
in dismissing appeals, can be corrected by mandamus is exhibited in England as in this
country. These numerous citations of authorities have been made as showing that the rule of
law is by no means well settled that the improper dismissal of an appeal cannot be remedied
by mandamus.
The courts have universally held that a mere refusal of an inferior court to proceed with the
trial of a case, because of an erroneous view that it was without jurisdiction, could be
remedied by mandamus and the court compelled to proceed with the trial.
compelled to proceed with the trial. Such was the ruling of this court in Cavanaugh v. Wright,
2 Nev. 166, and in Floral Springs Water Co. v. Rives, 14 Nev. 431. The opinion in the latter
case was by Chief Justice Beatty, now holding the same high position in the Supreme Court
of California. Judge Beatty, both as a member of this court and as a member of the California
court, has always held to the position that the dismissal of an appeal regularly taken from a
justice's court was not a judicial act within the jurisdiction of the court, and hence not subject
to review, but amounted to nothing more nor less than an attempted abdication of a
jurisdiction which the court is bound, in every proper case, to exercise. (Edwards v. Superior
Court, supra.)
In the Floral Springs case, supra, relative to the cases of Treadway v. Wright and
Cavanaugh v. Wright, supra, Beatty, C. J., said: The decision in Treadway v. Wright, 4 Nev.
119, does not overrule that in Cavanaugh v. Wright, and if it be true that the distinction which
it attempts to draw between the two cases is without any substance or validity, what follows
is that the latter and not the former decision is wrong. Hawley, J., however, in his concurring
opinion, expressed the view that both the Cavanaugh and Treadway opinions were correctly
decided.
When the case of Andrews v. Cook, 28 Nev. 265, was before this court, we were asked to
grant the writ upon the authority of the cases in the 66, 68, and 70 California Reports, cited,
supra, but upon examination we found those authorities all to have been overruled by the
Buckley case in 56 Cal., which case was in line with certain prior decisions of this court,
particularly Treadway v. Wright, supra. The decision in the Andrews case has been
repeatedly affirmed, but, until the present case, we have not been asked to reconsider the
basic question upon which those decisions rest.
The difference in the conclusions reached in the various opinions depends entirely upon
the assumption which forms the premise of the opinions in question. If it is assumed that a
dismissal of an appeal, regularly taken, is a judicial act within the jurisdiction of the court, the
conclusion logically follows that the determination of the court is final, notwithstanding
such determination is erroneous as a matter of law.
conclusion logically follows that the determination of the court is final, notwithstanding such
determination is erroneous as a matter of law. Upon the other hand, if it is assumed that,
when jurisdiction to proceed and determine a cause is once properly vested in a court, it is
without power to divest itself of such jurisdiction, the conclusion likewise logically follows
that an order, erroneously made, dismissing such an appeal, is void, and amounts to no more
than a refusal to regularly proceed and determine the cause.
The question then resolves itself down to what is meant by appellate jurisdiction or final
appellate jurisdiction, as that term is used relative to district courts in our constitution.
Jurisdiction has been defined in general terms as: The authority or power which a man
hath to do justice in cause or complaint brought before him; the power of hearing and
determining causes and of doing justice in matters of complaint. (24 Cyc. 375.)
It has also been defined as: The power and authority to declare the law; the right of
administering justice through the laws. The term imports authority to expound or apply the
laws, and excludes the idea of power to make the laws. (11 Cyc. 659, 660.)
Many similar definitions have been given. In Cavanaugh v. Wright, supra, this court said:
We think, as used in the constitution, the phrase appellate jurisdiction' * * * was intended to
confer jurisdiction upon the district courts to hear cases on appeal, either in the strictest sense,
which would require a trial de novo, or to review them as law cases are reviewed a common
law.
When an appeal from a justice's court is taken as the law prescribes, the district court is
invested with jurisdiction to proceed and determine the cause upon the issues made by the
pleadings. Upon this point there can be no question. But has the district court also
jurisdiction, where no question of fact is involved, to say that it has not jurisdiction when it
has and to dismiss the appeal? If it has such power, it can destroy the very purpose for which
it was created.
very purpose for which it was created. Jurisdiction is always a matter of law. It may depend
on a certain state of facts, but it is the law that flows from such facts which establishes the
jurisdiction. It is never a matter of discretion for a court to follow the law or not as it sees fit.
It is ever the duty of courts to apply the law. Necessarily, every act of a court, to be of any
binding force, must depend upon jurisdiction, and courts of necessity must determine
questions of jurisdiction, but a determination that jurisdiction exists when, as a matter of law,
it does not exist does not ipso facto establish such jurisdiction.
As we said in the recent case of Gamble v. Silver Peak Co., 35 Nev. 326: It is the primal
duty of all courts to keep within their jurisdiction. Whenever a court takes any affirmative
action, there is an implied adjudication that it has jurisdiction.
Without conflict of authority, it is settled that when an inferior court erroneously
determines that it has jurisdiction, its judgments and orders will be set aside by the higher
courts. What reason exists for saying that if a court erroneously decides that it has not
jurisdiction when it has, and dismisses an appeal for that reason, such decision cannot be
disturbed; in other words, for saying that the converse of the rule has no application? The
reason given is that the appellate court has jurisdiction of the case for all purposes, and
therefore may dispose of the case by an order of dismissal if in its judgment it is without
jurisdiction. The fallacy of this reasoning, I am convinced, lies in the assumption that the
appellate court has jurisdiction for all purposes when the constitution and statute prescribe
that if an appeal is properly perfected it has jurisdiction only to determine the questions of
law or fact involved in the pleadings or record on appeal. Hence justification exists for
making no distinction between a mere refusal to proceed with the trial of a case for an
erroneous assumption of want of jurisdiction and the dismissal of a case for the same
erroneous reason. In other words, a court is without power to invest itself with a jurisdiction
it does not possess, or to divest itself of a jurisdiction it does possess.
power to invest itself with a jurisdiction it does not possess, or to divest itself of a jurisdiction
it does possess.
Per Curiam:
Petition for a rehearing denied.
____________
36 Nev. 364, 364 (1913) Mighels v. Eggers
[No. 1986]
THE STATE OF NEVADA, ex rel. H. R. MIGHELS, Petitioner, v. J. EGGERS,
State Controller, Respondent.
1. MandamusPurpose of WritEnforcement of Official Duty.
Performance of a duty, enjoined upon an officer by law without leaving him any discretion in its
performance, may be compelled by mandamus, if there be no other adequate remedy.
2. MandamusPurpose of Writ.
If a claim against the state for services authorized by law is presented, the amount of which has been
fixed by law and an appropriation made therefor, the claim may be enforced by mandamus.
3. MandamusDefensesAdequate Legal Remedy.
Mandamus will not issue when the ordinary legal remedies will give adequate relief.
4. StatesOfficersCompensationSecretary Industrial and Publicity Commission.
The act of March 29, 1907 (Stats. 1907, c. 185), sec. 3, provides that the chairman of the State Industrial
and Publicity Commission shall receive, as compensation for his services, to be paid out of the state
treasury, the sum stated, and the other two members shall serve without compensation. Section 4 provides
that the commission may appoint a secretary at a salary of not more than $1,800 per annum, and may
employ such other experts as may be necessary to perform any service that may be required of them, and
shall fix their compensation payable out of such contributions as may be made by the various counties and
private individuals. Section 6 permits the commission to solicit private contributions, but prohibits them
from receiving money in payment for specific services. Section 8 permits the various counties to allow a
certain sum to the commission. Section 9 requires the expenditures for necessary office supplies, etc., to be
audited and paid for as other state expenses are paid for, and section 10 requires the commission to report
every six months a detailed statement of all sums received, showing from what source received, and for
what purpose expended. Held, that the salary of a secretary of the commission, appointed at
a fixed salary, was payable only out of the contributions received, and not from the
state treasury, so that the state controller could not be compelled to draw warrants
for such salary.
the salary of a secretary of the commission, appointed at a fixed salary, was payable only out of the
contributions received, and not from the state treasury, so that the state controller could not be compelled
to draw warrants for such salary.
5. StatutesConstructionLegislative Intent.
The legislative intent in enacting a statute must govern if ascertainable.
6. StatutesConstructionConstruing as Whole.
The whole act should be construed together to remove or explain any ambiguity in a particular statute.
7. StatesFiscal Management.
Before the state controller is bound to draw a warrant for official salaries, it must appear by statute that an
appropriation has been made, and that the state has obliged itself to pay such salaries from the state
treasury.
8. Constitutional LawJudicial FunctionsConstruction of Statute.
The court has no legislative power, and cannot put into a statute a provision omitted by the legislature.
9. MandamusProof of Right.
Mandamus will issue only where the right to be protected is clear.
Original proceeding in mandamus by H. R. Mighels, as Secretary of the Nevada Industrial
and Publicity Commission, to compel the State Controller to draw his warrant in favor of the
petitioner for the amount of his salary as such secretary. Writ denied.
James D. Finch and George Springmeyer, for Petitioner.
Geo. B. Thatcher, Attorney-General, for Respondent.
The relator asks for a peremptory writ of mandate, requiring the state controller to draw his
warrants for $6,900, alleged to be due and unpaid as salary of the relator as secretary of the
State Industrial and Publicity Commission from August 1, 1907, to the 1st day of June, 1911,
when the act of March 29, 1907 (Stats. 1907, c. 185), creating that commission, became
repealed by an act of the legislature of March 17, 1911 (Stats. 1911, c. 74). It is not shown
that during this period of nearly four years he took any action to enforce the payment of his
salary.
Section 4, under which the relator seeks to recover such salary from the state, is as
follows: Said commission may appoint a secretary at a salary of not more than $1,800 per
annum, and may employ such other experts as may be necessary to perform any services it
may require of them, and shall fix their compensation, payable out of such contributions as
may be made by the various counties and by private individuals.
Under the amended demurrer it is contended on behalf of respondent, by brief and
argument, that this court has no jurisdiction of the subject-matter, that the petitioner has not
alleged that there is any appropriation for the payment of the salary, nor that the claim was
ever presented to the board of examiners, that the petitioner's salary was not fixed by law, and
consequently that mandamus is not the proper remedy. It is not alleged or claimed that the
respondent has in his possession any contributions from counties or private individuals, and
the questions arise whether relator's salary is fixed by law, and whether it is made payable as
an appropriation out of the state treasury.
Section 21 of article 5 of the constitution provides that the governor, the secretary of state,
and the attorney-general shall constitute a board of examiners to allow claims against the
state, except salaries and compensation of officers fixed by law.
Section 5653, Revised Laws, provides: An officer or person who has presented a claim
against the state for services or advances authorized by law, and for which an appropriation
has been made, but of which the amount has not been fixed by law, to the board of examiners,
which claim said board or the state controller has refused to audit and allow, in whole or in
part, may commence an action in any court in Ormsby County having jurisdiction of the
amount, for the recovery of such portion of the claim as shall have been rejected.
Section 5655 provides: Upon the presentation of a certified copy of a final judgment in
favor of the claimant in any such action, the controller shall draw his warrant in favor of the
claimant for the amount awarded by the judgment."
warrant in favor of the claimant for the amount awarded by the judgment.
1, 2. Where the law especially enjoins a duty upon an officer, and leaves him no discretion,
and there is no other adequate remedy, performance may be enforced by mandamus. (Mau v.
Liddle, 15 Nev. 271.) In cases where an officer or person has presented his claim against the
state for services authorized by law, the amount of which has been fixed by law, and for
which an appropriation has been made, the remedy by mandamus may be available. If the
legislature fixed the salary of relator, and made it payable out of the state treasury, such salary
became a settled demand against the state, which could not be changed by the board of
examiners, and which did not require their action prior to payment.
3. If relator's claim be regarded as one not fixed by law, he has a remedy after rejection by
the board, or by the state controller after action by the board, by civil suit in the district court
in Ormsby County, under the foregoing sections 5653 and 5655 of the Revised laws, and
therefore would not be entitled to the writ of mandate, because he would have another
adequate remedy, as determined by this court today in State, ex rel. Abel, v. Eggers, 36 Nev.
372, and in other cases: State, ex rel. Gleeson, v. Jumbo Ex. M. Co., 30 Nev. 192, 133 Am.
St. Rep. 715, 16 Ann. Cas. 896; Mayberry v. Bowker, 14 Nev. 340; State v. Langan, 29 Nev.
459.
As held in State v. James, 22 Nev. 263: the writ of mandamus will not issue when ordinary
remedies afford adequate relief. (State v. Guerrero, 12 Nev. 105; State v. Boerlin, 30 Nev.
473.)
4. We understand that this principle of law is conceded by the relator, and that he is
proceeding on the theory that his salary was fixed by law, and that an appropriation has been
made for its payment from the state treasury, which authorizes the drawing of a warrant by
the state controller, and that otherwise he would not ask for a writ of mandate.
It will be observed that the language of section 4 of the act, under which relator alleges
he was appointed secretary, and under which he seeks to recover salary, stating that
"said commission may appoint a secretary at a salary of not more than $1,S00 per
annum," although naming the maximum, does not fix the amount of the salary.
the act, under which relator alleges he was appointed secretary, and under which he seeks to
recover salary, stating that said commission may appoint a secretary at a salary of not more
than $1,800 per annum, although naming the maximum, does not fix the amount of the
salary. If the legislature had specified $1,800 per annum as the salary, and had directed its
payment out of the state treasury, under the constitution and statutes the claim would not have
to be presented to the board of examiners. The act having left it optional with the commission
to appoint a secretary at not more than $1,800 per annum, the commission could have fixed
the salary at $1,200 per annum, or any other amount not exceeding $1,800 per annum; and
consequently it may be argued that the salary was not fixed by law, and that approval or
action by the board of examiners is required, and therefore that mandamus will not lie to
compel the state controller to draw his warrant when the claim has not been acted upon by the
board, nor if acted upon by the board, because as indicated the statute provides a different
remedy by action in the court in Ormsby County.
For the relator it is contended that, as the legislature authorized the commission to appoint
a secretary at a salary of not more than $1,800 per annum, and thereby named the maximum
and authorized the commission to fix the salary, the legislature could delegate this power to
the commission, and that the salary became fixed by law when it was fixed by the
commission. It may be conceded that the legislature could authorize the commission to fix the
salary, and still be claimed that, although it was fixed by a commission authorized by law to
fix it, nevertheless it was not fixed by law or act of the legislature, but only by a commission
whose act in fixing it did not amount to a law. It is unnecessary for us to determine this phase
of the case, owing to the conclusion we reach regarding the other contentionthat the salary
is made payable out of the state treasury. If the last two commas in section 4 as quoted had
been omitted, possibly the payment out of the contributions would have been limited to the
compensation of experts employed by the commission.
would have been limited to the compensation of experts employed by the commission. If we
ignore the rule sometimes applied, which under that section as punctuated with commas
would carry the payment out of contributions back to any payments previously contemplated
by the sentence, instead of holding that the language and punctuation make the salary payable
out of the contributions, there would still be no provision for the payment of the salary of the
secretary out of the state treasury. Consequently, if the language used directs the payment of
his salary from any fund or source, it is from the contributions, for the section nowhere
provides that his salary shall be paid from the state treasury.
5, 6. The intention of the legislature in passing this law, as in the construction of statutes
generally, must govern if ascertainable. If one clause of a statute is obscure, the whole act or
different parts are to be examined together in order to remove or explain the ambiguity. (Ex
Parte Prosole, 32 Nev. 378; Maynard v. Johnson, 2 Nev. 25.)
The preceding section 3 of the act provided that: The chairman of such commission shall
receive, as compensation for his services, to be paid out of the treasury of the State of
Nevada, the sum of twenty-five hundred dollars per annum, payable in equal monthly
installments, upon the first day of each and every month, and the other two members shall
serve without compensation. We held that this language constituted an appropriation which
authorized the payment of the salary of the chairman out of the general fund of the state
treasury. (State, ex rel. Davis, v. Eggers, 29 Nev. 469, 16 L. R. A. n.s. 630.)
Section 6 of the act provided that the commission shall have the right to solicit and
receive private contributions, but shall accept no money or other consideration from any firm
or individual in payment of specific services or favors to be rendered.
Section 8 of the act was as follows: There may be allowed to such commission by the
commissioners of the several counties, if in their judgment they deem it advisable, a sum not
exceeding the amount of two hundred and fifty dollars per year, from each and every
county in the State of Nevada; and the boards of county commissioners of the various
counties of this state are hereby authorized and empowered to provide by appropriate
methods of taxation sufficient funds to defray the amounts contributed by their
respective counties, and the county auditors of the various counties of this state are
directed to and shall, within thirty days after being directed thereto by the board of
county commissioners of their respective counties, draw and transmit to such commission
the proper warrant or warrants to pay the sum contributed by their respective counties,
such sums to be used by the said commission for the purpose for which the commission is
established and for the best interests of the various counties and the State of Nevada,
under the direction of the chairman and at least one other member of the commission."
and fifty dollars per year, from each and every county in the State of Nevada; and the boards
of county commissioners of the various counties of this state are hereby authorized and
empowered to provide by appropriate methods of taxation sufficient funds to defray the
amounts contributed by their respective counties, and the county auditors of the various
counties of this state are directed to and shall, within thirty days after being directed thereto
by the board of county commissioners of their respective counties, draw and transmit to such
commission the proper warrant or warrants to pay the sum contributed by their respective
counties, such sums to be used by the said commission for the purpose for which the
commission is established and for the best interests of the various counties and the State of
Nevada, under the direction of the chairman and at least one other member of the
commission.
Section 9 provided that expenses for necessary office furniture, supplies, stationery,
books, periodicals, maps, * * * shall be audited and paid as other state expenses are audited
and paid.
Section 10 provided that such commission shall, at least once in every six months, fully
report to the advisory committee a full and detailed statement of all sums received and
disbursed by the commission during the preceding six months, showing in detail from what
source received, and for what purposes disbursements were made.
As the act makes direct provision that the salary of the chairman and the cost of furniture
and office supplies shall be paid out of the state treasury, and nowhere provides that the salary
of the secretary of the commission should be paid by the state, and does not provide for the
use of these contributions otherwise than in paying the salary of the secretary and the
compensation of other experts, or the compensation of the experts alone, we cannot say that it
was not the intention of the legislature that the salary of the secretary and the compensation of
other experts should be paid from contributions authorized to be received from
individuals and the several counties.
authorized to be received from individuals and the several counties.
At the time the general appropriation bill, approved March 22, 1907, was passed by the
legislature the act of March 29, 1907, creating the State Industrial and Publicity Commission,
had not been approved, and consequently it could not be inferred that the failure of the
legislature to make any provision in the general appropriation bill that year regarding this
commission indicated any intention that the salary of the secretary or chairman should or
should not be paid out of the state treasury. Both bills were passed during the closing hours of
the session. Although the law could not be amended by reference or omission in any
appropriation bill, the fact that at the next regular session the general appropriation bill
provided for the payment of the salary of the chairman of the commission, and omitted to
make any provision for the secretary of the commission, indicates that the legislature
construed the act as providing for the payment of the salary of the chairman out of the state
treasury, and not for such payment of the salary of the secretary. The constitution provides
that no money shall be drawn from the treasury but in consequence of an appropriation made
by law. (Rev. Laws, 277; State, ex rel. Davis, v. Eggers, 29 Nev. 469, 16 L. R. A. n.s. 630.)
7. In order to recover upon an obligation against the state or an individual, it is incumbent
upon the party seeking relief to show that an obligation exists. Certainly more than the
creation of a doubt as to whether the salary of the relator was payable out of the state treasury
or out of contributions is necessary, and it must appear by some provision of law that an
appropriation has been made, and that the state has obligated herself to pay this salary from
the state treasury before it becomes the duty of the controller to draw a warrant.
8. As the act nowhere provides that this salary shall be paid by the state, we are unable to
see how any recovery may be had against the treasury. If any moral obligation rests upon the
state, when it is not shown that any legal liability was created by statute, relief can only be
obtained through the legislature.
any legal liability was created by statute, relief can only be obtained through the legislature.
The function of the court is to determine the intention of the law-making branch of the
government from the language used, in accordance with the rules of construction. The court
has no legislative power, and cannot read into the statute a provision that the salary of the
relator shall be paid out of the state treasury, as the salaries of state officers are generally paid.
(Ex Parte Pittman, 31 Nev. 43, 22 L. R. A. n.s. 266, 20 Ann. Cas. 1319.)
9. As heretofore held, the court will grant the writ of mandate only when the right sought
to be protected is clear and undoubted. (State v. Stoddard, 25 Nev. 452, 51 L. R. A. 229.)
The demurrer is sustained, and the application for the writ is denied.
____________
36 Nev. 372, 372 (1913) Abel v. Eggers
[No. 2077]
THE STATE OF NEVADA, ex rel. J. F. ABEL, Deputy Superintendent of Public Instruction
of the State of Nevada, Petitioner, v. JACOB EGGERS, State Controller of the State of
Nevada, Respondent.
1. State GovernmentGeneral Appropriation ActsStatutory Construction.
General appropriation bills, as indicated by their titles, are passed for the support of the state government,
as the same is established by the constitution and general laws, and, as the life of such acts is limited to two
years, it is not to be assumed that the legislature intended by such appropriation acts to accomplish changes
or amendments in the general laws of the state.
2. Statutory ConstructionGeneral Appropriation ActsConstitutional Law.
Provisions in a general appropriation act for the support of the state government, providing for repeals or
amendments of the existing general laws of the state, would be unconstitutional and void as contrary to the
provisions of section 17 of article 4 of the constitution, and are not germane to the title.
3. State GovernmentGeneral Appropriation ActsStatutory Construction.
Provisions in general appropriation acts are in pari materia with the general acts controlling the purposes
for which the appropriation is made and are to be construed in connection therewith.
36 Nev. 372, 373 (1913) Abel v. Eggers
appropriation is made and are to be construed in connection therewith. Unless there is such a manifest
repugnance as to leave no room for reasonable construction otherwise, they will be construed so as to carry
out the provisions of the general law.
4. State GovernmentGeneral Appropriation ActsStatutory ConstructionTraveling
Expenses of District Deputy Superintendent of Public Instruction.
Sections 60-70 of the general appropriation act of 1913, making provisions for actual traveling
expenses for each of the five deputy superintendents of public instruction for the years 1913 and 1914,
should be read in connection with section 13 of the general act relating to public schools (Rev. Laws, 3251)
providing that all claims for traveling expenses, including the cost of transportation and cost of living, * *
* while absent from their places of residence, * * * shall be paid from the general fund of the state. The
fact that the word actual was used in the general appropriation act of 1913, in contradistinction to the
provisions of previous general appropriation acts, will not be deemed sufficient to manifest an intent upon
the part of the legislature to limit the purpose of such appropriation while the amount appropriated is the
same as made in previous appropriation bills, and as recommended to the legislature by the state controller
as required by law.
5. Statutory ConstructionRepeal by Implication.
Repeals by implication are not favored and occur only where there is such an irreconcilable repugnancy
that the two acts cannot stand together.
6. Statutory Construction.
Statutes relating to the same subject-matter will, if possible, be so construed as to give effect to both.
Courts in interpreting statutes will so construe them as to carry out the manifest purpose of the legislature
even though it may be necessary to disregard the literal meaning of certain of the language used.
Where the language of a statute is susceptible of two constructions, that construction should be applied
which will make it effective.
9. MandamusRemedy at Law.
Mandamus will not issue to compel the state controller to draw a warrant in favor of an unliquidated
demand against the state approved by the board of examiners, as an adequate remedy exists by civil suit
under the provisions of section 5653 of the Revised Laws.
Original proceeding in mandamus by J. F. Abel, Deputy State Superintendent of Public
Instruction, to compel the State Controller to draw his warrant for a certain claim for
expenses incurred while absent from his home in the discharge of his duties.
36 Nev. 372, 374 (1913) Abel v. Eggers
certain claim for expenses incurred while absent from his home in the discharge of his duties.
Writ denied.
Brown & Belford, for Petitioner.
This is an original proceeding in mandamus to compel the respondent, the state controller,
to draw his warrant for a claim approved by the state board of examiners for hotel and
kindred expenses incurred by the relator in the discharge of his official functions as deputy
superintendent of public instruction when absent from the place of his residence. The facts
stated in the petition are admitted by written stipulation, and a demurrer has been interposed.
1. It is the duty of the state controller to refuse to draw warrants in cases where payment is
not authorized by law, and naturally if there is a great doubt he takes the course which will
protect him and the state treasury. On his behalf it is contended that there is no appropriation
for the payment of these expenses in the general appropriation act for the years 1913 and
1914. (Stats. 1913, c. 139.) Sections 66 to 70, inclusive, make appropriations for actual
traveling expenses for each of the five deputy superintendents of public instruction, in
amounts varying from $1,000 to $1,500.
Differently from prior appropriation bills, the word actual has been inserted in this
general appropriation bill ahead of each of the provisions for traveling expenses for the
governor and attorney-general, for the state superintendent of public instruction, for the
deputy superintendents of public instruction in different districts, for district judges, and for
the mine inspector and his deputy. It is the contention of respondent that the items for hotel
charges are not actual traveling expenses under the provisions of the appropriation act, and
to support this contention reliance is had on the case of State v. LaGrave, 23 Nev. SS
36 Nev. 372, 375 (1913) Abel v. Eggers
support this contention reliance is had on the case of State v. LaGrave, 23 Nev. 88.
Section 13 of An act concerning public schools, and repealing certain acts relation thereto,
approved March 20, 1911 (Stats. 1911, c. 133),which was passed long after the decision in
that case, and which we have to consider here, provides that: All claims for the traveling
expenses, including the cost of transportation and cost of living, of each deputy
superintendent of public instruction while absent from their places of residence, together with
the necessary office expenses, shall be paid from the general fund of the state. (Rev. Laws,
3251.)
These appropriation bills, as indicated by the titles, are passed for the support of the state
government, and are not legislative acts changing the substantive or general laws of the state.
The civil government of the state is established by the constitution and general statutory
provisions, and it is for the support of such government that general appropriation bills are
enacted. it is not expected that changes and amendments in the general laws of the state will
be made in general appropriation bills, and the life of such acts is only two years.
2. Although failure to appropriate will prevent recovery from the state for traveling
expenses, if the legislature in the most explicit terms had designated in the general
appropriation bill that the statute providing for the payment of traveling expenses for different
officers should be repealed, or should be suspended for two years, such provisions or
enactments would be void under section 17, article 4, of the constitution, which provides:
Each law enacted by the legislature shall embrace but one subject, and matter properly
connected therewith, which subject shall be briefly expressed in the title; and no law shall be
revised or amended by reference to its title only; but, in such case, the act as revised, or
section as amended, shall be reenacted and published at length.
Any provision for the repeal or enactment of a law authorizing payment of the traveling
expenses of an officer would not be germane to this act, which is entitled "An act making
appropriations for the support of the civil government of the State of Nevada for the years
1913 and 1914," for the title does not indicate a purpose to repeal or amend any such
existing law.
36 Nev. 372, 376 (1913) Abel v. Eggers
entitled An act making appropriations for the support of the civil government of the State of
Nevada for the years 1913 and 1914, for the title does not indicate a purpose to repeal or
amend any such existing law. (State v. Gibson, 30 Nev. 356; State v. Board of County
Commissioners of Storey County, 22 Nev. 399; State v. Silver, 9 Nev. 231; Chase v. Rogers,
10 Nev. 253, 21 Am. Rep. 738.)
Any act to suspend or amend one or more acts would not be effective unless the title of the
amendatory act were pertinent; and if it were sought to amend two or more acts by one
amendatory act, it would not be valid or amend any act to which the title of the amendatory
act was not pertinent. (State v. Ah Sam, 15 Nev. 27, 37 Am. Rep. 454; Ex Parte Hewlett, 22
Nev. 333; State v. Commissioners, 22 Nev. 399; State v. Hoadley, 20 Nev. 318.)
3. It must be conceded that the use of the word actual in relation to traveling expenses, used
in the several sections of the general appropriation bill, if considered alone, affords room for
argument that the legislature thus manifested an intent to restrict the purposes for which the
appropriation was made. While the words actual traveling expenses, considered alone, may
give the inference that hotel bills are not to be allowed or paid, the fact that the legislature
appropriated the same amount for actual traveling expenses as designated in the general
appropriation bill at the previous session for traveling expenses, raises a doubt or contrary
inference that the legislature may have intended to appropriate enough to cover the payment
of the hotel bills. If, unlimited or not considered in connection with existing laws, the literal
language in appropriation bills were given effect, amounts larger than earned or provided by
law might often be paid. But the language used in the appropriation bill is not the only
language that is controlling in determining the legislative intent. In general appropriation bills
appropriations are made in concise language, usually intended to be supplemented by more
definite, existing statutes, and for the purpose of meeting the expenses of the state
government in accordance therewith.
36 Nev. 372, 377 (1913) Abel v. Eggers
the expenses of the state government in accordance therewith.
Sections of the general appropriation act are in pari materia with the general acts
controlling the purposes for which the appropriation is made. They are therefore to be
considered in connection with the general provisions of law to which they relate, and unless
there is such a manifest repugnance as to leave no room for reasonable construction
otherwise, they will be construed so as to carry out the provisions of the general law. This is
the view taken by this court in former decisions where the provisions of the general
appropriation act had been called in question. (State v. LaGrave, supra; State, ex rel. Fowler,
v. Eggers, 33 Nev. 535; State v. Westerfield, 23 Nev. 468.)
In the Fowler case an act of the legislature approved March 23, 1909 (Stats. 1909, c. 159),
provided that the salary of the deputy attorney-general should be $2,400 a year, payable in the
same manner as salaries of other state officers, which under an earlier statute was monthly.
The general appropriation bill appropriated $4,800 for the salary of the deputy
attorney-general for that and the succeeding year. It was held that the statute should be
considered in connection with the appropriation bill, that it was not in the nature of a relief
bill, and did not become effective until the date of the approval, and that instead of being
entitled to the full $4,800, as appropriated, by the language of the appropriation bill the salary
of the deputy attorney-general was limited by the statute, and was payable only at the rate of
$200 per month after the special act providing for such salary came into force.
If, as provided regarding district judges before the amendment of 1907, allowing their
necessary expenses at the place of holding court when away from home, the statute limited
the payment of traveling expenses for deputy superintendents of public instruction to
traveling expenses by public conveyance, or to actual traveling expenses, we might well
hold that living expenses could not be paid by the state for lack of any provision for such
payment, either in the statute relating to expenses or the general appropriation bill.
36 Nev. 372, 378 (1913) Abel v. Eggers
not be paid by the state for lack of any provision for such payment, either in the statute
relating to expenses or the general appropriation bill. Although there is room for difference of
opinion as to whether the mere words traveling expenses, when considered alone, include
more than fares or cost of transportation, or whether they would embrace the expense of
berths and meals on the train, or hotel bills while on the trip, we see no reason for
disapproving the close construction heretofore given by this court in State v. LaGrave, 23
Nev. 88, deciding that hotel bills of the superintendent of public instruction were not payable
under the statute providing for actual traveling expenses. We would not disagree with this
contention of respondent in this regard if these words alone controlled and were to be
construed in the appropriation bill or an act of the legislature, without reference to other
statutory language. Notwithstanding this decision, the legislature by enactment of a later
statute could provide for the payment of the living expenses of these officials when away
from home.
Unquestionably the legislature has the power to abolish or restrict the payment of traveling
expenses or otherwise change the law, but the proper way for manifesting such an intent is by
an amendment or repeal of the existing statute. Clearly the words inserted in the appropriation
act do not and could not accomplish this purpose. Whether an appropriation was or was not
made, the law still remains that deputy superintendents are entitled to be paid their expense
for cost of living while absent from their place of residence in the discharge of their duties.
4. The question then is: Did the legislature fail to make an appropriation to cover certain
expenses which deputy superintendents are entitled to claim from the state as a matter of law?
The amount appropriated for the actual traveling expenses of the deputy superintendent was
the same as appropriated at the previous session for the traveling expenses of these
officials.
36 Nev. 372, 379 (1913) Abel v. Eggers
It was the amount recommended by the state controller in his report to the legislature, made
pursuant to law, in estimating the expenses for the maintenance of the state government
which the legislature would be expected to provide. If there had been a reduction in the
appropriation, it might be argued therefrom that the legislature did not at this time intend to
provide for any expenses other than traveling expenses in the restricted sense. If this
construction is to be placed upon provisions of the appropriation act, then we must attribute
to the legislature a purpose to cause the deputy superintendents to perform a greater extent of
traveling than they had been accustomed to do in years past, and to contribute from their
private resources a very much larger amount than they would be called upon to contribute if
they did no more traveling than in the years past, when all of their expenses were paid by the
state. It does not seem probable that such a purpose or result was contemplated by the
legislature. The same would be true regarding other officers for whose actual traveling
expenses appropriations are made.
As, beyond question, the legislature had made the cost of living of the deputy
superintendents of public instruction, while absent from their places of residence, a part of the
traveling expenses which they are entitled to be allowed by the state, we conclude that the
provision in the general appropriation bill for actual traveling expenses means the actual
traveling expenses as now allowed by the general law, including the cost of living actually
incurred while away from home performing official duties, not exceeding the amount of the
appropriation, and that the payment of such expenses is not limited by the decision of this
court construing an earlier act which did not provide for the cost of living. Under such a
construction the state may properly pay the cost of living of the deputy superintendents while
away from home, in compliance with the later statute as enacted by the legislature, which was
not repealed nor suspended by this general appropriation bill.
36 Nev. 372, 380 (1913) Abel v. Eggers
In the LaGrave case the court was construing in connection with the appropriation bill a
statute providing for the payment of the actual traveling expenses of the state superintendent
of public instruction which did not provide for hotel bills or living expenses, and which has
been superseded by a different law, and here we are construing in connection with an
appropriation bill, and giving effect to an act of the legislature which has not been repealed,
and which definitely provides that the cost of living of the deputy superintendents of public
instruction while absent from their places of residence shall be paid from the general fund of
the state. In order to arrive at a different conclusion, it would be necessary to disregard the
general provisions of the law, which should be mainly considered in construing doubtful
sections of the appropriation bill. If upon consideration of the language in the general
appropriation bill in connection with the statute a doubt arises, naturally we conclude that the
legislature intended to comply, instead of to fail to comply, with the statute. A failure to make
any appropriation for or payment of the traveling expenses for two years would, in effect,
amount to a repeal or suspension of the law for at least that period.
To hold that under these circumstances the legislature did not intend to make an
appropriation for the payment of the living expenses would be equivalent to saying that,
contrary to the good faith so generally kept or practiced by the state in complying with the
laws, the legislature, at least for two years, intended not to meet the obligation imposed by
statute to pay the hotel bills of the district deputy superintendents.
5. Repeals by implication are not favored, and occur only if there is an irreconcilable
repugnancy, where the two acts cannot stand together. (State v. Donnelly, 20 Nev. 214;
Walley's Estate, 11 Nev. 260.) The same liberal rule of construction ought to apply in favor of
a statute which might otherwise have its clear provisions made inoperative or be suspended.
36 Nev. 372, 381 (1913) Abel v. Eggers
6. It is also a well-recognized principle that statutes relating to the same matter which can
stand together should be construed so as to make each effective. (State v. Donnelly, 20 Nev.
214; State v. Rogers, 10 Nev. 319; State v. Hoover, 5 Nev. 141.)
7. In the interpretation of statutes the courts so construe them as to carry out the manifest
purpose of the legislature, and sometimes this has been done in opposition to the words of the
act. (Gibson v. Mason, 5 Nev. 283.)
8. If different meanings may be given to a statute, the one should be applied which will make
it effective. (State v. Martin, 32 Nev. 198; Hettel v. District Court, 30 Nev. 382, 133 Am. St.
Rep. 731.)
9. Notwithstanding relator may be entitled to recover his living expenses from the state, he
cannot prevail in this proceeding because he has a remedy by an ordinary civil action. Section
5695 of the Revised Laws provides that the writ of mandamus may be issued by the supreme
court, a district court or a judge of the district court, to compel the performance of an act
which the law especially enjoins as a duty resulting from an office, trust or station; the
following section directs that this writ shall be issued in all cases where there is not a plain,
speedy, and adequate remedy in the ordinary course of law, and it has often been held that
the writ will not issue if such remedy exists. (State, ex rel. Gleason, v. Jumbo Ex. M. Co., 30
Nev. 192, 133 Am. St. Rep. 715, 16 Ann. Cas. 896; Mayberry v. Bowker, 14 Nev. 340; State
v. Boerlin, 30 Nev. 473; State v. Langan, 29 Nev. 459; Van Riper v. Botsford, 29 Nev. 465.)
In State v. Storey County, 22 Nev. 263, it was said that the writ of mandamus should be
resorted to only when the ordinary remedies do not afford adequate relief and without it there
would be a failure of justice.
Section 21 of article 5 of the constitution provides that the governor, the secretary of state,
and the attorney-general shall constitute a board of examiners to allow claims against the
state, except salaries and compensation of officers fixed by law.
36 Nev. 372, 382 (1913) Abel v. Eggers
claims against the state, except salaries and compensation of officers fixed by law.
Section 4459, Revised Laws, provides: All claims against the state for services or
advances, for payment of which an appropriation has been made by law, and which have been
by law authorized, but of which the amount has not been liquidated and fixed, may be
presented to the board of examiners in the form of an account or petition, and in such manner
as said board shall prescribe by their rules, the claimant may present his evidence to sustain
said demand, which evidence, if oral, shall be reduced to writing, and they shall either reject
or allow the claim, in whole or in part, within thirty days from its presentation, and shall
indorse upon the same, if allowed in whole or in part, over their signature: Approved for the
sum of ____ dollars,' and shall immediately transmit the same so indorsed, together with all
the evidence received by them relating thereto, to the controller of state. The controller shall
not allow or draw his warrant for any claim of the class described in this section, which shall
not have been approved by said board, or a greater amount than allowed by said board, except
when said claim shall not have been acted upon by said board within thirty days prior to its
presentation.
Section 5653 provides: An officer or person who has presented a claim against the state
for services or advances authorized by law, and for which an appropriation has been made,
but of which the amount has not been fixed by law, to the board of examiners, which claim
said board or the state controller has refused to audit and allow, in whole or in part, may
commence an action in any court in Ormsby County having jurisdiction of the amount, for the
recovery of such portion of the claim as shall have been rejected.
Section 5655 provides: Upon the presentation of a certified copy of a final judgment in
favor of the claimant in any such action, the controller shall draw his warrant in favor of the
claimant for the amount awarded by the judgment.
36 Nev. 372, 383 (1913) Abel v. Eggers
Under these statutes the relator has an adequate remedy by ordinary action at law in
Ormsby County.
The petition for writ of mandamus is denied.
____________
36 Nev. 383, 383 (1913) State v. McMillan
[No. 2085]
THE STATE OF NEVADA, ex rel. G. H. BEEBE, Petitioner, v. WILLIAM McMILLAN,
Treasurer of the State of Nevada, Respondent.
1. State GovernmentPayment from Public FundsState Insurance FundState
Treasury.
The constitution, art. 5, sec. 21, constitutes the governor, secretary of state, and attorney-general a board
of examiners to examine claims against the state, except the compensation of officers fixed by law. Article
4, section 19, provides that no money shall be drawn from the state treasury except to meet appropriations
made by law. Article 5, section 22, provides that the state treasurer and state controller shall perform duties
prescribed by law. Rev. Laws, 4459, requires all claims against the state, provided for by appropriation, but
not liquidated, to be presented to the board of examiners for approval, and that the controller shall not
allow them unless so approved. Section 4157 defines the general duties of the state controller, section 4158
requires him to audit all claims against the state for which appropriation has been made, of which the
amount has not been definitely fixed by law, and which have been examined and approved by the board,
and to allow claims as provided by law, and section 4159 requires him to draw all warrants upon the
treasury and to account therefor. The act relating to the compensation of workmen (Stats. 1913, c. 111),
receiving injuries in the course of their employment resulting in death, creates an industrial insurance
commission, composed of the governor, state mining inspector, attorney-general and two others named by
them, and a state insurance fund derived from premiums paid by such employers as accept the terms of the
act, and by section 24 provides that all premiums shall be paid to the state treasurer, and by section 40 that
the state shall not be liable for any compensation under the act except from such funds. Held, that the state
treasury did not include the state insurance fund, which was a special fund given to the treasurer in trust,
as distinguished from the general taxes and revenues of the state, and that the requirement for presentation
of claims to the board of examiners and the issuance of warrants by the controller did not apply.
Original proceeding for writ of mandate by the State of Nevada, on the relation of G. H.
Beebe, against William McMillan, as Treasurer of the State of Nevada.
William McMillan, as Treasurer of the State of Nevada. Demurrer overruled, with leave to
answer.
William Forman, for Petitioner.
Relator applies for a writ of mandate commanding the state treasurer to pay out of the
state insurance fund a claim which has not been approved by the board of examiners. It is
agreed that the case be considered as standing upon demurrer to the petition, and the question
argued, and which the court is requested to determine, is whether the state treasurer may
properly pay claims against this fund without the approval of the board of examiners and the
warrant of the state controller. The respondent has taken the safer course by refusing to pay
before an adjudication of the statute is obtained.
The legislature at its last session passed an act entitled: An act relating to the
compensation of injured workmen in the industries of this state and the compensation to their
dependents where such injuries result in death, creating an industrial insurance commission,
providing for the creation and disbursement of funds for the compensation and care of
workmen injured in the course of employment, and defining and regulating the liability of
employers to their employees; and repealing all acts and parts of acts in conflict with this
act. (Stats. 1913, c. 111.) It provides for the Nevada Industrial Commission, to be
composed of the governor, state mining inspector, attorney-general, and two others to be
selected by the three named, that a majority of these shall constitute a quorum for the
transaction of the business of the commission, and for a state insurance fund, to be derived
from premiums to be paid by employers, based on percentages of monthly payrolls, in cases
where notice of rejection of the terms of the act is not served by the employer or employee.

Section 24 provides that all premiums designated in the act shall be paid to the state
treasurer, and shall constitute the state insurance fund for the benefit of employees and their
dependents.
Section 40 provides that the state shall not be liable for the payment of any compensation
under the act except from the state insurance fund, to be derived from the payment of these
premiums, and section 41 that the expenses of administration shall not exceed ten per cent of
the amount of the premiums paid into this fund.
Differently from the provisions generally existing in other states, our constitution provides
that the governor, secretary of state and attorney-general shall constitute a board of
examiners with power to examine all claims against the state, except salaries or compensation
of officers fixed by law. (Art. 5, sec. 21.) The organic act also provides, at section 19, article
4, that no money shall be drawn from the state treasury but in consequence of appropriations
made by law, and at section 22, article 5, that the secretary of state, state treasurer, and state
controller shall perform such other duties as may be prescribed by law.
Section 4459 of the Revised Laws provides that: All claims against the state for service or
advances, for payment of which an appropriation has been made by law, and which have been
by law authorized, but of which the amount has not been liquidated and fixed, must be
presented to the board of examiners in the form of an account or petition, and in such manner
as said board shall prescribe by their rules. * * * The controller shall not allow or draw his
warrant for any claim of the class described in this section, which shall not have been
approved by said board, or a greater amount than allowed by said board, except when said
claim shall not have been acted upon by said board within thirty days prior to its
presentation.
Section 4157 provides: He shall keep and state all accounts between the State of Nevada
and the United States, or any state or territory, or any individual, corporation, or public
officer of this state, indebted to the state, or instrusted with the collection, disbursement,
or management of any moneys, funds or interests, arising therefrom, belonging to the
state, of every character and description whatsoever, where the same are derivable from
or payable into the state treasury.
corporation, or public officer of this state, indebted to the state, or instrusted with the
collection, disbursement, or management of any moneys, funds or interests, arising therefrom,
belonging to the state, of every character and description whatsoever, where the same are
derivable from or payable into the state treasury. He shall examine and settle the accounts of
all county treasurers, and other collectors and receivers of all state revenue, taxes, tolls, and
incomes, levied or collected by any act of the legislature and payable into the state treasury,
and certify the amount or balance to the state treasurer. He shall keep fair, clear, distinct, and
separate accounts of all the revenues and incomes of the state, and also, all the expenditures,
disbursements, and investments thereof, showing the particulars of every expenditure,
disbursement, and investment.
Section 4158 enacts: He shall audit all claims against the state, for the payment of which
an appropriation has been made, but of which the amount has not been definitely fixed by
law, and which shall have been examined and passed upon by the board of examiners, or
which shall have been presented to said board, and not examined and passed upon by them
within thirty days from their presentation; and he shall allow of said last-mentioned claims
(not passed upon by the board of examiners within said thirty days after presentation), the
whole, or such portion thereof as he shall deem just and legal, and of claims examined and
passed upon by the board of examiners, such an amount as he shall decree just and legal, not
exceeding the amount allowed by said board. And no claim for services rendered, or advances
made to the state or any officer thereof, shall be audited or allowed unless such services or
advancement shall have been specially authorized by law, and an appropriation made for its
payment. For the purpose of satisfying himself of the justness and legality of any claim, he
shall be allowed to examine witnesses under oath and to receive and consider documentary
evidence in addition to that furnished him by the board of examiners. He shall draw warrants
on the treasurer for such amounts as he shall allow of claims of the character above
described, and also for all claims of which the amount has been definitely fixed by law,
and for the payment of which an appropriation shall have been made."
amounts as he shall allow of claims of the character above described, and also for all claims
of which the amount has been definitely fixed by law, and for the payment of which an
appropriation shall have been made.
Section 4159 is as follows: He shall audit all warrants upon the treasurer for money, and
each warrant shall express, in the body thereof, the particular fund out of which the same is to
be paid, and no warrant shall be drawn upon the treasury except there be an unexhausted
specific appropriation, by law, to meet the same. The controller shall keep an account of all
warrants by him drawn on the treasury, and a separate account under the head of each specific
appropriation, in such form and manner as at all times to show the unexpended balance of
each appropriation.
Is the state insurance fund, as so derived from premiums, identical with the state treasury,
and are the demands against it claims against the state within the meaning of the
constitutional and statutory provisions regarding approval by the board of examiners and the
drawing of warrants by the state controller? If action by this board and official were required,
much of the detail work performed by the special officers and clerical force of the industrial
commission would have to be delayed until it could be considered by the board, which meets
bimonthly, and has many other duties to perform, and the further question would arise
whether the payment of such claims would have to be deferred until an appropriation, the
amount of which would not be easy to determine, could be made by the legislature. Under the
law as indicated it is evident that all claims against the state treasury must be presented to the
board of examiners and to the state controller before they can be paid out of that exchequer.
But if the fund be regarded as a special one, placed in the hands of the state treasurer for safe
keeping, in trust for employees injured and the dependents of employees who are killed, and
as separate from the state treasury, presentation of claims to, or action by, the board of
examiners or the controller is not required by these general laws relating to claims against
the state treasury, or otherwise, for the Nevada industrial commission act does not
provide that claims against the state industrial insurance fund shall be presented to the
board of examiners or to the state controller.
controller is not required by these general laws relating to claims against the state treasury, or
otherwise, for the Nevada industrial commission act does not provide that claims against the
state industrial insurance fund shall be presented to the board of examiners or to the state
controller.
The fact that the state treasurer is made the custodian of the fund does not necessarily
make it a part of the state treasury. The provision in the act that $2,000 should be paid to the
Nevada Industrial Insurance Commission out of any moneys in the state treasury not
otherwise appropriated, and that within six months after the receipt of that sum the
commission should, out of the premiums received by it from employers, repay that amount to
the state treasury, may be considered as indicating that the legislature intended that the
commission should draw that sum as a loan from the state treasury, and thereafter disburse it
without approval by the board of examiners or the state controller, and inferentially that there
should be a fund separate from the state treasury, and that the commission should likewise
disburse any moneys in that fund without action by the board of examiners or the state
controller.
Any act of the legislature requiring employers to contribute to the state treasury for the
support of the state government a percentage on the monthly payrolls, on the basis on which
premiums are paid into the state insurance fund, would be unconstitutional because not
uniform taxation. (Art. 4, sec. 20.) These premiums are not paid for the purposes for which
taxes and revenues are usually paid into the state treasury, and could not be used or made
available for the payment of warrants for the ordinary expenses of the state government which
are payable out of the state treasury. The state insurance fund being derived only from the
payment of premiums by employers who do not object to coming under the terms of the
compensation act, and being provided for the special and humane purpose of compensating
employees who are maimed or injured, and the widows and orphans of those who are
killed, may be distinguished from the state treasury, which is provided for the payment of
the general expenses of the state government, and which is supplied under compulsory
laws and provisions of the constitution requiring a uniform system of taxation.
and the widows and orphans of those who are killed, may be distinguished from the state
treasury, which is provided for the payment of the general expenses of the state government,
and which is supplied under compulsory laws and provisions of the constitution requiring a
uniform system of taxation.
The state insurance fund should be regarded as separate from the state treasury, as are
county and city funds, which are derived under general or special acts of the legislature. The
state treasury has a well-understood meaning, which does not include such a special fund as
this one, providing for injured employes and their dependents, and we conclude that the
requirements for presentation of claims against the state treasury to the board of examiners
and the controller do not apply to the state insurance fund.
The demurrer, upon the ground that the approval of the board of examiners and the
warrant of the controller are required before claims may be paid from that fund, is overruled.
Respondent may answer within ten days if he desires.
____________
36 Nev. 390, 390 (1913) Potosi Zinc Co. v. Mahoney
[No. 2059]
POTOSI ZINC COMPANY (a Corporation), CHRIS N. BROWN, P. G. GRAY,
WILBUR O. DOW, and ELEANOR BROWN, Appellants, v. J. J. MAHONEY and
P. H. MAHONEY, Respondents.
1. Appeal and ErrorObjection BelowMotion for New TrialNecessity.
An appellant cannot obtain a review of matters not complained of in the motion for new trial.
2. Libel and SlanderSlander of TitleNature of ActionSlander.
While the original term slander was applied more to words or utterances, the nature of which were
defamatory of individuals, the term is applicable to utterances with reference to property, whether real or
personal; but, in order to maintain an action for slander of title to property, it is necessary to show that the
words spoken were false, that they were maliciously spoken, and that plaintiff suffered a pecuniary injury.
3. Libel and SlanderSlander of TitlePublication.
In slander of title it must appear that the defamation complained of was published, and the rule existing in
libel cases that they are not deemed to be published where the manuscript comes directly and unread into
the possession and control of the plaintiff is applicable; the defendant not being liable where plaintiff,
having received it, displays it to third persons.
4. Libel and SlanderSlander of TitleRemedy.
In general, in actions for slander of title to property, there can be no recovery except for damages, and a
party is hardly entitled to the extension of an option because of the grantor's slander of the option.
5. Libel and SlanderSlander of TitleActionsEvidenceSufficiency.
In an action by the grantees of an option, where they sought an extension of the same because of the
grantor's slander of the option, evidence held insufficient to establish such slander.
6. Appeal and ErrorReviewMortgages.
A finding by the trial court on conflicting evidence will not be disturbed on appeal, unless it is clear that a
wrong conclusion has been reached.
Appeal from the Fourth Judicial District Court, Clark County; E. J. L. Taber, Judge.
Action by the Potosi Zinc Company (a corporation) and others against J. J. Mahoney and
P. H. Mahoney. From a judgment for the defendants, the plaintiffs appeal.
a judgment for the defendants, the plaintiffs appeal. Affirmed.
W. R. Thomas, Haas, Garret & Dunnigan, and Stewart & Stewart, for Appellant.
Richard Busteed and Gray, Barker, Bowen, Allen, Van Dyke & Jutten, for Respondents.
By this action, brought in the district court of the Fourth judicial district in and for Lincoln
County, plaintiffs, appellants herein, sought to obtain a decree of that court extending the
time for the exercise of a certain option, or, in lieu thereof, a decree declaring that the
cancelation of a certain agreement entered into between the Potosi Mining Company and the
Potosi Mineral Company and theretofore conveyed by mesne process to plaintiffs be set
aside. The cause was tried in the Fourth judicial district court before Hon. Geo. S. Brown,
judge thereof presiding, and judgment was entered by the said judge in favor of respondents
and against the appellants. Subsequently a motion for a new trial was made and presented to
the same court before Hon. E. J. L. Taber, successor of Judge Brown, and his judgment was
thereafter entered, denying plaintiffs' motion for a new trial. In so far as the record discloses,
the principal ground relied upon in furtherance of the motion for a new trial was that the
evidence did not sustain the judgment theretofore entered by Judge Brown, formerly
presiding judge of said court. Heretofore an appeal was taken to this court from the judgment,
and the same was dismissed by this court for want of prosecution.
1. Appellants, in their motion for a new trial, relied upon three grounds: First, that the
decision and judgment were not supported by the evidence, and were contrary to the
evidence; second, that the decision was against the law; and, third, that the court
committed errors of law at the trial of the cause.
against the law; and, third, that the court committed errors of law at the trial of the cause.
These being the only matters presented to the trial court on motion for a new trial, they are
therefore the only matters upon which this court will review.
As appears from the appellants' brief, the principal ground relied upon to authorize the trial
court in granting a new trial, or to authorize this court in reversing the trial court in this
respect, is that the decision of the trial court is not supported by the evidence, and is contrary
thereto. Appellants, in their brief, especially except to the finding No. 15, as filed by the trial
court, wherein that court stated: That they (the respondents) never declared that they did not
consider said option in full force and effect. That they never declared that they repudiated the
same. That they never slandered nor cast doubt upon the title of said option holders to said
option. That they have never at any time repudiated said option in any way, nor represented to
any one that they did not consider said option in effect. * * * The court finds that no acts or
conduct of defendants in any way prevented said option holders from making a sale of such
property, or from paying the purchase price therefor within the time aforesaid. That it is not
true that by reason of any act of defendants said option holders have been deprived of five
months and ten days, or of any time whatever of the period provided by said option
agreement, and the court finds that plaintiffs and said option holders in particular have
suffered no injury whatever, nor will they continue to suffer injury if defendants are permitted
to declare said option terminated. And the court finds that no damage or detriment has been
suffered by plaintiffs or any of them on account of any conduct of defendants.
As appears from the transcript in this case, an option on a certain group of mining claims
was executed by J. J. and P. H. Mahoney, respondents herein, to Chris N. Brown, Wilbur O.
Dow, and P. G. Gray, as trustees for the benefit of the Potosi Zinc Company. By the terms of
the option the said Brown, Dow, and Gray, as trustees, were to pay to Mahoney Bros.
of the option the said Brown, Dow, and Gray, as trustees, were to pay to Mahoney Bros.
$100,000 in payments as follows: $50,000 on or before six months from the 20th day of
March, 1909; $25,000 in one year; and $25,000 in two years from the date of the contract. At
the time of making the contract the trustees paid to Mahoney Bros. the sum of $250, and
agreed to pay the sum of $150 per month for four additional months into the Citizens'
National Bank, at Los Angeles, Cal.
At the trial of the case J. J. Mahoney was called as a witness on behalf of the plaintiffs,
and from the transcript it appears that he testified: About one month after said option was
given I tendered back the $250 paid on said agreement to Chris N. Brown, J. N. Strine, and
Wilbur O. Dow, each separately, and told them that we wanted to cancel the contract, and we
withdrew from the Citizens' National Bank all deeds and title papers theretofore deposited
with said Citizens' National Bank for the perfection of sale under said option in the event said
option was exercised. At another place in his testimony he said in substance: We refused to
accept the $150 per month deposited in the Citizens' National Bank each month for four
months under said agreement.
Appellants in this case contended in the trial court that, by reason of the acts and
utterances of J. J. and P. H. Mahoney relative to the option, they were unable to sell or
dispose of the property, and therefore unable to carry out and complete the terms and
conditions of the option. But, in reviewing the testimony given and the exhibits as filed, it is
apparent that the utterances of respondents relative to rescinding the option were made only
to Gray, Brown, and Dow, the parties to whom the option had been given, or to their
attorneys.
It appears that on March 25 respondents wired P. G. Gray as follows: Meet me Los
Angeles must discuss option further to once otherwise trouble ahead.
Plaintiffs' Exhibit No. 12 is a letter from W. E. Smith, watchman at the mine, to P. G.
Gray, one of the trustees for the appellant corporation. In that letter the writer says: "I can't
see how I am going to do anything with the property the shape it is in. Mr. Mahoney has
been up twice, and says you people misrepresented things to him, and he says he will not
turn the property over."
says: I can't see how I am going to do anything with the property the shape it is in. Mr.
Mahoney has been up twice, and says you people misrepresented things to him, and he says
he will not turn the property over. In the latter part of the same letter the writer says: If you
get it in shape, I can sell the mine; but here is one month past, and nothing doing. I can't get
any more provisions in town, and I am fighting every time I am in town to keep them from
liening the mine; but they won't be put off very much longer. In his testimony the witness
Smith, writer of the letter, plaintiffs' Exhibit No. 12, of which the foregoing are excerpts,
said: Referring to my statement and he says he will not turn the property over,' I do not
know as he said that exactly. I put that in to hurry these people up. Mr. Mahoney did not tell
me that he would rescind the option. The appellants contend that, the defendants having
loaded and shipped ore from the mine after signing the option, their acts in that respect tended
to establish appellants' contention that Mahoney Bros. had repudiated the contract, and by
their shipping ore from the mine evidenced their repudiation to the world.
Defendants' Exhibit No. ZZ is a carbon copy of a letter from Mahoney Bros. to the Empire
Zinc Company, at Denver, and in that letter the following appears: We have a carload of
zinc ore at Arden Station, Nevada, which we would like to sell. Please quote us your best
price. This ore will run about 37 per cent to 38 per cent zinc and probably 10 per cent lead.
We have taken over the Potosi Zinc Mine, and you will remember we shipped you a great
deal of ore some few years ago. Please give us your best prices on the ore, as we want to get a
line on what this ore is worth. We will be ready to ship the ore in about ten days, and would
like to hear from you before then.
Defendants' Exhibit No. NN is a carbon copy of a letter from Mahoney Bros., respondents
herein, in reply to the Empire Zinc Company, in which letter it is stated: "We are receipt of
your letter of May 14 in regard to a carload of zinc, which we are about to ship from
Arden, Nevada You understand we will not be in a position to make shipments of ore
steadily from the mine until some time in September; but, as we had just a carload at
Arden, we wanted to ship it immediately.
We are receipt of your letter of May 14 in regard to a carload of zinc, which we are about to
ship from Arden, Nevada You understand we will not be in a position to make shipments of
ore steadily from the mine until some time in September; but, as we had just a carload at
Arden, we wanted to ship it immediately. * * * This is a very nice bunch of ore, and we
would like to dispose of it, but do not like to ship it to anybody else. * * * Some time in
September we would like to take up the question of operating the mine and shipping ore to
you steadily; but until that time we do not think it would be any use to take the question up.
It may be well to observe at this point that by the conditions of the option in question in
this case the time for making the first payment of $50,000 expired on the 20th day of
September.
The testimony of P. H. Mahoney relative to the foregoing letters was introduced in
explanation of the statement made therein, and from the transcript it is disclosed that the ore
shipped to the Empire Zinc Company by Mahoney Bros. and mentioned in the
communication was ore that had been on the ground at the time of filing the option. The
respondents J. J. Mahoney and P. H. Mahoney, being called upon the stand, both deny having
repudiated the option contract. It nowhere appears in the transcript that they even inferentially
repudiated their contract, or that they requested a rescission of the contract to parties other
than those to whom the option had been given, or the attorneys for the parties.
The letter of J. J. Mahoney to P. G. Gray, dated April 28, while it states that he had taken
all of the papers out of escrow, set forth: At any rate, it seems to me that, if yourself and
your associates intend to avail yourselves of the option, it is your immediate duty to remove
all liens and to cause conveyances of the claims filed on by Smith to be made to us, instead of
to the Potosi Zinc Company.
Plaintiffs' Exhibit No. 5 is a carbon copy of a letter from Mahoney Bros. to W. E. Smith,
watchman in charge of the mine, of date July 10, 1909, and in that letter respondents
state: "There are several reasons why we would prefer not to be responsible for this work
{assessment work) at present.
from Mahoney Bros. to W. E. Smith, watchman in charge of the mine, of date July 10, 1909,
and in that letter respondents state: There are several reasons why we would prefer not to be
responsible for this work (assessment work) at present. There will be time enough in which to
do the work after September 20. We request that this entire matter be postponed until after the
option agreement has expired, unless the option holders are paying costs.
Counsel for appellants, in their brief, contend that, as P. G. Gray, one of the option
holders, was carrying on negotiations for the sale of the property with companies and
concerns in close business connection with the Empire Zinc Company, and as he was also
negotiating with the Empire Zinc Company itself, through its representatives, with the view
of selling the property and complying with the terms of the option, the letters from Mahoney
Bros. offering ore from the mine for sale, and their acts and utterances in that respect, tended
to repudiate the option given to Gray, Brown, and Dow.
There is no evidence in the record disclosing that the Empire Zinc Company, or any of
their business associates with whom Mr. Gray was negotiating, considered the acts or
utterances of Mahoney Bros. in the sense of repudiation of the option. Moreover, as appears
from the letters of Mahoney Bros., respondents herein, to the Empire Zinc Company, the
option and contract were recognized by respondents to such an extent that they stated to the
Empire Zinc Company, in their letter of May 22, that some time in September they would like
to take up the question of operating the mine and shipping ore steadily, and, again, in their
letter of July 29 to the Empire Zinc Company, they said: We have concluded, however, not
to commence operations until about the first of October.
In our judgment these letters set forth in no uncertain terms the acknowledgment of
respondents of their inability to ship ore from the Potosi mine until a time after the date at
which the option of appellants would have expired.
the date at which the option of appellants would have expired.
From the record in this case and the letters filed as exhibits, it appears that, in so far as the
option holders were concerned, there was one especially energetic in his efforts to bring about
a culmination of the contract. This was P. G. Gray, who, according to his letters, visited
concerns in the eastern cities for the purpose of negotiating a sale of the property. As appears
from the letters of P. G. Gray in the record, and from his testimony, he was putting forth
every effort to bring about the desired result, i.e., the sale of the property. It appears from his
letters that he was handicapped in this effort, first, by reason of tariff legislation then pending
in Congress, secondly, by reason of his inability to secure the expert's report, and, thirdly, and
perhaps most important of all, by the shortness of time allowed him in which to bring about a
transaction of this magnitude. Gray being the one who had assumed the burden of completing
the transaction, and he being by far the most energetic and active in his endeavors to bring
about the fulfilment of the contract, and he being an interested party in the affair, his
testimony in behalf of the appellants must be considered with the view of determining
whether or not the acts or utterances of the respondents hindered him to any degree, or were
responsible for his failure to bring about the desired result.
In his testimony the witness Gray said: Troutman is with the Empire Zinc Company. I
saw Mr. Troutman several times, and tried to get him to put up the $50,000. The thing was
practically consummated that afternoon of the 16th of September. He pressed the button for
the lawyer to come down. He said that part of it was all right, but he wanted time to look into
details. I wired Los Angeles that we needed a few more days. That was all the interfered with
the deal at that time. * * * The fact that I did not have Mr. Smith's report on the property
before the 1st of August interfered with my handling the property prior to that time.
interfered with my handling the property prior to that time. It did not give me the ammunition
I wanted. When I say in my letter that it was impossible to handle the property without the
engineer's report, I mean that retarded the sale.
From the foregoing exhibits, and from the testimony of Gray, it will be observed that the
empire Zinc Company, with whom Mr. Gray was negotiating for the sale, being the same
company with whom the respondents had corresponded relative to shipments of ore, did not
regard the correspondence of respondents as acts or declarations repudiating or rescinding the
option held by appellants. The empire Zinc Company, as appears from the testimony of Mr.
Gray, were ready to transact business with the option holders. All that interfered with the deal
at that time, according to Mr. Gray's testimony, was the fact that they needed a few more days
to look into details. The testimony of witness Gray discloses an energetic effort on his part to
sell the property and comply with the terms of the option, and his efforts did not appear to be
less energetic after receiving the letter of April 28 from respondents Mahoney. It does not
appear from his testimony that he regarded the utterances in that letter as a repudiation of the
option on the part of Mahoney, because, as appears from his testimony, he visited many
concerns after that date with the view of selling the property. It nowhere appears that the acts
or utterances of respondents relative to the option were made known to any of the parties with
whom Gray negotiated save and except in so far as they may have been disclosed by Gray
himself, and, if this was done, the respondents Mahoney could not be held responsible for the
results of the acts of appellants, or their representatives.
As appears from the transcript in this case, and especially from the testimony of the
witness Gray, negotiations which he endeavored to carry on with concerns in the east, with
the view of selling the property, terminated as soon as he showed them respondent's letter of
April 28. It appears that this was a letter written by respondents to the plaintiff Gray, and
passed directly to Gray, and was seen by no one other than those to whom he may have
displayed the same.
written by respondents to the plaintiff Gray, and passed directly to Gray, and was seen by no
one other than those to whom he may have displayed the same. It is upon this letter
particularly that plaintiffs predicate their action, based on the theory that by the utterances in
this letter respondents slandered the contract or option held by appellants, and thereby
prevented them from carrying out the primal object of the option, viz, the sale of the property
to third parties.
2. The original application of the term slander was applied more to words or utterances,
the nature of which were defamatory to the character of an individual. The term, however, has
been made applicable to utterances and words made with reference to property, whether real
or personal. In order to maintain an action for slander of property, it is necessary to establish
that the words spoken were false; that they were maliciously spoken by the defendant; and
that the plaintiff sustained some special pecuniary damage as the direct and natural result of
their having been spoken. Utterances made with reference to property are not in themselves
actionable, and it therefore becomes necessary for the plaintiff to allege and prove by the
same degree of proof necessary in other civil actions wherein the plaintiff has sustained
damage. The damage, if any has been sustained by the plaintiff, must be shown to have been
the direct and natural result of the utterances made by the defendant, and, although the
defendant may have uttered words or assertions, which were slanderous in their character, he
cannot be held liable for the repetition of those words or utterances by others, unless it be
shown that the repetition was by the direction or authority of the party originating the same.
(Burkett v. Griffith, 90 Cal. 532, 27 Pac. 527, 13 L. R. A. 707, 25 Am. St. Rep. 151.)
3. It is a rule generally applicable to cases of slander, especially in actions for slander of
property, that the party claiming himself to be aggrieved by the utterances of another must
establish that the utterances or derogatory assertions were made by the defendant in fact.
fact. It is generally stated that libel is deemed to be published as soon as the manuscript has
passed out of the defendant's possession, unless it comes directly and unread into the
possession and control of the plaintiff. That some third person had an opportunity of reading
it in the interval is not sufficient, and the defendant cannot be held liable where the plaintiff,
having received the manuscript directly, wilfully displays the same to a third party. (Odgers,
Libel and Slander, 5th ed. p. 162.)
4. It must be observed in this case that the plaintiffs seek a remedy rather unusual. They
ask the court in this case for a judgment, the nature of which would be to extend the time and
terms of their option for a period of five months and ten days in excess of that which was
agreed upon by the parties originally. There is no direct claim for pecuniary damages, nor did
the plaintiffs aver or offer the proof that they were ready to meet the terms of the option. The
general rule in actions for slander of property is that there can be no recovery except for
damage. The gist of the action is the especial damage sustained. (Newell on Slander and
Libel, 2d ed. p. 20.)
5. It is contended by appellants in this case that the letters written by respondents to the
Empire Zinc Company offering the ore for sale indicated a repudiation of the option and
contract, and was therefore inferentially a slander of the option, and indicated repudiation.
This contention, in our judgment, is not tenable, especially in view of the fact that subsequent
letters from respondents to the Empire Zinc Company expressly stated that they would not be
in a position to deliver ore until some time after the date on which the option would expire.
There was no attempt on the part of appellants, in so far as the record discloses, to make a
showing in the trial court that the Empire Zinc Company regarded the option as having been
repudiated by respondents. In our judgment the very contrary is shown by the testimony of
witness Gray, wherein he testifies as to his negotiations with Mr.
testifies as to his negotiations with Mr. Troutman, of the Empire Zinc Company, and says
(referring to September 16): Tried to get him to put up the fifty thousand. The think was
practically consummated that afternoon, the 16th of September. He pressed the button for the
lawyer to come down. He said that part was all right, but he wanted time to look into details. I
wired Los Angeles that we needed a few more days. That was all that interfered with the deal
at that time.
From these statements made by the witness Gray, it will be observed that the deal was
practically consummated. The prospective purchaser, Mr. Troutman, representative of the
Empire Zinc Company, in so far as the record discloses, raised no question as to the
repudiation of the option by respondents, but required time to look into details. Moreover, it
is manifest that on the 16th of September, when this transaction was about to be
consummated, the witness Gray, one of the parties interested, did not consider that the
respondents had repudiated the option, because on that day he wired to his associate, Chris N.
Brown: Have operating department framed up satisfactory deal but blocked by legal
department pending time necessary examine title, lease, records, etc. Tell John give me thirty
days and will go out with funds. Boston tomorrow.
As we observed before, there was but one party especially active in his endeavors to bring
about a sale of the property and the fulfilment of the option, and that party was the plaintiff
Gray, president of appellant company, and, in our judgment, the trial court was warranted in
its findings and its order based on his testimony, if on nothing else. He testified: I was
president of the company, and did whatever I could to get the thing through. * * * I do not
know that any of my sales were blocked by John Mahoney. * * * If John knew how I had
worked for himself and all the rest of us, I think he should have granted the extension.
It is the contention of the appellants, as set forth in their brief, that finding No. 15 of the
trial court was unsupported and unwarranted by the evidence, and in that respect counsel for
appellants contend that they did not rest their argument upon conflicting testimony. Their
position, however, in that respect is untenable in view of the showing made before the trial
court.
6. The general rule is that, where there is a substantial conflict in the testimony, this court
will not substitute its judgment for that of the trial court, and will only interfere when upon all
the evidence it is clear that a wrong conclusion has been reached. (Watt v. Nevada Central R.
R. Co., 23 Nev. 154, 62 Am. St. Rep. 772.) This is a rule adhered to by most of the courts of
last resort, and one which we consider applicable in this case under consideration.
It therefore follows that the order of the trial court in denying appellant's motion for a new
trial should be affirmed.
It is so ordered.
____________
36 Nev. 403, 403 (1913) State v. Nelson
[No. 2060]
STATE OF NEVADA, Respondent, v. ALBERT
NELSON, Appellant.
1. Criminal LawContinuanceRight to Continuance.
To entitle an accused to a continuance on the ground of the absence of witnesses, it must appear that the
witnesses are really material, that the accused has been guilty of no negligence, and that the attendance of
the witnesses can be had at the time to which the trial is deferred.
2. Criminal LawAppealDiscretion of Trial Court.
The question of continuance in criminal cases is always a matter within the sound discretion of the trial
court, and, unless that tribunal abuses its power, its determination cannot be reviewed on appeal.
3. Criminal LawContinuanceAbsent WitnessesDue Diligence.
An affidavit for a continuance on the ground of the absence of material witnesses, which alleged that
subpenas had been placed in the hands of the sheriff, shows the very slightest diligence.
4. Criminal LawContinuanceAbsence of Witnesses.
Where an affidavit for continuance on the ground of the absence of witnesses showed that there was
another witness by whom the same facts could be proven, it was not an abuse of discretion on the part of
the trial court to refuse the continuance.
5. Criminal LawContinuanceAbsence of Witnesses.
Where an affidavit for a continuance on the ground of the absence of material witnesses showed that the
witnesses were out of the jurisdiction of the court, and failed to give any reasonable ground for the belief
that their attendance could be procured at some subsequent term, the refusal of a continuance was not an
abuse of discretion, particularly where the testimony at the trial showed that the names of the witnesses
were not correctly stated in the affidavit, and that the facts could be proven by another disinterested
witness.
6. Criminal LawAppealHarmless Error.
In a criminal prosecution, the improper admission of evidence of the description of the criminal, given to
the arresting officer by a third person, was harmless, where it appeared that the officer received and acted
on the description given directly to him by the prosecutrix.
7. Criminal LawDefensesInsanity.
Notwithstanding Rev. Laws sec. 7163, providing that a defendant in a criminal action is presumed to be
innocent until the contrary be proven, and in case of reasonable doubt as to his guilt he is entitled to be
acquitted, an accused person, relying on the defense of insanity, has the burden of proof, and must satisfy
the jury by a preponderance of the evidence that he is insane, there being a presumption of sanity.
8. RapeProsecutionEvidenceAdmissibility.
In a prosecution for assault with intent to rape, evidence held sufficient to show that accused was the
guilty person.
Appeal from the Fourth Judicial District Court, Elko County; E. J. L. Taber, Judge.
Albert Nelson was convicted of assault with intent to commit rape, and he appeals.
Affirmed.
Hale & Fee and R. H. Hairston, for Appellant.
Defendant in this case was indicted by the grand jury of Elko County for the crime of
assault with intent to commit rape. The crime with which the indictment seeks to charge the
defendant is alleged to have been committed on the 12th day of September, 1912.
1. As appears from the record, R. H. Hairston, Esq., was appointed by the court as attorney
for the defendant, and on the 14th day of October the defendant, through his attorney, moved
the court for a continuance of the trial of the cause, and in support of his motion filed his
affidavit, setting forth in substance that he was the defendant in the above-entitled action; that
he could not safely proceed to trial at the present term of the court on the ground that certain
witnesses were absent, who resided in San Francisco, State of California; that the cause could
not be tried with justice to affiant without the testimony of the said witnesses; that the said
witnesses were material witnesses to the defendant; that the defendant would rely upon the
defense of an alibi, and that the testimony of said witnesses was material in support of that
defense; that the defendant had been in the company of the witnesses named, from the time of
his arrival in the town of Elko until a few minutes before he was arrested; further setting forth
as follows: That affiant will prove by said George Fisher and Nap O'Grimes that he was
never at or near the place where said crime is alleged to have been committed, and that
affiant was at all times in their company. Affiant will prove by the said George Fisher and
Nap O'Grimes that upon the day that said crime is alleged to have been committed, that
he {affiant) and the said George Fisher and Nap O'Grimes were together, and were in
Guldigar's saloon, and in a restaurant near Guldigar's saloon, the whole time, and affiant
will corroborate said proof by the testimony of the bartender at Guldigar's saloon; that
affiant has used due diligence to secure the testimony of the said George Fisher and Nap
O'Grimes; he has caused counsel to place subpenas in the hands of the sheriff of the
county of Elko, State of Nevada, but same were returned unserved; * * * that affiant
believes the attendance or the testimony of the said George Fisher and Nap O'Grimes will
be procured at the next term of this court, and that the grounds for such belief are as
follows: Affiant knows the address of friends and relatives of the said George Fisher and
Nap O'Grimes in San Francisco, Cal., and through them he will discover the whereabouts
of the said George Fisher and Nap O'Grimes."
where said crime is alleged to have been committed, and that affiant was at all times in their
company. Affiant will prove by the said George Fisher and Nap O'Grimes that upon the day
that said crime is alleged to have been committed, that he (affiant) and the said George Fisher
and Nap O'Grimes were together, and were in Guldigar's saloon, and in a restaurant near
Guldigar's saloon, the whole time, and affiant will corroborate said proof by the testimony of
the bartender at Guldigar's saloon; that affiant has used due diligence to secure the testimony
of the said George Fisher and Nap O'Grimes; he has caused counsel to place subpenas in the
hands of the sheriff of the county of Elko, State of Nevada, but same were returned unserved;
* * * that affiant believes the attendance or the testimony of the said George Fisher and Nap
O'Grimes will be procured at the next term of this court, and that the grounds for such belief
are as follows: Affiant knows the address of friends and relatives of the said George Fisher
and Nap O'Grimes in San Francisco, Cal., and through them he will discover the whereabouts
of the said George Fisher and Nap O'Grimes.
The motion for continuance having been denied by the trial court, and the cause regularly
tried, and a verdict of conviction having been entered against the defendant, he thereafter
moved the court for a new trial, setting up, as grounds in support of said new trial, the
absence of material witnesses to establish the defense of an alibi. This motion having been
denied, appeal is taken to this court from the judgment and from the order denying the motion
for a new trial.
Appellant assigns error to the trial court for having overruled the motion for continuance,
and in support thereof cites authorities. The question of continuance in criminal cases is one
with which both text-writers and courts have variously dealt; and the rule laid down by Lord
Mansfield in a very early case, setting forth three essential elements necessary to warrant a
continuance, has been more or less generally adopted by courts in recent times. They are:
First, that the witness is really material and appears to the court so to be; second, that the
party who applies has been guilty of no negligence; and, third, that the witness can be
had at the time at which the trial is deferred.
material and appears to the court so to be; second, that the party who applies has been guilty
of no negligence; and, third, that the witness can be had at the time at which the trial is
deferred. (The King v. D'Eon, 1 Blackstone's Rpts. 510; People v. Vermilyea, 7 Cow. N. Y.
369.)
The general rule, embracing the three elements herein set forth, has been enlarged upon to
some extent, but the fundamental principle remains the same. From the very earliest times
courts, in considering the question of continuance in criminal cases as well as in civil cases,
have kept in mind certain essential elements as guides to the proper exercise of their
discretion. In some jurisdictions it is expressly provided by statute that where the proof,
which the accused expects to make by the absent witness, is material and cannot be
satisfactorily made by other witnesses, and he has used due diligence to procure their
presence, a continuance must be granted, unless the state will admit the truth of such
evidence. Where statutes of this kind are found, they serve as a guide to the court in
exercising its discretion in allowing or disallowing a continuance. Where it is shown that the
evidence of the absent witness is material and admissible, and that the testimony, in view of
the established facts, is not probably untrue, and that the attendance of the witness can
probably be procured at another term, and that the facts expected to be proven cannot be
obtained from other disinterested witnesses, these elements, together with the showing on the
part of the moving party that he has exercised proper diligence to procure the attendance of
the witness, have been generally accepted by the courts as essentials necessary to be
established by the moving party, by reason of which the court would be authorized in granting
the continuance. (9 Cyc. p. 172.)
2. The question of continuance in criminal cases is always a matter within the sound
discretion of the trial court, and, unless the district court abused its discretionary power in
refusing the continuance, its ruling upon that phase of the case must be sustained.
that phase of the case must be sustained. By its spirit and its humanity the law means to
afford every reasonable opportunity to defendants in criminal cases to obtain their witnesses.
However true this may be, the moving party is bound to give at least a reasonable assurance
of their attendance at the time proposed for the continuance, and, if he fails in this respect, it
is not an abuse of discretion to deny the motion.
3-5. The affidavit filed in support of the motion in this case, in our judgment, falls short of
presenting the requisites necessary to authorize the court in granting the continuance prayed
for. In paragraph 5 of the affidavit it is stated: That upon the day that said crime is alleged to
have been committed the affiant and the said George Fisher and Nap O'Grimes were together,
and were in Guldigar's saloon and in the restaurant near Guldigar's saloon, the whole time,
and affiant will corroborate said proof by the testimony of the bartender at Guldigar's saloon.
Here it is disclosed at least one other disinterested witness could have testified to the facts
sought to be elicited from the witnesses Fisher and O'Grimes. Moreover, the affidavit of the
bartender at Guldigar's saloon, referred to, might have been produced in support of the
motion, if the same were made in good faith.
The affidavit, presumably with the view of showing due diligence, sets forth that subpenas
for the absent witnesses had been placed in the hands of the sheriff of Elko County. Diligence
which amounts only to the issuance of a subpena may well be regarded as of the very
slightest. (State v. Chapman, 6 Nev. 320.)
The affidavit itself shows that neither the defendant nor his counsel had any knowledge or
information as to the whereabouts of the absent witnesses. Moreover, the affidavit fails to
give any assurance that might be considered reasonable that the attendance of the witnesses
could be secured at any subsequent time. There was nothing stated in the affidavit from which
the trial court could have even inferred that there was a reasonable probability that their
attendance could be had within any proper time.
probability that their attendance could be had within any proper time. The affidavit sets
forth that he absent witnesses reside in San Francisco, State of California, and, if this were
true, they were beyond the power of the court to reach by process of subpena, and it devolved
upon the moving party to present some satisfactory showing that he had reason to believe that
the absent witnesses could be produced at some definite time in the future. Moreover, the
motion should be supported by the reasons for such belief. (People v. Francis, 38 Cal. 183;
State v. Chapman, 6 Nev. 320.)
Appellant, in his own opening brief, relies on the case of Baines v. State, 42 Tex. Cr. R. 510,
61 S. W. 119, and especially to that part of the decision in that case as follows: Where an
application for continuance on account of the absence of material witnesses, coupled with an
affidavit of such witnesses, showed due diligence in endeavoring to secure his presence and
that his testimony, if true, would clearly prove an alibi for defendant, and showing absolutely
that he would testify to the facts set up in the application, a continuance should be granted.
It is our judgment that, where such a set of facts is presented to the trial court, it would be
an abuse of discretion, under such conditions, to deny a continuance at least for a reasonable
time; but no such conditions present themselves in this case. In this case there is no affidavit
of the absent witnesses, and no assurances as to what the absent witnesses would testify to if
present. The affidavit of appellant in this case, filed in furtherance of his motion for
continuance, sets forth the names of the witnesses desired as Nap O'Grimes and George
Fisher, stating that these two men were fellow employees of his at the Peterson ranch, and left
the ranch with him, coming to Elko. The witness Peterson, testifying in behalf of the
defendant at the trial, stated that the defendant left his ranch with a man by the name of
O'Brien and Fisher. From this it may be reasonably inferred that the appellant was in error as
to the correct name of at least one of the witnesses sought, and hence it is out of all
probability, in the light of this and other statements in the affidavit, that the attendance
of the absent witness could ever be procured.
it is out of all probability, in the light of this and other statements in the affidavit, that the
attendance of the absent witness could ever be procured.
The affidavit of appellant, filed in furtherance of his motion for continuance in this case, is
fatally defective in that it fails to show that there were not other persons by whom the
defendant could prove the same facts that he expected to prove by the absent witnesses.
Moreover, the affidavit sets forth that the testimony sought to be obtained from the absent
witnesses could in fact be obtained from another disinterested witness, the bartender at
Guldigar's saloon. (State v. Marshall, 19 Nev. 240.)
In view of the defects presented in the affidavit of appellant, filed in support of his motion for
continuance, already referred to, and, further, in view of the defendant's own testimony at the
trial and the testimony of other witnesses, presented in behalf of the defendant, as well as in
behalf of the state, it is manifest that no injustice was done by denying the continuance asked
for, and the trial court did not abuse its discretionary power.
6. The appellant assigns error to the trial court in overruling his objection to the testimony
of the witness Manley. The record discloses the following:
Q. I will ask you at that time if the officers got any description of the man. A. The
officers? I described the man. I told the officers.
Mr. Hairston (counsel for the defense)I object on the ground it is hearsay.
The CourtI have been exceedingly liberal with the defendant, and I will allow the state
to go into that.
Mr. HairstonNote an exception.
The CourtLet an exception be noted.
The WitnessI did.
Mr. Dysart (District Attorney)What description did you give as best you remember? A.
Well, that this man had blue overalls, had on a light hat, something like the color of mine, and
gave them the description the little girl gave me at the time.
Nels Ouderkirk, the arresting officer, interrogated as to descriptions given him prior to the
arrest, testified as follows:
Q. After you got to the house I will ask you whether or not you received any description of
the man who was alleged to have committed this offense. A. Yes, sir; from the little girl.
Q. I will ask you to relate that description as near as you can remember now. A. Well, the
little girl tried to describe the man as near as she could. She said he had on a light-colored
coat, as near as I can recollect. Mr. Harris was thereI think we got therein there in a very
few minutes.
Q. I will ask you whether or not she gave you any description of the appearance of his
face. A. Yes; he had a little mustache.
Q. Did sheI will ask you if she described his hat. A. I think she said it was a slouch hat. I
couldn't say what color the little girl said it was, but a slouch hat, light-gray coat, and overalls.
Q. Did she give you any description of his appearancehis personal appearance? A. She
said he was thin in the face and with a light mustache.
Q. I will ask you whether or not she said anything about his walkhis gait. A. The little
girl tried to explain to me the style of the man's walk, that he was inclined to be stooped.
From the testimony of the arresting officer, herein set forth, it appears that, whatever may
have been said to him by the witness Manley as to the description the little girl had given
Manley, he in fact received the description from the little girl herself prior to the arrest, and
apparently acted upon the description as given by her, rather than upon anything else. From
this it appears, in our judgment, that though the testimony of the witness Manley, objected to,
was not properly admissible in the trial and ought to have been excluded, nevertheless the
error in its admission appears to be harmless, and we fail to see where it could have played
even the slightest part in bringing about the conviction in this case.
part in bringing about the conviction in this case. As has been said heretofore by this court,
errors which do not actually prejudice or injure the defendant do not justify a reversal. (State
v. Williams, 28 Nev. 421; State v. Smith, 33 Nev. 459.)
Counsel for appellant contends that the admission of the testimony of Manley over his
objection deprived him of the privilege of cross-examination of the arresting officer,
Ouderkirk. This contention, however, is not sustained by the record, for it appears that the
officer, Ouderkirk, took the stand as a witness in behalf of the state, and testified as to the
description given him and as to matters attending the arrest of the appellant, and at that time
ample opportunity was given appellant for cross-examination.
7. Appellant assigns error to the trial court in refusing to give the following instruction:
The court instructs the jury that if any competent evidence is introduced by the defendant,
tending to prove his insanity, that the state is bound to prove and establish his sanity, like all
other elements of the crime, beyond a reasonable doubt. It will be observed that the court, in
refusing the foregoing instruction, gave another in lieu thereof, which is as follows: The
defendant is presumed to be sane until the contrary is shown, and a doubt upon this question
alone should not acquit, for insanity is an affirmative proposition, and the burden of proving
it is upon the defense. It is not necessary, however, that the defendant show that he was
insane beyond a reasonable doubt. With regard to the methods of proof by which the defense
of insanity may be established, the law, from considerations of public policy and the welfare
of society, proceeds with great caution, and has adopted a certain standard by which the
insanity of the party on trial may be proved where relied on. The burden of proving insanity,
as I have said, rests upon the defendant, and to warrant you in acquitting him solely upon that
ground, his insanity at the time of the committing of the offense, if you find that he did
commit it, must be established by a preponderance of proof.
by a preponderance of proof. The evidence of insanity must outweigh and overcome the
presumption of an the evidence in favor of sanity in some appreciable degree, and render it
more probable that he was insane, than that he was sane. The proof must be such in amount
that, if a single issue of the sanity or insanity of the defendant should be submitted to the jury
in a civil case, they would find that he was insane.
In dealing with insanity as a defense to crime, four theories have been expounded as to the
degree of evidence requisite to justify an acquittal. The first theory is that, where insanity is
interposed as a defense, it being one of the nature of confession and avoidance, it must be
established beyond a reasonable doubt. This doctrine is adhered to in many jurisdictions. The
second theory is that the jury are to be governed by a preponderance of evidence, and are not
to require the insanity of the defendant to be made out by him beyond a reasonable doubt. It
will be observed that this rule is adhered to more closely by the English courts. (The King v.
Leighton, 4 Cox, 149; The King v. Higginson, 1 Car. & K. 230.)
The same rule has been subscribed to in many of the states of the Union. (State v.
Lawrence, 57 Me. 574; Commonwealth v. Rogers, 7 Metc. Mass. 500, 41 Am. Dec. 458;
Coyle v. Commonwealth, 100 Pa. 573, 45 Am. Rep. 397; Baccigalupo v. Commonwealth, 24
Va. 807, 36 Am. Rep. 795; State v. Strauder, 11 W. Va. 747, 27 Am. Rep. 606; State v.
Felter, 32 Iowa, 49; People v. Walter, 1 Idaho, 386.)
The third theory is that, where insanity is interposed as a defense to the commission of a
crime, the prosecution must prove sanity beyond a reasonable doubt. This rule, generally
speaking, has been followed with more or less uniformity by the federal courts. (Davis v. U.
S., 160 U. S. 469, 19 Sup. Ct. 353, 40 L. Ed. 499; German v. U. S., 120 Fed. 666, 57 C. C. A.
128.) Under this general theory, adhered to by many courts, it has frequently been ruled that
where there is a reasonable doubt as to the sanity the jury must acquit. The fourth theory
holds to the effect that where the defense of insanity is set up, in the nature of a plea of
confession and avoidance, if the evidence is equally balanced as to the sanity or insanity,
the general presumption of sanity does not prevail, and if, from all the evidence, there is a
reasonable doubt as to the sanity of the accused, he is entitled to an acquittal.
the nature of a plea of confession and avoidance, if the evidence is equally balanced as to the
sanity or insanity, the general presumption of sanity does not prevail, and if, from all the
evidence, there is a reasonable doubt as to the sanity of the accused, he is entitled to an
acquittal.
We do not deem it necessary, in this case, to discuss the relative merits of the four theories
herein set forth.
The able opinion rendered by Judge Hawley, speaking for this court in the case of State v.
Lewis, 20 Nev. 334, established the rule, which has since been followed by this court in its
several decisions, and we see no occasion to change that rule. By this decision this court
placed itself in line with those other jurisdictions subscribing to the rule that the jury are to be
governed by a preponderance of evidence, that the defendant is presumed to be sane until the
contrary is shown, and a doubt upon this question alone should not acquit. The rule adhered
to by other courts, especially in English jurisdictions, was modified by the rule laid down by
this court in the Lewis case, supra, in that it is not necessary that insanity be established
beyond a reasonable doubt; but, insanity being an affirmative proposition, the burden of
proving it is upon the defense, and he is required to establish his insanity by a preponderance
of evidence. The instruction complained of in the case under consideration is one very similar
to the instruction dwelt upon in the Lewis case, supra, and the general proposition of law
therein contained was approved in that decision. We see no good reason at this time for
changing the rule.
Before a conviction can be had in a criminal case, before a jury can be warranted in
bringing in a verdict of conviction, regardless of what defense may be interposed, the law lays
down a standard that they must be satisfied beyond a reasonable doubt of the truth of the
charge in its entirety. (Rev. Laws, 7163.)
When a defense of insanity is interposed, proof of that defense is receivable by the trial
court under the general rules of evidence applicable. It is for the jury, and not the judge, to say
whether or not the defense is proven and the evidence of insanity, together with all the
other facts and circumstances supported by the evidence in a case, go to the jury, and if
the evidence as a whole, or any element of evidence, raises a reasonable doubt as to the
guilt of the accused, he is entitled to the benefit of that doubt to the extent of an acquittal
or reduction of degree.
and the evidence of insanity, together with all the other facts and circumstances supported by
the evidence in a case, go to the jury, and if the evidence as a whole, or any element of
evidence, raises a reasonable doubt as to the guilt of the accused, he is entitled to the benefit
of that doubt to the extent of an acquittal or reduction of degree. As heretofore laid down by
this court in the several cases, and as approved by many courts throughout the land, it is not
necessary for the accused, who relies upon a defense of insanity, to prove that condition of
mind beyond a reasonable doubt, nor is it necessary for him to satisfy the jury of his insanity.
To say that he must satisfy the jury of his insanity would be to require of him more than
preponderance of evidence. To require the accused to satisfy the jury of his insanity would be
to free the minds of the jury from the element of doubt upon that subject. This is not required.
(Kelch v. State, 55 Ohio St. 146, 45 N. E. 6, 39 L. R. A. 737, 60 Am. St. Rep. 680.) In other
words, under the rule as laid down in the Lewis case, supra, and approved by this court in
later decisions, and commented upon and approved by courts of other jurisdictions, it is not
required of a party interposing a defense of insanity to do more than establish that condition
of mind by evidence which preponderates in favor of insanity; i.e., taking everything
submitted into consideration, a belief of insanity is enforced by the evidence.
The decision of this court in the Lewis case, supra, has been commented upon and cited
approvingly by many of the courts of last resort. (Maas v. Territory, 10 Okl. 716, 63 Pac.
960, 53 L. R. A. 814; State v. Quigley, 26 R. I. 263, 58 Atl. 905, 62 L. R. A. 322, 3 Ann. Cas.
920; State v. Clark, 34 Wash. 485, 76 Pac. 98, 101 Am. St. Rep. 1006; People v. Dillon, 8
Utah, 97, 30 Pac. 150.)
In the case of Maas v. Territory, supra, the Supreme Court of Oklahoma paid a high
tribute to the opinion written by Chief Justice Hawley in the case of State v. Lewis, but in
refusing to concur that court said: With the development of criminal law and the
advancement of civilization, the rules which once governed the defense of insanity are
being relaxed, so as to give defendants the fullest opportunity to present the truth to the
court and jury, that full justice may be done; and while it is true that this defense is
sometimes successfully manufactured and imposed upon courts and juries, the
adjudicated cases show no greater abuse of this defense than of the defense of alibi or
self-defense.
civilization, the rules which once governed the defense of insanity are being relaxed, so as to
give defendants the fullest opportunity to present the truth to the court and jury, that full
justice may be done; and while it is true that this defense is sometimes successfully
manufactured and imposed upon courts and juries, the adjudicated cases show no greater
abuse of this defense than of the defense of alibi or self-defense. The defense of insanity,
when successfully made, appeals to the tenderest sentiments and mercies of the jury; but
when feigned and detected it invites their utmost contempt, and, while juries are always ready
to deal kindly with one who is so unfortunate as to be dethroned of his reason to such an
extent that he cannot distinguish between right and wrong, they are also, as a rule, quick to
punish a guilty defendant who tries to escape the consequences of his act through fraud and
deceit. Therefore * * * we see no good reason why the defense of insanity should be singled
out and governed by rules as to burden of proof, different from those applicable to other
cases.
No science has advanced with more rapid strides and none has produced more fruitful
results in recent years than that of medicine and surgery; and with the development of that
science, and the disclosures brought about by its achievements, the veil has been lifted from
many things tending to disclose the reasons for abnormal and peculiar acts and eccentric
movements of beings. The darkness in which humanity groped in ages past, and by reason of
which the world condemned the acts of the individual for the breach of the law, and
especially for the abnormalities that appear prevalent in him, is being cleared away by the
hand of science, and with the light of knowledge there comes the ever-increasing ray of
human sympathy and a persistent study and research as to how this sympathy should best be
applied. The great minds of the world, who keep abreast of the times and of development of
science, are devising and advancing theories, means, and methods by which the great
question of criminology can best be handled. The courts of the land, in dealing with this
great subject, cannot stand by and hold a deaf ear to the march of science.
the land, in dealing with this great subject, cannot stand by and hold a deaf ear to the march of
science. The rules which once governed, according to the standards best considered, must not
remain rigid; but their elasticity must be made commensurate and proportionate to human
achievement and the definite results of scientific investigation.
8. The identity of the defendant was amply established, not only by the prosecuting
witness, the little girl on whom the crime is alleged to have been attempted, but by other
witnesses, who by reason of their opportunity for observation, as disclosed in the transcript,
established beyond a shadow of a doubt that it was the defendant who accompanied the little
girl to the lonely excavation indicated by her in her testimony. The testimony of Mrs. Davis,
who lived in the near proximity, was to the effect that she saw him put the little girl down
into the excavation. Other parties saw her running from the place in a condition of
excitement.
The evidence in this case discloses a most peculiar set of circumstances. The defendant,
accompanied by the little girl, went to the lonely excavation north of the town of Elko. After
arriving there, in so far as the record discloses, he did nothing in the way of an act of
violence. The little girl appears to have run away from the place, and he did nothing to
prevent her going; in fact, his entire conduct, as disclosed by the record in this case, bears out
to some extent at least the testimony of those witnesses who testified that they regarded him
as being of unsound mind. While it is our conclusion that the judgment in this case should not
be reversed, yet the record discloses facts and evidence worthy of an investigation by those
invested with the power of executive clemency.
From the foregoing reasoning and observations, we see no good reason for disturbing the
judgment in this case. It therefore follows that the order denying defendant's motion for a new
trial should be affirmed.
It is so ordered.
____________
36 Nev. 417, 417 (1913) McComb v. District Court
[No. 2093]
F. B. McCOMB, Petitioner, v. FOURTH JUDICIAL DISTRICT COURT OF THE STATE
OF NEVADA IN AND FOR THE COUNTY OF ELKO, and HON. E. J. L. TABER,
Respondent.
1. Grand JuryObjections to JurorsWaiverUntimely Objection.
Under Rev. Laws, sec. 7005, permitting an individual grand juror to be challenged on the ground that he
is an alien, and section 7010 providing that an accused can take advantage of any objection to the panel or
to an individual grand juror in no other mode than by challenge, an accused waived his right to object
that one of the jurors was a resident of another state by waiting until time for pleading to the indictment,
more than two weeks after the impaneling of the grand jury, when opportunity was given his counsel to
challenge, though accused was not then present.
2. Grand JuryObjectionsTime of MakingKnowledge of Law.
One held to answer to the grand jury was bound to know the provisions of the code relating to the time
challenges must be interposed to the grand jury.
Since the state could have prosecuted the offense of horse stealing by information, special injury will not
result to accused by trying him upon an indictment, though one of the grand jurors who found it was a
nonresident.
4. ProhibitionPurpose of Writ.
Under Rev. Laws, sec. 5708, which provides that the writ of prohibition arrests the proceedings of any
tribunal which are without or in excess of its jurisdiction, the writ will only issue where there is an exercise
of functions without or in excess of the jurisdiction of the prohibited tribunal.
McCarran, J., dissenting.
Application for writ of prohibition by F. B. McComb against the Fourth Judicial District
Court of the State of Nevada in and for the county of Elko and Hon. E. J. L. Taber, Judge.
Application denied.
R. C. Van Fleet, A. J. Weber, and James Dysart, for Petitioner.
Geo. B. Thatcher, Attorney-General, E. P. Carville, District Attorney of Elko County,
Curler & Gedney, and Henderson & Caine, for Respondents.
This is an application for a writ of prohibition to enjoin the Fourth judicial district court,
Elko County, and the Honorable E. J. L. Taber, presiding judge thereof, from trying F. B.
McComb because one of the grand jurors was a resident of the State of Wyoming at the time
of the finding of the indictment against him for grand larceny.
Under a criminal complaint charging horse stealing, and after hearing and taking of
testimony continuing from the 26th to the 30th day of August, 1913, Phil S. Triplett, justice
of the peace for Wells township, on the 24th day of September ordered the applicant held to
answer and admitted to bail. On September 23, 1913, a grand jury was drawn, returnable
October 8. Upon the impaneling of the grand jury on that day, in the absence of McComb and
in the presence of his attorney, the court asked if there were any challenges to the panel or to
any individual juror, and, no challenge being interposed, the accused persons who were in the
custody of the sheriff and who had been brought into court were remanded to jail. On the
following day the grand jury returned an indictment for grand larceny against the applicant
and the arraignment was set for October 10.
At the time of the arraignment a copy of the indictment was handed to him, and he was
asked whether he pleaded guilty or not guilty, and on motion of his attorney the court ordered
that he be given until October 16 in which the plead to the indictment. On that day he
presented affidavits indicating that one of the members of the grand jury that found the
indictment was a state senator in Wyoming, and that, although he had been in Nevada much
of the time for the past two years, he had declined to register here as an elector and retained
his residence in Wyoming. Thereupon the defendant moved the court to set aside the
indictment because it was not found by a grand jury of seventeen men having the
qualifications of grand jurors under the statute of this state, and because the court was without
jurisdiction to proceed with the trail. The motion was resisted upon the ground that the
reasons advanced for setting aside the indictment had been waived by the defendant.
reasons advanced for setting aside the indictment had been waived by the defendant.
The constitution gives the district court jurisdiction over all felonies. Horse stealing having
been made grand larceny by an act of the legislature, the trial of persons accused of that
offense comes within the jurisdiction of the district court and no other. Persons charged with
the commission of felonies are entitled to be tried by an indictment found by a grand jury
consisting of duly qualified electors resident in the county, who are citizens of the United
States and have been in the state six months, except that prosecutions may be had upon
information under the late amendment to our constitution, which now conforms to the
provisions in other states for prosecution by information.
Is this right of the accused to be indicted by a legal grand jury, as well as other
constitutional rights, such as that of having counsel, being present at the trial, being
confronted by the witnesses, and having witnesses produced in his behalf, one so vital to the
jurisdiction of the court that it may not be waived or regulated by act of the legislature? It
may be conceded that neither by statute nor by judicial decision can an accused person be
deprived of his right to be indicted by a regularly constituted grand jury, unless charged by
information, before being tried for a felony. But may not the legislature, and in the absence of
statutory regulation the courts, require that challenges to a grand jury be seasonably made, so
that undue delay and unnecessary expense may be avoided in the administration of justice?
If the constitutional right of an accused person to be indicted by a grand jury composed of
the requisite number of qualified resident electors is a jurisdictional one which he cannot
waive, logically he might raise the objection any time after conviction and appeal and before
full service of sentence. The rights of persons who are so unfortunate as to be charged with
crime should be carefully guarded, but not to the extent of allowing them to cause
unnecessary delay and useless expense. They cannot be deprived of their constitutional rights
by the legislature or the courts, but should be limited to a reasonable time in which to
interpose challenges or make objections.
legislature or the courts, but should be limited to a reasonable time in which to interpose
challenges or make objections.
It is not strange that the decisions relating to the time at which an objection may be made
or a challenge interposed or waived are not uniform in various jurisdictions without
legislative enactment. Some have held that the right of challenge is waived by pleading to the
indictment or by going to trial, and in rare instances that the objection to the grand jury may
be made after trial and upon appeal. If in the absence of statutory regulation the courts may
determine the time within which the challenge must be made, the matter may be regulated by
statute, and the legislature may provide that, if the challenge is not interposed within a
reasonable time, it shall be waived, as has been done in this state, so long as the accused is
not deprived of a fair opportunity to interpose a challenge. To allow the objection to be made
after trial might necessitate the calling of a new grand jury and trial jury and the recalling of
the witnesses, officers, and persons engaged in the trial. To allow the objection to be made
after the indictment, as is sought to be done in this case, may necessitate the calling of a new
grand jury. This is necessary only in cases where the accused has been indicted without being
previously held to answer and where he could be given no opportunity to challenge the grand
jury until after the indictment was returned, and the code has provided accordingly. (Rev.
Laws, 7090.)
1. There is no good reason why an accused person should be allowed to wait until after an
appeal or after a trial and the chance of securing a favorable verdict to challenge the grand
jury, nor why the legislature may not provide that such challenges must be exercised earlier if
a reasonable opportunity is given to interpose his objection to being deprived of his
constitutional right or of being put on trial unless indicted by a legal grand jury. No one has
any vested right in the common law, except in so far as it is carried into the constitution. By
legislative enactment it is in force in this state when not in conflict with the constitution or
statutes. As the decisions constituting the common law regarding the time and method for
taking objections to grand juries are conflicting, our legislature has wisely provided that a
person who has been held to answer by a committing magistrate may by challenge
interpose his objection to the grand jury at the time it is impaneled, and in no other mode.
constituting the common law regarding the time and method for taking objections to grand
juries are conflicting, our legislature has wisely provided that a person who has been held to
answer by a committing magistrate may by challenge interpose his objection to the grand jury
at the time it is impaneled, and in no other mode. (Rev. Laws, 7004, 7005, 7010.)
No good reason is apparent for holding that this statute may not control such a matter of
practice. This is evidently intended to give the accused person an opportunity, with fair
diligence, to timely assert his constitutional rights and prevents the delay in the administration
of justice and the useless expense which might be incurred if the challenges were allowed to
be interposed after trial or after the grand jury has been impaneled, acted upon the case, and
returned an indictment. The grand jury was drawn two weeks in advance, and it is not shown
that with reasonable diligence or effort the accused could not have ascertained regarding the
disqualification of grand jurors and interposed his challenges at the proper time. His absence
while on bail when the grand jury was impaneled is no fault of the state.
2. He was bound to know the specific provisions of the code, that challenges may be
interposed at the time the grand jury is impaneled, and that objections to the grand jury or a
member thereof can be made in no other mode. He was required to be present at all the
proceedings in which he was interested, and he was as much bound to appear and interpose
the challenges, or have his attorney do so, at the time the court asked if any were to be made,
as persons who were brought into court by the sheriff for the purpose of giving them an
opportunity to interpose challenges. At section 112, vol. 1, Bishop's New Criminal Procedure
(2d ed.), that reliable author states: Since accused persons may waive constitutional rights,
they may doubtless, under some circumstances, waive the protection of this provision. They
cannot when the effect would be to create a jurisdiction which the court did not otherwise
possess, as to try one wholly without accusation. But formal objections may by statute be
required to be taken at an early stage of the proceeding, in the absence whereof they will
be treated as waived."
may by statute be required to be taken at an early stage of the proceeding, in the absence
whereof they will be treated as waived.
At section 996, 997, Bishop's New Criminal Law, it is said: It is a doctrine to which there
are few exceptions that a party in a cause may waive any right which the law has given him,
even a constitutional one. The courts will refuse to hear objections to the persons composing
the grand jury, or to the manner in which it is impaneled, after the case has been tried by the
petit jury, or, indeed, after proceedings earlier than the trial.
In volume 10, Ency. Pl. & Pr., at pages 355, 404, 406, it is said: The incompetency of one
grand juror is sufficient to render the body illegal and findings by it void. This rule is subject,
however, to the requirements in the various states in respect of the time and manner of raising
such an objection. But the manner of raising various objections is not the same in all
jurisdictions, and the extent of the foregoing rule as to waiver is more or less dependent upon
local practice. On the other hand, when the defendant is held to answer, he is entitled to
challenge, and his right cannot be denied him unless he waives it; but the challenge being,
under such circumstances, his only remedy in many states, he must take advantage of his
privilege in proper time or his right will be waived, even if, at the time of his privilege, he did
not know of the existence of the objections.
It is said in 24 Cyc. p. 129, that alienage is a disqualification to act as a juror and was
such at common law, and one which the parties may waive.
Bierly, in his work on Juries and Jury Trials, at page 85, states that after arraignment and
plea it is too late to challenge, indicating that in his opinion such objection does not go to the
jurisdiction so as to vitiate subsequent proceedings. The conclusion is that any error in this
regard cannot be corrected by special writ.
In Commonwealth v. Freeman, 166 Pa. 332, 31 Atl. 115, it was held that a motion to
quash the panel after four jurymen had been selected and sworn came too late.
In Commonwealth v. Penrose, 27 Pa. Super. Ct. 111, 112, it was said in the opinion: The
disqualification of the juror was a purely legal one which did not at all tend to impeach his
capacity, integrity, or impartiality. It would have been disclosed, if he had been interrogated at
the time he was sworn, but the defendant voluntarily omitted to avail himself of the means at
his hand for informing himself and the court upon the subject. He preferred, perhaps, to hold
them in reserve to be used in the event of an adverse verdict, as he had a perfect right to do, if
the position of his counsel is correct. We think, however, that their position is not tenable. In
Hollingsworth, v. Duane, 4 Dall. 353, 1 L. Ed. 864, as the report of the case goes, the court
after a long advisement upon the subject seemed to think that alienage might have been a
cause of challenge before the juror was sworn; but upon an extensive review of the authorities
they decided that advantage could not be taken of it after verdict.' * * * In Commonwealth v.
Thompson, 4 Phil. 215, it was held that, although the alienage of a juror is good cause of
challenge, the court will not set aside the verdict of the jury in a criminal case on that ground,
where the trial has been allowed to proceed without any objection having been made to the
juror's disqualification, even where there is evidence, from the affidavits of the juror and the
prisoner, that the fact of alienage was not disclosed by the one, nor known to the other, before
the trial. This decision is not binding upon us, it is true. We cite the case because the
reasoning of Judge Allison in support of the above conclusion commends itself to our
judgment as a sound and convincing exposition of the law upon the subject. The decisions of
the courts of the other states upon the subject are not harmonious, but the weight of authority
seems to be in favor of the conclusion we have reached, namely, that, under the
circumstances to which we have alluded, the court below wisely exercised the discretion
committed to it in holding the alienage of the juror to be insufficient reason for setting aside
the verdict. A collection of many of the decisions will be found in State v. Pickett, 103
Iowa, 714, 73 N. W. 346, 39 L. R. A.
will be found in State v. Pickett, 103 Iowa, 714, 73 N. W. 346, 39 L. R. A. 302.
In Territory v. Harding, 6 Mont. 323, 12 Pac. 750, the Montana statute provided for the
challenging of the grand jury before it was sworn, and that a failure to make the challenge
should be deemed a waiver of the right to object, and it was held that defendant had waived
his right of challenge and could not afterwards object that one of the grand jurors was not a
citizen of the United States, although he did not learn that fact until after the indictment was
found and returned into court.
In Territory v. Hart, 7 Mont. 58, 14 Pac. 774, and 7 Mont. 496, 17 Pac. 720, the court
said: The juror Doniothy, who was challenged on account of alienage, was permitted by the
defendant to sit in this case, through a failure to exercise his right of peremptory challenge;
the accused having two peremptory challenges unexhausted when he accepted the jury. He
thereby waived the objection of alienage, if it were otherwise a good objection, and there was
no error of which he could properly complain. It has been repeatedly decided that alienage is
a disqualification of a juror which the defendant may waive either expressly or by failure to
object at the proper time. (Territory v. Hart, 7 Mont. 42, 14 Pac. 774.) This position was
held by the court after thorough investigation and long consideration of the authorities.
Following provisions relating to challenges, the code provides that, if the challenge to the
panel is allowed, the grand jury are prohibited from inquiring into the charge against the
defendant by whom the challenge is interposed, and that, if a challenge to an individual grand
juror is allowed, he cannot be present or take part in the consideration of the charge against
the defendant who interposed the challenge. (Rev. Laws, 7008, 7009.)
Section 7010, which provides that a person held to answer for a public offense can take
advantage of any objection to the panel or to an individual grand juror in no other mode than
by challenge, is similar to the California statute. (Kerr's Cyc. Pen. Code, sec. 901.)
In People v. Arnold, 15 Cal. 479, the court said: The defendant was held to answer before
the finding of the bill. He was then bound to make his objection to the grand jury on their
being impaneled. It is argued that the defendant cannot, by the constitution, be tried unless
and until indicted by a grand jury; and that this means a grand jury constituted according to
law; and that a bill by a grand jury not so constituted is a nullity. But the answer is that the
legislature may constitutionally prescribe rules of practice in criminal or civil cases, and that
among these is the provision as to the time and mode of excepting to irregularities of
proceeding; and it is ordained that exception to the grand jury shall be made at a particular
time. In many of the states, exceptions to particular jurors or to the panel are required to be
made by plea in abatement and cannot be heard unless so made; yet the same constitutional
provisions in substance obtain in those states, and the same argument would hold that this
practice, long acquiesced in and upheld without objection by the courts, is unconstitutional.
In State v. Romero, 18 Cal. 94, it is said in the opinion: If the prisoner were refused the
privilege of challenging the grand jury in and by the court of sessions, the indictment is
insufficient and worthless; it is not, in other words, a legal indictment, because not found by a
body competent to act on the case; but, to have this effect, the prisoner must have applied for
leave or requested permission to appear and challenge the jury. It was not the duty of the
court of sessions to bring him into court for the purpose of exercising this privilege. It is the
prisoner's business to know when the court meets and, if he desires to challenge the jury, to
apply, if in custody, to the court, to be brought into court for that purpose; and, if he fails to
do this, he waives his privilege of excepting to the panel or any member.
However, the better practice prevails in this state of having persons held to answer brought
into court and given an opportunity to challenge the grand jury at the time it is impaneled.
In People v. Henderson, 28 Cal. 469, the defendant, under indictment for murder, moved
to set aside the indictment on the ground that one of the grand jurors was not a taxpayer and
one of them was not a citizen at the time the grand jury was summoned, although he was
naturalized before it was impaneled. The court said: Conceding the point to be otherwise
good, under these circumstances the objection came too late, when taken for the first time
after indictment found. The objection should have been made by challenge at the time of the
impaneling of the jury. (Crim. Prac. Act, secs. 183, 189, 297; People v. Colmere, 23 Cal. 632;
People v. Arnold, 15 Cal. 479; People v. Chung Lit, 17 Cal. 322; People v. Romero, 18 Cal.
93.)
In United States v. Gale, 109 U. S. 67, 69, 3 Sup. Ct. 3, 4, 27 L. Ed. 857, it is said in the
opinion: We have no inexorable statute making the whole proceedings void for any
irregularities. * * * It seems to be requisite that all ordinary objections based upon the
disqualification of particular jurors, or upon informalities in summoning or impaneling the
jury, where no statute makes proceedings utterly void, should be taken in limine, either by
challenge, by motion to quash, or by plea in abatement. Neglecting to do this, the defendant
should be deemed to have waived the irregularity. It would be trifling with justice and would
render criminal proceedings a farce, if such objections could be taken after verdict, even
though the irregularity should appear in the record of the proceedings.
In Foreman v. Hunter, 59 Iowa, 550, 13 N. W. 659, it was held that a verdict rendered by a
jury, two of whose members were aliens, was erroneous but not void; that the objection might
be considered on appeal, but could not be taken by writ of habeas corpus.
In Kaizo v. Henry, High Sheriff of Hawaii, 211 U. S. 148, 29 Sup. Ct. 42, 53 L. Ed. 125, it
was said that the objection that eight of the grand jurors were not citizens of the United States
could not be taken by writ of habeas corpus but by writ of error, which is equivalent to a
writ of appeal in the state courts.
corpus but by writ of error, which is equivalent to a writ of appeal in the state courts. The
court said: Disqualifications of grand jurors do not destroy the jurisdiction of the court in
which an indictment is returned, if the court has jurisdiction of the cause and of the person, as
the trial court had in this case. (Ex Parte Harding, 120 U. S. 782, 7 Supp. Ct. 780, 30 L. Ed.
824; In re Wood, 140 U. S. 278, 11 Sup. Ct. 738, 35 L. Ed. 50; In re Wilson, 140 U. S. 575,
11 Sup. Ct. 870, 35 L. Ed. 513.) See Matter of Moran, 203 U. S. 96, 104 27 Sup. Ct. 25, 51 L.
Ed. 105. * * * The objection may be waived, if it is not made at all or delayed too long. This
is but another form of saying that the indictment is a sufficient foundation for the jurisdiction
of the court in which it is returned, if jurisdiction otherwise exists. That court has the
authority to decide all questions concerning the constitution, organization, and qualification
of the grand jury, and if there are errors in dealing with these questions, like all other errors of
law committed in the course of the proceedings, they can only be corrected by writ of error.
In State v. Larkin, 11 Nev. 325, Chief Justice Hawley, speaking for this court, said: From
these facts it appears that at the time the grand jury was impaneled defendant was not held to
answer before it for any offense. He, however, had the privilege, under the ruling of the court,
as well as by virtue of the provisions of section 276 of the criminal practice act, to move to
set aside the indictment on any ground which would have been good ground of challenge
either to the panel or any individual grand juror.' * * * Having refused to exercise this
privilege, he is not in a position to complain of the ruling of the court. (People v. Romero, 18
Cal. 93.)
This is equivalent to saying that the accused is required to interpose his objection to the
grand jury at the time provided by the statute, which in that case was before pleading to the
indictment because he had not been held to answer, and which in this case is at the
impanelment of the grand jury because petitioner had been held to answer.
3. As the state is disposed to prosecute and could have proceeded by information, it is not
apparent that special injury will result to the accused by allowing the trial to proceed upon the
indictment. Differently from a foreigner who might be unfamiliar with our language or
methods, or without sympathy for our institutions, the fact that the member of the grand jury
to whom objection is so seriously made is a senator in a sister state leads to the conclusion
that he is a citizen of the United States and of more than ordinary ability and understanding of
our laws. It appears that he has been living and following industrial pursuits in this state for
the most of the time during the last year or two, and that his only disqualification for being a
good grand juror is his intention to retain his residence in Wyoming. Men sometimes
maintain residences in different places, although allowed only one legal residence as an
elector.
In order to sustain the contention of the petitioner, we would have to hold contrarily, not
only to numerous decisions which are in conflict with others, but to the opinions of
text-writers as generally expressed, and we would have to set aside the plain provisions of our
code. The district judge reviewed a number of authorities and properly held that the accused
had waived his right to challenge the grand jury.
4. The writ of prohibition will issue only when there is an exercise of functions without or
in excess of jurisdiction. (Rev. Laws, 5708; Knight v. District Court, 32 Nev. 346, Ann. Cas.
1912D, 143; Turner v. Langan, District Judge, 29 Nev. 281.)
The application for the writ is denied.
McCarran, J., dissenting:
I regret that I cannot concur in the opinion rendered by my learned associates. My
investigation of this vital and important matter leads me to reason it out along different lines
from that followed in the prevailing opinion.
different lines from that followed in the prevailing opinion.
On September 24 the petitioner was held by the justice of the peace of Wells township to
answer to the charge of grand larceny and admitted to bail. On the 23d of September, 1913,
the judge of the district court, in and for Elko County, and Isaac Griswold, one of the county
commissioners of the county, proceeded, as the record discloses, to select a grand jury for the
fall (October) session of the district court; that the judge and commissioner as a result of their
proceedings certified to the clerk a list of twenty-four names, as the certificate set forth,
selected from the qualified jurors of said county as grand jurors for the fall (October) session
of the district court. On the list so certified appears the name of W. A. Hyde. On the 24th of
September, the clerk, pursuant to order, issued a venire directed to the sheriff of the county
commanding him to summon the twenty-four persons named in the list certified to him by the
judge and commissioner, commanding them to be present at the district court on the 8th day
of October, at 10 o'clock a.m. On the day designated in the venire, to wit, the 8th day of
October, the court selected from the number responding to the summons seventeen members,
among which was W. A. Hyde. The court then asked if there was any challenge to the panel
of the jury or to any individual juror. It appears from the testimony of the district attorney that
at this time Mr. Jas. A. Dysart, one of the attorneys for the petitioner, was in court.
The minutes of the court set forth: There being no challenges, the court appoints Frank
Fernald, Sr., as foreman of said grand jury and instructed them as to their duties; the grand
jury then retired for deliberation and investigation.
The grand jury so impaneled returned an indictment against petitioner in which indictment
he is charged with the crime of grand larceny. After the filing of the indictment the petitioner
appeared in court, with his attorneys, and moved to quash the indictment upon the ground
that it was found by a body of men which was not in law and in fact a constitutional grand
jury, and that said accusatory paper returned to said court was worthless and void as an
indictment and the court had no jurisdiction to try the defendant upon it.
and moved to quash the indictment upon the ground that it was found by a body of men
which was not in law and in fact a constitutional grand jury, and that said accusatory paper
returned to said court was worthless and void as an indictment and the court had no
jurisdiction to try the defendant upon it.
In support of their motion to quash, several affidavits were filed, the most significant of
which is that of C. E. Gundlach, which reads as follows: C. E. Gundlach, being duly sworn,
deposes and says: That he is a duly appointed, qualified, and acting constable of the town of
Metropolis, county of Elko, State of Nevada, and was, during all the time hereinafter
mentioned, such constable; that he has known one W. A. Hyde, who appeared and acted as
one of the members of the grand jury, who returned an indictment against the above-named
defendant on the 9th day of October, 1913, A. D., in the county of Elko, State of Nevada, for
more than two years last past; that he has seen the said W. A. Hyde at various and divers
times in and about the town of Metropolis, county of Elko, State of Nevada, for the past two
years; that during the year 1912, A. D., your affiant was deputy registration officer, duly
appointed and qualified for the precinct of Metropolis, in the county of Elko, State of Nevada;
that in the discharge of his duties as such registration officer, a few days before the closing of
the list of registered voters, in the month of October, 1912, A. D., your affiant approached the
said W. A. Hyde and asked him if he wished to register as an elector of the county of Elko,
State of Nevada, for the coming general election of 1912, A. D.; that in reply to said request
of your affiant the said W. A. Hyde stated to your affiant that he did not wish to register as an
elector in the county of Elko, State of Nevada, for the reason that he did not reside in the
county of Elko, or the State of Nevada, or the precinct of Metropolis; that rather at the time of
said conversation he was a resident of the State of Wyoming; that he was at said time of said
conversation the duly elected, qualified, and acting state senator of the State of Wyoming;
that he intended to attend the session of the legislature of that state, which would convene
in January of the year 1913, A. D.; that an attempt would be made at that time to unseat
him as a member of said legislature upon the ground that he was a nonresident of the
State of wyoming; that if he signed the registration roll in the county of Elko, State of
Nevada, he would legally become a resident of the State of Nevada, which it was his
intention not to do; that thereafter your affiant saw the said W. A. Hyde in and about the
town of Metropolis, State of Nevada, until the beginning of the year 1913, A. D., when he
departed from the said town of Metropolis to attend the session of the legislature then
beginning in the State of Wyoming; that your affiant lives in the town of Metropolis, in the
county of Elko, State of Nevada, and has so lived during the times herein mentioned; that
he was in the town of Metropolis, county of Elko, State of Nevada, continuously from the
first of the year 1913 to the 1st of March, 1913, and that during said two months he never
saw the said W. A. Hyde in or about the town of Metropolis, county of Elko, State of
Nevada; that on are about the 1st of March, 1913, A. D., he met the said W. A. Hyde in the
town of Metropolis, county of Elko, State of Nevada, and that the said W. A. Hyde told
your affiant that he had just returned from the session of the legislature in the State of
Wyoming, which had just adjourned in that state, sine die, and the said W. A. Hyde at the
said time told your affiant that the legislature of the State of Wyoming had failed to
unseat him as a member of said body and that he was at the time of said conversation a
member of said body and a state senator of the State of Wyoming and would continue so
to be until the next general election in the State of Wyoming, in the year 1914, A. D."
No counter affidavits were filed by respondent.
to attend the session of the legislature of that state, which would convene in January of the
year 1913, A. D.; that an attempt would be made at that time to unseat him as a member of
said legislature upon the ground that he was a nonresident of the State of wyoming; that if he
signed the registration roll in the county of Elko, State of Nevada, he would legally become a
resident of the State of Nevada, which it was his intention not to do; that thereafter your
affiant saw the said W. A. Hyde in and about the town of Metropolis, State of Nevada, until
the beginning of the year 1913, A. D., when he departed from the said town of Metropolis to
attend the session of the legislature then beginning in the State of Wyoming; that your affiant
lives in the town of Metropolis, in the county of Elko, State of Nevada, and has so lived
during the times herein mentioned; that he was in the town of Metropolis, county of Elko,
State of Nevada, continuously from the first of the year 1913 to the 1st of March, 1913, and
that during said two months he never saw the said W. A. Hyde in or about the town of
Metropolis, county of Elko, State of Nevada; that on are about the 1st of March, 1913, A. D.,
he met the said W. A. Hyde in the town of Metropolis, county of Elko, State of Nevada, and
that the said W. A. Hyde told your affiant that he had just returned from the session of the
legislature in the State of Wyoming, which had just adjourned in that state, sine die, and the
said W. A. Hyde at the said time told your affiant that the legislature of the State of Wyoming
had failed to unseat him as a member of said body and that he was at the time of said
conversation a member of said body and a state senator of the State of Wyoming and would
continue so to be until the next general election in the State of Wyoming, in the year 1914, A.
D.
No counter affidavits were filed by respondent.
Section 8 of article 1 of the constitution of Nevada prescribes: No person shall be tried
for a capital or other infamous crime (except in cases of impeachment, and in cases of the
militia when in actual service, and the land and naval forces in time of war, or which this
state may keep with the consent of Congress in time of peace, and in cases of petit larceny
under the regulation of the legislature) except on presentment or indictment of a grand
jury," etc.
may keep with the consent of Congress in time of peace, and in cases of petit larceny under
the regulation of the legislature) except on presentment or indictment of a grand jury, etc.
Section 27 of article 4 of our constitution prescribes: Laws shall be made to exclude from
serving on juries, all persons not qualified electors of this state, and all persons who shall
have been convicted of bribery, perjury, foregery [forgery], larceny or other high crimes,
unless restored to civil rights, etc.
As to who are qualified electors within the State of Nevada, section 1, article 2, the
constitution prescribes: 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, etc.
Following the provisions and directions of the constitution heretofore quoted, the
legislature of this state in 1873 (Stats. 1873, c. 65) enacted a statute entitled An act
concerning juries, section 1 of which reads as follows: Every qualified elector of the state,
whether registered or not, who has not been convicted of treason, felony, or other infamous
crime, and who is not rendered incapable by reason for physical or mental infirmity, is a
qualified juror of the county in which he resides, or of the county to which it is attached for
judicial purposes.
From the record in this case it is manifest that the district judge and commissioner in
attempting to select the grand jury in question herein sought to follow section 4940 of the
Revised Laws, which in part reads as follows: * * * Grand jurors may be selected from the
qualified jurors of the county whether their names are or are not upon the list selected by the
board of commissioners, etc.
It is the contention of respondent in this case that, admitting that the juror was not a
qualified elector in this state and was in fact by his own act, choice, and declaration a
citizen of another state, this disqualification could only be taken advantage of by
petitioner by challenge to the jury at the time of the impanelment of the grand jury.
this state and was in fact by his own act, choice, and declaration a citizen of another state, this
disqualification could only be taken advantage of by petitioner by challenge to the jury at the
time of the impanelment of the grand jury. In this respect it must be observed that the statute
(Rev. Laws, 7010) prescribes: A person held to answer for a public offense can take
advantage of any objection to the panel or to individual grand jurors in no other way than by
challenge.
The grounds of challenge to the panel and the only grounds prescribed by statute at all are
those specified in section 7004 of the Revised Laws, as follows: A challenge to the panel
may be interposed for one or more of the following causes only: (1) That the requisite number
of ballots was not drawn from the jury box of the county as prescribed by law. (2) That the
notice of the drawing of the grand jury was not given as prescribed by law. (3) That the
drawing was not had in the presence of the officers or officer designated by law.
Section 7005 prescribes the grounds on which challenge may be interposed to the
individual grand juror as follows: A challenge to an individual grand juror may be
interposed for one or more of the following causes only: (1) That he is a minor; (2) that he is
an alien; (3) that he is insane; (4) that he is a prosecutor upon a charge against the defendant;
(5) that he is a witness on the part of the prosecution, and has been served with process or
bound by an undertaking as such; (6) that a state of mind exists on his part in reference to the
case, or to either party, which will prevent him from acting impartially and without prejudice
to the substantial rights of the party challenging, etc.
The contention of respondent is that, as petitioner was present by his attorney at the time
of the impanelment of the grand jury, it was his duty, if he saw fit, to challenge either the
panel or the individual members of the jury, and especially in this instance it was his duty to
challenge the juror Hyde upon the ground that he was not a qualified elector, and they
contend that, having failed to challenge at the impanelment of the jury and before the
indictment was found, petitioner has waived his right of challenge and cannot prevail
herein.
before the indictment was found, petitioner has waived his right of challenge and cannot
prevail herein.
It is fundamental, in cases of this class, that an indictment must be found and presented by
a lawful grand jury. The intention of the legislature, and, moreover, the intention of the
framers of the constitution of this state, is too clearly expressed in the sections of the
constitution and code above quoted to be misunderstood. It was the intention of the framers
of the constitution to safeguard life and individual liberty, and to that end they wisely
provided and expressly prescribed as to who should be eligible for jury duty in this state and
as to who should be excluded. Section 27, article 4, of the constitution, is mandatory in its
exclusion. It provides that laws shall be made to exclude from service all persons not
qualified electors of this state. In an issue of such moment as the one at bar a defendant is
entitled to demand the observation of all the formalities of the law. It is his constitutional
privilege to stand upon his strict legal rights, and he is entitled to strict compliance, on the
part of judicial and ministerial officers, to the legal formula prescribed.
In the case of State v. McNamara, 3 Nev. 75, this court said: An indictment found by a
jury not legally constituted cannot be valid. In that case this court quoted approvingly from
the Supreme Court of California in the case of People v. Coffman, 24 Cal. 234: The
defendant is entitled to have all the formalities observed that are prescribed by law for the
summoning, drawing, and impaneling of the jury, and, if any omission or irregularity in that
respect occurs, he is entitled to have the same corrected, and, if not so corrected upon its
being pointed out by the defendant, it is error.
The contention of respondent, in my judgment, is answered by the fundamental
proposition that it is the right of the accused to have the question of his guilt passed upon by a
competent grand jury, before he can be called upon to answer to the charge of crime, and a
competent grand jury means one composed of good and lawful men and a grand jury
composed of men not excluded by constitutional provision. A man should not be put upon
his trial upon a charge preferred by a body of men who are precluded by constitutional
provision and by statutory enactment from preferring a charge against him.
be put upon his trial upon a charge preferred by a body of men who are precluded by
constitutional provision and by statutory enactment from preferring a charge against him.
Section 27, article 4, of the constitution, excluding from service on juries persons not
qualified electors, either means exactly what it says or it means nothing. It either means that
none but qualified electors can constitute a valid jury or else it has no force or effect
whatever. By that constitutional provision qualified electorship is made a prerequisite for
every member of a valid jury. It cannot, in my judgment, be successfully argued that this
constitutional provision could be waived by one accused even by stipulation, much less by
silence. At common law it was necessary that indictments should be found by a grand jury
composed of good and lawful men. (2 Hawkins P. C. 309.) In this respect Chitty in his
treatise on Criminal Law says: It is perfectly clear that all persons serving upon a grand jury
must be good and lawful men, by which it is intended that they must be liege subjects of the
king and neither aliens nor persons outlawed even in a civil action, etc.
At common law, as will be seen by the earlier authorities and text-writers on the subject,
none but those who were liege subjects of the king and who possessed this prerequisite could
serve as grand jurors. This principle has been carried down to the present time by
constitutional and statutory enactment, and it is the same principle that is expressed in our
constitution, wherein it expressly excluded from service on juries all persons not qualified
electors of the state. (Sec. 27, art. 4, Constitution of Nevada.)
By our constitution and by the laws enacted under it providing for the selection of jurors,
qualified electorship is made a fundamental prerequisite for the right and privilege to serve on
jury duty. By this prescription the class from which good and lawful jurors may be selected is
limited and defined, to the exclusion of all others. It is a constitutional demand of elimination
which no one affected thereby can waive either expressly or by silence.
As was said by the Supreme Court of Utah in the case of Hopt v. Utah, 110 U. S. 574, 4
Sup. Ct. 202, 28 L. Ed. 262, that which the law makes essential in proceedings involving the
deprivation of life or liberty cannot be disposed of or effected by the consent of the accused,
much less by his mere failure, when on trial and in custody, to object to unauthorized
methods.
Eliminating everything in this case save the validity of the jury itself, would any one
seriously contend that the district judge in this case might have impaneled a valid grand jury
of seventeen men, every one of whom was a citizen of Wyoming, sojourners in this state?
Manifestly not. The mere suggestion is ludicrous. But why not if the members themselves
made no demurrer and were willing to serve? When we pause to ask the question, the reason
appeals to a more serious condition. The whole body of such a grand jury would be void by
reason of a fundamental defect, by reason of the fact that by the constitution of this state they
were excluded from the right or privilege of being summoned or to serve as jurors, although
qualified in every other respect. Such a body would be devoid of that fundamental requisite
which had its origin in the ancient precept that each to be qualified must be a liege subject of
the king and which, carried down into modern times and embodied in the constitution of this
state, is prescribed to be qualified electorship. If the whole panel under such conditions would
be void, will the mere fact that sixteen good and lawful men are impaneled and one not
possessed of that qualification is impaneled with them constitute a valid jury, when the law
says that seventeen men possessing the qualification of electorship shall constitute a grand
jury panel? If seventeen disqualified men would constitute a void jury, how many less than
seventeen disqualified men would constitute a valid jury panel? If a jury is void by reason of
constitutional and statutory provision, how can a mere waiver of objection to its void nature
make it valid?
The statute provides that grand jurors may be selected from the qualified jurors of the
county, and the qualified jurors of the county are limited to those who are qualified
electors.
jurors of the county are limited to those who are qualified electors. If, by statutory enactment,
the field from which grand jurors might be selected was not limited to the qualified electors
of the county, or if the court had general powers in the selection of grand jurors, or if the
constitution did not exclude from jury duty all persons not qualified electors, a different
reasoning might follow, and statutes such as ours might be considered as directory in their
nature. But the legislature had no power to go beyond the limit prescribed for it by the
constitution, even if it had been so inclined, which is not the case here, and, in my judgment,
the courts have no authority to sanction a departure from that which is an imperative
provision of the constitution. In the selection and impaneling of grand jurors, courts should be
strict in discountenancing and discouraging irregularities, and a more strict compliance with
the plain provisions of the statute, in matters of this kind, would avoid much of what is
termed the law's delay.
The Supreme Court of Tennessee, in the case of State v. Duncan, 7 Yerg. 275, speaking
through Mr. Chief Justice Catron, said: Suppose an indictment was found by a grand jury, no
person composing of which was qualified? All will admit the indictment would be merely
void in fact and ought not to be answered if the fact was made legally to appear. So, if any
one be incompetent, it is equally void, because the proper number to constitute the grand
inquest is wanting, and because he who is incompetent shall not be one of the triers of the
offense at any stage of the prosecution.
Section 1025 of the Revised Statutes of the United States (U. S. Comp. St. 1901, p. 720)
provides: No indictment found and presented by a grand jury in any district or circuit or
other court of the United States shall be deemed insufficient, nor shall the trial, judgment, or
other proceeding thereon be affected by reason of any defect or imperfection in matter of
form only, which shall not tend to the prejudice of the defendant.
In speaking upon the application of this statute, Mr. Justice Harlan, in the case of Crowley
v. U. S., 194 U. S.
461, 24 Sup. Ct. 731, 48 L. Ed. 1075, speaking for the Supreme Court of the United States,
said: The disqualification of a grand juror is prescribed by statute and cannot be regarded as
a mere defect or imperfection in form; it is a matter of substance which cannot be disregarded
without prejudice to an accused.
The prevailing opinion in the case at bar states: As the state is disposed to prosecute and
could have proceeded by information, it is not apparent that special injury will result to the
accused by allowing the trial to proceed upon the indictment. Differently from a foreigner
who might be unfamiliar with our language or methods, or without sympathy for our
institutions, the fact that the member of the grand jury to whom objection is so seriously
made is a senator in a sister state leads to the conclusion that he is a citizen of the United
States and of more than ordinary ability and understanding of our laws. It appears that he has
been living and following industrial pursuits in this state for the most of the time during the
last year or two, and that his only disqualification for being a good grand juror is his intention
to retain his residence in Wyoming. Men sometimes maintain residences in different places,
although allowed only one legal residence as an elector.
If we were to follow this reasoning to its logical conclusion, the judge of the district court
of Elko County might have impaneled the entire legislature of the State of Wyoming, if by
chance they happened to be sojourning in the community, or, being enticed by the fertility of
our soil or the glory of our scenery, they came to Elko County to remain between sessions.
The seriousness of the proposition before this court will admit of no such reasoning in my
judgment. It is not a question of prejudice to the defendant, or to any person, nor is it a
question of overriding the constitutional prohibition, so that citizens of another state, however
eminent they may be, can be impaneled to sit as members of a body, the functions and powers
of which invade every avenue of our social compact and by which any one of our people may
be put upon trial for his liberty or his life. The question is not how it may affect any one or
every one; it is rather: Is the panel legally constituted?
question is not how it may affect any one or every one; it is rather: Is the panel legally
constituted? Are its members drawn from that class within the county possessed of the
constitutional demand of qualified electorship? The constitution and the statutes prescribe the
limits to which a court may go in selecting grand jurors, the manner of selection, and, above
all, the citizenship from which the individual members of the panel may be selected and
limits the court in its selection to that class of individuals of the county who, by act and
intention, have brought themselves within the roll of electorship.
A grand jury is not a body, the importance of which should be lightly regarded; it has its
sanction in the constitution, and the constitution prescribes the qualifications for its
component membership; its functions and offices are sacred to the institutions of our
government; it investigates our public officers; it invades the operation of the government
closest to the people and inquires into the efficiency and honesty of public servants; but most
of all its investiture gives it the right to indict and thereby to challenge the individual to his
right of liberty or life. The fundamental laws having prescribed strict rules for the selection,
summoning, and impanelment of such a body, and, having declared that the prime requisite of
every member of that body is qualified electorship in the county, is it within the province of
the courts to say that anything less than the demand and prerequisite of the constitution and
the laws enacted under it will suffice?
The reasoning laid down in the case of Doyle v. State, 17 Ohio, 224, in a proceeding
almost identical to this, and where the statute relating to jurors provided that they should have
the qualification of electors, is especially applicable here; it having been contended there, as
in this case, that the objection was interposed too late. That court said in substance: No
objection can come too late which discloses the fact that a person has been put to answer a
crime in a mode violating his legal and constitutional rights. The doctrine of waiver has
nothing to do with criminal prosecution. A person can be put upon his defense on a charge
of crime and be convicted of crime only in the exact mode prescribed by law; and,
whenever it shall be made manifest that the legal rights of the person charged have been
violated, the court should permit the accused to have the benefit of the error.
upon his defense on a charge of crime and be convicted of crime only in the exact mode
prescribed by law; and, whenever it shall be made manifest that the legal rights of the person
charged have been violated, the court should permit the accused to have the benefit of the
error. The courts have the power only to try a person who has been indicted for crime. What
an indictment is is a matter of law. Who shall constitute a grand jury, how it shall be
summoned, composed, and organized is all matter of constitutional and statutory provisions.
No man can by his consent or will constitute a grand jury; no man by express consent can
confer jurisdiction upon a court to try him for a crime; no man by express consent can make
that an indictment which is not an indictment.
The trial judge in his able decision rendered on this point, and which is before us in the
record, said that if the objection had been raised to the juror Hyde in time he would have been
excused. How could the petitioner's waiver or silence, or failure to raise the objection, make
that a grand jury which was not a grand jury in law? It was not for petitioner to make the
grand jury, but for the statute, and that which was void as being without qualification could
create nothing more valid than itself; hence the indictment was void. To say that a person
charged, by entering a plea of not guilty to a void and invalid indictment, could confer upon
the court power to try and sentence him does not ring true either in reason or in law. (Doyle v.
State, 17 Ohio, 224; Crowley v. U. S., 194 U. S. 461, 24 Sup. Ct. 731, 48 L. Ed. 1075; U. S.
v. Lewis, 192 Fed. 633.)
The respondent contends, and the prevailing opinion holds, that petitioner should have
made this objection at the time of impanelment of the grand jury. How can this be true when
the objection here raised, being that the juror Hyde was not a qualified elector, is not
embraced in any of the grounds prescribed by statute for challenge to the individual grand
juror. It cannot be successfully argued that the ground of challenge prescribed by statute
under section 7005 "that he is an alien" can apply to cover the objection raised here.
under section 7005 that he is an alien can apply to cover the objection raised here. The term
alien, by its general acceptation and in contemplation of statutes, generally means a citizen
of a foreign country, one born out of the United States and not naturalized. (Hennessy v.
Richardson, 189 U. S. 25, 23 Sup. Ct. 532, 47 L. Ed. 697; Words and Phrases Judicially
Defined, vol. 1, 299.)
The objection here raised is one that comes from the lack of compliance with specific
constitutional provision; hence there is no provision of statute limiting the time in which or
prescribing the time at which this question may be raised. It is not embraced within any of the
grounds set forth in section 7005. It being a constitutional provision, bearing upon the
constitutional rights of the individual, he has the right to raise it at any time the same as that
of jurisdiction. In my opinion the question here raised is not controlled by any statute. The
time in which it may be raised or at which it may be raised is not limited by our code, and it
must depend upon principles of general law applicable to criminal proceedings in civilized
countries, and the whole question falls squarely within the rule as laid down by the Supreme
Court of the United States in the case of Crowley v. U. S., supra, and in that case, under laws
and conditions very much analogous to those presented in the matter at bar, the court granted
the relief prayed for.
I recognize that the prevailing opinion in this case is in some respects supported by
authority; but in view of our constitutional provisions and the statutes enacted under it, and
reading them in the light of what in my judgment was the true intention of the framers of our
government, I cannot reach any other conclusion than that, in view of all the facts presented
by the record here, the writ prayed for in this case should have been granted.
____________
[No. 2055]
ALEX. McVEIGH MILLER, Petitioner, v. MITTIE POINT MILLER, and HON. E. J. L.
TABER, as District Judge of the State of Nevada, in and for the Fourth Judicial District,
Respondents.
[For opinion on merits, see page 115, ante.]
The petition for rehearing in this proceeding is denied. Upon the hearing of the case upon
appeal, the appellant, if he so desires, may present for the consideration of the court such
proposed additions or modifications of the transcript of the record as he may deem essential
to a proper consideration of the questions involved on the appeal. The court will then
determine whether appellant is entitled to have the additions or modifications considered as a
part of the record of the case.
____________
36 Nev. 443, 443 (1913) Shearer v. City of Reno
[No. 2014]
RALPH W. SHEARER, Respondent, v. CITY
OF RENO, Appellant.
1. DedicationActs ConstitutingFiling Map.
By filing a plat as an addition to a town, and advertising and selling lots, the land shown on the map as
streets, avenues, and public parks became dedicated for those purposes.
2. DedicationRight of Intruder.
Notwithstanding the city council might be bound by its order on petition of the property owners, changing
the northerly boundary line of an avenue, such order in no way added anything to the alleged title of an
intruder upon the land formerly included within and dedicated as the avenue.
3. DedicationWhat Constitutes.
A dedication of land for public purposes is simply a devotion of it, or an easement in it, to such purposes
by the owner, manifested by some clear declaration of the fact.
4. DedicationAcceptanceRevocation.
An acceptance completes the transfer of the property or the easement in it from the owner to the public,
and, where there is nothing beyond the owner's declaration without acceptance by the public, the dedication
may be revoked at the owner's pleasure.
5. DedicationEstoppel to Deny DedicationIntervening Rights.
If nothing beyond a declaration is made, and no interest in the property is acquired by third persons a
dedication of property may be recalled at the pleasure of the owner; but, where contracts for a valuable
consideration are made upon the supposed appropriation of the property to the uses indicated, the
dedication becomes irrevocable, such contract estopping the owner from asserting any interest except in
common with purchasers from him.
6. DedicationNecessity of Acceptance.
Formal acceptance of a dedication by the public authorities is not necessary to complete the dedication
and preclude the original owner from revoking it, although the formal acceptance by the public authorities
may be necessary to impose upon them the duty of protecting the property, and keeping it in a condition to
meet the uses intended.
7. DedicationRevocationFailure to Subject to Immediate Use.
The irrevocable character of a dedication, after sales made with reference thereto and induced thereby, is
not affected because the property is not at once subjected to the uses designed.
8. PropertyPossession as Indication of Ownership.
In the absence of any showing of a better title or right, the bare possession of property is sufficient to
indicate ownership, and to warrant a recovery by the occupant against a mere intruder.
9. DedicationRights as Between Public and Intruder.
Where the owner of land dedicated part of it as an avenue by filing a map as an addition to a town, and by
selling lots with reference thereto, a mere intruder upon land originally within the boundaries of an avenue
who fenced and built thereon acquired no rights as against the public.
10. DedicationCessation of UseReverter.
Where city authorities close an avenue dedicated as such, or release it from the public easement, the right
to it reverts to the dedicator's estate, and not to an intruder theron.
Action by Ralph W. Shearer against the City of Reno. Judgment for plaintiff, and
defendant City of Reno appeals. Reversed, with direction to enter a judgment in favor of City
of Reno.
E. F. Lunsford, City Attorney of Reno, for Appellant.
Thomas E. Kepner, for Respondent.
Plaintiff brought this action to quiet title to a triangular piece of ground in the city of Reno,
bordering 109 feet on the south line of Jones Street, 73.42 feet on the east line of Washington
Street, and 133.35 feet on the northerly line of Riverside Avenue, as shown on the Amended
Map of Powning's Addition to the Town of Reno. The case was tried upon an agreed
statement of facts, and, from a judgment in favor of the plaintiff, and an order denying a
motion for a new trial, the city of Reno, which was incorporated by acts of the legislature
passed in 1903 and 1905, has appealed.
On the original map of Powning's addition to the town of Reno, filed March 17, 1887,
which covered over twenty blocks and adjacent streets, laid out on land belonging to C. C.
Powning, which adjoined the blocks and streets of the town of Reno, the ground in
controversy stands open, without lines or lot designation, as a part of Riverside Avenue,
at the junction of Jones and Washington Streets, thus:
of the town of Reno, the ground in controversy stands open, without lines or lot designation,
as a part of Riverside Avenue, at the junction of Jones and Washington Streets, thus:
(Map)
On the amended map of Powning's addition to the town of Reno, filed April 10, 1891, four
years later, this piece of ground is platted as fractional lots 1 and 2, without block
designation, in this manner:
piece of ground is platted as fractional lots 1 and 2, without block designation, in this manner:
(Map)
This was accomplished by reducing the width of Riverside Avenue as it appeared on the
original map.
On the day the original map was filed Powning sold lots in his addition to six different
purchasers, and latter sold other lots, and for a period of some weeks, beginning prior to the
filing of the map and continuing after such filing, published an advertisement in his paper,
the Nevada State Journal, extolling the lots, and offering them for sale, and stating that it
was intended to have Riverside Avenue one hundred feet in width, and that it was certain
to become the fashionable driveway of the country.
such filing, published an advertisement in his paper, the Nevada State Journal, extolling the
lots, and offering them for sale, and stating that it was intended to have Riverside Avenue one
hundred feet in width, and that it was certain to become the fashionable driveway of the
country. After the filing of the amended map, in a bond or agreement for the sale of lots
directly across the street, he expressly agreed that he would not sell or improve the two gore
lots constituting the ground in controversy, and that they should be left and thrown open to
the public for all time as a part of Jones and Washington Streets and Riverside Avenue. After
making this agreement he sold to other persons lots in the adjoining blocks, from which the
view of the river might be partly obscured if buildings were erected on the ground in dispute.
In November, 1900, S. O. Hatfield entered upon the ground in controversy, built a fence
around it and a small house on the premises, and lived there about ten months, and until the
house burned. Within a period of several months thereafter the fence was gradually carried
away by Indians. Through quitclaim deeds executed since Hatfield left the premises the
plaintiff has acquired any right which Hatfield obtained to the ground by reason of his
improvement or possession, and since his occupancy the taxes have been paid by his grantees.
The controlling questions presented are whether it is necessary to show acceptance by the
town or city authorities in order to make the dedication by Powning of land for streets,
avenues, or other public uses binding, and whether the plaintiff has such a title or right to the
land as will enable him to recover.
1. By filing the plat, and advertising and selling lots, the land shown on the map to be
streets, avenues, and public parks became dedicated for those purposes. Powning's intention
to so dedicate it is confirmed by his express agreement, made after the filing of the amended
map, that the land in controversy should forever remain open as a part of the streets and
avenue, and by the fact that he kept this agreement and never sold nor improved this land.
One of the inducements and considerations offered by Powning to purchasers of lots was
the width and beauty of Riverside Avenue. He and intending purchasers naturally considered
the advantages of having good streets and parks for enhancing or constituting a part of the
value of lots, and few, if any, town lots could be sold for satisfactory prices if the owner or
dedicator offering the lots for sale could withdraw or inclose the streets and avenues,
regardless of whether the city formally accepted, or graded, or improved the streets dedicated.
2. If, after the dedication by filing the original map and selling lots, Powning could
withdraw a part of Riverside Avenue, he could withdraw all of the land covered by that
avenue and other streets, render the lots he had sold of little or no value, and work great
inconvenience to the public. The filing of the original plat and the selling of lots was with the
representation and assurance that purchasers would have the benefit of streets and avenues as
represented on the map. After such filing and sales of lots he became estopped from
reclaiming the ground which he had dedicated for streets, avenues or public uses, and could
not withdraw it from the purpose for which it was so dedicated without the consent of the
town or city authorities. Notwithstanding the city council may change streets, and may be
bound by the order it made on April 26, 1909, on petition of the property owners on Riverside
Avenue, changing the northerly boundary line of the avenue, that order in no way adds
anything to plaintiff's alleged title.
Among the cases holding that an acceptance is not necessary to make the dedication
binding, one of the most clearly written opinions is by Justice Field in Grogan v. Town of
Hayward (C. C.) 4 Fed. 161. The case was very similar to the present one, except that there
the plaintiff was better fortified by reason of being the grantee of any right which remained in
the dedicator after he had made the dedication. In that case a second map was filed, and the
plaintiff claiming under conveyances from Castro, the original dedicator, and through the
holder of mortgages which had been foreclosed, constructed warehouses on part of a block
marked "Plaza," and occupied them from 1S64 to 1S77.
foreclosed, constructed warehouses on part of a block marked Plaza, and occupied them
from 1864 to 1877. In the latter year these warehouses were burned, and the town authorities
claimed possession of the ground as a part of its public plaza. It was held that the dedication
was irrevocable, and that the plaintiff could not recover, notwithstanding his possession with
the warehouses, and the fact that he had acquired any right to the land which belonged to the
dedicator after the dedication. In the opinion it is said that under this statement of the case
there ought to be no doubt as to the judgment of the court. In the light of adjudications,
almost without number, in the courts of the several states, and in those of the United States,
the law as to what constitutes a dedication of private property to public purposes, so as to be
beyond the recall of the original owner, would seem to be settled.
3-5. A dedication of land for public purposes is simply a devotion of it, or of an easement
in it, to such purposes by the owner, manifested by some clear declaration of the fact. If
nothing beyond the declaration be doneif there be no acceptance by the public of the
dedication, and no interest in the property be acquired by third partiesthe dedication may be
recalled at the pleasure of the owner. But, if the dedication be accepted by the public
authorities of the place where the property is situated, or contracts for a valuable
consideration be made by others founded upon a supposed appropriation of the property to
the uses indicated, the dedication becomes irrevocable. In the one case, the acceptance
completes the transfer of the property, or easement in it, from the owner to the public; in the
other case, the contract with the owner estops him from asserting any interest except in
common with the purchasers from him.
The filing in the office of the county recorder of the map containing a designation of the
streets and blocks, as set apart for public uses, was a public declaration of the fact. Whether,
if nothing further had been done by him, there would have been any such interest acquired by
the public as to forbid a subsequent assertion of ownership may be questioned.
ownership may be questioned. But when, by the sale of the property by reference to the map
filed or bounded by streets marked upon it, other parties had become interested in the
property set apart for public uses, the owner was precluded from asserting his original rights.
The sale by the map, or with reference to the streets upon it, was a sale not merely for the
price named in the deed, but for the further consideration that the streets and public grounds
designated on the map should forever be open to the purchaser and to any subsequent
purchasers in the town. This was an essential part of the consideration. The purchaser took
not merely the interest of the grantor in the land described in the deed, but, as appurtenant to
it, an easement in the streets and in the public grounds named, with an implied covenant that
subsequent purchasers should be entitled to the same rights. The grantor could no more recall
this easement and covenant than he could recall any other part of the consideration. They
added materially to the value of every lot purchased.
6. No formal acceptance by the public authorities of the dedication, upon which the
counsel for the plaintiff so much insist, was essential. A formal acceptance by the public
authorities of a dedication may be necessary to impose upon them the duty of protecting the
property, and keeping it in a condition to meet the uses designedas, for instance, to open
and repair a streetbut it is in no respect essential to complete the dedication and preclude
the original owner from revoking it. The dedication is irrevocable when third parties have
been induced to act upon it and part with value in consideration of it.
7. Nor is this irrevocable character of the dedication affected because the property is not at
once subjected to the uses designed. In many instances, perhaps the greater number, there
may be no present need of the land for the purposes contemplated, as in the case of streets and
parks laid out upon a tract added to an existing city to meet its supposed future growth, as in
the present case, or upon a tract selected as a site for a new town. In such cases it is
understood that the property will only be subjected to the uses intended as it may be from
time to time needed to meet the growth of the place.
will only be subjected to the uses intended as it may be from time to time needed to meet the
growth of the place. If an immediate subjection were required in such cases, the object of the
dedication would be defeated.
In Archer v. Salinas City, 93 Cal. 43, 28 Pac. 839, 16 L. R. A. 145, it was held that a
dedication to the public is effected by the owner of land if he makes and records a map by
which the tract is subdivided into blocks and lots which are bounded by streets connecting
with streets already laid out, marks a space thereon Park, and sells lots facing the park,
holding it out as an inducement to purchasers. It was also the conclusion of the court that
delay on the part of the town in using the land which had been dedicated to it for a park did
not impair its right thereto, and that, although acceptance is necessary in case of an offer to
dedicate, actual dedication will vest title in the public without acceptance.
The decision in Abbott v. Mills, 3 Vt. 521, 23 Am. Dec. 222, holds that it is not necessary
in order to show dedication of land to the use of the public to prove that it has been
appropriated to such use, and that it is sufficient if the owner thereof, by some unequivocal
act, manifested his intention of dedicating it to public use, and in consequence of such
intention individuals have purchased from him property which would be materially affected if
such intention be changed; that the proprietors, after setting apart lands as a public square or
common, cannot resume the lands so dedicated or appropriate them to any other use when
individuals have been induced by reason of the dedication to purchase lots bordering on such
square in expectation that it will so remain.
In Bartlett v. City of Bangor, 67 Me. 460, it was held that, when the owner of land near a
growing city or village divides it into streets and lots, makes a plat of the land showing the
streets and lots, and then sells one or more of the lots by reference to the plan, he thereby
annexes to each lot sold a right of way in the streets which neither he nor his successors can
interrupt or destroy. It was further held that, although the location and platting of streets by
the owner of land and the sale of lots constitute an incipient dedication of the streets to the
public, neither the owner nor his successors in title can afterwards revoke such
dedication, notwithstanding it does not impose upon the municipality the burden of
keeping the streets in repair until they have been accepted by competent authority.
of lots constitute an incipient dedication of the streets to the public, neither the owner nor his
successors in title can afterwards revoke such dedication, notwithstanding it does not impose
upon the municipality the burden of keeping the streets in repair until they have been
accepted by competent authority.
Northport Association v. Andrews, 104 Me. 342, 71 Atl. 1027, 20 L. R. A. n.s. 976, holds
that the dedication of land for a park is effected by the exhibition of a plat on which the space
is designated as a park when selling lots bordering thereon, followed by permitting the public
to use the tract.
In Wood v. Seely, 32 N. Y. 116, it is said: Cases of dedication often rest upon the
principle of estoppels in pais, it being considered fraudulent on the part of one dedicating his
land to public uses to retract, to the prejudice of parties who have purchased on the faith of
such dedication.
In Wiggins v. McCleary, 49 N. Y. 346, it was held that, where the owner of a tract of land
lays it out into lots, and intersects it with a street or alley for the convenience of the lots, and
sells a lot, bounding it upon a street or alley, the purchase being made in reference to such
convenience, the purchase acquires an easement in the street or alley which cannot be
recalled, and that such easement is not lost by mere nonuser.
In Rowan v. Town of Portland, 8 B. Mon. (Ky.) 232, the land between the blocks and the
river was left open, with no line separating it from the town, and it was held that the
designation by the proprietor of particular parts or spaces as intended for public use, though
appearing on the map alone, would be regarded as conclusive dedications of such parts or
spaces to the uses designated. It is said, in the opinion: We are satisfied, therefore, that
whatever ground within the limits of the town of Portland, as presented by the plat and plan
of said town, appears to have been designated as for public use must be taken to have been
irrevocably dedicated to that use by the recorded plan and indorsement thereon, and by the
recorded deeds conveying the lots according to said plan.
the recorded deeds conveying the lots according to said plan. * * * The foregoing principles
are fully sustained by the cases already referred to in this court, and by the cases of Buckner v.
Trustees of Augusta, 1 A. K. Marsh. (Ky.) 8; Augusta v. Perkins, 3 B. Mon. (Ky.) 437; Town
of Bowling Green v. Hobson, 3 B. Mon. (Ky.) 478; Cincinnati v. White's Lessee, 6 Pet. 431, 8
L. Ed. 452; Barclay v. Howell's Lessee, 6 Pet. 498, 8 L. Ed. 477; New Orleans v. United
States, 10 Pet 662, 9 L. Ed. 573; Livingston v. Mayor of New York, 8 Wend. (N. Y.) 87, 22
Am. Dec. 622; Wyman v. Mayor of New York, 11 Wend. (N. Y.) 486; Trustees of Watertown
v. Cowen, 4 Paige (N. Y.) 513, 27 Am. Dec. 80; Hills v. Miller, 3 Paige (N. Y.) 260, 24 Am.
Dec. 218. To these might be added many other cases, both in England and America, tending
to give efficacy to a sale according to the plan or map of a town, as a dedication of the spaces
left apparently and appropriately open for the public use, as streets, public squares, commons,
landing places. * * * The efficacy of a dedication to public use, arising from the clear
indications of the map or plan of a town by which lots have been sold or conveyed, is so well
established by the adjudications of the highest tribunals in our own and other countries, and
flows so directly from the principles of honesty and good faith, which must be applied to the
transactions and the rights of individuals and is so absolutely essential to preserve, from
oppression and outrage, privileges well understood, fully paid for, and necessary to the
reasonable enjoyment of that which is expressly granted, that it cannot be shaken by any
metaphysical inquiry into the capacity of the public at large to take the benefit of such
dedication as a grantee.
In Kimball v. City of Chicago, 253 Ill. 105, 97 N. E. 257, it was held that, in order to show
an intent to dedicate a strip of land as a street or alley, it is not essential that it be designated
in terms on the plat, provided such intention is manifested by the consideration of the entire
plat.
The decision in Barclay v. Howell's Lessee, 31 U. S. (6 Pet.) 505, 8 L. Ed. 477, in effect
holds that, if it was intended at the time the survey was made to have the streets extend
through to the river, the land was dedicated accordingly, notwithstanding the ground
claimed for the streets was not in a situation to be used, and had not been used.
intended at the time the survey was made to have the streets extend through to the river, the
land was dedicated accordingly, notwithstanding the ground claimed for the streets was not in
a situation to be used, and had not been used.
In Church v. City of Portland, 18 Or. 73, 22 Pac. 528, 6 L. R. A. 259, it was held that the
general dedication of land for public squares implies that they are to be enjoyed by the public.
In the L. R. A. note to that case, and over the citation of numerous decisions, it is said that,
where the owner has laid out village lots intersected with roads and public squares, such
roads and public squares are dedicated to public use; that the same rules of law are applicable
to the dedication of public squares as for the dedication of highways; that commons are
dedicated to public uses, and the original proprietor can never appropriate them exclusively to
any private use; that the word Park written upon a block or upon a map indicates a public
use, and operates conclusively as a dedication of the block; that cases of dedication rest upon
the principle of estoppel in pais; that it is not competent for the party making a dedication to
assert any right over the land so long as it remains in the public use; and that where the owner
of a tract of land lays it out into lots, and intersects it with streets, obviously for the
convenience of the lots, and purchases of lots are made, there is created in the owners an
easement in the streets which cannot be recalled.
In 3 Dillon on Municipal Corporations (5th ed.), sec. 1073, that eminent author states: As
to common-law dedications, the right to make which is not usually taken away or abridged by
statutory regulations respecting town plats, the subject may be advantageously presented by
referring to the leading case of City of Cincinnati v. White, decided by the Supreme Court of
the United States, which has been extensively followed by the state tribunals, and is
everywhere recognized as a sound exposition of the peculiar doctrines of the law respecting
the rights which may be parted with by the owner and acquired by the public under the
doctrine of dedication.
owner and acquired by the public under the doctrine of dedication. In that case it appeared
that in 1789 the original proprietors of Cincinnati designated on the plan of the town the land
between Front Street and the Ohio River as a common, for the use and benefit of the town
forever. A few years afterwards a claim was set up to this common by a person who had
procured a deed from the trustee in whom the fee of the land was vested, and who had entered
upon the common, and claimed the right of possession. The proof of the dedication (marking
on the plat, accompanied by public use) being made out to the satisfaction of the court, it
sustained the rights claimed by the city.
Over the citation of scores of decisions in numerous states, it is said, in 13 Cyc. 455:
Where the owner of real property lays out a town upon it, and divides the land into lots and
blocks, intersected by streets and alleys, and sells any of the lots with reference to such plan,
or where he sells with reference to the map of a town or city, in which his land is so laid off,
he thereby dedicates the streets and alleys to the use of the public, unless it appears either by
express statement in the conveyance or otherwise that the mention of the street was solely for
purposes of description, and not as a dedication thereof. On the same principle the owner will
be held to have dedicated to the public use such pieces of land as are marked on the plat or
map as squares, courts, or parks. The reason is that the grantor by making such a conveyance
is estopped, as well in reference to the public as to his grantees, from denying the existence of
the easement. Nevertheless the mere laying out of a town and making a plat of it without
selling any of the lots will not, in the absence of a statute, constitute a dedication of the
streets, and it has also been held essential that the sales be shown to have been rendered
effectual by conveyances. According to the great weight of authority a dedication made as
hereinbefore described is irrevocable, and the dedicator is forever concluded from exercising
any authority or setting up any title to the same, and that, too, although there has been no
formal acceptance by the public authorities.
same, and that, too, although there has been no formal acceptance by the public authorities.
Nor is the irrevocable character of the dedication affected by the fact that the property is not
at once subjected to the uses designed.
There are cases holding that a formal acceptance or the keeping in repair or making of
improvements, constituting an implied acceptance, are necessary in order to make a road,
street, or alley a public highway, more usually in cases for damages for failure to keep in
repair, where they have been opened by some owner who has not dedicated them by filing a
map and selling lots, and where the public or owners of property generally in the vicinity are
not interested in having them maintained as highways. These cases are distinguishable from
the present one because not involving similar considerations pertaining to the purchasers and
owners of lots and the public.
8, 9. If it could be held that Powning had not dedicated the land in controversy as a part of
the streets and avenue, or that he could or did recall it after making the dedication, the title
would, in the absence of any conveyance by him, still remain in his estate, and not in the
plaintiff. Hatfield traces no title from him, and the same is true of the plaintiff, who claims no
right except through Hatfield. In the absence of any showing of a better title or right, the bare
prior possession of property is sufficient to indicate ownership and warrant a recovery by the
occupant. If no other right to the ground prior to the possession by Hatfield were shown, the
plaintiff would prevail. If Hatfield had been in possession of the ground prior to any
ownership or title held by Powning, the presumption would arise that Hatfield owned the
property, and consequently that the dedication of it by Powning when he was not the owner
was ineffective, and plaintiff would be entitled to recover as grantee under the quitclaim
deeds carrying Hatfield's right by reason of being first in possession. But, as it is conceded
that Powning was the prior owner of the property, and did not convey it to Hatfield, and,
as we have held, dedicated it for a public use, the later possession by Hatfield, and any
right or claim acquired through it by the plaintiff, is shown to be subordinate to the right
of the public.
that Powning was the prior owner of the property, and did not convey it to Hatfield, and, as
we have held, dedicated it for a public use, the later possession by Hatfield, and any right or
claim acquired through it by the plaintiff, is shown to be subordinate to the right of the public.
As Powning, by filing the original map, and selling lots, became precluded from asserting
ownership against the easement or right of the public to the use of the streets, Hatfield, a mere
intruder, and his grantees are quite as much precluded. If he could acquire a right by fencing
and building upon land which had been dedicated as an avenue by another, it might follow
that any person could build upon the streets or highway, and successfully maintain an action
for the ground taken in possession.
10. In New Orleans v. United States, 35 U. S. (10 Pet.) 662, 9 L. Ed. 573, it was held that a
grant from the dedicator of land dedicated to public use and the erection of buildings could
not be considered as disproving a dedication nor affecting the vested rights of the public. This
would be authority for holding that, if Hatfield had obtained a deed from Powning for the
land in dispute after the dedication made by filing the map and selling lots, and any title so
obtained by Hatfield, with any right he acquired by his improvements or possession, had been
conveyed to the plaintiff, he could not recover against the dedication and the vested right of
the public. If the city authorities closed the avenue covering the land in dispute, or authorized
it to be freed from the public easement and recalled, the right to it would revert to Powning's
estate, and not to the plaintiff, because he holds no title from Powning. (Harris v. Elliott, 35
U. S. 25, 9 L. Ed. 333.)
The judgment and order are reversed, and the district court is directed to enter a judgment
in favor of the city of Reno.
____________
36 Nev. 458, 458 (1913) Campbell v. Goldfield W. Consol. Water Co.
[No. 1985]
LUTHER CAMPBELL, Appellant, v. GOLDFIELD CONSOLIDATED WATER
COMPANY, Respondent.
1. Waters and Water CoursesMining LocationsAppropriations.
The location of a mining claim on land in which a spring arose will give the locator no claim to the water
flowing from the spring in a natural channel, as against an appropriator; for a title to such flow can only be
acquired by appropriation and application to a beneficial use.
2. Waters and Water CoursesSpringsAppropriations.
Where the waters of a spring flow in a natural water course, they are the subject of a beneficial
appropriation.
3. Waters and Water CoursesChange in Use of Water by Appropriation.
One having no right to the waters of a spring which flow in a natural water course cannot object that a
prior appropriator has changed his use of the stream.
Judge.
Action by Luther E. Campbell against the Goldfield Consolidated Water Company. From a
judgment for defendant, plaintiff appeals. Affirmed.
Thompson, Morehouse & Thompson, for Appellant.
Potter, West & Potter, W. H. Bryant, and Henry M. Hoyt, for Respondent.
This is an action to quiet title to a certain spring, known as Hyde spring, and the waters
therein and flowing therefrom, and for a permanent injunction restraining respondent from
interfering therewith.
Plaintiff, appellant herein, in his complaint asserted title to the spring in question, and the
waters flowing therefrom, by virtue of ownership of a certain unpatented mining claim known
as the Capricorn in the Lida mining district, county of Esmeralda, which he alleged
embraced said spring, and that he and his grantors and predecessors in interest had been
in the exclusive possession and occupation of said mining claim, including said spring for
more than four years prior to the commencement of the action.
alleged embraced said spring, and that he and his grantors and predecessors in interest had
been in the exclusive possession and occupation of said mining claim, including said spring
for more than four years prior to the commencement of the action. The complaint further
alleged: That said spring of water and the flow therefrom is a part and parcel of said lands
hereinbefore described, and has not been appropriated or diverted by any person or persons.
Defendant, respondent herein, in its answer denied specifically the allegations in the
complaint, and set up ownership in itself of the land embracing said spring by virtue of a
certain mining location known as the December South, made on the 29th day of December,
2904, by the grantors and predecessors in interest of respondent, and by virtue of a relocation
of said ground as a mining claim, known as the Spider No. 1, made on the 1st day of
January, 1907, by certain others of respondent's grantors and predecessors in interest.
For a further answer and defense, respondent set up ownership of the spring and the waters
flowing therefrom by virtue of an actual appropriation of the waters flowing from said spring
and the application thereof to a beneficial use by its grantors and predecessors in interest, and,
also, an appropriation regularly granted to the grantors and predecessors in interest of
respondent, by the office of the state engineer of the State of Nevada, made on June 22, 1908,
under and by virtue of that certain act of the legislature, relative to the appropriation of
waters, approved February 16, 1903, as amended March 1, 1905.
Defendant prayed for judgment that plaintiff take nothing by this action, and that
defendant be decreed to be the owner of the spring in controversy and the waters flowing
therefrom.
The court below found as facts that the plaintiff was the owner of the Capricorn claim
(located January 1, 1908); that the spring in controversy was within the boundaries of
defendant's Spider No.
boundaries of defendant's Spider No. 1 claim. That on December 29, 1904, W. H. Hyde, C. L.
Hyde, and K. P. Allred located the said December South claim, and thereafter perfected such
location, and that the said claim included the said spring, and that said Hydes and Allred
continued in the occupancy thereof until the 1st day of January, 1907. That at the time of the
location of said December South claim the said spring thereon and the waters flowing
therefrom were public waters of the State of Nevada. That in the month of December, 1905,
the said Hydes and Allred applied all the waters flowing from said spring to a beneficial use
by using the same for mining and domestic purposes and the irrigation of certain lands. That
on the 20th day of December, 1905, the said Hydes and Allred made application to the state
engineer to appropriate said waters for a beneficial use, and thereafter on the 22d day of June,
1908, the said state engineer issued his certificate of appropriation to the defendant as the
assignee and grantee of the said Hydes and Allred, which said certificate contains the
following provisions:
Amount of appropriation, 1 cu. ft. per sec.; amount of prior appropriations, 0 acre-feet per
year; date of appropriation, Dec. 20, 1905; description of land to be irrigated, and for which
this appropriation is determined, 3 acres during 1906-07-08 in S. W. 1/4 Sec. 31 T. 5 S. R. 41
E. and S. E. 1/4 Sec. 36 T. 5 S. R. 40 E.
The right to water hereby determined is limited to irrigation and the use is restricted to
the place where acquired and to the purpose for which acquired; rights for irrigation not to
exceed three acre-feet per year for each acre of land for which appropriation is herein
determined.
That on the 1st day of January, 1907, the said December South mining claim, being then
subject to forfeiture for failure to perform the annual labor thereon, was relocated by one
Speed Barnes under the name of the Spider No. 1 claim, and thereafter and on the 16th day
of December, 1907, the said Speed Barnes sold the said Spider No.
Spider No. 1 claim to said K. P. Allred, who thereafter, and on the 15th day of July, 1908,
sold and transferred the said Spider No. 1 claim to the defendant; that ever since December
29, 1904, the defendant and its predecessors in interest have at all times been in the actual,
quiet, and peaceable possession of said spring, the stream of water flowing therefrom, and the
pipes and ditches conveying the same, and said waters have at all times, under their direction
and control, been applied to a beneficial use for mining, domestic and irrigating purposes, and
during all of the time herein mentioned said defendant and its predecessors in interest have
been in the peaceable, quiet, and lawful possession of said pipe line and ditches used for
diverting said waters. Upon these findings judgment was entered in favor of the defendant,
decreeing it to be the owner of the said Hyde spring and the waters flowing therefrom, and
also to be the owner of the Spider No. 1 lode mining claim as described in said judgment and
decree, which description embraced the said Hyde spring.
1. There is evidence sufficient to support all the findings in the case with the possible
exception that the Spider No. 1 claim, as originally located, embraced the spring in
controversy. There is evidence in the case which might tend to support appellant's contention
that the side lines of the Spider claim were, subsequently and after appellant had located the
Capricorn, changed so as to include the spring, but we do not consider this question
material as affecting defendant's superior right to the water based upon actual appropriation,
and we express no opinion upon the question of the sufficiency of the evidence to support this
finding. Conceding for the purposes of this case, without so deciding, that the spring may be
within the exterior limits of the Capricorn claim, such fact, nevertheless, would avail
plaintiff nothing. He does not assert any right to the flow of water from this spring by virtue
of appropriation, but bases his right solely upon the alleged ownership of a mining claim, the
exterior boundaries of which he alleges embrace the spring. This, in the absence of an
appropriation of the water flowing from the spring in a natural channel, would give the
plaintiff no right thereto as against an appropriator.
in the absence of an appropriation of the water flowing from the spring in a natural channel,
would give the plaintiff no right thereto as against an appropriator. Title to such flow may
only be acquired by appropriation and application to a beneficial use. The court below found
that long prior to plaintiff's location of the Capricorn claim, the grantors and predecessors in
interest of defendant had appropriated the flow from the spring and applied the same to a
beneficial use, and that ever since such time defendant and its grantors and predecessors in
interest had continued to so apply such flow of water.
2, 3. Many other questions are raised in the brief of counsel for appellant, and discussed at
length by respective counsel, but we think it is unnecessary to consider them. For example, it
is contended that a spring is not subject to appropriation; that the purpose of the appropriation
may not be changed without consent of the state authorities. Whatever may be the law
respecting a spring from which no water flows, there can be no question as to the right to
appropriate water flowing in a natural water course, the source of which is a spring. As to the
question of a change in the purpose of the diversion to a different beneficial use from that of
the original appropriation, appellant, not having any interest in the water by virtue of an
appropriation, is in no position to complain.
Appellant, not having established any appropriation of the water whatever, and respondent
having established an appropriation thereof upon the part of its grantors and predecessors in
interest long prior to the time appellant claims to have initiated his right by location of the
mining claim, and respondent and its predecessors in interest having since such appropriation
continuously diverted said water and applied the same to a beneficial use, the superior right to
the flow of water from the spring is in respondent.
The judgment should be modified to correspond to the prayer for judgment in the answer,
and as so modified is affirmed.
____________
36 Nev. 463, 463 (1913) Anderson v. Berrum
[No. 1919]
S. C. ANDERSON, Respondent, v. LOUIS BERRUM,
Appellant.
1. TrespassTitle to SupportLicense.
Where plaintiff had a license to cut timber on another's land, and to flume it or carry it out, he may
maintain an action for injuries caused by defendant's trespassing sheep to the roads and the flume.
2. TrespassRights of Action.
Where plaintiff had a license to cut and remove timber from a third person's land, he is not entitled to
damages for injuries to the herbage on such land caused by defendant's trespassing sheep, for only the
owner entitled to the herbage could maintain such action.
3. TrespassComplaint Sufficiency.
In an action for damages by trespassing sheep, where it appeared that plaintiff had only a license to cut
timber on the lands of a third person, he cannot, under a complaint alleging damages to the herbage on that
land and other land owned by him, recover anything for injury to the verdure; the complaint not designating
how much damage was done on the different lands.
4. WitnessesCross-Examination.
The cross-examination must be limited to matters stated in the examination in chief and questions to test
the accuracy, veracity, and credibility of the witness, though it is, or course, competent to call out anything
tending to modify or rebut the conclusion or inference resulting from the facts stated by the witness in his
direct examination.
5. WitnessesCross-Examination.
The rule limiting the cross-examination to matters stated in the examination in chief does not prevent the
cross-examining party from making the witness his own after the adverse party has concluded his case in
chief, nor does it prevent the court from allowing a rigid examination if the witness be hostile.
6. WitnessesExaminationRedirect Examination.
Where plaintiff was cross-examined as to why, in his former suit he did not claim as great damage as in
the present one, those questions were proper, and will not authorize his attorney on his redirect examination
in asking him leading questions suggesting the answer.
7. Appeal and ErrorReviewHarmless Error.
The allowance of leading questions on the redirect examination of plaintiff is not reversible error where
the matters elicited might as well have been elicited b a longer series of direct questions.
8. WitnessesExaminationLeading Questions.
The allowance of leading questions is a matter principally within the discretion of the trial court.
9. Appeal and ErrorReviewHarmless Error.
While ordinarily the allowance of leading questions is no ground for reversal, even if the trial court
abuses its discretion, the abuse may be so flagrant as to require a reversal.
Appeal from the First Judicial District Court, Douglas County; Frank P. Langan, Judge.
Action by S. C. Anderson against Louis Berrum. From a judgment for plaintiff, defendant
appeals. Affirmed on condition that plaintiff enter remittitur.
Summerfield & Curler, for Appellant.
Alfred Chartz, Talbot, C. J.:
Plaintiff brought this action to recover for trespass by defendant's band of about 2,800
sheep. In the complaint filed upon the commencement of the action the different items
constituting the damage, but not the amount claimed for each, were stated, and an aggregate
sum of $350 demanded, and, after demurrer was interposed and sustained, plaintiff filed an
amended complaint, in which he asked judgment for twice that amount, and specified the
sums he claimed for the different acts causing the damage.
According to the amended complaint, it is sought to recover as damages $350 for herding
and grazing the sheep upon the lands of the plaintiff, and the eating and tramping of the grass
and verdure so it would not replenish, $50 for knocking down a part of the piles of cordwood
which plaintiff had upon the land, $150 for tramping and filling with rocks and debris the
road and trails used by the plaintiff for packing wood, and $150 for tramping, choking up, and
filling springs which were situated on the land, and which were used by plaintiff for
household, stock, and domestic purposes, and for fluming wood.
H. M. Yerington had executed an agreement, called a lease, to J. F. Barrett, who assigned
it to the plaintiff, and which allowed Barrett, or the plaintiff as assignee, the right of
entering upon the flume and the timber lands, aggregating 2,115 acres, described therein,
"for the purpose of fluming wood through said flume to Carson River, and cutting the
timber upon said land to any extent he may deem advisable {but not to hold possession of
any part of said flume or timber lands for any other purpose whatsoever)."
and which allowed Barrett, or the plaintiff as assignee, the right of entering upon the flume
and the timber lands, aggregating 2,115 acres, described therein, for the purpose of fluming
wood through said flume to Carson River, and cutting the timber upon said land to any extent
he may deem advisable (but not to hold possession of any part of said flume or timber lands
for any other purpose whatsoever).
1. As claimed by the appellant, this so-called lease did not convey the grass on the land to
Barrett, or to the plaintiff as assignee. Nevertheless, the court properly admitted it in
evidence, because it tends to sustain plaintiff's right to cut and flume the wood, and
incidentally to use the road and trails, and to recover for damage done to them and to the
wood. The agreement was in force by consent of the parties, notwithstanding the omission of
any provision specifying the time during which the privilege of cutting and fluming timber
was to continue.
2. Exception is taken to the following instructions, which were requested by the defendant
and refused by the court:
The jury is instructed that, plaintiff having failed to prove legal title to any of the lands
described in the complaint as having been leased by him from H. M. Yerington, he is not
entitled to recover damages for or on account of defendant's sheep having been herded or
grazed upon said land.
The jury is instructed that the plaintiff has not offered any testimony of any damage
suffered by him, if any, for loss of verdure or grass on said land described in the complaint,
and in arriving at the amount of damage, if your verdict should be for the plaintiff, you cannot
take into consideration any loss the plaintiff may have sustained for verdure or grass eaten up
or destroyed by defendant's sheep when upon said land.
If they had been given, these instructions would have told the jury that the plaintiff could
not recover damages for the herding or grazing of sheep or the eating or loss of the grass and
verdure on the Yerington land, which would have been strictly correct so far as instructions
go.
would have been strictly correct so far as instructions go. As the right to the grass or to use
the land for grazing purposes was not conveyed by Yerington to plaintiff or his assignor, the
right to recover any damage for the grazing or eating of the grass, or the mere trespass of the
sheep upon the land, remained in Yerington or the owner of the land, and to him, and not to
the plaintiff, the defendant would be responsible in law for the eating of the grass and the
destruction of the verdure.
3. Plaintiff is not entitled to recover anything on account of the Yerington land under
paragraph 4 of the amended complaint, which alleges the claim for $350, or the largest item
of the damage, for the grazing upon the lands described in the complaint, and which does not
designate how much of this damage was done on the Yerington land, nor how much on the
other land. In view of the testimony of the plaintiff that most of the grass was upon his land,
possibly it may be inferred that most of the grass eaten was upon his land; but the amount of
the damage which he sustained by the grazing or eating of the grass on his own land, and
which he would be entitled to recover, is not shown by allegation or proof. As the plaintiff
could recover only for injury to property or some right belonging to him, the error in refusing
to instruct the jury that he could not recover for the grazing and eating of the grass on the
Yerington land, which had not been conveyed to him, is apparent.
The elements of damage are separate, and the purpose of having them alleged separately is
that they may be considered and proved separately. The claims for knocking down the wood,
for filling the road and trails with rock and debris, and for tramping and choking the springs
are provable and recoverable under their own allegations, and not under the one for herding
and grazing the sheep upon the lands. The sheep might have eaten the grass and destroyed the
verdure without committing any other damage. The right of action for injury to the wood
belonging to the plaintiff was as separate from any right of action in favor of Yerington for
trespassing and grazing upon the lands as if the grass destroyed had been on the land in
which the plaintiff had no interest.
destroyed had been on the land in which the plaintiff had no interest.
After refusing these instructions, which may have resulted in the award by the jury to the
plaintiff of damages for the eating of the grass and the destruction of the verdure, the owner
of the land could bring a suit, and recover the damage occasioned in this regard from the
defendant, who would be doubly mulcted if he could not avoid the payment of this damage in
this action. These instructions did not mean that the plaintiff could not recover for any injury
to his own property or right, and, if they had had been given, and the plaintiff had desired one
which would have told the jury that, notwithstanding the plaintiff could not recover for the
grazing and eating of the grass and verdure on the Yerington land, he was entitled to
compensation for any damage which he sustained by reason of the filling and injury to the
roads and trails, the trampling of the springs, and the lessening of the flow of water which he
used in moving and fluming the wood, he should have drawn and presented it to the court.
4, 5. Over the objection of the defendant, the court allowed plaintiff to answer upon his
redirect examination several leading questions which put into his mouth words of his
attorney, some of which questions were:
Q. You first brought suit in Ormsby County for $299? A. Yes, sir.
Q. Under my advice? A. Yes, sir.
Q. Didn't I tell you at that time he might pay, and it would be better to take $299 than to go
all through the courts?
Mr. CurlerWe object to the question on the ground that it is leading, suggestive, and
hearsay, and the answer to that question would be a self-serving declaration.
The CourtObjection overruled; answer the question.
Mr. CurlerWe note an exception on the grounds stated in the objection.
A. I told Mr. Chartz I wanted to sue for $800.
Q. And what was my advice? A. You said I could not sue in the justice court for more than
$300.
Q. Didn't I also advise you to sue for as little as possible in order to get the money?
Mr. CurlerSame objection.
The CourtSame ruling and exception.
A. I know you did.
The CourtNote an exception upon the grounds stated in the former objection.
A. Yes; you told me to put in the justice's court, and get quick suit of it.
Q. And sue for as little as possible because he might pay it. A. Yes, sir.
Q. Then you brought another suit in this court immediately following that, and they
knocked you out?
Mr. ChartzStrike that out.
Mr. CurlerI wish to insist upon our objection to the whole of this testimony for this
reason: The fact that a matter is brought out on cross-examination does not change the rule as
to the form of question. On redirect examination the same rule applies as to form, so far as
the form of the question is concerned, and that the witness was asked the question on
cross-examination does not give his counsel any more privilege of putting the answers in his
mouth than if these questions were put upon direct examination and not upon redirect
examination.
The CourtThe ruling of the court will stand.
Mr. ChartzNow, then, Mr. Anderson, after that suit in the justice's court was disposed of
in whatever way it may have been, you brought a suit in this court, which counsel has referred
to, in which you claimed therein $350 damages, and that was demurred to, and the demurrer
sustained, and then you brought suit for $700; very likely you have forgotten. A. I don't know
about that.
Q. Now, you brought that suit in Ormsby County, and they demurred to that, because you
had not named the county of Douglas in it with specific local subdivision of Mallory Canyon.
Didn't I advise you still to sue for a small amount to the end that Mr. Berrum might pay and
not put us through a suit? * * *
Q. Did I advise you at that time to still sue for as small an amount as possible? A. Yes, sir.
Q. In order that he might pay without any further litigation? A. Yes, sir; I know you did.
Q. Then after that I further advised you as to the amount, and didn't I tell you to sue for the
full amount? A. Yes, sir; you put it in for $700 instead of $800.
Q. I did? A. You forgot this $800.
Mr. ChartzThat is all. Oh, I forgot myself, for $800.
In this, and in most jurisdictions in this country, the cross-examination must be limited to
matters stated in the examination in chief and questions to test the accuracy, veracity, and
credibility of the witness. (Buckley v. Buckley, 12 Nev. 423, 14 Nev. 262; Ferguson v.
Rutherford, 7 Nev. 385; Cokely v. State, 4 Iowa, 477; People v. Miller, 33 Cal. 99; Houghton
v. Jones, 68 U. S. 706, 17 L. Ed. 503; Hughes v. Coal Co., 104 Pa. 207; Hurlburt v. Meeker,
104 Ill. 541; Jones on Evidence, sec. 820.)
This rule does not prevent the cross-examining party from making the witness his own
after the adverse party has closed his case in chief, and does not prevent the court from
allowing, in its discretion, a rigid examination of the witness if he is hostile. (Nash v.
McNamara, 30 Nev. 143, 16 L. R. A. n.s. 168, 144 Am. St. Rep. 694; Houghton v. Jones, 68
U. S. 706, 17 L. Ed. 503.)
On cross-examination it is competent to call out anything to modify or rebut the
conclusion or inference resulting from the facts stated by the witness on his direct
examination. (Wilson v. Wagar, 26 Mich. 452.)
6, 7. There were no good reasons for allowing questions so flagrantly leading, such as the
hostility or lack of understanding of the witness, and this testimony does not come under any
of the exceptions to the rule forbidding the putting to a party to the action of leading
questions by his own attorney. As an excuse for asking these leading questions, it is said that
when a party brings out new matter upon cross-examination he makes the witness his own,
and that leading questions may be asked on reexamination. (People v. Court, 83 N. Y. 438.)
But no such rule applies to new matter which is properly a part of the cross-examination of
the witness, or relating to matters testing his accuracy or veracity, and it ought not to apply to
a party to the action when he is being interrogated by his own attorney.
not to apply to a party to the action when he is being interrogated by his own attorney. The
reasons which allow a litigant to call the opposing party or a hostile witness to the stand and
ply him with leading questions should ordinarily preclude the asking of leading questions on
his cross, redirect, or any examination by his own attorney. If the bounds of proper
cross-examination are not exceeded, and they were not in this instance, the witness is deemed
to be continually the witness of the party introducing him. (Stephen's Digest of the Law of
Evidence, Chase ed. art. 127, note 1.)
8, 9. The questions which the defendant's attorney asked the plaintiff relating to his having
claimed, in an action brought in the justice's court and in the original complaint in this action
about half the amount of damage he claimed on the trial were proper cross-examination,
because they tended to test his accuracy or vary his testimony . (Stephen's Dig. of Ev. art.
129; Jones on Ev. sec. 822.) They did not relate to new matter in any way authorizing his own
attorney to ply him with leading questions. The same rule applies to any witness, but for
greater reasons to a party to the action. Although on redirect examination the allowing of
these leading questions was unfair and improper, it is not deemed reversible error, and
especially in view of the conclusion that the judgment must be reduced or the case remanded
for a new trial, under the claim that the verdict is excessive, and that the evidence will not
sustain a recovery for more than $350. After it had been shown that the plaintiff had brought
the suits originally for less than the amount of damage he claimed upon the trial, it would
have been proper for his attorney to have asked him to explain why he had sued for less than
he was claiming, and, if the leading questions had been disallowed, as they should have been,
no doubt by direct questions the plaintiff's reasons would have been elicited.
Whether leading questions should be allowed is a matter mostly within the discretion of
the trial court, and any abuse of the rules regarding them is not ordinarily a ground for
reversal. (State v. Williams, 31 Nev. 360; 1 Greenleaf, Ev. sec. 435; Jones, Ev. sec. S19; 1
Wigmore, Ev. sec. 776; Maguire v. People, 219 Ill. 16, 76 N. E. 67; City v. Witman, 122
Ind. 53S, 23 N. E. 796; Gibson v. Glizozinski, 76 Ill.
Nev. 360; 1 Greenleaf, Ev. sec. 435; Jones, Ev. sec. 819; 1 Wigmore, Ev. sec. 776; Maguire
v. People, 219 Ill. 16, 76 N. E. 67; City v. Witman, 122 Ind. 538, 23 N. E. 796; Gibson v.
Glizozinski, 76 Ill. App. 400; Peters v. U. S., 94 Fed. 127, 36 C. C. A. 105; State v. Whalen,
148 Mo. 286, 49 S. W. 989.) But the improper allowing of leading questions may be so
prejudicial as to require a reversal. (Woodruff v. State, 72 Neb. 815, 101 N. W. 1114; State v.
Hazlett, 14 N. D. 490; 105 N. W. 617; Turney v. State, 8 Smedes & M. 104, 47 Am. Dec.
75.)
As a considerable sum, but something less than half of the $350 claimed for grazing and
eating the grass, may have been allowed by the jury for grazing and eating the grass on the
Yerington lands, it is evident that the judgment should not stand for the full $500 awarded by
the verdict. If within ten days the plaintiff files in this court a written consent thereto, an order
will be made that the amount of the judgment be reduced to $350, and that the costs of the
appeal be paid by the plaintiff. If such consent is not filed, the judgment will be reversed, and
the case remanded for a new trial.
submission of the case, did not participate in the opinion.
____________
36 Nev. 472, 472 (1913) State v. Clark
[No. 1909]
STATE OF NEVADA, Respondent, v. BERNARD
CLARK, Appellant.
In a prosecution for felony, where a witness was examined by the state for a few moments before accused
was brought in, neither the court nor the prosecution noting his absence, and his attorneys, who were
present, not objecting on account of his absence, the error will be considered harmless where the testimony
was stricken out and later reintroduced without objection, particularly as the prosecution was had before
the enactment of Rev. Laws, sec. 7123, which requires the defendant's presence at a trial for felony, under
the old laws which did not contain any such requirement.
2. Criminal LawAppealPresentation of Grounds of ReviewExceptionsNecessity.
The particular ground of an objection or exception must be brought to the attention of the trial court,
consequently accused cannot complain on appeal that oral statements by the court to the jury, intended to
promote a verdict, were improper because not in writing, where that objection was not made below; it
appearing that the only exception to the statements was on the ground that they were of such a nature as to
prejudice accused.
3. Criminal LawTrialRemarks to Jury.
In a prosecution for homicide, action of the court in calling in the jury, which had been out some time,
and ascertaining how they stood numerically, and in urging them to reach a verdict if they could
conscientiously do so, stating that the trial had already been a great expense to the county, is not reversible
error.
4. Criminal LawTrialExceptions.
In a prosecution for homicide, where the court, after the case was submitted, urged the jury to reach a
verdict, denied accused an exception thereto, and threatened accused's counsel with punishment for
contempt because of his persistence in demanding an exception, the action of the court, though improper,
cannot be complained of by accused, where the objection was considered without exception.
Appeal from Sixth Judicial District Court, Humboldt County; W. H. A. Pike, Judge,
presiding.
Bernard Clark was convicted of murder in the second degree, and he appeals. Affirmed.
P. A. McCarran and W. D. Jones, for Appellant:
The court committed reversible error in proceeding with the trial during appellant's
absence. (Cutting's Comp.
36 Nev. 472, 473 (1913) State v. Clark
Comp. Laws, 4221; Humphrey v. State, 106 Pac. 978; Day v. Territory, 37 Pac. 806; LeRoy
v. Territory, 41 Pac. 612; Lewis v. U. S., 146 U. S. 370; Dunn v. Commonwealth, 6 Pa. 384;
Ball v. U. S., 140 U. S. 118; Emery v. State, 136 Am. St. Rep. 988; Humphrey v. State, 139
Am. St. Rep. 973.)
It is elementary that, to give the court jurisdiction to pronounce judgment on conviction in
a murder case, the defendant must have been present at all times during the trial, and that a
judgment which appeared on the face of the record to have been rendered without jurisdiction
of the person is absolutely void. (12 Ency. Pl. & Pr. 179, note 2; Humphrey v. State, 106 Pac.
978; Day v. Territory, 37 Pac. 806; LeRoy v. Territory, 41 Pac. 612; Lewis v. U. S., 146 U. S.
370; Hooker v. Com., 13 Gratt. 763; Dunn v. Com., 6 Barr. 384; Ball v. U. S., 140 U. S. 118;
Dyson v. State, 26 Miss. 362-383.)
The conduct of the court, as shown by the record, was a gross violation of the statute (Cr.
Prac. Act, sec. 355). The court made no pretense of reducing its instructions or remarks to the
jury to writing, but simply inquired of the jury as to how they stood, and, after being informed
that it stood eleven to one, proceeded to and did in the strongest language direct the jury that,
because of the several days the trial had been in progress and the large expense to the county,
it was the duty of the jury to find a verdict, and, having learned from the foreman that the jury
stood eleven to one, it is evident that the remarks of the court caused one juror to reconsider
and agree with his eleven associates and find the appellant guilty of murder in the second
degree.
After the jury had been instructed, in writing, by the court, at the close of the argument,
and had retired to consider their verdict, it was too late for the court, even in writing, to
further instruct the jury without a special request from the jury on some particular point, and
then only by consent of the appellant. (State v. Bonds, 1 Nev. 36; People v. Beeler, 6 Cal.
246; People v. Payne, 8 Cal. 341; People v. Demint, 8 Cal. 423; People v. Prospero, 44 Cal.
186; People v. Sanford, 43 Cal. 29; People v. Ah Fong, 12 Cal.
36 Nev. 472, 474 (1913) State v. Clark
Fong, 12 Cal. 345; Morris v. State, 25 Ala. 57; State v. Wilson, 50 Ind. 721; People v. Max,
45 Cal. 254; People v. Chares, 26 Cal. 78; Thompson v. People, 4 Neb. 524; Hogg v. State,
52 Ala. 2; Blair v. State, 52 Ala. 343; Stewart v. State, 50 Miss. 587; Gile v. People, 1 Col.
Terr. 60; State v. Polter, 15 Kan. 302; Brown v. State, 28 Ga. 199; Willets v. Ridgway, 9 Ind.
367; State v. Cooper, 45 Mo. 64; Gibbs v. State, 1 Tex. App. 12; Feriter v. State, 33 Ind. 283;
People v. Woppner, 14 Cal. 437; Widner v. State, 28 Ind. 394; Dixon v. State, 13 Fla. 636;
Williams v. State, 32 Miss. 389; State v. Gilmore, 26 La. Ann. 599; Long v. State, 11 Fla.
295.)
The language of the court was such as to prejudice the jury against the appellant, even if
the remarks had been in the nature of original instructions in writing, given to the jury before
they retired, and had been then excepted to by the appellant.
Here was a direct demand from the court to be informed by the jury as to just how close
the jury was to a verdict. It was equivalent to the court saying to the jury: If you are near to a
verdict, I propose saying enough to you to obtain a verdict, if possible. (State v. Ivanhoe, 35
Or. 150, 57 Pac. 317; Randolph v. Lampkin, 90 Ky. 552; Whitlaw's Exr. v. Whitlaw, 83 Va.
40,1 S. E. 407; State v. Bybee, 17 Kan. 462.)
Cleveland H. Baker, Attorney-General, for Respondent.
This is an appeal from a conviction of murder in the second degree, and from an order
denying a motion for a new trial. The alleged errors relied on are that upon the trial some
testimony was taken during the absence of the defendant, and that oral instructions were
given and improper remarks made by the court to the jury.
1. Prior to and during the trial the defendant was in the custody of the sheriff, and in jail
when the court was not in session. Upon the convening of court after a noon recess, and
before the arrival of the sheriff with the defendant, whose absence for the moment was
overlooked by the court and counsel for the state, the redirect examination of the witness J.
J. Williams was continued in the presence of the jury and defendant's counsel by Judge
Bonnifield, attorney for the state.
36 Nev. 472, 475 (1913) State v. Clark
examination of the witness J. J. Williams was continued in the presence of the jury and
defendant's counsel by Judge Bonnifield, attorney for the state. In this regard, the following
appears in the record:
Mr. J. J. Williams, on redirect examination, resumed.
Mr. BonnifieldQ. You state that you watched Clark's progress up to the gate. A. That is
right.
Q. Progress from Where? A. From where he was sitting beside the road.
Q. Watched him every instant? A. No, I can't say that I watched him every instant.
Q. Had your eye on him every step? Is that what you mean? A. No, sir.
Q. You spoke about a time there when Clark was the principal object of your vision.
Remember that part of your testimony? A. I do.
Q. What was it, if anything, that made Clark the principal object of your vision? A. I was
watching him when he raised his hand. Of course, my vision was concentrated there. That is
what I mean.
The CourtWait a minute. I didn't notice but what the defendant was here. Just read the
record since recess.
Mr. BonnifieldI didn't notice it myself.
The CourtI am sure I overlooked it. Read the record since____ Just cut the record out
since recess. Strike it out. The jury will disregard everything that has been testified to since
the noon hour.
Mr. JonesNow, if it please the court, I will ask the stenographer to read the questions
and answers that may have taken place since Judge Bonnifield commenced to examine the
witness.
The CourtWhat do you want read now?
Mr. JonesJ. J. Williams, at the convening of court at the noon recess, and during all of
which time defendant, Clark, was absent from the courtroom.
The CourtWell, I have ordered that record stricken out.
Mr. JonesI desire to have it read now.
The CourtRead it. (The reporter read the same.)
36 Nev. 472, 476 (1913) State v. Clark
Mr. JonesI now ask that the record show that at the end of the last answer read by the
reporter that Clark appeared in the courtroom for the first time since the court adjourned at 12
o'clock this day, and that the questions and answers propounded to the witness J. J. Williams
by counsel for the state were all propounded and the questions given in the absence of the
defendant. Now, if it please the court, the defendant moves the court that the jury in this case
be discharged, and that no further proceedings in this case be had, for the reason that
testimony has been taken in the absence of the defendant from the courtroom, but within the
hearing of the court, and for a portion of the time when he was in the jail of the county in a
building not within the courtroom. (Counsel for defendant objects to any further testimony
being taken in the case at all, for the reasons just state.)
Mr. BonnifieldIf the court please, while counsel is so anxious to have the record show
certain things, we will ask that the record show something else, too, and that is, that at the
convening of the court after the noon recess, after we were all in here, and when the
defendant's attorneys were both present in court, and after the court had said, Proceed with
the case, those questions were asked, and answers given, and that neither of the attorney for
the defendant made the slightest suggestion that the defendant was not present in court, or
said a word, and that as soon as your honor discovered the defendant was not present you
immediately stopped the examination, and ordered that all those proceedings be stricken out.
We ask that also be made a part of the record.
The CourtThe record will show remarks of counsel and the remarks of the court, and the
motion will be denied, and the jury is at this time admonished to disregard any testimony that
has been offered since the noon hour up to the present time, and I would like to ask the
sheriff, What is the reason, Mr. Sheriff? How was it?
The SheriffI was busy with some other things, and I kind of overlooked the time, your
honor.
36 Nev. 472, 477 (1913) State v. Clark
The CourtI am not blaming you at all; but I didn't know but what something else may
have transpired.
Mr. JonesTo the ruling of the court, if your honor please, the defendant excepts, for the
reasons stated in his motion herein.
The CourtProceed with the redirect examination, Judge Bonnifield.
The state constitution provides that: In any trial in any court whatever the party accused
shall be allowed to appear and defend in person and with counsel, as in civil cases. (Art. 1,
sec. 8.)
In the old criminal practice act it was provided that upon the preliminary hearing before
the committing magistrate the witnesses should be examined in the presence of the defendant,
and that upon arraignment, if the indictment be for a felony, the defendant must be
personally present. (Comp. Laws, 4121, 4221; Rev. Laws, 6977, 7075.)
The Compiled Laws also provided: If the indictment be for a felony, the defendant must,
before a verdict, appear in person. If it be for a misdemeanor the verdict may be rendered in
his absence. (Comp. Laws, 4368; Rev. Laws, 7414.) For the purpose of judgment, if the
conviction be for a felony, the defendant must be personally present; if it be for a
misdemeanor, judgment may be pronounced in his absence. (Comp. Laws, 4402; Rev. Laws,
7245.)
In regard to trials in the justice court, the old act also provided: The defendant must be
personally present in all cases before the trial shall proceed, unless he shall have given
sufficient bail, as provided in this act, or the district attorney consent to proceed with the trial
after the defendant shall have appeared in person; and shall also be represented by counsel.
(Comp. Laws, 4565; Rev. Laws, 7482.)
Section 7123 of the Revised Laws, which became effective in 1912, and after the trial in
this case, provides, If the prosecution be for a felony, the defendant must be personally
present at the trial; but if for misdemeanor, the trial may be had in the absence of
defendant; if, however, his presence is necessary for the purpose of identification, the
court may, upon application of the district attorney, by an order or warrant require the
personal attendance of the defendant at the trial."
36 Nev. 472, 478 (1913) State v. Clark
must be personally present at the trial; but if for misdemeanor, the trial may be had in the
absence of defendant; if, however, his presence is necessary for the purpose of identification,
the court may, upon application of the district attorney, by an order or warrant require the
personal attendance of the defendant at the trial.
In the former criminal practice act, which was in force at the time of the trial, no similar
provision is found in the sections relating to the proceedings in court between the impaneling
of the jury and the verdict.
We are cited to numerous opinions of eminent courts holding that in criminal prosecutions
for felony the accused must be present during the trial, and setting aside convictions because
of his absence. These decisions are justly protective of the rights of persons charged with
crime, and support a rule of law which should be applied in every case where the accused has
been injured or prejudiced by his absence during the trial; but they are not regarded as
warranting a reversal for an absence so short, inadvertent, and harmless as the one shown in
this case. It appears that in those cases the absence of the defendant was during the whole or
some important part of the trial, such as the selecting or challenging of jurors, the taking of
the entire or a substantial part of the evidence, the argument of counsel, the giving of
instructions, the rendition of the verdict, or the pronouncing of sentence.
It must be conceded that defendant is entitled to be present, and that, if any part of the trial
takes place in his absence which might work to his injury or prejudice, he would be entitled to
a new trial. These rights are guaranteed to every accused person so that he cannot be punished
by any unjust and clandestine trial in his absence, according to ancient tyrannical methods.
But under the circumstances of this case, the asking and answering of six questions,
consuming perhaps less than thirty seconds, before the court and attorneys for the state
noticed the absence of the defendant and the sheriff, when the answers were not of sufficient
importance when considered in connection with the other testimony given in the case to
have possibly made any difference in the verdict, when the court promptly struck out this
testimony taken during the defendant's absence, directed the jury to disregard it,
permitted the state to reexamine the witness and reintroduce this evidence in the
presence of the accused, and when the attorneys for the defendant were present during
the asking of these questions and made no objection to the giving of the answers, and
substantially the same testimony was given by the same witness previously and
subsequently in the presence of the defendant, we must regard this slight inadvertence as
too trivial to justify the setting aside of a verdict reached after a carefully fought trial
lasting three weeks.
36 Nev. 472, 479 (1913) State v. Clark
testimony given in the case to have possibly made any difference in the verdict, when the
court promptly struck out this testimony taken during the defendant's absence, directed the
jury to disregard it, permitted the state to reexamine the witness and reintroduce this evidence
in the presence of the accused, and when the attorneys for the defendant were present during
the asking of these questions and made no objection to the giving of the answers, and
substantially the same testimony was given by the same witness previously and subsequently
in the presence of the defendant, we must regard this slight inadvertence as too trivial to
justify the setting aside of a verdict reached after a carefully fought trial lasting three weeks.
The accused was confronted by the witnesses, was present during the taking of all the
material testimony which resulted in his conviction, and had full opportunity of
cross-examination. He was not deprived of any substantial right or privilege to his prejudice,
or which would have resulted in a different verdict. We have often held that technical error
which did not actually prejudice the accused will not justify a reversal. (State v. Williams, 31
Nev. 360; State v. Petty, 32 Nev. 384, Ann. Cas. 1912D, 223; State v. Smith, 33 Nev. 459;
State v. Mircovich, 35 Nev. 485, and cases there cited.)
After reviewing some decisions holding that in felony cases, where the life or liberty of the
accused is in peril, he must be present during the trial, the court, in Bond v. Commonwealth,
83 Va. 587, 3 S. E. 152, said: The foregoing citations are sufficient to attest the adjudged
authority and importance of the rule of law and practice in Virginia, that the prisoner has the
right to be present in court at any and every stage of his trial, when any thing may be done by
which he is to be affected.' But we are of opinion that the record in this case shows that
nothing was done in the prosecution by which the prisoner was or could be affected, or of
which he can rightfully complain.
In People v. Soto, 65 Cal. 622, 4 Pac. 664, after the jury had retired to deliberate upon their
verdict, they returned, and asked for further instructions, and, in the absence of the
defendant, the court reread to them a portion of the previously given instructions.
36 Nev. 472, 480 (1913) State v. Clark
and asked for further instructions, and, in the absence of the defendant, the court reread to
them a portion of the previously given instructions. Later the jury were again brought into
court, and, in the presence of the defendant, directed to disregard what had been read to them
in his absence, and this part of the instructions was again read to the jury. On appeal the court
said that it was manifest that no injury could be done the defendant by reason of that which
had occurred while he was absent, and the judgment was affirmed.
In Hair v. State, 16 Neb. 603, 21 N. W. 464, it was insisted that a new trial should be
granted because the accused was away from the courtroom while a witness was asked a few
questions by the district attorney. When the attention of the district attorney was called to the
absence of the prisoner, he ceased his examination of the witness, and when the accused
returned the questions were reasked. In the opinion it was stated that nothing had occurred to
the prejudice of the accused. The conviction was affirmed.
In State v. Grate, 68 Mo. 27, the court said: In the absence of anything in the affidavits to
the contrary, we shall not assume that defendant was prejudiced, or, that any substantial
portion of the concluding argument was made before defendant's return after recess.
In Cason v. State, 52 Tex. Cr. R. 223, 106 S. W. 337, the accused was absent while several
questions were asked by the county attorney and answered by the witness. When one of the
defendant's counsel stated that the defendant was not in the courtroom, the court promptly
told the jury to disregard all testimony that was introduced in the absence of the defendant. It
was held that, under the explanation of the court and the character of the testimony
introduced, there was no such error as authorized a reversal.
In People v. Bragle, 88 N. Y. 589, 42 Am. Rep. 269, the cross-examination of a witness
was continued by counsel for accused while he was absent from the courtroom for five
minutes to use the telephone. The conviction was affirmed. The court said: Under such
circumstances it would require a very rigid construction to hold that the rights of the
accused had been invaded or the law violated.
36 Nev. 472, 481 (1913) State v. Clark
would require a very rigid construction to hold that the rights of the accused had been invaded
or the law violated. The statute (3 R. S., c. 18, 6th ed. 1029), which declares that no persons
shall be tried for a felony unless personally present during the trial, was evidently meant for
protection of the prisoner, and a substantial performance was all which was required.
In State v. McGraw, 35 S. C. 289, 14 S. E. 631, it is stated in the opinion: The fifth
exception complains that the defendant was tried in his absence, while he was incarcerated in
jail. It seems that the defendant was present in court on the 19th, while his trial was going on,
but that he was not brought into court until about noon of the next day. He was present,
however, when the verdict was rendered. No application was made by the defendant's counsel
that he should be brought into court at an earlier hour. We see no error here.
In People v. Miller, 33 Cal. 100, the court said: The trial was not had in the defendant's
absence. She does not claim that she was absent except at the time when the jury came into
court, and announced their verdict, and while the same was being recorded by the clerk. She
was there, according to her own story, before the jury was discharged, and knew what the
verdict was, and had the opportunity to demand the polling of the jury. It is not pretended that
she was in any manner prejudiced in respect to a substantial right by reason of her momentary
absence, and, assuming she was absent, as claimed on her behalf, and that the proceeding
which transpired during the interval was irregular, it must be held to be an error or mistake of
no injurious consequence to the defendant, and in nowise rendering the verdict invalid.
In State v. Harris, 34 La. Ann. 121, the following language is quoted with approval:
While the law, in the tenderness for one in its custody, charged with a grave offense, may
not from this consideration dispense with the personal presence of the accused in all the
important material stages of the trial, lest he might possibly suffer some injury from his
absence, it is not now required that he should be personally present at each and every step
and proceeding connected with the case of minor significance and importance.
36 Nev. 472, 482 (1913) State v. Clark
now required that he should be personally present at each and every step and proceeding
connected with the case of minor significance and importance. (Dougherty v.
Commonwealth, 69 Pa. 286.)
2. After the jury had retired for deliberation, and had remained out several hours without
reaching a verdict, they were called into the courtroom, and the following proceedings were
had:
The CourtWell, now, I do not want you to state how you stand except numerically. You
understand that it is numerals. Don't want you to state to me how you standnot what you
are in favor of. Understand?
Mr. ForemanYes, sir.
The CourtBut I want to know how you stand numerically. Now, be careful. Is it___
Does the balance stand 6 to 6, or 8 to 4, or 7 to 5, or 3 to 9, or something? What is the result
of your last ballot, without stating what it was?
Mr. ForemanI understand; 11 to 1.
The CourtWell, that looks easy, if it is in that condition, and there isn't anything you
want of the court, is there, that you know of?
Mr. ForemanNo, I don't think there is.
The CourtI do not want any of you to understand, gentlemen, that I wish to suggest in
the slightest degree as to what your verdict should be. That is furthest away from my mind.
All I want to say to youto remind youthat, if you can conscientiously do so, it is your
duty to reach an agreement as to something or other. The trial has been on here now since the
28th day of April, consuming something over or about three weeks of the court's and
attorneys' time, and has cost Humboldt County a vast sum of money. Now, if you can
possibly conscientiously agree upon a verdict, it is your duty to do so. The sheriff will take
you to dinner in about half an hour, and I want you to retire to the jury room and go to work.
Mr. McCarranIf the court please, let the record show that upon the part of the defense
we save an exception now to the remarks of the court as trying to induce the jury to arrive at
a verdict by offering them inducements along the lines of the expense, which is
prejudicial to the defendant.
36 Nev. 472, 483 (1913) State v. Clark
jury to arrive at a verdict by offering them inducements along the lines of the expense, which
is prejudicial to the defendant.
The CourtWell, the record will show that the attorney is out of order, and has no right to
take an exception, and the exception will not be allowed.
Mr. McCarranWell, we will try and have that exception allowed.
The CourtIf the attorney is not very careful, he will be in contempt of court. Let the
record show that. You may retire to the jury room, gentlemen. Defendant may be remanded.
It is asserted that these remarks of the court were error, and ought not to have been made
except in writing, under the statute, which provides that, when the evidence is concluded, and
the argument made, if not waived: The judge shall then charge the jury, if requested by
either party; he may state the testimony and declare the law, but shall not charge the jury in
respect to matters of fact; such charge shall be reduced to writing before it is given; and in no
case shall any charge or instructions be given to the jury otherwise than in writing, unless by
the mutual consent of the parties. (Comp. Laws, 4320.)
In answer to this contention, we are cited in the brief for the state to a number of
authorities, and to the following quotations from former opinions of this court:
In State v. Waterman, 1 Nev. 555: During the time the jury were out consulting as to a
verdict, they came in and propounded some question to the presiding judge, in writing. He
informed them the question they asked was one relating to facts of which they were the
judges, and he could give them no instructions on the subject. It is complained that this is a
violation of the statute which requires the judge's charge in felonies to be in writing. We think
this is not a violation of the spirit or intention of the statute. It was not the intention of the
statute to prevent the judge addressing any remark to the jury, but only to reduce to writing
those instructions in regard to the legal propositions involved in the case, and which might
be the subject of review in this court.
36 Nev. 472, 484 (1913) State v. Clark
to the legal propositions involved in the case, and which might be the subject of review in this
court. Probably in almost every trial of a felony case the judge addresses some words to the
jury which are in some respects to be regarded as instructions, yet such conduct of the judge
is not held to be error.
In State v. Jones, 7 Nev. 416: The objection urged against this is that it is an oral charge,
and, second, that it had a tendency to prejudice the defendant by urging the jury to avoid
further deliberation, or careful consideration of the case, and agree upon a verdict. The
address is not open to the first objection, because it is in no sense a charge. It was not a
statement of the law governing the case, nor an instruction in any manner directing the jury
how to find a verdict. This was no more a charge than that which came in question in the case
of People v. Bonney, 19 Cal. 426, where the jury were told orally that their verdict was not in
proper form, and that they must retire and designate in the verdict in which degree they found
the defendant guilty, and it was held to be no error because not a charge. Nor can we perceive
how these remarks of the judge were calculated to encourage the jury to find an inconsiderate
verdict. The law of the case had been previously given to them, and they were fully aware of
the gravity of the duty imposed upon them. Clearly, the immediate tendency of these remarks
was simply to induce a more careful and anxious consideration of the caseto let the jury
understand that they should make an effort to agree upon a verdict simply, but not contrary to
the evidence, law, or the rights of the defendants. No such conclusion can properly be drawn
from the remarks. Nor would it be warranted when taken in connection with the instructions
given wherein the rights of the defendants are fully guarded. It is true such remarks had better
not be made; but still in this case we are unable to see that the defendant could have been
prejudiced by what was said.
Exception was taken to the remarks of the court as tending to induce the jury to arrive at a
verdict; but no exception was taken to them on the ground that they amounted to an
instruction, or ought to have been given in writing.
36 Nev. 472, 485 (1913) State v. Clark
exception was taken to them on the ground that they amounted to an instruction, or ought to
have been given in writing. Consequently the question whether the remarks amounted to an
instruction required to be given in writing was not presented to the trial court, and therefore is
not properly before this court for determination. We have often held that the particular ground
for an objection or exception must be brought to the attention of the court at the time the
objection is made or the exception is taken. (State v. Williams, 31 Nev. 360; State v.
McMahon, 17 Nev. 365; Finnegan v. Ulmer, 31 Nev. 525; McGurn v. McInnis, 24 Nev. 370;
State v. Mangana, 33 Nev. 522, and cases there cited.
In Alexander v. United States, 138 U. S. 355, 11 Sup. Ct. 351, 34 L. Ed. 954, the court
said: But the decisive answer to this assignment is that the attention of the court does not
seem to have been called to it until after the conviction, when the defendant made it a ground
of his motion for a new trial. It is the duty of counsel seasonably to call the attention of the
court to any error in impaneling the jury, in admitting testimony, or in any other proceeding
during the trial by which his rights are prejudiced, and in case of an adverse ruling to note an
exception. (Stoddard v. Chambers, 2 How. 284, 11 L. Ed. 269; DeSobry v. Nicholson, 3
Wall. 420, 18 L. Ed. 263; Canal Street Railroad v. Hart, 114 U. S. 654, 5 Sup. Ct. 1127, 29
L. Ed. 226; Thompson on Trials, secs. 690, 693, 700.)
3. Aside from the question as to whether the remarks of the court ought to have been in
writing, it is claimed that they were of such a nature as to prejudice the jury, and indicated
that the court was anxious to have them agree upon a verdict. It would have been better if
certain statements of the court had been omitted. Notwithstanding the inference might be
drawn that the court believed it would be easy for them to agree upon a verdict when only one
man was standing against the eleven in unison, we do not consider that the remarks are
reversible error when considered with the statements of the court made at the time, that the
court did not wish to suggest in the slightest degree what the verdict should be, and that it
was the duty of the jury to reach a verdict if they could conscientiously do so.
36 Nev. 472, 486 (1913) State v. Clark
to suggest in the slightest degree what the verdict should be, and that it was the duty of the
jury to reach a verdict if they could conscientiously do so. Nor do we conclude that the
statements of the court that the trial had consumed three weeks and cost the county a vast sum
are grounds for reversal, when the statement twice made by the court to the jury that it was
their duty to agree upon a verdict, if they could conscientiously do so, implied that they were
not to agree upon a verdict unless they could conscientiously do so.
These remarks did not convey anything to the jury of which they were not already aware,
for they knew the trial had consumed three weeks, and that it had cost the county a large
amount. They were not told that it was their duty to agree upon a verdict in order to avoid the
expense of another trial, or at least not unless they could conscientiously do so.
In State v. Jones, 7 Nev. 416, the following address was delivered orally to the jury, and
was excepted to by counsel: The court is not desirous of punishing the jury; but, as it is a
great expense to the county, and a venire of seventy-five jurors has already been exhausted,
and this trial has taken up a great deal of time already, and it is very doubtful if another jury
can be got in the county to try these men, I will give you an instruction upon the point on
which you were in doubt last night, and it may aid you to make up your verdict. These
remarks, not in writing, and not less improper than the ones made in the present case, were
held not to be reversible error.
4. As apparently counsel for defendant was acting in good faith, and had a right to reserve
an exception to the remarks made, it was improper for the court to refuse to allow an
exception, and to caution the attorney to be careful or he would be in contempt for asking for
the noting of an exception to the remarks of the court. This error is not regarded as affecting
the verdict or injuring the defendant, since the exception has been brought to and considered
by this court, and the defendant is not deprived of any benefit from it to which he would have
been entitled if the court had not made any remark against allowing the exception.
36 Nev. 472, 487 (1913) State v. Clark
would have been entitled if the court had not made any remark against allowing the
exception.
The judgment and order of the district court are affirmed.
McCarran, J., having been an attorney for the appellant herein prior to his election as a
justice of the supreme court, did not participate in the decision.
[NotePetition for rehearing pending.]
____________
36 Nev. 487, 487 (1913) In Re Kuhns
[No. 2101]
In the Matter of the Application of F. H. KUHNS
for Writ of Habeas Corpus.
1. ExtraditionHabeas CorpusPrior Discharge, When Not Available.
In a proceeding in habeas corpus where petitioner seeks to be discharged from arrest on an executive
warrant issued by the governor of this state upon extradition papers from the governor of a sister state, the
fact that petitioner has been previously discharged by a district court from arrest based upon a mere copy of
an alleged indictment found in a foreign state, which copy through clerical error shows that the offense
charged is barred by the statute of limitations, is of no avail to the petitioner when the extradition papers do
not contain such clerical error, but properly charge a public offense committed with the demanding state.
2. Habeas CorpusQuestions of Fact.
In proceedings in habeas corpus disputed questions of fact will not be regarded as controlling.
3. Criminal LawAbandonmentHusband and Wife.
Where husband and wife are living separate and apart under a written agreement of separation, there can
be no abandonment of the latter by the former.
4.ExtraditionFugitive from JusticeHabeas Corpus.
A person held upon an executive warrant may upon habeas corpus proceedings show that he is not a
fugitive from justice and upon such showing is entitled to be discharged.
5. ExtraditionFugitive from JusticeAccessory.
A person who was not within the demanding state at the time the crime is alleged to have been
committed, unless an accessory, is not a fugitive from justice.
6. ExtraditionFugitive from JusticeConstructive Presence.
A person, though not within a foreign state at the time he is charged in extradition papers with the
commission of a crime therein, may nevertheless be a fugitive from the justice of such
foreign state, if he was an accessory to such crime or the same was committed
through his agent.
36 Nev. 487, 488 (1913) In Re Kuhns
crime therein, may nevertheless be a fugitive from the justice of such foreign state, if he was an accessory
to such crime or the same was committed through his agent. Under such a state of facts he will be deemed
to have had a constructive presence within such foreign state at the time of the commission of the crime.
Original proceeding. F. H. Kuhns applies for writ of habeas corpus for discharge from
arrest upon an executive warrant issued upon extradition papers from the State of
Pennsylvania in which petitioner was charged in the latter state with the crime of
abandonment of his wife and minor child. Held, that petitioner was not in the demanding
state when the offense was alleged to have been committed and was not a fugitive from
justice. Petitioner discharged.
Alfred Chartz for Petitioner.
C. J. Shaffer, of the Pennsylvania bar, was heard contra.
Petitioner seeks to be discharged from arrest under a warrant issued by the governor of the
State of Nevada on extradition papers from the State of Pennsylvania.
Under copies duly authenticated by the signature of the presiding judge and clerk and seal
of the court, and accompanying the requisition papers, it appears that in the court of quarter
sessions of the peace for the county of Allegheny, State of Pennsylvania, on November 12,
1913, an indictment was returned, charging that on the 1st day of April, 1913, the petitioner,
at the county of Allegheny, did separate himself from and neglect to maintain his wife and
minor child. Acting upon what is shown upon the face of these papers, and without taking
testimony, the governor of this state issued his warrant for the arrest and extradition of
petitioner, and it is from this arrest and extradition warrant that he seeks to be released.
1. Prior to the arrival of the extradition papers, the sheriff of Ormsby County arrested the
petitioner after receiving a copy of the indictment, which charged the desertion and
nonsupport of the wife and child to have been in the year 1900.
36 Nev. 487, 489 (1913) In Re Kuhns
receiving a copy of the indictment, which charged the desertion and nonsupport of the wife
and child to have been in the year 1900. Application was made to the district court for a writ
of habeas corpus. It was contended that the offense as shown by the copy of the indictment
was barred by the statute of limitations, and last Friday the district court ordered the discharge
of the petitioner. As the date given for the alleged offense in that copy of the indictment was
evidently a clerical error, which does not appear in the copy of the indictment accompanying
the extradition papers, this objection does not avail the petitioner in this proceeding, for he
now seeks his discharge from the warrant of the governor, issued upon the papers containing
a duly certified copy of the indictment alleging the offense to have been committed on the 1st
day of April, 1913.
2. From the evidence presented for our consideration, it appears without contradiction that
on the 27th day of May, 1910, the petitioner and his wife entered into a written agreement to
live separate and apart from each other, and for the payment by the petitioner of $50 per
month in advance, for the support of his wife and minor son, to the wife, who in addition
received the rental of $20 per month or $15 per month from a dwelling house; that petitioner
made the monthly payments under the agreement to and including the month of April, 1913,
and that the last of these payments was made in advance for that month by check drawn by
petitioner and dated April 1, 1913; that he has since failed to make the payments, but has
contributed a small amount toward the support of the minor son, and that, prior to any
delinquency in payments of failure to support, he left the State of Pennsylvania on the 29th
day of March, 1913, and has not since returned there, and has resided in the State of Nevada
since his arrival here on the 3d day of April, 1913.
The indictment was found upon the testimony of the wife of the petitioner. In her detailed
sworn Statement of Circumstances of Aggravation, accompanying the requisition papers,
she states, among other things, that the petitioner separated himself from her and his child
on the 1st day of April, 1910, without reasonable cause, and has since that day refused to
live with or make his home with her; that on or about the 30th day of March, 1913, the
petitioner closed his office in the city of Pittsburg, where he was practicing as a specialist
in the treatment of the eye, ear, nose and throat for a number of years, and gave his
accounts into the hands of a collection agency, and absolutely discontinued his business
in the city of Pittsburg, and that ever since March 30, 1913, petitioner has wilfully
neglected to maintain her and their son, and that they are wholly dependent on their
earnings for adequate support, aside from the income of about $15 monthly rental from a
piece of property belonging to her.
36 Nev. 487, 490 (1913) In Re Kuhns
that the petitioner separated himself from her and his child on the 1st day of April, 1910,
without reasonable cause, and has since that day refused to live with or make his home with
her; that on or about the 30th day of March, 1913, the petitioner closed his office in the city of
Pittsburg, where he was practicing as a specialist in the treatment of the eye, ear, nose and
throat for a number of years, and gave his accounts into the hands of a collection agency, and
absolutely discontinued his business in the city of Pittsburg, and that ever since March 30,
1913, petitioner has wilfully neglected to maintain her and their son, and that they are wholly
dependent on their earnings for adequate support, aside from the income of about $15
monthly rental from a piece of property belonging to her. In this proceeding disputed facts are
not regarded as in any way controlling, and if these statements made in her affidavit may be
considered as contradicting the direct evidence of the petitioner that he drew his check on the
27th day of March, 1913, dated the 1st day of April, 1913, for the payment in advance for
April, according to the agreement for supporting her and the boy, which has been introduced
in evidence, nevertheless the Statement of Circumstances of Aggravation accompanying
the papers does not show that there was any failure on his part to keep the agreement or to
support her and the son until after he left the State of Pennsylvania, while according to his
testimony and under the written agreement there was no default on his part for more than a
month after his departure from that state.
3. As the agreement of separation was in force, there was no abandonment of the wife.
Any failure to support her or the son did not occur while petitioner was in the State of
Pennsylvania.
4-6. If, as contended, we are not to consider the undisputed evidence that the petitioner
was not delinquent in performing the conditions of his contract and did not fail to support his
wife and child until more than a month after he left the State of Pennsylvania, and that under
the admitted facts no conviction could be obtained under the indictment, and that the
holding and taking of the petitioner for trial would result in fruitless expense to the State
of Pennsylvania and unnecessary hardships to petitioner, the question remains whether
he is a fugitive from justice, subject to extradition, when it appears beyond dispute that
he was not in the State of Pennsylvania at the time he is alleged by the indictment to have
committed the misdemeanor there.
36 Nev. 487, 491 (1913) In Re Kuhns
under the indictment, and that the holding and taking of the petitioner for trial would result in
fruitless expense to the State of Pennsylvania and unnecessary hardships to petitioner, the
question remains whether he is a fugitive from justice, subject to extradition, when it appears
beyond dispute that he was not in the State of Pennsylvania at the time he is alleged by the
indictment to have committed the misdemeanor there. A person while in one state may be
guilty of the commission of a crime in another state, when he is operating with an agent or
accessory there, as in Re Cook, 49 Fed. 833, in which the accused was convicted of receiving
deposits in an insolvent bank mostly owned by him in the State of Wisconsin while he was in
Chicago, and the case of State v. Chapman, 6 Nev. 320,in which it was held that one of the
accused persons who went to the State of California, and from there telegraphed his
accomplices in the robbery when the treasure would be shipped, was properly convicted as an
accessory before the fact in this state. There is no principle of the law relating to agency or
accessory by which the petitioner can be held. He did not, with the assistance of any other
person in Pennsylvania, commit the offense charged after he came to Nevada. His acts in
selling his furniture and placing his accounts with a collection agency before he left the State
of Pennsylvania did not constitute or result in any crime.
It has been held often that the court may hear testimony and discharge a person held under
a warrant for extradition if the undisputed facts justify his release or show that he is not a
fugitive from justice. (Ex Parte Smith, 35 Nev. 80.)
In habeas corpus proceedings before the Circuit Court of the United States for the District of
Maryland, in Bruce v. Raynor, 124 U. S. 481, under an indictment for bigamy alleged to have
been committed more than two years before the finding of the indictment in a state in which
that offense is barred within two years unless the accused flees from justice, the petitioner
was allowed to prove that he remained in that state without being concealed for more than
two years after the date of the alleged offense, and it was held that such evidence would
not go to any matter of defense, but tended to prove that the petitioner was not a fugitive
from justice.
36 Nev. 487, 492 (1913) In Re Kuhns
alleged offense, and it was held that such evidence would not go to any matter of defense, but
tended to prove that the petitioner was not a fugitive from justice.
In Ex Parte Reggel, 114 U. S. 651, the court said: The only question remaining to be
considered relates to the alleged want of competent evidence before the governor of Utah, at
the time he issued the warrant of arrest, to prove that the appellant was a fugitive from the
justice of Pennsylvania. Undoubtedly, the act of Congress did not impose upon the executive
authority of the territory the duty of surrendering the appellant, unless it was made to appear,
in some proper way, that he was a fugitive from justice. In other words, the appellant was
entitled, under the act of Congress, to insist upon proof that he was within the demanding
state at the time he is alleged to have committed the crime charged, and subsequently
withdrew from her jurisdiction, so that he could not be reached by her criminal process. The
statute, it is to be observed, does not prescribe the character of such proof; but that the
executive authority of the territory was not required, by the act of Congress, to cause the
arrest of appellant, and his delivery to the agent appointed by the governor of Pennsylvania,
without proof of the fact that he was a fugitive from justice, is, in our judgment, clear from
the language of the act. Any other interpretation would lead to the conclusion that the mere
requisition by the executive of the demanding state, accompanied by the copy of an
indictment, or an affidavit, before a magistrate, certified by him to be authentic, charging the
accused with crime committed within her limits, imposes upon the executive of the state or
the territory where the accused is found the duty of surrendering him, although he may be
satisfied, from incontestable proof, that the accused had, in fact, never been in the demanding
state, and, therefore, could not be said to have fled from its justice. Upon the executive of the
state in which the accused is found rests the responsibility of determining, in some legal
mode, whether he is a fugitive from the justice of the demanding state. He does not fail in
duty if he makes it a condition precedent to the surrender of the accused that it be shown
to him, by competent proof, that the accused is, in fact, a fugitive from the justice of the
demanding state."
36 Nev. 487, 493 (1913) In Re Kuhns
it a condition precedent to the surrender of the accused that it be shown to him, by competent
proof, that the accused is, in fact, a fugitive from the justice of the demanding state.
In Ex Parte Spencer, 34 Nev. 240, we heard testimony and discharged the petitioner
because it appeared that he was not in the State of Illinois at the time he was alleged to have
committed the offense there.
In Ex Parte Hose, 34 Nev. 91, we ordered petitioner surrendered to the authorities of the
State of Pennsylvania under an information charging him with the crime of desertion by
separating himself from his wife and minor child. We held that the warrant for the arrest and
return of the petitioner in that case to answer for the crime of desertion was not objectionable
as failing to set out an offense known to the laws of that state.
We have held that by lack of jurisdiction a resident of one of the counties of this state may
not be taken for trial to another county in which he is charged with crime when the
undisputed evidence shows that he was not in and did not commit any offense in the county
in which he is accused. (Ex Parte Smith, supra.)
We have the highest regard for our great sister State of Pennsylvania, and we do not wish
to obstruct the enforcement of her laws or the administration of justice in any commonwealth.
We desire to show every consideration for warrants and process issued on her behalf which
we would give or desire to have given to our own. We doubt whether the petitioner would
have been indicted for desertion if controlling facts, omitted from the Statement of
Circumstances of Aggravation, such as that the petitioner and his wife were living apart by
written agreement, and that he did not fail to keep that contract while in the State of
Pennsylvania, had been made known to her authorities, and we do not assume that it will
longer be desired to extradite or prosecute the petitioner when they become aware of the facts
presented to this court, indicating that he was not guilty of the crime of desertion nor of any
offense at the time alleged in the indictment, nor while residing in that state. We feel assured
that the State of Pennsylvania does not wish to proceed against any person when it
becomes apparent that he is not guilty of the offense with which he has been charged.
36 Nev. 487, 494 (1913) In Re Kuhns
assured that the State of Pennsylvania does not wish to proceed against any person when it
becomes apparent that he is not guilty of the offense with which he has been charged.
In view of the undisputed facts indicated, we do not feel that it would be consistent with
justice or the liberty guaranteed to the citizen by the constitution to allow the petitioner to be
taken to Pennsylvania for trial, and we do not believe that the rights of that state will be
violated or her best interests be otherwise than subserved by the release of the petitioner.
It appearing to the court that the petitioner is not a fugitive from justice, it is ordered that
he be discharged.
____________
36 Nev. 494, 494 (1913) Tiedemann v. Tiedemann
[No. 2076]
GERTRUDE ELEANOR TIEDEMANN, Appellant, v.
RUDOLPH ERNEST TIEDEMANN, Respondent.
1. DivorceJurisdictionResidence.
Under the provisions of section 22 of the marriage and divorce act (Rev. Laws, 5838) a six months'
residence is essential only when the plaintiff relies alone on his or her residence. The act defining what
shall constitute legal residence (Rev. Laws, 3609) only affects the character of residence where a residence
is essential to jurisdiction.
2. DivorceJurisdictionResidenceCollusion.
Where neither of the parties have a residence or domicile within the state and one of the parties takes up a
temporary abode for the purpose of procuring a divorce, and thereafter the other party, in collusion with the
plaintiff, enters the state for the purpose of permitting service in the action, jurisdiction may not thus be
conferred.
3. DivorceJurisdictionResidence.
While it may be essential that one of the parties to the action for divorce must be a resident of the state, it
does not follow that residence for any particular length of time is in every case essential. By statute a
nonresident plaintiff may have a right of action against a resident defendant.
4. DivorceJurisdictionResidenceLegislative Power.
There is no legal inhibition to the legislature giving to a resident plaintiff a right of action for divorce and
in establishing jurisdiction over the subject-matter in the county where the defendant may be found.
5. DivorceDomicile of WifeResidence.
A wife, having a cause of action for divorce, has a right to change her domicile from that of her husband,
and, where the complaint states a cause of action, it will be assumed that the domicile of the wife is
identical with that of her residence.
6. DivorceStatutory ConstructionFound Defined.
The word found, as used in section 22 of the divorce act, supra, is used in the same sense that it is used
in other provisions of the civil practice act relative to the service of process, and means the county in which
service of summons may be had personally upon the defendant.
7. StatutesCourtsLegislative and Judicial Functions.
A valid statute must be construed by the courts according to its meaning ascertained in accordance with
established rules of construction, and, as so construed, enforced.
8. DivorceJurisdictionResidencePleading.
Under section 22 of the marriage and divorce act (Rev. Laws, 5838) providing that Divorce from the
bonds of matrimony may be obtained by complaint, under oath, to the district court of the county * * * in
which defendant shall reside or be found, etc., a complaint alleging that the plaintiff is a resident of a
certain county within this state and that the defendant is now within and can be found in said county
alleges facts sufficient to invest the court with jurisdiction. (Fleming v. Fleming, 36 Nev. 135,
distinguished.)
Appeal from the First Judicial District Court, Ormsby County; Frank P. Langan, Judge.
Action by Gertrude Eleanor Tiedemann against Rudolph Ernest Tiedemann for a divorce.
From a judgment of dismissal for want of jurisdiction based on the allegations in the
complaint, plaintiff appeals. Reversed.
Alfred Chartz, for Appellant.
Samuel Platt, for Respondent.
This an appeal from a judgment of dismissal of plaintiff's action for a divorce, based upon
an order sustaining a demurrer to plaintiff's complaint.
The complaint in the action was filed in the First judicial district court in and for Ormsby
County, on August 16, 1912. On the same day summons was issued and served on the
defendant within the said county of Ormsby.
and served on the defendant within the said county of Ormsby. Thereupon, the defendant
appeared specially by his counsel for the purpose of moving to set aside the service of
summons. An order was subsequently made setting aside the service. From this order an
appeal was taken to this court and the order reversed. (Tiedemann v. Tiedemann, 35 Nev.
259.) Defendant, through his counsel, then filed a demurrer to the complaint upon two
grounds:
I. That said complaint does not state facts sufficient to constitute a case of action.
II. That the court has no jurisdiction of the person of the defendant nor of the
subject-matter of the action for the reasons:
(a) The complaint does not show on its face that the plaintiff was at the time of the filing
of the complaint a resident within the county of Ormsby, State of Nevada, six months
immediately last past preceding the filing of said complaint.
(b) The complaint does not show upon its face that the defendant was a resident within
the county of Ormsby, State of Nevada, for six months immediately last past preceding the
filing of said complaint.
(c) The complaint does not show upon its face that the plaintiff was a resident within the
county of Ormsby, State of Nevada, for the continuous period of six months last past
preceding the filing of said complaint.
(d) The complaint does not show upon its face that the defendant was a resident within
the county of Ormsby, State of Nevada, for six months continuously last past immediately
preceding the filing of said complaint.
The first and second paragraphs of plaintiff's complaint contain the only allegations
relative to residence of either plaintiff or defendant. These allegations are as follows:
I. That plaintiff is a resident of Carson City, Ormsby County, State of Nevada.
II. That plaintiff is informed and believes, and upon such information and belief alleges
the fact to be, that said defendant is now within, and can be found in said county of Ormsby,
and within the jurisdiction of this court."
county of Ormsby, and within the jurisdiction of this court.
Section 22 of An act relating to marriage and divorce, approved November 28, 1861,
provides: Divorce from the bonds of matrimony may be obtained, by complaint under oath,
to the district court of the county in which the cause therefor shall have accrued, or in which
the defendant shall reside or be found, or in which the plaintiff shall reside, if the latter be
either the county in which the parties last cohabited, or in which the plaintiff shall have
resided six months before suit be brought, for the following causes: * * *. (Rev. Laws,
5838.)
Section 1 of An act defining what shall constitute legal residence in the State of Nevada,
approved March 22, 1911, provides:
The legal residence of a person with reference to his or her right of suffrage, eligibility to
office, right of naturalization, right to maintain or defend any suit at law or in equity, or any
other right dependent on residence, is that place where he or she shall have been actually,
physically and corporeally present within the state or county, as the case may be, during all of
the period for which residence is claimed by him or her * * * . (Rev. Laws, 3609.)
In the recent case of Fleming v. Fleming, 36 Nev. 135, ante, we had occasion to consider
the sufficiency of allegations in a complaint for divorce, where the plaintiff based his right of
action solely upon his own residence. In that case we held that the residence required by the
statute (Rev. Laws, 5838), and contemplated by the session act of 1911, was actual residence;
that is, physical, corporeal presence, and not alone legal residence or domicile, for the period
of six months within the county wherein suit was instituted.
1. Counsel for respondent contends that the Fleming case is conclusive against appellant
on this appeal. If, as in the Fleming case, appellant in this case was relying on her own
residence within the state as a basis of jurisdiction over the subject-matter of the action, the
complaint, unquestionably, would be insufficient. Appellant, however, is not relying alone
upon the allegations of her own residence as a basis for the court's jurisdiction, but,
together with that, upon the allegation that the suit is brought within the county where
the defendant can be "found."
however, is not relying alone upon the allegations of her own residence as a basis for the
court's jurisdiction, but, together with that, upon the allegation that the suit is brought within
the county where the defendant can be found.
It will be observed that by the provisions of section 22 of the marriage and divorce act,
quoted supra (Rev. laws, 5838), jurisdiction may be acquired in the court of a county when
either of five different states of fact is shown to exist, to wit: (a) In which the cause therefor
shall have accrued. (b) In which the defendant shall reside. (c) In which the defendant shall be
found. (d) In which the plaintiff shall reside and the parties last cohabitated. (e) In which the
plaintiff shall have resided six months before the suit was brought.
It is manifest that the territorial legislature of 1861 only intended to made a six months'
resident essential when the plaintiff relied alone on his or her residence. The marriage and
divorce act provided for seven distinct grounds for divorce. If both parties were in the
territory or state, a cause of action might accrue, regardless of the time the parties may have
been within the territory or state, under either the first, second, fourth, or sixth specification
of grounds for divorce. In such an event the length of residence of either of the parties was
immaterial so far as being essential to invest the court with jurisdiction. If the suit was
brought in that county where the defendant resided or was found, the length of residence of
the plaintiff was likewise immaterial. If the plaintiff instituted action within the county where
the parties last cohabitated, a six months' residence upon the part of plaintiff is, also, not
required. The act of 1911, supra, only affects the character of residence, where residence is
essential to jurisdiction.
In the Fleming case the plaintiff relied on his own residence for six months to establish
jurisdiction in the court over the parties and the subject-matter of the action. In this case
jurisdiction rests upon the allegation of residence upon the part of the plaintiff and that
defendant could be found in the county in which suit was instituted.
defendant could be found in the county in which suit was instituted. The defendant was
served with summons within Ormsby County the same day the complaint was sworn to and
filed. Whether the court below was invested with jurisdiction by virtue of the allegations in
the complaint depends upon the construction to be placed on the word found, as used in the
statute.
2. The circumstances which brought defendant from his home in Connecticut to Carson
city are set forth in the statement of the case upon the former appeal from the order quashing
the service of summons (35 Nev. 259). There is no contention that the defendant was within
Ormsby County, at the time the suit was instituted and the summons served, by reason of any
collusion between the parties for the purpose of such a service, and the case presents no
question of collusion. If neither of the parties had a residence or domicile within the state, and
one of the parties took up a temporary abode therein for the purpose of procuring a divorce,
and thereafter the other party, in collusion with the plaintiff, entered the state for the purpose
of permitting service to be made upon him or her, as the case might be, doubtless such a state
of facts would not confer jurisdiction.
3. None of the states, so far as we are advised, have a statute similar to the one under
consideration and there are no decisions directly in point to aid in construing our statute.
While we may concede, for the purpose of this appeal, that one of the parties to the marriage
sought to be dissolved must be a resident of the state, it does not follow that a residence for
any particular length of time is in every case essential. A statute may permit an action by a
nonresident plaintiff against a resident defendant. (Watkins v. Watkins, 135 Mass. 83; Smith
v. Smith, 4 Mackey, D. C. 255.)
4. Although our divorce act, so far as the question here involved is concerned, has
remained unchanged from the date of its enactment, more than half a century ago, it has never
before become necessary for this court to construe its peculiar provisions. The act was not
borrowed from any of the then existing Pacific coast states or territories.
borrowed from any of the then existing Pacific coast states or territories. Whether its
provisions were taken from the laws of some eastern state or territory or originated with the
argonauts who composed the first territorial assembly, we are not at this time advised. Suffice
it to say it was adopted as the law of the territory and by the provisions of the constitution
became a part of the laws of the state. The legislature of 1913 adopted an amendment to
section 22, supra, which takes effect January 1, 1914, adding the proviso that when at the
time the cause of divorce accrues, the parties shall not both be bona fide residents of the state,
no court shall have jurisdiction to grant a divorce, unless either the plaintiff or the defendant
shall have been a bona fide resident of the state for a period of not less than one year next
preceding the commencement of the action. (Stats. 1913, p. 10.) As that amendment was not
in force at the time the action was brought, it does not affect rights of action instituted prior to
the time the amendment is in effect.
We can find no legal inhibition to the legislature giving to a plaintiff, who is a resident of
the state, a right of action for divorce and establishing jurisdiction over the subject-matter of
the action in the county where the defendant may be found. Whether the legislature would
have such power in case both parties were nonresidents and there was no collusion, it is
unnecessary to consider.
5. For the purpose of the demurrer it is admitted that the plaintiff is a resident of the state,
and it will be assumed that here domicile is identical with her residence, as it is not contended
that the complaint does not state a cause of action for divorce. (Bishop on Marriage and
Divorce, vol. 2, sec. 124.)
6. When, then, may a defendant be said to be found within the meaning of the statute? It
is clear from the statute that the word found is used in contradistinction to the word
reside. The action then may be instituted by a resident of the state in a court of a county,
regardless of the residence of the defendant, if it is alleged that he can be found within the
county where suit is instituted and is actually served with process therein.
suit is instituted and is actually served with process therein.
There is nothing in the language of the statute to indicate that the legislature in using the
word found intended to use it in any sense other than it is frequently used in statutes
relative to the service of process. The same legislative assembly which adopted the marriage
and divorce act (session of 1861) adopted a civil practice act which provides that summons
shall be served by the sheriff of the county where the defendant is found. (Stats. 1861, p.
318.) The word is used in other sections relative to service and has been so used in every civil
practice act since adopted. it is used in the practice acts of most, if not all, the states, to mean
the county in which the service of process may be had personally upon the defendant. As no
other reasonable meaning to be applied to the word suggests itself, we feel constrained to
apply the same meaning which the word imports when used in other provisions of law
relative to the service of process.
7. As the legislature had the power to enact this law, we have no province other than to
construe it according to its meaning and, so construed, to enforce it.
It is our conclusion that the complaint alleges sufficient requisite facts to invest the court
with jurisdiction of the subject-matter and the parties, and that, hence, the ruling and
judgment of the court were erroneous.
The judgment is reversed and the order sustaining the demurrer set aside, subject to the
privilege of defendant to answer, within such time as the court below may order.
I concur in the opinion and order as written by Justice Norcross.
It is not denied by any of the authorities that the power to regulate marriage and divorce is
vested in the different states, and not in Congress, under the federal constitution. In the
absence of some prohibitive organic or fundamental provisionand it is not claimed that
there is any in our state constitutionthe legislature is empowered to pass such laws
regulating these matters as it deems best.
there is any in our state constitutionthe legislature is empowered to pass such laws
regulating these matters as it deems best. Generally speaking, the marital status of the citizen,
the age of consent, the manner in which marriage may be solemnized, the obligations it
imposes affecting personal or property rights, the time, condition of residence and causes
required for obtaining divorce, are all within the control of the state and subject to her laws as
enacted by the legislature. The question is not whether as individuals or as legislators we
would desire to have other restrictions or a different enactment. Unless clearly void for some
fundamental cause, it is the duty of the courts to construe the statute according to its language
and the evident intention of the legislature. (Humboldt County v. Churchill County, 6 Nev.
30; Sawyer v. Dooley, 21 Nev. 390; State v. Irwin, 5 Nev. 111; State v. Parkinson, 5 Nev. 15;
State v. Commissioners of Humboldt County, 21 Nev. 235; Kirman v. Powning, 25 Nev. 378.)
The policy of the law is for the legislative department of the state government, and it is not
for the courts to give the act a meaning different from any implied from the words which it
contains. (State v. McClear, 11 Nev. 39; State v. Parkinson, 5 Nev. 15; Ex Parte Boyce, 27
Nev. 299.)
The court cannot read into the statute something beyond the manifest intention of the
legislature as gathered from its language. The function of the court is to determine the
intention of the legislature from the words used, in accordance with established rules of
statutory construction. (Ex Parte Pittman, 31 Nev. 43.)
In the Andrews case (188 U. S. 15, 47 L. Ed. 366) it was held that the appearance of a
nonresident defendant does not invest the court with jurisdiction of a divorce suit instituted
by a person who has no bona fide domicile within the state.
Our district court in Washoe County dismissed the Sothern case a few years ago because
the plaintiff, while living in New York, and without coming here, brought suit in Nevada and
had summons served upon the defendant, who by chance or collusion was found here,
when neither was a resident of this state.
defendant, who by chance or collusion was found here, when neither was a resident of this
state.
The restriction as held by these and other decisions, that the court is without jurisdiction in
an action for divorce when neither of the parties is a resident of the state, does not apply to
any question presented by this appeal, because it is alleged, and for the purpose of the
demurrer admitted, that the plaintiff is a resident, and consequently it is not necessary to
determine whether these decisions are good law or should be followed, when it does not
appear that there is any constitutional inhibition against allowing the legislature to confer
jurisdiction upon the courts to try cases for divorce between nonresidents, nor is it necessary
to consider whether these cases will bear analysis in view of the later opinions of the Supreme
Court of the United States, holding that the federal courts have jurisdiction of cases in which
both of the litigants are nonresidents if no motion is made to move the case away or objection
made to the jurisdiction. If it be conceded that, regardless of statute, it is essential that at least
one of the parties must be a resident of the state in order to give the court jurisdiction over the
marital status or to grant a divorce, the decisions do not hold that this residence must be for
any particular length of time unless required by legislative enactment.
As our statute, passed at the territorial session in 1861, provides that divorce from the
bonds of matrimony may be obtained by complaint under oath to the district court of the
county in which the defendant shall reside or be found, and this action was brought in the
county in which it is alleged, and for the purpose of the demurrer and this appeal admitted,
the plaintiff resided and in which the defendant was found at the time it was commenced and
has been brought within the provisions of the statute, in order to hold that the action is not
properly brought or cannot be maintained it would be necessary to set aside, or in effect
judicially amend, this act. If it be argued or conceded that it is necessary that in addition to the
provision of the statute that suit may be commenced in the county where the defendant is
found, it is required that one of the parties must be a resident of the state, that
requirement is fulfilled by the record.
commenced in the county where the defendant is found, it is required that one of the parties
must be a resident of the state, that requirement is fulfilled by the record. The act does
provide that suit may be brought in the county in which the plaintiff shall have resided for six
months before the commencement of the action, but does not require any specified length of
residence by the plaintiff if suit be brought in the county in which the cause of action accrued
or in which the defendant shall reside or be found, or in which the plaintiff shall reside, if the
latter be the county in which the parties last cohabited. No question regarding collusion or of
the bona fides of the residence of the plaintiff being involved, and the time of residence being
one of policy for the legislature, the courts are as much unauthorized to require six months'
residence of the plaintiff in the county in the cases where the statute requires no specified
length of residence, as they would be to exact one or more years' residence in the cases in
which the statute in force to the end of this year designates six months.
In Bishop on Marriage and Divorce, 6th ed. vol. 2, secs. 343b, 113, and 113a, it is said:
The court, to render a valid decree of divorce, must, as shown in preceding discussions, have
jurisdiction over the subject-matter, which is the marital status either of one of the parties or
of both, and over the person of the party or parties whose status is to be dissolved. * * * For
the state, including its government in every other departments as well as its courts, is bound
by the law of nations, and it has no just right to establish a domestic rule, pertaining to a thing
of international law like the marital status, in conflict therewith. Still, if it does, the courts are
compelled to obey the statute, in preference to the unwritten rule of nations. * * * As the
legislature is under high obligations not to violate the law of nations, its commands on this
question of international law may well be accepted by the courts as expressive of its opinion
of what such law permits When, therefore, a judicial tribunal finds a statute of its own state
directing it to take the jurisdiction and dissolve marriages in specified circumstances, it,
accepting this as expressive of the legislative interpretation of what the law of nations
allows, may properly regard itself at liberty, and perhaps required, to hold as valid a
divorce pronounced in the same circumstances in another state or country.
take the jurisdiction and dissolve marriages in specified circumstances, it, accepting this as
expressive of the legislative interpretation of what the law of nations allows, may properly
regard itself at liberty, and perhaps required, to hold as valid a divorce pronounced in the
same circumstances in another state or country. It was as competent for the legislature to
commend this as the other, and the implication is very distinct that it so intended. In a
Wisconsin case it appeared that parties were married in Wisconsin, where they lived together,
and there the husband committed a matrimonial offense. The wife, afterward, without him,
went to reside in Minnesota, in which state she obtained a divorce for this offense from him;
he not appearing, and having merely the notice by publication which the laws of Minnesota
provided for nonresident defendants. Yet the Wisconsin courts accepted this divorce as
adequate to change in Wisconsin her matrimonial statuts.
In Jones v. Jones, 108 N. Y. 415, 60 Tex. 451, in an action for divorce brought by the
husband in New York, it appeared that the wife had obtained a decree of divorce from him in
Texas, on the ground of cruel treatment, in a suit commenced in Texas, on service of the
petition and citation on the husband in the city of New York while he was a resident there.
Thereafter, the husband went to Texas, filed an answer to the petition, which, after alleging
want of jurisdiction of the person and that he appeared solely for the purpose of a motion to
quash the service of the citation, contained a general denial of the allegations of the petition.
The court overruled the motion to quash the service, the case was continued until the next
term to enable the husband to prepare for trial, was tried, and a decree was granted, which on
appeal by the husband was affirmed. It was held by the New York Court of Appeals that
Texas decree was a valid and binding adjudication, that the husband became bound by it and
the statute of that state, which made the filing of an answer by the defendant an appearance
and submission to the jurisdiction.
In Donegal v. Donegal, 3 Phillim. 597, a resident of Dublin appeared in a divorce suit
brought in London and admitted an allegation of the bill that she was a resident of St.
Dublin appeared in a divorce suit brought in London and admitted an allegation of the bill
that she was a resident of St. James, Westminster. there being no collusion, it was held that
the court had jurisdiction of the person.
In Cheever v. Wilson, 76 U. S. 110, 19 L. Ed. 604, it was held that the constitution and
laws of the United States give an Indiana decree of divorce the same effect elsewhere which it
has in that state, that the finding of the residence of the plaintiff by the decree was sufficient,
that the wife may acquire a separate domicile from her husband whenever it is necessary and
proper that she should do so, that suit may be instituted where the wife resides, regardless of
the place of marriage, of the offense, and the domicile of the husband. The following appears
in the opinion of the Supreme Court of the United States in that case:
It is said that the petitioner went to Indiana to procure the divorce, and that she never
resided there. The only question is as to the reality of her new residence and of the change of
domicile. (Case v. Clark, 5 Mason, 70; Cooper's Lessee v. Calbraith, 3 Wash. C. C. 550;
McDonald v. Smalley, 1 Pet. 620.) that she did reside in the county where the petition was
filed is expressly found by the decree. Whether this finding is conclusive, or only prima facie
sufficient, is a point on which the authorities are not in harmony. (Noyes v. Butler, 6 Barb.
Sup. Ct. 613; Hall v. Williams, 6 Pick, 239; Mills v. Duryee, 2 Amer. L. C. 791, note; 7 Cr.
481-487.) We do not deem it necessary to express any opinion upon the point. The finding is
clearly sufficient until overcome by adverse testimony. None adequate to that result is found
in the record. Giving to what there is the fullest effect, it only raises a suspicion that the
animus manendi may have been wanting. It is insisted that Cheever never resided in Indiana;
that the domicile of the husband is the wife's, and that she cannot have a different one from
his. The converse of the latter proposition is so well settled that it would be idle to discuss it.
The rule is that she may acquire a separate domicile whenever it is necessary or proper that
she should do so.
proper that she should do so. The right springs from the necessity of its exercise, and endures
as long as the necessity continues. (2 bishop on Marriage and Divorce, 475.) The proceeding
for a divorce may be instituted where the wife has her domicile. The place of the marriage, of
the offense, and the domicile of the husband are of no consequence. (Ditson v. Ditson, 4 R. I.
87.)
A number of other cases holding that the appearance of a nonresident defendant gives the
court jurisdiction to enter a decree are cited in the note under this decision in 19 L. Ed. 605.
The personal service of summons on the defendant may be considered as equivalent to his
appearance, so far as the giving of jurisdiction is concerned.
Section 5034 of the Revised Laws provides: From the time of the service of the summons
in a civil action, the court shall be deemed to have acquired jurisdiction, and to have control
of all the subsequent proceedings. A voluntary appearance of a defendant shall be equivalent
to personal service of the summons upon him.
In the Atherton case, 181 U. S. 155, 45 L. Ed. 795, it was held that constructive service, by
mailing to another state notice of suit, will make a decree granting a divorce as binding on the
defendant as though service had been made with notice in the state where the suit was
pending, or there had been voluntary appearance in the action. Any modification of that case,
or of the one of Cheever v. Wilson by the divided court of five to four in the Haddock case,
201 U. S. 565, does not affect their application to this case, for there is nothing in the opinion
of any of the justices concurring or dissenting which might have that effect.
In the majority opinion in the Haddock case it is said: That where a court of one state,
conformably to the laws of such state, or the state, through its legislative department, has
acted concerning the dissolution of the marriage tie, as to a citizen of that state, such action is
binding in that state as to such citizen, and the validity of the judgment may not therein be
questioned on the ground that the action of the state in dealing with its own citizens
concerning the marriage relation was repugnant to the due process clause of the
constitution.
citizens concerning the marriage relation was repugnant to the due process clause of the
constitution. (Maynard v. Hill, 125 U. S. 190, 31 L. Ed. 654, 8 Sup. Ct. 723.) In that case the
facts were these: Maynard was married in Vermont, and the husband and wife removed to
Ohio, from whence Maynard left his wife and family and went to California. Subsequently he
acquired a domicile in the Territory of Washington. Being there so domiciled an act of the
legislature of the territory was passed granting a divorce to the husband. Maynard continued
to reside in Washington, and there remarried and died. The children of the former wife,
claiming in right of their mother, sued in a court of the Territory of Washington to recover
real estate situated in the territory, and one of the issues for decision was the validity of the
legislative divorce granted to the father. The statute was assailed as invalid, on the ground
that Mrs. Maynard had no notice and that she was not a resident of the territory when the act
was passed. * * * The power of the territorial legislature, in the absence of restrictions in the
organic act, to grant a divorce to a citizen of the territory was, however, upheld in view of the
nature and extent of the authority which the government possessed over the marriage relation.
It was therefore decided that the courts of the territory committed no error in giving effect
within the territory to the divorce in question. And as a corollary of the recognized power of
the government thus to deal with its own citizen by a decree which would be operative within
its own borders, irrespective of any extraterritorial efficacy, it follows that the right of another
sovereignty exists, under principles of comity, to give a decree so rendered such efficacy as to
that government may seem to be justified by its conceptions of duty and public policy.
In the dissenting opinion of Justice Brown in the Haddock case, concurred in by Justices
Harlan, Brewer, and Holmes, it is said: There is no doubt of the proposition that a decree of
divorce may be lawfully obtained at the matrimonial domicile, notwithstanding that the
defendant may have taken up his or her residence separate from the other party in another
state, providing that the law of domicile with respect to personal service or publication be
scrupulously observed.
separate from the other party in another state, providing that the law of domicile with respect
to personal service or publication be scrupulously observed. (Atherton v. Atherton, 181 U. S.
155, 45 L. Ed. 794, 21 Sup. Ct. 544.)
Doubtless the jurisdiction of the court granting the divorce may be inquired into, and, if it
appear that the plaintiff had not acquired a bona fide domicile in that state at the time of
instituting proceedings, the decree is open to a collateral attack (Bell v. Bell, 181 U. S. 175,
45 L. Ed. 804, 21 Sup. Ct. 551), and a recital in the proceedings of a fact necessary to show
jurisdiction may be contradicted. (Thompson v. Whitman, 18 Wall. 457, 21 L. Ed. 897;
Streitwolf v. Streitwolf, 181 U. S. 179, 45 L. Ed. 807, 21 Sup. Ct. 550; Andrews v. Andrews,
188 U. S. 14, 47 L. Ed. 366, 23 Sup. Ct. 237.)
Subject to these conditions, each state has the right to regulate the marital status of its
citizens, at least so far as to determine in what manner and by whom marriages may be
solemnized, what shall be deemed the age of consent, what obligations are assumed, what
property rights are created, for what causes divorces shall be granted, for what length of time
the domicile of plaintiff shall have been acquired prior to the institution of the proceedings,
and in what manner notice shall be given to the defendant. Nor is the power of the legislature
in this connection ousted by the fact that the other party to the contract resides in another
state, provided that in case of proceedings adverse to such party he or she shall be given such
notice as due process of law requires. If such proceedings be in rem or quasi in rem, notice by
publication is ordinarily deemed sufficient. But in case of actions in personam for the
recovery of damages, personal service within the jurisdiction is vital to the proceedings.
(Pennoyer v. Neff, 95 U. S. 714, 24 L. Ed. 565; Huling v. Kaw Valley R. & I. Co., 130 U. S.
559, 32 L. Ed. 1045, 9 Sup. Ct. 603.)
McCarran, J., dissenting:
From the opinion of Justice Norcross, as well as from the concurring opinion of Chief
Justice Talbot, I dissent.
____________
36 Nev. 510, 510 (1913) State v. Patchen
[No. 2079]
STATE OF NEVADA, Respondent, v. CHARLES
PATCHEN and JAMES BURKE, Appellants.
1. Criminal LawBurglaryProof of NonconsentPractice.
In a prosecution for burglary, where all the circumstances are indicative that the breaking or entry was
without consent, if defendant desires to take advantage of the failure of the owner to testify directly to the
fact of want of consent, he should raise the question at the proper time at the trial.
2. Criminal LawBurglaryProof of Nonconsent.
In a prosecution for burglary, where all the circumstances are indicative that the breaking or entry was
without consent, it is immaterial that the owner or person in possession, during the course of his testimony,
failed to testify specifically that the entry was without consent.
3. Criminal LawBurglaryPresumption from Unlawful Entry.
Under Revised Laws, sec. 6635, it is presumed from an unlawful entry that the same was with the intent
to commit larceny, unless such entry is satisfactorily explained.
4. Criminal LawInstructionsModifications.
A requested instruction in part read: The gist of the crime of burglary is the entering of a store with
intent to steal the goods contained in the said store, regardless of the fact whether or not there was an actual
stealing of the said goods. The trial judge drew a line through the word regardless and the words
following and marked the instruction Given as Modified. Held, not error, but the method of modification
is criticized.
5. Criminal LawEvidenceStatements of Defendants Offered by State.
Statements or explanations made by the accused at the time of arrest may be introduced as a part of the
state's case without binding the state to the truthfulness of such statements unless contradicted. The
reasonableness of such statements is a matter entirely for the jury.
Appeal from Second Judicial District Court, Washoe County; T. F. Moran, Judge.
Charles Patchen and James Burke were convicted of the crime of burglary, and they
appeal. Affirmed.
Thomas E. Kepner, for Appellants.
This is an appeal from the judgment of the Second judicial district court and from the
order of that court denying appellants' motion for a new trial. Appellants were convicted of
burglary in the first degree, after having been tried on an indictment, the charging part of
which reads a follows:
That said defendants on the 10th day of March, A. D. 1913, or thereabouts, and before the
finding of this indictment, at and within said county of Washoe, State of Nevada, did then and
there, wilfully, unlawfully, feloniously and burglariously enter that certain store situate at the
southeast corner of Commercial Row and Virginia Street, in the city of Reno, county of
Washoe, State of Nevada, with the intent, then and there, to steal, take and carry away the
goods and chattels of Joseph Caton and A. J. Caton, copartners doing business under the firm
name and style of Joseph Caton & Son, in the said store contained; the aforesaid store being
then and there owned by in the use, possession and occupancy of the said Joseph Caton &
Son.
1, 2. The appellants in this case, after verdict and before judgment, moved the court for a
new trial upon several grounds, one of which was that the verdict of the jury was contrary to
the evidence and was not sustained by the evidence introduced in the case, for the following
reasons: There is no evidence in this cause, and was no evidence before said jury, to show
nonconsent of the owners, or alleged owners, of said goods and chattels, to the alleged
larceny, and it is a well-established rule of law that where the owner is called as a witness, in
a case where the indictment charges a burglarious entry with intent to commit larceny,
circumstances tending to show nonconsent will not suffice, and the failure of the owner to
testify as to nonconsent is fatal.
As appears from the transcript and proceedings of the trial, Joseph Caton, the senior
member of the firm of Joseph Caton & Son, and one of the owners of the cigar store alleged
to have been burglarized, was called as a witness in behalf of the state, and testified at
length as to the location of the cigar store; the time at which he left the place on the
evening of the 9th of March {the night before the burglary); as to having locked the place
with a padlock at the time of leaving; and he further testified to having been called on the
telephone by a member of the police force at about 2:30 on the morning of the 10th and
as to having immediately gone to the cigar store and having found the outside window
broken.
witness in behalf of the state, and testified at length as to the location of the cigar store; the
time at which he left the place on the evening of the 9th of March (the night before the
burglary); as to having locked the place with a padlock at the time of leaving; and he further
testified to having been called on the telephone by a member of the police force at about 2:30
on the morning of the 10th and as to having immediately gone to the cigar store and having
found the outside window broken.
The last question propounded to the witness Caton by the state was as follows:
Q. Do you know of your own knowledge who broke into it? A. No, I do not.
The testimony of Captain Chas. Tremblay, one of the arresting officers in this case, is to
the effect that between 2 and 3 o'clock on the morning of the 10th of March, he was in front
of the Arcade saloon, a distance of one hundred and forty or one hundred and fifty feet from
the cigar store alleged to have been burglarized. His attention was directed by the sound of
breaking glass. He looked up the street and saw two men at the cigar store, and then he called
his fellow officer and went up the street and found the defendants standing at the Cigar stand.
Some of the merchandise was on the window sill, commonly used as a counter, and some was
on the sidewalk. On the person of defendant Burke he found two packages of gum of the
same kind and character as that contained in the showcase in the cigar store, which showcase
he also found broken. At the time of the arrest defendant Patchen had a fresh bleeding wound
on one of his fingers, and, as disclosed by the testimony at the preliminary examination, the
officer discovered blood on some of the articles spread about the window sill. At the time of
making the arrest the defendant Burke said that he was going to buy some tobacco. The
defendant Patchen at or about the same time said that he and his partner came along and
found the stuff on the sidewalk.
Counsel for appellants contends that the state failed to make out its case in that it did not
show by the witness Caton upon the stand that the breaking and entry were without his
consent and in support of their contention, after paying a high tribute to the Supreme
Court of Criminal Appeals of the State of Texas, cite the case of Ridge v. State, 66 S. W.
774, and Young v. State, 42 Tex. Cr. Rep.
Caton upon the stand that the breaking and entry were without his consent and in support of
their contention, after paying a high tribute to the Supreme Court of Criminal Appeals of the
State of Texas, cite the case of Ridge v. State, 66 S. W. 774, and Young v. State, 42 Tex. Cr.
Rep. 301.
It will be observed from a careful consideration of the decisions rendered by the Court of
Criminal Appeals of the State of Texas that in dealing with the subject of nonconsent in
burglary cases that court has taken many different positions, and in fact in a very recent case
(Brown v. State, 125 S. W. 916) the court held that in a trial for burglary, where the
indictment charges that the burglary was with the intent to steal, it is essential to both allege
and prove the want of consent of the owner or person in possession, but even in that case the
court held that proof of nonconsent might be established by circumstantial evidence which
would absolutely exclude every reasonable presumption that the owner gave his consent. It
will be observed in this recent decision the court held that, in a case where the prosecution
relied upon circumstantial evidence to prove nonconsent, having the owner or party in
possession on the stand as a witness, it was necessary, if the defendant objected to the proving
of nonconsent by circumstantial evidence, that he interpose his objections in the court below
and bring the matter to the attention of that court at the proper time. In this respect the court
said: There is no doubt of the correctness of this proposition, and had objections been made
in the court below, and a proper bill of exceptions reserved, showing that such circumstantial
evidence was objected to when tendered on the trial, this court would have been compelled to
have held that the testimony was not sufficient.
It is our judgment that in a case of this kind the trial court should have been apprized of
the position taken by the defendants at the proper time. As has already been stated, the Court
of Criminal Appeals of Texas has announced contrary rules on several occasions on this
subject.
In the case of McMahon v. State, 1 Tex. App. 105, that court said: But it is contended that
the evidence does not show, in a satisfactory manner, that the taking was without the consent
of the owner of the property. Whilst it is conceded that the want of consent of the owner to
the taking, in a charge of theft, is a necessary ingredient to the crime, yet it is believed that
this want of consent may be established by circumstantial, as well as direct, testimony. This
we regard as a settled proposition, laid down by the elementary writers, and acted on by our
own supreme court, without variation, from the decision in Henderson v. The State, 14 Tex.
503, down to the present time.
In the case of Erskine v. State, in the same report, at page 406, the same court said: It is
held, when nonconsent is an essential ingredient in the offense, as it is here, direct proof
alone from the person whose nonconsent is necessary can satisfy the rule. You are put to
prove a negative, and the very person who can swear directly to the necessary negative must,
if possible, always be produced. Other inferior proof cannot be resorted to until it is
impossible to procure the best evidence.' (1 Phillips on Ev. 635.) * * * These rules have been
so far modified, it seems, as that the want of consent may be proved by circumstantial
evidence. * * * But this modification would not do away with the necessity of proving the
want of consent to the taking, by the person whose consent was necessary, by either direct or
circumstantial evidence. His consent being necessary to authorize the taking, so as to relieve
the party from the consequences of taking without consent, his want of consent might be
proved by circumstantial evidence.
It must be observed in the case at bar that appellants are charged with the crime of
breaking and entering, with intent to commit larceny. The actual asportation is not charged. In
the case of Ridge v. State, relied upon by appellants, the Court of Criminal Appeals of the
State of Texas, in deciding that case, cited as authority the case of Wisdom v. The State, 61
S. W. 926, and in the latter case it appears that, passing upon a similar question, they
decided that proof of nonconsent to the entry was not necessary.
case of Wisdom v. The State, 61 S. W. 926, and in the latter case it appears that, passing upon
a similar question, they decided that proof of nonconsent to the entry was not necessary.
In the case of Willis v. The State, 25 S. W. 1119, the Court of Criminal Appeals of the
State of Texas held that it was not error on the part of the trial court to refuse to charge the
jury that the state must prove the want of consent of the owners or parties in possession.
In the case at bar it is our judgment that the circumstances proven establish the want of
consent almost conclusively. The entry was accompanied by the breaking of the glass
window; it was accomplished at an hour, and time, and in a manner that absolutely precluded
the idea of consent of the owner or party in possession. It is manifest from the record that the
entry was made with the intent to do more than merely enter, for it is disclosed that the small
showcase in the interior of the cigar store was broken into and on the person of one of the
defendants was found packages of merchandise similar to those contained in the showcase.
Moreover, the testimony of witness Caton, who from all the record appears to have been the
party in possession, discloses that he had no knowledge as to who broke into the cigar store.
His answer in this respect excludes all idea of consent.
3. The statute under which the defendants were convicted (Rev. Laws, 6634) is as follows:
Every person who enters any house, room, apartment, tenement, shop, warehouse, store,
mill, barn, stable, outhouse or other building, tent, vessel, or railroad car, with intent to
commit grand or petit larceny, or any felony, is guilty of burglary. Every burglary committed
in the nightime is burglary of the first degree and every burglary committed in the daytime is
burglary of the second degree, etc.
Section 6635 of the Revised Laws provides: Every person who shall unlawfully break and
enter or unlawfully enter any building or structure enumerated in the last preceding section
shall be deemed to have broken and entered or entered the same with intent to commit
grand or petit larceny or a felony therein, unless such unlawful breaking and entering or
unlawful entry shall be explained by testimony satisfactory to the jury to have been made
without criminal intent."
last preceding section shall be deemed to have broken and entered or entered the same with
intent to commit grand or petit larceny or a felony therein, unless such unlawful breaking and
entering or unlawful entry shall be explained by testimony satisfactory to the jury to have
been made without criminal intent.
By the last section the unlawful breaking and entering or the unlawful entering carries with
it a presumption of intent to commit larceny. Circumstances may be presented by the
evidence during the course of a trial for such an offense which would eliminate the idea of
criminal intent.
4. Appellants assign error in the giving of instruction No. 9 principally upon the ground
that the court, in modifying the instruction, instead of erasing the portion which it intended to
eliminate, struck the same out by drawing a line through it. The instruction reads as follows:
You are further instructed that, in order to constitute the crime of burglary, it is not
necessary to prove that the defendants, or either of them, actually stole, took or carried away
any of the goods and chattels of Joseph Caton & Son, contained in the store alleged in the
indictment to have been burglarized. The gist of the crime of burglary is the entering of a
store with the intent to steal the goods contained in the said store, regardless of the fact
whether or not there was an actual stealing of the said goods.
Through the words regardless of the fact whether or not there was an actual stealing of
the said goods the court drew a line and endorsed the instruction Given as modified. We
can see no merit in appellants' objection to this instruction as modified, or the manner in
which it was modified, for, had the court seen fit to give the entire instruction without
modification or without an attempt to eliminate the words through which a pen line was
drawn, it would have correctly stated the law.
This court held, in the case of State v. Simpson, 32 Nev. 143, that the offense of burglary is
completed when the house or other building is entered with the specific intent designated in
the statute.
designated in the statute. The actual stealing or attempt to steal property therein is only
evidentiary to the criminal intent. Hence, as we have already stated, had the court seen fit to
give the entire instruction without striking any portion of it, no error would have been
committed, but, as the court saw fit to strike the latter portion of the instruction by drawing a
pen line through the words, it was thereby manifest that it was the intention of the court to
eliminate those words, and any intelligent person must necessarily have so regarded it.
This manner of amending instructions by striking out so as to leave the words stricken out
legible is not to be subscribed to. This is a practice that in our judgment should not be
followed by trial courts. It is a saving of time at the hazard of injury and perhaps error.
5. It is the contention of the appellants that, the prosecution in this case having introduced
evidence as to statements made by the defendants at the time of the arrest, the state is bound
by the credit given to the statements or admissions of appellants by offering the statements or
admissions in evidence and cannot now insist upon the conviction of appellants upon that
portion of the evidence which tends to show burglary. If the statements of the defendants,
made at the time of the arrest, constituted the only evidentiary fact or circumstance against
them, the contention of appellants in this respect might admit of more serious consideration.
Under the theory of appellants the state would have been precluded from disproving
exculpatory statements or admissions of the parties at the time of arrest or during the actual
perpetration of the crime, notwithstanding the fact that such statements or admissions, even if
not introduced by the state, could be introduced and relied upon by the accused as part of the
res gestae. This contention we think is not well founded.
In the case of Oldham v. State, the Court of Criminal Appeals of the State of Texas in
passing upon this question said: The state is not necessarily bound by every statement made
by a witness introduced by it, but the jury has a right to consider all the surrounding
circumstances."
the jury has a right to consider all the surrounding circumstances. (Oldham v. State, 108 S.
W. 667.)
Where, in a case of this kind, the prosecution introduced statements made by the accused
as a part of the state's case in chief, the weight to be given to such statements is a question for
the jury, and the prosecution is not bound by them, even though they be not shown to be
untrue. (Gankvo Mitsunaga v. People, 129 Pac. 241)
Statements or explanations made by the accused at the time of the arrest may be
introduced as part of the state's case in chief, but the improbability of the statements or
explanations may be so apparent that the jury will not believe them even though they be not
contradicted. Their reasonableness is a matter entirely for jury. (State v. Mandich, 24 Nev.
336.)
In a criminal case the question of the guilt of the accused is always with the jury and, even if
a reasonable explanation is given, the defendant is not entitle to an instruction that the
prosecution must show the explanation to be false. (Wilson v. State, 34 S. W. 284; Wheeler v.
State, 34 Tex. Cr. 350.)
Considering all the circumstances in this case as they are disclosed by the record, it is our
judgment that the verdict of the jury in this case was supported by the evidence, and we find
no error committed by the trial court, the nature of which would be prejudicial to appellants.
It, therefore, follows that the judgment of the trial court and the order denying appellants'
motion for a new trial should be affirmed.
It is so ordered.
Talbot, C. J., concurring;
I concur in the foregoing opinion, except as indicated herein
From a conviction of burglary and an order denying a motion for a new trial defendants
have appealed.
On the trial Joseph Caton, senior member of the firm of Caton & Son, and one of the
owners of the store burglarized, testified on behalf of the state as to the location of the store
at the southeast corner of Commercial Row and Virginia Street, in the city of Reno; that
he closed and locked and left the place about 11 o'clock the night of the burglary, and was
called up by telephone by a member of the police force about half-past 2 o'clock that
night, and went immediately to the cigar store and found that the outside window had
been broken.
of the store at the southeast corner of Commercial Row and Virginia Street, in the city of
Reno; that he closed and locked and left the place about 11 o'clock the night of the burglary,
and was called up by telephone by a member of the police force about half-past 2 o'clock that
night, and went immediately to the cigar store and found that the outside window had been
broken.
One of the grounds upon which defendants moved for a new trial was that there was no
evidence to show nonconsent of the owners of the goods and chattels, and that it is a
well-established rule of the law that where the owner is called as a witness in cases where the
indictment charges a burglarious entry with intent to commit larceny, circumstances tending
to show nonconsent will not suffice, and the failure of the owner to testify as to nonconsent is
fatal.
In support of this contention we are referred more especially to Texas cases, holding that if
obtainable the testimony of the owner that he did not consent must be supplied. These
opinions are not in harmony with others in the same state, and are contrary to the common
law and the practice prevailing in most of the other states. It is somewhat unusual to find
conflicting opinions of the same court written by the same judge published in the same report.
In McMahon v. State 1 Tex. App. 105, and in Rains v. State, 7 Tex. App. 588, it was held that
the owner need not be called to prove nonconsent; and in Erskine v. State, 1 Tex. App. 405,
and Jackson v. State, 7 Tex. App. 363, it was held that he must be called. In Wilson v. State,
12 Tex. App. 487, it was held that both the owner and possessor must be called, if available,
before resorting to circumstantial evidence. Among the other cases in that state which are not
in harmony are Wisdom v. State, 42 Tex. Cr. 579, Bowling v. State, 13 Tex. App. 338,
Henderson v. State, 14 Tex. 504, Dresch v. State, 14 Tex. App. 175, and Williamson v. State,
13 Tex. App. 514, The cases in Texas holding that there must be direct evidence of the
nonconsent of the owner, and the one in Nebraska so holding, which has been overruled,
apparently resulted from Phillips on Evidence, 635, which followed an early case in England
which was afterwards repudiated and never became the law generally in that country.
which followed an early case in England which was afterwards repudiated and never became
the law generally in that country. In the English case, R. v. Rogers, 2 Camp. 654, under an
indictment for coursing a deer without the consent of the owner, it was held in the year 1811
that the owner must be called to negative the consent; but in cases fifteen years later, R. v.
Hasy, 2 C. & P. 458, for cutting timber without the owner's consent, and in R. v. Allen, 1
Moo. C. R. C. 154, for killing deer without the owner's consent, it was held that direct
evidence of nonconsent of the owner or landlord was not required. In Nebraska, following
Phillips on Evidence and the early English case, it was held that the owner must be called to
prove that he did not consent (Rema v. State, 52 Neb. 376; Perry v. State, 44 Neb. 415).
Later, the supreme court of that state declined to adhere to that rule, and in Wiegrefe v. State,
66 Neb. 23, and Von Syoc v. State, 69 Neb. 522, said: All the circumstances surrounding the
alleged larceny were inconsistent with a taking with the consent of the owners; and want of
consent may be inferred from circumstances shown in evidence, as well as by direct
testimony that none was given.
In Hurst v. Territory, 16 Okl. 600, 86 Pac. 280, it was held that under an indictment for
larceny of an animal it was not necessary to allege or prove the nonconsent of the owner of
the stolen property. See, also, State v. Booth, 46 Mont. 326, 127 Pac. 1017.
In People v. Davis, 97 Cal. 194, 31 Pac. 1109, after citing People v. Nelson, 56 Cal. 82,
the court said: The money was in the possession of Ah Chung, and was taken from his
person by the defendants. Therefore it was presumptively his property, and that was sufficient
proof of ownership. Under the penal code of this state it is not necessary to allege in the
indictment or information that the property was taken against the will of the owner. There is
nothing found in the definition of larceny' to that effect.
The question is considered by Prof. Wigmore at section 2089, volume 3, of his work on
Evidence, in which he says: "At the suggestion of two eminent American writers and
judges, based upon a single English ruling afterwards repudiated, a rule came near to be
built up that, on a charge of larceny, the evidence that the taking was done against the
owner's consent must include the owner's testimony as an indispensable element.
says: At the suggestion of two eminent American writers and judges, based upon a single
English ruling afterwards repudiated, a rule came near to be built up that, on a charge of
larceny, the evidence that the taking was done against the owner's consent must include the
owner's testimony as an indispensable element. * * * This proposed rulewhich might,
perhaps, be more correctly classed as a rule of preferencehad but a slight foundation.
Premised by certain unimportant English rulings as to the burden of proof in showing a
negative, there came a single tentative ruling requiring, in proof of nonconsent, the testimony
of the person whose nonconsent was affirmed. This was afterwards wholly repudiated in
England. Nevertheless, the approval of the eminent writers above quoted gave the question a
vogue in this county, and left it a living one long after the suggestion had been negatived in
England. In at least three jurisdictions the suggestion seems to have become the law, and
perhaps in one or two others. In the remainder no notice of the suggestion has in general been
taken. So far as the policy of it is concerned, there is nothing to be said in its favor. The
accused is amply protected by the rule of reasonable doubt, and the proposed rule merely adds
an unnecessary complication and an opportunity for contriving a verbal trap for the judge in
his instructions to the jury.
At section 752a, Bishop's New Criminal Procedure, it is said: At common law, except
under such special circumstances as will vary the rule only to outward appearance, if the
owner of a chattel consents to another's taking it, such taking cannot be larceny. If the consent
was given, it is matter simply of defense. Hence nonconsent is not averred in the indictment,
and it need not be proved. But in a few of our states there are, as in Texas, statutory larcenies
whereof nonconsent is an affirmative element; thus, without the consent of the owner.' Then
nonconsent must be alleged by the prosecutor and proved. In such a case, while we have
seeming rulings that the agent or his owner must be called to the nonconsent, the better
doctrine accepts, as adequate in law, circumstantial evidence and the testimony of other
witnesses."
in law, circumstantial evidence and the testimony of other witnesses.
In order that the rights of accused persons may be properly safeguarded, there is no
necessity, under a statute like ours, which does not demand it, for the enforcement of so strict
a rule as one requiring the owners and possessors of property stolen or burglarized to take the
stand and testify directly that they did not consent. In this day and generation, when an
accused person in this country is allowed counsel and to take the stand and have witnesses
produced in his behalf, and when the state is required to satisfy every one of twelve
disinterested jurors beyond a reasonable doubt that he is guilty before conviction can be
secured, there is no good reason why in burglary and larceny the nonconsent of the owner
must be proved by his direct testimony, nor why it may not be shown by circumstances, the
same as any other fact, if the circumstantial evidence indicates it and the other essential
elements of the crime beyond a reasonable doubt. To exact the direct testimony of the owner
that he did not consent, when this is shown by the circumstances, is not only to require a vain
thing, but would, in many cases where the owner is ill or absent, or is a corporation, tend to
delay or obstruct the administration of justice without bringing any necessary safeguard to
innocent persons accused of crime. The failure to have the owner testify that he did not
consent to any breaking or burglary was not sufficient ground for a nonsuit nor for the
granting of a new trial, because the circumstantial evidence indicated that he did not consent.
The testimony of one of the owners of the cigar store alleged to have been burglarized that
he closed the store about 11 o'clock that evening and went home, and was called on the
telephone by the police at about half-past 2 o'clock that night, and upon going immediately to
the cigar store found the outside window broken, is satisfactory circumstantial evidence that
there was an attempt to commit burglary and that the window was broken without his
consent.
When the circumstances proven will lead to the conclusion, as in this case, that the owner
did not consent, if the accused wishes to avail himself of the consent of the owner he ought to
be required to prove it and to overcome the case made for the state by the circumstantial
evidence. Whatever doubt may exist as to whether the defendants broke the window or
committed a burglary, does not pertain to the evident fact that the owners did not consent to
the breaking. The state should not be required to show the facts by direct testimony, even
when obtainable, if there is conclusive circumstantial evidence indicating the commission of
the crime beyond a reasonable doubt.
If the accused wished to rely upon the consent of the owner as a defense, or desired to have
his testimony in this regard, they were at liberty to use him as a witness and ask him whether
he had given his consent, or take the stand and show by their own testimony that he had given
his consent. No suggestion was made nor exception taken on the trial which called this
objection to the attention of the court so that direct evidence would have been supplied if
desired. If, in the nighttime, at the point of a gun, a man is relieved of his money, there would
be as much necessity for his testimony that he did not consent as in this case The rule is well
settled that when the ground of the objection is not specified, and the exception promptly
taken on the trial, the objection is waived. (McGurn v. McInnis, 24 Nev. 370; Finnegan v.
Ulmer, 31 Nev. 523, State v. Williams, 31 Nev. 360; State v. Jacobs, 7 Nev. 408; State v.
Mangana, 33 Nev. 511; State v. Foster, 136 Mo. 653; State v. Clark, 36 Nev. 472; Wigmore
on Evidence, sec. 20.) It is also well settled by numerous cases in this court that any technical
error which does not prejudice the substantial rights of the accused is not ground for the
reversal of a verdict of the jury. (State v. Mircovich, 38 Nev 485; State v. Clark, 36 Nev.
472.) As the circumstances indicated the nonconsent of the owner, his failure to testify that he
did not consent did not prejudice the defendants.
As offered to the court, instruction No. 9, to which exception is taken, reads: You are
further instructed that, in order to constitute the crime of burglary, it is not necessary to prove
that the defendants, or either of them, actually stole, took, or carried away any of the goods
and chattels of Joseph Caton & Son, contained in the store alleged in the indictment to have
been burglarized. The gist of the crime of burglary is the entering of the store with the intent
to steal the goods contained in said store, regardless of the fact whether or not there was an
actual stealing of the said goods.
The instruction was given as modified by drawing a pen through the clause regardless of
the fact whether or not there was an actual stealing of the said goods. It would have been
sufficient to have eliminated the words the fact. There is no particular harm in crossing
over part of the words in an instruction and leaving them legible, unless they state some
matter which is not the law or which is prejudicial, in which case they should be obliterated
so as not to be discernible, or the instruction should be rewritten before given to the jury. This
instruction is attacked as leaving to one side the entire question of burden of proof,
presumption of innocence, reasonable doubt, and as being biased, one-sided and misleading.
It properly told the jury that it is not necessary that there be an actual stealing of taking of
goods in order to constitute the crime of burglary. Under the statute, entering with intent to
steal constitutes the crime. It was not necessary to have every legal proposition covering the
case stated in the instruction; and, if the defendants desired instructions on other principles of
law applicable, it was their privilege to have them drawn and to request that they be given to
the jury. (State v. Hing, 16 Nev. 307; State v. St. Clair, 16 Nev. 207; State v. Davis, 14 Nev.
407; State v. Pritchard, 15 Nev. 74; State v. Raymond, 11 Nev. 98.)
It is also claimed that the verdict is contrary to the evidence and the law. It is urged in the
brief that the officer testified that the defendant Patchen said when arrested that the
window was broken and the goods scattered on the pavement when defendants arrived
at the cigar stand; that they picked the things up and placed them on the window sill or
counter, and that the defendant Burke said when asked what he was doing that 'they
wanted to buy some tobacco.' Was there anything criminal about such conduct?
arrested that the window was broken and the goods scattered on the pavement when
defendants arrived at the cigar stand; that they picked the things up and placed them on the
window sill or counter, and that the defendant Burke said when asked what he was doing that
they wanted to buy some tobacco.' Was there anything criminal about such conduct? The
place was ablaze with light, the window wide open. It is said that the testimony introduced
by the state is inconsistent with the crime of burglary, and that the state is bound by its
evidence, including proof of the statement made by the defendants. As they were found at the
counter by the broken window of the cigar store between 2 and 3 o'clock in the morning,
when the street was usually deserted, and the officer testified that while he was on the
sidewalk a few doors away he heard the breaking of the glass, and the interval from that time
until the arrest of the defendants at the cigar stand being so brief, and considering the
proximity of the officers and the defendants, it seems improbable that any other person could
have broken into the cigar store without having been observed by the defendants and the
officers.
There was evidence for the jury to consider sufficient to sustain the conviction. Nor should
the state be bound by the self-serving declarations of defendants, not under oath, made at the
time they were arrested, that they wanted to buy tobacco, when other circumstances were
proved by the state from which the jury may have inferred that the had broken through the
window and committed burglary.
____________
36 Nev. 526, 526 (1913) Esmeralda County v. Wildes
[No. 2083]
STATE OF NEVADA, on the Relation of JOHN SPARKS, Et Al., Plaintiff, v.
STATE BANK AND TRUST COMPANY (a Corporation), Et Al., Defendants.
ESMERALDA COUNTY, Petitioner and Respondent, v. FRANK WILDES, as Receiver of
the State Bank and Trust Company (a Corporation), Appellant.
1. Appeal and ErrorAppeal, When LiesJurisdiction.
An appeal is a matter purely of statutory right, and, unless authorized by statute, any attempted appeal
taken from a judgment or order not appealable is void and confers no jurisdiction on the appellate court.
2. Appeal and ErrorReceiver's Right of Appeal.
A receiver may appeal from any order affecting his proper duties or personal rights, or where the estate as
a whole is interested.
A receiver, as such, has no personal interest in the segregation or distribution of the assets in his hands
otherwise than for his compensation, and orders affecting only the rights of creditors, as between each
other, do not affect the receiver personally, and he has no right of appeal from such orders.
4. ReceiversDutiesCompensationExpenses.
It is the duty of a receiver to carefully and faithfully collect, protect, and enhance the assets of the
institution of which he is receiver, and to administer its affairs to the end that its creditors and owners may
receive what is justly due them. He is entitled to proper compensation for his services and an equitable
allowance for administrative expenses. His duty is to all the parties in common, and he should not become
an advocate of one creditor, or class of creditors, as against another creditor or creditors.
5. Appeal and ErrorWho entitled to AppealAggrieved Party Defined.
Under the provisions of Rev. Laws, sec. 5327, providing that any party aggrieved may appeal, etc., the
word aggrieved refers to a substantial grievance. The imposition of some injustice, or illegal obligation
or burden, or the denial of some equitable or legal right, would constitute a grievance in the contemplation
of the statute.
A receiver has no right of appeal from an order segregating creditors into classes with reference to the
priority or preference of their claims, or directing the payment of a certain claim in preference to
others, or an order adjudicating a certain claim to be preferred as against others that
may be classed as general claims.
claim in preference to others, or an order adjudicating a certain claim to be preferred as against others that
may be classed as general claims.
7. Appeal and ErrorReceive's Rights of AppealBanks and Banking.
The receiver of a state bank in course of involuntary liquidation has no right of appeal from an order
decreeing a certain deposit of county funds to be a preferred claim over that of general creditors and
directing its payment in full in advance of the claims of general creditors.
8. Appeal and ErrorReceiver's Right of AppealJurisdictionOrder of District Court
Permitting Appeal.
An appeal is a statutory right, and where a receiver is without right of appeal an order of the district court
authorizing the receiver to prosecute an appeal is a nullity and cannot invest this court with jurisdiction.
Appeal from the First Judicial District Court, Ormsby County; F. P. Langan, Judge.
Proceeding upon petition by Esmeralda County to the First Judicial District Court, in and
for Ormsby county, in the matter of the State Bank and Trust Company in involuntary
liquidation, for a decree declaring a deposit of certain county funds a special deposit and a
preferred claim, and directing the receiver, F. L. Wildes, to pay the same. From a decree in
favor of Esmeralda County, petitioner, F. L. Wildes, receiver, appeals. Dismissed.
Statement of Facts
On October 23, 1907, the State Bank and Trust Company, a corporation which had
theretofore been engaged in the general banking business with its principal place of business
at Carson City, Ormsby County, Nevada, was adjudged insolvent by the district court of the
First judicial district, in and for Ormsby County. The State Bank and Trust Company, as a
corporation, had, prior to the date mentioned, conducted and maintained branches in several
parts of the state, one of which was located in Goldfield, Esmeralda County.
Subsequent to the action of the district court in adjudging the institution insolvent, and on
the 18th day of May, 1908, the court appointed Frank L. Wildes receiver of the insolvent
institution. Thereafter the said Wildes duly qualified as receiver and entered upon the
discharge of his duties.
Wildes duly qualified as receiver and entered upon the discharge of his duties.
On October 19, 1911, the petitioner, Esmeralda County, filed its original petition in the
district court of the First judicial district by which said petition the county prayed the court to
decree that a certain sum of money, to wit, the sum of $4,870.03, alleged to have been
deposited by the county treasurer of Esmeralda County in the Goldfield branch of the State
Bank and Trust Company, be held to be a special deposit and that the court make an order
directing the receiver of the State Bank and Trust Company to pay Esmeralda County the sum
of $4,870.03, with costs. To an amended petition filed by Esmeralda County as petitioner, the
receiver Wildes answered denying that the money placed by the county treasurer of
Esmeralda County in the Goldfield branch of the State Bank and Trust Company was placed
on special deposit, or for safe-keeping, or that the same was received or accepted by the State
Bank and Trust Company as a special deposit, or for safe-keeping. In his answer the receiver
admitted that the sum specified had been deposited with the State Bank and Trust Company
at its Goldfield branch by E. Hardy, the county treasurer, but denied that the same was
deposited for the use and benefit of the county.
A hearing on the petition was conducted before the court, at the conclusion of which the
court rendered judgment in favor of petitioner county and entered its decree that the sum of
$4,870.03 was received by the Goldfield branch of the State Bank and Trust Company, from
E. Hardy, county treasurer of Esmeralda County, as a special deposit, that the same was a
preferred claim in favor of Esmeralda County and against the assets of the State Bank and
Trust Company, which came into the hands of the receiver Wildes; that the sum of $974 had
been paid by said receiver on said claim by way of dividends; that there remained a balance
due Esmeralda County on said preferred claim of $3,896.03. Whereupon an order was made
by the said court directing the said Frank L.
Frank L. Wildes, receiver of the State Bank and Trust Company, to pay to Esmeralda County
the sum of $3,896.03 out of any funds on deposit in his hands as receiver and to reimburse
said county for its costs expended in the proceeding.
Following the service of this order upon the receiver the court made an order that the said
Frank L. Wildes, as receiver of the State Bank and Trust Company, be permitted to appeal to
this court from the decision and judgment theretofore entered.
Following the perfecting of the appeal on the part of the receiver, Esmeralda County, the
petitioner and respondent herein, filed its motion to dismiss the appeal upon the ground that
the appellant, Frank L. Wildes, as receiver, had no interest in the proceedings; that he was not
an aggrieved party within the meaning of section 5327 of the Revised Laws; that neither the
order of the district court directing the receiver to pay Esmeralda County the sum of money
stated, nor the order adjudging the said sum a special deposit, or preferred claim, were orders
from which an appeal could be prosecuted under the laws of Nevada.
Mack & Green and A. A. Heer, for Appellant:
It must be admitted that the receiver has no personal or individual interest in the
determination of the question as to whether the petitioner is entitled to a preferred claim
against the bank. It is a matter of no personal consequence to him whether the fund in his
hands is paid to one creditor or to another. It cannot, however, be denied that if he stands as a
representative of all creditors of the bank, as well as its stockholders, he is interested in his
official and representative capacity in distributing the funds in his hands according to the
manner provided by law. The law under which he was appointed receiver most certainly
makes him the representative of creditors, and officially he is interested in his representative
capacity in preventing any one creditor from preferring his claim over all other creditors to
their detriment, injury and prejudice, and especially so when the creditor seeking such
preference is not entitled to the same under the facts and law of the case.
detriment, injury and prejudice, and especially so when the creditor seeking such preference
is not entitled to the same under the facts and law of the case.
The receiver is not, as counsel contends, a mere agent of the court appointing him, and as
such agent compelled to comply with and obey every void or illegal order of the court making
the appointment. Neither the law nor his appointment invests him with any authority to
commit any wrongful or unlawful act, and the court has no jurisdiction, power, or authority to
direct or compel him to commit such acts. The receiver's authority ends with the execution of
lawful orders.
The receiver has been figuratively styled by many of the decisions as an agent of the
court, an arm of the court, a hand of the court, and by other somewhat meaningless
figures of speech. A careful analysis of these figures of speech shows that taken literally they
do not fully, correctly, or accurately describe the official relation of a receiver to the court
appointing him and the law of his appointment. It is true that he is an instrumentality through
which the court executes its orders, but, more accurately speaking, he is a creature, a minion
of the law. He is just as much a representative of the court that appointed him, and is just as
fully bound, and more so, to execute the orders and decrees of this court as those of the court
which made the appointment.
We fail to see the reason or logic which prevents the trial court from having its receiver
review its decisions on appeal in cases like the one at bar. The authorities are by no means in
harmony on the question. There are quite as many authorities holding that the receiver may
appeal, either with or without leave of court so to do, as there are that he may not appeal.
Certainly First National Bank v. Bunting, 59 Pac. 929, and Peck v. Johnson, 76 N. E. 634,
cited by counsel for respondent, support the contention of the appellant and concede his right
to appeal under the leave granted in the case at bar.
The following cases hold that a receiver may appeal from a decision affecting a fund or
property in his hands: Thom v. Pittard, 62 Fed. 232; Felton v. Ackerman, 61 Fed. 225;
Melendy v. Barbour, 7S Va. 544; Guarantee Trust Co. v. Philadelphia Co., 69 Conn.
Thom v. Pittard, 62 Fed. 232; Felton v. Ackerman, 61 Fed. 225; Melendy v. Barbour, 78 Va.
544; Guarantee Trust Co. v. Philadelphia Co., 69 Conn. 709, 38 L. R. A. 804, 806; People v.
St. N. Bank, 28 N. Y. Supp. 407; Pickering v. Richardson, 106 Fed. 614; Rust v. United
Water Works Co., 70 Fed. 129, 17 C. C. A. 16.
In a note contained in 119 Am. St. Rep. at page 757 (In re Switzer), it is contended that the
weight of authority is that a receiver may appeal when granted leave so to do by the court
appointing him.
In McKinnon v. Wolfenden (Wis.) 47 N. W. 436, it is conceded that a receiver had a right
of appeal, when authority so to do is conferred by the court appointing him.
It is claimed by respondent that the receiver has no right of appeal in an action between
rival creditors as such. This much may be conceded, but the creditors were not parties to this
proceeding. They were not represented unless they were represented by the receiver in his
official capacity. (Bingham v. Marion Trust Co., 61 N. E. 29; McGregor v. Third National
Bank of Atlanta, 53 S. E. 93; Alderson on Receivers, sec. 588, p. 797; Fagan & Osgood v.
Boyle Ice Machine Co., 65 Tex. 324, 331; First Nat. Bank of Detroit v. Barnum Wire and
Iron Works, 25 N. W. 202.)
M. A. Diskin, District Attorney of Esmeralda County, for Respondent.
By the Court, McCarran, J. (after stating the facts):
The right of appeal to this court is one based entirely on statute, and this court is prohibited
from taking jurisdiction unless the party appealing has, in the first instance, the statutory right
of appeal.
Section 5327, Revised Laws of Nevada, prescribes: Any party aggrieved may appeal in
the cases prescribed in this title. The party appealing shall be known as the appellant and the
adverse party as the respondent.
In the case of Kapp v. Kapp, 31 Nev. 70, this court cited approvingly its former decision
rendered in the case of State v. Langan, 29 Nev. 459
of State v. Langan, 29 Nev. 459, wherein it said: An appeal to this tribunal is a matter purely
of statutory right, and, unless authorized by statute, any attempted appeal taken from an order
not appealable is void, and therefore could not confer any jurisdiction upon this court to act.
The right of receivers to appeal from orders of the court by which they were appointed has
been variously dealt with by the several jurisdictions. The Supreme Court of California, in the
light of a special provision of the code of civil procedure in that state (Sec. 963, Code of Civil
Procedure), held that an order directing a payment of a preferred claim is appealable. (In re
Smith, 117 Cal. 505.)
It was a rule under the old chancery practice, and this rule is adhered to in states where that
practice is unchanged by statute, that a receiver may appeal from any order where such order
might affect his proper duties. It is almost universally held that a receiver may appeal from
any order which affects his personal rights, such as passing upon his accounts, or fixing his
fees or compensation. In the case of People v. St. Nicholas Bank, 28 N. Y. Supp. 407, the
court held that a receiver having a right to apply to the court for instruction was entitled to
instruction by the entire court and therefore might appeal from a special to a general term.
This decision, however, was rendered in the light of a system of procedure peculiar to the
statutes of New York.
In an instance where the estate as a whole is interested, the receiver thereof may appeal
from the judgment against him officially. In a case where an action is commenced by a party
not interested in the estate, the receiver may appeal from an order establishing the party's
claim against the estate. In a contest between two sets of creditors as to the distribution of the
funds, the receiver has no interest and is not entitled to the right of appeal. (Alderson on
Receivers, sec. 246; Battery Park Bank v. Western Carolina Bank, 127 N. C. 432.)
Speaking upon this subject the Supreme Court of North Carolina in the Battery Bank case,
supra, a case somewhat analogous to the one at bar, said: The receiver is the agent of the
court. Its judgment is full protection to him, and it is a rare case that he can be justified in
appealing, and certainly he is not when, as in this instance, the question is merely between
two sets of creditors as to the distribution of the fund.
In the case at bar the petitioner county sought to have itself placed in that set of creditors
who, by reason of the nature of their deposits with the defunct institution, were entitled to
have their claims adjudged to be preferred and thereby segregated from that other set of
creditors who, by reason of the nature of their deposits with the institution, were general
creditors and only entitled in law to share pro rata the accumulation or residue of the estate.
As we have already stated, a receiver in an instance of this character has the right of appeal
when the court, of which he is the representative, charges, or refuses to allow, items by which
action the court does him wrong personally. His right of appeal, however, is limited to that
peculiar class of orders or decisions in which, or by reason of which, he is the person
interested, or may be personally affected, or by which the estate as a whole is affected.
A receiver appointed by a court to collect the assets of an insolvent institution and to
administer its affairs cannot be said to be personally interested in the segregation, or
distribution, of the funds that may, by reason of his activities, or the performance of his
duties, come into his hands, unless he occupies the dual capacity of both creditor and
receiver, in which instance his right of appeal as a creditor, from an order or decree of the
lower court, might be sustained on the theory that, being personally interested in the prorating
or distribution of the estate, he could invoke by appeal, or review, a mandate of the higher
court to enforce a right of which he might have been deprived by the lower court, or to relieve
him of a wrong inflicted upon him.
a wrong inflicted upon him. As receiver, acting in his official capacity and without personal
interest, he is bound by the orders of the court of which he is the appointed representative
when those orders affect only those parties who, by reason of their relationship as creditors,
are interested in the equitable distribution of the estate and in nowise affect him personally.
If a receiver in a case of this kind may appeal from one order, the result of which would
not affect him personally, may he not with equal propriety appeal from every order and
thereby increase his expenses and multiply his attorney's fees, to the injury of the legitimate
creditors and the unnecessary depletion of the estate?
In the case of Chicago Title and Trust Company, Receiver of the Jas. H. Walker Co., v.
Jos. Caldwell, 58 Ill. App. 219, the appellate court of Illinois, in passing upon this identical
question, said: We cannot sanction, even by silence, the idea that a receiver may set up in
opposition to the court his theories of how the assets shall be disposed of. Next we will have
clerks appealing from directions of the courts to enter orders unwise in the opinion of the
clerks.
Where, as in this instance, a receiver is appointed to take over the affairs of an insolvent
institution he is not appointed for the purpose of representing any one individual or class of
individuals as against the others. It is his duty, under his appointment as receiver, to carefully
and faithfully collect, protect, and enhance the assets of the institution and to administer its
affairs to the end that its creditors may receive what is justly due them and that its
stockholders, if any there be, may receive the residue. He is entitled to proper compensation
for his services, as he is also entitled to an equitable allowance for administrative expenses,
and, where an order of court is entered with reference to either of these, they being matters in
which he is personally interested, he has the right of appeal from such orders, if he believes
himself aggrieved.
As is stated by Mr. Alderson, in his work on Receivers, the receiver has the right of appeal
with respect to any claim asserted by or against the estate from any decree which affects
his personal rights, but not from any order or decree declaring the respective equities of
the parties to the suit.
claim asserted by or against the estate from any decree which affects his personal rights, but
not from any order or decree declaring the respective equities of the parties to the suit.
(Alderson on Receivers, p. 315.)
In the case of First National Bank of Pocatello v. C. Bunting, et al., 59 Pac. 929, the
Supreme Court of Idaho, passing upon this question in a case very much analogous to the one
at bar, and in which an appeal was taken by a receiver from orders made by the lower court
directing that moneys deposited in the insolvent institution by county treasurers, and which
had come into the hands of the receiver, be turned over to the several counties, said: It
should be borne in mind that this is not an action against the receiver, but that in this action
the receiver was appointed. Then the receiver has no personal interest in the judgment from
which he appeals. It is of no personal interest to the receiver whether he pays the money
mentioned in the several judgments to the respondent counties, or whether he pays them to
the general creditors. It was his duty to obey the orders of the court appointing him, of which
he is only an agent. He had no right to appeal from said orders.
It must be observed that our statute prescribes that parties aggrieved may appeal. The word
aggrieved refers to a substantial grievance. The imposition of some injustice, or illegal
obligation or burden, by a court, upon a party, or the denial to him of some equitable or legal
right, would constitute a grievance in the contemplation of this statute. (Wilson v. Board of
Regents, 46 Colo. 100.)
The segregation of creditors into two classes with reference to the priority or preferment of
their claims, or an order directing the payment of a certain claim in preference to others, or an
order adjudicating a certain claim to be preferred as against others that may be merely
general, are not such orders as affect a receiver in an instance of this character, to the extent
of denying him personally some claim of right, either to property or person, or of imposing
upon him personally some burden or obligation.
The Supreme Court of Colorado, in the case of Wilson v. Board of Regents, supra, passing
upon the right of an executor to appeal from an order directing partial distribution of an
estate, said: It is not apparent that appellant is thus affected by the order complained of. He
is not concerned in the slighest degree, in any legal sense, with the question of the proposed
partial distribution of the residuum of said estate. * * * He has no personal interest in it; he
acts purely in a representative and official capacity. If the contention of the appellant is
correct, and to be upheld, the power is placed in the hands of such a representative official to
indefinitely tie up and postpone the settlement and distribution of any estate, where no
dispute of substance whatever exists and upon flimsy and trifling pretexts, in the interest only
of one seeking, in his official capacity, to retain possession of the property involved. The law
does not contemplate or approve such action, and courts should neither allow nor sanction it
when properly called to their attention. The order of the court below is a full and complete
protection to the executor for whatever he may do by way of disposition of the property,
within its terms. This being true, what possible interest has he in the further prosecution of
the action?
As we have already stated, there are instances in which the receiver may rightfully appeal
from an order of the court of which he is the appointee, as, for instance, where his
commissions or other allowances as trustee are affected by the order, or where he is interested
in the fund to be distributed as a creditor, or where the question of the increase or diminution
of the whole fund in his hands as trustee is involved, and such increase or diminution would
inure to the benefit or loss of all the creditors.
The order made by the lower court in this instance does not affect the receiver, for any of
the reasons stated above. His commissions are not affected; he is not a creditor, and the order
does not involve an increase or diminution of the estate, but, on the other hand, the matter
resolves itself into a contest between creditors of the insolvent institution wherein one
creditor seeks to have its claim preferred for payment as against all the others.
insolvent institution wherein one creditor seeks to have its claim preferred for payment as
against all the others.
In such a case, says the Supreme Court of Maryland, the trustee has no right to
intervene, and it is not his duty to prolong the litigation. The creditors whose rights are
affected are the proper persons to appeal. (Frey v. Shrewsbury Savings Institution, 58 Md.
151.)
It was held by the Supreme Court of Maryland, in the case of Knabe v. Johnson, 107 Md.
618, in passing upon an appeal taken in a proceeding similar to the one at bar, that such an
order was one simply affecting the distribution of the funds in the hands of the receiver
among two classes of persons entitled thereto, and, as such an order in no wise affected the
compensation of the receiver, or any personal right that he might have, or his duty in serving
the whole estate, he was not entitled to prosecute an appeal. In this respect the court said:
His holding is the holding of the court from whom the possession was taken. * * * His
appointment is not to oust any party of his right to possession of the property, but merely to
retain it for the benefit of the party who may, ultimately, appear to be entitled to it; and, when
that is ascertained, the receiver will be considered as his receiver.
A petition in a case of this character is merely an appeal to the lower court to determine
and adjudicate the respective equities of the parties who may be creditors of the insolvent
institution, and, when such adjudication and determination has been made, to require its
servant, the receiver, to carry out the orders of the court made pursuant to such determination.
When the determination has been made, and the order issued, it constitutes the investiture by
reason of which and under authority of which the acts of the receiver cannot be questioned. It
is true that one or more of the creditorsthe party or parties really interested in the
proceedings and affected by the ordermight appeal from the order, but the receiver not
being a party affected should stand indifferent and not a partisan. His duty is to all the parties
in common; he should not become an advocate of one creditor against another, or of one
class of creditors against another.
of one creditor against another, or of one class of creditors against another.
The appellant contends here that, as the court made an order allowing the receiver to
appeal, and as such appeal is taken pursuant to the authority and order of the lower court,
therefore the appeal should be heard and determined. We see no merit in this contention. The
power of this court to hear and determine matters on appeal is prescribed by statute. It is a
question of jurisdiction, and this jurisdiction is one with which this court cannot invest itself,
however anxious the court might be so to do, or however urgent the matter might be. No
order of the lower court, no sanction, or permit, can authorize this court to take cognizance of
a matter on appeal unless the right of appeal clearly appears as a matter of law. While it is
true that in this case the receiver, appointed by the court to take over and administer and wind
up the affairs of the defunct institution, was invested with general powers to perform his
duties, to the end that all the estate and assets might be collected, conserved, and thereafter
properly distributed, nevertheless this conference of power conveyed no beneficial title upon
or interest in the receiver. There was no duty imposed upon him to assert the rights of one
creditor or class of creditors over those of another in respect to the common fund, nor in
respect to their particular claim or preference. (Knabe v. Johnson, 69 Atl. 420; State, ex rel.
Miller, Attorney-General, v. People's State Bank, 135 N. W. 196.)
In the case of State, ex rel. Miller, v. People's Bank, supra, the Supreme Court of North
Dakota, in considering a matter identical with the one at bar, and in a case where the
conditions and circumstances were almost analogous, sustained their former decision in the
case of Hoffman v. Bank of Minot, 61 N. W. 1031, wherein they declared that a receiver,
being an officer of the court, in matters of this character must assume an indifferent attitude
as between creditors of the estate, and where one creditor seeks to have his claim preferred as
against another, or as against all the others, and the court determines and decides in favor of
his claim and orders the receiver to pay the claim, the effect of the order neither enhances
nor diminishes the assets of the insolvent institution as a whole.
receiver to pay the claim, the effect of the order neither enhances nor diminishes the assets of
the insolvent institution as a whole. The relative rights of the respective claimants with
reference to the distribution of the assets are the only things that are determined by the order,
and on this subject the receiver is without interest and, being a disinterested party, as between
the claims of the creditors of the estate, he is not a party aggrieved and, hence, cannot
maintain an appeal from the order of the court appointing him.
The doctrine as laid down in the case of State, ex rel. Miller, v. People's State Bank, supra,
and which is especially applicable in the case at bar, by reason of the fact that the conditions
are analogous, is a doctrine that has been generally endorsed to a degree of considerable
uniformity by the courts of last resort to which the matter has been presented. (Milton J.
Forman, Receiver, et al., v. Defrees, Brace & Ritter, 120 Il. App. 486; Jno. W. Sutton,
Receiver, v. Louis Wilber, 100 Ill. App. 360; First National Bank v. C. Bunting, 59 Pac. 929;
Bates v. Rhyburg, 40 Cal. 463; Frey v. Shrewsbury, 58 Md. 151; Wilson v. Board of Regents,
46 Colo. 100; Battery Park Bank v. Western Carolina Bank, 127 N. C. 432; Dorsey v.
Siebert, 93 Atl. 312; Bosworth v. Terminal Road Associations, 80 Fed. 969.)
In the case of Bosworth v. Terminal Road Association, supra, the United States Circuit
Court of Appeals for the seventh circuit, having under consideration the question of the right
of a receiver to appeal, where the court below made an order similar to the one appealed from
in this case at bar, said: While it is true that a receiver is the instrument of the court for the
conservation of the estate which the court has taken into its possession for administration, it is
also true that in a sense he represents all the parties in interest. His duty is to defend the estate
against all claims which he deems to be unjust. His duty is to conserve the estate as a whole
for its distribution by the court among those who shall be adjudged to be entitled. He
represents the estate, with right to sue to recover demands due to it, with right to defend it
against claims asserted.
against claims asserted. In this respect we concur with the Circuit Court of Appeals for the
fourth circuit, that this duty carries with it the right and the duty, in case of doubtful claim, to
take the judgment of the court of last resort. * * * This right and duty should, however, be
limited in its exercise to those cases in which the estate, as a whole, is interested to enforce a
right or to defend against a claim asserted. In respect to many matters the receiver has no right
of appeal, while in respect to others his right of appeal may not be gainsaid. * * * The true
line of demarcation we think to be this: He has the right of appeal with respect to any claim
asserted by or against the estate, for therein he is the representative of the entire estate. He has
the right of appeal from any decree which affects his personal rights, for therein he has an
interest. But he has not the right of appeal from a decree declaring the respective equities of
parties to the suit. He should therein be indifferent, and not a partisan. His duty is to all
parties in common. He should not become an advocate of one against another.
The case, decided by the Circuit Court of Appeals for the seventh circuit, was by writ of
certiorari carried to the Supreme Court of the United States, and that court, speaking through
Mr. Justice Brewer, declared that in that particular action, it being one in which a receiver
was appointed on the foreclosure of a mortgage to take charge of the mortgaged property, the
proper entry should have been an affirmance of the decree rather than a dismissal. In speaking
of the right of the receiver generally to appeal, the court said: He may likewise defend the
estate against all claims which are antagonistic to the rights of either parties to the suit,
subject to the limitation that he may not, in such defense, question any order or decree of the
court distributing burdens or apportioning rights between the parties to the suit, or any order
or decree resting upon the discretion of the court appointing him. * * * Neither can he
question any subsequent order or decree of the court distributing the estate in his hands
between the parties to the suit.
of the court distributing the estate in his hands between the parties to the suit. * * * He is to
stand indifferent between the parties, and may not be heard, either in the court which
appointed him or in an appellate court, as to the rightfulness of any order which is a mere
order of distribution between the parties. (Bosworth v. Terminal Road Association, 19 S. C.
625.)
Having concluded that the receiver in an action of this kind is not a party aggrieved in the
contemplation of the statute and cannot, therefore, prosecute an appeal to this court from an
order of this character, we have determined to dismiss the appeal.
Any creditor, or any set of creditors, of the insolvent bank might have appeared in the
lower court pursuant to the notice given at the time of the hearing of this matter and resisted
the making of the order, and it was within their power to prosecute an appeal to this court
from such an orderthey being properly the parties aggrieved.
While it is our opinion, without determining the matter, that, on the record as it is
disclosed, the judgment of the lower court should have been affirmed in this instance, yet the
seriousness and importance of the result of dismissing an appeal in cases of this general
character causes us rather to reflect on the absence of a law which would provide for a better
protection for the creditors and their respective interests. The receiver, being by rule
prohibited from taking sides with one creditor, or set of creditors, against another, and being
required to remain neutral in an action of this character, and, therefore, being deprived of the
privilege of appeal, it appears to us regrettable that some power is not vested in the court
appointing a receiver, in a case of this kind, whereby at the very time of the appointment of
the receiver, or on occasions when the court might deem it essential, it might appoint some
agent, either selected by the creditors or by the court,whose duty it would be solely to
represent the creditors separate and apart from the receiver and who might be empowered, by
reason of his representative capacity, to prosecute an appeal so that the sanction or
guidance of the court of last resort might be afforded not only to the receiver, as the
representative of the estate, but also to the court appointing him.
his representative capacity, to prosecute an appeal so that the sanction or guidance of the
court of last resort might be afforded not only to the receiver, as the representative of the
estate, but also to the court appointing him.
It is manifest from the order made by the lower court in this case that it was the desire of
that court, if the statute permitted it, that this court should pass upon its findings and
conclusions in this matter, but, however beneficial such a review might be, the jurisdiction of
this court is fixed by the constitution and the statute.
It therefore follows that the appeal in this case must be dismissed.
It is so ordered.
Talbot, C. J.: I concur in the order.
____________
36 Nev. 542, 542 (1913) Ingalls v. Wildes
[No. 2062]
STATE OF NEVADA, on the Relation of JOHN SPARKS, Et Al., Plaintiff, v. STATE
BANK AND TRUST COMPANY (a Corporation), Et. Al., Defendants.
In the Matter of the Intervening Petition of W. A. INGALLS, Petitioner and Respondent, v.
FRANK L. WILDES, as Receiver of the State Bank and Trust Company, Appellant.
[See Case No. 2083, page 526, ante.]
Mack & Green and A. A. Heer, for Appellant.
Sweeney & Morehouse, for Respondent.
The question of the right of the receiver to appeal in this case having been raised by the
respondent and the matter involved being analogous to that determined by this court in the
case of State of Nevada, ex rel. John Sparks, et al., v. State Bank and Trust company, et al.,
being No.
36 Nev. 542, 543 (1913) Ingalls v. Wildes
Sparks, et al., v. State Bank and Trust company, et al., being No. 2083, and the decision
therein being determinative of the question of appeal, as involved in this case, it follows from
the reasoning as laid down therein that the appeal should be dismissed.
It is so ordered.
____________
36 Nev. 543, 543 (1913) Round Mountain Mining Co. v. Round Mountain Sphinx Mining Co.

[No. 1942]
ROUND MOUNTAIN MINING COMPANY (a Corporation), Appellant, v.
ROUND MOUNTAIN SPHINX MINING COMPANY (a Corporation), Respondent.
[See 35 Nev. 392]
ON REHEARING
1. Public LandsPatentsConclusiveness on Collateral Attack.
A patent to land issued by the general land office is the highest evidence of title, and is conclusive against
the government and all claiming under junior patents or titles until set aside or annulled. It is not open to
collateral attack except upon a showing that the land department had no jurisdiction to dispose of the land.
2. Public LandsDecisions of Federal Land Office Conclusive.
The decisions of the federal land office upon matters of fact, cognizable by it, in the absence of fraud or
imposition, is conclusive everywhere else.
3. Mines and MiningPatentsCollateral Attack.
A mining patent is conclusive upon all matters which might have been the subject of an adverse claim.
4. Mines and MiningPatentsAdverseWaiver.
Failure to file an adverse claim within the time fixed by law operates as a waiver of all rights which were
the proper subject of such a claim.
5. Mines and MiningPatents, Facts Concluded By.
Upon the issuance of a patent to a mining claim, all matters which might have been tried under adverse
proceedings are treated as adjudicated in favor of the patentee as fully as though judgment had been
regularly rendered in his favor.
6. Mines and MiningPatentsFailure to Adverse Conflicts.
Where there is any surface conflict whatever, and there is a failure to adverse, after the patent has been
issued to the applicant, the question of priority of title is conclusively determined in favor of the patentee.

7. Mines and Mining PatentsFederal Land OfficeProtectsEstoppel.
Notwithstanding a failure to assert adverse rights, an adverse claimant will not be estopped from making
a protest in the federal land office, bringing to the notice of the department any facts which tend to show
noncompliance with the requirements of law.
8. Mines and MiningPatent Conclusive as to Location.
An entry, sustained by a patent, is conclusive evidence that at the time of the entry there had been a valid
location.
9. Mines and MiningConflicting LocationsPatent ProceedingsPriorityNecessity of
Adverse.
When an owner of a lode claim makes application for a patent and the owner of the claim in conflict
seeks to challenge the former's priority of right on account of the date of discovery, he must bring an
adverse suit, or the question, after patent, will be as to him concluded.
10. Mines and MiningGroup PatentEvidence of Adjudication of Validity of Locations.
When the general land office issued a group patent comprising five mining locations, and it appeared
from the face of the patent that one of these claims, the Los Gazabo, was in conflict with each of the other
claims known as the Sunnyside Nos. 1, 2, and 3, and the Sunnyside Fraction, the land office having full
knowledge of the situation of these claims when it issued a patent to the group, including the Los Gazabo,
the effect of the issuance of such patent was an adjudication of the validity of the location of the Los
Gazabo.
11. Mines and MiningGroup PatentEvidence of Adjudication of Validity of Locations.
Where the general land office issued a patent to a group of mining claims, one of which was entirely
within the exterior boundaries of the other claims, except for a very small portion, about five
one-hundredths of an acre in one corner, the fact that there is such portion outside the exterior boundaries
of the other claims is evidentiary that the land office adjudicated such location to be valid, for otherwise
this small portion of land included within the patent could find no support in the law.
12. Mines and MiningGroup PatentConstructionConflicts.
Where a patent to a group of conflicting mining claims upon its face contains no express exclusions and
where the total area granted by the patent accounts for the area in conflict but once, it is manifest that there
is not a double grant of the conflict area, but such patent does not disclose upon its face which of the claims
takes such conflict area.
13. Mines and MiningGroup PatentConstruction ConflictsPresumption from Position
of Discovery Point.
Where a group patent to several claims in conflict discloses that the location point of one of the claims is
within the conflict area, it will be conclusively presumed from the patent that the claim having its
location point in conflict with another claim takes the conflict area as between two
such claims.

that the claim having its location point in conflict with another claim takes the conflict area as between two
such claims.
14. Mines and MiningPoint of Discovery.
The discovery point of a mining claim must be upon free territory.
15. Public LandsRules of Land Office, Force of.
The rules and regulations of the general land office, in so far as they are not in conflict with statutory
provisions, have the force and effect of law.
16. Mines and Miningrules of Land Officefield Notes of Deputy Mineral Surveyor.
Under section 38 of the regulations of the general land office providing that The field notes and plat are
made a part of the application for patent, and section 130 of the same regulations providing that The
survey of a mining claim may consist of several contiguous locations, but such survey must * * *
distinguish the several locations, and exhibit the boundaries of each, and section 153 of the same
regulations providing that When locations embraced in one survey conflict with each other, such conflicts
should only be stated in connection with the location from which the conflict area is excluded, it is the
duty of the deputy mineral surveyor to set forth in his field notes the exclusions of the conflict area, and in
favor of the claim or claims such exclusions are made.
17. Mines and MiningApplication for PatentField NotesPresumption.
Where the record does not contain the application for the patent nor a copy of the published notice, it will
not be presumed, in the absence of a showing to the contrary,that such application or published notice is in
conflict with the exclusions made in the field notes of the deputy mineral surveyor.
18. Mines and MiningApplication for PatentField NotesDuty of Deputy Mineral
SurveyorExclusions, Effect Of.
The fact that field notes of a group patent contain exclusions of the conflict area between the respective
claims, which exclusions are made at the suggestion of the applicant for patent, cannot properly be said to
be the self-serving declarations of the applicant, for, no matter at whose suggestion made, when the
exclusions are embodied in the field notes of the deputy mineral surveyor and are approved by the
surveyor-general, they become the exclusions made by the officers of the government upon whom the duty
is imposed to make the same.
19. Mines and MiningGroup PatentField NotesExclusions Conclusive.
When a patent issues to a group of mining claims and therein refers to the field notes, the exclusions
contained in such field notes become the exclusions of the government itself.
20. Mines and MiningPatentsSurveysPresumption.
It will be assumed that patents to mining claims are issued upon surveys made under the direction of the
United States surveyor-general.

21. Public LandsPatentsField Notes and Plat Part of Description.
A reference in a patent to the official plat and survey makes such plat and field notes of such survey a
part of the description of the land granted, as fully as if they were incorporated at length in the patent.
22. Mines and MiningGroup Patentfield Notes Determinative of Conflicts.
When construing a patent to a group of mining claims for the purpose of determining which claim, or
claims, takes the conflict area, reference may be made to the field notes of the deputy mineral surveyor
referred to in the patent.
23. Mines and MiningLocations on Free Ground.
A valid location of a mining claim cannot be made upon ground covered by a prior existing location or
locations.
24. Mines and MiningDiscovery Essential to Location.
The basis of a valid mining location is discovery, and the mere posting of a notice without discovery is of
no force or effect so far as rendering invalid another subsequent location covering a portion of the same
ground and based upon a valid discovery.
25. Mines and MiningCertificate of LocationEffect.
A certificate of location of a mining claim duly recorded is prima facie evidence only of such facts as are
required by law to be stated therein, provided they are sufficiently stated.
26. Mines and MiningCertificate of Location Not evidence of Discovery.
A certificate of location is not evidence of the fact of a discovery, and such certificate setting forth the
date of location is not evidence of a discovery either upon that or any other date.
27. Mines and MiningPatent Conclusive of Prior Discovery.
As the validity of a mining location granted by a patent from the general land office depends upon
priority of discovery,and as it is incumbent upon such land office to determine all facts necessary to
support the validity of the location patented, it must be conclusively presumed that such question was
determined in favor of the patented location.
28. Mines and MiningPatent to Noncontiguous Pieces of Ground.
The federal land office may make a valid grant of a mining claim in two noncontiguous pieces of ground,
separated by a prior location.
29. Appeal and ErrorConflict of EvidenceAdverse Proceedings.
Findings of the trial court based upon conflicting testimony are conclusive upon this court upon appeal.
The decision of the district court in adverse proceedings based upon conflicting evidence is binding upon
the supreme court and the federal land office.

30. Mines and MiningPatent ProceedingsFailure to Adverse or ProtestEstoppel.
An owner of a conflicting mining claim,who fails to institute adverse proceedings when another party has
applied for patent for the conflicting area, or to protest in the land office against the granting of such patent,
cannot be heard to contest questions of fact upon which the patent is based.
31. Public LandsPatentsPresumption.
Courts are bound to presume, in the absence of a showing to the contrary, that a patent has been issued
upon due and regular application.
32. Mines and MiningGroup Patent, Effect Of.
A patent to a group of mining claims does not simply describe the exterior boundaries of the land which
is embraced by the group, but each location is described and each embraces a separate portion of ground,
to the exclusion of every other claim the same as if a separate patent issued for each particular location, and
all conflicts are determined by the patent.
33. EstoppelPleadingsAction Between Third Parties.
A party to an action is not in position to assert an estoppel against the other party by reason of allegations
in pleadings in a former action in which neither the party asserting the estoppel nor his grantors nor
predecessors in interest were parties. An estoppel should be pleaded.
34. FraudPleadingMining Patent.
Fraud must be alleged and proved. Held, that no element of fraud is involved in this case.
Judge.
Action by the Round Mountain Mining Company against the Round Mountain Sphinx
Mining Company, to quiet title to the Los Gazabo mining claim. Judgment for defendant, and
plaintiff appeals. Affirmed. Rehearing granted. On rehearing, reversed.
R. G. Withers and Dickson, Ellis & Schulder, for Appellant. (For extracts from briefs, see
35 Nev. 394-404.)
Curtis H. Lindley, Detch & Carney, Wm. E. Colby, Grant H. Smith, and Horatio Alling for
Respondent. (For extracts from briefs, see 35 Nev. 405-412.)

On Rehearing
The facts in this case presenting a somewhat novel as well as important question of law
relative to the construction of a patent to a group of mining locations, and the petition for a
rehearing having raised a doubt in the minds of members of the court as to the correctness of
certain of the conclusions heretofore reached, and it appearing that we were in error in
accepting as a fact the stateAppellant made no exclusion in favor of the Los Gazabo,
either in its verified application for patent, or in its published notice, or in its final application
to purchasecontained in the brief of respondent (35 Nev. 406), the court was impelled to
grant a rehearing.
The case has been reargued and we have again carefully considered the questions
involved, aided by the exhaustive briefs and the illuminating arguments of eminent counsel
upon both sides of the case. As a result of the further examination we have given to this case,
we are convinced that we were in error in adopting in their entirety the views expressed by
the learned trial judge.
The character of the action is stated in the former opinion (35 Nev. 393, 129 Pac. 308).
Reference is there made to the issues in the case, but we think it advantageous to quote in
addition the following paragraph in the amended answer:
Denies that the plaintiff is now or ever was the owner of, possessed of, or entitled to the
possession of, the Los Gazabo mining claim, situate in the Jefferson mining district, Nye
County, Nevada, but admits upon information and belief that the plaintiff has by some means
obtained an alleged patent for the said pretended Los Gazabo mining claim, which said
alleged patent defendant alleges is without force or effect and wholly null and void because
the same was not obtained or issued in pursuance of the statutes of the United States therein
and for the providing of the issuance thereof.
For convenience of reference we incorporate in this opinion the diagram showing the
relative situation of the Gold Leaf mining claim, the property of respondent, and the
Sunnyside-Los Gazabo group, the property of appellant.

and the Sunnyside-Los Gazabo group, the property of appellant.
(Map)
We think it important also to set forth a portion of the language of the patent to this group,
as the validity of that part of the patent which purports to grant title to the Los Gazabo claim
is the ultimate question upon appeal in this case. The patent, in part, reads:
Whereas, In pursuance of the provisions of the Revised Statutes of the United States,
chapter six, title thirty-two, and legislation supplemental thereto, there have been deposited
in the General Land Office of the United States the plat and field notes of survey and the
certificate, No.

been deposited in the General Land Office of the United States the plat and field notes of
survey and the certificate, No. 1315, of the Register of the Land Office at Carson City, in the
State of Nevada, accompanied by other evidence, whereby it appears that the Round
Mountain Mining Company did, on the twenty-eighth day of May, A. D. 1908, duly enter and
pay for that certain mining claim or premises known as the Sunnyside No. 1, Sunnyside No.
2, Sunnyside No. 3, Sunnyside Fraction, and Los Gazabo lode mining claims, designated by
the Surveyor-General as Survey No. 2815, embracing a portion of the unsurveyed public
domain, in the Jefferson mining district, in the county of Nye and State of Nevada, in the
District of Lands subject to sale at Carson City, and bounded, described and platted as
follows: * * * [Here follows a description by courses and distances of the several mining
claims which the patent purports to convey in the order first above mentioned in the patent.]
1-7. In view of the allegation in the answer that the patent to the Los Gazabo is void
because the same was not obtained or issued in pursuance of law, it is well to consider to
what extent a patent is subject to collateral attack.
We quote from Lindley on Mines, 2d ed., sec. 777, the following:
With the issuance of the patent the functions of the land department terminate.
It is the culmination of the proceeding in remthe final judgment of the tribunal
specially charged with passing the government title. With the title passes away all authority or
control of the executive department over the land and over the title which it conveys.
To the extent that we have already covered the field, it is unnecessary to do more than
recapitulate the results heretofore reached as to the force and effect of this judgment.
(1) A patent for land is the highest evidence of title, and is conclusive against the
government and all claiming under junior patents or titles until set aside or annulled. It is not
open to collateral attack; "{2) The land department is a tribunal appointed by Congress to
decide certain questions relating to the public lands, and its decision upon matters of fact
cognizable by it, in the absence of fraud or imposition, is conclusive everywhere else;

(2) The land department is a tribunal appointed by Congress to decide certain questions
relating to the public lands, and its decision upon matters of fact cognizable by it, in the
absence of fraud or imposition, is conclusive everywhere else;
(3) The government having issued a patent cannot, by the authority of its own officers,
invalidate it by the issuing of a second one for the same property;
(4) A patent may be collaterally impeached in any action, and its operation as a
conveyance defeated by showing that the department had no jurisdiction to dispose of the
lands; that is, that the law did not provide for selling them, or that they had been reserved
from sale, or dedicated to special purposes, or had been previously transferred to others;
(5) A patent is conclusive evidence that all antecedent steps necessary to its issuance have
been properly and legally taken;
(6) It is conclusive evidence of the citizenship and qualification of the patentee; and,
(7) In cases of mining patents, that all matters which might have been the subject of an
adverse claim have been conclusively adjudicated in favor of the patentee.
The same eminent author in section 742 says:
It is so well established as to be axiomatic that a failure to file an adverse claim within the
time fixed by law operates as a waiver of all rights which were the proper subject of such a
claim. The issue of a patent is equivalent to a determination by the United States in an
adversary proceeding, to which the owner of the adverse right is in contemplation of law a
party, that the applicant's and patentee's rights were superior, and those which might have
been asserted by the holder of the adverse title were valueless. In other words, all matters
which might have been tried under the adverse proceedings are treated as adjudicated in favor
of the applicants, and all controversies touching the same are to be held as fully settled and
disposed of, as though judgment had been regularly rendered in their favor. Where there is
any surface conflict whatever, and there is a failure to adverse, after the patent has been
issued to the applicant, the question of priority of title is conclusively determined in favor
of the patentee.

adverse, after the patent has been issued to the applicant, the question of priority of title is
conclusively determined in favor of the patentee. A failure to assert adverse rights, however,
will not estop an adverse claimant from protesting and bringing to the notice of the
department such facts as tend to show noncompliance by the applicant with the requirements
of the law.
In Empire State Co. v. Bunker Hill Co., 114 Fed. 420, Ross, J., speaking for the Circuit
Court of Appeals, Ninth Circuit, Said: The application for the patent for the Last Chance
was, as has been seen, for the whole claim, as indicated in the diagram hereinbefore set out,
and carried with it, as has been said, the implied, if not the expressed, allegation that the
location was made upon land at the time open to location, and was therefore prior to any
location thereof by any one else. The issuance by the government of its patent, after due
notice to all the world of the application, and ample notice to ever one to contest it,
conclusively determined, as against every one whose surface lines conflicted therewith, the
priority of that location over every other, including the Stemwinder, and conferred upon the
patentees and their successors in interest not only the entire surface of the claim, but, as
against every one whose surface lines conflicted with those of the Last Chance, the
extralateral rights conferred by section 2322 of the Revised Statutes to follow on their dip
outside of the side lines, and within vertical planes drawn through the parallel end lines
extended in their own direction, all veins, lodes, or ledges the tops or apexes of which lie
inside the surface lines of the claim. As a matter of course, in the absence of a surface
conflict, there would be no ground for an adverse claim, and no question would arise of
which the land department could take cognizance. Conflicts in respect to extralateral rights
growing out of locations whose surfaces do not conflict, and which are therefore beyond the
purview of the proceedings in the land department, are matters solely for the determination of
the courts when brought before them.
See, also, same case, 109 Fed. 538, and 186 U. S. 482.

In the case of the U. S. Mining Co. v. Lawson, 134 Fed. 769, the Circuit Court of Appeals,
Eighth Circuit, speaking through Van Devanter, J., expressed the view that, from the
inclusion of a conflicting area within a patent to a mining location, it did not necessarily
follow that the patented location was adjudged to be prior in time to the location in conflict.
The opinion states: Seniority is determined by the order in which they were located, whether
they have been patented or remain unpatented. While the area in conflict is usually awarded
to the senior claim, it is not always or necessarily so, because acts or circumstances entirely
consistent with the true order of location may have intervened, which require that this area be
awarded to a junior claim. An application for a patent to one of the conflicting claims
presents the question: Which is the superior claim within the overlapping surface boundaries?
And the inclusion of the area in conflict within a patent to one of the claims is necessarily a
determination that at the time of the patent proceedings such area is a part of that claim.
Applying these principles to the facts of the present case, it is seen that the issuance of a
patent for the defendant's claim, including therein the area within the overlapping boundaries,
operated as a declaration or determination that within these surface limits the defendants'
claim was superior, but not necessarily that it was prior in location. Whether this
determination proceeded from a failure of the then owners of the complainants' claims to file
an adverse claim, or from an actual inquiry and decision respecting the right of possession
(Rev. Stat. secs. 2325, 2326, U. S. Comp. St. 1901, pp. 1429, 1430), is not shown, so it
cannot be said, and it is not insisted, that in the course of the patent proceedings there was any
actual issue, trial, or decision respecting the order in which the conflicting claims were
located, or that the patenting of the areas within the overlapping boundaries was actually
rested upon priority of location.
This view of the law is not in harmony with the law as stated in the Empire State case,
supra, which held that the issuance of the patent established priority over any location in
conflict.

any location in conflict. There is no affirmance of this doctrine by the Supreme Court of the
United States in the case upon appeal. (Lawson v. U. S. Mining Co., 207 U. S. 1.) The latter
court declined to consider the case from the standpoint of an assumption that there had been a
conflict between the claims in controversy. Upon the contrary, it said: In the absence of a
record, or some satisfactory evidence, it is to be assumed that the patents were issued without
any contest and upon the surveys made under the direction of the United States
surveyor-general, and included only ground in respect to which there was no conflict.
The question involved in the Lawson cases was as to the ownership of a broad vein, the
apex of which was bisected by the common side line of contiguous claims. Even assuming it
to be the law, as held by the circuit court of Appeals (134 Fed. 775), that, as to the ownership
of this broad vein, a patent would not necessarily establish priority even where a conflict had
existed, nevertheless the case does not hold such a rule to be applicable to facts such as are
involved in this case. The court says: The defendants have the older patent, and we will
assume that originally there were surface conflicts, as is insisted, and that the areas in conflict
were patented as parts of the claim of the defendants. If the present suit related to the superior
right to these surface areas, or to any underground or extralateral rights necessarily following
or incident to such surface ownership, the claim of estoppel would be well taken, but, as the
controversy is over a different subject-matter, and it is not shown that the question of priority
of location was in fact presented and determined in the course of the patent proceedings, the
estoppel cannot be sustained.
8, 9. In Creede M. & M. Co. v. Uinta Tunnel Co., 196 U. S. 337, 353, 355, Brewer , J.,
speaking for the court, said: An entry sustained by a patent is conclusive evidence that at the
time of the entry there had been a valid location. * * * So, when the owner of a lode claim
makes application for a patent and the owner of another seeks to challenge the former's
priority of right on account of the date of discovery, it is his duty to bring an advance suit,
and, if he fails to do so, that question will be as to him concluded."

on account of the date of discovery, it is his duty to bring an advance suit, and, if he fails to
do so, that question will be as to him concluded.
See, also, Lawson v. U. S. M. Co., 207 U. S. 1, 15; Smelter Co. v. Kemp, 104 U. S. 646; 32
Cyc. 1040, and note to Revised Laws of Nevada, sec. 2383.
10, 11. The Gold Leaf claim was in conflict with the Sunnyside No. 1 and with the Los
Gazabo. This conflict is admitted and its extent appears on the accompanying diagram. The
conflict is also described in the field notes of the Sunnyside-Los Gazabo survey hereinafter
referred to. Under the authorities cited, respondent, as owner of the Gold Leaf, was bound to
adverse the application for the patent, providing such application was regularly made and
providing a valid patent could be issued to the Los Gazabo location, pursuant to the
application. No adverse having been made, respondent cannot now be heard to question any
antecedent fact, such as priority of location, necessary to support the validity of the Los
Gazabo, if the patent does actually convey the conflict area between the Sunnysides and the
Los Gazabo to the latter.
There is no mention in the patent itself of exclusions of the conflict area between the
Sunnysides and the Los Gazabo in favor of any particular claim or claims. It appears,
however, from the face of the patent that such conflict exists, for one has but to trace the lines
of the several claims as named and described in the patent and there is a resulting plat in
accordance with the accompanying diagram. While the record does not contain a copy of the
plat which was required to be posted on the ground and to accompany the application for
patent, we know it must have shown upon its face the relative positions upon the ground of
the several claims, the same as they appear upon the above diagram. The general land office
necessarily had full knowledge of the situation of these claims, when it issued the patent to
the group of claims, including the Los Gazabo. The effect of such issuance was in
adjudication of the validity of the location of the Los Gazabo, unless it can be said that the
land office was acting in excess of its powers.

land office was acting in excess of its powers. This is made still more manifest from the fact
that a portion of the Los Gazabo claim embraced within the patent extends outside of the
limits of the Sunnyside claims. This area is small, it is true, about five one-hundredths of an
acre, but it is part of the land conveyed by the patent, a part which can find no support in the
law, unless the land department determined that the Los Gazabo was a valid location.
12. While the patent upon its face contains no express exclusions, and it would appear
from a reading of the descriptions of the several claims that there was a double grant of the
conflict area, it is manifest that such was not intended, as the conflict area is accounted for
but once in the total area which is expressly conveyed by the patent. Counsel for appellant
have argued from this that it follows that the patent discloses on its face that the exclusions
were made in favor of the Los Gazabo. This, we think, is not a necessary conclusion from the
patent itself.
13, 14. As between the Sunnyside No. 2 and the Los Gazabo, we think the conclusion
would follow from the patent itself that the exclusion, as between those two claims, was in
favor of the Los Gazabo, for the patent itself discloses the discovery point of the Los Gazabo
to be within such conflict area, and it is well settled in the law that the discovery point must
be upon free territory. (Indiana-Nevada Co. v. Gold Hills Co., 35 Nev. 160.)
15, 16. We now come to the consideration of the admissibility in evidence of a certified copy
of the field notes of the survey, which under the law are required to accompany the
application for patent. (Rev. Stats. U. S. sec. 2325.) The rules and regulations of the general
land office, in so far as they are not in conflict with the statutes, have the force and effect of
law. (Leonard v. Lennox, 181 Fed. 760; Wilkins v. U. S., 96 Fed. 837; Caha v. U. S., 152 U.
S. 211.)
By section 38 of the regulations of the general land office, relative to mining claims, it is
provided: The field notes and plats are made a part of the application for patent, and care
should be taken that the description does not inadvertently exclude portions intended to
be retained.

patent, and care should be taken that the description does not inadvertently exclude portions
intended to be retained. The application for patent should state portions to be excluded in
express terms. (See regulations found as a note to section 2421 of Revised Laws of Nevada.)
Section 130 of the same regulations (Revised Laws of Nevada, p. 726) provides: The
survey of a mining claim may consist of several contiguous locations, but such survey must,
in conformity with statutory requirements, distinguish the several locations, and exhibit the
boundaries of each. The survey will be given but one number.
Section 153 of the same regulations (Revised Laws of Nevada, p. 726) provides: The
total area of each location and also the area in conflict with each intersecting survey or claim
should be stated. But, when locations embraced in one survey conflict with each other, such
conflicts should only be stated in connection with the location from which the conflicting area
is excluded.
Counsel for respondent in their reply to the petition for rehearing stated: The general rule
announced by appellant and supported by the authorities cited is undoubtedly correctthat
when field notes are referred to in an instrument of conveyance they become a part of the
description of the patent. The surveyor's function is to run lines, establish corners and
boundaries, and compute areas, but there his functions cease. These matters are properly
within his sphere of duty. But he cannot constitute himself a tribunal and assume judicial
functions and determine questions which are clearly outside of his line of duty, and which he
is not authorized to do. Whenever he does this his survey and report on such points are to be
ignored.
It was unquestionably the duty of the deputy mineral surveyor to set forth in his field notes
the exclusions of the conflict area, and to designate the claim or claims in favor of which such
exclusions were made. The field notes offered in evidence and rejected by the court below
show that the exclusions of the conflict area were made in favor of the Los Gazabo.

17. While the record does not contain the application for the patent or copy of the
published notice, it is not to be presumed, in the absence of a showing to the contrary, that
such application or published notice was in conflict with the exclusions made in the field
notes of the deputy mineral surveyor.
18, 19. In Waskey v. Hammer, 223 U. S. 85, the court says: Within the limits of their
authority they act in the stead of the surveyor-general and under his direction, and in that
sense are his deputies. The work which they do is the work of the government, and the
surveys which they make are its surveys.
The plat and field notes of the deputy mineral surveyor must also have the approval of the
United States surveyor-general before they are transmitted to the general land office. The fact
that the field notes of a group patent contain exclusions of the conflict area between the
respective claims of the group in favor of certain claims, which exclusions may have been
made, and we presume are usually made, at the suggestion of the applicant for the patent,
cannot, we think, properly be said to be the mere self-serving declarations of the applicant.
No matter at whose suggestion made, when the exclusions are embodied in the field notes of
the deputy mineral surveyor and are approved by the surveyor-general, they are the exclusions
made by the officials of the government, upon whom the duty is imposed of making the same,
and when patent issues and therein refers to such field notes the exclusions therein mentioned
become the exclusions of the government itself.
20. As said by the Supreme Court of the United States in the Lawson case, supra: It is to
be assumed that the patents were issued * * * upon the surveys made under the direction of
the United States surveyor-general.
21, 22. It is well settled that a reference in a patent to the official plat and surveys makes
such plat and the field notes of such survey a part of the description of the land granted, as
fully as if they were incorporated at length in the patents. (Foss v. Johnson, 158 Cal. 119,
110 Pac. 294; Cragen v. Powell, 128 U. S. 691; Chesapeake R. Co. v. Washington R. Co.,
199 U. S. 247; Alexander v. Lively, 17 Am.

R. Co. v. Washington R. Co., 199 U. S. 247; Alexander v. Lively, 17 Am. Dec. 50; Steele v.
Taylor, 13 Am. Dec. 151.)
The plat and field notes referred to in patents have been referred to frequently by the courts
to determine matters of boundary. The question of a reference to the field notes for the
purpose of construing a patent to a group of mining locations has not heretofore been resorted
to so far as we are advised. We can see no reason why such references may not be made. The
real boundaries of the several conflicting locations may be determined only by a knowledge
of the exclusions of the territory in conflict between them.
In the case of Richmond and Other Lode Claims, 34 L. D. 554, Secretary Hitchcock said:
It is carefully provided by those statutes that of each application for mineral patent notice
shall be published and posted, whereby all others who may have or claim adverse interest
may be warned and afforded opportunity to assert their claims in season. In other words,
precisely what is sought to be secured by the application must be disclosed by the published
notice, the notice posted in the local office, and the notice posted upon the claim. Upon these
several elements or parts of the prescribed notice, and each of them, all others who may have
or claim conflicting interests have a full right to rely; and any recital therein of exclusion of
conflict as effectually eliminates the conflict area as if the exception and exclusion were in
terms declared in the application for patent. It is true that the data contained in the field notes,
illustrated by the official plat, constitute the official and controlling advice of the locus and
extent of the claim or claims for which patent is sought.
23-26. It is contended on the part of respondent that the field notes disclose upon their face
the invalidity of the Los Gazabo claim, for the reason that it appears therefrom that the
Sunnysides Nos. 1, 2, and 3 were prior locations to the Los Gazabo. Accompanying the field
notes are copies of the several location notices and original and amended location certificates
in which it is set forth that the Sunnysides Nos. 1, 2, and 3 were located February 20, 1906,
and the Los Gazabo March 3, 1906.

located February 20, 1906, and the Los Gazabo March 3, 1906. It is conceded that if the Los
Gazabo was located upon ground covered by prior existing locations, such location would be
invalid, but it is contended that it does not follow as a matter of law that, because the notices
of location of the Sunnysides are of date prior to that of the Los Gazabo, the latter location is
void. It is well settled that the basis of location is discovery and that the mere posting of a
notice without a discovery is of no force or effect so far as rendering invalid another location
covering a portion of the same ground based upon a valid discovery. (Patchen v. Keeley, 19
Nev. 404; Gibson v. Hjul, 32 Nev. 361; Overman v. Corcoran, 15 Nev. 147; Fox v. Myers, 29
Nev. 169; Nash v. McNamara, 30 Nev. 114; Creede Mining Co. v. Tunnel Co., 196 U. S. 337;
Uinta Co. v. Creede Co., 119 Fed. 169; Nevada Oil Co. v. Home Co., 98 Fed. 678; Tuolumne
Co. v. Moier, 134 Cal. 583; Weed v. Snook, 144 Cal. 439; 39 L. D. 460; 27 Cyc. 556; Lindley
on Mines, 2d ed. vol. 1, sec. 392.)
Lindley states the law succinctly as follows:
Where such record is authorized, it is prima facie evidence only of such facts as are
required by law to be stated therein, provided they are sufficiently stated. A record of a
certificate of location which recites the citizenship of locators, the fact of discovery, and the
fact that the location had been marked upon the ground so that the boundaries could be
readily traced, is not evidence of any of these facts in any of the states or territories, for the
simple reason that no such facts are required to be stated in any of the statutory notices. * * *
While many of the states require the date of the discovery to be stated in the recorded
certificate, this would not be evidence of the fact of discovery. A discovery once proved, such
a record would, prima facie, fix the date. Discovery is the most important of all the acts
required in the proceedings culminating in a perfected location. It is the foundation of the
right without which all other acts are idle and superfluous.
27. As the validity of the Los Gazabo claim depended upon priority of discovery and as it
was incumbent upon the land department to determine all facts necessary to a
determination of such validity, it must be conclusively presumed that such question was
determined by the land department in favor of the Los Gazabo.

the land department to determine all facts necessary to a determination of such validity, it
must be conclusively presumed that such question was determined by the land department in
favor of the Los Gazabo. (Lindley on Mines, sec. 742, supra.)
28. The contention of counsel for respondent that the Los Gazabo claim cannot be
regarded as a valid location, for the reason that, if so regarded, it would appear from the plat
that the general land office had granted a patent to the Sunnysides Nos. 1 and 2 in
noncontiguous pieces of ground. This contention is without merit. We had occasion to
consider this identical question in one of the Hornsilver cases recently decided. (35 Nev.
471.) In that case we called attention to the fact that since the decision in the Del Monte case,
171 U. S. 55, the earlier decisions of the land office sustaining counsel's contention have been
overruled and that for a number of years the land office has been granting patents to
noncontiguous pieces of ground embraced in the same claim and separated by a prior
location. (See Lindley on Mines, 2d ed. sec. 663, and other authorities cited.)
29. Testimony and documentary evidence were offered upon the trial in support of the
contention of respondents that the Los Gazabo was a junior location to those of the
Sunnysides. The lower court found as a fact that the Los Gazabo was the junior location, and
in so finding laid some stress upon statements contained in the location certificates. If the
question of priority were not foreclosed by the proceedings in the land office culminating in
the patent, then the finding of the lower court as to such fact, based on conflicting evidence,
would be conclusive upon this appeal. But, as has been shown, the patent was in fact a final
judgment conclusively determining all facts necessary to support the patent. (U. S. v. N. P. R.
Co., 95 Fed. 864.)
30. Respondent had an opportunity to present this very question in an adverse proceeding
in the state courts, and a decision of the district court based on conflicting evidence would
have been binding on this court and the judgment would have been binding upon the land
office.

the land office. If, for any reason, respondent did not institute adverse proceedings, it
nevertheless could have raised the question directly in the land office by filing a protest
against the issuance of a patent to the Los Gazabo upon the ground that it was void because a
junior location. (Lindley on Mines, sec. 742, supra; Rupp v. Healey, 38 L. D. 387.) Having
failed to institute adverse proceedings or to protest in the land office against the issuance of
patent to the Los Gazabo, respondent cannot now be heard to contest a question of fact upon
which the patent is based.
That portion of the opinion of the trial court heretofore approved by this court, holding that
the validity of the Los Gazabo claim was not before the department and could not be
questioned by the Gold Leaf in that proceeding, and that there was nothing at that time to
show that the plaintiff was attempting to acquire any rights which could conflict with the
rights of the defendants (35 Nev. 418.), is clearly erroneous. A group patent, including the
Los Gazabo, was applied for; the field notes made the exclusions of conflict area in favor of
the Los Gazabo; the Los Gazabo was also in conflict with the Gold Leafnecessarily, the
validity of the Los Gazabo was before the department and it could have been questioned by
the Gold Leaf.
31. We are bound to presume, in the absence of a showing to the contrary, that the patent
issued upon due and regular application. Such application showed that the appellant was
attempting to acquire rights by virtue of the Los Gazabo location which might conflict with
any rights of respondent by virtue of its ownership of the Gold Leaf.
32. The contention of counsel for respondent that in issuing a group patent to several
mining claims, a portion of which are in conflict with each other, the land department leaves
the adjudication of priorities for the courts to determine in each instance, whenever the
question assumes importance, cannot be supported, we think, in reason. If such were the case,
there would be no object in having a rule requiring the field notes to state the conflict in
connection with the location from which the conflicting area is excluded, for, if this
contention be true, there are to be no exclusions.

in having a rule requiring the field notes to state the conflict in connection with the location
from which the conflicting area is excluded, for, if this contention be true, there are to be no
exclusions. If the question as to which location takes the conflict area is a matter to be left for
the courts to decide, then the question may be decided one way in one case and another way
in another case between different parties. If the discovery point of one location was within the
conflict area, such location might in one case be adjudged valid and in another invalid. It was
never the intention of Congress or the land department to leave questions of this kind
unsettled after the patent issued. A patent to a group of mining claims does not simply
describe the exterior boundaries of the land which is embraced by the group, but, upon the
contrary, each location is described and each embraces a separate portion of ground to the
exclusion of every other claim, the same as if a separate patent issued for each particular
location.
33. Counsel for respondent have argued that appellant is estopped to assert priority in
favor of the Los Gazabo claim because of certain allegations contained in an answer filed in a
suit instituted by the Round Mountain Great Western Company against appellant, relative to
title to certain conflicting claims involved in that action. It is contended that this answer
asserts priority of title in the Sunnyside claims as against the Los Gazabo. Conceding this to
be the effect of the pleading, it also alleges that said location (Los Gazabo) was made and
held by said C. R. Scott, L. R. Scott and Luther Morgan adversely and in hostility to the
claims of defendant as owner of said Sunnyside No. 1, Sunnyside No. 2, Sunnyside Fraction,
and Sunnyside No. 3 claims, and was located and claimed by said C. R. Scott, L. R. Scott and
Luther Morgan as being upon the open unappropriated public domain of the United States.
This pleading was filed before the issuance of the patent. Respondent was not a party to
that action, nor were its predecessors in interest shown to have been.

Respondent cannot claim estoppel by virtue of pleadings in a case in which it was in no way
interested. There is no element of estoppel here, and, besides estoppel was neither plead by
respondent nor found to exist by the court below.
34. Upon the argument of this case, one of counsel for respondent contended that the
patent to the Los Gazabo was void because procured by fraud. No element of fraud is
presented upon appeal in this case. Fraud in procuring the patent was neither alleged in the
answer nor found to exist by the court below. There is no intimation of the existence of fraud
to be found in the findings or in the opinion of the trial court. (Gruber, v. Baker, 20 Nev. 453,
476.) There does not appear to be any element of fraud involved in this case. (King v.
McAndrews, 111 Fed.860, 864; Gonzoles v. French, 164 U. S. 338.)
For the reasons given, it is our conclusion that the court below erred in holding the patent
to the Los Gazabo claim to be void, and in excluding from evidence the field notes of the
deputy mineral surveyor.
The judgment and order appealed from are reversed, and the cause remanded for a new
trial.
McCarran, J.: I concur.
I concur in the order and various sound, well-established legal propositions stated in the
foregoing decision as written by our distinguished associate, Justice Norcross. But, in my
opinion, other legal principles should be considered and applied as reasons for remanding the
case for a new trial, and as a basis for the final adjudication of the rights of the parties. Owing
to press of other matters, we were unable to give the cause the careful consideration it
deserved at the time it was originally argued and first submitted to us.
Although the refusal of the district court to admit the field notes as part of the patent for
the purpose of having them considered in reference to the description was technical error,
because they should be considered as at least a descriptive part of the patent, such error
would not be ground for reversal unless prejudicial to the appellant or unless a new trial
might result in benefit to him.

technical error, because they should be considered as at least a descriptive part of the patent,
such error would not be ground for reversal unless prejudicial to the appellant or unless a new
trial might result in benefit to him.
The question involved being whether the Los Gazabo has extralateral rights which would
take the rich ore in dispute which lies beyond its boundaries, and which is not located within
planes drawn through the end lines of the Sunnysides, the burden is upon the plaintiff to show
that under the patent it has a prior right under the Los Gazabo location to the ground within
the boundaries of that claim which conflicts with the Sunnysides, and which conflict covers
all of the Los Gazabo excepting a small fraction of an acre.
As the patent itself describes the lapping ground first as being within the boundaries of the
Sunnysides and later as being within the Los Gazabo, if the field notes are not considered it
might be claimed that, as the lapping ground is first described as being within the Sunnysides,
it was intended to be patented to them.
Differently from the patent, the field notes give the area in conflict to the Los Gazabo, and
by its notice of location accompanying the field notes it appears that it was located
subsequently to the Sunnysides, from which conceded fact, if any inference can be drawn in
the absence of other controlling facts, it would be against the priority of the Los Gazabo, or
certainly not in its favor. Notwithstanding that, under the notices of location accompanying
the field notes, and the proofs and concessions of the parties, the Los Gazabo was the later
location, it is said that the exclusions in the field notes in favor of the Los Gazabo can be
sustained on the theory that it had the prior discovery.
Consequently, as far as shown by the record, the only thread on which the plaintiff can
claim a recovery is the fact that in the field notes the deputy mineral surveyor excluded the
conflicting ground from the Sunnysides in favor of the Los Gazabo. Such exclusion is in the
nature of a conclusion of law, and no fact is shown to support it.

of a conclusion of law, and no fact is shown to support it. If such an exclusion can be
supported at all, without facts shown to support or overthrow it, it must be on the
presumption that in the application and published notice of application for patent priority was
claimed in the Los Gazabo.
If such exclusion is contrary to facts shown, as, for instance, if the field notes or return of
the deputy mineral surveyor had shown that the discovery on the Los Gazabo was subsequent
to the discoveries on the Sunnysides, his exclusion in the field notes of the conflicting area in
favor of the Los Gazabo should be treated as a mistake and ignored, as such errors apparent
on the record usually are, and the ground in conflict should be considered as awarded to the
Sunnysides by the patent, which would prevent the recovery sought by the plaintiff under its
claim of extralateral rights for the Los Gazabo.
Before patent a claimant may shift his lines or float his location on the public domain if he
does not interfere with the rights of others. The question of priority of location or discovery,
or whether the Los Gazabo was located on the Sunnysides, and not on vacant ground, and
was not a valid location before it was patented, may be regarded as immaterial, for the rights
of the plaintiff are controlled by the patent, and any priority conveyed by the patent as far as it
is supported by the application and notice of application for patent, regardless of any
invalidity of the location prior to patent.
Regardless of any question of priority of discovery, and if it were admitted that there had
been prior discoveries on the Sunnysides, if the plaintiff in the application and notice of
application for the patent claimed priority for the Los Gazabo, and in the absence of protest or
adverse proceedings the patent issued accordingly, the plaintiff has become entitled to priority
in the Los Gazabo, and the defendant is estopped from denying any extralateral rights which
have attached by reason of the grant of such priority.
The grant by the patent is in the nature of an adverse judgment, and the land office, the
same as any tribunal, is without power to grant more than is within the issues or than is
claimed by the allegations in the application or in the published notice, which is in the
nature of a summons.

is without power to grant more than is within the issues or than is claimed by the allegations
in the application or in the published notice, which is in the nature of a summons. Hence, if
the field notes are admitted in evidence upon a new trial, they will not be conclusive of any
priority in favor of the Los Gazabo, if the application and notice of application for patent
claim for the Sunnysides priority of location over the conflicting ground, for the land office is
not authorized to convey by patent a priority not claimed by the application and notice and
concerning which the defendant or others had no opportunity to protest.
Valuable rights should not be lost or controlled by the mere exclusion in the field notes or
plat by a deputy mineral surveyor of ground within the boundaries of the prior location if the
facts as shown by the application and notice of application for patent do not support or
warrant such exclusion. Consequently, the case should be remanded for a new trial in order
that the field notes, which the court refused to admit on the former trial, may be introduced in
evidence, with the privilege of having the application and notice of application for patent
admitted with the field notes, if either party desires.
The contention that appellant is estopped from claiming priority for the Los Gazabo for the
ground in conflict because respondent in controversy with other parties claimed priority in the
Sunnysides for this ground cannot be sustained as an estoppel by record. Respondent is not
claiming rights acquired under parties to that contention, and inconsistent defenses or claims
may be set up in the same answer or pleading. Facts constituting an estoppel in pais, such as
that the respondent, while relying upon the claim by appellant that the priority of the ground
in conflict rested in the Sunnysides, expended money in prospecting and opening rich ore at a
point beyond the reach of the extralateral rights of the Sunnysides, but which is now claimed
to belong to the Los Gazabo, are not alleged or proved.
____________
36 Nev. 568, 568 (1913) Heywood v. Nye County
[No. 2067]
H. D. HEYWOOD, Respondent, v. NYE COUNTY,
Appellant.
1. Statutory ConstructionJustices of the PeaceSalary.
Under the provisions of an act of the legislature fixing the salary of the justices of the peace of certain
townships at not to exceed $1,800 per year, the salary is not fixed at such maximum sum, and the justice
is not entitled to such maximum salary unless the same is fixed by some board or power authorized by law.
2. Boards of County Commissioners, Powers Of.
Whether boards of county commissioners may exercise powers not expressly granted, but which may be
implied for the language of a state, discussed, but not determined.
Courts have no authority to eliminate language used in a statute or to change its obvious meaning, but are
bound to give effect, where possible, to all the language used.
A statute should be so construed, if possible, as to give it effect rather than to nullify it.
Appeal from the Fifth Judicial District Court, Nye County; L. N. French, Judge, presiding.
Action by H. D. Heywood against Nye County. From a judgment for the plaintiff, Nye
County appealed. Reversed.
T. K. Chambers, J. K. Chambers, and F. K. Pittman, for Respondent.
J. A. Sanders, District Attorney, for Appellant.
Respondent brought this action to recover $675, claimed to be due him as a balance of
salary as justice of the peace of Manhattan Township. He was elected in 1908, and held that
office during the years 1909 and 1910. At the general election in 1908 more than 200 and less
than 1,000 votes were cast in that township. Section 10 of An act fixing the compensation of
county and township officers in Nye County, State of Nevada, and matters pertaining to the
collection and disposition of fees arising from such offices, and regulating the conduct
thereof, and to repeal all acts or parts of acts conflicting therewith," approved March 24,
1909, which did not take effect until January 1, 1910, provides that in "townships polling
more than 200 and less than 1,000 votes at the last general election, the justice of the
peace shall receive as full compensation for all services rendered as such justice of the
peace a salary not to exceed $1,S00 per year."
and to repeal all acts or parts of acts conflicting therewith, approved March 24, 1909, which
did not take effect until January 1, 1910, provides that in townships polling more than 200
and less than 1,000 votes at the last general election, the justice of the peace shall receive as
full compensation for all services rendered as such justice of the peace a salary not to exceed
$1,800 per year. The same section provided that the justice of the peace in townships polling
less than 200 votes at the last general election should receive as full compensation the fees
provided by the act of February 27, 1893, and that in townships polling more than 1,000 votes
the justice of the peace shall receive as full compensation a salary note to exceed $2,400 per
year.
It is alleged in the complaint that under the act of 1909, heretofore mentioned, the plaintiff
was entitled to a compensation of $150 per month for services rendered as justice of the peace
of Manhattan Township during the year 1910. On the 7th day of February of that year the
board of county commissioners of Nye County, by a motion unanimously passed, entered an
order relating to the salaries of justices of the peace and constables in different precincts,
which specified that the salary of the justice of the peace at Manhattan should be $100 per
month, and on the 7th day of October, 1910, it was further ordered by the board that the
compensation of the justices of the peace of Rhyolite, Round Mountain, and Manhattan be
reduced to $75 per month on and after October 1, 1910. Following the entry of these orders
the plaintiff collected from the county for the remainder of the year 1910 the reduced amounts
designated by the orders. On February 8, 1911, he commenced this action to recover the
difference between $150 per month and the amount he had collected as specified in these
orders of the board. The appeal is from an order overruling the demurrer to the amended
complaint, and from the judgment entered upon the failure of the county to file an answer.
It is urged, among other things, that the act did not authorize the board of county
commissioners to make the orders reducing the respondent's salary.
orders reducing the respondent's salary. We are referred to dicta in former decisions of this
court pronouncing that boards of county commissioners have no power except such as is
expressly conferred upon them by law, in which case no question was involved as to whether
the general rule that the courts will give effect to the evident intention of the legislature when
the language is not clear, would not apply to an act relating to the powers of the board of
county commissioners the same as to any other statute.
We need not determine whether the word expressly, used by this court in such cases as
Waitz v. Ormsby County, 1 Nev. 370, and Lyon County v. Ross, 24 Nev. 102, means more
than that it must clearly appear that it was the intention of the legislature to confer the power
upon the board.
Of the numerous propositions presented and argued, it is necessary to consider only one.
Such closely allied questions as whether under the rule that the whole act may be considered
in order to determine the intention of the legislature, and whether in view of the various
provisions of the statute authorizing the board to allow the appointment of different deputy
county officers and fix their salaries, it is not apparent that it was the intention of the act that
the board of county commissioners should fix the salaries of justices of the peace as well as
of the deputies, and consequently that this power is conferred upon the board by the act, we
need not determine.
If respondent's contention that the board has no power except such as is expressly
conferred upon it by statute, and was not authorized to make the orders in relation to
respondent's salary, be conceded, it would still be necessary to have some clear provision of
law authorizing the payment by the county to the respondent of $1,800 per year, or $150 per
month, before the county officers would be authorized to allow or pay the claim for salary at
that rate, and before the plaintiff can recover. As we held recently, the provision in the statute
that an officer shall receive a salary not exceeding a specified maximum amount, does not
authorize the payment of the maximum amount to him unless his compensation has been
fixed.
amount to him unless his compensation has been fixed. (State, ex rel. Mighels, v. Eggers, 36
Nev. 364, ante.)
The words in the act of the legislature upon which respondent relies, that the justice of
the peace shall receive as full compensation for all services rendered * * * a salary not to
exceed $1,800 per year, do not say or mean that he shall receive $1,800 per year, unless the
amount has been fixed by some duly authorized board or power. To hold that this language
authorized the payment of a salary of $1,800 per year would be equivalent to a judicial
amendment of the statute by the elimination of the words not to exceed and the substitution
of the word of therefor; so that the statute would read that he shall receive as full
compensation for all services rendered a salary of $1,800 per year, instead of one not to
exceed that amount.
If the legislature had intended to fix the salary at $1,800 per year, they would have omitted
the words not to exceed. The court has no authority to eliminate them or to change their
obvious meaning. The rule is well settled that effect should be given to all the language of a
legislative act. (Torreyson v. Board of Examiners, 7 Nev. 19; Roney v. Buckland, 4 Nev.45;
Corbett v. Bradley, 7 Nev. 106.)
The statute must be understood to mean what it has explicitly expressed. (Odd Fellows Bank
v. Quillen, 11 Nev. 109.)
It is an elementary rule of construction that if it is possible effect must be given to every word
of an act. (State v. Ruhe, 24 Nev. 251; Ex Parte Prosole, 32 Nev. 378.)
Courts construe the language of a statute so as to give it effect rather than to nullify it. (State
v. Martin, 31 Nev. 493.)
The words not to exceed $1,800 per year in the statute have no different meaning or force
in regard to plaintiff's salary than they would have if they were preceded by the words not
less than $50 per month and were followed by the words to be fixed by the board of county
commissioners. With such additional words the language "not to exceed $1,S00 per year"
would clearly indicate that the salary should be fixed by the board at any amount not to
exceed $1,S00 per year, with the further condition that it should not be less than $50 per
month.
language not to exceed $1,800 per year would clearly indicate that the salary should be
fixed by the board at any amount not to exceed $1,800 per year, with the further condition
that it should not be less than $50 per month.
If the act had specified that the justice of the peace should receive a salary of not less than
$100 per year, and not to exceed $1,800 per year, it could be argued with as much force on
behalf of the county that the salary was fixed at the minimum of $100 per year as it can be
now on the part of the respondent that it is fixed at $1,800 per year.
As the legislature did not fix the amount of the salary in the act itself, it was not fixed so
that the respondent was entitled to draw or recover any salary, unless it is apparent from the
consideration of the whole act that the board of county commissioners were authorized to fix
it. If the board were so authorized, the respondent has received from the county all they
allowed and all to which he is entitled. If the board were not empowered to fix the salary
within the maximum named, then respondent was not authorized to draw any amount before
the fixing of his salary under some subsequent remedial act of the legislature.
The order and judgment of the district court are reversed.
____________
36 Nev. 573, 573 (1913) Byran v. City of Sparks
[No. 2018]
F. R. BYRAN, Respondent, v. CITY OF SPARKS,
Appellant.
1. LicensesMunicipal OrdinancesRetailer.
Under a city ordinance providing that Every person engaged in the business of selling at retail, or any
manner other than at a fixed place of business within the city, any goods, wares, or merchandise shall
obtain a quarterly license and shall pay therefor $15 per quarter, a person owning a place of business
outside the city limits where he manufactured and compounded certain articles used in the grocery trade,
and, acting as his own salesman, solicited orders in the city and sold to restaurants, hotels, bakeries, and
confectioners other kinds of groceries than manufactured and compounded by him, in both small and large
quantities and in broken and unbroken packages, and filled orders given to him by such customers, is a
retailer and liable for the license mentioned in the ordinance and is not exempt therefrom under the
provisions of Rev. Laws, sec. 3879, exempting drummers and traveling salesmen representing a factory or
store located in this state.
2. LicensesInterstate CommerceTraveling Salesmen.
Drummers and traveling salesmen representing mercantile houses in other states are exempt from license
within this state under the provisions of the federal constitution relative to interstate commerce, and the
purpose of Rev. Laws, sec. 3879, was to place drummers and salesmen representing mercantile houses
within the state upon the same equality.
3. LicensesRetailer Defined.
A person who, in addition to other lines of business, purchases and sells groceries in small quantities and
broken packages, differently from wholesalers, is a retailer, and is required to pay a license as such.
Appeal from the Second Judicial District Court, Washoe County; T. F. Moran, Judge.
Action by F. R. Byran against the City of Sparks, to recover amount of license paid under
protest. From a judgment for plaintiff, the City of Sparks appeals. Reversed.
W. L. Hacker, City Attorney, and Lewers & Henderson, for Appellant.
James Glinn, for Respondent.
Respondent brought this action to recover nine quarterly license payments made by him to
the city of Sparks, which he alleges were made under protest. He obtained judgment in the
district court, and from an order denying a motion for a new trial the city has appealed.
Respondent owned a place of business just outside the city of Sparks, and there
manufactured and compounded spices, extracts, vinegar, and other articles used in the grocery
trade. Also, acting as his own salesman, he solicited orders in Sparks, and bought and sold to
restaurants, hotels, bakeries and confectioners other kinds of groceries, such as coffee, tea,
rice, sugar, cheese, bacon, eggs and olive oil. These sales were made in small and large
quantities, and in broken and unbroken packages, and it does not appear to be disputed that he
filled any order given him by these customers, no matter how small the quantity.
During the time that he carried on the business and paid the license, the following
ordinance was in force in the city of Sparks: Every person, firm, association or corporation
(other than itinerant vendors), engaged in the business or occupation of selling or disposing of
at retail, for a commission or otherwise, or in any manner other than at a fixed place of
business in the city of Sparks, any goods, wares, merchandise, jewelry, dry goods, meats,
cigars, tobacco, fruit, vegetables or any products of the farm (except as hereinafter provided),
shall first obtain a quarterly license from said city to carry on such business or occupation,
and shall pay therefor fifteen dollars per quarter.
Before he began paying a license, he appeared before the city council and protested against
being required to pay, claiming that he was exempt under the following provisions of the act
of March 29, 1907:
Section 1. On and after the first day of April, 1907, it shall be unlawful for any county,
city or town to impose or collect any license or tax upon or from any drummer or traveling
salesman employed by, and selling the goods of, any manufacturer, compounder,
wholesaler or jobber whose factory or store is located in Nevada.
the goods of, any manufacturer, compounder, wholesaler or jobber whose factory or store is
located in Nevada.
Sec. 2. The provisions of section one of ths act shall not apply to peddlers or hucksters.
(Rev. Laws, 3879, 3880.)
It was the contention of respondent that he was the traveling salesman for himself, a
manufacturer, compounder, wholesaler and jobber. The city claimed that he was also a
retailer, because he sold his goods direct to consumers, in broken packages, and that
consequently he must pay the license.
Evidently the statute quoted was passed for the purpose of exempting from payment of
license traveling salesmen employed by and selling the goods of manufacturers,
compounders, wholesalers or jobbers having factories or stores in this state, so that they
might be exempted in common with the traveling salesmen of manufacturers and wholesalers
in other states who, as held at different times by this court and the Supreme Court of the
United States, cannot be taxed by the state, owing to the provision of the federal constitution
conferring upon Congress the regulation of interstate commerce. (Ex parte Rosenblatt, 19
Nev. 439, 3 Am. St. Rep. 901; Ex Parte Taylor and Rounds, 35 Nev. 504; Norfolk Ry. Co. v.
Sims, 191 U. S. 441, 24 Sup. Ct. 151, 48 L. Ed. 254; State v. Bayer, 34 Utah, 257, 97 Pac.
129, 19 L. R. A. n.s. 297.)
Conceding that the respondent was entitled to the exemption from the payment of the
license which pertains to resident and nonresident manufacturers, compounders, wholesalers
and jobbers, it is apparent that in addition to these lines of business, by purchasing groceries
and selling them in small quantities and broken packages, differently from wholesalers, he
acted as a retailer, and as such was required to pay the license, the same as other retailers.
In McArthur v. Georgia, 69 Ga. 446, the court said: Bouvier defines the meaning of the
word retail to be to sell in small parcels and not in gross. And it is so defined by Worcester,
Webster, and others who have given their time and study to the meaning of words.
by Worcester, Webster, and others who have given their time and study to the meaning of
words. Under our law, words are to be given their usual and ordinary signification; to retail,
then, is to sell in small quantities or parcels.
Other decisions adhere to this definition. (Bridges v. State, 37 Ark. 226; Harris v. Council,
28 Ala. 579; Koenig v. State, 33 Tex. Crim. 367.)
In Campbell v. City, 40 Kan. 654, 20 Pac. 493, the court said: A merchant' is defined to
be one who traffics or carries on trade; one who buys goods to sell again; one who is
engaged in the purchase and sale of goods.' A retailer' is defined to be one who sells goods
by small quantities or parcels.' Goods,' as used in this definition, include wares,
commodities, and chattels. We have no doubt but that a lumber dealer is included in the
ordinary signification of both a merchant and retailer.
In Markle v. Akron, 14 Ohio, 591, it is said: But to retail, is to dispose of, in small
quantities. * * * It may be a distribution of a whole into parcels.
Cyc., vol. 34, p. 1685, defines retailer as: One who sells goods by small quantities or
parcels, one who deals in merchandise in smaller quantities than he buys, generally with a
view to profit.
In State v. Lowenhaught, 11 Tenn. 15, the court said: We take it, what is meant by
retailing is selling by small quantities, to suit customers, articles which are bought in larger
amounts generally. Now one who sells in this way, or whose business is so to sell, is a retail
dealer; one who sells by the nature of his business in gross, and not by the small quantity or
parcel to consumers, is a wholesaler dealer. While these definitions may not include all the
elements in detail of either character of dealer, they go far enough for the decision of this
case.
In State v. Hawkins, 91 N. C. 626, the court said: To retail means, generally, to sell by
small quantities, in broken parts, in small lots or parcels, not in bulk. There is nothing in the
statute that goes to show this term is used in any restricted or limited sense, or that it does
not imply any retailing, either rightful or wrongful."
used in any restricted or limited sense, or that it does not imply any retailing, either rightful or
wrongful.
In Osborn v. Holmes, 9 Pa. 333, defendant was engaged in the manufacture and sale of
hats and caps, and also sold articles of domestic manufacture in an amount less than one
thousand dollars per year. He was held to be liable for the payment of the license required for
selling articles in an amount less than that sum.
As it would make no difference in the result of the action, it is unnecessary to determine
whether, under the facts shown, the license was in law paid under protest, a question
regarding which extended consideration has been given in the briefs.
The judgment of the district court is reversed.
____________
36 Nev. 577, 577 (1913) State v. Langan
[No. 2052]
STATE OF NEVADA, Ex Rel. J. ANDREW GUTTERY, Petitioner, v. FRANK P.
LANGAN, Judge of the District Court of the State of Nevada, in and for the County of Lyon,
Respondent.
1. Justice of the PeaceDistrict CourtJurisdictionPleading.
A complaint in a justice's court alleging, in effect, that defendant undertook the collection of a lien on
certain mining property for one S. and thereafter recovered the full amount of the lien claim; that after suit
was instituted, but prior to judgment, S. assigned to plaintiff all interest in said lien claim subject to the
payment of costs and expenses of collection; that, after paying such costs and expenses, defendant had
remaining in his possession $154.55; that plaintiff was the owner of said lien and entitled to an accounting
from defendant of the amount realized; that defendant owes plaintiff $154.55 and demands judgment
therefor, states a cause of action sufficiently to invest the justice's court with jurisdiction to try the action
originally and the district court to try the same de novo on appeal.
2. Justice of the PeacePleadings.
The same technical pleadings are not required in a civil action in the justice's court as is required in a
criminal complaint, or in pleadings in the district courts.
3. LiensAssignmentRecordNotice.
The filing with the county recorder of an assignment of a lien is constructive notice to all parties
interested in such assignment.
4. Estates of DecedentsMistake.
Where money is deposited with a county clerk under the mistaken belief that it belongs to the estate of a
decedent, upon whose estate no application for administration has been made, such money remains subject
to the control of the person making the deposit, and may be withdrawn by him.
Original proceeding in certiorari. J. Andrew Guttery instituted proceeding in certiorari to
review a judgment of the District Court of the First Judicial District, in and for Lyon County,
on appeal from a justice's court and to have the same annulled, as in excess of jurisdiction.
Writ denied.
J. Andrew Guttery, for Petitioner.
H. K. Pilkington, for Respondent.
Petitioner applies for a writ of certiorari to review the action of the district court, which he
claims was without jurisdiction to try and to render judgment against him under the following
conditions:
On the 16th day of February, 1909, petitioner, as an attorney at law, brought an action in
the district court of Douglas County for one Harry Simpson, plaintiff, against the Buckskin
Gold Nugget Mining Company, a corporation, defendant, to foreclose a mechanic's lien
amounting to $374 for wages on mining claims situated in Douglas County. Pending this
action, Simpson became afflicted with a fatal illness, and, being apprehensive of death, had
the bills against him presented, including bills mentioned in the petition, and one for $150
owing petitioner for legal services, and signed an indorsement acknowledging that he owed
them, and requesting that they be paid out of any property which he possessed, which
indorsement was witnessed by Theodore H. Trankle. Simpson authorized the petitioner to
retain the $150 out of any moneys that he might recover in the suit pending against the
Buckskin Gold Nugget Mining Company.
of any moneys that he might recover in the suit pending against the Buckskin Gold Nugget
Mining Company.
While the action was pending, and on the 17th day of June, 1910, before judgment was
obtained, Simpson made an assignment of his claim and lien for the wages hereinbefore
mentioned to Trankle, who filed this assignment for record with the county recorder at Genoa
on June 9, 1910, but did not otherwise notify the company that he was the assignee of the
claim and lien. Trankle was not substituted and did not request to be substituted in the action.
Simpson died on July 6, 1910, and on the 14th of that month, after publication of notice to
lien claimants, petitioner, purporting to act as attorney for Simpson, obtained a decree of the
district court in the name of Harry Simpson against the Buckskin Gold Nugget Mining
Company for the sum of $350 and costs. Trankle did not appear in court, or under his
assignment or otherwise except to these proceedings.
After publication of notice of sale, and on the 29th day of July, 1910, the sheriff on the
advice of petitioner, purporting to act for Simpson, accepted from J. A. Knox $425 for release
and satisfaction of the judgment of decree for foreclosing the lien against the Buckskin Gold
Nugget Mining Company. On August 5 following, a purported satisfaction and discharge of
the lien and judgment was entered. From the amount so collected, and after making
deductions for fees of the sheriff and clerk and for publication of notice, the sheriff sent the
petitioner $357.05. After deducting costs, including fee of $150 for the petitioner, he sent to
the clerk, with direction to credit to Harry Simpson, deceased, subject to the order of the
district court of Douglas County, the balance of $154.55, which was deposited with the clerk
on the 26th day of August, 1910, and has since remained with him, and which has been the
bone of contention.
It is alleged that Trankle did not make known to petitioner the assignment of Simpson's
claim or lien until after the judgment and decree had been obtained, and that, before bringing
suit against petitioner, Trankle knew that the $154.55 had been so deposited with the
clerk, subject to the order of the district court of Douglas County, on the 26th day of
August.
knew that the $154.55 had been so deposited with the clerk, subject to the order of the district
court of Douglas County, on the 26th day of August. On December 1, 1910, Trankle
commenced an action in the justice's court in Mason Valley township, Lyon County, against
petitioner to recover that sum, and in the complaint alleged that petitioner: Undertook the
collection on behalf of one certain Harry Simpson of a mining lien against the Buckskin Gold
Nugget Mining Company for $408, and on or about the 12th day of July, 1910, defendant as
attorney for said lien received into his hands the sum of $357.05, and, after deducting from
said amount all his claims for fees and expenses, he was accountable to the owner thereof for
$154.55. That on or about the 7th day of June, 1910, plaintiff for a good and valuable
consideration purchased of Harry Simpson the said lien of $408 against the Buckskin Gold
Nugget Mining Company, and ever since the said 7th day of June, 1910, plaintiff has been the
owner of said lien and entitled to an accounting from said defendant of the amount realized,
* * * and defendant, though often importuned, refuses and fails to pay said amount, and
defendant owes $154.55 at this day to plaintiff.
After trial, and on December 22, 1910, judgment was rendered in the justice's court in
favor of Trankle and against the petitioner for $154.55 and attorney's fees and costs, and after
appeal and trial in the district court this judgment of the justice's court was affirmed on the
18th day of November, 1912.
Petitioner contends that in entering judgment against him the justice's court and the district
court on appeal had no jurisdiction over the money and property of a deceased person, in
that the matters stated in such complaint are not such allegations as to establish a contract
between the said plaintiff, Theodore H. Trankle, and the defendant, J. Andrew Guttery, for
the payment of money, in that said complaint contains no allegation establishing any contract
between the said plaintiff and the said defendant, and in that the complaint, even if it
establishes a trust relation between the said plaintiff and the said defendant, said justice's
court had no jurisdiction over trust relations."
said defendant, said justice's court had no jurisdiction over trust relations. It is urged that the
justice of the peace cannot adjudicate claims against the estates of deceased persons; that such
claims cannot be reached by attachment or execution before distribution; that sufficient facts
did not exist on which an action against the petitioner could be predicated; that petitioner did
not have in his possession or control the $154.55 at the time the suit was brought, and that he
never promised to pay that sum to Trankle; that, by failure to give notice of his assignment to
petitioner and to the Buckskin Gold Nugget Mining Company, Trankle lost any right under
the assignment; that, if the Simpson judgment was void because obtained after his death, the
justice's court had no jurisdiction over moneys obtained under a void judgment, and that for
these reasons the district court had no jurisdiction on appeal.
It is further claimed that the justice's court by assuming jurisdiction in the first instance,
and the district court assuming jurisdiction on the appeal, have subjected the petitioner to an
expensive suit which is wholly unwarranted in law, and forced him to defend the action and
resist the execution of judgment, or accept the alternative of being liable in double the
amount in controversy to the estate of Harry Simpson, deceased, under section 95 of the
probate act.
Petitioner alleges that he has exhausted his right of appeal, and that the judgment will be
carried into effect unless reviewed by this court.
In reference to the contention that the complaint in the justice's court does not state facts
sufficient to constitute a cause of action, it is said that certain statements in that complaint,
such as that he was accountable to the owners, and ever since the 7th day of June, 1910,
plaintiff has been the owner of said lien, and entitled to an accounting from defendant of
the amount released, are conclusions of law. This may be conceded, and still the complaint,
taken as a whole, is sufficient. The allegation that the defendant in that action, who is the
petitioner here, undertook the collection of the mining lien of Harry Simpson against the
Buckskin Gold Nugget Mining Company for $40S, and that on this lien petitioner received
into his own hands the sum of $357, and that after deducting fees and expenses he was
accountable to the owner thereof for $154, and that Trankle, the plaintiff in the action in
the justice's court, for a valuable consideration purchased of Harry Simpson the lien of
$40S against that company, states sufficient facts to support the conclusions of the
justice and district courts that Trankle, as the plaintiff in that action, has ever since been
the owner of the lien, and that $154.55 is due him from the petitioner.
mining lien of Harry Simpson against the Buckskin Gold Nugget Mining Company for $408,
and that on this lien petitioner received into his own hands the sum of $357, and that after
deducting fees and expenses he was accountable to the owner thereof for $154, and that
Trankle, the plaintiff in the action in the justice's court, for a valuable consideration
purchased of Harry Simpson the lien of $408 against that company, states sufficient facts to
support the conclusions of the justice and district courts that Trankle, as the plaintiff in that
action, has ever since been the owner of the lien, and that $154.55 is due him from the
petitioner.
The same technical pleadings are not required in a civil action in the justice's court that are
necessary in a criminal proceeding which may deprive one of his liberty, or in a case
originating in the district court. In either court meager allegations showing the issue may
support a pleading attacked after judgment which might be deemed insufficient before.
Allegations in the nature of conclusions of law are generally sufficient in some forms of
action, such as statements merely asserting ownership or possession of property in ejectment
and replevin, or that a specified sum is owing upon an account for articles sold and delivered.
It is not intended that the pleadings in civil action in justice's courts, in which any person
unskilled in the law may appear as attorney, shall be difficult. They may be direct and simple.
Our former civil practice act provided for the commencement of actions in justices' courts by
filing a copy of the account, note, bill or instrument upon which the action was brought, or a
concise statement in writing of the cause of action, and the issuance of a summons thereon, or
by the voluntary appearance and pleadings of the parties.
The new code provides that the pleadings in justices' courts are not required to be in any
particular form, but must be such as to enable a person of common understanding to know
what is intended. With the exception of the complaint, they may be oral or in writing.
of the complaint, they may be oral or in writing. The purpose of the revised code is not to
make the requirements for the administration of justice more stringent or difficult, but more
certain, definite, and simple. We have been referred to cases in courts of record in which
statements in complaints in the nature of conclusions of law, attacked before judgment was
rendered, were held insufficient to state facts constituting a cause of action. Differently from
provisions relating to justices' courts, both the new and the old codes provide that in an action
commenced in the district court the complaint shall contain a statement of the facts
constituting the cause of action, in ordinary and concise language.
The complaint filed in the justice's court against the petitioner contains statements which
would indicate to persons of ordinary understanding that it was sought to recover, after
payment of costs, the balance of the money paid by the Buckskin Gold Nugget Mining
Company to the petitioner on the claim of lien of Harry Simpson against the company which
had been assigned by him to Trankle.
Under the constitution and statute the justice's court is the only one having jurisdiction to
try and the power to hear and determine demands or controversies regarding simply the
recovery of money where the amount involved does not exceed $300, and the district court is
the only one having appellate jurisdiction of such controversies. The action of Trankle against
the petitioner being simply for the recovery of money in an amount less than $300, it could be
brought only in the justice's court.
Evidently the petitioner made a mistake by treating the lien as a claim belonging to the
estate of a deceased person. Under the assignment made by Simpson the lien passed to
Trankle instead of remaining the property of Simpson or becoming a part of his estate.
Whether Simpson lived or died, Trankle could collect the claim secured by the lien without
making Simpson or his administrator a party.
administrator a party. As assignee, the same as the endorsee of ordinary commercial paper,
Trankle had the right to be substituted as plaintiff and maintain in his own name the suit
against the Buckskin Gold Nugget Mining Company to foreclose the lien or recover the
money, the same as the endorsee of a note or the transferee of a mortgage or other instrument.
If the owner of property executes a mortgage and later sells the property, the holder of the
mortgage, if willing to rely on the property for the satisfaction of the debt, may bring an
action against the grantee to foreclose, and have the property sold in satisfaction of the
mortgage without making the original owner a party.
If it be conceded that at the time the Buckskin Gold Nugget Mining Company paid the
money to petitioner both were unaware that Simpson had made an assignment of the lien; that
the money was paid with the expectation that petitioner would pay it to Simpson; that there
was no agreement for paying it otherwise, and that petitioner paid it to the county clerk as ex
officio clerk of the district court under the belief that the money belonged to the estate of
Harry Simpson, deceased, nevertheless, from the undisputed facts as they appear in this
proceeding, and from the complaint in the justice's court, Simpson had made the assignment
transferring the claim and lien to Trankle, and the record of the assignment was constructive
notice to petitioner and the company at the time the money was paid by the company, and the
money, being paid on the claim and lien, in law belonged to Trankle as the assignee of the
claim, and as such assignee he was entitled to recover it. If petitioner had paid the money to
Simpson, or to any one who had been entitled to receive it, before there was notice of the
assignment, the law would not require him to pay it a second time. The act relating to
conveyances provides that every instrument in writing setting forth an agreement to convey
any real estate or whereby any real estate may be affected, * * * acknowledged, certified and
recorded, shall from the time of filing with the recorder for record impart notice to all
persons of the contents."
time of filing with the recorder for record impart notice to all persons of the contents.
It does not appear that any special or general administrator or executor was appointed, nor
that any application for administration on the estate of Harry Simpson, deceased, was made.
There being no statute providing for the payment of the money to the clerk, and no court
order regarding it, any payment to him by the petitioner under the mistaken belief that the
money belonged to the estate of Harry Simpson, deceased, was not authorized by law, and the
amount remains subject to the control of the petitioner, because he is responsible for its
payment to Trankle under the judgment which the justice's court had jurisdiction to render.
If under any contention in the case it could be held that the assignment did not transfer the
lien and right of action to Trankle, and that the claim continued to belong to Simpson,
differently than in the case of an action upon a claim against an estate, which cannot be
maintained until after the presentation to and rejection by an administrator or district judge,
the justice's court would have had jurisdiction, if an action had been brought by him or his
administrator to recover the sum mentioned, to which Trankle became entitled under the
assignment.
The question of the invalidity of the judgment or the lien rendered after Simpson's death is
immaterial, for none of the cost incident to the action is involved in the case in the justice's
court. The expense of the suit to foreclose the lien was collected from the company and paid.
Notwithstanding Trankle did not become a party to that action, he is entitled to the money
paid for the satisfaction of the claim and lien which had been assigned to him, and
jurisdiction of the action for the recovery thereof was vested in the justice's court, and in the
district court on appeal.
The application for the writ is denied.
____________
36 Nev. 586, 586 (1913) Veith v. Nevada Reduction Co.
[No. 2027]
W. M. VEITH, Plaintiff and Respondent, v. NEVADA REDUCTION COMPANY (a
Corporation), MANHATTAN WOLFTONE MINING COMPANY (a Corporation), THE
MUSTANG EXTENSION MINING COMPANY (a Corporation), MUSTANG
MANHATTAN MINING COMPANY (a Corporation), and J. V. PRIEST, Defendants and
Respondents;
WILLIAM M. STOKES, Trustee, Defendant and Appellant;
NEVADA-CALIFORNIA POWER COMPANY (a Corporation), Codefendant and
Respondent;
TONOPAH LUMBER COMPANY (a Corporation), W. T. SOMERVILLE, W. S.
MORROW, THE NEVADA ENGINEERING WORKS (a Corporation) EDWIN LETTS
OLIVER, H. J. MEISEL, J. C. KENNEDY, G. H. WATKINS, GEORGE RICH, and L.
STUART PECK, Administrator of the Estate of H. C. PECK, Interveners and Respondents.
1. SummonsAffidavit for Publication, Sufficiency Of.
An affidavit stating, That said W. M. Stokes, Trustee, is a necessary party defendant in this cause of
action and that a cause of action exists against him, the said W. M. Stokes, Trustee, by the plaintiff, and the
cause of action is that plaintiff is a lien claimant and assignee of other lien claimants against the property of
the Nevada Reduction Company, a corporation, and that the defendant, W. M. Stokes, Trustee, claims to
have some right, title or interest in said property and this suit is brought to have whatever interest, if any,
the said Stokes may have in and to the property of the Nevada Reduction Company to be declared subject
to the claims of plaintiff, states facts sufficient to show that said Stokes is a necessary or proper party to
the action, and is sufficient to support an order for publication under the provisions of Rev. Laws, sec.
5026.
2. Summons, Affidavit for Publication ofConclusions of Law.
An affidavit for publication of a summons does not require the same detailed statement of a cause of
action as is required in a complaint. Statements well-nigh being conclusions of law may, in some instances,
suffice for the affidavit.
3. Summons, Affidavit for Publication Of.
The provisions of Rev. Laws, sec. 5026, are in the alternative and it is sufficient either that the affidavit
for publication of summons shows the existence of a cause of action or shows that the defendant is a
necessary or proper party.
Action by W. M. Veith against Nevada Reduction Company (a corporation) and others.
From a judgment in favor of plaintiff and certain defendants as lien claimants, William M.
Stokes, Trustee, appeals. Affirmed.
P. E. Keeler, for Appellant.
Bartlett & Thatcher, for Respondents.
This is an appeal from a final judgment, and presents the sole question of alleged error in
the denial of appellant's motion to quash and set aside the service of summons made upon the
appellant out of the state under an order of publication based upon an affidavit, which in part
is as follows:
That said W. M. Stokes, Trustee, is a necessary party defendant in this cause of action
and that a cause of action exists against him, the said W. M. Stokes, Trustee, by the plaintiff,
and the cause of action is that plaintiff is a lien claimant and assignee of other lien claimants
against the property of the Nevada Reduction Company, a corporation, and that the defendant,
W. M. Stokes, Trustee, claims to have some right, title or interest in said property, and this
suit is brought to have whatever interest, if any, the said Stokes may have in and to the
property of the Nevada Reduction Company to be declared subject to the claims of plaintiff.
It is urged that this affidavit did not state sufficient facts to authorize the making of the
order that service of summons be made by publication.
The code provides that when the person upon whom the service is to be made resides out
of the state, and that fact shall appear by affidavit, to the satisfaction of the court or judge
thereof, and it shall appear, either by affidavit or by a verified complaint on file, that a cause
of action exists against the defendant in respect to whom the service is to be made or that he
is a necessary or proper party to the action, such court or judge may grant an order that the
service be made by the publication of summons. (Comp. Laws, 3125; Rev. Laws, 5026.)
It has been held that the facts must be stated in the affidavit and that there must be a strict
compliance with the statute. (Coffin v. Kinney, 22 Nev. 169; Victor Mill Co. v. Justice Court,
18 Nev. 22; Roy v. Whitford, 9 Nev. 370; Gordon v. District Court, 36 Nev. 1.)
However, we do not think the language quoted demands the same detailed statement of the
cause of action as required in a complaint under section 5038, which provides that the
complaint shall contain a statement of the facts constituting the cause of action in ordinary
and concise language.
The line between the statement of ultimate facts and conclusions of law in an affidavit or
pleading is often a narrow one. Conclusions of law are often held sufficient, as in actions on
account and the common allegation of ownership in relation to real property.
As the allegations ordinarily required in a complaint, or even less, may be sufficient for the
affidavit, statements well-nigh being conclusions of law may, in some instances, suffice for
the affidavit.
A more meager allegation in a complaint will support a cause of action after judgment or if
no objection is made before judgment than if attacked by demurrer. The former decisions of
this court should not be construed as requiring more to be stated in the affidavit than is
necessary for a cause of action in a complaint, and an allegation in the nature of a conclusion
of law, which is generally deemed sufficient in a pleading, should be so in the affidavit.
As under the language of the statute the provision is in the alternative that it shall appear
by the affidavit or a verified complaint that a cause of action exists against the defendant in
respect to whom the service is to be made or that he is a necessary or proper party to the
action, there is not the same necessity for stating the facts constituting the cause of action
when nothing is sought to be recovered specifically against the defendant as in this case and it
is shown that he is incidentally a necessary or proper party in an action between others, as
there would be if it were sought to recover directly from the defendant on whom constructive
service is made instead of to have him included as a necessary or proper party because he has
in the property some subsequent interest or claim which it is incumbent on him to assert.
(Robinson v. Kind, 23 Nev. 330; 32 Cyc. 477.)
Where the complaint sets forth a cause of action relating to real estate, it is generally held
sufficient to allege that the other defendants have an interest or claim therein which is
subsequent to the mortgage, lien, or right of the plaintiff.
In Farmers' and Millers' Bank v. Eldred, 20 Wis. 199, the court said: The affidavit for
publication is sufficient. It states that the action is brought to foreclose a mortgage, and that
the defendants (naming them) in respect to whom service is to be made are proper parties to
said action, and have or claim a lien or interest in the aforesaid property by virtue of
judgments which are subsequent to the mortgage act set forth in the complaint; that the relief
demanded by the said complaint against them consists in wholly excluding them, the
defendants, from any interest, or lien in the aforesaid property; that said defendant cannot,
after due diligence, be found within this state.' This shows that the action is brought to
foreclose a mortgage, and that the defendants in respect to whom service by publication was
sought to be made were subsequent incumbrancers.
If the statement in the affidavit in the present case that W. M. Stokes, trustee, is a
necessary party defendant in this cause of action, and that a cause of action exists against
him, be considered as conclusions of law, the other language in the affidavit and more
particularly that quoted, indicating that the plaintiff is a lien claimant and assignee of
other lien claimants against the property of the Nevada Reduction Company, and that the
appellant claims to have some right, title or interest in that property, and that this suit is
brought to have his interest, if any, in the property declared subject to the claims of the
plaintiff, is deemed sufficient to support the order that the service of summons be made
by publication.
against him, be considered as conclusions of law, the other language in the affidavit and more
particularly that quoted, indicating that the plaintiff is a lien claimant and assignee of other
lien claimants against the property of the Nevada Reduction Company, and that the appellant
claims to have some right, title or interest in that property, and that this suit is brought to have
his interest, if any, in the property declared subject to the claims of the plaintiff, is deemed
sufficient to support the order that the service of summons be made by publication.
In Hamilton v. Barricklow, 96 Ind. 401, an affidavit was held sufficient which stated that
the defendants Charles Hamilton and Elizabeth Hamilton were nonresidents of the State of
Indiana; that a cause of action existed against them; that they were necessary parties to the
action, and that the action was in relation to real estate.
In Pratt v. Stone, 25 Nev. 370, we held that an affidavit stating that a complaint had been
filed to recover a sum of money, which cause of action was fully set forth therein, was
sufficient to authorize the order for service of summons by publication, although the
complaint was only the copy of an account for goods sold and delivered.
The appellant was served personally out of the state with a copy of the summons and
unverified complaint, alleging the cause of action more in detail, and had an opportunity to
defend upon the trial. It does not appear that he was prejudiced by the order, as he might have
been if the service of summons had been made by publication and he had been without notice
of the action until after the trial and entry of judgment.
We think the district court was correct in the conclusion that the facts stated in the
affidavit for publication of summons were sufficient, and, as the only objection is in that
regard, the judgment and the order refusing to quash service are affirmed.
____________
36 Nev. 591, 591 (1913) Lawson v. Halifax-Tonopah Mining Co.
[No. 2050]
JOHN W. LAWSON, Respondent, v. HALIFAX-
TONOPAH MINING COMPANY, Appellant.
1. Master and ServantLiability for InjuriesRelease of LiabilityIndemnity.
Under Rev. Laws, sec. 5652, providing that no contract of employment, insurance, relief benefit, or
indemnity for injury or death entered into by or on behalf of any employee, nor acceptance of any
insurance, relief benefit, or indemnity by the person entitled thereto, shall constitute a defense to an action
for personal injuries or death, a release of an employer from liability for personal injuries, damaging an
employee in the sum of about $1,200, in consideration of the payment of $36, did not prevent a recovery of
such damages, since the statute invalidates defenses based, not only on contracts made to cover future
injuries, but defenses based upon acceptance of insurance, relief benefit, or indemnity by a person already
injured, and the word indemnity means protection or exemption from loss or damage, past or to come, or
immunity from punishment for past offenses.
2. Constitutional LawMaster and ServantLiability for InjuriesRelease of
LiabilityStatutory Provisions.
Such section is not unconstitutional, since the legislature has power to enact laws to promote healthful
conditions of work or freedom from undue oppression; and a contract which the state, in the legitimate
exercise of its police power, has the right to prohibit is not within the protection of Const. U. S. Amend. 14,
prohibiting the states from depriving any person of liberty or property without due process of law,
especially in view of the further provision of that section that upon the trial of an action the defendant may
set off the sum it has contributed toward any such insurance, relief benefit, or indemnity that may have
been paid to the person entitled thereto.
Norcross, J., Dissenting.
Action by John W. Lawson against the Halifax-Tonopah Mining Company. From an order
sustaining a demurrer to the answer, and from a judgment for plaintiff, defendant appeals.
Affirmed. Rehearing denied.
Bartlett & Thatcher, for Appellant:
There was a valid agreement in settlement for the injuries sustained by the plaintiff entered
into after the injury.
the injury. The provisions of the state Employers' Liability Act of 1907 does not affect
contracts of settlement entered into after injury. (Akenson v. Railroad Co., 75 N. W. 676;
Donald v. R. R. Co., 93 Iowa, 284, 33 L. R. A. 492; Maine v. R. R. Co., 109 Iowa, 260;
McGuire v. R. R. Co., 131 Iowa, 340, 108 N. W. 902, 33 L. R. A. n.s. 706; McNamara v.
Washington T. Co., 35 App. D. C. 230; Mondou v. N. Y., N. H. & H., 223 U. S.; 1 P. B. & W.
R. Co. v. Schubert, 224 U. S. 603; 66 Cyc. 1178, 1179.)
Any other construction would render the section unconstitutional as an unwarranted and
unreasonable restriction upon the liberty of contract guaranteed by the fourteenth amendment.
(Williams v. Fears, 179 U. S. 270; Allgeyer v. Louisiana, 165 U. S. 578; Block v. Schwartz,
27 Utah, 387; Henry v. Cherry, 30 R. I. 38; School Corp. v. Heiney, 98 N. E. 628; People v.
Steele, 231 Ill. 340; State v. Goodwill, 33 W. Va. 179; Ex Parte Drexel, 147 Cal. 763;
Goldfield Con. M. Co. v. Goldfield Miners' Union, 159 Fed. 513-517; Adair v. U. S., 208 U.
S 174-5; Lockner v. N. Y., 198 U. S. 53; People v. Marcus, 185 N. Y. 259; State v. Julow,
129 Mo. 163; State v. Kreutzberg, 114 Wis. 540; Gillespie v. People, 188 Ill. 176; Young v.
Commonwealth, 101 Va. 853.)
Geo. B. Thatcher, for Appellant, on petition for rehearing.
H. R. Cooke, for Respondent:
The plain purport and purpose of the law is to prevent contracts for or acceptance of
indemnity or money payment from constituting an absolute bar to an action, and to leave it
open for the employee to avail himself of the courts if he so desired.
Against the plain language of the statute argument is superfluous and useless, unless,
indeed, it is intended to obtain a judicial repeal of the statute. The act contemplates putting an
end to just such defenses as respondent met with in the case at bar. Had the Nevada
legislature intended the act to mean what counsel say it means, they would have used the
same language that the Iowa statute uses.
Liberty of contract is not a universal right and may be abridged when required for the
public good. (McLean v. Arkansas, 211 U. S. 539; Railway Co. v. Beckwith, 129 U. S. 26;
People v. Erie Ry. Co., 29 L. R. A. 240; Leep v. St. Louis R. Co., 23 L. R. A. 264; Peel Co. v.
State, 17 L. R. A. 385; Holden v. Hardy, 169 U. S. 366; Harbison v. Knoxville Co., 56 L. R.
A. 316, 183 U. S. 13; Brakebill v. Chicago Ry. Co., 131 Pac. 540; Kilpatrick v. Ry. Co., 93
Am. St. Rep. 887; Int. Text Book Co. v. Weisenger, 65 L. R. A. 599; McLean v. State, 211 U.
S. 539; Hopper v. State, 155 U. S. 648; Patterson v. The Endora, 190 U. S. 169; Philadelphia
v. Schubert, 224 U. S. 603.)
Henry M. Hoyt and L. A. Gibbons were permitted, as amici curiae, to file a brief in support
of the petition for a rehearing, from which the following extract is taken:
We concede great powers to the state under the vague term police power. Yet we say the
courts, both state and federal, have at all times been watchful to prevent the invasion by
legislative authority of natural contractual functions necessary to the freedom of men.
Restraints imposed upon man's natural activities and intelligent, self-reliant conduct in the
living of his life must rest upon reasons which bear some direct relation to the common
welfare, in order to obtain judicial sanction. (Kuhn v. Detroit, 70 Mich. 534; Hume v. Laurel
Hill Cem., 142 Fed. 563; State v. Robins, 73 N. E. 470; George Boller Co. v. North Platte V.
Irr. Co., 121 Pac. 22; State v. Daniels 136 N. W. 584; Amer. Surety Co. v. Shallenberger,
183 Fed. 636; Dennis v. Moses, 52 Pac. 333; Ex Parte Jentzsch, 112 Cal. 468.)
This action grew out of injuries sustained by the respondent while in the employ of the
appellant corporation, in the sinking of a mining shaft. The complaint in this cause sets forth
that the respondent was injured while descending the shaft of appellant in a mining bucket, in
pursuance of his employment in bailing water from the bottom of the shaft.
from the bottom of the shaft. The respondent was 29 years of age, and had been earning
wages as a miner at the rate of $5 a day. The injuries, as set forth in the complaint, were of a
more or less serious nature, and it is alleged that defendant, by reason of the injuries, is
incapacitated from performing ordinary manual labor, and, further, that he suffered numerous
and severe hemorrhages and continued physical pain. The respondent in this case admits in
his complaint the receipt of $36 from appellant.
This action was brought under the employers' liability act of this state, and a credit, or
set-off, was admitted and allowed by respondent to appellant in the sum of $36, and
respondent prayed for judgment in the sum of $1,964.
A demurrer, submitted by the appellant, was overruled by the trial court, following which
order the appellant filed its answer, in which answer the appellant set up, among other things,
the following allegation in support of its affirmative defense: That plaintiff ought not and
should not have or maintain his cause of action, for on account of the facts set forth in his
said complaint, for in that at Tonopah, Nye County, State of Nevada, the said plaintiff, for
and in consideration of the sum of $36 to him in hand paid by said defendant in full accord
and satisfaction of the facts set forth in plaintiff's complaint, and of the injury complained of
therein, made, executed, and delivered to defendant that certain instrument in writing in full
of all account and claims of and for and on account of the pretended facts set forth in
plaintiff's complaint and in accord, relinquishment and satisfaction thereof as follows, to wit:
Tonopah, Nevada, November 18, 1911. Received of the Halifax-Tonopah Mining Company
the sum of seventy-six dollars, being in full of all account and claims of and for any injury
heretofore sustained by the undersigned, while in the employ of the Halifax-Tonopah Mining
Company and the undersigned, for and in consideration of the sum of seventy-six dollars does
forever release and discharge said Halifax-Tonopah Mining Company, of and from any and
all claims of damages therefor, and does hereby release and discharge any and all claims
of every nature, from the beginning of the world to the date of these presents, he may
have or claim against said Halifax-Tonopah Mining company.
Mining Company, of and from any and all claims of damages therefor, and does hereby
release and discharge any and all claims of every nature, from the beginning of the world to
the date of these presents, he may have or claim against said Halifax-Tonopah Mining
company. Jack Lawson.'
Of the sum specified in the foregoing receipt $40 was paid respondent by appellant as
wages for services actually performed, and the remainder of the sum, amounting to $36, was
paid the respondent by appellant on account of his injuries. To this answer, and especially to
that phase of the answer quoted above, respondent demurred on the ground that the
affirmative defense did not state facts sufficient to constitute any defense to respondent's
cause of action. This demurrer, on the part of the respondent, was sustained by the trial court,
and ten days allowed appellant for amendment. To the ruling of the court in this respect the
appellant excepted, and by notice duly given, through its attorney, declined to amend the
answer. Thereafter the cause was heard before the trial court without the assistance of a jury,
and a decision was rendered in favor of respondent, and judgment entered against the
appellant in the sum of $1,174 and costs. From the order sustaining respondent's demurrer to
appellant's answer, and from the judgment rendered in the cause, appeal is taken to this court.
1, 2. Section 5652 of the Revised Laws of the State of Nevada, applicable to the subject of
personal injuries, is as follows: That no contract of employment, insurance, relief benefit, or
indemnity for injury or death, entered into by or on behalf of any employee, nor the
acceptance of any insurance, relief benefit, or indemnity by the person entitled thereto, shall
constitute any bar or defense to any action brought to recover damages for personal injuries
to, or death of such employee; provided, however, that upon the trial of such action the
defendant may set off therein any sum it has contributed toward any such insurance, relief
benefit, or indemnity that may have been paid to the person entitled thereto.
One question alone is to be decided by this court, viz: Was the receipt given by Jack
Lawson, the respondent, to the Halifax-Tonopah Mining Company, the appellant, for the sum
of $36, in full of all account and claims of and for any injuries sustained by respondent, such
an acceptance as is contemplated by the inhibitions of section 5652 of the statute quoted
above? In the consideration of this question, however, a secondary proposition is presented
and raised by appellant, viz, the constitutionality of the section set forth.
The employers' liability act, of which the foregoing section is a part, was enacted by our
legislature in 1907, and by the enactment of this statute common carriers and mill and mine
owners were made liable to their employees in case of injury, or to the personal representative
of their employees in case of death, where the injury or death was the result of negligence of
the officers, agents, or employees of the common carrier, or mill or mine operator. By the
enactment of this statute this state, speaking through its legislaturethe representatives of its
peopledeclared its policy applicable to this all-important subject. By this statute the
common-law rule of fellow servants was modified, and, moreover, the common-law rule of
contributory negligence was superseded by the statutory rule, which is more or less properly
termed the rule of relative or comparative negligence. In enacting section 5652, the
object and purpose of the legislature was manifest and obvious, and the meaning of the words
therein contained is to our mind in no wise obscure. By its enactment the legislature
manifestly sought to avoid the various and devious contracts and agreements so often
required by employers as a condition precedent to the obtaining of employment, and also to
guard against the many and devious ways by which employers seek to avoid the consequences
of their own acts, or the acts of their agents, by obtaining releases therefrom by the signing of
instruments at the hands of the injured party tending to establish a settlement. Section 2071 of
the code of the State of Iowa, dwelling upon a similar subject, is as follows: "Every
corporation operating a railway shall be liable for all damages sustained by any person,
including the employees of such corporation, in consequence of the neglect of the agents,
or by any mismanagement of the engineers or other employees thereof, and in
consequence of the wilful wrongs, whether of commission or omission, of such agents,
engineers, or other employees, when such wrongs are in any manner connected with the
use and operation of any railway on or about which they shall be employed, and no
contract which restricts such liability shall be legal or binding.
upon a similar subject, is as follows: Every corporation operating a railway shall be liable
for all damages sustained by any person, including the employees of such corporation, in
consequence of the neglect of the agents, or by any mismanagement of the engineers or other
employees thereof, and in consequence of the wilful wrongs, whether of commission or
omission, of such agents, engineers, or other employees, when such wrongs are in any manner
connected with the use and operation of any railway on or about which they shall be
employed, and no contract which restricts such liability shall be legal or binding. Nor shall
any contract of insurance, relief benefit, or indemnity in case of injury or death, entered into
prior to the injury, between the person so injured and such corporation, or any other person or
association acting for such corporation, nor shall the acceptance of any such insurance, relief
benefit, or indemnity by the person injured, his widow, heirs or legal representatives after the
injury, from such corporation, person, or association, constitute any bar or defense to any
cause of action brought under the provisions of this section, but nothing contained herein
shall be construed to prevent or invalidate any settlement for damages between the parties
subsequent to injuries received.
The code of Iowa quoted above is very analogous to our own statute, but contains a
distinctive provision recognizing and sanctioning settlements for damages between the
parties.
Section 5652 invalidates any defense based upon contract made to cover the contingency
of future injury, and it likewise invalidates a defense based upon the acceptance of insurance,
relief benefit, or indemnity accepted by reason of injury already sustained. The acceptance of
any insurance, relief benefit, or indemnity must necessarily be an act of acceptance done after
an injury, and hence it follows that the intendment of the statute was to make nugatory any
defense based on acceptance of insurance, relief benefit, or indemnity, after the injury, as
well as any defense based on contract or agreement made or entered into prior to injury,
created for the purpose of relieving the employer from his proper responsibility.
the injury, as well as any defense based on contract or agreement made or entered into prior to
injury, created for the purpose of relieving the employer from his proper responsibility.
The word indemnity means: Protection or exemption from loss or damage past or to
come. It also means: Immunities from the punishment of past offenses. One who indemnifies,
or enters into a contract of indemnity, thereby agrees to save harmless. The word, generally
speaking, carries with it two meanings: First, in the sense of giving security; and, second, in
the sense of relieving a party from liability for damage already accrued.
Laws enacted under the police power of the state, which will in their general nature
promote healthful conditions of work and freedom from undue oppression, are always within
the scope of the legislative department. The health and safety of the great mass of the
employed is a subject with reference to which there has been vast and varied legislation in
recent years, and the true aim and object of it all has been to protect life, person, and property
where persons are engaged in hazardous vocations. The various legislative acts, dwelling
upon this subject in the many states, have been passed upon by the courts in numerous
decisions, with the result that the courts of last resort of many states, as well as the Supreme
Court of the United States, have upheld the principle that such legislation was within the
police power of the state; that power being exercised to govern men and things within the
limits of its dominion. It has been generally said that where the health, prosperity, good order,
and peace of the people, or of any general class of the people, require legislative regulations,
it is within the power of the legislature of the several states to enact such statutes.
The legislature of the State of Nevada, speaking for the policy of the people of this state,
has in the past enacted many laws intended to better the conditions of the laboring class, by
laying down rules and regulations in the interest of humanity, and to save the lives and limbs
and safeguard the health of workingmen.
limbs and safeguard the health of workingmen. The employers' liability act, of which section
5652 is a part, is but one of the great class of legislative acts enacted for the purpose of
extending humane protection to the laborer, while legitimately pursuing his vocation. In
enacting this statute the legislature evidently had in mind the inequality, from the standpoint
of opportunity, of the employer and the employee, and it was within the power of the
legislature to take into consideration and provide against the natural tendency of the employer
to exact a favorable bargain where the opportunity presents itself. It was within the power of
the legislature to make nugatory any contract or agreement whereby an employee might, by
entering into such agreement, destroy the safeguards which the law threw about him.
(Lochner v. People of State of N. Y., 198 U. S. 45, 25 Sup. Ct. 539, 49 L. Ed. 937, 3 Ann.
Cas. 1133; Kilpatrick v. Grand Trunk R. Co., 74 Vt. 288, 52 Atl. 531, 93 Am. St. Rep. 887.)
The state, having the power to enact laws of this general character for the protection of the
life and welfare of the individual members of any class, with equal power may declare void
any agreement, contract of employment, insurance, relief benefit, or indemnity entered into
prior to or subsequent to the injury, the general nature of which would be to destroy the
effectiveness of the act itself.
It will be observed that the statute relied upon by counsel in this case differs from that
under consideration in the case of McGuire v. C. B. & Q. R. Co., 131 Iowa, 340, 108 N. W.
902, 33 L. R. A. n.s. 706, cited by appellant, in that the Iowa statute makes special provision
for settlement for damages between the parties subsequent to the injury. In this respect it may
be observed that if these safeguards of legislation, enacted for the purpose of enforcing a
policy, may be valid in nullifying contracts entered into prior to accident or injury, if
legislative enactment may be valid to prevent an individual from entering into a contract
while in full possession of his health, strength, and faculties, how much more should their
validity be upheld when they operate to safeguard and protect one who, by reason of
accident or calamity occasioned by the very nature of his employment, is suddenly cast
into suffering and privation?
health, strength, and faculties, how much more should their validity be upheld when they
operate to safeguard and protect one who, by reason of accident or calamity occasioned by the
very nature of his employment, is suddenly cast into suffering and privation? If public policy
and public health demand that the employee be protected against himself when he is in full
enjoyment of all the faculties with which nature has endowed him, and when those dependent
upon him are receiving the full measure of his labor and ability, in our judgment it cannot be
successfully argued that the same protection should not apply to him when, stricken down
with some catastrophe in the course of his vocation, he finds himself deprived of the power to
either support himself or provide for those dependent upon him.
The power of the state to prevent the individual from making certain kinds of contracts has
been passed upon approvingly by many of the courts of last resort, and it has been generally
said that if the contract be one which the state, in the legitimate exercise of its police power,
has the right to prohibit, it is not prevented from prohibiting it by the fourteenth amendment.
The rule has been laid down in state jurisdictions, as well as by the Supreme Court of the
United States, that contracts in violation of the statute, either of the federal or of a state
government, could obtain no protection from the federal constitution as coming under the
amendment bearing upon the subject of liberty of person and of free contract. When a state by
its legislature, assuming to exercise under its police power, passes an act which in its general
scope protects the health or welfare of the individual members of any general class, it has the
right to enact legislation prohibiting contracts the general nature of which would be to prevent
the operation of the law. (McNamara v. Washington Terminal Co., 35 App. D. C. 230.)
We think it unnecessary in this case to dwell upon the inadequacy of the consideration as
represented by the receipt given by respondent to appellant and set forth herein. It is our
judgment that it was the intention of the legislature to provide against just such
instruments as that which presents itself in this case in the receipt or acceptance signed
by respondent, wherein inadequacy is manifest and whereby the employer, by the
payment of a mere pittance, seeks to avoid the just consequences of his own wrongful
act.
the legislature to provide against just such instruments as that which presents itself in this
case in the receipt or acceptance signed by respondent, wherein inadequacy is manifest and
whereby the employer, by the payment of a mere pittance, seeks to avoid the just
consequences of his own wrongful act. The purpose of the statute is to prevent such an
acceptance operating as an absolute bar to an action; the object being to have the question of
the amount of damages ascertained and determined by judicial calculations governed by legal
principles and limited by equitable rules.
By the provisions of the statute any sum contributed toward the relief or indemnity of the
party injured constitutes a set-off or a credit to the employer. It follows that the amount
contributed would be deducted from any judgment that might be awarded to the injured
person, and hence, in our judgment, the employer is deprived of no legal right or benefit by
the inhibition of the statute.
In view of the foregoing reasoning it is our judgment that the respondent's demurrer to
appellant's answer should have been sustained, as it was sustained by the trial court. No
question is raised by appellant as to the evidence warranting the court in making the findings
and entering the judgment for the sum specified.
It therefore follows that the order and judgment appealed from should be affirmed.
It is so ordered.
I concur in the opinion written by Justice McCarran. Section 5652 of the Revised Laws
quoted is a copy of section 3 of the liability act passed by Congress in 1906 (Act of June 11,
1906, c. 3073, 34 Stat. 232, U. S. Comp. St. Supp. 1911, p. 1317), except that the limitation
to common carriers in the federal statute does not appear in our act. Section 3 of the act of
Congress of 1908 (Act of April 22, 1908, c. 149, 35 Stat. 66, U. S. Comp. St. Supp. 1911, p.
1323), contains substantially the same provisions relating to common carriers engaged in
interstate commerce.
Florida in 1906, Wisconsin in 1907, Michigan and Texas in 1909, and California,
Montana, and Nebraska in 1911 passed acts providing that no contract restricting liability of
the employer should be legal or binding, and these statutes in Montana, Nebraska, Michigan,
Arizona, and Texas are substantially the same as our own and the federal act. The validity of
such laws has not been determined by the courts of last resort in the most of the states in
which they have been so recently passed, but attacks upon statutes relating to employer and
employee have often been made on the ground that they were unconstitutional as infringing
upon the right of contract. In some of the earlier decisions there was a failure to consider the
extent of the jurisdiction of the legislature to enact laws for the protection, safety, and welfare
of employees engaged in hazardous occupations, or to discern the meander line between the
sphere of legislation and the liberty of contract.
Among the earlier cases relating to statutes invalidating such contracts, the few which held
such laws to be unconstitutional have been criticized or overruled. It was urged that our
statute providing an eight-hour day for men working in mines, smelters, and ore-reduction
plants was unconstitutional because it deprived the employer and employee of the right of
contracting for a longer workday. Notwithstanding this and other objections, this court and
the Supreme Court of the United States held that such an act was valid, and that under the
police power the legislature could enact laws for the protection and welfare of men so
employed. (Ex Parte Boyce, 27 Nev. 299, 65 L. R. A. 47, 1 Ann. Cas. 66; Ex Parte Kair, 28
Nev. 127, 113 Am. St. Rep. 817, 6 Ann. Cas. 893; Holden v. Hardy, 169 U. S. 366, 18 Sup.
Ct. 383, 42 L. Ed. 780.)
In Baltimore & Ohio R. R. Co. v. Interstate Commerce Commission, 221 U. S. 612, 31
Sup. Ct. 621, 55 L. Ed. 878, the act of Congress of March 4, 1907 (Act of March 4, 1907, c.
2939, 34 Stat. 1415, U. S. Comp. St. Supp. 1911, p. 1321), regulating the hours of labor of
railroad employees engaged in interstate commerce, was held to be constitutional and not an
interference with the liberty of contract.
contract. In Michigan Cent. R. R. v. Vreeland, 227 U. S. 66, 33 Sup. Ct. 192, 194, 57 L. Ed.
417, referring to the federal employees' liability act, the court said: The subject,' as observed
by this court in Mondou v. Railroad Co., 223 U. S. 1, 54, 32 Sup. Ct. 169, 56 L. Ed. 327, 38
L. R. A. n.s. 44, is one which falls within the police power of the state, in the absence of
legislation by Congress.' (Nashville, C. & St. L. Ry. Co. v. Alabama, 128 U. S. 96, 99, 9 Sup.
Ct. 28, 32 L. Ed. 352.)
It being settled that the legislature may determine the best public policy regarding
employees in quartz mines, smelters, and ore-reduction plants, and pass laws for their benefit
and protection, it necessarily follows that any right of contract must yield to statutes passed
for these humane purposes. There are numerous decisions holding that conditions of contracts
upon telegrams, railroad tickets, and bills of lading are void as against public policy. Statutes
have been sustained which make it unlawful to contract to pay miners at quantity rates upon
screened coal instead of upon the original weight of the coal as produced in the mine
(McLean v. Arkansas, 211 U. S. 539, 29 Sup. Ct. 206, 53 L. Ed. 315), and prohibiting
contracts for options on grain or other commodities at a future time (Booth v. Illinois, 184 U.
S. 425, 22 Sup. Ct. 425, 46 L. Ed. 623).
It has also been held by the Supreme Court of the United States that the Carmack
amendment (Act of June 29, 1906, c. 3591, sec. 7, 34 Stat. 593, U. S. Comp. St. Supp. 1911,
p. 1307), by which an interstate carrier voluntarily receiving property for transportation is
made liable to the holder of the bill of lading for loss anywhere en route, notwithstanding any
agreement to the contrary, with right of recovery over against the carrier actually causing the
loss, is not unconstitutional as infringing the liberty of contract. (Atlantic Coast Line R. R.
Co. v. Riverside Mills, 219 U. S.186, 31 Sup. Ct. 164, 55 L. Ed. 167, 31 L. R. A. n.s. 7.)
The question of the constitutionality of legislation invalidating contracts which provide for
release from liability for damages is answered most clearly by the opinion of the Supreme
Court of the United States written by Justice Hughes, sustaining the Iowa statute {C.,
opinion of the Supreme Court of the United States written by Justice Hughes, sustaining the
Iowa statute (C., B. & Q. R. R. Co. v. McGuire, 219 U. S. 564, 31 Sup. Ct. 261, 55 L. Ed.
328), in which it is said: This section of the code of Iowa (2071), as originally enacted,
imposed liability upon railroad corporations for injuries to employees, although caused by the
negligence or mismanagement of fellow servants. And it was held by this court that it was
clearly within the competency of the legislature to prescribe this measure of responsibility.
(Minneapolis & St. Louis Railway Co. v. Herrick, 127 U. S. 210, 8 Sup. Ct. 1176, 32 L. Ed.
109, following Missouri Railway Co. v. Mackey, 127 U. S. 205, 8 Sup. Ct. 1161, 32 L. Ed.
107.) The statute in its original form also provided that no contract which restricts such
liability shall be legal or binding.' * * * It has been held that the right to make contracts is
embraced in the conception of liberty as guaranteed by the constitution. (Allgeyer v.
Louisiana, 165 U. S. 578, 17 Sup. Ct. 427, 41 L. Ed.832; Lochner v. New York, 198 U. S. 45,
25 Sup. Ct. 539, 49 L. Ed. 137, 3 Ann. Cas. 1133; Adair v. United States, 208 U. S. 161, 28
Sup. Ct. 277, 52 L. Ed. 436, 13 Ann. Cas. 764.) In Allgeyer v. Louisiana, supra, the court, in
referring to the fourteenth amendment, said: The liberty mentioned in that amendment
means, not only the right of the citizen to be free from the mere physical restraint of his
person, as by incarceration, but the term is deemed to embrace the right of the citizen to be
free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and
work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or
vocation, and for that purpose to enter into all contracts which may be proper, necessary, and
essential to his carrying out to a successful conclusion the purposes above mentioned.' But it
was recognized in the cases cited, as in many others, that freedom of contract is a qualified
and not an absolute right. There is no absolute freedom to do as one wills or to contract as
one chooses. The guaranty of liberty does not withdraw from legislative supervision that wide
department of activity which consists of the making of contracts, or deny to government
the power to provide restrictive safeguards.
which consists of the making of contracts, or deny to government the power to provide
restrictive safeguards. Liberty implies the absence of arbitrary restraint, not immunity from
reasonable regulations and prohibitions imposed in the interests of the community. (Crowley
v. Christensen, 137 U. S. 89, 11 Sup. Ct. 13, 34 L. Ed. 620; Jacobson v. Massachusetts, 197
U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765.) It is within the undoubted power
of government to restrain some individuals from all contracts, as well as all individuals from
some contracts. It may deny to all the right to contract for the purchase or sale of lottery
tickets; to the minor the right to assume any obligations, except for the necessaries of
existence; to the common carrier the power to make any contract releasing himself from
negligence, and, indeed, may restrain all engaged in any employment from any contract in the
course of that employment which is against public policy. The possession of this power by
government in no manner conflicts with the proposition that, generally speaking, every
citizen has a right freely to contract for the price of his labor, services, or property.' (Frisbie v.
United States, 157 U. S. 165, 166, 15 Sup. Ct. 586, 588, 39 L. Ed. 657.) * * * It is subject
also, in the field of state action, to the essential authority of government to maintain peace
and security,and to enact laws for the promotion of the health, safety, morals, and welfare of
those subject to its jurisdiction. * * * The principle involved in these decisions is that where
the legislative action is arbitrary, and has no reasonable relation to a purpose which it is
competent for government to effect, the legislature transcends the limits of its power in
interfering with liberty of contract; but, where there is reasonable relation to an object within
the governmental authority,the exercise of the legislative discretion is not subject to judicial
review. * * * The principle was thus stated in McLean v. Arkansas, 211 U. S. 547, 29 Sup.
Ct. 206, 208, 53 L. Ed. 315: The legislature, being familiar with local conditions, is,
primarily, the judge of the necessity of such enactments. * * * If there existed a condition of
affairs concerning which the legislature of the state, exercising its conceded right to enact
laws for the protection of the health, safety, or welfare of the people, might pass the law,
it must be sustained; if such action was arbitrary interference with the right to contract or
carry on business, and having no just relation to the protection of the public within the
scope of legislative power, the act must fail.' In dealing with the relation of employer and
employee the legislature has necessarily a wide field of discretion in order that there may
be suitable protection of health and safety, and that peace and good order may be
promoted through regulations designed to insure wholesome conditions of work and
freedom from oppression.
which the legislature of the state, exercising its conceded right to enact laws for the protection
of the health, safety, or welfare of the people, might pass the law, it must be sustained; if such
action was arbitrary interference with the right to contract or carry on business, and having no
just relation to the protection of the public within the scope of legislative power, the act must
fail.' In dealing with the relation of employer and employee the legislature has necessarily a
wide field of discretion in order that there may be suitable protection of health and safety, and
that peace and good order may be promoted through regulations designed to insure
wholesome conditions of work and freedom from oppression. What differences, as to the
extent of this power, may exist with respect to particular employments, and how far that
which may be authorized as to one department of activity may appear to be arbitrary in
another, must be determined as cases are presented for decision. But it is well established
that, so far as its regulations are valid, not being arbitrary or unrelated to a proper purpose, the
legislature undoubtedly may prevent them from being nullified by prohibiting contracts
which, by modification or waiver, would alter or impair the obligation imposed. If the
legislature may require the use of safety devices, it may prohibit agreements to dispense with
them. If it may restrict employment in mines and smelters to eight hours a day, it may make
contracts for longer service unlawful. In such case the interference with the right to contract is
incidental to the main object of the regulation, and if the power exists to accomplish the
latter, the interference is justified as an aid to its exercise. * * * Here there is no question as to
the validity of the regulation or as to the power of the state to impose the liability which the
statute prescribes. The statute relates to that phase of the relation of master and servant which
is presented by the case of railroad corporations. It defined the liability of such corporations
for injuries resulting from negligence and mismanagement in the use and operation of their
railways. In the cases within its purview it extended the liability of the common law by
abolishing the fellow-servant rule.
purview it extended the liability of the common law by abolishing the fellow-servant rule.
Having authority to establish this regulation, it is manifest that the legislature was also
entitled to insure its sufficiency by prohibiting contracts in derogation of its provisions. In the
exercise of this power, the legislature was not limited with respect either to the form of the
contract, or the nature of the consideration, or the absolute or conditional character of the
engagement. It was as competent to prohibit contracts, which on a specified event, or in a
given contingency, should operate to relieve the corporation from the statutory liability which
would otherwise exist, as it was to deny validity to agreements of absolute waiver.
Although the Iowa act exempted settlements made after the injury was received, it is
apparent that it would be fully as much within the province of the legislature to provide that
contracts made after the injury should not be binding as contracts made before, and that if a
statute nullifying such contracts made before injury is properly sustained, laws invalidating
settlements made after the injury are not unconstitutional. The employee who is injured by
defective machinery or appliances, or by some negligence for which the employer is liable,
may, after the accident, be more impelled by disability which prevents him from earning his
support, or by the destitution of himself or his family, or stress of circumstances, to accept in
satisfaction an amount much less than the damage he has actually sustained. Equitably the
statute is in accord with the decisions holding that when a solvent debtor pays only a part of
the amount he owes on a clear, undisputed, liquidated demand, with a receipt or agreement
that the part payment is in full, the remainder may be collected.
In Mondou v. N. Y., N. H. & Hartford R. R. Co., N. P. Railway Co. v. Babcock, and N. Y.,
N.H. & Hartford R. R. Co. v. Walsh, 223 U. S. 1, 32 Sup. Ct. 169, 56 L. Ed. 327, 38 L. R. A.
n.s. 44, it was held that the act of Congress, with terms similar to ours, and which in
invalidates contracts of settlement or exemption whether executed before or after the
injury is received, made no unwarranted interference with the liberty of contract contrary
to the provisions of the federal constitution.
of settlement or exemption whether executed before or after the injury is received, made no
unwarranted interference with the liberty of contract contrary to the provisions of the federal
constitution.
The state courts are bound by the construction of the federal courts given to acts of
Congress, but are not required to follow the construction given to a state statute by the federal
courts, or the Supreme Court of the United States, unless a federal question is involved. The
federal courts follow the construction given to a state statute by the state court of last resort,
notwithstanding such construction may not be in accord with the views of the federal court.
Although the decision of the Supreme Court of the United States sustaining the act of
Congress relating to the liability of common carriers engaged in interstate commerce may not
be conclusive or binding as to the construction of our act, which contains similar provisions
relating to the liability of employers, when it does not appear that our statute is vitiated by any
provision of the state constitution which is different from the requirements of the federal
constitution, the opinion in that case, and the one upholding, as not in conflict with the
federal constitution, the Iowa statute, which is substantially the same as ours in relation to
such contracts made before injury, are entitled to the highest consideration, and, being in
accord with the principles enunciated by this court and the Supreme Court of the United
States sustaining the right of the legislature to enact laws for the protection and benefit of
men employed in mines and ore-reduction plants as not an unwarranted encroachment upon
the liberty of contract, may be regarded as adjudicating the principles which control this case,
and as justifying the upholding of our statute.
Norcross, J.: I concur in the judgment.
On Petition for a Rehearing
The petition for a rehearing is hereby denied.
Talbot, C. J.,
McCarran, J.
Norcross, J., dissenting:
I dissent from the order denying a rehearing. The importance and far-reaching effect of the
legal questions discussed and determined by the opinions of the majority members of the
court warrant, in my judgment, further hearing and consideration before the views expressed
in those opinions be determined to be the law.
I am unable to agree upon the construction placed by my learned associated upon section
5652 of the Revised Laws. Our statute of 1907 (Stats. 1907, p. 437) which was incorporated
into the new civil practice act of 1912 (Rev. Laws, 5649-5652) is modeled after the act of
congress of June 11, 1906 (34 Stat.-at-L. 232, c. 3073, U. S. Comp. Stat. Supp. 1909, p.
1148). Section 3 of the act of 1907 (Rev. Laws, 5652) is in all essentials identical with
section 4 of the federal act, supra. While there is no direct authority upon the question of
settlements made between an injured employee and his employer after injury, the provisions
of section 3 of the federal act was under consideration by the Court of Appeals of the District
of columbia in the case of McNamara v. Washington Terminal Co., 35 App. D. C. 230.
That case involved the validity of an agreement entered into at the time of employment,
which exempted the company from any liability other than was provided for in certain relief
benefits agreed upon at the time of employment which were to accrue to the employee in the
event of injury. It was held that this agreement was in violation of the statute, and was not a
bar to further recovery.
The court, however, said: If it [the employer] honestly desires to effect a settlement with
the employee, irrespective of this contract of employment and upon a new consideration, it
may do so, and such a settlement, if free from duress, will be sustained. What it here seeks to
do, however, is to be relieved of liability without the payment of a new consideration. Mr.
Justice Stafford, in a well-considered opinion (Potter v. Baltimore & O. R. Co., 37 Wash. L.
Rep. 466), sustaining this section, said: What Congress evidently intended to do was to cut
up, root and branch, this whole attempt on the part of the employer to substitute its own
determination of its liability, and its own adjustment of the extent of that liability,as far
as the same were embraced in the original contract of employment, and to substitute for
it an adjustment in open court, or at least an adjustment by the parties, independent of
such original contract.'" See, also, Philadelphia Ry. Co. v. Schubert, 224. U. S.
branch, this whole attempt on the part of the employer to substitute its own determination of
its liability, and its own adjustment of the extent of that liability,as far as the same were
embraced in the original contract of employment, and to substitute for it an adjustment in
open court, or at least an adjustment by the parties, independent of such original contract.'
See, also, Philadelphia Ry. Co. v. Schubert, 224. U. S. 603.
Whether the above quotation from the opinion in the McNamara case is or is not dicta, I
believe it to be the correct construction to be placed on the federal act, under consideration in
that case, and likewise it would be the correct construction to be placed upon the statute of
this state. The purpose of the act is accomplished by this construction, and any other
construction would render it of doubtful constitutionality, to say the least. Both the language
and the constitutionality of an act should be clear before it is held that a valid agreement in
settlement for personal injuries may not be entered into between employer and employee after
injury. Such a construction means that, no matter how much the parties may be desirous of
effecting a settlement or how advantageous such a settlement may be, a resort must be had to
litigation with its attendant delay and expensea result which would be alike injurious to
both employer and employee, with no compensating advantage. The reasons which justify the
legislature in holding void agreements entered into as a condition of employment do not
apply in matters of settlement after injury.
The courts have never hesitated to set aside agreements in settlement for personal injuries,
where the consideration was inadequate and where the circumstances virtually prevented
freedom of contract. It was upon this view of the present case that I concurred in the
judgment.
I am still of the opinion that the judgment could be affirmed, notwithstanding I think the
court erred in sustaining the demurrer to the answer. The fact that the plaintiff was induced to
accept a grossly inadequate consideration for his injuries, shortly after the accident and while
he was still suffering therefrom and was at a clear disadvantage in entering into the
contract, afforded ample warrant for refusing to enforce its provisions.
while he was still suffering therefrom and was at a clear disadvantage in entering into the
contract, afforded ample warrant for refusing to enforce its provisions. If this case only
involved the question of an affirmance of the judgment, I would concur in the order denying a
rehearing, but, as a far greater question than the mere affirmance of the judgment is presented
in the opinion of the majority members of the court, I think a rehearing should be granted.
____________
36 Nev. 611, 611 (1913) Esden v. May
[No. 1887]
AMANDA ESDEN, Appellant, v. JAMES MAY, JOHN NOLAN, and GOLDEN HOTEL
COMPANY, (a Corporation), Respondents.
1. JudgmentSuccessive Motions for Same Relief.
A default judgment entered by the clerk without authority was void, and the court of its own motion could
set it aside and should do so, although a motion to set it aside on the ground of excusable neglect had
previously been denied, notwithstanding district court rule 36 providing that 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 after notice to the adverse parties.
2. JudgmentDefault JudgmentEntry by ClerkAnswer.
Under Rev. Laws, sec. 5236, providing that, in an action upon contract for the recovery of money or
damages only if no answer has been filed within the time specified in the summons or such further time as
may have been granted, the clerk on plaintiff's application shall enter defendant's default and immediately
thereafter enter judgment against defendant, and that the word answer as used therein shall include any
pleading that raises an issue of law or fact, whether it be by general or special appearance, while the filing
of a demurrer is equivalent to the filing of an answer in preventing a default, where a demurrer to the
complaint was sustained and a demurrer to an amended complaint was overruled, the demurrers had served
their purpose and had no further effect, and upon defendant's failure to answer within the time allowed by
the court the clerk could enter judgment by default.
36 Nev. 611, 612 (1913) Esden v. May
3. Appeal and ErrorReviewDiscretionary Matters.
Ordinarily an appellate court will not disturb an order setting aside a default where the application is
made on the ground of inadvertence or excusable neglect and supported by an affidavit or showing of
merits.
4. JudgmentDefaultOpeningDiscretion of Court.
While the granting or denying of a motion to open a default on the ground of inadvertence or excusable
neglect is within the discretion of the trial court, it is a legal discretion to be exercised liberally in the
interest of justice
5. Appeal and ErrorReviewPresumptions.
Where the record showed that, on a motion to open a default on the ground of excusable neglect, the
court admitted an English statute offered in evidence by plaintiff to support her contention that defendants
could not be heard on their motion, but failed to show that the court acted in any way on such statute, it
would not be assumed that he gave such contention serious consideration.
6. Common LawAdoptionEffect.
While, in adopting the common law of England, it was adopted as modified by certain statutes enacted by
Parliament prior to the Revolution, only those provisions of such statutes which are applicable to our
conditions and in no way conflict with our own statutory laws are in force in the state.
7. JudgmentDefaultOpeningShowing of Meritorious Defense.
Under Rev. Laws, sec. 5084, providing that the court may in furtherance of justice amend any pleading,
etc., and that it may, upon such terms as may be just, relieve a party from a judgment taken against him
through his mistake, inadvertence, surprise, or excusable neglect, a default judgment cannot be set aside on
the ground of excusable neglect unless a meritorious defense be shown.
8. JudgmentDefaultOpeningShowing of Meritorious Defense.
On an application to set aside a default judgment on the ground of excusable neglect, the affidavit and
testimony of defendant's counsel that in his opinion a good and meritorious defense existed was not a
sufficient showing of a meritorious defense, especially where the action was by a married woman to
recover property held by her husband in trust for her from persons who obtained it from the husband at a
gambling game while he was intoxicated, since the nature of the action was such as to require a clear
showing of merits.
Action by Amanda Esden against James May, and others. From an order setting aside a
default judgment, plaintiff appeals.
36 Nev. 611, 613 (1913) Esden v. May
plaintiff appeals. Reversed. Petition for a rehearing pending.
James Glinn, for Appellant.
Boyd & Salisbury, for Respondents.
This is an appeal from an order setting aside a judgment entered by the clerk upon a
default for failure to answer within the time allowed by order of court. To plaintiff's original
complaint a demurrer was interposed by defendants, respondents herein, and the demurrer
confessed. Plaintiff then filed an amended complaint, to which a demurrer was again
interposed, but the same was overruled. Defendants, by order of court, were given ten days
thereafter to file their answer to the amended complaint. Not having filed their answer within
the time allowed by the order of court, the default of the defendants and a judgment upon
default were entered by the clerk. The day following the entry of the default and the default
judgment the defendants filed a motion to set aside the default and default judgment and to
permit defendants to answer. This motion was based upon the ground of excusable neglect
and was supported by the affidavit of one of defendant's attorneys.
A counter affidavit made by the attorney for the plaintiff was filed. The motion coming on
to be heard was denied. Subsequently defendants, through their attorneys, filed a notice of
motion to vacate and set aside the judgment upon the ground that the same was entered by the
clerk without authority of law and was void. Objections to and a motion to strike out the latter
motion were interposed by plaintiff's attorney upon the ground that the court was without
jurisdiction to consider it; that it was filed without leave of court or authority of law, in
violation of district court rule 36; and that the defendants were without standing before the
court entitling them to file such motion or to be heard thereon.
36 Nev. 611, 614 (1913) Esden v. May
the court entitling them to file such motion or to be heard thereon.
1. The latter motion to set aside the judgment coming on to be heard was granted upon the
ground that the clerk entered the judgment without authority of law so to do, and for which
reason it was void.
District court rule 36 provides: 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.
In so far as the second notice to set aside the default and default judgment was based on
the same grounds as were embodied in the first motion and were passed upon by the court in
denying that motion, it was contrary to the rule to incorporate them in another motion without
notice to the adverse party and leave granted by the court. The second motion filed, however,
raised a question, not embraced in the first motion, which went to the validity of the
judgment. If the clerk was without power to enter the judgment, the judgment was void, and
the court, even of its own motion, could set it aside, and it would be its duty to do so.
2. The order setting the judgment aside was based solely upon the ground that the clerk
was without power to enter default and judgment thereon, although the time for answering
had expired, for the reason that there had been filed in the case by defendants, and overruled
by the court, a demurrer which raised an issue of law. Whether the order can be supported on
this ground depends upon the construction to be placed upon the section of the statute
prescribing when a default judgment may be entered by the clerk without an order of court.
Section 152 of the old practice act, as amended in 1907 by the addition of a sentence
defining the meaning of the word answer as used in the section, corresponds to section
5236 of the Revised Laws, which reads: Judgment may be had, if the defendant fail to
answer the complaint, as follows: (1) In an action arising upon contract for the recovery of
money or damages only, if no answer has been filed with the clerk of the court within the
time specified in the summons, or such further time as may have been granted, the clerk,
upon the application of the plaintiff, shall enter the default of the defendant, and
immediately thereafter enter judgment for the amount specified in the summons,
including the costs, against the defendant, or against one or more of several defendants,
in the cases provided for in section S9.
36 Nev. 611, 615 (1913) Esden v. May
answer has been filed with the clerk of the court within the time specified in the summons, or
such further time as may have been granted, the clerk, upon the application of the plaintiff,
shall enter the default of the defendant, and immediately thereafter enter judgment for the
amount specified in the summons, including the costs, against the defendant, or against one or
more of several defendants, in the cases provided for in section 89. (2) In other actions, if no
answer has been filed with the clerk of the court within the time specified in the summons, or
such further time as may have been granted, the clerk shall enter the default of the defendant;
and thereafter the plaintiff may apply at the first, or any, subsequent term of the court, for the
relief demanded in the complaint. If the taking of an account, or the proof of any fact, be
necessary to enable the court to give judgment or to carry the judgment into effect, the court
may take the account, or hear the proof, or may, in its discretion, order a reference for that
purpose. And where the action is for the recovery of damages, in whole or in part, the court
may order the damages to be assessed by a jury; or if, to determine the amount of damages the
examination of a long account be necessary, by a reference, as above provided. (3) * * * The
word answer used in this section shall be construed to include any pleading that raises an
issue of law or fact, whether the same be by general or special appearance.
The clerk in entering default or judgment has only such power as is specifically granted by
the statute. The section as quoted provides in subdivision 1 that in an action arising upon
contract for the recovery of money or damages, and in subdivision 2 that in other actions if
no answer is filed with the clerk of the court within the time specified in the summons, or
such further time as may have been granted, the clerk shall enter the default of the defendant.
This action falls within subdivision 1; but, so far as the entry of default is concerned, it makes
no difference in which subdivision it falls, for the clerk, without an order of the court, is
authorized by the two subdivisions to enter default in all cases if no answer has been filed
within the time specified in the summons or such further time as may have been granted.
36 Nev. 611, 616 (1913) Esden v. May
answer has been filed within the time specified in the summons or such further time as may
have been granted.
Whether after the entry of a default the judgment should be entered by the clerk, without
an order of the court, depends upon the character of the action, and, in actions arising upon
contract for the recovery of money or damages only, the clerk is authorized to enter
judgment without the order of the court, because in such actions the judgment is always for
the amount claimed, and the entry of judgment for that amount is a mere ministerial act. In
other cases, notwithstanding the entry of a default, this it not so, but the plaintiff may submit
proof, and it is the duty of the court, acting judicially, to determine the just and proper amount
or relief to which the plaintiff is entitled and to order judgment accordingly. An action for the
foreclosure of a mortgage and to obtain a decree of sale is an example of one in which the
court must act before judgment can be entered after default.
The provision that the word answer used in the section should be construed to include
any pleading that raises an issue of law or fact, whether the same be by general or special
appearance, may be considered as providing that a demurrer or pleading raising an issue of
law is, in a general sense, an answer and, if filed within the time required for answering, as
sufficient to prevent the entry of a default. Notwithstanding under that section, as well
understood in practice, the filing of a demurrer is equivalent to the filing of an answer in
preventing a default and in constituting an appearance, the language used in the statute should
not be construed as intending or providing that a demurrer or pleading raising an issue of fact
has the effect of an answer in all respects. Such demurrer or pleading raising an issue of law
certainly could not be held to be an answer raising an issue of fact or alleging new matter as a
defense or as presenting an issue for trial by jury. The filing of a demurrer to the original
complaint in this case was equivalent to an answer in preventing the entry of a default, and
the same was true of the demurrer to the amended complaint until passed upon by the court.
After the original demurrer had been sustained and the demurrer to the amended
complaint had been overruled, they had served their purposes and had no further effect.
36 Nev. 611, 617 (1913) Esden v. May
had been sustained and the demurrer to the amended complaint had been overruled, they had
served their purposes and had no further effect.
When the defendants failed to file their answer to the amended complaint within the ten
days allowed by the order of the court after the overruling of the demurrer to the amended
complaint, they were as much in default as if they had never filed any demurrer or had never
appeared in any way after service of summons; and, the action being one for the recovery of
money, the clerk in entering default and judgment was acting directly within the provision of
the statute that, if no answer has been filed * * * within such further time as may have been
granted, the clerk upon the application of the plaintiff shall enter the default of the defendant
and immediately thereafter enter judgment for the amount specified in the summons,
including costs against the defendant, or against one or more of several defendants. Any
other construction would result in requiring the court to make useless orders for the direction
of the clerk to perform the ministerial act of entering judgment in actions for money or
damages in which, upon default, judgment is entered for the amount claimed and in
unnecessary delay in the entry of these default judgments in counties in which the district
judge does not reside or when he is absent from the county in which he does reside.
In Ewing v. Jennings, 15 Nev. 379, the defendant filed a demurrer, and subsequently his
attorney filed with the clerk a written withdrawal of the demurrer. It was held that after the
withdrawing of the demurrer, without leave of the court to file an answer, the clerk was
authorized to enter default and judgment upon the request of the plaintiff.
Under a statute similar to ours as it existed before the amendment of 1907, the Supreme
Court of California, in an early decision, held that a demurrer was an answer within the
meaning of the section. (Oliphant, v. Whitney, 34 Cal. 25.) This court also so construed the
statute in Winter v. Winter, 8 Nev. 136. Issues of law or fact might be raised otherwise than
by demurrer or answer to the merits which would be determined without subjecting the
defendant to liability of default.
36 Nev. 611, 618 (1913) Esden v. May
be raised otherwise than by demurrer or answer to the merits which would be determined
without subjecting the defendant to liability of default. For example, a defendant appears
specially for the purpose of moving to set aside the service of summons. This motion raises
an issue of law, but, prior to the amendment of 1907, such motion did not affect the power of
the clerk to enter a default and default judgment. (Higley v. Pollock, 21 Nev. 198.) While the
Supreme Court of California had held that a demurrer was an answer within the meaning of
the section, it had also held that a motion to dismiss did not take from the clerk the power to
enter a default pending its hearing. (Shinn v. Cummins, 65 Cal. 98, 3 Pac. 133; McDonald v.
Swett, 76 Cal. 258, 18 Pac. 324.)
In the case of Stark v. Raney, 18 Cal. 622, the question of the power of the clerk to enter
the judgment was raised, and it was held that a judgment entered by the clerk upon request of
the plaintiff, upon failure to answer within the time allowed by the court after overruling a
demurrer, was properly entered. This was a construction of that portion of subdivision 1 of
the section reading: Or such further time as may have been granted. At the time this
decision was rendered, it is true the court had not construed the word answer in the section
to include a demurrer, but it may, we think, be assumed that such construction was
recognized at the time of the decision in the Stark case. No good reason suggests itself why a
default ought not to be entered for failure to answer within the time granted by the court after
overruling a demurrer the same as in the case of failure to answer within the time commanded
by the summons. It follows that the reason given in the order setting aside the default is
erroneous.
3, 4. It is contended that, regardless of the reasons given by the court in setting aside the
default, the order should be affirmed because a showing was made justifying the order upon
the ground of excusable neglect. Ordinarily an appellate court will not disturb an order setting
aside a default regularly entered where the application is made to the court upon the ground
of inadvertence or excusable neglect, supported by an affidavit or showing of merits.
36 Nev. 611, 619 (1913) Esden v. May
application is made to the court upon the ground of inadvertence or excusable neglect,
supported by an affidavit or showing of merits. While the granting or denying of such a
motion is within the discretion of the trial court, it is a legal discretion, to be exercised
liberally in the interest of justice. So far as the record in this case shows, the application to set
aside the default upon the ground of excusable neglect was denied. The court below appears
to have been particular in entering its subsequent order setting aside the default to include in
the order as the ground upon which it was made the want of power in the clerk to enter the
default. It would seem from this that the court below still adhered to its view that, if the
default and default judgment were regularly entered, the showing was insufficient to justify
the exercise of the court's discretion to set it aside.
5, 6. It is contended by counsel for respondent that the first motion was denied upon the
ground that the court accepted the contention of plaintiff's counsel that, under certain
provisions of the statute of Queen Anne, defendants could not be heard upon their motion.
There is nothing in the record to support this contention. The record does show that, when
counsel for plaintiff offered in evidence the section of the statute of Anne upon which he
relied, the court admitted the same, but there is nothing to indicate that the court acted in any
way upon it. While this court has held that, in adopting the common law of England, it was
adopted as modified by certain statutes enacted by Parliament prior to the Revolution, and
that the statute of Anne relative to gambling contracts was therefore a part of the law of this
state (Evans v. Cook, 11 Nev. 69; Burke v. Buck, 31 Nev. 74, 22 L. R. A. n.s. 627, 21 Ann.
Cas. 625), it does not follow that all the provisions of that statute are in force. Only those
provisions are in force which are applicable to our conditions and not in conflict with our
own statutory law. Our own statute governing matters of practice controls. As there is no
showing that the court below gave this contention serious consideration, we do not feel
justified in assuming that it did.
36 Nev. 611, 620 (1913) Esden v. May
below gave this contention serious consideration, we do not feel justified in assuming that it
did.
7, 8. It may be conceded that, so far as excusable neglect is concerned, the showing was
sufficient. But this showing is not enough to require the court to set aside a judgment. The
court exercises its discretion only in furtherance of justice. (Rev. Laws, 5084.) This
requires some showing of a meritorious defense to be made. At the time the first notice to set
aside the default was made, there was nothing before the court but the affidavit and testimony
of counsel. Subsequent to the hearing, and before the decision, an answer consisting of
denials of plaintiff's allegations was filed. It does not appear that this answer was filed by
permission of court or that the court's attention was called thereto. The affidavit of counsel
for defendants sets forth merely that affiant is advised and believes that the defendants have
a meritorious and perfect defense in said action and to the merits of said action. One of
defendants' counsel testified upon the hearing. The court ruled that he could not testify as to
what his clients had informed him as to the nature of their defense. No attempt was made to
procure their testimony. The counsel testified that he intended to file an answer setting upon
the facts in the case, and that in his opinion a good and meritorious defense exists to the
merits of this action. Is this a sufficient showing of merits? In the recent case of Sherwin v.
Sherwin, 33 Nev. 321, we said: In the affidavit of counsel for defendant, in support of the
motion to set aside the judgment, was the mere statement that affiant is familiar with the
defense to be interposed in this action, and he believes such defense to be good and
meritorious.' No other showing appears by the record to have been made, and it cannot be
said that the court erred in deeming this insufficient.
In Stretch v. Montezuma Mining Co., 29 Nev. 163, we said: Every case depends largely
upon its own facts, but courts are liberal in relieving defendants from defaults when they offer
a good defense and have not been guilty of inexcusable delay.
36 Nev. 611, 621 (1913) Esden v. May
In Horton v. New Pass Co., 21 Nev. 184, it was held that an affidavit of merits was
sufficient, although made only by the attorney. The opinion states: From the affidavit upon
which the motion was based and the accompanying exhibits, one of which is its proposed
answer, it appears prima facie that this defendant has a good and sufficient defense to the
action upon the merits. It is shown that the company, etc.
In Nevada Con. M. Co. v. Lewis, 34 Nev. 500, which was an action inequity to set aside a
default judgment, we said: A court of equity will not as a general rule set aside or enjoin the
enforcement of a judgment regularly obtained by default in the absence of a showing of a
good and meritorious defense to the original action.
In Ewing v. Jennings, 15 Nev. 382, in considering an affidavit on a motion to set aside a
default and allow the defendant to answer, the court said: It fails to show that he had a good
and meritorious defense to the action. The verified answer accompanying the affidavit
presents only a technical defense. It is based upon the theory that the judgment sued upon was
not regularly entered by the clerk. The statute should only be employed in furtherance of
justice. It should not be used for the purpose of enabling a defendant to raise some technical
objection. (Freeman on Judgments, sec. 108; Jones v. San Francisco Sulphur Co., 14
Nev.172.)
The nature of this action was such as to warrant the court in requiring a clear showing of
merits. The complaint, among other matters, alleged that plaintiff was the owner as her
separate property of a certain certificate of deposit in the sum of $3,000, issued by the
Washoe County Bank of Reno in the name of her husband, and by him held in trust for
plaintiff; that the defendants were engaged in gambling for money and owned and controlled
a certain roulette wheel in the Golden Hotel in Reno, conducted by defendants; that the
husband of plaintiff wrongfully, and without her consent, pledged and deposited the
certificate of deposit with the Nye and Ormsby County Bank; that her said husband drew
against the certificate of deposit ten certain checks aggregating $2,5S0 and delivered the
same to defendants for money which he played against and lost at such gambling game;
that her husband was induced by defendants, their agents and employees, to gamble this
money away at a time when he was so intoxicated as to be wholly incapable and
incompetent to transact any business whatever.
36 Nev. 611, 622 (1913) Esden v. May
drew against the certificate of deposit ten certain checks aggregating $2,580 and delivered the
same to defendants for money which he played against and lost at such gambling game; that
her husband was induced by defendants, their agents and employees, to gamble this money
away at a time when he was so intoxicated as to be wholly incapable and incompetent to
transact any business whatever.
While the showing of merits in this case was insufficient, under the authorities cited, the
allegations of the complaint were such as to justify a court in requiring a showing of facts that
would warrant a conclusion that a good defense might exist.
The default and judgment having been properly entered by the clerk, and no cause
appearing for setting them aside, the order of the district court from which this appeal is taken
is reversed.
submission of the case, did not participate in the decision.
[Petition for a rehearing pending.]
____________
36 Nev. 623, 623 (1913) Lind v. Webber
[No. 1871]
H. B. LIND and GEORGE L. KAEDING, Appellants, v. W. H. WEBBER, JOHN T.
HODSON, JAMES R. DAVIS, and NEVADA HILLS MINING COMPANY (a Corporation),
Respondents.
1. Joint AdventuresMutual RightsProperty Acquired.
Four individuals entered into an agreement to send W., one of their number, to examine a new mining
district and locate any valuable rights; the expenses of the trip to be shared equally by the parties. W.
located four claims in the name of one of the other parties to the agreement. On the trip he met other
miners, and after his return he terminated the agreement, and on the same day and without consideration he
secured for himself and one of the other parties to the joint agreement, from those whom he had met on the
trip, interests in some claims which they had located while all were together. Held, that the other two
parties to the joint agreement were entitled to share in the profits from the claims so acquired through the
examination and trip made under the joint agreement.
2. Joint AdventuresMutual RightsIntention of Parties.
Even though W. believed that he had a right to terminate the agreement and thereafter to acquire for
himself interests which he had examined on the trip, equity will not permit him to deprive his associates of
their share of whatever he acquired as a result of that trip.
3. Joint AdventuresTermination of AgreementEffect.
Since the joint agreement specified no time for its continuance, W. had a right to terminate it upon his
return from the trip, and any rights acquired as a result of the subsequent trips would be his alone; but the
termination did not affect rights acquired as a result of the trip made under the joint agreement.
4. Joint AdventuresRights of PartiesFailure to Contribute.
Where, except for temporary advances, the proceeds from the claims acquired by W. as a result of his trip
under the joint agreement were sufficient to acquire adverse interests and develop the property, the other
parties to the joint agreement did not lose their right to share in the profits by their failure to contribute to
such advances for which no demand was ever made upon them.
5. Joint AdventuresActions Between PartiesAccountingLaches.
Where the other parties knew in a general way that W. was interested in some other claims in that mining
district, but did not know the circumstances under which he had acquired that interest, their delay in
instituting a suit for an accounting did not amount to laches.
36 Nev. 623, 624 (1913) Lind v. Webber
6. CostsMotion for Retaxation.
Where plaintiffs filed and served a notice of motion to retax costs two days after the entry of judgment, it
was error to sustain an objection to the hearing of the motion, because no motion had been filed within
two days after the entry of judgment.
SUPPLEMENTAL OPINION ON COSTS
1. CostsRemedies for Erroneous TaxationMotion to Retax.
Under rule 34, providing that 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, a notice of motion to retax, filed and
served within two days after service of the cost bill, was sufficient, without actually filing and making in
court within that time a motion to retax.
2. CostsRemedies for Erroneous TaxationMotion to Retax.
Under rule 34, providing that 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, if defendant felt aggrieved because a hearing
for a motion to retax was noticed for the second Saturday instead of the first thereafter, he should have
applied to the lower court to shorten the time.
Judge.
Action by H. B. Lind and George L. Kaeding against W. H. Webber, John T. Hodson,
James R. Davis, and Nevada Hills Mining Company (a corporation). Judgment for
defendants; from the judgment and from an order dismissing plaintiffs' motion to retax costs,
plaintiffs appeal. Reversed. Petition for a rehearing pending.
Bryant & O'Brien and H. B. Lind, for Appellants.
R. G. Withers, for Respondents.
This case is based on an agreement for locating and acquiring mining claims. In the
extended and carefully prepared briefs a number of questions relating to conflicting evidence
and interesting propositions of law have been presented, which under our view we need not
determine. From the findings of the court, which are as favorable to respondent as the
conflicting testimony will warrant, and from the undisputed evidence sufficient facts appear
to enable us to reach a conclusion as to the ultimate rights of the parties.
36 Nev. 623, 625 (1913) Lind v. Webber
sufficient facts appear to enable us to reach a conclusion as to the ultimate rights of the
parties.
At Goldfield, on the 3d day of February, 1906, the plaintiffs and the defendants Webber
and Davis entered into an agreement that Webber should make a trip into the Fairview mining
district in Churchill County, where a new find of mineral had been reported, for the purpose
of examining the district and acquiring by location, option, or otherwise any mining rights
which might be deemed of value.Each of the parties was to pay one-quarter of the expense,
and Webber was to make no charge for his time or services. This agreement was made on the
solicitation of Lind, upon his telling Webber and Davis about information which he had
obtained from a friend regarding a rich assay of float from that recently discovered mining
district. It is said that Webber also had information or had heard rumors regarding the new
discovery.
The plaintiffs caused to be furnished to Webber money, blankets, and other things for the
trip. In pursuance of the agreement, Webber left Goldfield on February 4, 1906, and went to
the Fairview district. On the same train by which Webber left Goldfield were George Bethune
and the defendant Hodson, who were going to the Fairview district under a contract made by
them with W. H. Clark and J. A. Kirby. Webber, Hodson, and Bethune went from Hazen to
Fairview in the same conveyance, bought their provisions together, stayed over at Sand
Springs, where separate locations were made, went into fairview, and remained together
throughout the trip.
Shortly after arriving at Fairview, Hudson and Bethune, without stopping to prospect,
located on ground which had been pointed out to them as being vacant the Lookout group,
consisting of eleven or twelve locations, the Mountain Sheep, and other claims. While they
were making these locations, Webber was prospecting in the vicinity, and, after the Silver
Butte claim had been located by Hodson and Bethune, Webber discovered on it a small
mineralized vein, and, after endeavoring to determine its character and strike, Hodson, at the
request of Webber, located in the name of Lind four claims known as the Silver Bow group.
36 Nev. 623, 626 (1913) Lind v. Webber
of Webber, located in the name of Lind four claims known as the Silver Bow group. The
other claims were located in the names of Hodson and Bethune. No mineral outcrops were
discovered upon the Silver Bow claims or upon the Hodson and Bethune locations, except the
vein discovered by Webber on the Silver Butte. Directly after locating these claims, Webber
and Hodson left Bethune at Fairview and returned to goldfield together, taking with them
samples of rock, and reached there on the 14th day of February, 1906.
Upon his arrival, Webber reported to the plaintiffs, and presented a statement of the
expenses of the trip, amounting to $90, one-half of which, less the amount which they had
advanced on his departure, was paid by the plaintiffs and a receipt taken. Upon the day of his
return to Goldfield, Webber had conferences with Davis, Clark, Kirby, and Hodson, and on
the following day, without payment of any consideration, they executed a written agreement
that all claims theretofore located in the Fairview mining district by Hodson and Bethune, or
that might be thereafter located or acquired in that district, should be owned by these parties
jointly, and that Webber and Davis should each have an equal interest therein with Hodson,
Kirby, and Clark. On the same day an agreement in writing was executed between those
parties and W. B. Rice, which created a new partnership by them, and by which it was agreed
that an undivided one-sixth interest in the mining claims located in the names of Hodson and
Bethune should be sold to Rice for the sum of $5,000, provided that the interest of Bethune in
these claims could be acquired for a sum not to exceed $2,500. If his interest could be so
acquired, the remainder of the $5,000 was to be spent in improvement and perfecting of
titles of the properties or for acquiring additional ground or options on additional ground as
might be deemed advisable. Further provision was made in the agreement that Hodson and
Webber should act for and represent the interests of the parties to the agreement.
36 Nev. 623, 627 (1913) Lind v. Webber
In compliance with the agreement, Rice on that day paid the sum of $5,000 for a one-sixth
interest in the mining claims which had been located in the names of Hodson and Bethune,
and the money was delivered to Hodson, who was authorized by his associates in the
agreement to return to Fairview and acquire the interest of Bethune in the mining claims,
which he did for the sum of $1,500.
For the appellants it is said that Bethune's interest was so acquired by concealing from him
the formation of the new partnership and the payment of the $5,000 by Rice for a one-sixth
interest in the claims, and by stating that the assays from the samples taken were low, and that
Clark and Kirby refused to proceed further with the properties which had been located.
Webber left Goldfield for Fairview a day or two after Hodson had left, and after the purchase
of Bethune's interest they went together from Fallon to Fairview and began the work of
perfecting the locations which had been made on their first trip.
The Lookout claims covered a portion of the Boulder and boulder No. 1 claims, prior
locations, and on March 14 an option was secured on the Boulder and Boulder No. 1 for
$5,000, and final payment was made for them on April 12. A part of the money received from
Rice, remaining after the payment of the $1,500 to Bethune for his interest and the payment
of certain expenses, was used in the purchase of the Boulders. The defendants and their
associates in the agreement last mentioned, under a contract dated April 16, sold to one
Sherman and received for a portion of the Lookout group the sum of $50,000; the first
payment of $5,000 being made on April 19, seven days after the final payment on the
Boulders. The remainder of the $50,000 they divided equally among themselves, Webber,
and Davis, each receiving one-sixth. They transferred to the Pyramid Mining Company a
portion of the claims, for which they received an divided equally between them 700,000
shares of the capital stock of that company. Another portion of the claims, with the interest
in the Boulder and Boulder No.
36 Nev. 623, 628 (1913) Lind v. Webber
the interest in the Boulder and Boulder No. 1, which lapped and adjoined, they conveyed to
the Nevada Hills Mining Company, and received therefor, and likewise divided, 700,000
shares of its capital stock, and Webber and Davis each received $50,000 in dividends upon
their proportion of the stock of that company.
After Rice had paid the $5,000, and after the options had been secured on the Boulders,
Davis, on the last of March, 1906, gave a check for $2,000,and Kirby and Clark advanced
certain moneys about that time. These advances to the partnership were only temporary, for,
as stated, the payment was made by Sherman nineteen days later, and seven days after the
money was actually used for the final payment on the Boulders. The plaintiffs were not
notified regarding these transactions.
Webber completed the locations of the Silver Bow group after he returned to Fairview, and
the cost of the work was paid by plaintiffs and Webber and Davis. Later the Fairview Aztec
Mining Company was incorporated to take over the Silver Bow group of claims, and Webber
and Davis received their share of the stock of the company.
No demand was made upon plaintiffs for any money, except for their proportion of the
expenses incurred by Webber on his first trip to Fairview and on the claims located in the
name of Lind, which were conceded to belong to him, Webber, Davis, and Clark, or which
they did not pay; nor does it appear that they were informed that any money was needed
which they did not advance, or that until a short time before the commencement of this action
they were aware that, without making any payment therefor, Webber and Davis had acquired
each a one-sixth in the claims located by Hodson and Bethune, or that money or stock
acquired through the location of those claims, and moneys, and stock derived from sales and
transfers thereof, had been received by Webber and Davis.
Under the conflicting evidence the district court finds against the contentions of the
plaintiff that the first agreement made by the plaintiffs and Webber and Davis was one
creating a general mining partnership, and against the claim of the plaintiffs that there
was a secret understanding between Webber and Hodson in advance of their return to
Goldfield that Webber should have an interest in the claims located in the names of
Hodson and Bethune, and the court found in favor of the contention of the defendants
that the original agreement, under which Webber went to Fairview, was terminated upon
the payment of the expenses of the trip upon his return to Goldfield.
36 Nev. 623, 629 (1913) Lind v. Webber
agreement made by the plaintiffs and Webber and Davis was one creating a general mining
partnership, and against the claim of the plaintiffs that there was a secret understanding
between Webber and Hodson in advance of their return to Goldfield that Webber should have
an interest in the claims located in the names of Hodson and Bethune, and the court found in
favor of the contention of the defendants that the original agreement, under which Webber
went to Fairview, was terminated upon the payment of the expenses of the trip upon his
return to Goldfield.
1. Notwithstanding the findings of the district court, we are of the opinion that under the
conceded facts and under equitable principles and the decisions of this court that, regardless
of whether the original agreement made by the plaintiffs and Webber and Davis be
considered as one constituting a partnership, or only as providing for a joint venture, or in the
nature of a grubstake agreement, as held by the court, and regardless of whether there was any
fraudulent or secret understanding between Hodson and Webber before they returned to
Goldfield, and regardless of whether the agreement of the plaintiffs was terminated upon the
payment by them of their portion of the expenses of Webber's trip, the plaintiffs are entitled
to have an accounting and to recover from the defendants Webber and Davis one-half of
whatever Webber and Davis have acquired from the Fairview mines, stocks, and properties
under the transactions mentioned, in which they were interested with Hodson, Rice, Kirby,
and Clark. We come to this conclusion because it is apparent that Webber and Davis acquired
their interests in the mines, stocks, and moneys mentioned as a result of the first trip of
Webber to Fairview, and by reason of his examination, prospecting, and knowledge acquired
on that trip, which was proposed by Lind and paid for in part by the plaintiffs under their
agreement with him and Davis.
After Webber had been sent to Fairview by and at the expense of plaintiffs and Davis to
locate and acquire claims for the benefit of the four, it would be inequitable to hold that he
could return, cancel his agreement with the plaintiffs for the purpose of eliminating them,
and the next day, without consideration, acquire for himself or his favorite associate in
the agreement, and to the exclusion of his other associates in the agreement, an interest
in the property which he had examined, prospected, and ascertained to be valuable on a
trip made for the purpose of acquiring jointly property of that very nature, without first
fully informing the plaintiffs and giving them an opportunity to share or to decline to join
in the acquisition of an interest therein.
36 Nev. 623, 630 (1913) Lind v. Webber
claims for the benefit of the four, it would be inequitable to hold that he could return, cancel
his agreement with the plaintiffs for the purpose of eliminating them, and the next day,
without consideration, acquire for himself or his favorite associate in the agreement, and to
the exclusion of his other associates in the agreement, an interest in the property which he had
examined, prospected, and ascertained to be valuable on a trip made for the purpose of
acquiring jointly property of that very nature, without first fully informing the plaintiffs and
giving them an opportunity to share or to decline to join in the acquisition of an interest
therein. The same principle would apply if Webber or Davis had sent any one out under an
agreement to locate or acquire claims for a joint interest or as an agent for salary, and after
discovering valuable ground he had returned without locating or securing it by option and
canceled his agreement or served his agency for the purpose of eliminating them, and then
had gone out into the field and acquired the property for himself or others.
2. Notwithstanding any intention or belief of the agent that he might have a right to do this,
equity will not permit him to use the knowledge so acquired to deprive the principal or
associates for whom he was sent out to act of their share of whatever may be acquired.
3. As no definite time was specified for the continuance of the original agreement made
with plaintiffs, Webber was at liberty to terminate it upon his return to goldfield; but he could
not thereby deprive the plaintiffs of rights resulting from that trip and from the expense
incident, a proportion of which they had borne. He would have been free to discontinue the
agreement with them and to have gone to Fairview or elsewhere and secure properties by
location or purchase if he did not acquire them by reason of his examination and knowledge
obtained and what transpired on his first trip there, or for the purpose or with the result of
depriving the plaintiffs of an interest in such property as he had been sent out to secure for
them jointly.
36 Nev. 623, 631 (1913) Lind v. Webber
4. Plaintiffs are not without right of recovery because of their failure to contribute a
portion of the $5,000 paid for the Boulders or the $2,000 paid for other conflicting or lapping
claimsthe Florenceswhen more than the necessary money to meet these payments was
directly received from the sale of a portion of the claims to Rice and Sherman, and when
plaintiffs were not made aware of the conditions or that any money was needed. The case is
quite different from the one of McKenzie v. Coslett, 28 Nev. 65. Evidently the defendants
knew from the beginning that the property was of high value. If with doubtful results
defendants had advanced large sums of money, which was not derived from the property, for
securing conflicting claims or for development work, and the plaintiffs, after knowledge of
the conditions and payment made, had refused to contribute their proportion, a different
question would be presented for determination.
5. Nor do we find that the plaintiffs have lost any rights by laches. Although they were
aware in a general way that Webber had become associated with the other parties at Fairview,
they were without information of the particular facts on which their right of recovery
depends, such as the ones indicated showing that Webber and Davis, without paying anything
therefor, had on the day after his return from Fairview acquired, through the knowledge
obtained and association on the trip, an interest in property which he had assisted in locating
or prospecting when he was acting at the joint expense and for the joint benefit of the
plaintiffs and Webber and Davis.
In Botsford v. Van Riper, 33 Nev. 191, we said: The law is well established that property
purchased or acquired in connection with a joint adventure or profits realized from a joint
adventure of the joint property of the parties interested, where one party holds title to the
same, that such property is held in law to be the property of his associated, and the party
holding the same is holding their proportionate share as trustee for them.
36 Nev. 623, 632 (1913) Lind v. Webber
(23 Cyc. pp. 455-459; Hayden v. Eagleson, 15 N. Y. St. Rep. 200; Fueschsel v. Bellesheim,
14 N. Y. St. Rep. 610; Richardson v. McLean, 80 Fed. 854, 26 C. C. A. 190; Morris v. Wood,
35 S. W. 1013; Lyles v. Styles, 15 Fed. Cas. 1143, No. 8,625; Cunningham v. Davis, 47 S. W.
140; Matthews v. Kerfoot, 64 Ill. App. 571; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035;
Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; Calkins v. Worth, 215 Ill. 78, 74 N. E.
81; Putnam v. Burrill, 62 Me. 44; McCutcheon v. Smith, 173 Pa. 101, 33 Atl. 881; Getty v.
Devlin, 54 N. Y. 403; Church v. Odell, 100 Minn. 98, 110 N. W. 346; Knapp v. Hanley, 108
Mo. App. 353, 83 S. W. 1005; Hancock v. Tharpe, 129 Ga. 812, 60 S. E. 168; Reilly v.
Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Marston v. Gould, 69 N. Y. 220; Humburg v.
Lotz, 4 Cal. App. 438, 88 Pac. 510; Williams v. Love, 2 Head, Tenn. 80, 73 Am. Dec. 191;
King v. Wise, 43 Cal. 628.) We further find that the law is well established that the relation
between joint adventurers is fiduciary in its character, and the utmost food faith is required of
the trustee, to whom the deal or property may be intrusted, and that such trustee will be held
strictly to account to his coadventurers, and that he will not be permitted, by reason of the
possession of the property or profits, whichever the case may be, to enjoy an unfair
advantage, or have any greater rights in the property, by reason of the fact that he is in
possession of the property or profits as trustee, than his coadventurers are entitled to. The
mere fact that he is intrusted with the rights of his coadventurers imposes upon him the sacred
duty of guarding their rights equally with his own, and he is required to account strictly to his
coadventurers, and if he is recreant to his trust, any rights they may be denied are recoverable.
(23 Cyc. 455; Cole v. Bacon, 63 Cal. 571; Hambleton v. Rhind, 84 Md. 456, 36 Atl. 597, 40
L. R. A. 216; Seehorn v. Hall, 130 Mo. 257, 32 S. W. 643, 51 Am. St. Rep. 562; Scudder v.
Budd, 52 N. J. Eq. 320, 26 Atl. 904; Getty v. Devlin, 54 N. Y. 403; Hollister v. Simonson, 18
App. Div. 73, 45 N. Y. Supp. 426; Reilly v. Freeman, 1 App. Div.
36 Nev. 623, 633 (1913) Lind v. Webber
560, 37 N. Y. Supp. 570; Delmonico v. Roudebush, 5 Fed. 165; Morris v. Wood, 35 S. W.
1013; Knapp v. Hanley, 108 Mo. App. 353, 83 S. W. 1005; O'Hara v. Harman, 14 App. Div.
167, 43 N. Y. Supp. 556; Calkins v. Worth, 215 Ill. 78, 74 N. E. 81; King v. Wise, 43 Cal.
628.) * * * Money advanced by one party to a joint adventure is held to be a loan to the
venture, for which the party is entitled to be reimbursed out of the proceeds of the venture;
but, by reason of the advancing of such money, it does not entitle the party so advancing to
any superior right as against his coadventurers. (23 Cyc. 457, 458; Boqua v. Marshall, 88
Ark. 373, 114 S. W. 714; Thurston v. Hamblin, 199 Mass. 151, 85 N. E. 82; Stone v. Wright
Wire Co., 199 Mass. 306, 85 N. E. 471; Burhans v. Jefferson, 76 Fed. 25, 22 C. C. A. 25;
Sanguinett v. Webster, 153 Mo. 343, 54 S. W. 563; Woodward v. Holmes, 67 N. H. 494, 41
Atl. 72; Leamy v. Fisler, 52 Atl. 703; Rankin v. Black, 1 Head, Tenn. 650; Crenshaw v.
Crenshaw, 61 S. W.366, 22 Ky. Law Rep. 1782; Williams v. Love, 2 Head, Tenn. 80, 73 Am.
Dec. 191; Gee v. Gee, 2 Sneed, Tenn. 395; Withers v. Pemberton, 3 Cold. Tenn. 56; Furman
v. McMillian, 2 Lea, Tenn. 121; Finlay v. Stewart, 56 Pa. 183; Stover v. Flack, 30 N. Y. 64;
Doane v. Adams, 15 La. Ann. 350; Bell v. McAboy, 3 Brewst. Pa. 81.) The law is also well
established that, in the absence of an express agreement, the law implies an equal division of
the profits of a joint adventure without regard to any inequality of contribution. (23 Cyc. 459;
Wetmore v. Crouch, 150 Mo. 671, 51 S. W. 738; Knapp v. Hanley, 108 Mo. App. 353, 83 S.
W. 1005; Van Tine v. Hilands, 131 Fed. 124; Jones v. Davis, 48 N. J. Eq. 493, 21 Atl. 1035.)
* * * It is also well settled in law that one party to a joint adventure may sue the other at law
for the breach of the contract, or share of the profits or losses, or a contribution for advances
made in excess of his share; but the remedy at law does not preclude a suit in equity for an
accounting. In this state, under our code of procedure, the district court in proper cases may
administer both legal and equitable relief. (23 Cyc. 453-461; Boqua v. Marshall, 88 Ark. 373,
114 S. W.
36 Nev. 623, 634 (1913) Lind v. Webber
714; Reilly v. Freeman, 1 App. Div. 560, 37 N. Y. Supp. 570; Petrie v. Torrent, 88 Mich. 43,
49 N. W. 1076; Spier v. Hyde, 92 App. Div. 467, 87 N. Y. Supp. 285; McElroy v. Swope, 47
Fed. 380; Edson v. Gates, 44 Mich. 253, 6 N. W. 645; King v. Barnes, 109 N. Y. 267, 16 N.
E. 332; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13; Marston v. Gould, 69 N. Y.
220; Kirkwood v. Smith, 47 Misc. Rep. 301, 95 N. Y. Supp. 926-929; Jones v. Davis, 48 N. J.
Eq. 493, 21 Atl. 1035; Scudder v. Budd, 52 N. J. Eq. 320, 26 Atl. 904; Humburg v. Lotz, 4
Cal. App. 438, 88 Pac. 510; Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149;
Corbin v. Holmes, 154 Fed. 593, 83 C. C. A. 367; McMullen v. Hoffman, 75 Fed. 547.) * * *
We do not believe there is any merit in the contention of appellant that the court erred in
making an accounting of the amount expended, and in deducting the same from the amount
found to be due plaintiffs, as the law applicable to the rules of partnership applies to joint
adventures, and, in suits between partners for amounts due them, accountings are always
allowed in an action of this character. The rules and principles of the doctrine of partnership
apply generally to the relation of joint adventure. (Church v. O'Dell, 100 Minn. 98, 110 N.
W. 346; O'Hara v. Harman, 14 App. Div. 167, 43 N. Y. Supp. 556; Marston v. Gould, 69 N.
Y. 220; Wilcox v. Pratt, 125 N. Y. 688, 25 N. E. 1091; Kirkwood v. Smith, 47 Misc. Rep.
301, 95 N. Y. Supp. 926; Stone v. Wright Wire Co., 199 Mass. 306, 85 N. E. 471; Calkins v.
Worth, 215 Ill. 78, 74 N. E. 81; Bradley v. Wolff, 40 Misc. Rep. 592, 83 N. Y. Supp. 13;
Flower v. Barnekoff, 20 Or. 132, 25 Pac. 370, 11 L. R. A. 149; Scudder v. Budd, 52 N. J. Eq.
320, 26 Atl. 904; Humburg v. Lotz, 4 Cal. App. 438, 88 Pac. 510; McMullen v. Hoffman, 75
Fed. 547; Van Tine v. Hilands, 131 Fed. 124; McElroy v. Swope, 47 Fed. 380; Boqua v.
Marshall, 88 Ark. 373, 114 S. W. 714; Delmonico v. Roudebush, 5 Fed. 165; Spier v. Hyde,
92 App. Div. 467, 87 N. Y. Supp. 285; Reilly v. Freeman, 1 App. 560, 37 N. Y. Supp. 570.)
In Clark v. Mitchell, 35 Nev. 459, we quoted with approval a part of the following
language from the opinion of the Circuit Court of Appeals, in Trice v. Comstock, 121 Fed.
622, 57 C. C. A.
36 Nev. 623, 635 (1913) Lind v. Webber
Circuit Court of Appeals, in Trice v. Comstock, 121 Fed. 622, 57 C. C. A. 648, 61 L. R. A.
176: For reasons of public policy, founded in a profound knowledge of human intellect and
of the motives that inspire the actions of men, the law peremptorily forbids every one who, in
a fiduciary relation, has acquired information concerning or interest in the business or
property of his correlate from using that knowledge or interest to prevent the latter from
accomplishing the purpose of the relation. If one ignores or violates this prohibition, the law
charges the interest or the property which he acquires in this way with a trust for the benefit
of the other party to the relation, at the option of the latter, while it denies to the former all
commission or compensation for his services. * * * And, within the prohibition of this rule of
law, every relation in which the duty or fidelity to each other is imposed upon the parties by
the established rules of law is a relation of trust and confidence. The relation of trustee and
cestui que trust, principal and agent, client and attorney, employer and employee, who
through the employment gains either an interest in or a knowledge of the property or business
of his master, are striking and familiar illustrations of the relation. From the agreement which
underlies and conditions these fiduciary relations, the law both implies a contract and
imposes a duty that the servant shall be faithful to his master, the attorney to his client, the
agent to his principal, the trustee to his cestui que trust, that each shall work and act with an
eye single to the interest of his correlate, and that no one of them shall use the interest or
knowledge which he acquires through the relation so as to defeat or hinder the other party to
it in accomplishing any of the purposes for which it was created. (2 Sugden on Vendors, 8th
Am. ed. 406-409; Mechem on Agency, pp. 455, 456; Tisdale v. Tisdale, 2 Sneed, Tenn. 596,
608, 64 Am. Dec. 775; Ringo v. Binns, 10 Pet. 269, 280, 9 L. Ed. 420; McKinley v. Williams,
74 Fed. 94, 95, 20 C. C. A. 312, 313; Lamb v. Evans, 1 Chan. Div. 218, 226, 236;
Connecticut Mutual Life Insurance Co. v. Smith, 117 Mo. 261, 295, 22 S. W.
36 Nev. 623, 636 (1913) Lind v. Webber
623, 38 Am. St. Rep. 656; Van Epps v. Van Epps, 9 Paige, N. Y. 237, 241; 1 Lewis on Trusts,
246, 180; Davis v. Hamlin, 108 Ill. 39, 49, 48 Am. Rep. 541; Winn v. Dillon, 27 Miss. 494,
497; People v. Township Board, 11 Mich. 222, 225; Grumley v. Webb, 44 Mo. 444, 454, 100
Am. Dec. 304; Lockhart v. Rollins, 2 Idaho, Hasb. 540, 21 Pac. 413; Eoff v. Irvine, 108 Mo.
378, 383, 18 S. W. 907, 32 Am. St. Rep. 609; Robb v. Green, 2 Q. B. 315, 317, 318, 319,
320; Louis v. Smellie, 73 Law Times, 226, 228; Gardner v. Odgen, 22 N. Y. 327, 343, 350,
78 Am. Dec. 192.) * * * It is contended that no trust arose because Trice and Beamer had no
interest in or control over the lands. But no interest or control of the property to which the
agency relates is essential to the raising of the trust. The fiduciary relation and a breach of the
duty it imposes are sufficient in themselves. (Winn v. Dillon, 27 Miss. 494, 497; People v.
Township Board, 11 Mich. 222, 225; Grumley v. Webb, 44 Mo. 444, 454, 100 Am. Dec. 304;
Lockhart v. Rollins, 2 Idaho, Hasb. 540, 21 Pac. 413.) If one employs and pays an agent to
investigate the title or the character of land for the purpose of purchasing it, and the agent
uses the knowledge he acquires in this way to forestall his principal and obtain a title to the
property for himself, it is no answer to the suit of the former to recover the land from his
agent that the employer never had any title or interest in it, or that he was not injured by the
action of the agent. In Winn v. Dillon, 27 Miss. 494, 495, the complainant, Winn, employed
Dillon for the agreed compensation of $200 to search out and furnish to him the numbers or
descriptions of state lands which he might enter under an act of the legislature of the State of
Mississippi. Dillon furnished the descriptions pursuant to contract. But before Winn had
completed his entry of the lands Dillon entered them in his own name and for himself.
Neither of these parties had any interest in, or control over, this property at the time that the
contract of employment or agency was in force; but the court said: Winn's object was to
enter the lands; he had engaged the services of Dillon to that end, and this created the
relation of private trust and confidence which disabled Dillon from doing any act or
acquiring any interest in the property adverse to the interest of Winn'; and it declared
that the title in the hands of Dillon was charged with a trust for the use and benefit of his
employer, Winn.
36 Nev. 623, 637 (1913) Lind v. Webber
of Dillon to that end, and this created the relation of private trust and confidence which
disabled Dillon from doing any act or acquiring any interest in the property adverse to the
interest of Winn'; and it declared that the title in the hands of Dillon was charged with a trust
for the use and benefit of his employer, Winn. Concede that the complainants had no contract
for the purchase of this land from its owners, Reid and Green, yet they knew that it could at
any time be purchased for the price of $20 per acre. Their scheme was to buy it at that price
and sell it at a higher one. This was a legitimate business enterprise. The object of the agency
of Comstock was to carry out this plan. His use of the knowledge he acquired through his
agency to prevent his principals from accomplishing this purpose and to appropriate the
benefits of the scheme to himself alone was as flagrant a breach of confidence and as fatal to
his title to this property as it would have been if Trice and Beamer had held an unassailable
agreement for the purchase of the land. * * * Every agency creates a fiduciary relation, and
every agent, however limited his authority, is disabled from using any information or
advantage he acquires through his agency, either to acquire the property or to do any other act
which defeats or hinders the efforts of his principals to accomplish the purpose for which the
agency was established. * * * The truth is that the principle of law which controls the
determination of this case is not limited or conditioned by the interests, powers, or injuries of
the parties to the fiduciary relations. It is as broad, general, and universal as the relations
themselves, and it charges everything acquired by the use of the knowledge secured by virtue
of these trust relations and in violation of the duty and fidelity imposed thereby with a
constructive trust for the benefit of the party whose confidence is betrayed. It dominates and
controls the relation of attorney and client, principal and agent, employer and trusted
employee, as completely as the relation of trustee and cestui que trust. In Greenlaw v. King, 5
Jur. 19, Lord Chancellor Cottenham, speaking of this doctrine, says: 'The rule was one of
universal application, affecting all persons who came within its principle, which was that
no party could be permitted to purchase an interest when he had a duty to perform which
was inconsistent with the character of a purchaser.' In Hamilton v. Wright, 9 Cl.
36 Nev. 623, 638 (1913) Lind v. Webber
of this doctrine, says: The rule was one of universal application, affecting all persons who
came within its principle, which was that no party could be permitted to purchase an interest
when he had a duty to perform which was inconsistent with the character of a purchaser.' In
Hamilton v. Wright, 9 Cl. & Fi. 111-122, Lord Brougham declared that it is the duty of a
trustee to do nothing for the impairing or destruction of the trust, nor to place himself in a
position inconsistent with the interests of the trust.' And on page 124 he said: Nor is it only
on account of the conflict between his interest and his duty to the trust that such transactions
are forbidden. The knowledge which he acquires as trustee is of itself sufficient ground for
disqualification, and of requiring that such knowledge shall not be capable of being used for
his own benefit to injure the trust.' The rule upon this subject was clearly and not too broadly
stated in the American note to Keech v. Sandford, 1 White & T. Lead. Cases in Eq. (4th Am.
ed.) p. 62 (*page 58), in these words: Whenever one person is placed in such relation to
another, by the act or consent of that other, or the act of a third person, or the law, that he
becomes interested for him, or interested with him, in any subject of property or business, he
is prohibited from acquiring rights in that subject antagonistic to the persons with whose
interests he had become associated.'
Regarding joint adventures it is said, in 23 Cyc. 454: If no date is fixed by the contract for
the termination of the adventure, or its termination is dependent upon the happening of a
contingency, the agreement remains in force until the purpose is accomplished, or the
happening of the contingency, and neither party can end it at will by notice or otherwise. * * *
Where property is purchased as a joint venture, it is not material in whose name the title is
taken, as any one holding the title will be regarded as trustee for his associates. * * * Persons
united for a common purpose must be loyal to that purpose and each other. None may,
without the consent of all the associates, appropriate to his own use the common
property, or by his dealing therewith secure an unfair advantage over those interested
with him.
36 Nev. 623, 639 (1913) Lind v. Webber
consent of all the associates, appropriate to his own use the common property, or by his
dealing therewith secure an unfair advantage over those interested with him. An advantage or
profit secured by one inures to the benefit of all. * * * Those aiding him in procuring an
advantage may, in equity, be held equally liable with him for the fraud.
Over the citation of many authorities, these principles are stated by Mr. Pomeroy at
sections 918, 959, 1044, and 1050 of the third edition of his work on Equity Jurisprudence.
He says: A trustee or person clothed with a fiduciary character shall not be permitted to use
his position or function so as to obtain for himself any advantage or profit inconsistent with
his supreme duty to his beneficiary. * * * As between the cestui que trust and trustee and all
the parties claiming under the trustee, otherwise than by purchase, for valuable consideration
without notice, all property belonging to the trust, however much it may be changed or altered
in its nature or character, and all the fruit of such property, whether in its original or its
altered state, continues to be subject to or affected by the trust. Other cases in point are cited
in the note in 17 Ann. Cas. at page 1022. In Root v. Railway Co., 105 U. S. 215, 26 L. Ed.
975, it was held that trust property may be followed wherever it can be traced and into
whosesoever possession it comes, except that of a bona fide purchaser without notice.
6. Two days after the entry of judgment the plaintiffs filed and served a notice of motion to
retax costs. Later the defendants objected to the hearing of motion to retax costs because no
motion to retax had been filed within two days after the entry of judgment. We think the
court erred in making the order that defendants' objections to the hearing of the motion to
retax costs be sustained, and that the proceeding be dismissed. An opinion in regard to this
order may be filed later.
The judgment of the district court in favor of the defendants and the order refusing to grant
a new trial are reversed, and the case is remanded for a new trial.
36 Nev. 623, 640 (1913) Lind v. Webber
are reversed, and the case is remanded for a new trial. The order sustaining the objections to
the hearing of the motion to retax costs and dismissing the proceeding to retax costs is also
reversed.
McCarran, J., having become a member of the court after the argument and submission of
the case, did not participate in the opinion.
[Petition for a rehearing pending.]
Supplemental Opinion on Costs
The plaintiffs took a separate appeal from an order sustaining objections to and dismissing
their motion to retax costs. This appeal was presented, briefed, and argued at the same time as
the one upon the merits. In the decision upon the merits, recently rendered, we included an
order reversing the order of the district court sustaining the objections to the motion to retax
costs, and intimated that an opinion in regard thereto might be filed later.
1. The question presented is whether, under rule 34, which provided that 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, which rule was in force at the time the order was made by the district
court, and has since been superseded by section 445 of the new practice act (Rev. Laws,
5387), a notice of motion to retax costs, filed and served within two days after service of
the cost bill, was sufficient, without actually filing and making in court within that time a
motion to retax.
The cost bill was filed and served on Saturday, June 26. On Monday, June 28, respondents
filed and served a notice stating that on Saturday, July 10, the plaintiffs will move the
above-entitled court for an order to retax defendants' costs and disbursements herein and
to strike out the defendants' memorandum of costs and disbursements," specifying
certain items aggregating $1,SSS.45.
36 Nev. 623, 641 (1913) Lind v. Webber
defendants' costs and disbursements herein and to strike out the defendants' memorandum of
costs and disbursements, specifying certain items aggregating $1,888.45. The court was not
in session on July 10, and the matter eventually came on for hearing on August 21, when the
plaintiffs moved the court orally for an order to retax costs. The defendants objected to the
consideration by the court of any motion to retax, upon the grounds: That plaintiffs did not
move to retax costs within two days after the service on them of defendants' cost bill; that no
motion to retax costs has ever been filed or recorded; that there was no motion pending
before the court, and the defendants moved the court to dismiss this hearing and proceeding.
In its order the court said: That no motion or other paper relative to the retaxing of costs,
other than the said notice, was served, filed or recorded in this court, and there is no motion
before the court at this time for its consideration. That the plaintiffs did not move to retax
costs within two days after service upon them of a copy of defendants' cost bill, or as
provided by rule 34 of this court. It is therefore ordered that defendants' objections to the
hearing by the court of a motion to retax the costs herein be sustained, and that this
proceeding be dismissed.
It is claimed that the trial court was not authorized to retax costs, first, because plaintiffs
did not move within two days; and, secondly, because the notice given was opposed to the
spirit of rule 34. It is said that, as defined by statute, an application for an order is a motion,
that notice to opposing counsel is not an application to the court, and that the word move
expresses action and not intention. It will be observed that the court rule does not use the
word motion, but states that the party shall have the two days in which to move to retax
costs.
If for the argument it be conceded that an application for an order is a motion, it does not
necessarily follow that every move made by a party in legal proceedings must be by
"motion."
36 Nev. 623, 642 (1913) Lind v. Webber
must be by motion. If the court were inclined to enforce the literal language of the rule,
instead of giving it a liberal interpretation, it might still be said that by first filing and serving
a notice that on a certain day he will apply to the court for an order a litigant makes a move to
retax costs.
Careful lawyers usually follow the better practice, which recognizes the well-known
distinction between a motion and a notice of motion; but we conclude that justice will be
better served by holding that notice of the motion was sufficient until the motion was made
before the court at the time of the hearing. We have often held that an oversight or
technicality which did not affect the substantial rights of the parties should be disregarded.
(State v. Mircovich, 35 Nev. 485.)
Under the decisions of the Supreme Court of California such practice would be allowable, if
the court rule had directly provided that a Motion to retax the costs should be made within
two days after service of cost bill. At the time this court rule was adopted there were only
three district judges in the state, and in most of the counties, as in several of them now, a
district judge was seldom present, and usually a motion to retax costs could be heard or made
in open court for a much longer period than two days. The statute has long provided that at
least two sessions of court annually must be held in the county. The filing and service of
notice of motion to retax costs within two days after the service of the cost bill was sufficient,
until such time as a session was held and a motion could be presented to the court.
Section 1033 of the California code of civil procedure provides that a party dissatisfied
with the costs claimed may, within five days after notice of the filing of the bill of costs, file a
motion to have the same taxed. In Carpy v. Dowdell, 129 Cal. 244, 61 Pac. 1126, the
supreme court held that it was error for the trial court to refuse to hear the motion to retax
costs on the ground that it was not in writing, and in the opinion said: The reason and
intention of the lawgiver will control the strict letter of the law in interpreting the same,
when to adhere to the strict letter would lead to injustice or absurdity.
36 Nev. 623, 643 (1913) Lind v. Webber
intention of the lawgiver will control the strict letter of the law in interpreting the same, when
to adhere to the strict letter would lead to injustice or absurdity. The substance of the law as it
stands is that the party who is dissatisfied with the bill of costs as filed must within a certain
time make his objection known and the grounds on which he will move the court to correct or
strike out the cost bill. When this is done by the proper notice in writing, served and filed,
specifying the time when the application to the court or judge will be made, the object of the
law would seem to have been complied with, and no useful purpose would be subserved by
requiring the motion to be committed to writing, instead of being made orally to the court or
judge in the usual manner. It is one of the maxims of the law that it respects form less than
substance.
In Kishler v. Southern Pacific R. Co., 134 Cal. 636, 66 Pac. 848, the court said: It is
claimed that defendant's motion came too late, and that serving the written notice of the
motion was not sufficient, but that the motion itself should have been filed within five days
after the notice of the bill of costs. (Code Civ. Proc. 1033.) The universal practice in this state
has been to serve and file written notice of the motion to tax the cost bill as the equivalent of
filing a motion, within five days, and on the day designated in the notice, or the day to which
the hearing shall have been postponed, to call up the notice and make the motion viva voce; a
note of the motion being made by the clerk on his minutes. We think this practice is sufficient
compliance with the statute.
In addition to the general rules, the district court of Esmeralda County has in force one
known as rule 46, which provides: Each Saturday, unless the court be not sitting, shall be
known as Calendar Day,' and the order of business on such day shall be as follows: 5.
Hearing questions of law previously noticed for hearing as hereinafter provided. On
Calendar Day' no motions or demurrers will be heard, unless written notice, properly
entitled in the cause, shall have been properly served on opposite counsel not later than
Monday of the same week, and filed not later than Thursday of each week."
36 Nev. 623, 644 (1913) Lind v. Webber
entitled in the cause, shall have been properly served on opposite counsel not later than
Monday of the same week, and filed not later than Thursday of each week.
2. It is contended that under rule 34 the party must act promptly, and that appellants should
have noticed the hearing of the motion for July 3 instead of July 10. Although the amount of
costs to be allowed after judgment should be speedily determined in case of dispute, we do
not regard the notice of the hearing for the second Saturday, instead of for the first Saturday,
or calendar day, after service and filing of the notice as prejudicial. If respondents were likely
to be damaged, or felt aggrieved by reason of the hearing being noticed for a date later than
necessary, they could have asked the court to shorten the time for notice, and to require
appellants to appear and have the hearing on the first calendar day.
order of dismissal
Per Curiam:
The appellants in the above-entitled action, having on the 10th day of February, 1914, and
while the cause was pending on a petition for rehearing, filed in this court a statement to the
effect that the claim upon which the suit was brought has been fully paid, satisfied, and
discharged, and consenting and requesting that a judgment of dismissal be entered herein, and
that such dismissal operate as a retraxit, each party paying his own costs, and the respondents
appearing and consenting thereto, therefore.
It is ordered, That the above-entitled action be, and the same hereby is, dismissed, each
party to pay his own costs.
____________
36 Nev. 645, 645 (1913) Esden v. May
[No. 1887]
AMANDA ESDEN, Appellant, v. JAMES MAY, JOHN NOLAN, and THE GOLDEN
HOTEL COMPANY, (a Corporation), Respondents.
[See page 611, ante]
Rehearing granted.
____________
[No. 2076]
GERTRUDE ELEANOR TIEDEMANN, Appellant, v.
RUDOLPH ERNEST TIEDEMANN, Respondent.
Rehearing denied.
Talbot, C. J., and Norcross, J., concur in the order.
____________
36 Nev. 645, 645 (1913) State v. Clark
[No. 1909]
STATE OF NEVADA, Respondent, v. BERNARD
CLARK, Appellant.
[NotePetition for a rehearing pending.]
____________

[No. 1942]
ROUND MOUNTAIN MINING COMPANY (a Corporation), Appellant, v. ROUND
MOUNTAIN SPHINX MINING COMPANY (a Corporation), Respondent.
Order
Upon application of counsel for respondent and without any determination by the court as
to whether there is any right to a further rehearing, and subject to all legal objections, the
respondent is allowed fifteen days from and after this date in which to file and serve a petition
for rehearing.
[NoteIn pursuance of the foregoing order, respondent filed a petition for rehearing
February 16, 1914.]
____________
[No. 2050]
JOHN W. LAWSON, Respondent, v. HALIFAX-
TONOPAH MINING COMPANY, Appellant.
[NoteWrit of error to the Supreme Court of the United States granted.]
____________
36 Nev. 647, 647 (1913) In Memoriam
PROCEEDINGS
IN THE
Supreme Court of the State of Nevada
____________
Monday, October 6, 1913.
PresentHon. G. F. Talbot, Chief Justice.
Hon. F. H. Norcross,
Hon. P. A. McCarran,

}
Associate Justices,

and the Officers of the Court
The committee heretofore appointed by the Court to draft appropriate resolutions
expressing the sentiments of the Court and Bar upon the death of Honorable M. S.
Bonnifield, formerly a Justice and Chief Justice of this Court, presented the following:
MEMORIAL
M. S. Bonnifield was born in West Virginia on the 14th day of September, 1832, and was
consequently nearly eighty-one years of age at the time of his death.
He was admitted to the bar in the State of Kansas in 1856, and was soon identified as one
of the leading attorneys of that State. He soon thereafter became interested in politics, allied
himself with the Free-Soil Party, and was twice elected to the State Senate.
He crossed the plains in 1861, arriving at Red Bluff, California, and remained there until
the summer of 1862, when he removed to Nevada, locating at Unionville, Humboldt County,
the then county-seat of that county, where he opened a law office, and during the years of his
residence there enjoyed a large and lucrative practice. With the decline of Unionville with the
construction of the railroad, he removed to Winnemucca, where he continued to reside up to
the time of his death.
He was elected to the State Senate from Humboldt County in 1869, and by energy,
wisdom, and ability made himself a leading factor in that body, on all occasions displaying a
patriotic interest, not only on behalf of his constituents and locality, but for the entire
State.
36 Nev. 647, 648 (1913) In Memoriam
displaying a patriotic interest, not only on behalf of his constituents and locality, but for the
entire State.
In 1892 he was chosen by the people of Nevada as a Presidential Elector, and by that body
was selected to and did carry the electoral votes of this State to Washington.
In 1894 he was chosen a Justice of the Supreme Court and served a full term of six years,
with honor to himself and the highest credit to the State.
He was married in 1855 at Meadville, Pennsylvania, to Miss Laura Ames, and three
daughters, the issue of said marriage, survive him, all of whom were at his bedside at the time
of his death. Mrs. Bonnifield died in 1887, and in 1889 he married Mrs. Nellie Lovelock,
widow of the late George Lovelock, Jr., whose father was the founder of the town of
Lovelock, who survives him.
His entire life was one of industrious and unusual activity, not confined to his legal
business alone, but identified with every industry of our State. He was an able writer, and
contributed greatly to literature touching the subjects of paramount interest to our State. He
brought to the discharge of his judicial functions a profound knowledge of the law, a clear,
calm, and analyzing intellect, unbiased by fear or favor.
Recognizing the full worth of the deceased, and fully appreciating the great loss sustained
by the bench and bar and the people of this State, and by those who were near and dear to
him, we recommend the adoption of the following resolution:
Resolved, That in the death of Judge Bonnifield, the bench, the bar, the people, the State,
and his kindred and relatives have sustained a great loss.
Be It Further Resolved, That our sympathies are extended to his relatives in their sad
bereavement, and in respect to his memory that this Court stand adjourned.
Respectfully submitted,
W. A. Massey,
Benjamin Curler,
T. A. Brandon.
36 Nev. 647, 649 (1913) In Memoriam
After the presentation of the resolutions, Judge Massey spoke as follows:
I cannot at this time forbear making a short statement concerning Judge Bonnifield as I
knew him, and I presume that there is no practitioner at the bar of this State at this time,
perhaps with one or two exceptions, who knew Judge Bonnifield as intimately and as well as
I knew him during the last years of his live. For four years he and I occupied the adjoining
chambers in the discharge of official duties as members of this Court; and, while I had an
acquaintance with him extending many years prior to that time, those four years of
association developed three big traits of character dominating his life that the younger
members of the profession and the people who did not know him could well emulate.
The first big trait of character that Judge Bonnifield impressed upon my mind as a
controlling factor in his life was his unbounded charity. I do not mean, if your Honors please,
the charity that gives from the purse, because he was liberal in that way, but a broader
charitythat Christian charity spoken of in the New Testament. No matter what was said; no
matter how bitter the saying wasand in those days there were some bitter things
saidJudge Bonnifield never complained, and when his attention was called to unkind
criticisms and unkind things that were said and done, with a smile he stated that life was too
short to be annoyed or to suffer annoyance with matters of so little importance as those things
were. I never heard him, during the four years of intimate acquaintance I had with him, as
close perhaps as that of any other in my life, utter an unkind word of anybody. If he could not
say something commendatory of the person about whom he was speaking, Judge Bonnifield
had the magnificent character to remain silent and say nothing.
The second characteristic impressed upon my mind, during the association to which I
have referred, was Judge Bonnifield's constant application to the discharge of every duty that
he was called upon to perform. He was early to his office; he was late to leave his office
during those four years; and, there being nothing but a door between his chambers and
my chambers, I saw him nearly every hour of the day; and I have tried since this Court
honored me with the position on this committee to remember an occasion when Judge
Bonnifield was idle in his chambers, and I am unable at this time to recall a single
instance when I have entered those chambers, either on business or in a social way, and
did not find Judge Bonnifield bringing to the discharge of the duties of the high office of a
Justice of this Court his constant time and his constant energy.
36 Nev. 647, 650 (1913) In Memoriam
was early to his office; he was late to leave his office during those four years; and, there being
nothing but a door between his chambers and my chambers, I saw him nearly every hour of
the day; and I have tried since this Court honored me with the position on this committee to
remember an occasion when Judge Bonnifield was idle in his chambers, and I am unable at
this time to recall a single instance when I have entered those chambers, either on business or
in a social way, and did not find Judge Bonnifield bringing to the discharge of the duties of
the high office of a Justice of this Court his constant time and his constant energy.
There was one other feature of his life and character with which I was impressed, and that
was his clear, clean, analytical mind. He started into the decision of a question without
prejudice either in one way or another, and it seemed to me that he started in for the purpose
of ascertaining what the truth was; that it was his endeavor to solve the question that came
before the Court upon the theory of rightupon that broad idea of right that is narrowed
sometimes in the decisions of courts upon a technical construction of statutes and the law.
And as a result he has left in the reports of this State a monument of clear analytical decisions
that is not surpassed by any of the States of the Union, taking into consideration the results
accomplished. He and I did not at all times agree; and yet in any disagreement as to the
discharge of our official duties there never was, so far as he was concernedand I speak
from what I knowthere never was at any time the slightest feeling or the slightest desire to
criticize me or any other person who disagreed with him.
Judge Bonnifield lived to a ripe old age. I knew him intimately during the years that I
have mentioned, and, as I stated to your Honors a few moments ago, I could not forbear at
this time adding to what has been stated in the resolution these words of commendation of a
man who went through life with the broadest charity, with a clear mind and with a constant
effort, even when in distress, to discharge every duty that he owed to the State in an official
capacity, and every duty that he owed to the State and Government as a citizen, faithfully
and well.
36 Nev. 647, 651 (1913) In Memoriam
State in an official capacity, and every duty that he owed to the State and Government as a
citizen, faithfully and well. And I believe this Court could no more fittingly honor the
deceased than by adjourning out of respect to his memory.
Benjamin Curler and Prince A. Hawkins also delivered short tributes to the memory of
Justice Bonnifield.
The Chief Justice responded:
The bench joins the bar in deploring the loss of this distinguished jurist, who formerly
presided over the Court. He was one of those bold and adventurous spirits who left the
comforts of home while young to face the dangers and undergo the hardships incident to a
new country. He possessed not only exceptional ability, but a pleasing appearance, poise, and
dignity to an unusual degree. He was so strong that these good qualities were not lessened by
rough experiences. With his sturdy character and robust constitution, after enduring the
privations of a pioneer, he lived far beyond the average life allotted to mortal man. His was
the exceptional honor of having delivered two Fourth-of-July orations in the same town,
Unionville, fifty years apart. Notwithstanding the good age to which he survived, we are
never ready to part with men so distinguished and useful.
The Court thanks the committee for the appropriate resolutions, and the addresses are
appreciated. The resolutions will be spread upon the minutes and will be published in the next
volume of decisions of the Court. A copy of the resolutions will be sent to the family of the
deceased, and the Court will adjourn for the day out of respect to his memory.
____________

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