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55 Nev.

1, 1 (1933)
REPORTS OF CASES
DETERMINED BY THE
SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 55
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55 Nev. 1, 1 (1933) Austin v. Dilday
AUSTIN v. DILDAY
No. 3009
July 5, 1933. 23 P. (2d) 504.
1. New Trial.
Notice of decision rendered, in substantial compliance with statute and served on defendant, held
sufficient to commence time for notice of intention to move for new trial (Comp. Laws 1929, sec. 8879).
2. New Trial.
Letter notifying defendant that adverse decision would be rendered, and that decision would be signed,
held insufficient to commence time for notice of intention to move for new trial (Comp. Laws 1929, sec.
8879).
3. New Trial.
Mere serving of copy of decision signed by judge without notifying other party in writing that decision
was rendered, held insufficient to commence time for notice of intention to move for new trial (Comp.
Laws 1929, sec. 8879).
4. New Trial.
Statute prescribing time for filing notice of intention to move for new trial can be complied with only by
plain, direct written notice of decision of trial judge (Comp. Laws 1929, sec. 8879).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Mary Hortense Proctor against Claborn Dilday, wherein Harry H. Austin, as
executor, etc., was substituted as plaintiff. From an order striking from the files the
defendant's notice of intention to move for a new trial after a decision in favor of the plaintiff,
the defendant appeals. Ordered reversed.
Henderson & Marshall, for Appellant:
The notice of decision contemplated by section 8879 N. C. L., is a notice which should
come from the prevailing party. Biagi v. Howes, 6 P. 100; Hayne on New Trial and Appeal,
1912 Edition, p. 119; Fornie v. Yoell, 47 P. at p. 1018.
In the case of Jenkins v. Stephens, 231 P. 114, the supreme court of Utah touched directly
upon the question of the proper manner of serving written notice. See, also, Fry v. Bennett
(N.Y.), 16 How. Prac. 402.
Construing section 8921 N. C. L. with section 8879 N. C. L., it appears to the writer that
the entry of the decision of June 27, 1932, was nothing more than a subsequent
proceeding to appearance of the defendant, and that counsel for defendant was entitled
to notice of that proceeding.
55 Nev. 1, 2 (1933) Austin v. Dilday
N. C. L., it appears to the writer that the entry of the decision of June 27, 1932, was nothing
more than a subsequent proceeding to appearance of the defendant, and that counsel for
defendant was entitled to notice of that proceeding.
If we are entitled to notice of decision from the adverse party, which we contend we are
and which we believe was the intention of the legislature at the time they inserted the word
written in the statute, we feel that we are properly in court, as the only notice ever served
upon us, tantamount to a notice of decision, was the notice relative to the court's written
decision, served upon us by Mr. Austin on the 15th day of August 1932.
While we have no decisions from the supreme court of this state directing what procedure
shall be taken in the matter of serving notice of decision, we have two cases which reasonably
approach the subject. D'Errico v. D'Errico, 51 Nev. 76, 269 P. 26, 4th headnote; Kondas v.
Washoe County Bank, 50 Nev. 181, 254 P. 1080, 4th headnote.
Harry H. Austin and Albert Duffill, for Respondent:
The record shows that a true and correct copy of the court's decision was delivered to the
attorneys for the appellant, by the clerk of the trial court, prior to July 1, 1932. Using the
words of the trial court when passing upon the very point here in issue, the respondent
maintains that this was written notice of the highest order. It was signed by the judge
himself and by his order was served by the clerk. So we see that if appellant did not have
notice according to the common practice of attorneys in the district, he at least had such
notice as has been sanctioned by this court in the case of Linville v. Scheeline, 30 Nev. 106,
93 P. 225. And we believe that appellant may have difficulty in establishing that common
practice in Nevada where death occurs at just the stage of the proceeding as in the instant
case.
Surely counsel for appellant cannot plead surprise in any way, shape or form. Judge
Hawkins' letter of June 24, 1932, told them that the same letter went forth to us, and also
that he was directing the clerk to serve a written copy of his decision upon the attorneys
for both litigants.
55 Nev. 1, 3 (1933) Austin v. Dilday
24, 1932, told them that the same letter went forth to us, and also that he was directing the
clerk to serve a written copy of his decision upon the attorneys for both litigants. We filed and
served a cost bill within five days after receiving said copy of the court's decision. The record
also shows that counsel for appellant received notice from us of our motion for an order
substituting this plaintiff, as executor, as party plaintiff in place of Mary Hortense Proctor,
deceased, and that they were present in court at the hearing of said motion on August 3, 1932,
and objected thereto. It also appears that attached to the notice of motion referred to was an
affidavit reciting certain facts in the history of the case, among them the filing of the decision
and that proposed findings of facts, conclusions of law and judgment and decree were served
upon counsel for appellant on July 14, 1932, and filed with the clerk. After substitution of
this plaintiff, counsel for appellant were served by us with our proposed findings and a
second cost bill.
OPINION
By the Court, Ducker, J.:
This is an appeal from an order of the Eighth judicial district court of Nevada made and
entered on the 19th day of October 1932, striking from the files the appellant's notice of
intention to move for a new trial. It appears from the bill of exceptions that a complaint was
filed in the action by Mary Proctor claiming damages from Claborn Dilday for injuries
sustained by her due to his negligence in turning over an automobile in which she was riding
as his guest in the city of Las Vegas, in Clark County. The action was tried by the court, Hon.
L. O. Hawkins, district judge of the Sixth judicial district court, presiding in the place of the
district judge of the said Eighth judicial district.
After the conclusion of the trial, Judge Hawkins returned to his home in Winnemucca,
Nevada, and there, on the 22d day of June 1932, signed a decision in favor of the plaintiff,
Mary Proctor.
55 Nev. 1, 4 (1933) Austin v. Dilday
in favor of the plaintiff, Mary Proctor. On the 23d day of June, A. D. 1932, said Mary Proctor
died and Judge Hawkins was apprised of that fact on that date by a telegram from the
attorneys for appellant and by separate telegram from one Harry H. Austin, attorney for said
Mary Proctor. Judge Hawkins replied by letter of date June 24, 1932, to the senders of the
telegrams and stating that he had written his decision in favor of Mary Proctor on June 22,
1932, the day before her death, and that he believed it proper that such decision be filed in the
action. He also stated that he was on that date, to wit, June 24, 1932, returning to the clerk at
Las Vegas the files in the case, together with original of decision and two copies thereof, with
directions that the original be filed and a copy thereof delivered to attorneys for plaintiff and
to the attorneys for defendant. He further stated that the letter was written in duplicate, one of
which would be mailed to Austin, and the other to Stevens, Henderson & Marshall. The three
latter were attorneys for defendant, appellant here. On June 27, 1932, said Austin called at the
office of the clerk of the court in Las Vegas and inspected the original decision filed in the
office of the clerk on that date and did then and there receive from said clerk a true and
correct copy of the decision bearing on the first typewritten page thereof in the margin, the
initials of judge Hawkins in his handwriting, and the date thereof, thus: L.O.H. 6/22/32,
and bearing on the second and concluding typewritten page thereof, at the end of said
document, the original signature of Judge Hawkins. It appears from the bill of exceptions by
the affidavit of William L. Scott, clerk of the Eighth judicial district court, that on the 27th
day of June 1932, he received through the United States mail at Las Vegas, Clark County,
Nevada, from Judge Hawkins at Winnemucca, Nevada, the original decision in the case, and
pursuant to instructions of said judge did on the same day file the same; that he received with
the original decision two exact copies thereof, each bearing the signature of Judge Hawkins,
with instructions from him to deliver one copy thereof to Harry H.
55 Nev. 1, 5 (1933) Austin v. Dilday
signature of Judge Hawkins, with instructions from him to deliver one copy thereof to Harry
H. Austin, attorney for plaintiff, and one copy thereof to Stevens, Henderson & Marshall,
attorneys for defendant; that thereafter on the 27th day of June 1932, affiant delivered to said
Harry H. Austin a copy thereof, and thereafter, and prior to July 1, 1932, affiant delivered to
said Stevens, Henderson & Marshall one copy thereof. On July 1, 1932, said Harry H. Austin
served on appellant's attorney and filed with the clerk a memorandum of costs and
disbursements to which was attached his affidavit which contained among other matters
certain facts relative to the court's decision.
On July 14, 1932, written notice was given to defendant and his attorneys at their office in
Las Vegas, Nevada, of a motion for an order substituting Harry H. Austin as executor of the
estate of Mary Hortense Proctor as party plaintiff in this action in place of Mary Proctor,
deceased, to which notice was attached the affidavit of Harry H. Austin containing, under the
name and title of this case, as it then existed, the following words: That thereafter and on the
22nd day of June, A. D. 1932, said court made and signed a written decision of the case, at
Winnemucca, Nevada, awarding plaintiff damages in the sum of $36,733.40, and that said
written decision was filed herein by the clerk on June 27th, A. D. 1932, and that the same
directs plaintiff to prepare, serve and file her proposed Findings of Facts, Conclusions of
Law, Judgment and Decree of Court in conformity therewith.
Thereafter on the 15th day of August 1932, said Harry H. Austin served upon counsel for
appellant and filed with the clerk a notice, a copy of a part of which is as follows:
In the Eighth Judicial District Court of the State of
Nevada, in and for the County of Clark.
Harry H. Austin, as executor of the Estate of Mary
Hortense Proctor, deceased, Plaintiff, v. Claborn
Dilday, Defendant.
55 Nev. 1, 6 (1933) Austin v. Dilday
Notice Relative to Court's Written Decision
of the Case.
To Clayborn Dilday, the defendant above named, and to Messrs. Stevens, Henderson &
Marshall, his attorneys herein:
You, and each and every of you, will please take notice that heretofore and on the 22nd
day of June, A. D. 1932, the Honorable L. O. Hawkins, the District Judge who presided at the
trial of this action which was then entitled in this court, Mary Proctor, plaintiff, vs. Claborn
Dilday, defendant,' made and signed his, and the Court's written decision of this case, wherein
and whereby the court did decide that plaintiff is entitled to recover as damages from the
defendant herein the sum of $2,162.00 for medical attention, hospital fees, nursing and
incidental expenses, paid and incurred by her from the time of her injuries, until the trial of
this action; the sum of $500.00 for earnings lost from the time of the accident until the trial of
this action; and the sum of $34,071.40 as compensatory damages for loss of future earnings,
and for physical and mental pain and suffering, and also her costs herein, and wherein
whereby the court did order that judgment be entered in favor of plaintiff and against
defendant for the sum of $36,733.40 together with costs of suit and wherein and whereby the
court did direct plaintiff to prepare, serve and file her proposed Findings of Facts,
Conclusions of Law, Judgment and Decree of Court, in conformity with said decision, and
you and each and every of you will further take notice that said written decision of the case
was filed herein with the clerk of this court on Monday, the 27th day of June, A. D. 1932. * *
*
On the 18th of August 1932, appellant filed and served his notice of intention to move for
a new trial. Thereafter judge Hawkins reassigned the case to the judge of said Eighth judicial
district court for the purpose of entertaining and determining the motion to strike from the
files the notice of intention to move for a new trial, which was stricken as aforesaid.
55 Nev. 1, 7 (1933) Austin v. Dilday
The main question to be determined is whether the notice of intention to move for a new
trial was filed in time under the provisions of section 8879 N. C. L. The section reads: The
party intending to move for a new trial must, within five days after the verdict of the jury, if
the action was tried by jury, or within ten days after written notice of the decision of the court,
or referee, if the action was tried without a jury, file with the clerk, and serve upon the
adverse party a notice of his intention, designating the grounds upon which the motion will be
made, and whether the same will be made upon affidavits or upon the minutes of the court.
1. We think the notice of intention to move for a new trial was filed in time. The notice of
August 15, 1932, just quoted, was the only notice shown to have been served upon appellant
that was in substantial compliance with the statute and therefore sufficient to cause the time
to begin to run in which he could file and serve his notice of intention to move for a new trial.
Appellant's notice of intention to move for a new trial was filed and served three days
thereafter.
2. Judge Hawkins' letter to appellant's attorneys is not shown to have been received by
them. Even if received it was in effect nothing more than a notice that a decision would be
rendered in favor of respondent. The signing of the decision was not a rendition of it. The
decision was not rendered until it was filed. Carpentier v. Thurston, 30 Cal. 123.
As shown by the affidavit of the clerk the decision was filed on June 27, 1932. The
affidavit of the clerk also shows that he received with the decision two exact copies thereof
each bearing the signature of said judge, one of which, pursuant to instructions of Judge
Hawkins he did on the same day deliver to Stevens, Henderson & Marshall. The clerk's
affidavit, however, does not show that he placed the file marks on said copy or otherwise
notified them that the decision had been filed.
3, 4. It is argued by respondent that written notice of the decision must be served by the
adverse party, but be that as it may, we think the mere serving of a copy of a decision signed
by the judge without notifying the other party in writing that such has been rendered,
does not satisfy the statute.
55 Nev. 1, 8 (1933) Austin v. Dilday
copy of a decision signed by the judge without notifying the other party in writing that such
has been rendered, does not satisfy the statute. By the former mode the rendition is left to
implication. The notice alleged to have been served on July 1, 1932, in connection with the
memorandum of costs and disbursements was also ineffective. The same may be said of the
notice alleged to have been given with the motion for substitution. They were too indirect in
character. Compliance with the statute can only be made by a plain direct written notice of the
decision.
The order striking the notice of intention to move for a new trial is hereby reversed.
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55 Nev. 8, 8 (1933) Electrical Products Corp. v. District Court
ELECTRICAL PRODUCTS CORPORATION v. SECOND JUDICIAL DISTRICT COURT,
in and for Washoe County Et Al.
No. 3018
July 5, 1933. 23 P.(2d) 501.
1. Certiorari.
Words party beneficially interested within certiorari statute is not restricted to one who was original
party or made party by order of court (Comp. Laws 1929, sec. 9232).
Comp. Laws 1929, sec. 9232, provides that the application for a writ of certiorari shall be made on
affidavit by the party beneficially interested.
2. Certiorari.
Certiorari has been awarded to persons whose rights are adversely affected in causes not litigated inter
partes (Comp. Laws 1929, sec. 9232).
3. Certiorari.
Test in determining whether party is entitled to certiorari is whether applicant is party in form or
substance to proceedings, and concluded by determination therein (Comp. Laws 1929, sec. 9232).
4. Certiorari.
Person not beneficially interested in case could not sue out certiorari, even though he were party (Comp.
Laws 1929, sec. 9232).
5. Certiorari.
Creditor of defendant for whom receiver was appointed in action by simple contract creditor
held proper party to sue out certiorari {Comp.
55 Nev. 8, 9 (1933) Electrical Products Corp. v. District Court
action by simple contract creditor held proper party to sue out certiorari (Comp. Laws 1929, sec. 9232).
6. Courts.
Where no attempt was made to serve defendant by publication and mailing of summons, and no property
of defendant was attached, court did not acquire jurisdiction.
7. Receivers.
Simple contract creditor who had not reduced claim to judgment, and had no lien on specific property,
held without standing to obtain appointment of receiver (Comp. Laws 1929, sec. 8749, par. 1).
Proceeding in certiorari instituted by Electrical Products Corporation against the Second
Judicial District Court, in and for Washoe County, and Thomas F. Moran, Judge of said
Court, to review the record in the case of A. A. Heglan against J. W. Beck. Proceedings
annulled and set aside.
J. W. Dignan and J. T. Rutherford, for Petitioner.
Sardis Summerfield, for Respondents.
OPINION
By the Court, Ducker, J.:
In compliance with a writ of certiorari issued upon the petition of the Electrical Products
Corporation, a corporation, the record in the above-entitled district court, in the case of A. A.
Heglan, Plaintiff, v. J. W. Beck et al., Defendants, has been certified to this court.
It appears from the petition and return that the complaint in the action in the lower court
was filed therein and summons issued thereon on November 16, 1932. It was alleged in said
complaint that there was then due, owing, and unpaid from said defendant J. W. Beck to said
plaintiff, A. A. Heglan, the sum of $550, as wages for work and labor performed by said
plaintiff at the special instance and request of defendant. On November 25, 1932, the plaintiff
filed an amended complaint and thereafter dismissed the action against all of the defendants
except J. W. Beck.
55 Nev. 8, 10 (1933) Electrical Products Corp. v. District Court
On the 28th of November 1932, on application of plaintiff, a receiver was appointed by the
order of the court to take charge of and control the assets and business of the defendant Beck.
The receiver duly qualified as such and took into his possession all of the property, business,
and assets of said Beck. On December 16, 1932, plaintiff filed his affidavit for service of
summons on defendant Beck by publication. Thereafter on said date the court ordered that
summons be served upon said Beck by publication and by deposit of the summons and
certified copy of the complaint in the post office directed to said Beck at his place of
residence. By virtue of proceedings had in such receivership, all of the property and assets of
said Beck were reduced to cash by sale. The receiver filed his final report and account of his
receivership, praying that the same be approved, settled, and allowed, and that the balance of
the assets in hand consisting of cash be distributed to certain creditors of the said defendant J.
W. Beck. Petitioner filed written objections to said report and account. Thereafter, on the 23d
day of March 1933, the said court made and entered its final order and judgment in said
receivership proceedings approving said report and ordering that the remaining funds in the
hands of the receiver be paid out and disbursed in the manner specified in the order, and that
thereupon the said receiver be discharged and his bondsmen released. On the 24th of March
1933, the petitioner appeared in said district court, and by its counsel moved the court for an
order setting aside and vacating all proceedings in said district court upon the grounds and for
the reason that the said court was without power or authority to take any proceedings on, give
or made any orders in said cause after the filing of the complaint and the issuance of
summons therein until jurisdiction of the person of said defendant Beck had been acquired by
personal service of summons upon said defendant or the court had acquired jurisdiction of the
property of said defendant by attachment or otherwise. After presentation and argument of
said motion to said district court, the same was thereupon overruled and denied, to which
ruling petitioner excepted.
55 Nev. 8, 11 (1933) Electrical Products Corp. v. District Court
the same was thereupon overruled and denied, to which ruling petitioner excepted.
The petition alleges that at all times mentioned herein petitioner was and now is a bona
fide creditor of said Beck, and is wholly without any remedy at law.
Upon the hearing in this court, respondent filed and argued a demurrer to the petition.
Two questions are presented for consideration. Is the petitioner a person entitled to invoke
the remedy of certiorari, and was the lower court without jurisdiction to proceed as it did? We
think both questions must be answered in the affirmative.
Under our statute, a party beneficially interested may sue out the writ. In this respect the
statute reads: The application shall be made on affidavit by the party beneficially interested.
* * * Section 9232 N. C. L.
1-3. The word party in the statute is not to be restricted in meaning to one who was an
original party or made a party by order of court. The writ has been awarded to persons in
causes not litigated inter partes where it was apparent that they had rights which were
adversely affected by the proceedings. A correct rule of interpretation is, we think, stated in
Starkweather v. Seeley, 45 Barb. (N. Y.) 164. The court said: I think the true test as to the
right of review is, was the person seeking to review, a party in form or in substance to the
proceeding sought to be reviewed so as to be concluded by the determination thereon?
4, 5. In 11 C. J. at page 135 the rule stated above is said to be the rule prevailing in most
jurisdictions, and which is generally recognized. See cases cited in note 2 to the text. 2
Spelling on Extraordinary Relief, p. 1620. Of course, under our statute one not beneficially
interested could not sue out the writ, even though he were a party. It appears from the petition
that petitioner is a creditor of the defendant Beck and injuriously affected by the proceedings;
that he appeared in the lower court and moved to vacate the proceedings. The petition shows,
therefore, that he was a party beneficially interested and entitled to prosecute the writ.
55 Nev. 8, 12 (1933) Electrical Products Corp. v. District Court
It clearly appears from the petition and return that after the action was commenced the trial
court acquired no jurisdiction to proceed as shown by the return. No appearance was entered
by any of the defendants named in the original complaint or by the defendant named in the
amended complaint. There was no service of summons personally or constructively to bring
any of the defendants within the jurisdiction of the court.
6, 7. After the order was made by the court for service of summons by publication and
deposit in the post office, no steps were taken to serve the defendant Beck by this method.
The property of defendant Beck was not seized under process attachment to create a lien upon
his property. The appointment of the receiver did not give the court jurisdiction of the res. It
is not a case in which the court had jurisdiction to appoint a receiver at all. The plaintiff is a
mere contract creditor and the defendant an individual debtor. The former has not reduced his
claim to a judgment, nor has he any right or interest in or lien upon the specific property of
the latter. The plaintiff therefore had no standing to obtain the appointment of a receiver for
the defendant's property. Davis v. Hayden (C. C. A), 238 F. 734, 738; State ex rel. Lebanon
Discount Corporation v. Superior Court of Marion County et al., 195 Ind. 174, 144 N. E. 747;
First Nat. Bank of Medford, Or., v. Stewart Fruit Co. (D. C.), 17 F. (2d) 621; 53 C. J. 30; 1
Tardy's Smith on Receivers (2d Ed.), sec. 272. The lower court said in Davis v. Hayden,
supra: * * * We take it to be an established principle of jurisprudence that a court of equity
is without power, in the absence of statutory authority, to appoint a receiver of the assets of an
individual debtor, or to enjoin the prosecution of claims against him, at the suit of a mere
contract creditor who has no lien or other security, and who asserts no right to subject any
specific property to the payment of his debt.
This is a clear statement of the general rule, applicable to the facts involved in this case. It
was pointed out in State v. Superior Court of Marion County, supra, that such was the rule
at common law.
55 Nev. 8, 13 (1933) Electrical Products Corp. v. District Court
out in State v. Superior Court of Marion County, supra, that such was the rule at common
law.
There has been no statutory change in this state to authorize the appointment of a receiver
for the property of an individual debtor on application of a mere contract creditor. That part of
paragraph 1 of section 8749 of N. C. L. providing for the appointment of a receiver in an
action by a creditor to subject any property or fund to his claim does not work such a
change. French Bank Case, 53 Cal. 495-552; In re Richardson's Estate (D. C.), 294 F.
349-357.
As the lower court was without jurisdiction of the person or property of the defendant
Beck, the proceedings under review should be annulled.
It is so ordered, and the same are hereby set aside.
It is further ordered that petitioner have judgment for its costs herein.
____________
55 Nev. 13, 13 (1933) Gordon v. Como Consolidated Mines Co.
GORDON v. THE COMO CONSOLIDATED MINES CO.
No. 2981
July 5, 1933. 23 P.(2d) 372.
1. Receivers.
Compensation of corporation's receiver and of his attorney is part of costs of receivership, and must be
accorded priority of payment over receiver's certificates.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett and B. F.
Curler, Judges.
Gurney Gordon was appointed receiver of The Como Consolidated Mines Company, and
from an order fixing his fee as receiver and the fee of his attorneys, and from an order
denying his motion for new trial, the receiver appeals. Reversed, and new trial ordered.
Cooke & Stoddard, for Appellant:
Allowable compensation of receiver and his attorneys constitute judicial administration
expense, taxable as costs, and constitute a first charge, having precedence over all other
claims against the receivership estate.
55 Nev. 13, 14 (1933) Gordon v. Como Consolidated Mines Co.
constitute judicial administration expense, taxable as costs, and constitute a first charge,
having precedence over all other claims against the receivership estate. And the trial court
erred in holding that where receivership assets are insufficient to pay the receiver and his
attorneys and all receivership general creditors in full, the items of receiver's compensation
and fees of his attorneys must prorate with all general receivership expense items. 53 C. J.
252, sec. 424.
OPINION
By the Court, Ducker, J.:
This case is before us on an appeal by Gurney Gordon, receiver of the respondent, from an
order fixing his fee as such receiver and the fee of his attorneys, and from an order denying
his motion for a new trial. The court ordered further that said receiver and his said attorneys
prorate with all other creditors of the receivership. Appellant's attorneys filed their opening
briefs on the merits and served the same on the attorney for the respondent. A motion to
dismiss the appeal was thereafter made. The motion was denied. 54 Nev. 440, 22 P.(2d) 127.
As the time for filing and serving a reply brief to appellant's opening brief on the merits had
expired, and no such reply brief had been filed, the court ordered the case submitted on the
merits for consideration and decision.
The receivership has extended since February 1923, and concerns the Como Consolidated
Mines Company, a Nevada corporation, which owned a number of patented and unpatented
lode claims with buildings, a mill site, reduction plant, machinery, and other property used in
connection therewith in Lyon County. The orders complained of were made after the hearing
of appellant's final report and petition for his discharge and release of official bond.
The amount of cash to be distributed is $12,187.30. The claims outstanding for receiver's
certificates and other expenses almost equal the above amount.
55 Nev. 13, 15 (1933) Gordon v. Como Consolidated Mines Co.
other expenses almost equal the above amount. The claims for the most part are for expenses
incurred by the receiver in managing the property of the insolvent corporation. The greater
part of these claims in represented by receiver's certificates issued largely to watchmen who
were kept on the ground to watch the machinery and buildings and who also did assessment
work on the claims belonging to the company.
The only question which need be determined, if determined in the affirmative, is whether
the court erred in ordering the fees of appellant and his attorneys to be prorated with all other
claims. We think the lower court erred in this respect.
It is well established that the compensation of a receiver and the compensation of his
attorney are a part of the costs of the receivership and must be accorded priority of payment
over receiver's certificates. In Campbell v. Nichols, 145 Wash. 614, 261 P. 408, 410, the court
said: It is, we think, a universal rule of law that the necessary and proper compensation of a
receiver and his attorneys is a part of the costs of the receivership and entitled to priority,
even over receiver's certificates. See Beckwith v. Carroll, 56 Ala. 12; McLane v. Placerville,
etc., R. Co., 66 Cal. 606, 6 P. 748; Jeffers v. New Jersey, etc., Co., 86 N. J. Eq. 402, 99 A.
189; St. Paul, etc., Co. v. Diagonal, etc., Co., 95 Iowa, 551, 64 N. W. 606; Ball v. Improved
Property, etc., Co. (C. C. A.), 247 F. 645; 53 C. J. 197; Clark on Receivers, p. 905; 2 Tardy's
Smith on Receivers, p. 1722, and note 3 and cases cited.
The orders appealed from are reversed, and a new trial ordered.
____________
55 Nev. 16, 16 (1933) Lothrop v. Seaborn
LOTHROP, County Treasurer, v. SEABORN, State Bank Examiner, et al., Respondents, and
H. C. GUILD Et Al., Interveners.
No. 3026
July 7, 1933. 23 P.(2d) 1109.
1. Banks and Banking.
Counties do not share any prerogative state may have as to prior payment of public funds deposited in
insolvent bank (Const. art. 1, sec. 2).
2. Banks and Banking.
Where county treasurer's bondsman issued depository bonds securing treasurer's deposit in bank
subsequently becoming insolvent, statutory requirement for bondsmen's consent to deposit was satisfied,
precluding county's claim of trust fund because of violation of statute (Comp. Laws 1929, sec. 2187).
3. Banks and Banking.
Deposit is not impressed with trust because made when bank is insolvent, unless bank is hopelessly
insolvent.
Appeal from First Judicial District Court, Lyon County; E. P. Carville, Acting District
Judge.
Suit by Ruel E. Lothrop, as Treasurer in and for Lyon County, against E. J. Seaborn, as
State Bank Examiner, and another. Judgment for defendants, and plaintiff appeals. Affirmed.
Gray Mashburn, Attorney-General, and John R. Ross, District Attorney, for Appellant:
A county's right to a preferred claim against an insolvent public depositary are the same as
the rights of the statethe county being a subdivision of the state. Leach v. U. S. Bank, 213
N. W. 528 (Iowa).
Where a statute forbids deposit of public funds by the treasurer unless authorized by the
county commissioners, and that a bond be given by the bank, a deposit made by the treasurer
without such authorization is unlawful, and, as between the county and the bank, the deposit
constitutes a trust fund, and the county is entitled to preference in the assets in the hands of
the receiver. Brown v. Sheldon Bank, 117 N. W. 289; Page Co. v. Ross, 106 N. W. 744;
Bento v. King, 45 N. W. 1050; 5 L. R. A.
55 Nev. 16, 17 (1933) Lothrop v. Seaborn
5 L. R. A. 886; Dist. Tp. v. Farmers Bank, 55 N. W. 342; Leach v. Gunnell Bank, 219 N. W.
483; Leach v. Stockport, 223 N. W. 171; Independent District v. King, 45 N. W. 908; Leach
v. Battle Creek, 219 N. W. 59.
Late cases support the general rule to the effect that acceptance of deposits by a bank
which is hopelessly insolvent to the knowledge of its officers constitutes such a fraud as will
generally entitle the innocent depositor to rescind and recover back the money, or give him a
preferential claim, or create a trust ex maleficio. Reserve Loan L. Ins. Co. v. Dulin (Ind.
App.), 135 N. E. 590; Kime v. Ladd (Kan.), 211 P. 628; Raynor v. Scandinavian-American
Bank, A. L. R. 716.
Harwood & Diskin, for Respondent E. J. Seaborn:
It will be observed that in those states which sustain the prerogative right of the state to
claim a preference for funds deposited in insolvent banks, that such right does not extend to
counties.
In the agreed statement of facts it is stated that at all times while the deposit was in the
bank the Nevada Surety & Bonding Company were sureties on the official bond of appellant.
It is also admitted that the Nevada Surety & Bonding Company executed the depository bond
on behalf of the bank, securing appellant's deposit in that bank. We submit that under these
facts it cannot be successfully urged that the deposit made by appellant in the bank was not
made with the unanimous consent of plaintiff's bondsmen. There is nothing in section 2187
N. C. L. which requires said consent to be in writing. The deposit, therefore, was a lawful,
legal deposit made in accordance with law, if that section has any application.
If we admit for the sake of discussion that under the terms of the statute (sec. 663 N. C. L.)
the failure to repair the reserve of the bank amounts to a condition of insolvency, we submit
that under the law mere insolvency is not sufficient to authorize the court to hold that
appellant is entitled to the return of his deposit. Brennan v. Tillinghast, 201 Fed. 609;
Security National Bank v. Payne, 15 P.{2d) 410; Beehive v. Citizens Bank of Georgetown,
21S P. 237; Stapleton v. Odell, 4S N. Y. S.
55 Nev. 16, 18 (1933) Lothrop v. Seaborn
Bank v. Payne, 15 P.(2d) 410; Beehive v. Citizens Bank of Georgetown, 218 P. 237;
Stapleton v. Odell, 48 N. Y. S. 13; Steele v. Allen, 20 A. L. R. 1203; Cragie v. Hadley, 52
Am. Rep. 9; Great Atlantic & Pacific Tea Co. v. Citizens' National Bank et al., 2 Fed. Sup.
29.
OPINION
Per Curiam:
This case is before us on an appeal from a judgment and order in a suit instituted to have
the county of Lyon in this state adjudged a preferred creditor in the matter of the failure of the
Lyon County Bank, a corporation existing under the laws of this state. The lower court held
that the deposits made in said bank by the county were not preferred. The appeal was heard
upon an agreed statement of facts, which, so far as necessary here to state, are as follows: E.
J. Seaborn at all times mentioned was and now is the state bank examiner. The Lyon County
Bank suspended business upon the 16th day of February 1932, and said bank examiner took
possession of the assets of the bank. Prior thereto plaintiff had deposited in open account in
said bank to his credit the sum of $62,760.84. Plaintiff from time to time prior to the closing
of the bank made withdrawals from his said deposit by checks on said account, and from time
to time made additional deposits to his said account.
When the bank examiner took possession of the assets of the bank, he came into
possession of the sum of $6,364.94 in cash. Among the assets coming into the possession of
the bank examiner there was no distinguishable fund or sum of money in said bank
earmarked or identified as the property of plaintiff. Prior to the time the bank examiner took
possession of the assets of the bank, no demand had been made by plaintiff for the payment
of said deposit.
Plaintiff filed a claim with the defendant bank examiner demanding that the amount of his
deposit in the sum of $62,760.84 be allowed as a preferred claim. The bank examiner
disallowed this demand as a preferred claim, and allowed as an ordinary claim, without
preference, for the sum of $62,010.S4.
55 Nev. 16, 19 (1933) Lothrop v. Seaborn
bank examiner disallowed this demand as a preferred claim, and allowed as an ordinary
claim, without preference, for the sum of $62,010.84.
During all of the times mentioned herein, the Nevada Surety & Bonding Company, a
corporation organized under the laws of this state and authorized to do a surety business, was
the surety on the official bond of plaintiff as treasurer of Lyon County. The deposit of the
money in the defendant bank as of February 16, 1932, by plaintiff, was secured by a
depository bond issued by the Nevada Surety & Bonding Company in favor of plaintiff for
the sum of $25,000, and conditioned that, if said bank failed to pay plaintiff's deposit therein
on demand, said bonding company would pay the same to plaintiff. In addition to said surety
bonds, the bank deposited with plaintiff, to secure the payment of said deposits, bonds of the
Walker river irrigation district of the face value of $25,000, which are now in the possession
of plaintiff, and on which since February 16, 1932, plaintiff collected the sum of $750
interest. Since the closing of said bank, the Nevada Surety & Bonding Company paid plaintiff
on said depository bond the sum of $25,000.
The deposit of money in the bank, as aforesaid, was made without the unanimous written
consent of the bondsmen on plaintiff's official bond, and the members of the board of county
commissioners of Lyon County had no knowledge that the deposits were made in said bank
without the unanimous written consent of the treasurer's bondsmen.
On the 29th day of October 1931, E. J. Seaborn, as bank examiner, notified the officers of
the Lyon County Bank that the cash reserves were down, and that there was an impairment of
the capital. He ordered the officers of the bank to repair the condition by assessment of the
capital stock, and that the same must be done within sixty days. The assessment was not
levied, and the bank continued in this same condition until the time of its closing. On and
after December 29, 1931, the plaintiff deposited in said bank the sum of $5,870.46.
55 Nev. 16, 20 (1933) Lothrop v. Seaborn
Two questions are presented for determination. They are: (1) May a county establish a
preferential right to deposits in an insolvent bank under the doctrine of sovereign right of
priority? (2) Does the law applicable to the facts of this case establish that the deposits when
made created a trust relation between the county and the bank entitling the former to a return
of the funds? We will consider these questions in their order.
1. For the purposes of this decision, we may assume without deciding, as we did in the
case of State and George B. Russell v. Carson Valley Bank, 23 P. (2d) 1105, this day decided,
that the so-called prerogative of the sovereign is a right which the state has derived from the
common law. But even so it does not follow that the counties of the state have the same right.
That counties have no such right is, we think, established by reason and the great weight of
authority. Bignell v. Cummins, 69 Mont. 294, 222 P. 797, 799, 36 A. L. R. 634; Glynn
County v. Brunswick Terminal Co., 101 Ga. 244, 28 S. E. 604; United States Fidelity & G.
Co. v. Rainey, 120 Tenn. 357, 113 S. W. 397; Calhoun County Court v. A. G. Mathews,
Receiver of People's Bank of Grantsville, 99 W. Va. 483, 129 S. E. 399, 401, 52 A. L. R. 751;
Board of Com'rs., San Miguel County, v. People's Bank & Trust Co. et al. (Melaven,
Intervener) 34 N. M. 166, 279 p. 60, 62; AEtna Casualty & Surety Co. v. Bramwell (D. C.) 12
F. (2d) 307, 310; 3 Michie on Banks & Banking 233.
The reason for the rule that counties are not invested with the state's preferential right as to
deposits in insolvent banks is stated in Bignell v. Cummings, supra. The court said:
Sovereignty must involve the general interest of the state at large. It is true that the whole
state has an interest in the proper administration of its laws everywhere within its borders and
so it has an interest in the proper government of every county, and so it has in every
municipality and in the conduct of every school district and in the prosperity of every citizen.
But while the prerogative of the state may be invoked for the protection of the rights of the
county, municipality, school district, and citizen, it does not follow that any of these
possess that power.
55 Nev. 16, 21 (1933) Lothrop v. Seaborn
for the protection of the rights of the county, municipality, school district, and citizen, it does
not follow that any of these possess that power. It must be held that the sovereign right, the
prerogative, is lodged in the political power which is created by and is the representative of
all the peoplethe state itself, and that the prerogative of the state may not be exercised by
its creature in the absence of express authority granted to the creature. Granting that the
county is an arm of the sovereignty, an agent of the state, an auxiliary and necessary to the
proper functioning of the state government, it must be conceded that the county is only a
creature of the state which may be abolished at will by the state.
In County of Glynn v. Brunswick Terminal Co., supra, the court said:
While it may be true that the state, on account of its prerogative right, has this preference,
we cannot hold that the same right applies to the counties of the state. If there is such a thing
as prerogative right of preference on the part of the state, it cannot be divided among the 137
counties of which it is composed. 8 Bac. Abr., under head Prerogative.'
We think it safe to hold that the county has no such prerogative right as the state. Not
having this right, in order to obtain a preference over the other depositors it must show some
statutory right. * * * In the absence of any legal right of preference in such cases, the county
must stand upon an equal footing with other depositors.
After referring to a number of authorities holding the same view, the court in Board of
Com'rs. v. People's Bank & Trust Co., supra, stated: We find ourselves in accord with it,
and added: However we may be bound in New Mexico by the common-law rule applying to
the state itself, we surely are not bound to extend that rule, thus giving it an application
unknown to the common law, and involving new consequences in public policy.
55 Nev. 16, 22 (1933) Lothrop v. Seaborn
The court in AEtna Casualty & Surety Co. v. Bramwell, cited above, said: The argument
is persuasive and compelling to my mind that common-law prerogative is an attribute of
sovereignty, and that the state alone possesses the right and may exercise it. It may, if it
choose, devolve upon the counties the right of prior preference by appropriate legislation; but
this would not be tantamount to conferring upon them the prerogative power or privilege of
the state. The counties would have to depend upon the statute for their preference right; they
cannot avail of the common law.
Plaintiff cites the case of City and County of Denver v. Stenger (C. C. A.), 295 F. 809, in
support of his contention that a county has a preferential right on the theory of the state's
prerogative. But, as declared in AEtna Casualty & Surety Co. v. Bramwell, supra, this case is
now shorn of application by reason of the fact that Colorado has since the decision of that
case denied the common law prerogative right to the state. United States Fidelity & Guaranty
Co. v. McFerson, 78 Colo. 338, 241 P. 728. The case of In re Marathon Savings Bank, 198
Iowa, 692, 196 N. W. 729, 200 N. W. 199, in which the court held that a statute giving
preferential claims in favor of the state, county, or other municipal corporation was
declaratory of the common law, is also cited. Aside from the two cases, there is a general
unanimity of the judicial opinion holding that the state's prerogative as to a priority right to
public funds is not shared by a county. As stated in Calhoun County Court v. A. G. Mathews,
Receiver of the People's Bank of Grantsville, supra, the court said: The sovereignty of the
King was a united, entire, and indivisible sovereignty.
The court in that case said further: We find no case under the common law conceding
sovereignty to a political division or municipality of England.
If this be a correct exposition of the common law pertaining to sovereignty, as we think it
is, how can it be said that, when this state adopted the common law, it gave the counties of
the state a preferential right in respect to public funds?
55 Nev. 16, 23 (1933) Lothrop v. Seaborn
law, it gave the counties of the state a preferential right in respect to public funds? Under our
constitution, all political power is inherent in the people. Article 1, sec. 2, State Constitution.
They are the state itself, which alone inherited from the common law the prerogative of
sovereignty, if such was the effect of our adoption of the common law.
2. There is no statute in this state giving a county which is a depositor in a bank any
preference over general depositors. As Lyon County has no preference right through the
so-called prerogative of the sovereign, and no statutory right to have its funds deposited in the
bank declared a preferred deposit, do the facts and the law establish a trust fund in its favor?
We think not.
It is contended that the deposits were wrongfully made, in that the appellant did not have
the unanimous written consent of his bondsmen to make such deposits. This contention is
grounded on the provisions of section 2187 N. C. L., which authorizes the county treasurers
of the several counties, when a private or incorporated bank is located at the county seat, to
deposit, with the unanimous consent of their bondsmen, county funds in such bank or banks;
and, when no such bank or banks exist at such county seat, to deposit, with the unanimous
consent of their bondsmen, county funds with any private or incorporated bank in the State of
Nevada. It will be observed that the statute does not require the written consent of such
bondsmen.
It appears from the agreed statement of facts that at all times while the deposit was in said
bank the Nevada Surety & Bonding Company, a corporation organized under the laws of
Nevada, was the surety on the official bond of appellant as treasurer of Lyon County. It also
appears from such statement that the deposit of the money in the bank as of February 16,
1932, by appellant was secured by a depository bond issued by said Nevada Surety &
Bonding Company in favor of plaintiff. This manifested the consent required by said section.
55 Nev. 16, 24 (1933) Lothrop v. Seaborn
by said section. We find no statute which made the deposit unlawful. A trust fund cannot
therefore be predicated on the violation of a statute.
3. It is further contended by plaintiff that he has a preferred claim for $5,870.46 deposited
in the bank after December 29, 1931, because this deposit was made at a time when the bank
was insolvent. The trial judge denied this contention on the ground that it was not disclosed
by the evidence that the bank was hopelessly insolvent when the latter deposit was made. We
think the court was right as to the fact and the law concerning it. Mere insolvency of a bank
when a deposit is received is not sufficient ground to enable the depositor to rescind the
contract of deposit and thereby impress the amount with a trust. It is well established that this
will result only when the bank is hopelessly insolvent at the time the deposit is made.
Brennan v. Tillinghast (C. C. A.), 201 F. 609, 615, and cases cited therein. In the foregoing
case the court said: However, the mere fact that the bank is known to be insolvent at the time
the deposit is received is not in our opinion sufficient of itself, without more, to confer this
right of rescission upon the depositor, and such right of rescission would not arise when the
bank at the time of receiving the deposit, although embarrassed and insolvent, yet had reason
to believe that by continuing in business it might retrieve its fortunes; the necessary condition
upon which the right of rescission is predicated being that the deposit was received when the
bank was hopelessly embarrassed and so circumstance as to constitute its receipt of the
deposit a fraud upon the depositor.
See, also, Atlantic & Pacific Tea Co. v. Citizens' National Bank et al. (D. C.), 2 F. Supp.
29.
The federal rule evidenced by the foregoing cases is reasonable and is accepted by state
courts. Beehive Marketteria v. Citizens' Bank of Georgetown et al., 126 Wash. 526, 218 P.
237; Steele v. Commissioner of Banks, 240 Mass. 394, 134 N. E. 401, 402, 20 A. L. R.1203.
55 Nev. 16, 25 (1933) Lothrop v. Seaborn
In the latter case it is said: A bank hopelessly insolvent, receiving deposits from those who
confide in its good reputation or in its representations, is held to knowledge that it cannot
meet its obligations. Taking deposits under such circumstances is the equivalent of a
preconceived purpose not to pay and is a fraudulent act. The contract of deposit may be
rescinded by the depositor and the deposit, or its proceeds, if traced, may be recovered in like
manner as other trust funds. On the other hand, simple insolvency, even of a bank, does not
warrant the rescission of deposits if there are genuine and reasonable hope, expectation and
intention on the part of the officers of the bank to carry on its business and to recover sound
financial standing. To warrant such rescission there must be the further fact that it is
reasonably apparent to its officers that the concern will presently be unable to meet its
obligations as they are likely to mature and will be obliged to suspend its ordinary operation.
The most that is disclosed by the agreed statement of fact is that the bank was insolvent
when the deposit of $5,870.46 was made. Under the rule this is not sufficient.
It is ordered that the judgment and order appealed from be affirmed.
____________
55 Nev. 26, 26 (1933) State v. Carson Valley Bank
STATE Et Al. v. CARSON VALLEY BANK Et Al.
No. 3027
July 7, 1933. 23 P. (2d) 1105.
1. Banks and Banking.
Enactment of state depository law requiring security for deposits of state funds in banks, held to waive
any right of preference over other depositors of insolvent bank state may have had (Stats. 1913, c. 104, p.
127; Comp. Laws 1929, secs. 7030-7041).
2. Banks and Banking.
Transaction whereby state treasurer turned checks into depository bank, and in exchange therefor took
cashier's checks, held to create creditor-debtor relation merely, and not to entitle treasurer to preference on
bank's insolvency (Comp. Laws 1929, secs. 7030-7041).
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Suit by the State and another against the Carson Valley Bank and others. Judgment for
defendants, and plaintiffs appeal. Affirmed.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; and John R.
Ross, for Appellants:
The sovereign's right of preference is not waived by the banking and depository laws of
this state, or by either of them, or otherwise or at all, and such preference can be waived or
abrogated only by the express language or by some law which is irreconcilably in conflict
with such right of preference. In re Matter of Neiderstein, 138 N. Y. Supp. (App. Div.), 952;
Guarantee Title & Trust Co. v. Title Guaranty & Surety Co., 56 L. Ed. 706; U. S. v. Herron,
22 L. Ed. 275; AEtna Accident & Liability Co. v. Miller (Mont.), 170 P. 760, L. R. A. 1918c,
954; Jones v. Tatham, 20 Penn. 398; Booth and Finn v. Miller (Pa.), 85 Atl. 459; Woodyard
et al. v. Sayre et al. (W. Va.), 24 A. L. R. 1497; Re Carnegie Trust Co., 46 L. R. A. (n. s.) at
pp. 265, 266; U. S. v. Knight, 10 L. Ed. 485; Dollar Savings Bank v. United States, 22 L. Ed.
at p. 82; State v. Liberty Bank and Trust Co., 52 S. W. (2d) 150; State Land Board v.
Campbell, 13 P.
55 Nev. 26, 27 (1933) State v. Carson Valley Bank
Board v. Campbell, 13 P.(2d) at p. 347; Nelson v. Marion Trust & Savings Bank (Ill.), 179 N.
E. 893; State v. Liberty Bank & Trust Co., 52 S. W. (2d) 150.
The right of preference is not waived by the taking of security, and the waiver of the right
is not favored or general in the cases. Woodyard et al. v. Sayre et al., 24 A. L. R. 1498 (2d
column); annotation in 24 A. L. R. at p. 1495; also, p. 1496.
To sustain our position with reference to the cashier's checks held by the state treasurer
and forming the basis of the second cause of action, we call attention to the fact that cashier's
checks are regarded as money or circulating medium and take the same position in financial
affairs of our state and country as that held by circulating medium and certified checks, and
that the holder thereof is entitled to preference over other depositors in insolvent banks.
Cuesta Rey & Co. v. Newsom (Fla.), 136 So. at p. 552 (syllabus 9), and p. 556; 5 R. C. L. p.
484, subdivision 5; Causey v. Eiland, 56 L. R. A. 532; Skinner v. Porter, 73 L. R. A. 63-65.
Harwood & Diskin, for Respondents:
It is our contention that when the State of Nevada, by Statutes of Nevada 1913, chapter
104, authorized the deposit of state money in banks and provided for the payment of interest
on such deposits by the banks to the state, and further when the legislature in 1928, by the
provisions of sections 7030-7041 N. C. L., authorized the depositing of money in banks, fixed
the amount so to be deposited, provided for character of securities to be given therefor,
authorized the payment of interest, directed the state treasurer to draw checks on said account,
and particularly under section 7032 specifically provided what should be done with the
securities in the event of the insolvency of the bank, it evinced a clear and unequivocal
disposition on the part of the state to establish the relationship of debtor and creditor between
the bank and the state, and disclosed a firm intention to look to the securities in liquidation of
the deposit, and such legislation constitutes a waiver of any prerogative right to claim a
preference.
55 Nev. 26, 28 (1933) State v. Carson Valley Bank
and such legislation constitutes a waiver of any prerogative right to claim a preference. Shaw
v. U. S. Fidelity Company (Tex.), 48 S. W. (2d) 274, 83 A. L. R. 1113; In re Holland Banking
Co. (Mo.) 281 S. W. 702, at 705; In re Central Bank of Wilcox, 23 Ariz. 574, 205 P. 915;
National Surety Co. v. Morris, 34 Wyo. 134, 241 P. 1063; Cook County National Bank v.
United States, 107 U. S. 445, 27 L. Ed. 537; Board of County Commissioners v. McFerson,
90 Colo. 408, 9 P.(2d) 614; Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S. W. at
1003, 51 A. L. R. 1332; National Surety Co. v. Pixton (Utah), 208 P. 878; Fidelity & Deposit
Co. of Maryland v. Brucker (Ind.), 183 N. E. 668.
In reference to the second cause of action, it appears that the state treasurer took to the
bank checks payable to his order by the Nevada industrial commission and drawn on the
Carson Valley Bank. These checks he exchanged for cashier's checks of the Carson Valley
Bank payable to his order. No facts are alleged establishing a trust relationship, and the facts
are no different from the ordinary case where an individual buys a cashier's check. The cases
are in unanimity in holding that such a transaction does not entitle the holder to a claim of
preference. Michie on Banks and Banking, p. 319; 5 R. C. L. 484; 73 A. L. R. 66; 259 P.
1060.
OPINION
Per Curiam:
This case is before us on an appeal from a judgment and order in a suit instituted to have
the state declared a preferred creditor in the matter of the failure of the Carson Valley Bank, a
corporation existing under the laws of the state and doing a general banking business.
The facts, so far as necessary here to state, are these:
The bank failed to open its doors on November 1, 1932, at which time state funds in a
large sum were therein deposited; that E. J. Seaborn was for a long time prior to said date,
and now is, the state bank examiner; that the legislature of the state, at its special session
in 192S, passed an act entitled: "An Act to authorize the deposit of state moneys in banks
in this state, and to repeal all acts and parts of acts in conflict with this act," which was
duly approved by the governor, being sections 7030 to 7041 N. C. L., inclusive {session
laws 192S, pp.
55 Nev. 26, 29 (1933) State v. Carson Valley Bank
examiner; that the legislature of the state, at its special session in 1928, passed an act entitled:
An Act to authorize the deposit of state moneys in banks in this state, and to repeal all acts
and parts of acts in conflict with this act, which was duly approved by the governor, being
sections 7030 to 7041 N. C. L., inclusive (session laws 1928, pp. 63 to 67); that soon after the
approval of said act the state treasurer and the state board of examiners of this state, pursuant
to said act, adopted a plan wherein it was provided that public funds of the sate be deposited
in banks doing business in this state, and that, pursuant to said act and said action of said
officials, George B. Russell, the state treasurer, began to deposit state funds in certain banks
in the state, and among them the said Carson Valley Bank, and continued making such
deposits up to the time of the closing of said bank; that the lieutenant and acting governor of
the state, on October 31, 1932, declared a banking holiday, which, in accordance with
subsequent similar declarations, continued up to and including December 12, 1932, on which
latter date the said bank examiner took possession of said bank and of all of its assets,
pursuant to An Act to regulate banking * * * approved March 22, 1911 (N. C. L. 1929,
secs. 650-727), and amendments thereof; that the said bank has not resumed business, and
that said funds are now in the possession of said state bank examiner; that on December 9,
1932, the said state treasurer made demand on said bank for the payment of all of the said
funds so on deposit with it, and again made such demand on December 12, 1932, prior to the
time said state bank examiner took possession of said bank; that on January 16, 1933, the said
state bank examiner gave notice to the creditors of said bank to present their claims against
said bank on or before March 14, 1933; that the said state treasurer, on March 13, 1933, filed
with said bank examiner his claim in behalf of the state, claiming that the said funds were a
preferred claim; that the said bank examiner disallowed said claim as a preferred claim; that
the said deposits were secured to the state by a surety bond given in pursuance of the act
authorizing the deposit of state moneys in banks, above mentioned.
55 Nev. 26, 30 (1933) State v. Carson Valley Bank
that the said deposits were secured to the state by a surety bond given in pursuance of the act
authorizing the deposit of state moneys in banks, above mentioned.
The second cause of action is bottomed upon the identical facts, as is the first cause of
action, with the additional fact that the cashier of said bank had issued to the state treasurer
certain cashier's checks which had been unpaid at the time said bank closed its doors.
Only three questions are presented for our consideration, namely: (1) Did there exist at
common law a right of preference of the sovereign in the case of a bank failure? (2) If yes,
was that rule adopted when Nevada became a state? And (3) if it does obtain in Nevada, has it
been waived by the state?
Taking the view we do, it is not deemed necessary to determine the first two question
suggested, for, if they should be answered in the affirmative, we are of the opinion that our
conclusion would in no way be influenced thereby; but, conceding for the purpose of this
case, without so deciding, that the first two questions should be answered in the affirmative,
we think the doctrine of the sovereign right of priority has been waived.
Preliminary to considering the main question involved, we may say that counsel for neither
the appellants nor respondents made comment on the provision in the statute (Comp. Laws
1929, sec. 7030) that state moneys on deposit in the banks should be deemed in the state
treasury. Counsel were asked by the chief justice their construction of this provision,
whereupon counsel for respondents stated that the provision alluded to was incorporated in
the act in view of the statute (Comp. Laws 1929, sec. 6918) requiring certain state officers to
count monthly the money in the hands of the state treasurer. Counsel for appellants
acquiesced in this construction, and we think it the right one.
For many years the law of this state prohibited, under penalty, the depositing of public
moneys in banks. To our minds, this indicates that the legislature never contemplated the
adoption of the so-called sovereign right of preference, but, be that as it may, our legislature
in 1913 enacted a statute {chapter 104, Stats.
55 Nev. 26, 31 (1933) State v. Carson Valley Bank
our legislature in 1913 enacted a statute (chapter 104, Stats. 1913, p. 127), which authorized
the deposit of public funds in banks on condition that the bank pay 2 1/2 percent interest on
said deposits, and on the further conditions, among others, that the bank deposit with the state
treasurer bonds of the United States, of this state, or of any county, municipality, or school
district within the state, of the value of at least 15 percent in excess of the amount deposited,
subject to the right to require additional security, and that the treasurer shall enter into a
written contract, in duplicate, stating the terms upon which state money is deposited with a
bank.
At a special session of the legislature in 1928, an act was passed, authorizing the state
treasurer to deposit, to the credit of the state, subject to check without notice, the moneys
belonging to the state, in any state or national bank in the state, subject to the written consent
of the state board of examiners; and providing that moneys so deposited shall be deemed to
be in the state treasury; that not more than one-fourth of the money available for deposit shall
be deposited in any one bank. Said act also provides that all deposits of public funds shall be
secured by bonds of the United States, of this state, of any county, municipality, school
district, or irrigation district within the state, equal in value to the amount of the deposit, or in
lieu thereof by a depository bond of an approved surety or bonding company. Sections
7030-7041, N. C. L. 1929.
While we do not find it necessary to pass upon the question of the preference of the state,
those who are interested in the question will find authorities to the point in the following
cases, and the citations therein, viz: Fidelity & Deposit Co. v. Brucker (Ind. Sup.), 183 N. E.
668; U. S. Fid. & G. Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A. L. R. 829; Shaw v. U.
S. Fid. & G. Co (Tex. Com. App.), 48 S. W. (2d) 974, 83 A. L. R. 1113, note.
1. Coming now to the main question, we think the view that the rule of the preference of
the sovereign, if any such rule existed at common law, was waived, is sustained by the
better reasoning and practically the unanimous weight of authority, where the state has
enacted legislation such as exists in Nevada.
55 Nev. 26, 32 (1933) State v. Carson Valley Bank
if any such rule existed at common law, was waived, is sustained by the better reasoning and
practically the unanimous weight of authority, where the state has enacted legislation such as
exists in Nevada.
What policy could have animated the legislature of 1913 in enacting the law requiring
security to the extent of 15 percent in excess of the amount of deposits, and the right to draw
interest upon such deposits, unless it was the intention to waive any preferential right, and
rely solely upon the security demanded and the assets of the depository? Pursuant to statute,
the state not only has security to protect its deposits, plus its pro rata share of what might be
realized from the assets of the bank, in case of failure, but, in addition, the right of
supervision by the state bank examiner; the statute also provides that, in case of the failure of
any such depository to pay the amount of deposit on demand, the treasurer shall immediately
commence action against such depository and sureties for the amount due. Contracts entered
into, as in the instant case, pursuant to statute, are business transactions. In such a situation,
how can we consistently hold that the state did not intend to waive any right of preference it
might have otherwise asserted?
The supreme courts of Montana and of Oregon reached a different conclusion from that to
which we have come, but those courts do not deal with questions of statutory provisions such
as ours; hence cannot influence our conclusion.
In the case of In re Holland Banking Co., 313 Mo. 307, 281 S. W. 702, 708, the court
disposes of the Montana cases and the question involved in the following language:
A Montana case cited by appellant seems more nearly to approach the question before us
than any of the other cases cited. It is Fidelity & Deposit Co. v. McClintock, 218 P. 652, 68
Mont. 342. There was no statute giving the sate such priority, but the common law on the
subject was held to be in force in that state. The case of AEtna Accident & Liability Co. v.
Miller, 170 P.
55 Nev. 26, 33 (1933) State v. Carson Valley Bank
Miller, 170 P. 760, 54 Mont. 377, L. R. A. 1918c, 954, upon which the Fidelity & Deposit
Case was ruled, does not discuss the effect upon the priority of the state of exaction of
adequate security for its deposits under a depository law. The Fidelity & Deposit Case goes
further, and holds that the enactment of a depository statute requiring security for such
deposits does not expressly waive the state's preference, and is not inconsistent with the
common-law priority as to debts due the state. It was said:
Since this state, in virtue of its sovereignty, had the preference right conferred by the
common law and could lose it only by the declaration of the lawmaking power, and since we
fail to find any statutes from which a legislative purpose to waive the right can be deduced,
we adhere to our former decision, and hold that the right still exists in all its force and vigor.'
The requirement of an express waiver was not held to be necessary in the cases we have
cited supporting the rule that no priority will be accorded the state's debt where the state
depository law has provided for complete and adequate security for the state's deposits. The
Montana case seemingly stands alone in this respect.
In dealing with a statute somewhat similar to ours, the supreme court of Arizona, in the
case of In re Central Bank of Wilcox, 23 Ariz. 574, 205 p. 915, 916, said: Bearing in mind
that the object of such preference is to secure the state in its revenues, if the Legislature has
adopted other means to attain the purpose, then the reason for applying the common-law rule
of the sovereign prerogative, as has been done in some jurisdictions, does not exist in
Arizona, even though the common law is by statutory adoption a part of the laws of the state
when not inconsistent with the Constitution of the United States or the Constitution or laws
of the state or established customs of the people of the state. Paragraph 5555, Civil Code. We
thin the plan for lending and safeguarding the public moneys of the state and counties
provided for in title 44, Civil Code, supra, in allowing the state to exact security from the
depositary, whereas no other depositor or patron of the bank is given such privilege, must
have been intended as a substitute for the common-law prerogative.
55 Nev. 26, 34 (1933) State v. Carson Valley Bank
whereas no other depositor or patron of the bank is given such privilege, must have been
intended as a substitute for the common-law prerogative. By this plan the state is preferred in
this: It may participate with all other creditors in the distribution of the assets of the insolvent
and, in addition thereto, for any deficiency, have recourse to its security. If it has taken
interest-bearing bonds of the United States or the state or any municipality thereof, these may
be subjected to the payment of the balance, or, if the depositary has given personal security or
secured the deposit by a surety bond, these may be followed. The state at all events has every
reasonable and fair opportunity to guard its funds, and in the absence of unexpected
misfortune or lapse of duty, a denial of a preference to it, over other creditors, would be
harmless.
The supreme court of Texas, in a strong opinion applying a statute requiring security in
case of the deposit of state money, sums up in the following words:
It would seem that, if the Legislature did not intend to modify the state's right of priority
in payment of its deposits, it has been unusually severe and exacting in the character of
security required for such deposits. The attitude of the Legislature in making these stringent
requirements of banks holding state funds is utterly inconsistent with the idea that such
requirements were intended to be merely cumulative of the state's right of priority in payment
over other depositors. * * *
If the Legislature did not purpose, in enacting the depository law, to modify such
common-law rule, then it is placed in the unenviable position of deliberately so legislating as
to place banks, organized under the laws of this state, at a serious disadvantage in operating in
competition with national banks. The Legislature is bound to have know that it would be
extremely difficult for state banks to obtain depositors if it was known that they were subject
to the hazard of losing their deposits, or a substantial portion thereof, in case of insolvency
on account of such banks being required to pay the state deposits in full when no such
requirement was or could be made applicable to national banks, although they are
allowed to become state depositories.
55 Nev. 26, 35 (1933) State v. Carson Valley Bank
their deposits, or a substantial portion thereof, in case of insolvency on account of such banks
being required to pay the state deposits in full when no such requirement was or could be
made applicable to national banks, although they are allowed to become state depositories.
We do not think it fair to ascribe a deliberate purpose to the Legislature to so legislate as
to discriminate against state banks in such a way as to place them at a decided disadvantage in
competing with national banks. It would be more reasonable to assume that the Legislature,
by making the unusually strict provisions for security of state deposits, contemplated that
state banks would be placed upon the same basis in this regard as national banks, and that the
state in regard to its deposits would look alone for any advantage over other depositors to the
collateral security required by the provisions of its depository laws. Shaw v. U. S. Fid. & G.
Co. (Tex. Com. App.), 48 S. W. (2d) 974, 976, 83 A. L. R. 1113.
The supreme court of Wyoming, in National Surety Co. v. Morris, 34 Wyo. 134, 241 P.
1063, 1067, 42 A. L. R. 1290, is in line with the views reached by the courts from which we
have quoted. The court considered the question at some length, saying, among other things:
There is another thing that would seem to require the dissipation of any doubt on the
subject; that is, the provision of our law for interest on deposits. By such provision the state
engaged in a business enterprise, and put itself on a level with private individuals in that
respect. It does not expect a bank to keep the state's money safely, except only as the money
of individuals is so kept through and by means of the general assets of the bank. The state
expects the bank to lend its money the same as it lends the money deposited by individuals. It
would be absurd to expect it to keep the money on hand, when interest must be paid thereon.
Hence the state's money is no trust fund, but the relation of debtor and creditor is created. It
was said long ago that when a state puts itself on a level with private individuals, by
engaging in a business enterprise it, to that extent, loses its character as sovereign.
55 Nev. 26, 36 (1933) State v. Carson Valley Bank
with private individuals, by engaging in a business enterprise it, to that extent, loses its
character as sovereign. Governor v. Woodworth, 63 Ill. 254; Central Bank of Georgia v.
Little, 11 Ga. 346; Bank v. Gibbs, 3 McCord (S. C.) 377. In the Illinois case the court said:
It has been held that when the government becomes a partner with individuals in the
prosecution of some business or enterprise, it divests itself of its sovereign character, so far as
relates to that business, and takes the character of a private citizen. It does not impart to its
associates its privileges and prerogatives, but descends to a level with those with whom it
associates itself, and the character which belongs to its associates, and to the business which
is to be transacted.'
In these cases, it is true, the state was in partnership with private individuals, or itself
conducted a private enterprise, which is not true here. Nevertheless these cases clearly show
that a state is not always entitled to its sovereign prerogatives, unless, perhaps, retained by
specific legislation, but that it loses them when it places itself in the same class and on the
same footing with private individuals in connection with its property rights. The state has
done that in connection with its deposits under our depository law, and thereby should be held
to have clearly indicated that it has waived its prerogative rights.
The supreme court of Colorado, in a well-considered opinion, in Board of County Com'rs.
v. McFerson, 90 Colo. 408, 9 P.(2d) 614, 615, in dealing with a claim of preference, said:
Aside from the common law, we have no statute that warrants such preference. On the
contrary, section 1, chapter 83, pages 280-283, Laws 1927, makes provision for the protection
of public moneys in the hands of county treasurers. It provides, in substance, as follows: The
treasurer shall deposit all funds that come into his possession, by virtue of his office, in one or
more responsible banks located in this state. Such bank or banks shall pay interest on the
average daily balances at such rates as may be agreed upon, not less than 2 percent per
annum, less clearing house charges.
55 Nev. 26, 37 (1933) State v. Carson Valley Bank
bank or banks shall pay interest on the average daily balances at such rates as may be agreed
upon, not less than 2 percent per annum, less clearing house charges. Before making such
deposits, the county treasurer may take from such bank or banks a good and sufficient bond,
provided, however, that the bank may tender to the treasurer, United States bonds or other
securities of a specified class, which the treasurer shall accept in lieu of such bond.
The above legislation shows that the state does not intend to rely upon a common-law
right, since it has adopted other means of securing county revenues. National Surety Co. v.
Pixton, 60 Utah, 289, 208 P. 878, 24 A. L. R. 1487; In re Central Bank of Wilcox, 23 Ariz.
574, 205 P. 915; Maryland Casualty Co. v. Rainwater, 173 Ark. 103, 291 S. W. 1003, 51 A.
L. R. 1332; In re Holland Banking Co., 313 Mo. 307, 281 S. W. 702; National Surety Co. v.
Morris, 34 Wyo. 134, 241 P. 1063, 42 A. L. R. 1290.
We might quote at length from other courts in line with the views expressed, but will
content ourselves with citing the following cases to the point: Maryland Casualty Co. v.
Rainwater, 173 Ark. 103, 291 S. W. 1003, 51 A. L. R. 1332; Fidelity & Dep. Co. v. Brucker
(Ind. Sup.), 183 N. E. 668; National Surety Co. v. Pixton, 60 Utah, 289, 208 P. 878, 24 A. L.
R. 1487.
Unless we are to fly in the face of every court in the land which has had under
consideration statutes containing such provisions as do ours, we can reach no other
conclusion than to affirm the judgment and order appealed from. We have carefully
considered the arguments presented, and we are of the opinion that to reach any other
conclusion it would be necessary that we override reason, common sense, the practical
unanimity of authority, and be oblivious of the common dictates of equity.
2. As to the second cause of action, we need only say that the treasurer turned in to the
bank checks, and in exchange therefor took cashier's checks. This transaction created the
relation of creditor and debtor merely, and does not entitle the treasurer to a preference.
55 Nev. 26, 38 (1933) State v. Carson Valley Bank
transaction created the relation of creditor and debtor merely, and does not entitle the
treasurer to a preference. 5 R. C. L. 484; Skinner v. Porter, etc., 45 Idaho, 530, 263 P. 993, 73
A. L. R. 59, and note.
We are grateful to the respective counsel for their exhaustive, able, and lucid arguments in
this matter. They have greatly aided the court.
It is ordered that the judgment and order appealed from be affirmed.
____________
55 Nev. 38, 38 (1933) State Bar of Nevada v. Miller
STATE BAR OF NEVADA v. MILLER
No. 3001
July 31, 1933. 24 P. (2d) 317.
1. Attorney and Client.
On petition for review of order suspending attorney, supreme court must examine entire record anew.
Proceeding by the State Bar of Nevada to discipline A. Grant Miller, an attorney. After an
order of the Board of Governors of the State Bar of Nevada suspending petitioner for a period
of six months, petitioner filed a petition for review and for reversal of order of suspension.
Order affirmed.
Chas. A. Cantwell, for State Bar of Nevada.
A. Grant Miller, in pro. per.
OPINION
Per Curiam:
A. Grant Miller, a member of the state bar of Nevada, was charged in a duly verified
complaint, before the local administrative committee, in and for district No. 5, with two acts
of unprofessional conduct. After a hearing, the committee made its report to the board of
governors of the state bar, in which it found the defendant guilty of both charges. The entire
matter was heard de novo before the board of governors, resulting in a finding by that body
that the defendant was guilty of both of the acts charged, and it was ordered that he be
suspended from the practice of law for a period of six months.
55 Nev. 38, 39 (1933) State Bar of Nevada v. Miller
both of the acts charged, and it was ordered that he be suspended from the practice of law for
a period of six months.
In due time a transcript of the proceedings was filed in this court, after which the
defendant filed his petition for a review and for a reversal of the order of suspension.
It is the duty of the court to examine the entire record anew. In re Scott, 53 Nev. 24, 292 P.
291; In re Gibson, 35 N. M. 550, 4 P. (2d) 643.
No legal questions are involved in this matter. The only question for determination is
whether the defendant committed the acts charged and with the intent averred.
We are frank to say that, if the matter were before us as an original trial tribunal, we
seriously doubt if the facts proven in the case of Hohman v. Hohman would induce us to
reach the same conclusion as that reached by the two bodies which have passed upon that
matter, but we do not find it necessary to critically examine the evidence as to it.
We have carefully considered the evidence introduced relative to the alleged misconduct in
the case of Griffing v. Griffing, and are of the opinion that no other conclusion could have
been properly reached than that finding the defendant guilty of the act charged. We do not
think it necessary to review the evidence, since such a review would be of no assistance in
any future case which might arise.
The order of the board of governors is affirmed.
On Petition for Rehearing
September 18, 1933.
Per Curiam:
Rehearing denied.
It is further ordered that the defendant, A. Grant Miller, be and he is hereby suspended
from the practice of law in the State of Nevada for the period of six months from the date
hereof.
____________
55 Nev. 40, 40 (1933) Periss v. Nevada Industrial Commission
PERISS v. NEVADA INDUSTRIAL COMMISSION
No. 3021
July 31, 1933. 24 P. (2d) 318.
1. Master and Servant.
Evidence held not to show that severe injury in groin, causing pain and swelling, sustained by dam
employee when struck in abdomen by jack hammer, resulted in compensable traumatic hernia (Comp.
Laws 1929, sec. 2693).
Trauma is a wound or injury; any injury to the body caused by external violence.
Traumatic means caused by or resulting from a wound or any external injury; pertaining to or due
to a wound or injury; an abnormal condition of the human body produced by external violence as
distinguished from that produced by poisons, symotic infections, and habits and other less evident
causes; a wound or injury directly produced by causes external to the body; violence producing a
wound or injury as rupture of the stomach by traumatism.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Suit by Joseph Periss against the Nevada Industrial Commission to recover damages under
the Workmen's Compensation Act. From a judgment in favor of plaintiff and an order
denying a new trial, defendant appeals. Reversed, with instructions.
George L. Sanford, for Appellant:
The evidence is insufficient to show a total temporary disability compensable under the
Nevada act, or any disability compensable thereunder. It is insufficient to prove a real
traumatic hernia. There is no evidence of an injury to the abdominal (belly) wall of
sufficient severity to puncture or tear asunder said wall and permit the exposure or protruding
of an abdominal viscera or some part thereof. (Rule I of Nevada Industrial Commission.)
The evidence introduced and stated by the court places the hernia squarely in the category of
all other hernias covered by rules II and III.
Albert Duffill and Harry H. Austin, for Respondent:
How can there be a hernia without some puncture, some tearing asunder of the
abdominal wall?
55 Nev. 40, 41 (1933) Periss v. Nevada Industrial Commission
some tearing asunder of the abdominal wall? The term hernia means that very thing.
The appellant well knows that the peritoneum, the serous membrane lining the interior of
the abdominal cavity and surrounding the contained viscera, bulges, in case of hernia, and
protrudes with the viscus or viscera through some portion of the parietes, which does not
mean the exterior body wall, but which in the case of an inguninal hernia means the tissue or
fiber separating the abdominal cavity and the inguninal canal, which has no opening to the
atmosphere. If this condition is produced by a blow, it is traumatic.
OPINION
By the Court, Coleman, J.:
Joseph Periss brought suit against Nevada industrial commission to recover damages
under the workmen's compensation act for a bilateral inguinal hernia alleged to have been
sustained while in the employment of Six Companies Inc.
On November 30, 1932, the trial judge filed his written decision, ordered judgment for
plaintiff, and directed that counsel for plaintiff prepare findings and submit them for
consideration. On December 12, 1932, counsel for defendant filed notice of motion for a new
trial. Defendant has appealed from the judgment and the order denying a new trial.
We will refer to the parties as plaintiff and defendant, as in the trial court.
It is the contention of plaintiff that on August 8, 1931, while in the employment of said Six
Companies Inc., on the Hoover dam project, he slipped and fell, resulting in a blow in the
abdomen by a jack hammer, which caused a hernia. Plaintiff also contends that, after he had
been operated on for the hernia mentioned, and while in a weakened condition, he was
employed by said company on said project on the Arizona side of the Colorado river, and
while so employed in the month of December 1931, he suffered a recurrence of said
hernia, which caused him great pain and renders him unable to do any kind of work.
55 Nev. 40, 42 (1933) Periss v. Nevada Industrial Commission
December 1931, he suffered a recurrence of said hernia, which caused him great pain and
renders him unable to do any kind of work. A claim was filed against defendant by the
plaintiff, which was rejected by defendant on the ground that no accident was shown and that
the disability claimed was the result of the recurrence of an old hernia sustained in 1928; also
that in no event is it liable for the injury sustained in Arizona. We think a more detailed
statement of the issues unnecessary.
The first point urged by defendant is that the evidence is insufficient to sustain the
conclusion of the court to the effect that the plaintiff sustained a temporary total disability on
August 8, 1931, entitling plaintiff to recover judgment for $62.40 per month from that date to
September 14, 1932, or in any amount.
Counsel for defendant bases considerable stress upon rule I adopted by it pursuant to
section 12 of the act creating the Nevada industrial commission (section 2693 N. C. L.),
which reads: Real traumatic hernia is an injury to the abdominal (belly) wall of sufficient
severity to puncture or tear asunder said wall, and permit the exposure or protruding of the
abdominal viscera or some part thereof. Such an injury will be compensated as a temporary,
total disability, and as a partial permanent disability, depending upon the lessening of the
injured individual's earning capacity.
Counsel for defendant quotes from the decision of the trial court, which in this case is
accepted as a formal finding, as follows:
I think the evidence established that the plaintiff did sustain a hernia on August 8th, 1931,
and that it was the result of a blow in the abdomen from a jack hammer. * * * That being the
case, the hernia sustained by defendant on August 8, 1931, was traumatic. The meaning of
traumatic hernia, as I understand it, is one caused by an injury.
No attempt was made in this case to have competent medical authority distinguish for the
Court the different classes of hernia or the different character in which they may and do
occur. The Court is entirely in the dark as to whether hernia occurs in which the outside
wall of the abdomen is broken and the viscera protrudes through the extreme outer layer
of the skin.
55 Nev. 40, 43 (1933) Periss v. Nevada Industrial Commission
dark as to whether hernia occurs in which the outside wall of the abdomen is broken and the
viscera protrudes through the extreme outer layer of the skin.
The evidence introduced establishes that the hernia caused a bulging of the abdominal
wall near the groin; that a bulging or large lump occurred caused by a protrusion of the
viscera through the wall of the containing cavity.
Counsel then states:
The evidence introduced and stated by the court places the hernia squarely in the category
of all other hernias' covered by rules II and III. If it did not then there would be no reason for
having rule I at all. The claimed injury was from a sudden effort or severe strain or blow.'
Yet the court, without evidence, but assuming judicial notice that real traumatic hernia'
does not occur as defined in Rule I, made an award on its own conception of real traumatic
hernia.'
It seems to be the contention of counsel that by rule I the commission sought to define or
legislate as to what constitutes a traumatic hernia. Counsel for plaintiff takes the position
that section 12 of the act mentioned merely empowers the defendant to adopt rules of
procedure, but that in no event is the rule in question susceptible to the interpretation placed
upon it by counsel. We are favorably inclined to both of the ideas advanced by counsel for the
plaintiff, but find it necessary to determine the latter one only.
The supreme court of Kentucky, in Straight Creek Fuel Co. v. Hunt et al., 221 Ky. 265,
298 S. W. 686, 687, defined the word traumatic to our entire satisfaction, as follows:
The word trauma is defined in Black's Legal Dictionary as a wound; any injury to the
body caused by external violence, and traumatic is defined as caused by or resulting from
a wound or any external injury. In Webster's new International Dictionary the word trauma
is defined as a wound or injury, traumatic as pertaining to or due to a wound or injury."
55 Nev. 40, 44 (1933) Periss v. Nevada Industrial Commission
wound or injury. The Century Dictionary defines traumatic to be an abnormal condition
of the human body produced by external violence as distinguished from that produced by
poisons, symotic infections, and habits and other less evident causes. Webster's Unabridged
Dictionary defines traumatic as a wound or injury directly produced by causes external to
the body; also violence producing a wound or injury as rupture of the stomach by
traumatism.'
Clearly, from these definitions, an internal injury resulting from an external force is a
traumatic injury. * * *
Those not satisfied with the authority mentioned might consult Text Book of Surgery, By
Bancock, p. 1167; Legal Anatomy and Surgery, by Maloy, p. 85; Metcalf v. Department of
Labor, etc., 168 Wash. 305, 11 P. (2d) 821; Cavalier v. Chevrolet Motor Co. of New York,
189 App. Div. 412, 178 N. Y. S. 489.
It is very evident that the commission in adopting rule I intended that the word in question
should receive its commonly accepted meaning; hence we are led to conclude that the
commission had in mind an injury to the abdominal (belly) wall of sufficient severity as to so
result in the exposure or protruding of some part of the abdominal viscera. After a careful
consideration of the rule, in the light of the authorities, we do not see how we can possibly
come to any other conclusion.
Does the evidence sustain the finding that the plaintiff suffered an injury on August 8,
1931, resulting in a traumatic hernia? We are unable to find evidence in the record showing
that he did. The evidence shows that the plaintiff was injured on the date mentioned by being
struck with a jack hammer, and the evidence also shows that as a result thereof the plaintiff
experienced soreness and some pain and a swelling in the groin, but there is no testimony that
such accident resulted in an injury to the abdominal (belly) wall of sufficient severity to result
in the exposure or protruding of the abdominal viscera, or any part thereof. The mere fact
that one receives a severe injury in the groin, causing soreness, pain, and a swelling, is
not sufficient to show that a traumatic hernia resulted.
55 Nev. 40, 45 (1933) Periss v. Nevada Industrial Commission
mere fact that one receives a severe injury in the groin, causing soreness, pain, and a swelling,
is not sufficient to show that a traumatic hernia resulted.
The plaintiff did not testify that the abdominal viscera or any part of it protruded through
the belly wall. We doubt if he were qualified to so testify, but he did not undertake to do so.
Neither he nor anyone else was asked to testify on that point. The nearest approach to such
testimony was that given by Dr. McDaniel and Dr. Muller; yet their testimony does not aid
the plaintiff. Dr. McDaniel testified that on or about August 17, 1931, the plaintiff called at
his office, and that * * * he had a hernia at that time and he had it two years before.
Nowhere does the doctor tell what kind of a hernia it was. So far as his testimony is
concerned, it may have been a hernia for which no recovery could be had.
Dr. Muller testified that at the time of the trial of the case in September 1932, he examined
plaintiff and found a left inguinal hernia. This does not tend to show that the hernia he found
was a result of the accident of August 1931.
No doubt the doctors who examined the plaintiff at Boulder City shortly after the injury
was sustained and those who operated on him a few weeks after could have shown the nature
of the hernia, but they did not testify.
The judgment and order must be reversed, with instructions to grant the plaintiff a new
trial.
It is so ordered.
____________
55 Nev. 46, 46 (1933) State Ex Rel. Wichman v. Gerbig
STATE EX REL. WICHMAN v. GERBIG
No. 3022
July 31, 1933. 24 P.(2d) 313.
1. Statutes.
Only subject of statute must be stated in title, and matters properly connected with such subject need not
be mentioned (Const. art. 4, sec. 17).
2. Statutes.
Statute entitled act providing for withdrawal of specified townships from Mineral County and annexation
thereof to another county, and which declared office of any county officer residing in severed portion of
county vacant, held not violative of constitution requiring each law to embrace only one subject and
matters properly connected therewith (Stats. 1933, c. 193, sec. 1; Const. art. 4, sec. 17).
3. Officers.
Offices that must be promptly filled by election may, in cases of emergency or special occasion, be
provided for temporarily by other means than election provided for under constitution (Const. art. 4,
sec. 26).
4. Officers.
Where constitution clearly enumerates events that shall constitute vacancy in particular office, all others
must be excluded.
5. Counties.
Statute in effect declaring office of county commissioner residing in territory severed from one county
and annexed to another vacant, and providing vacancy should be filled in manner provided by law, held not
violative of constitutional provision requiring legislature to provide by law for election of board of county
commissioners in each county (Stats. 1933, c. 193, sec. 2(h); Const. art. 4, sec. 26).
6. Courts.
Statute annexing portion of one county to another county held not unconstitutional as violating provision
of constitution relating to change of boundaries of judicial district (Stats. 1933, c. 193, sec. 1; Const. art.
6, sec. 5).
7. Counties.
Statute authorizing governor to fill vacancy in office of county commissioner held not impliedly repealed
by statute authorizing board of county commissioners to fill vacancy in any county or township office,
except office of county judge (Comp. Laws 1929, sec. 1935; Stats. 1933, c. 127).
8. Counties.
Statute annexing portion of one county to another county held not unconstitutional because it resulted in
county commissioner's ceasing to be resident of county wherein he held office so as to cause his office to
become vacant (Stats. 1933, c. 193, sec. 1; Comp. Laws 1929, sec. 4799).
55 Nev. 46, 47 (1933) State Ex Rel. Wichman v. Gerbig
9. Counties.
Legislature has power to change boundaries of county.
10. Courts.
Legislature is prohibited from changing boundaries of judicial district only to extent of increasing or
diminishing such district in so far as county organizations are concerned (Const. art. 6, sec. 5).
11. Statutes.
Statute authorizing governor to fill vacancy in office of county commissioner held not unconstitutional as
special statute (Comp. Laws 1929, sec. 1935; Const. art. 4, sec. 20).
Complaint in Quo Warranto in the Supreme Court, by the State of Nevada, on the relation
of John H. Wichman against Oscar Gerbig. Judgment for defendant.
Thatcher & Woodburn, for Respondent:
The mandate of the constitution, section 26 of art. IV, that county commissioners be
elected by the people does not apply to cases of emergency or special occasion, as the
creation of a new office, or a vacancy. State ex rel. Clarke v. Irwin, 5 Nev. 92.
Clearly, the legislature may cut up and parcel out to other counties any part of any county
without violating the constitution. This has been expressly held in this state in the case of
Humboldt County v. Pershing County, 43 Nev. 78, 181 P. 861.
It has also been expressly held in this state in the case of State ex rel Clarke v. Irwin,
supra, that the legislature of Nevada has the power to declare what shall operate as a vacancy
in office, and that even though the constitution provides in some instances what shall operate
as a vacancy in office, this does not prohibit the legislature from enumerating other causes.
The act in question does not attempt to, nor does it abolish or consolidate the office of
county commissioner of Mineral County, and the legislature, in passing it, was only
exercising the powers which it held under the constitution, and the vacancy in office created
by the fact that respondent resided in the particular territory annexed to Lyon County is an
incident resulting only from the fact of such residence. Conner v. Gray, 88 Mill. 489, 9 Ann.
Cases 120.
55 Nev. 46, 48 (1933) State Ex Rel. Wichman v. Gerbig
It is respondent's contention that the matters of the assumption of indebtedness and the
filling of vacancies in office incident to the change of county boundary lines are such matters
as naturally arise in the change of county boundaries, and are therefore matters properly
contained and incident to an act changing county boundaries. Pershing County v. Sixth
Judicial District Court, 43 Nev. 78, 181 P. 961.
Matters which are properly connected with the main subject matter of the act need not be
mentioned in the title. Humboldt County v. Churchill County, 6 Nev. 380.
The passage of section 1935 N. C. L. clearly took out of the operation of section 4813 N. C.
L. the appointment of vacancies existing in the office of county commissioner, and placed it
in the hands of the governor of the state. On March 22, 1933, section 4813 N. C. L. was
amended by changing the words next general election to read until the next biennial
election. The question is whether such amendment, operating as a republication of the
original section, repealed by implication section 1935 N. C. L. The supreme court of this state
has, at least twice, held that in such a situation no repeal by implication will be effected. State
ex rel. Love v. County Commissioners Elko County, 21 Nev. 19, 23 P. 935; State ex rel.
Dunkle, Sheriff, v. Beard, Auditor, 21 Nev. 219, 29 P. 531.
The contention of respondent is, as to section 5 of article VI of the Nevada constitution:
First, that said provision does not prohibit a change in the boundaries of a judicial district at
any time, but the words such change refer only to diminishing the number of districts and
the number of judges therein; second, that the law here involved relates not to judicial
districts and does not make any change in their boundaries, but is simply a law relating to
counties, and there is nothing therein evidencing any intent to change the boundaries of a
judicial district. Wheeler v. Herbert (Cal.), 92 P. 353; State v. County Commissioners, 19
Nev. 332, 10 P. 901.
55 Nev. 46, 49 (1933) State Ex Rel. Wichman v. Gerbig
Cooke & Stoddard, for Relator:
The act in question is violative of sec. 17, art. IV, Nevada constitution, in that the act
embraces more than one subject, to wit, the subject of cession of territory from Mineral
County to Lyon County, and the subject of ousting from office any county officer of Mineral
County residing in the area so ceded, the latter subject not being expressed in the title. State v.
Silver, 9 Nev. 227, 231; State v. Rodgers, 10 Nev. 250, 253, et seq.; State v. Asham, 15 Nev.
27, 37 Am. Rep. 454; State v. Hallock, 19 Nev. 384, 12 P. 832; State v. Hoadley, 20 Nev.
317, 22 P. 99; State ex rel. v. Board of Commissioners, 22 Nev. 399, 41 P. 145; State v.
Stone, 24 Nev. 308, 53 P. 497; Bell v. First Judicial District Court, 28 Nev. 280, 81 P. 875;
State v. Gibson, 30 Nev. 353, 96 P. 1057; State v. Eggers, 36 Nev. 372, 136 P. 100; Ex parte
Mantell, 47 Nev. 95, 216 P. 509; Ex parte Cerfoglio, 44 Nev. 343, 195 P. 96; State v.
Douglass, 46 Nev. 121, 208 P. 422; State v. Payne, 53 Nev. 193, 295 P. 770; 59 C. J. 815,
sec. 397.
The general rule is, in the absence of constitutional or statutory provisions, that residence
within the district over which the jurisdiction of the office extends is unnecessary to
eligibility. 46 C. J. 938.
That the office of county commissioner is a constitutional office would seem to be
established by sec. 26, art. IV, of our constitution.
That the legislature has no power to abolish an officer as county commissioner would
seem to be established by sec. 32, art. IV, Nev. Const.; State v. Tilford, 1 Nev. 240, 244;
Moore v. Humboldt County, 46 Nev. 220, 204 P. 880; State v. Douglass, 33 Nev. 82, 110 P.
177; State v. Arrington, 18 Nev. 415, 4 P. 735, 737; State v. County Commissioners, 19 Nev.
337, 10 P. 901-908.
The act in question accomplishes an alteration in the boundaries or divisions of the Fifth
judicial district, Mineral County being in that district, and also of the First judicial district,
Lyon County being therein, by severing a portion of Mineral County and adding it to Lyon
County.
55 Nev. 46, 50 (1933) State Ex Rel. Wichman v. Gerbig
Lyon County. The terms of the judges of both districts will not expire until January 1935. We
submit the statute in question could in no event be effective except on the contingency of a
vacancy in both of said judicial offices, or the expiration of the terms. Nev. Const., art. VI,
sec. 5; Maize v. State, 4 Ind. 342; Miller v. Oliver (Cal.), 202 P. 168, 171; 7 C. J. 1016, n.
53(b).
OPINION
By the Court, Sanders, C. J.:
This action in quo warranto was commenced in this court in the name of the state, on the
relation of John H. Wichman, as plaintiff and relator, against Oscar Gerbig, as defendant and
respondent. The case is now before us upon the complaint and the general demurrer filed
thereto. The facts out of which the case arises are, in brief, as follows: On and prior to March
28, 1933, the complainant was the duly elected, qualified, and acting county commissioner of
Mineral County. On the date mentioned there was adopted and approved an act entitled An
Act providing for the withdrawal of, and severance of, certain townships and parts of
townships from the county of Mineral, and the annexation and addition thereof to the county
of Lyon. Stats. 1933, p. 335, c. 193. Following the lengthy preamble to the act, the first
section thereof makes provision for the severance of the land and territory described therein
from Mineral County and for its addition and annexation to Lyon County. The second section
of the act provides the terms and manner of severance. Subdivision (h) of section 2 provides
as follows: Upon the passage and approval of this act the office of any county officer then
residing in said portion of said Mineral County so severed therefrom and so attached to said
Lyon County shall thereupon become vacant and the vacancy so caused thereby shall be filled
in the manner provided by law for the filling of vacancies in such office."
55 Nev. 46, 51 (1933) State Ex Rel. Wichman v. Gerbig
office. At the time of the adoption and approval of the act John H. Wichman, as county
commissioner of Mineral County, resided in and now resides in that particular portion of said
county so severed therefrom and attached to Lyon County, whereby the office of county
commissioner, under the provisions contained in subdivision (h), became vacant.
On, to wit, April 4, 1933, the governor of the State of Nevada appointed Oscar Gerbig
county commissioner of Mineral County in the place and stead of John H. Wichman. On
April 5, 1933, at a regular meeting of the board of commissioners of Mineral County,
Wichman protested the appointment of Gerbig as county commissioner in his place and stead
and was then and there denied the right to exercise the duties of said office. Upon this state of
facts Wichman filed a complaint in this court praying judgment ousting Gerbig from said
office, and that he be inducted into said office by mandate of this court upon the alleged
grounds: First, that the said act of the legislature is unconstitutional; and, second, upon the
ground that the governor of the State of Nevada has no right to fill a vacancy existing in the
office of county commissioner. To this complaint Gerbig filed a general demurrer upon the
ground that the complaint failed to state sufficient facts to constitute a cause of action, and
upon the further ground that it appeared from the complaint that the relator had no interest in
the maintenance of the action.
1, 2. It was alleged in the complaint that the act in question is in violation of section 17 of
article 4 of the constitution, providing that each law enacted by the legislature shall embrace
but one subject, and matters properly connected therewith. This tribunal in several cases has
had occasion to say that while this section restricts the scope of each law to one subject, and
matters properly connected therewith,' it is only necessary in the title to express the principal
subject embodied in the law, while the matters properly connected therewith are not required
to be mentioned.
55 Nev. 46, 52 (1933) State Ex Rel. Wichman v. Gerbig
Humboldt County v. Churchill County Com'rs., 6 Nev. 30. It thus appears that it is only the
subject of the act which must be stated in the title; matters properly connected with that
subject need not be mentioned. If they are mentioned, it simply makes the title unnecessarily
prolix, but does not constitute the connected matter a separate subject nor otherwise
invalidate the law. State v. Board of Com'rs. of Humboldt County, 21 Nev. 235, 29 P. 974.
Thus, the question raised is whether the subject of subdivision (h) of section 2 of the act is
properly connected with the matter mentioned in the title. We are of opinion that it is. The
vacancy in office as provided in subdivision (h) of section 2 is matter necessarily growing out
of and induced by the severance of a portion of Mineral County and its addition to Lyon
County.
3-5. It is alleged in the complaint that the act in question is in violation of section 26 of
article 4 of our constitution, which states the legislature shall provide by law for the election
of a board of county commissioners in each county, and such county commissioners shall,
jointly and individually, perform such duties as may be prescribed by law.
It is argued on behalf of the relator that because his office is elective under the
constitution, it follows that the legislature cannot fill such office in the case of a vacancy
occasioned by the provisions contained in subdivision (h) of section 2 of the statute. Offices
that must be promptly filled by an election, in cases of emergency or special occasion, may be
provided for temporarily by other means. The constitutional mandate does not apply where
there is an emergency or special occasion calling for extraordinary action on the part of the
legislature. State v. Arrington, 18 Nev. 412, 4 P. 735; State ex rel. Clarke v. Irwin, 5 Nev.
111. We recognize that where the constitution clearly enumerates the events that shall
constitute a vacancy in a particular office, all others must be excluded. People v. Whitman, 10
Cal. 38. Section 4799 N. C. L. 1929 provides in part as follows: Every office shall become
vacant upon the occurring of either of the following events before the expiration of the
term of such office: * * * SixthThe ceasing of the incumbent to be a resident of the
state, district, county, city, or precinct in which the duties of his office are to be exercised,
or for which he shall have been elected or appointed."
55 Nev. 46, 53 (1933) State Ex Rel. Wichman v. Gerbig
of the following events before the expiration of the term of such office: * * * SixthThe
ceasing of the incumbent to be a resident of the state, district, county, city, or precinct in
which the duties of his office are to be exercised, or for which he shall have been elected or
appointed. The legislature could not have more clearly stated what would occur in a case of
this kind than it did by the above section. When the relator became a resident of Lyon County
he ceased to be a resident of Mineral County, in which the duties of his office were to be
exercised. Undoubtedly persons residing within the limits of territory detached from an old
and attached to another county cease to be residents of the former and become residents of the
latter, and unless there is some provision in the act of severance modifying the apparent effect
of the statute, as quoted, it would follow that the relator was legislated out of office. He was
removed from Mineral County, not by his own volition, but by the act of the legislature. The
result is the same, though the manner of accomplishment is different. School Dist. No. 116 v.
Wolf, 78 Kan. 805, 98 P. 237, 20 L. R. A. (N. S.) 358.
6. It is contended on behalf of the relator that the act in question violates section 5 of
article 6 of the constitution, relating to the change of boundaries of a judicial district. We are
of the opinion that the act under review has no relation whatever to section 5 of article 6,
which has for its object the protection of a judge in his office for the term for which he was
elected.
7. It is alleged in relator's complaint and urged in argument in his behalf that the governor
of Nevada had no power or authority to fill a vacancy in the office of county commissioner.
We are not in accord with this contention. Section 1935 N. C. L. 1929 provides as follows:
Any vacancy or vacancies occurring in any board of county commissioners shall be filled by
appointment of the governor. * * * It is argued on behalf of the relator that this particular
section was repealed by the adoption and approval of the act of 1933 (Stats. 1933, c. 127),
which provides, in substance, that when any vacancy shall exist or occur in any county or
township office, except the office of county judge, the board of county commissioners
shall appoint some suitable person to fill such vacancy, until the next general election.
55 Nev. 46, 54 (1933) State Ex Rel. Wichman v. Gerbig
any vacancy shall exist or occur in any county or township office, except the office of county
judge, the board of county commissioners shall appoint some suitable person to fill such
vacancy, until the next general election. We are unable to conclude that this statute repeals by
implication or other wise section 1935, which confers upon the governor the power and right
to fill by appointment any vacancy or vacancies in any board of county commissioners.
The relator having failed to show any legal right to the office of county commissioner of
Mineral County, a judgment of ouster of the defendant, Oscar Gerbig, from that office must
be denied.
It is so ordered.
Coleman, J. concurring:
I concur in the order.
8. It is true, as contended, that a county commissioner is a constitutional officer and that he
cannot be deprived of his office by an act of the legislature passed for that purpose; but when
the legislature enacts a law which it is empowered to enact and it incidentally happens as one
of the results of such legislation that a constitutional officer ceases to be a resident of the
county for which he was elected, the act is nevertheless valid.
9. The legislature has the power to change the boundaries of a county. Pershing County v.
Sixth Judicial Dist. Court in and for Humboldt County, 43 Nev. 78, 181 P. 960, 183 P. 314.
When it exercised this constitutional authority the petitioner ceased to be a resident of
Mineral County and hence was no longer a commissioner of the county. This point was
squarely determined in Conner v. Gray, 88 Miss. 489, 41 So. 186, 189, 9 Ann. Cas. 120,
wherein the court said: It is charged in the bill that the officers named will be deprived of
some constitutional rights which they have to hold office. * * * The Constitution of the state
stands as a whole, and all its provisions are to be construed together as one entirety. That
section of the Constitution which provides for the creation of new counties is a particular
power granted to the Legislature, more far-reaching and greater in its effect upon the
body politic than those provisions of the Constitution which provide for the districting of
the county into beats and districts and providing for the terms of officers, and its exercise
by the legislature contains a necessary implication against anything contrary to it.
55 Nev. 46, 55 (1933) State Ex Rel. Wichman v. Gerbig
of new counties is a particular power granted to the Legislature, more far-reaching and greater
in its effect upon the body politic than those provisions of the Constitution which provide for
the districting of the county into beats and districts and providing for the terms of officers,
and its exercise by the legislature contains a necessary implication against anything contrary
to it. The Legislature cannot legislate out of office any constitutional officer, where the
purpose of the act is to accomplish this alone; but where the power is given to the Legislature
by the Constitution to legislate upon any specific subject-matter, and in strict conformity to
the power they do legislate, and it has the incidental effect of abolishing certain office holders
holding office under the general provisions of the Constitution, those officers will be
presumed to have been elected and to have accepted their offices in subservience to the power
which existed in the Legislature, by the exercise of its constitutional power, to dispense with
the office holders as the incidental effect of the passage of the act creating the new county.
The case of State of Ohio ex rel. Ives v. Choate, 11 Ohio, 511, is squarely in point. Choate
was elected associate judge of Huron County, entered upon the duties of the office, and ever
since had resided in the town of Milan. By act of the general assembly Milan was, after
Choate's election and qualification, attached to Erie County, after which Ives was elected
associate judge of Huron County and qualified as such. Choate persisting in holding the
office, Ives instituted proceedings in quo warranto.
The court in disposing of the case said:
The constitution of this state authorizes the general assembly to create new counties and
to change or alter the boundaries of old ones. * * *
What, then, is the effect of the commission which was granted to defendant, Choate? Did
it authorize him to claim the office of judge for Huron county after his political connection
with that community had ceased? Could he act as a conservator of the peace therein? The
constitution is mandatory, 'He shall reside therein.' No one could contend that a voluntary
removal was not a forfeiture and resignation of his office.
55 Nev. 46, 56 (1933) State Ex Rel. Wichman v. Gerbig
constitution is mandatory, He shall reside therein.' No one could contend that a voluntary
removal was not a forfeiture and resignation of his office. Indeed the legislature of this state
have, by express enactment, declared that it shall be so held. Can it make any difference when
this removal is effected by the exercise of a constitutional right of the general assembly and
by an act of omission in the officer? It seems to us it can not.
To the same effect, see People v. Morrell, 21 Wend. (N. Y.) 563.
10. It is clear that the act is not violative of section 5, art. 6, of the constitution, prohibiting
the change of the boundaries of a judicial district during the term of an incumbent. It is clear
that the legislature is prohibited from changing the boundaries of a district only to the extent
of increasing or diminishing such district in so far as county organizations are concerned.
11. The governor had authority to fill the vacancy mentioned, pursuant to section 1935 N. C.
L., notwithstanding section 4813 N. C. L., as amended by chapter 127, Stats. 1933,
authorizing the board of county commissioners to fill vacancies in county offices. The board
of county commissioners of the various counties of the state consists of three members, and
in case of a vacancy it can readily be seen that it would often happen that difficulty would
arise in filling such vacancy by the two remaining members, hence the legislature enacted
section 1935 N. C. L., authorizing the governor to fill such a vacancy. If it be claimed that the
last-named section be a special statute, we may say that special statutes are interdicted in only
special cases by section 20, art. 4, of the constitution; furthermore, we are not convinced that
it is special in character. State of Nevada v. California Min. Co., 15 Nev. 234.
____________
55 Nev. 57, 57 (1933) Wilson v. Wilson
Wilson v. Wilson
No. 3031
July 31, 1933. 24 P. (2d) 317.
1. Appeal and Error.
Upon appeal from order granting change of venue, affidavits not filed in lower court are not properly part
of record and cannot be considered.
2. Appeal and Error.
Supreme court on appeal can only pass upon alleged errors or abuse of legal discretion committed by trial
court.
3. Appeal and Error.
In determining questions of error or abuse of legal discretion by trial court, supreme court cannot look to
matter dehors the record.
4. Divorce.
In divorce action where husband admitted he was worth $20,000 and that his income for a part of the year
was $3,000, $150 held reasonable allowance to wife for attorney's fee on appeal.
Appeal from Third Judicial District Court, Lander County; Edgar Eather, Judge.
Action for divorce by Dudley Franklin Wilson against Nell Kerrigan Wilson. From an
order granting defendant's motion for change of venue, plaintiff appeals. On defendant's
motions to strike plaintiff's affidavits from the record and for an allowance of attorney's fee.
Motions granted, and defendant's attorney fee allowed.
OPINION
Per Curiam:
This is an action for a divorce. The defendant filed her motion for a change of place of
trial. Upon the hearing of the motion the court ordered that the application be granted, and
transferred the case to Washoe County for trial. Plaintiff has appealed from the order.
Defendant has made a motion to strike from the record certain affidavits which were not
filed in the lower court, and for an allowance of an attorney's fee on this appeal.
The affidavits in question purport to show why it was impossible for counsel to appear at
the hearing of the motion for change of place of trial, and are amply sufficient for that
purpose.
55 Nev. 57, 58 (1933) Wilson v. Wilson
impossible for counsel to appear at the hearing of the motion for change of place of trial, and
are amply sufficient for that purpose.
1-3. It has been held in many cases that nothing can be considered by this court on an
appeal from an order or judgment of a lower court, except the record as made and considered
by the court below. This is true in the very nature of things. This court can only pass upon
alleged errors or abuse of legal discretion committed by the lower court. Water Co. of
Tonopah v. Tonopah Belmont Dev. Co., 50 Nev. 24, 249 P. 565. In determining such
questions we cannot look to matter dehors the record. Brearley v. Arobio et al., 54 Nev. 382,
12 P. (2d) 339.
The motion to strike must be granted.
4. It is contended by defendant that the plaintiff is worth $60,000. He admits he is worth
$20,000, and that he had already had an income of $3,000 this year. It appears that the
respondent has an income of only $30 a month. We think a fee of $150 will be a reasonable
allowance to the defendant as an attorney's fee on this appeal.
It is ordered that the affidavits mentioned be stricken from the files in this case. It is
further ordered that plaintiff (appellant) pay to defendant (respondent), or to her attorney,
Leon Shore, as an attorney's fee herein, within ten days from the filing hereof, the sum of
$150.
____________
55 Nev. 59, 59 (1933) Herrick v. Herrick
Herrick v. Herrick
No. 2993
Oct. 2, 1933. 25 P. (2d) 378.
1. Divorce.
Under statute authorizing divorce, at either spouses's suit, when spouses have lived apart for five years
without cohabitation, plaintiff's alleged marital misconduct causing the separation, held not bar to decree in
his favor, but mere circumstance to consider in court's discretion (Stats. 1931, c. 111, sec. 1).
Under Stats. 1931, c. 111, sec. 1, which provides that when husband and wife have lived apart
for five consecutive years without cohabitation, court may, at its discretion, grant absolute decree of
divorce at suit of either party, the discretion referred to need not be exercised so as to deny a decree
to party whose fault has caused the separation, but is a legal discretion, the exercise of which must be
considered and determined in light of all facts of particular case, and provision of such statute that
such divorce should be subject to same requirements as divorce for other causes does not refer to rule
of recrimination, but to requirements concerning custody of children, disposition of property rights,
alimony, and the like.
2. Statutes.
Whole statute must be given effect if possible.
3. Constitutional Law.
Nevada divorce decree held not invalid as impairing obligation of alleged contract evidenced by
California decree of separate maintenance, since divorce extinguished subject matter forming basis of
separate maintenance action.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Divorce action by Lester Herrick against Eleanor Miller Herrick. Decree for plaintiff and
defendant appeals. Affirmed.
Cantwell & Springmeyer, for Appellant:
Admittedly, the trial court was vested with a discretion to grant the decree or refuse to
grant it. The vesting of such discretion necessarily presupposes the legislative intent that the
judge should hear all evidence upon which to exercise such discretion. Clearly, the only
evidence the legislature could have had in mind in enacting the five-year statute was such
as went to the cause or causes of the living apart.
55 Nev. 59, 60 (1933) Herrick v. Herrick
the only evidence the legislature could have had in mind in enacting the five-year statute was
such as went to the cause or causes of the living apart. This in turn demands consideration of
the reason or reasons in the mind of the legislature for the court hearing evidence as to the
cause of the living apart. To this it would seem there is but one answer, i. e., that the
legislative intent was that if the party applying was the guilty party, the court should in its
discretion deny him or her a decree. In its discretion cannot mean, particularly in a case
where equity is involved, that the trial judge has the liberty and power of acting at his
discretion without the legal and equitable rules governing those rights. Hennessy v. Carmony
(N. J. Eq.), 25 Atl. 374.
By force of the five-year statute itself a divorce cannot be obtained under it except subject
to the same procedure and requirements as applies to the causes now provided by law, to
wit, the causes set forth in sec. 9640 N. C. L., as amended. Admittedly, among those
requirements is the all important and essential one that the party complaining must be the
innocent, aggrieved or injured party, or, under the so-called comparative rectitude statute
(Stats. 1931, p. 179) must be the party least at fault. Pierce v. Pierce (Wash.), 208 P. 49.
There is no showing made in the evidence tending to justify the husband's five year
separation from the wife, and the trial court's act in awarding the husband a divorce was an
abuse of discretion.
The Nevada five-year statute as applied by the lower court would operate as an impairment
of the obligation of contracts and deprive the wife of a vested right under the California
decree. U. S. Const., art. I, sec. 10; 33 C. J. 1056, sec. 9; Wallace v. Eldredge, 27 Cal. 498,
499.
Thatcher & Woodburn, for Respondent:
It is the contention of respondent that when divorce is sought in Nevada on the ground of
five years' separation of the parties, it is immaterial which of the parties may be at fault,
and even though there should be in existence a decree for separate maintenance against
the party seeking the divorce on this ground, such decree will be no bar to the
maintenance of the action, but can only be material as one of the circumstances to be
considered by the court in exercising the discretion conferred by the statute.
55 Nev. 59, 61 (1933) Herrick v. Herrick
is sought in Nevada on the ground of five years' separation of the parties, it is immaterial
which of the parties may be at fault, and even though there should be in existence a decree for
separate maintenance against the party seeking the divorce on this ground, such decree will be
no bar to the maintenance of the action, but can only be material as one of the circumstances
to be considered by the court in exercising the discretion conferred by the statute. Similar
statutes have been enacted in other states, and in every instance where the statute involved
was comparable to that of Nevada, the courts have expressly held that misconduct or fault of
the party seeking the divorce is not a bar to the granting of the decree. 51 A. L. R. pp. 763,
764 (note); Cook v. Cook (N. C.), 80 S. E. 178, at 180; Guillot v. Guillot (R. I.), 106 Atl.
801; Dever v. Dever (R.I.), 146 Atl. 478; Brown v. Brown (Ky.), 189 S. W. 921; Best v. Best
(Ky.), 291 S. W. 1032; Goudeau v. Goudeau (La.), 84 So. 39; North v. North (La.), 113 So.
852.
The testimony of the part of the husband, which is not contradicted in any particular by the
wife, who introduced no evidence, shows that the parties have been separated for almost ten
years; that those ten years have been largely devoted to a succession of lawsuits on behalf of
each of the parties. These suits have occupied a large amount of time and must have been a
source of considerable expense. In these suits charges and countercharges were made by both
the husband and the wife, until now there is no hope of reconciliation. The husband holds no
love or affection for the wife at this time, and it is certain, from the bitterness with which
these numerous lawsuits were contested, that the wife no longer holds any love or affection
for the husband. In this situation, can it be said that the lower court abused its discretion in
permitting a divorce?
It is well settled that the dissolution of the marriage relation extinguishes the subject
matter which forms the basis of an action or proceeding for separate maintenance. It is
likewise equally well settled that a decree of divorce terminates a prior decree for separate
maintenance.
55 Nev. 59, 62 (1933) Herrick v. Herrick
of divorce terminates a prior decree for separate maintenance. 30 C. J. 1075.
OPINION
By the Court, Ducker, J.:
This is an action for divorce. It will be convenient to refer to the parties as husband and
wife.
The husband, as plaintiff, charged that plaintiff and defendant have lived apart for five
consecutive years without cohabitation. In this connection it was also alleged in the
complaint that they ceased living together as husband and wife on the 28th day of June 1923.
A demurrer to the complaint having been overruled, the wife answered. The answer admitted
the separation alleged in the complaint and set out matter to show that it was due to the
husband's fault. Desertion of the wife by the husband, commencing on said 28th day of June
1923, and cruelty are also alleged in the answer. In addition the answer set out three actions
between the parties in the courts of California. The first of these was an action instituted by
the wife against the husband for separate maintenance on the ground of extreme cruelty. This
action was commenced in the superior court of San Mateo County. The husband filed an
answer denying the allegations of cruelty and praying for a divorce on the ground of extreme
cruelty. The action was transferred to San Francisco County for trial, which resulted in
findings and judgment against the contentions of both parties. The trial court, however,
ordered the husband to pay the wife $200 per month commencing on the 29th day of March
1928, until further order of the court, for her maintenance and support in accordance with
section 136 of the civil code of the State of California. Thereafter the husband filed an action
for divorce in said San Mateo County charging extreme cruelty. In the wife's answer she
denied the charges of cruelty and, among other defenses, set up the previous action as res
adjudicata thereof.
55 Nev. 59, 63 (1933) Herrick v. Herrick
thereof. On August 17, 1929, the court dismissed the husband's complaint and ordered that he
take nothing thereby, upon the ground that the matters alleged therein had been adjudicated
and determined in the previous action.
In January 1930 the husband filed another action for divorce in said San Mateo County on
the ground of extreme cruelty. In the wife's amended answer and cross complaint she denied
the cruelty charged, set up the former action as res adjudicata thereof, and asked a decree
granting her permanent maintenance and support. The case went to trial, which resulted in the
following orders:
It is ordered that a divorce be and the same is hereby denied the parties herein, and
judgment is hereby granted in favor of the defendant on the complaint herein. It is ordered
that the cross-complaint be and the same is hereby dismissed without prejudice.
It is further ordered that the sum of $98.50 be allowed the defendant for costs and the
sum of $350 is hereby allowed as fees for defendant's attorneys.
On the trial of the instant action it was stipulated that there was no statute in California
reading like the statute of Nevada under which the divorce was granted. It was further
stipulated that during the pendency of the actions in California the only grounds for divorce in
that state were as follows: Adultery, extreme cruelty, wilful neglect, wilful desertion,
habitual intemperance and the conviction of a felony. Civ. Code Cal., sec. 92. The husband
was a witness in his own behalf. The wife did not become a witness and offered no evidence
except the exhibits attached to the answer. She relied solely upon the effect of the California
decrees pleaded in her answer.
1. A decree was rendered and entered by the lower court granting the husband a divorce. A
motion for a new trial was denied and the wife appealed from the decree and order. She
contends that the California decrees have adjudged that the husband has been guilty of marital
misconduct which constitutes a bar to his obtaining a divorce based upon the ground of
living apart without cohabitation.
55 Nev. 59, 64 (1933) Herrick v. Herrick
obtaining a divorce based upon the ground of living apart without cohabitation. The statute
providing such ground of divorce reads:
Section 1. Divorce from the bonds of matrimony may be obtained, in addition to the
causes now provided by law, and subject to the same procedure and requirements, for the
following cause:
When the husband and wife have lived apart for five consecutive years without
cohabitation the court may at its discretion grant an absolute decree of divorce at the suit of
either party. Stats. 1931, p. 180, c. 111, sec. 1.
The statute is very plain. It does not in terms require that a party should be without fault
and we do not think that such limitation may be inferred from it.
2. It is argued that there could have been no purpose in vesting the court with discretion to
grant a divorce unless it was intended that such discretion should be exercised in denying a
decree to the party whose fault had caused the separation. We see no force in this reasoning,
for it is tantamount to saying that the court is without discretion at all but must grant a
divorce to an injured party when prayed for in a given case on this particular ground, and
deny a decree to a party with fault. Such a construction would render the words, at its
discretion meaningless, and would be a violation of the rule that every part of a statute must
be given effect if possible. The discretion given the court is a legal discretion, the exercise of
which must be considered and determined in the light of all of the facts of a particular case.
It is also argued by counsel for the wife that an intention to give the remedy only to an
injured party is deducible from that part of the statute which provides that the divorce may be
obtained in addition to the causes now provided by law and subject to the same procedure and
requirements. This contention is based upon the ground that as to other divorce actions it was
formerly held that where each of the spouses had been guilty of misconduct which is cause
for divorce, neither was entitled to the remedy.
55 Nev. 59, 65 (1933) Herrick v. Herrick
was entitled to the remedy. Blankenship v. Blankenship, 51 Nev. 356, 276 P. 9, 63 A. L. R.
1127. This rule has since been modified by statute so as to give the court discretion to grant a
divorce to a party least at fault when both have been guilty of wrong or wrongs which may
constitute grounds for a divorce. Stats. 1931, p. 179, c. 110.
We do not think that the words subject to the same procedure and requirements have
reference to any such rule. Obviously no such meaning can be attributed to the word
procedure, and we are satisfied that the word requirements has no reference to the cause
of action or any defense that may be made to it. It means such requirements as may be made
concerning the custody of the children, the disposition of property rights, alimony and the
like. The idea of a divorce on the ground stated is an idea of recent origin. The legislative
concept embodied in the statute is that when the conduct of parties in living apart over a long
lapse of time without cohabitation has made it probable that they cannot live together in
happiness, the best interest of the parties and of the state will be promoted by a divorce. The
policy and purpose of such statutes are succinctly stated by the compiler of the note in 51 A.
L. R. at page 763, as follows:
The public policy of these separation statutes is based upon the proposition that where a
husband and wife have lived apart for a long period of time without any intention ever to
resume conjugal relations, the best interests of society and the parties themselves will be
promoted by a dissolution of the marital bond. This is a comparatively new idea in the law of
domestic relations and divorce.
There is no dissent among the courts of states having a statute similar to ours, from the
proposition that either spouse may maintain an action for a divorce irrespective of whose fault
caused the separation. Cook v. Cook, 164 N. C. 272, 80 S. E. 178, 49 L. R. A. (N. S.), 1034;
Guillot v. Guillot, 42 R. I. 230, 106 A. 801, 802; Dever v. Dever, 50 R. I. 179, 146 A. 478;
Goudeau v. Goudeau, 146 La.
55 Nev. 59, 66 (1933) Herrick v. Herrick
Goudeau, 146 La. 742, 84 So. 39; North v. North, 164 La. 293, 113 So. 852, 853; Brown v.
Brown, 172 Ky. 754, 189 S. W. 921; Best v. Best, 218 Ky. 648, 291 S. W. 1032.
The statute of Rhode Island (Gen. Laws 1923, c. 291, sec. 3) is very similar to ours, except
as to time. It reads:
Whenever in the trial of any petition for divorce from the bond of marriage, it shall be
alleged in the petition that the parties have lived separate and apart from each other for the
space of at least ten years, the court may in its discretion enter a decree divorcing the parties
from the bond of marriage and may make provision for alimony.
In the case of Guillot v. Guillot, supra, the wife sought to show that the husband had been
guilty of one or more of the statutory offenses for which divorces are decreed, and thus bar
him from obtaining his decree. The trial court held that the defense of recrimination was
available under Rhode Island statute. The supreme court reversed the ruling and in its
decision said:
In other words, the granting of a divorce under this statute does not depend upon the
previous conduct of the petitioning party. It is easy to conceive that the trial court under the
circumstances of some particular case, might find it for the best interests of both parties and
of society that a divorce should be decreed irrespective of the earlier behavior of the
petitioner.
The statute of Louisiana is as follows:
When married persons have been living separate and apart for a period of seven years or
more, either party to the marriage contract may sue in the courts of the state of his or her
residence, provided such residence shall have been continuous for the period of seven years,
for an absolute divorce which shall be granted on proof of the continuous living separate and
apart of the spouses during said period of seven years or more. Act No. 269 of 1916, sec. 1.
The supreme court of that state in North v. North, supra, construing the statute said: "The
act under which this suit is brought introduced a new and independent cause for divorce
in this state, and that act does not take into consideration the question of what cause
produced the separation or on whose fault the separation was brought about.
55 Nev. 59, 67 (1933) Herrick v. Herrick
The act under which this suit is brought introduced a new and independent cause for
divorce in this state, and that act does not take into consideration the question of what cause
produced the separation or on whose fault the separation was brought about. The only
requirement of the statute as a condition precedent to granting the divorce is that the parties
have actually and in fact lived separate and apart and in different domiciles for a period of
seven years complete, during which period one of the parties at least has continued to reside
in this state.
The Kentucky statute provides as a cause for divorce:
Living apart without any cohabitation for five consecutive years next before the
application. Ky. Stats., sec. 2117, subd. 20.
In the case of Best v. Best, supra, the wife set up in her answer that the separation for
which the husband brought his suit for divorce was caused by his cruel and inhuman
treatment. The court of appeals of Kentucky in that case, in answer to that contention, said:
But, if that were true, it would not defeat the particular statutory ground, since it is
available regardless of the fault of the parties or either of them causing the separation.
The authorities presented by the wife on this point do not support her contention. The
statutes of the particular states in which they were decided either provide that the suit can be
maintained only by the injured party, or are otherwise so unlike our statute as to render them
of no value as an authority in this case.
We are satisfied that the fault of one or both of the parties which may have caused the
separation is merely a circumstance for the trial court to consider in the exercise of its
discretion. It is unnecessary for us to determine if in any of the California decrees the husband
is adjudged to have been to blame in causing the separation, and therefore estopped to
maintain the suit for divorce as contended by appellant. This contention is disposed of by our
ruling that it is not an essential element of the statute that a party be without fault to maintain
an action for divorce on the ground of separation for five years without cohabitation.
55 Nev. 59, 68 (1933) Herrick v. Herrick
maintain an action for divorce on the ground of separation for five years without cohabitation.
3. Appellant's contention that the decree of divorce in this case impairs the obligation of
contract evidenced by the California decree of separate maintenance, is devoid of merit. The
dissolution of the marriage relation extinguishes the subject matter which forms the basis of
an action or proceeding for separate maintenance. Bushnell v. Cooper, 289 Ill. 260, 124 N. E.
521, 6 A. L. R. 1517; 30 C. J. 1075.
It is also contended that the court erred in admitting certain testimony over the wife's
objection, but we find no error in this respect.
But one point remains. Did the court abuse its discretion in awarding the husband a decree
of divorce? We are satisfied that it did not. She did not become a witness or offer any
testimony in her own behalf. It would serve no useful purpose to detail the evidence on the
part of the husband. It is sufficient to support the decree.
The decree and order denying a new trial are affirmed.
____________
55 Nev. 69, 69 (1933) Jeffers v. Jeffers
JEFFERS v. JEFFERS
No. 3030
October 11, 1933. 25 P. (2d) 556.
1. Divorce.
Husband's poverty is no defense against wife's right to obtain from him means necessary to prosecute her
appeal in divorce action, but may be considered in fixing amount.
2. Divorce.
Under evidence husband, who obtained divorce decree, held required to pay $200 attorney's fee and $25
filing fee for wife's appeal.
Wife alleged that husband was able to earn $750 per month as salesman, and that he was in
possession of a large amount of community property, but husband in opposing affidavit alleged he
had no property or means of any kind and was indebted to his employer in the sum of $3,500, and that
his only source of income was commissions received as traveling salesman.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Divorce suit between Lydia Ann Jeffers and James Jeffers. From an adverse decree, Lydia
Ann Jeffers appeals. Upon motion by appellant for attorney's fee, filing fee, and costs on
appeal. Decree in accordance with opinion.
Ham & Taylor, for Appellant:
It is well settled in this jurisdiction that a destitute wife is entitled to an allowance of suit
money and counsel fees upon appeal in actions of this kind. Black v. Black, 47 Nev. 346, 221
P. 239; Wallman v. Wallman, 48 Nev. 239, 229 P. 1.
C. D. Breeze, for Respondent:
We respectfully submit that this motion ought to be denied because appellant has wholly
failed to show that the appeal is taken in good faith and upon reasonable grounds to believe
that it will be successful. And for the further reason that appellant has wholly failed to show
that respondent is financially able to pay any allowance for her counsel fees and expenses on
the appeal, and respondent has shown that he is not financially able to pay such
allowances and ought not to be further impoverished by being obliged to pay the
expenses of a useless appeal.
55 Nev. 69, 70 (1933) Jeffers v. Jeffers
appeal, and respondent has shown that he is not financially able to pay such allowances and
ought not to be further impoverished by being obliged to pay the expenses of a useless appeal.
OPINION
By the Court, Ducker, J.:
The respondent obtained a decree of divorce from appellant in the Eighth judicial district
court in and for the county of Clark. An appeal was taken and appellant filed a motion in this
court for attorney's fee, filing fee, and costs on appeal. The motion was submitted without
oral argument. Appellant alleges, in her affidavit filed in support of her motion, that she is
destitute of means to prosecute her appeal; that her only source of income is $80 per month
allowed her by the lower court by virtue of a decree of divorce; and that $1,000 is a fair sum
for such attorney's fees. She alleges further that the husband is able to earn with ordinary
industry the sum of $750 per month as a salesman and does earn in excess of that sum. She
also alleges that he is in possession of a large amount of community property, the exact
description and value of which is unknown to her. Respondent in his opposing affidavit
alleges, among other matters, that he has no property or means of any kind and is indebted to
his employer in the sum of $3,500; that he is paid no salary, and his only source of income is
from commissions which he receives as a traveling salesman, which commission he received
only on orders taken and goods delivered; that during the last three years his commissions
have not equalled his drawing or expense account of $300 per month which he receives from
his employer and which is charged against his commissions; and that he will be obliged to
make up the deficiency from commissions to be earned in the future.
1. As will be seen, the affidavits show an issue of ample ability on one side and total
inability on the other to pay the sums claimed as necessary for the wife's expenses on
appeal.
55 Nev. 69, 71 (1933) Jeffers v. Jeffers
ample ability on one side and total inability on the other to pay the sums claimed as necessary
for the wife's expenses on appeal. This is a situation often presented on applications of this
kind. It is the law, however, that the poverty of the husband is no defense against the wife's
right to obtain from him the means necessary to prosecute her appeal in a divorce action.
Herrick v. Herrick, 54 Nev. 323, 15 P.(2d) 681. Such poverty is a fact for consideration in
fixing the amount. See supra.
2. We think the averment of appellant that respondent earns in excess of $750 per month
as a salesman is, to say the least, an optimistic view. A traveling salesman who could earn in
excess of $9,000 a year in a time of depression would be a genius in his vocation. Her
averment that he is in possession of a large amount of community property, the exact
description and value of which is unknown to her, is very indefinite and is denied by him. We
conclude under the circumstances that the sum of $200 would be a reasonable amount as an
attorney's fee and that respondent should also pay the filing fee of $25.
It is therefore ordered that respondent pay to the clerk of this court for the benefit of
appellant as an attorney's fee the sum of $200, and $25 for a filing fee. No showing has been
made as to further costs, and the application in that regard is denied.
____________
55 Nev. 72, 72 (1933) Organ v. Winnemucca State Bank
ORGAN Et Al. v. WINNEMUCCA STATE BANK & TRUST CO. Et Al. (The Bank of
California, National Association, Intervener).
No. 3025
November 3, 1933. 26 P. (2d) 237.
1. Banks and Banking.
Where lender acted in good faith, pledge of assets by state bank as security for money borrowed in excess
of paid-up capital held valid as against bank and its receiver (Comp. Laws 1929, sec. 684, as amended by
Stats. 1931, c. 35).
Comp. Laws 1929, sec. 684, as amended by Stats. 1931, c. 35, provides, in part, that any bank
may borrow money for temporary purposes, not to exceed the amount of its paid-up capital, and may
pledge any of its assets as collateral security therefor * * *
Appeal from Sixth Judicial District Court, Humboldt County; E. P. Carville, Judge.
Suit by Peter Organ and others against the Winnemucca State Bank & Trust Company and
others, wherein the Bank of California, National Association, intervened. From a judgment in
favor of the intervener, the plaintiffs appeal. Affirmed.
Gray Mashburn and Merwyn H. Brown, for Appellants:
The last loan made by The Bank of California, National Association, to the Winnemucca
State Bank & Trust Company, in the sum of $20,000, on November 30, 1931, and the pledge
of said assets of the Winnemucca State Bank & Trust Company to The Bank of California,
National Association, as security for the payment therefor is absolutely contrary to and in
violation of section 684 N. C. L., as amended. The legislature, by that section, in no uncertain
terms and language, prohibited the pledge of assets of any state bank as collateral security for
the purpose of giving a preference to any depositor or creditor, except within the limitations
specified. Any pledge of assets in violation of and contrary to the provisions of said section,
by any bank and/or bank official, could not be otherwise than ultra vires, null and void.
55 Nev. 72, 73 (1933) Organ v. Winnemucca State Bank
than ultra vires, null and void. Divide County v. L. R. Baird, 212 N. W. 236, 51 A. L. R. 296;
Michie on Banks and Banking, vol. 4, p. 66, 1931 Ed.; American Southern National Bank v.
Smith (Ky.), 186 S. W. 482; Porter v. Canyon County Farmers' Mut. Fire Ins. Co. (Ida.), 263
P. 633.
Pillsbury , Madison & Sutro, for Respondent:
We respectfully call the court's attention to the fact that section 684 N. C. L. provides no
penalty of any sort for violation of any of its provisions or for acting in excess of the authority
granted. And there is no provision anywhere in the statutes of Nevada purporting to affect the
validity of any obligation of a Nevada bank given to evidence any borrowing by such bank,
whether or not in excess of its paid-up capital, or purporting to affect in any degree
whatsoever the validity and binding effectiveness of any pledge or mortgage given by such
bank to secure any such loan.
It is respectfully submitted by the respondent that the undoubted weight of authority of the
federal courts and of the courts of the several states supports the respondent's contention that
a loan, such as the $20,000 loan evidenced by note No. 6 in this case, made in good faith,
completed, and the proceeds thereof in money received and used by the borrowing bank, is
perfectly valid, and that the security given therefor is also equally valid and enforceable
against both the borrowing bank and the receiver thereof appointed by a court to administer
its assets. Sneeden v. City of Marion, 58 Fed. (2d) 341, 346; Schumacher v. Eastern Bank &
Trust Co., 52 Fed. (2d) 925; Mothersead v. U. S. Fidelity & Guar. Co., 22 Fed. (2d) 644;
Pixton, State Bank Commissioner v. Perry (Ut.), 269 P. 144.
OPINION
By the Court, Ducker, J.:
In this case E. J. Seaborn, the bank examiner of Nevada, was appointed receiver of the
Winnemucca State Bank & Trust Company, a banking corporation of Nevada, at the suit of
appellants, directors thereof, and the corporation was dissolved.
55 Nev. 72, 74 (1933) Organ v. Winnemucca State Bank
State Bank & Trust Company, a banking corporation of Nevada, at the suit of appellants,
directors thereof, and the corporation was dissolved. Thereafter the respondent, the Bank of
California, National Association, was by order of the court permitted to intervene. The case
comes before us on an agreed statement of facts. Those necessary to state are as follows:
The motion was heard by the trial court on the petition for intervention and reply thereto
by appellants. Prior to the time the bank examiner had taken possession of the property and
business of the Winnemucca State Bank & Trust Company and its doors were closed on or
about January 4, 1932, it had become indebted to respondent in the principal sum of
$117,500. The major portion of that sum, to wit, $97,500, evidenced by five promissory
notes, had been loaned prior to November 30, 1931. The balance, or $20,000, evidenced by a
sixth promissory note, had been loaned on November 30, 1931. Certain assets of the
Winnemucca State Bank & Trust Company had been given as security for the sum evidenced
by the first five notes, and certain other assets had been given as security for the said sum of
$20,000.
Prior to and on the 30th day of November 1931, and up to and including the 4th day of
January 1932, when the Winnemucca State Bank & Trust Company was closed by the bank
examiner, the amount of its paid-up capital was $100,000. When the last loan was made the
Winnemucca State Bank & Trust Company had borrowed money in excess of its paid-up
capital and had attempted to pledge its assets as collateral security for the payment of said
last-mentioned loan in the sum of $20,000.
In the foregoing transaction the respondent acted in entire good faith.
The matter was heard by the trial court on September 17, 1932, and by stipulation of the
parties all matters and questions in reference to the first five notes and all security pledged for
the payment of the same were finally settled and determined by an order of the court to the
satisfaction of all parties concerned.
55 Nev. 72, 75 (1933) Organ v. Winnemucca State Bank
to the satisfaction of all parties concerned. The only matter submitted for the consideration
and decision of the court on the 17th of September was the question of law as to the validity
of the pledge of the assets of the Winnemucca State Bank & Trust Company to respondent as
collateral security for the payment of said loan in the sum of $20,000. The court held that the
pledge of the assets by the Winnemucca State Bank & Trust Company to the respondent as
security for the payment of said loan in the sum of $20,000 was legal and valid.
Appellants contend that under section 684 Nevada Compiled Laws 1929, as amended by
chapter 35, page 41, Stats. 1931, the Winnemucca State Bank & Trust Company, and the
officers thereof, had no authority, and each of them acted beyond their authority, to borrow
money in excess of the paid-up capital of the said bank, and in endeavoring to pledge its
assets as collateral security therefor on the 30th day of November 1931, in connection with
said loan of $20,000, and that by reason thereof the pledge of said assets as security for the
payment of said loan in the sum of $20,000 was unlawful, null, and void.
The section amended reads: No bank official shall give preference to any depositor or
creditor by pledging the assets of the bank as collateral security or otherwise; provided,
however, that any bank may secure funds deposited with such bank by the United States,
state, or counties of the state by pledging acceptable assets of the bank as collateral security;
provided further, that any bank may borrow money for temporary purposes, not to exceed the
amount of its paid-up capital, and may pledge any of its assets as collateral security therefor;
provided further, that when it shall appear that a bank is borrowing habitually for the purpose
of conducting its business, the bank examiner may require such bank to pay off such
borrowed money. Nothing herein shall prevent any bank from rediscounting in good faith and
indorsing any of its negotiable notes.
55 Nev. 72, 76 (1933) Organ v. Winnemucca State Bank
It is admitted by appellants that the $20,000 is a just claim against the Winnemucca State
Bank & Trust Company, but they contend that the effect of said section is to prevent
respondent from satisfying its indebtedness out of the security for it.
We are of the opinion that both are valid as against the Winnemucca Bank & Trust
Company. They are also valid as against the receiver who has joined in this appeal. He stands
in no different position as to the obligations of the bank at the time of his appointment than
the bank. Irving Nat'l. Bank v. Second Judicial Dist. Court, 47 Nev. 86, 217 P. 962.
It will be observed that section 684 provides no penalty for violating the provision
concerning the giving of a preference or for acting in excess of the authority granted in regard
to borrowing money and pledging any of its assets, as collateral security therefor. There is
nothing in the section or elsewhere in our statutes either by expression or implication which
indicates that the legislature intended that the borrowing of money by a bank in excess of its
paid-up capital or that the pledging of its assets to secure such loan would invalidate the
transaction.
It is interesting to note that the legislature of 1933 has declared any indebtedness
contracted by a bank in excess of its paid-up capital null and void in its entirety. Stats. 1933,
c. 190, p. 310. This indicates that the legislature considered the preceding language of the
above section which is similar to the language of the section under consideration insufficient
to declare a penalty of forfeiture. We, however, have not the power to read such a provision
into our former banking law, and in its absence we are unwilling to hold that an ordinary
commercial transaction of the character involved in this case is void.
Appellants argue that the first part of the section, to wit, No bank official shall give
preference to any depositor or creditor by pledging the assets of the bank as collateral security
or otherewise, is the main or primary part of the law; that the sole reason and purpose of this
express prohibition was for the protection of the general depositors of the bank; that
what follows in the section constitutes exceptions to the prohibition against the giving of
a preference; and that this prohibition discloses the legislative intention to declare the
pledging of the assets of a bank as collateral security for money borrowed in excess of the
amount of its paid-up capital null and void.
55 Nev. 72, 77 (1933) Organ v. Winnemucca State Bank
this express prohibition was for the protection of the general depositors of the bank; that what
follows in the section constitutes exceptions to the prohibition against the giving of a
preference; and that this prohibition discloses the legislative intention to declare the pledging
of the assets of a bank as collateral security for money borrowed in excess of the amount of
its paid-up capital null and void.
We may concede without deciding all of these contentions except the conclusion. As
previously stated, the legislature of 1933 was not of this opinion, else it would not have
incorporated in the section: Any indebtedness, however, contracted in excess of the amount
limited herein, shall be null and void in its entirety.
Conceding that the purpose of the section was the protection of depositors in a bank, it
does not follow that the legislature intended the protection to be enforced by forfeiture,
especially where the transaction had been entered into in good faith. The law abhors a
forfeiture. The weight of authority does not support appellants' theory. In the case of State ex
rel. Davis v. Farmers' State Bank of Winside, 112 Neb. 597, 200 N. W. 173, 174, a receiver
had been appointed who brought suit against the Omaha National Bank of Omaha and others
to recover certain collateral obtained by the Omaha bank held as security for loans of money
made by it to the Winside bank which were considerably in excess of the indebtedness
permitted by the charter of the borrowing bank. The receiver prevailed in part in the lower
court and filed a cross-appeal from that part of the judgment which was adverse to him. In the
supreme court he relied mainly upon section 8005 of the Nebraska laws (Comp. Laws 1922),
which, among other things, provided: The aggregate amount of the rediscounts and bills
payable of any corporation transacting a banking business in this state shall at no time exceed
the amount of its paid up capital and surplus, except for the payment of its depositors.
Notwithstanding this statute the supreme court held that the Omaha bank had the right to
hold the collateral and the proceeds thereof as security for the full amount of the loans for
which the collateral was pledged.
55 Nev. 72, 78 (1933) Organ v. Winnemucca State Bank
the supreme court held that the Omaha bank had the right to hold the collateral and the
proceeds thereof as security for the full amount of the loans for which the collateral was
pledged. Concerning the section relied on the court said: It will be noted that this section
provides no penalty and, of course, in the absence of legislation providing a penalty, in an act
upon which the state relies, we are powerless to supply a penalty. To do so would be judicial
legislation of the most pronounced type. It seems that a consideration of the legislation * * *
in this state leads irresistibly to the conclusion that the lawmaking body intended the act,
relied upon by counsel, to be directory, and not mandatory.
The foregoing case, which is squarely in point with this case, has been approved by later
Nebraska decisions. Among them is the case of Nebraska National Bank v. Parsons et al., 115
Neb. 770, 215 N. W. 102, 103. In the course of its opinion in the case last cited, the court
said: It is argued by defendants that the guaranty is void because the guaranteed notes exceed
in amount an indebtedness beyond the power of the corporations to incur. The argument is
based on the proposition that the indebtedness exceeds the statutory limit on corporate power.
Excessive indebtedness does not necessarily invalidate contract obligations, * * * and
legislation to that effect has not been pointed out. Bank of College View v. Nelson, 106
Neb. 129, 183 N. W. 100; State v. Farmers' State Bank, 112 Neb. 597, 200 N. W. 173.
In Blochman Commercial & Savings Bank v. F. G. Investment Co., 177 Cal. 762, 171 P.
943, 944, which was an action to foreclose a mortgage given by a corporation to a bank to
secure a loan in excess of what the bank was permitted to make by the banking act then in
force, the statute (Stats. Cal. 1911, p. 1014, sec. 13) provided: No commercial bank shall
make any loans to any person, company, corporation or firm to an amount exceeding one
tenth part of the capital stock of such bank actually paid in and surplus, excepting that no
commercial bank shall be prohibited by this act from loaning to any person, company,
corporation or firm any sum not exceeding five thousand dollars without security;
provided, however, that a bank may loan to any person, company, corporation or firm a
sum not exceeding twenty-five per centum of its capital stock actually paid in and surplus
upon security worth at least fifteen per centum more than the amount of its loans."
55 Nev. 72, 79 (1933) Organ v. Winnemucca State Bank
that no commercial bank shall be prohibited by this act from loaning to any person, company,
corporation or firm any sum not exceeding five thousand dollars without security; provided,
however, that a bank may loan to any person, company, corporation or firm a sum not
exceeding twenty-five per centum of its capital stock actually paid in and surplus upon
security worth at least fifteen per centum more than the amount of its loans. The borrower
contended that the excess loan was void because prohibited by the statute. The supreme court
held that the loan and mortgage were valid and could be enforced. In the course of its opinion
the court said: The act which, according to the contention of appellants, was violated by
plaintiff's assignor in making the loan does not declare such a loan a void obligation. * * * It
is not denied that the money was loaned, and that the notes and mortgages were executed to
secure its repayment. In principle this case is quite similar to Brittan v. Oakland Bank of
Savings, 124 Cal. 282, 57 P. 84, 71 Am. St. Rep. 58, wherein it was held that the provisions
of section 578 of the Civil Code that no director of a savings bank shall borrow its funds, and
that for so doing his office shall become vacant, cannot be invoked to defeat a pledge made
by such director for money borrowed from the bank. Commenting upon the transaction
whereby the director and the bank violated this statute, the court said: This, however, is of no
advantage to the appellant, as the violation of the provision in question could only be availed
of at the instance of the state or sovereign power. Jones v. New York Guaranty, etc., Co., 101
U. S. 628, 25 L. Ed. 1030; Union National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188.'
For cases in line with the foregoing authorities, see German American State Bank of
Chalco, Neb. v. Farmers' & Merchants' Savings Bank of Lidderdale et al., 203 Iowa, 276, 211
N. W. 386; Douglass v. State Bank of Orlando, 77 Fla. 830, 82 So. 593; Ossippee Hosiery &
Woolen Manufacturing Co. v. Canney, 54 N. H. 295.
55 Nev. 72, 80 (1933) Organ v. Winnemucca State Bank
See, also, Leech et al. v. Armstrong et al., 52 Nev. 125, 283 P. 396, 399, 287 P. 174, which is
in point in principle. In that decision we quoted from Bowditch v. New England M. L. I. Co.,
141 Mass. 292, 4 N. E. 798, 55 Am. Rep. 474, as follows: The Revised Statutes of the
United States, respecting national banks, provide that a bank shall not lend to any one person,
corporation, or firm a sum exceeding one-tenth part of the capital stock actually paid in, and
that national banks shall not take real estate as collateral security except for debts previously
contracted; and it has been repeatedly held that contracts made in contravention of the statute
were not void. Union Gold Min. Co. v. Rocky Mountain National Bank, 96 U. S. 640, 24 L.
Ed. 648; National Bank v. Matthews, 98 U. S. 621, 25 L. Ed. 188; National Bank v. Whitney,
103 U. S. 99, 26 L. Ed. 443; Reynolds v. Crawsfordsville First National Bank, 112 U. S. 405,
5 S. Ct. 213, 28 L. Ed. 733.
In State v. Farmers' State Bank of Winside, supra, the court referred to several federal
authorities which had passed upon questions involving the same principle recognized and
applied by the Nebraska court. The following quotation from one will be sufficient to show
the federal rule: Moreover, it has been held repeatedly by this court that where the provisions
of the national banking act prohibit certain acts by banks or their officers, without imposing
any penalty or forfeiture applicable to particular transactions which have been executed, their
validity can be questioned only by the United States, and not by private parties. Thompson v.
St. Nicholas Nat. Bank, 146 U. S. 240, 13 S. Ct. 66, 69, 36 L. Ed. 956; National Bank v.
Matthews, 98 U. S. 621, 627, 25 L. Ed. 188; National Bank v. Whitney, 103 U. S. 99, 26 L.
Ed. 443; First National Bank of Xenia v. Stewart, 107 U. S. 676, 2 S. Ct. 778, 27 L. Ed. 592.
Appellants rely strongly upon American Southern National Bank v. Smith, 170 Ky. 512,
186 S. W. 482, Ann. Cas. 1918b, 959, and Divide County v. Baird, 55 N. D. 45, 212 N. W.
236, 51 A. L. R.
55 Nev. 72, 81 (1933) Organ v. Winnemucca State Bank
N. D. 45, 212 N. W. 236, 51 A. L. R. 296. The latter, we think, is clearly distinguishable from
the instant case. The former sustains appellants' contention, but our understanding of the
principle applicable to a construction of section 684 persuades us to lay the Kentucky case out
of view. We are satisfied that the legislature did not intend to check the giving of a preference
or the borrowing of money in excess of its paid-up capital stock by a bank, by prescribing a
forfeiture. If it did, it would have been quite easy to say so, as did the legislature of 1933; and
borrowing the language of Mr. Justice Swayne in National Bank v. Matthews, supra, as to a
similar situation, it is hardly to be believed that this would not have been done, instead of
leaving the question to be settled by the uncertain result of litigation and judicial decision.
The transaction was entered into in good faith, no question of fraud is involved and the
money borrowed in excess of statutory limitation went to the benefit of the Winnemucca
State Bank & Trust Company.
The judgment of the lower court should be affirmed, and it is so ordered.
____________
55 Nev. 82, 82 (1933) Valverde v. Valverde
VALVERDE v. VALVERDE
No. 3004
November 3, 1933. 26 P.(2d) 233.
1. Appeal and Error.
Conflict in evidence to preclude reviewing court from disturbing findings and judgment of trail court
must be substantial.
2. Divorce.
Evidence in husband's divorce action failed to sustain findings that wife was guilty of extreme cruelty
toward husband, resulting in injury to his health.
Appeal from Second Judicial District Court, Washoe County; Clark J. Guild, Judge.
Divorce suit by Charles Anthony Valverde against Marie Mildred Valverde. From a decree
for plaintiff, defendant appeals. Reversed, with directions.
Cantwell & Springmeyer, for Appellant:
Appellant concedes that under the law there cannot be a reversal when there is a
substantial conflict in the evidence. However, a reversal is proper here because there is no
substantial conflict. On every point of difference, the corroboration and the reason of the
situation is overwhelmingly in favor of the version given on behalf of the appellant wife. The
overwhelming preponderance of the evidence being in favor of the appellant wife, she is
entitled to a reversal. State v. Virginia & Truckee R. R. Co., 23 Nev. 283, 46 P. 723, 35 L. R.
A. 759.
It is urged that the husband's testimony is entitled to no credit because it is contrary to
reason and common sense, because it is contradicted by documentary proof, and because the
contrary evidence of the wife and her corroborating witnesses is denied only by the husband.
Platt & Sinai, for Respondent:
On the conflicting testimony, the lower court, with the parties before him, came to the
conclusion that the husband's testimony should be given credence, and not the wife's. Under
that situation it would appear to us, from the admission of counsel in their brief, that the
supreme court will not reverse the case purely on conflicting testimony, and that being
the established law, the decision of the lower court should be affirmed.
55 Nev. 82, 83 (1933) Valverde v. Valverde
from the admission of counsel in their brief, that the supreme court will not reverse the case
purely on conflicting testimony, and that being the established law, the decision of the lower
court should be affirmed.
OPINION
By the Court, Coleman, J.:
Charles A. Valverde instituted this suit for divorce against Marie M. Valverde, on the
ground of cruelty. The defendant has appealed from a decree in favor of the plaintiff.
To the complaint, which was filed October 16, 1930, alleging extreme cruelty committed
after January 10, 1929, the defendant filed an answer denying the allegations of cruelty
contained in the complaint, alleging as res adjudicata a decree of separate maintenance in
behalf of this defendant and against this plaintiff, entered by the circuit court of Escambia
County, Fla., a court of general jurisdiction, on January 10, 1929, in which the plaintiff herein
was personally served with summons. The answer herein also alleged, as a third defense to
plaintiff's cause of action, desertion by the plaintiff in 1927.
The defendant urges on this appeal several grounds for reversal, but, as we view the
record, we need determine but one, namely, Does the evidence sustain the findings of the trial
court to the effect that the defendant was guilty of extreme cruelty toward the plaintiff,
resulting in injury to his health?
1. The plaintiff insists that there is such a conflict in the evidence that this court should not
disturb the findings and judgment of the trial court. Bigelow, C. J., in State v. Virginia & T.
R. Co., 23 Nev. 283, 46 P. 723, 35 L. R. A. 759, in considering this contention, said: That is
undoubtedly the general rule, but for it to have this effect there must be a substantial conflict.
It is not sufficient that there is some evidence supporting the verdict, if it is so weak and
inconclusive as not to raise a substantial conflict with that produced against it."
55 Nev. 82, 84 (1933) Valverde v. Valverde
supporting the verdict, if it is so weak and inconclusive as not to raise a substantial conflict
with that produced against it.
In Consolazio v. Summerfield, 54 Nev. 176, 10 P.(2d) 629, 630, we said: The general
rule of this court is that when the evidence is conflicting and there is substantial evidence to
sustain the judgment it will not be disturbed. But there is an exception to the general rule to
the effect that where, upon all the evidence, it is clear that a wrong conclusion has been
reached, the judgment will be reversed. Reed v. Reed, 4 Nev. 395; Dalton v. Dalton, 14 Nev.
419; Watt v. Nev. Cent. R. R. Co., 23 Nev. 154, 44 P. 423, 46 P. 52, 726, 62 Am. St. Rep.
772; Burch v. Southern Pac. Co., 32 Nev. 75, 104 P. 225, 239, Ann. Cas. 1912b, 1166; Smith
v. Goodin, 46 Nev. 229, 206 P. 1067; Walker Brothers Bankers v. Janney, 52 Nev. 440, 290
P. 413.
The parties were intermarried at Tacoma, Wash., in 1917, and the plaintiff, being a captain
in the Regular Army, was transferred to Fort Barrancas, near Pensacola, Fla., in 1926, where
the parties resided until some time in 1930, occupying during that time officers' quarters. On
January 10, 1929, the defendant procured from the circuit court of Escambia County, Fla., a
decree of separate maintenance from the plaintiff, upon the ground of extreme cruelty.
The plaintiff's case is predicated upon acts of extreme cruelty alleged to have been
committed subsequent to January 10, 1929the date of the Florida decree in favor of the
wife.
2. In support of his alleged ground of divorce, the plaintiff testified that the defendant
continued to live and have marital relations, including sexual intercourse, with the plaintiff
against his wishes, in the officers' quarters furnished him by the government at Fort
Barrancas, after the entry of the decree of January 10, 1929; that she refused to vacate the
quarters; that their relations were strained; that she nagged him, and that she threatened to
make, and did make, complaints against him to the commanding officer of the fort; that he
had to pacify her to prevent her making such complaints, which might result in his being
court-martialed.
55 Nev. 82, 85 (1933) Valverde v. Valverde
to pacify her to prevent her making such complaints, which might result in his being
court-martialed. He also testified that he was repeatedly subjected by defendant to humiliation
at the officers' mess table, when she would say things designed to embarrass and humiliate
him. He also testified that defendant made a habit of entertaining in his quarters people who
were distasteful and objectionable to him; that he ordered defendant not to get his mail, but,
contrary to his wishes, she did so and opened his business and official mail, causing him
embarrassment and humiliation. Plaintiff also testified that defendant checked up on him, by
telephone, at clubs and other places; that she compelled him to sign a note under threats that
she would have him put in the local jail for failure to pay back alimony; that defendant would
fly into a rage and go into hysterics; that on numerous occasions she attempted to inflict
physical violence upon him, and on one occasion kicked him in the groin, bit and slapped
him, and threatened him with a gun. He further testified that on dozens of occasions she
threatened to commit suicide. He further testified that the defendant was incapable of making
a home, and that his quarters were constantly unclean, unless he had them cleaned.
After detailing the alleged acts of cruelty mentioned, the plaintiff was asked what was the
effect of the defendant's conduct upon him. He stated: It saw me more and more
embarrassed and humiliated, and rendered me less efficient professionally, and made me
weary more quickly and caused an adverse effect on my health.
The defendant contradicted the plaintiff on every point as to the alleged acts of cruelty,
and, while there is testimony by the plaintiff as to certain alleged conduct of the defendant,
which in the very nature of things no one else could know of except the parties to the suit, his
testimony is not corroborated by any witness, so far as it goes to the alleged cruelty. On the
other hand, he impeaches himself, and he is contradicted by witnesses in behalf of the
defendant. On the whole, we are satisfied that his testimony is entitled to no consideration
whatever.
55 Nev. 82, 86 (1933) Valverde v. Valverde
are satisfied that his testimony is entitled to no consideration whatever.
Notwithstanding the fact that the plaintiff testified in the case that he and the defendant
lived and cohabited together in the same apartments as husband and wife from January 10,
1929, until in January 1931, he filed an affidavit in the case on March 20, 1931, in resistance
of her application for suit money, in which he swore that they had not thus lived together for
three years. True, he testified that he did not intend to make such a statement in the affidavit,
but he relied upon the affidavit for the purpose for which it was made, and it is hard to
believe, in view of his intelligence and training, that he did not know what he was swearing
to.
The defendant testified that she and plaintiff did not live together as husband and wife
subsequent to September 1927. She also testified that after the entry of the decree of separate
maintenance in January 1929, she asked the plaintiff for money he owed her, so that she
could procure quarters elsewhere, and take her personal belongings, such as a piano, and a
few other things, and that the plaintiff stated he was heavily in debt and could not make the
payments; that he suggested that she occupy one of the apartments in the quarters where they
were until November 1, 1929, when he would receive an increase in his salary of $100 a
month, after which date he would voluntarily pay her $150 a month, instead of $125, as
allowed by the court. She testified that the quarters assigned to the plaintiff consisted of two
separate apartments, separated by a stairway and hall, and that, pursuant to plaintiff's
suggestion, she occupied one and the plaintiff the other. She also testified that he said she
would have no rent to pay there, and that there would be no fuel and light bill, as the
government would furnish them free of charge; that, in the event she would stay there, she
could live on $75.00 a month until he got his raise in November 1929. She testified that it
was on those conditions that she continued in the apartment and lived separately from the
plaintiff.
55 Nev. 82, 87 (1933) Valverde v. Valverde
The plaintiff contradicted the foregoing testimony of the defendant, but, when a document
was presented showing his signature and agreeing to pay the plaintiff $150 per month
beginning November 1929, he admitted his signature to it, but claimed it was signed to pacify
the defendant. This statement, to our minds, is the second writing, signed by the plaintiff,
impeaching his testimony.
The plaintiff testified that between the 10th of January 1929, and January 1930, the
defendant had taken his mail from the mail box without his consent, and denied having
written her to forward his mail. In August 1929, while he was stationed at Camp Perry in
Ohio for a few weeks, he wrote her: Be sure to forward all of my mail except magazines and
circulars, * * * as appears from an exhibit. This is the third signed statement impeaching the
plaintiff.
The plaintiff signed the defendant's name to certain documents, against her wishes and
without her knowledge, she testified, while he testified it was with her consent; yet he found
it necessary to imitate her signature. The natural inquiry is, Why was it necessary to imitate
her signature if he had authority from her to sign?
On February 3, 1930, after the plaintiff came to Reno with a view of bringing suit for an
absolute divorce, he wrote the defendant, pleading with her not to contest his suit. On a later
date the plaintiff again wrote to the defendant, still endeavoring to influence her not to contest
his divorce suit, so that he might marry a certain young lady to whom we will refer as Miss D,
in which letter he said: I admit that I have wronged you dreadfully, but, Mildred, on my
sacred honor, I've wronged her a thousand times more than I have ever wronged you.
What a terrible confession for a prospective plaintiff in a divorce suit to make to his wife,
whom he later seeks to convict of wronging him!
These incidents might seem enough to justify the conclusion that the plaintiff is
self-impeached, and that nothing more should be necessary to overcome his evidence.
55 Nev. 82, 88 (1933) Valverde v. Valverde
nothing more should be necessary to overcome his evidence. But a man's moral character is
entitled to be taken into consideration in determining his worth as a witness in his own
behalf. Let's consider the record with this idea in view.
According to the testimony the parties hereto were transferred to Fort Barrancas in July
1926. The plaintiff testified that for quite a time after he and the defendant went to Fort
Barrancas, while they occupied two apartments that were assigned to him as an officer, they
had but one bedroom and slept together. He admits that later they had two bedrooms, but does
not remember when that arrangement began, and contends that continually up to January
1930, they lived as husband and wife.
The plaintiff admits that some time prior to 1929 he became infatuated with Miss D, and
lead her to believe that he was an unmarried man. The uncontradicted testimony of the
defendant is to the effect that for some time prior to the last date given the plaintiff admitted
to her that he made presents to Miss D, including an engagement ring, and that plaintiff was
corresponding with her; that he gave defendant letters from Miss D to read. He testified that
he gave the defendant dozens and dozens and dozens and dozens of letters which he
received from Miss D, to read. He admitted keeping up the correspondence with Miss D until
after he came to Nevada in 1930. Again he testified that he gave the defendant a world of
letters over a period of years, in an effort to make the defendant divorce him.
The wife's uncontradicted testimony is to the effect that the plaintiff told her he was going
to have her declared insane. On December 14, 1929, plaintiff wrote the defendant a letter in
which he stated that he had sworn affidavits of five men on the post to the effect that they had
seen the defendant in most compromising positions with men late at night, and threatened to
bring suit charging her with adultery, and to have her adjudged insane.
On December 17, 1929, he signed a writing in which he stated that neither he nor any
officer on post had made accusations against defendant, and that he did not believe the
contents of any such affidavits were true.
55 Nev. 82, 89 (1933) Valverde v. Valverde
he stated that neither he nor any officer on post had made accusations against defendant, and
that he did not believe the contents of any such affidavits were true. He testified on the trial
that he made the retraction to save a scene.
What manner of a man is this captain in the Army of the United States? Men occupying
such a position are supposed to be brave and gentlemanly.
What possessed him to threaten his wife with such terrible charges, and retract them
within three days? What does such conduct show but lack of moral character? His own
terrible confession as to his treatment of Miss D, coupled with his treatment, his confessed
treatment, of his wife, shows he is lacking in moral fiber. Can the testimony of such a man be
accepted, in any situation, particularly when contradicted in material detail by his wife and
others? We think not. Not only is he contradicted by his wife, but by others. And right here let
us say that it is a most amazing fact, if the plaintiff testified to the truth as to the alleged
cruelty of his wife, that he did not produce a single witness to corroborate him as to such
charges.
We might point out other features of plaintiff's own case which in our opinion show he is
utterly unworthy of a divorce, or even of credit as a witness, but we will now briefly consider
the evidence of some of the other witnesses.
The plaintiff is contradicted by Capt. Ernest A. Kindervater, who testified in reference to
the quarters occupied by the parties during 1929. He said: They occupied separate
apartments in a building known as The Bachelor Officers' Building. A stairway and hall
separated these apartments. They were situated on the second floor, each consisting of two
rooms and a bath.
Mrs. Helen Epling testified that she lived at Fort Barrancas from January 1, 1928, to July
1, 1931; that the parties to this suit maintained two separate apartments, had separate
telephones; that the defendant never made a scene in her and plaintiff's presence; that
defendant always behaved as a lady; and that she was sick a great deal, due to plaintiff's
treatment of her.
55 Nev. 82, 90 (1933) Valverde v. Valverde
defendant always behaved as a lady; and that she was sick a great deal, due to plaintiff's
treatment of her. She testified that it was plaintiff's habit to thrust threatening notes, which
she saw, under defendant's door, and that on one occasion she accompanied defendant home
and saw such a note under the door; that she heard him say he did not care for social
activities; and that defendant did not cause plaintiff embarrassment or humiliation.
Miss Josephine Cottrell, a witness in behalf of defendant, testified that she resided in
Pensacola, Fla., and met the defendant in the spring of 1929, and the plaintiff later; that on
several occasions she spent the night with defendant in her apartment, and that she never saw
the plaintiff there. On cross-examination she testified that she knew the apartment was
defendant's, because her name was on the door; that Capt. Valverde had other quarters, and
that defendant occupied hers alone.
Mrs. Jessie Steel, a witness on behalf of defendant, testified that she had known the parties
since some time in 1926; that, when she first knew them, they were living together as
husband and wife; that for the first year of her acquaintance with them they seemed very nice
to each other; that she never saw defendant display anger or violent temper toward plaintiff;
that she had seen plaintiff display anger and violent temper toward defendant. In response to a
question asking that she state the occasions upon which she observed such display of anger
and violence, she stated: It was too frequent an occurrence. She also testified that in 1928,
while defendant was ill, the plaintiff took a three months' leave of absence. She also testified
that, after the decree of separate maintenance was entered, the parties occupied separate
apartments and were living separate and apart. This witness also testified, as did Mrs. Epling,
that on one occasion defendant ran to her showing signs of a struggle, and with unmistakable
tooth prints on her shoulder.
We not only feel that the plaintiff has utterly failed to prove that the defendant was guilty
of the acts with which she was charged, but we are of the opinion that, if she were guilty
of them, she was provoked to them by the vicious system of misconduct which he
admitted in connection with Miss D.
55 Nev. 82, 91 (1933) Valverde v. Valverde
which she was charged, but we are of the opinion that, if she were guilty of them, she was
provoked to them by the vicious system of misconduct which he admitted in connection with
Miss D. It is clear to our minds that he was so insanely infatuated with her that he did
everything in his power, which he dared to do, to provoke the defendant to sue for an absolute
divorce. A party cannot by his own misconduct drive his spouse to commit acts otherwise
improper, and reap a reward for his vicious deeds, yet that is what the plaintiff has sought to
do. The court in Kapp v. District Court, 31 Nev. 444, 103 P. 235, 238, quoted approvingly
from Reed v. Reed, 4 Nev. 397, as follows: Nor is a divorce ever granted where it appears
that the party complaining willfully provoked the violence or misconduct complained of,
unless such violence be extremely out of proportion to the provocation. Poor v. Poor, 8 N. H.
308, 29 Am. Dec. 664; Morris v. Morris, 14 Cal. 76, 73 Am. Dec. 631. Such is certainly a just
and proper rule, for it would be revolting to every sense of right to award a divorce to a
person founded upon the consequences of his or her own misconduct. * * *
Furthermore, we do not think the testimony shows that the alleged acts of the defendant
were such as to result in the impairment of his health. He said it had an adverse effect upon
his health. That is too indefinite.
Again, we doubt, if what plaintiff testified to was in the main true, it would be sufficient to
impair his health. Cruelty is a relative term. Its existence depends upon the character and
refinement of the parties, and its determination must depend upon its own particular facts.
What might be cruelty to one of refinement and of a sensitive nature would not be cruelty to
one of a brutal disposition. Kelly v. Kelly, 18 Nev. 49, 1 P. 194, 51 Am. Rep. 732. We do not
think the things charged to defendant would likely affect the health of one who would
deliberately hand to his wife dozens and dozens of letters, as did the plaintiff, for the purpose
he intended, nor to one who could accuse his wife of adultery and threaten her with charges
of insanity, so baseless as to warrant his signing a written retraction within three days.
55 Nev. 82, 92 (1933) Valverde v. Valverde
signing a written retraction within three days. We might elaborate along this line, but think it
unnecessary.
Other points are made, but, in view of the fact that the judgment and order must be
reversed for insufficiency of evidence to sustain them, we need not consider the other points.
It is ordered that the judgment and order appealed from be reversed, and that the district
court enter a decree finding that the allegations of extreme cruelty alleged in the complaint
are untrue, and enter a decree in favor of the defendant, with costs in both courts.
____________
55 Nev. 92, 92 (1933) Ex Parte Nash
Ex Parte NASH
No. 3029
November 3, 1933. 26 P.(2d) 353.
1. Municipal Corporations.
Ordinance making it misdemeanor for dispensers of narcotics or poisonous drugs to keep, sell, or
otherwise dispose of cigarettes, is within police power.
2. Municipal Corporations.
That city ordinance or police regulation forbids acts theretofore innocent affords no grounds for holding
such legislation void or unreasonable.
3. Municipal Corporations.
Recital in ordinance that cigarettes containing poisonous drugs are being sold, and that handling of
cigarettes in places where poisonous drugs are handled makes sale of cigarettes containing poisonous drugs
easier, must be accepted as true in determining validity of ordinance making it misdemeanor for dispensers
of narcotics or poisonous drugs to dispose of cigarettes.
4. Municipal Corporations.
Municipal legislation, reasonable in aim and intent, to suppress notorious evil, cannot be overthrown on
ground that it is unreasonable, arbitrary, and capricious.
5. Constitutional Law.
Due process clause sets no limitation on exercise of police power to suppress or prevent use of cigarettes
or any article of trade to aid sale and use of dangerous and habit-forming drugs (Const. U. S. Amend. 14;
Const. Nev., art. 1, sec. 8).
6. Municipal Corporations.
Legislative distinction in municipal ordinance is not arbitrary if any state of facts reasonably can be
conceived that would sustain it.
55 Nev. 92, 93 (1933) Ex Parte Nash
7. Municipal Corporations.
Existence of state of facts at time ordinance was passed sufficient to sustain legislative distinction must
be assumed.
8. Municipal Corporations.
That facts sufficient to sustain legislative distinction in municipal ordinance may be disputed or their
effect denied is immaterial, since existence of facts and their remedies rest with legislature and not with
court.
9. Constitutional Law.
Ordinance making it misdemeanor for dispensers of narcotics or poisonous drugs to keep, sell, or
otherwise dispose of cigarettes held not to deny due process and valid, where cigarettes containing such
drugs could be handled easier by such dispensers ( Const. U. S. Amend. 14; Const. Nev. art. 1, sec.8).
Original proceeding in habeas corpus by Fred P. Nash, to procure discharge from custody
of the Chief of Police of the City of Reno. Writ discharged, and petitioner remanded.
Chas. A. Cantwell, for Petitioner:
The fourteenth amendment to the constitution of the United States, and article I, sections 1
and 8, of the constitution of the State of Nevada, both serve to fix the limits which may not be
transcended by valid legislation under the guise of police power. 12 C. J. 929, 931, 932;
McQuillin Municipal Corporations (2d ed.), vol. II, pp. 713, 716, 717, 718-720, 721-722,
729.
It has been held that competition between vendors of ordinary merchandise may not be
eliminated in furtherance of public welfare. New St. Ice Co. v. Liebmann, 285 U. S. 262, 76
L. Ed. 747.
Also, it has been held that it is beyond the power of the state, under the guise of protecting
the public, arbitrarily to interfere with private business, or prohibit lawful occupations, or
impose unreasonable and unnecessary restrictions upon them. Jay Burns Bkg. Co. v. Bryan,
264 U. S. 504, 68 L. Ed. 813; Louis K. Liggett Co. v. Baldridge, 278 U. S. 105, 73 L. Ed.
204.
Here an inspection of the ordinance in question, in the light of the common knowledge
possessed by all men, clearly reveals that it is unreasonable, arbitrary and oppressive. It is the
contention of the petitioner that the ordinance has no natural tendency to accomplish any
purpose within the police power of the city; that it is arbitrary; that it is for the purpose of
restricting competition; that it is confiscatory; and, finally, that it is for the exclusive
benefit of particular individuals or classes.
55 Nev. 92, 94 (1933) Ex Parte Nash
that the ordinance has no natural tendency to accomplish any purpose within the police power
of the city; that it is arbitrary; that it is for the purpose of restricting competition; that it is
confiscatory; and, finally, that it is for the exclusive benefit of particular individuals or
classes.
Le Roy F. Pike and L. D. Summerfield, for Respondent:
That an ordinance cannot be declared unreasonable which is expressly authorized by the
legislature is held in Ex parte Noyd, 48 Nev. 120, 227 P. 1020; and hence, the legislature
having authorized the city of Reno to pass an ordinance of this kind, its reasonableness cannot
be questioned.
Legislation regulating the sale of cigarettes and tobacco has been held in a number of cases
to be within the police power of the legislative body. State of Kansas v. Mossaman, 107 Kan.
715, 193 P. 347; State of North Dakota v. Olson, 26 N. D. 304, 146 N. W. 661; Gundling v.
City of Chicago, 176 Ill. 340, 177 U. S. 183, 44 L. Ed. 725, 20 Sup. Ct. 633; Austin v. State,
101 Tenn. 563, 179 U. S. 343, 45 L. Ed. 224, 21 Sup. Ct. 132.
The rules of construction applicable to statutes are also applicable to city ordinances.
Carson City v. Red Arrow Garage & Auto Co., 47 Nev. 473.
Therefore this court does not have to inquire strictly into the motives or reasons for the
ordinance in question. State v. Olson, supra; Ex parte Boyce, 27 Nev. 299, 75 P. 1;
Worthington v. District Court, 37 Nev. 214, 142 P. 230; Soon Hing v. Crowley, 113 U. S.
703, 5 Sup. Ct. 730, 28 L. Ed. 1145.
This ordinance is not unreasonable; it acts upon one subject, which is subject to police
regulations, and acts upon all persons the same. In other words, any person may sell cigarettes
by obtaining a proper license, if they do not also sell narcotics or other poisonous drugs.
McQuillin on Municipal Corporations, vol. II, p. 1602, sec. 738; Soon Hing v. Crowley,
supra.
55 Nev. 92, 95 (1933) Ex Parte Nash
The court must presume that a city ordinance was adopted to accomplish some end, and
not with a view of going through mere idle form. Carson City v. Red Arrow Garage & Auto
Co., supra.
OPINION
By the Court, Sanders, C. J.:
This is an original proceeding in habeas corpus. The matter is before the court upon the
petition for the writ and the return made thereto. The undisputed facts are as follows:
The Schramm-Johnson Company owns and conducts a drug store or pharmacy in the city
of Reno. In addition to its usual stock in trade, the company deals in cigarettes. Fred P. Nash,
presumably a registered pharmacist, is the manager in charge of the business of the company.
During the month of June last the common council of the city of Reno adopted an ordinance
which prohibits and makes it a misdemeanor for any person, firm, association, or corporation
to keep, sell, or otherwise dispose of cigarettes in any place of business within the city of
Reno where narcotic drugs or poisonous drugs or concoctions or mixtures thereof are kept for
sale or otherwise disposed of. The ordinance is exceptional, in that it purports to give the
reason or the occasion for the enactment, stated in its preamble to be as follows:
Whereas, cigarettes containing narcotic and poisonous drugs are being sold and
distributed within the City of Reno; and
Whereas, the handling of cigarettes in places where narcotic and poisonous drugs or
concoctions or mixtures thereof are also handled makes readily possible the addition of such
narcotic or poisonous drugs or concoctions or mixtures thereof to cigarettes, and more readily
enables the sale and disposal of said cigarettes containing said narcotic or poisonous drugs
or concoctions or mixtures thereof, and thereby endangers the health, comfort, safety,
life and welfare of the inhabitants of the City of Reno:
55 Nev. 92, 96 (1933) Ex Parte Nash
said narcotic or poisonous drugs or concoctions or mixtures thereof, and thereby endangers
the health, comfort, safety, life and welfare of the inhabitants of the City of Reno:
Now, therefore, * * *
While the ordinance was in force, Fred P. Nash, the manager in charge of the business of
the Schramm-Johnson Company, did sell and offer for sale cigarettes. A complaint was filed
in the justice's court of the city of Reno charging him with the violation of the ordinance.
Upon the filing of said complaint a warrant for his arrest was issued and served. While in
custody Fred P. Nash filed a petition in this court for a writ of habeas corpus to issue,
claiming that the only pretext for his arrest and detention was his admitted violation of said
ordinance, which he alleged deprives him of his liberty and property without due process of
law, in contravention of the fourteenth amendment of the constitution of the United States,
and a similar provision of the constitution of the State of Nevada (section 8, art. 1), and in
contravention of other provisions of the constitution of the State of Nevada respecting the
privileges and immunities of citizens, and for these reasons only the petitioner should be
discharged from custody.
1. The ordinance is assailed upon practically all of the grounds common to legislation
which in any manner interferes with private business or lawful occupations. The difficulty
with the argument is that the petitioner's business and employment continues uninterrupted
after, as before, the enactment. In point of fact, the ordinance deals with but a relatively small
feature of the business, namely, that of cigarettes, which, in point of law, like the business
itself, is clearly within the scope of the police power.
The petitioner argues that his is a lawful business and occupation and to deprive him of the
right to deal in cigarettes as an article of trade is an unreasonable, arbitrary, and capricious
restraint on his liberty.
2-5. The a city ordinance or police regulation forbids acts theretofore innocent and lawful
affords no grounds for holding such a legislation either void or unreasonable.
55 Nev. 92, 97 (1933) Ex Parte Nash
grounds for holding such a legislation either void or unreasonable. Des Moines v. Manhattan
Oil Co., 193 Iowa, 1096, 184 N. W. 823, 188 N. W. 921, 23 A. L. R. 1333. The factual
foundation for the ordinance is that cigarettes containing narcotic and poisonous drugs are
being sold and distributed within the city of Reno. Assuming, as we must, this to be the fact,
any legislation reasonable in aim and intent to suppress the publicly notorious evil cannot be
overthrown upon the ground that it is unreasonable, arbitrary, and capricious. The due process
of law clause of the constitution sets no limitation on the exercise of the police power to
suppress and prevent the use of cigarettes or of any article of trade to aid and facilitate the
sale and use of dangerous and habit-forming drugs.
6-9. It is argued on behalf of the petitioner that there is no fact present in the ordinance
itself or in the record to justify making it a crime for one class of merchants to deal in
cigarettes and not to make it a crime for other dealers engaged in the same business. The
ordinance supplies a reason for the discrimination, namely, that the handling of cigarettes in
places where narcotic and poisonous drugs are sold or otherwise disposed of makes readily
possible the addition of such drugs to cigarettes and more readily enables the sale and
disposal of cigarettes containing such drugs. The learned counsel for the petitioner insists that
in view of the evil found to exist the reason assigned for the prohibitive feature of the
ordinance is whimsical, fanciful, conjectural, illusory, and palpably arbitrary and
discriminatory. In answer to these objections we quote from the case of Rast v. Van Deman &
Lewis Co., 240 U. S. 357, 36 S. Ct. 370, 374, 60 L. Ed. 679, L. R. A. 1917a, 421, Ann. Cas.
1917b, 455:
The legislation which regards the difference is not arbitrary within the rulings of the
cases. It is established that a distinction in legislation is not arbitrary, if any state of facts
reasonably can be conceived that would sustain it, and the existence of that state of facts at
the time the law was enacted must be assumed.
55 Nev. 92, 98 (1933) Ex Parte Nash
assumed. * * * It makes no difference that the facts may be disputed or their effect opposed
by argument and opinion of serious strength. It is not within the competency of the courts to
arbitrate in such contrariety. * * *
It is the duty and function of the legislature to discern and correct evils, and by evils we
do not mean some definite injury, but obstacles to a greater public welfare.
No principle of the constitution of the United States or of the State of Nevada being
violated by the enactment of the ordinance, it is ordered that the writ be and it is discharged,
and that the petitioner be and he is remanded to the custody of the chief of police of the city
of Reno.
Ducker, J.: I concur.
Coleman, J., concurring:
The inquiry in this matter is limited to a determination of whether or not the ordinance in
question is violative of the fourteenth amendment to the constitution of the United States, and
of article 1, sec. 8, of our own constitution.
While the ordinance in question goes to a great length in holding that a certain class of
business men, usually of a splendid type, are more likely to indulge in a vicious practice to
cater to a class of people with an abnormal, debased appetite, plus a weak mind, in dealing
with certain drugs within themselves criminal to handle at all except pursuant to rigid
restrictions, than certain other classes of business men, there are certain presumptions of law
in favor of the legislative action of every legislative body, however questionable such action
may be in certain instances, which we cannot ignore. For instance, we must presume that
every legislative act is constitutional; that every ordinance is adopted in good faith. We must,
as a general rule, presume that legislative action is based upon an inquiry into the facts, and
that such action is the result of investigation.
55 Nev. 92, 99 (1933) Ex Parte Nash
facts, and that such action is the result of investigation. Public policy demands an adherence
to these principles.
It is a well-recognized rule that a legislative body cannot, in the exercise of its police
power, arbitrarily interfere with private business; but its determination as to what is a proper
exercise of such power will not be overthrown by the court unless it clearly appears that its
determination has been arbitrarily or unreasonably exercised. Dobbins v. Los Angeles, 195 U.
S. 223, 25 S. Ct. 18, 49 L. Ed. 169; Laurel Hill Cemetery v. San Francisco, 216 U. S. 358, 30
S. Ct. 301, 54 L. Ed. 515.
I cannot say that it clearly appears that the city council of the city of Reno, in adopting the
ordinance in question, acted either arbitrarily or unreasonably.
____________
55 Nev. 99, 99 (1933) Wilson v. Wilson
WILSON v. WILSON
No. 3031
November 8, 1933. 26 P.(2d) 355.
1. Divorce.
Evidence was presumed sufficient to justify order changing venue in divorce suit where evidence was not
before supreme court (N. C. L. secs. 8571, 8572).
Appeal from Third Judicial District Court, Lander County; Edgar Eather, Judge.
Divorce suit by Dudley Franklin Wilson against Nell Kerrigan Wilson. From an order
granting defendant's motion for change of venue, plaintiff appeals. Affirmed.
See, also, 55 Nev. 57, 24 P.(2d) 317.
James D. Finch, for Appellant:
The mere fact that a party may allege that he is a resident of another county than the one in
which the complaint is filed is not, in itself, sufficient to warrant the court in ordering a
change of venue, but the other party has a right to disprove the allegation that defendant
is or was a resident of another county at the time the action was filed.
55 Nev. 99, 100 (1933) Wilson v. Wilson
complaint is filed is not, in itself, sufficient to warrant the court in ordering a change of
venue, but the other party has a right to disprove the allegation that defendant is or was a
resident of another county at the time the action was filed.
We respectfully urge that the allegations of the affidavit of the defendant in support of her
motion for change of venue on the ground that she could not obtain a fair and impartial trial
in Lander County are not sufficient without further proof to warrant the court in ordering
change of venue on that ground. Noonan v. Luther, 112 N. Y. Supp. 898; Mathis v. Bank of
Taylorsville (Ky.), 124 S. W. 876; Tarner v. Hobart Estate Co., 267 P. 312; Table Mtn. Gold,
etc. Mng. Co. v. Waller's Defeat Silver Mining Co., 4 Nev. 218, 97 Am. Dec. 526; Conley v.
Chedic, 7 Nev. 336.
Leon Shore, for Respondent:
The lower court having found, from testimony given in open court and from the affidavit
in support of the motion, that the place of residence of the defendant, at the commencement
of the action, was in Washoe County, its ruling ordering a change of place of trial was the
only ruling possible. Duffill v. Bartlett, 53 Nev. 228.
I submit that in the present matter no error appears from the record, and the lower court
should be presumed to have been justified in issuing the order appealed from. Water Co. v.
Belmont, 50 Nev. 24, 249 P. 565; State v. Boyle, 49 Nev. 386, 248 P. 48.
OPINION
Per Curiam:
This case is now before us on appeal from an order granting the motion of the defendant
for a change of venue. The plaintiff instituted his suit for a divorce in the Third judicial
district court, in and for Lander County, Nevada. The defendant in apt time served notice of
motion for a change of place of trial, the ground thereof being that the defendant, at the
time of the commencement of the suit and at all times since, was a resident of the city of
Reno, Washoe County, Nevada, and that there is reason to believe that an impartial trial
could not be had in Lander County, Nevada, pursuant to sections S571 and S572 N. C. L.
55 Nev. 99, 101 (1933) Wilson v. Wilson
ground thereof being that the defendant, at the time of the commencement of the suit and at
all times since, was a resident of the city of Reno, Washoe County, Nevada, and that there is
reason to believe that an impartial trial could not be had in Lander County, Nevada, pursuant
to sections 8571 and 8572 N. C. L. The defendant filed her affidavit in support of said
motion, wherein she stated that she was, at the time of the institution of the suit, and at all
times since, a resident of Washoe County, Nevada, and in addition set forth facts showing
that an impartial trial could not be had in said county of Lander.
On the day set for the hearing the plaintiff did not appear either by counsel or in person.
The defendant appeared both in person and by counsel. On the hearing she gave testimony in
support of her motion. The testimony is not before us, hence we must presume that it was
sufficient to justify the court in granting the motion for a change of venue.
The order appealed from is affirmed. It is further ordered that remittitur issue instanter.
____________
55 Nev. 102, 102 (1933) First National Bank In Reno v. Fallon
FIRST NATIONAL BANK IN RENO v. FALLON Et Al.
No. 3039
November 9, 1933. 26 P.(2d) 232.
1. Judgment.
Judgment takes effect when announced in open court, and not when formal findings and judgment are
signed.
2. Appeal and Error.
Order denying motion to set aside default judgment held not appealable.
Appeal from Fifth Judicial District Court, Mineral County; J. Emmett Walsh, Judge.
Suit by First National Bank in Reno against Ira Fallon and wife and others, wherein
defendant, Charles R. Lewis, filed a cross-complaint. From certain orders made in the district
court, the defendants, Pacific National Agricultural Credit Corporation and Federal
Intermediate Credit Bank of Berkeley, appeal. On motion to dismiss the appeal. Dismissed.
Green & Lunsford and Arthur F. Lasher, for Respondents:
Decisions or findings of court, or order for a judgment, do not constitute a judgment. 33 C.
J., p. 1052, sec. 6, also, p. 1055; 3 C. J., p. 600, secs. 441, 442.
Appeal will not lie from order refusing to vacate default. Johns-Manville, Inc. v. Lander
County, 48 Nev. 244, 229 P. 387; State ex rel. Botsford v. Langan, 29 Nev. 459, 91 P. 737.
W. M. Kearney and John Davidson, for Appellants:
The judgment as it appears in the minutes contains the signature of the judge who
pronounced it. Unless it constituted a judgment there could be no reason for ordering a stay of
execution. California State Teleg. Co. v. Patterson, 1 Nev. 150 (Combined volumes 1 and 2,
p. 124).
This court has frequently entertained an appeal from an order refusing to set aside a
judgment taken by default.
55 Nev. 102, 103 (1933) First National Bank In Reno v. Fallon
default. Bauman v. Nev. Colony Corp., 44 Nev. 10, 189 P. 245; Guardia v. Guardia, 48 Nev.
230, 229 P. 385; Bowman v. Bowman, 47 Nev. 207, 217 P. 1102; Blundin v. Blundin, 38
Nev. 212, 147 P. 1083; Esden v. May, 36 Nev. 612, 135 P. 1185; Horton v. New Pass G. & S.
M. Co., 21 Nev. 184, 27 P. 376, 1018.
OPINION
By the Court, Coleman, J.:
This case is now before the court on a motion of the plaintiff bank and Lewis,
cross-complainant (respondents here), to strike the record on appeal and to dismiss the appeal
of the defendants, Pacific National Agricultural Credit Corporation and Federal Intermediate
Credit Bank of Berkeley, appellants.
On April 8, 1933, First National Bank in Reno instituted a suit in the district court for
Mineral County to foreclose a mortgage executed by Ira and Kate Fallon, and joined Charles
R. Lewis and the appellants herein as parties defendant, they having some interest in the
property sought to be subjected to the foreclosure proceedings. No money judgment was
asked for against any of the defendants other than the Fallons. The defendants, Ira and Kate
Fallon, appeared and confessed judgment; Charles R. Lewis filed a cross-complaint.
Summons was served upon appellants in California.
On May 20, 1933, there was filed with the clerk of the court by counsel for the plaintiff a
request for a default against the said corporation defendants, who will hereafter be referred to
as appellants, upon the ground that they had been regularly served with summons, and had
failed to answer or demur within the time limited by law. On the same day, the said clerk
entered the default or said corporations on the grounds mentioned.
55 Nev. 102, 104 (1933) First National Bank In Reno v. Fallon
On May 25, 1933, counsel for the plaintiff and counsel for the appellants appeared in open
court. Counsel for appellants at that time tendered in open court a demurrer in behalf of
appellants, to which objections were made by counsel for plaintiff. The objections to the
filing of the said demurrer having been sustained, testimony was taken on the merits of the
case in behalf of the plaintiff; whereupon judgment was ordered in behalf of the plaintiff and
against all defendants in the sum of $24,000, plus interest and costs of suit, and also in favor
of C. R. Lewis, as cross-complainant, and against Ira and Kate Fallon, in the sum of $16,000,
plus interest and costs. A stay of execution was ordered for ten days.
On June 3, 1933, notice of motion and motion was served and filed in the lower court: (1)
To strike from the record the said default; (2) to set aside and hold for naught the default filed
by the plaintiff and entered by the court, and for an order to permit the appellants to answer to
the merits; (3) to set aside and hold for naught the default judgment entered by the court
against appellants on May 25, 1933.
On August 21, 1933, the appellants filed notice of appeal and undertaking on appeal, from
certain orders, and particularly from the order denying appellants' motion to set aside the
default judgment entered against appellants on May 25, 1933; also from an order made after
judgment denying appellants' motion to retax costs assessed against them.
The motion of respondents to strike and to dismiss the appeal is based upon numerous
grounds. The chief grounds are: (1) That no final judgment has been entered in the case; (2)
that the order to vacate the default is not appealable; (3) that no order has been made in the
case which can be reviewed on an appeal from a final judgment or from an order denying a
motion for a new trial; (4) that it appears that the motion for a new trial has not been argued
or determined by the trial court; (5) that no judgment roll is annexed to the proposed bill of
exceptions, or in the purported record on appeal; {6) that the purported record on appeal,
or purported bill of exceptions has not been settled or allowed by the trial judge.
55 Nev. 102, 105 (1933) First National Bank In Reno v. Fallon
purported record on appeal; (6) that the purported record on appeal, or purported bill of
exceptions has not been settled or allowed by the trial judge.
1. On the hearing of the motion to strike and dismiss, respondents offered in evidence a
certified copy of an order made in the above-entitled matter on October 11, 1933, purporting
to modify the judgment of May 25. The exhibit was admitted subject to appellants' objection.
We think the objection is good. The order of May 25 is clearly a judgment. The lower court
considered it a judgment, and ordered the stay of execution. Counsel for plaintiff and
cross-complainant so construed it, as shown by the filing of cost bills. Pursuant to a long line
of decisions by this court a judgment takes effect at the time it is announced in open court,
and not when formal findings and judgment are signed. Central Trust Co. v. Holmes, 30 Nev.
437, 97 P. 390.
2. The order which the lower court made in passing upon appellants' motion to set aside
the default and judgment of May 25 reads: An order will be entered and made denying the
motion to set aside the default.
No appeal lies from such an order. Johns-Manville, Inc. v. Lander County, 48 Nev. 244,
229 P. 387, 234 P. 518.
In view of the fact that the court did not pass upon the motion to vacate the judgment of
May 25, or upon any other portion of the motion than that to set aside the default, and there
being no order in the record relative to the motion to retax costs, we think the motion to
dismiss the appeal should be granted.
It is so ordered.
On Petition For Rehearing
September 9, 1931.
Per Curiam:
Rehearing denied.
____________
55 Nev. 106, 106 (1933) Jack Et Al. v. District Court
JACK Et Al. v. FIRST JUDICIAL DISTRICT COURT,
in and for ORMSBY COUNTY, Et Al.
No. 3049
December 2, 1933. 27 P.(2d) 61.
1. Venue.
Trial court had jurisdiction to proceed with hearing under uncontested cross-complaint seeking
receivership without first disposing of motion for change of venue to promote convenience of witnesses.
Original proceeding by T. C. Jack and another, as depositors in the Henderson Banking
Company for themselves and as representatives of all the depositors, for writ of prohibition to
be directed to the First Judicial District Court for Ormsby County, the Honorable Clark J.
Guild, Judge. Demurrer to petition sustained, writ denied, and proceedings dismissed.
Prince A. Hawkins, H. R. Cooke, Thomas F. Ryan, E. F. Lunsford, W. M. Kearney and
Robert Z. Hawkins, for Respondents:
The granting or denying of a motion for change of venue upon the ground that the
convenience of the witnesses and the ends of justice would be promoted by the change is
within the discretion of the court, and is not mandatory, as is a motion for change of venue
under subdivisions 1 and 2 of sec. 8572 N. C. L. Sheckles v. Sheckles, 3 Nev. 402; Barclay v.
Supreme Lodge of Fraternal Brotherhood (Cal. App.), 167 P. 701.
McNamara & Robbins, for Petitioners:
It was and is error for the lower court to proceed further in the case without first having
determined the motion for change of venue. Nolan v. McDuffie (Cal.), 558 P. 4; Brady v.
Times Mirror Company et al. (Cal.), 39 P. 209; Hennessy v. Nicol (Cal.), 39 P. 649.
OPINION
Per Curiam:
The petition alleges that in a certain proceeding in the First judicial district court of
Nevada, in and for Ormsby County, wherein Forrest W. Eccles et al., as individuals and as
trustees and assigns of depositors and creditors of Henderson Banking Company, a
corporation, were plaintiffs, and Henderson Banking Company, a corporation, and these
petitioners et al., were defendants, to have the said Henderson Banking Company and
certain other banks declared insolvent, and for the reorganization thereof, pursuant to
legislative enactments.
55 Nev. 106, 107 (1933) Jack Et Al. v. District Court
Ormsby County, wherein Forrest W. Eccles et al., as individuals and as trustees and assigns
of depositors and creditors of Henderson Banking Company, a corporation, were plaintiffs,
and Henderson Banking Company, a corporation, and these petitioners et al., were
defendants, to have the said Henderson Banking Company and certain other banks declared
insolvent, and for the reorganization thereof, pursuant to legislative enactments. The First
National Bank in Reno, on the 15th day of November 1933, filed an answer and
cross-complaint in said proceedings, praying for the appointment of a receiver for said
Henderson Banking Company; that thereafter these petitioners, for themselves, and on behalf
of other depositors and creditors of said banking company, filed in said proceedings in said
First judicial district court their motion for a change of venue and place of trial of said action
from the First judicial district court, in and for Ormsby County, Nevada, upon the grounds
that the convenience of witnesses and the ends of justice would be promoted.
The petition further alleges that the respondent heard, considered, and took under
advisement said motion for change of venue; that at the time said motion for change of venue
was taken under advisement by said respondent, there was pending in said proceeding a
petition for the appointment of a receiver of said Henderson Banking Company, and that over
the objection of the attorneys for these petitioners, the honorable judge of said court
proceeded to hear, and at the time of filing said petition was hearing, said petition for the
appointment of a receiver as aforesaid.
The petition alleges also that the court was without jurisdiction to proceed in said hearing
until said motion for change of venue is disposed of.
To said petition respondent filed a demurrer, a motion to quash and an answer.
We think the demurrer well taken. No answer was filed to the cross-complaint of First
National Bank asking for the appointment of a receiver, hence there was no issue of fact to
be presented to any court upon said hearing, therefore it follows that there were no
witnesses whose convenience could be considered.
55 Nev. 106, 108 (1933) Jack Et Al. v. District Court
no issue of fact to be presented to any court upon said hearing, therefore it follows that there
were no witnesses whose convenience could be considered.
It was said in Cook v. Pendergast, 61 Cal. 72, that the court ought not to be called on
before issues of fact have been joined to decide that the convenience of witnesses will be
promoted by a change of place of trial, or that an action cannot be fairly and impartially tried
in the county in which it is pending.
See, to same effect, Thomas v. Placerville G. Q. M. Co., 65 Cal. 600, 4 P. 641; Howell v.
Stetefeldt F. Co., 69 Cal. 153, 10 P. 390; 25 Cal. Jur., p. 884, sec. 23; Wallace v. Owsley, 11
Mont. 219, 27 P. 790; Briasco v. Lawrence, 51 Hun. 643, 4 N. Y. S. 94; Moore v. Pillsbury,
43 How. Prac. (N. Y.), 142; Gifford v. Gravesend, 8 Abb. N. C. (N. Y.), 246.
The demurrer is sustained. Writ denied. Proceedings dismissed.
____________
55 Nev. 108, 108 (1933) Bollschweiler and Watts v. District Court
BEATRICE BOLLSCHWEILER and MRS. J. G. WATTS, as Depositors in the Wells State
Bank, Etc., Petitioners, v. FIRST JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Ormsby Et Al., Respondents.
No. 3048
December 2, 1933. 27 P.(2d) 62.
OPINION
Per Curiam:
This is a companion matter to that of Jack et al. v. First Judicial District Court, 27 P.(2d)
61, this day decided. The two matters involve the same facts except as to the bank in
question. The two matters were argued and submitted together, at the conclusion of which it
was stipulated that an opinion in one of the two matters might control the other.
55 Nev. 108, 109 (1933) Bollschweiler and Watts v. District Court
On the authority of the opinion in Jack et al. v. First Judicial District Court, it is ordered
that the writ sought be denied, and that these proceedings be and are hereby dismissed.
____________
55 Nev. 109, 109 (1933) Johnson v. Johnson
JOHNSON v. JOHNSON
No. 3003
December 4, 1933. 27 P.(2d) 532.
1. Pleading.
All objections to complaint raised by defendant's demurrer, except whether complaint stated cause of
action, were waived by answer.
2. Replevin.
Complaint in claim and delivery alleging required ultimate facts held sufficient, notwithstanding
unnecessary allegations of matters required by statute to be shown by affidavit when plaintiff claims
property pending trial, failure to allege value of property, of facts showing plaintiff's right to immediate
possession (Comp. Laws 1929, sec. 8681).
Complaint alleged unlawful holding and detention of four deeds and bill of sale duly executed;
that they were not taken for tax, assessment, or fine pursuant to statute, or seized under execution or
an attachment; that plaintiff made demands on defendant for such documents; that plaintiff was
entitled to immediate possession; and that plaintiff was damaged in the sum of $1,000.
3. Courts.
Complaint seeking $1,000 for unlawful detention of property sufficiently showed jurisdiction in district
court without allegation as to value of property.
4. Replevin.
Judgment in claim and delivery to recover deeds held not error as involving title to realty because of
finding that deeds were delivered to plaintiff and allegation of plaintiff's ownership of property described in
deed, since allegations merely furnished basis for proof of plaintiff's right to deeds.
5. Replevin.
In claim and delivery to recover deeds, defendant's cross-complaint seeking determination of certain
interests of minor children of plaintiff and her husband who executed deeds held demurrable, since matter
was not defense to action.
6. Infants.
In claim and delivery to recover deeds, failure to appoint guardian ad litem for minors as prayed in
cross-complaint was not error, where minors' interests could not have been determined.
55 Nev. 109, 110 (1933) Johnson v. Johnson
Appeal from First Judicial District Court, Douglas County; Clark J. Guild, Judge.
Action in claim and delivery by Stella Johnson against Chris Johnson. Judgment for
plaintiff, and defendant appeals. Affirmed.
Cantwell & Springmeyer, for Appellant:
Assuming this is a claim and delivery proceeding, the allegations of the complaint are
purely conclusions of law and insufficient. Peri v. Jeffers, 53 Nev. 52, 298 P. 658. It is
apparent that in using the language the material facts, the supreme court, in the case cited,
meant ultimate facts and not conclusions of law such as are alleged in the complaint at bar;
also, in the complaint at bar there is no allegation whatever to show any wrongful taking. The
language of the supreme court in Peri v. Jeffers unmistakably requires that there be alleged
the wrongful taking and detention thereof by defendants. See, also, IV Bancroft's Code
Pleadings, p. 4044, sec. 2256.
There is no allegation in the complaint that the documents have any value whatever. Under
the Nevada statutes, the district court has jurisdiction so far as this proceeding is concerned
only where the value of the property detained is in excess of $300.
It is clear that the trial court, by striking the further answer and cross-complaint, and by
refusing to appoint a guardian ad litem for the minor children, has refused to do precisely
what this supreme court, in the case of Rutherford v. Union Land & Cattle Co., 47 Nev. 21,
213 P. 1045, said it should do. The minor children have not had their day in courtwhen
they come of age they may relitigate this matter. The trial court refused to settle the entire
controversy in one action, and for that error the case should be reversed.
The trial court erroneously gave judgment for the respondent in the face of clear evidence
that the deeds never had been delivered. Allenbach v. Ridenour, 51 Nev. 437, 279 P. 32.
55 Nev. 109, 111 (1933) Johnson v. Johnson
W. M. Kearney and George L. Sanford, for Respondent:
The defendant answered the complaint and thus waived every ground of demurrer, save
that the complaint does not state a cause of action. Lonkey v. Wells, 16 Nev. 271;
Hammersmith v. Avery, 18 Nev. 225, 2 P. 55; Hardin v. Elkins, 24 Nev. 329, 53 P. 854;
Jones v. West End Con. M. Co., 36 Nev. 149, 134 P. 104; Peri v. Jeffers, 53 Nev. 52, 298 P.
658.
It seems that in the light of the allegations set forth in the complaint, together with the
authorities above cited, that there is little more to be said upon the questions as to whether or
not the complaint states a cause of action. Whether the cause of action is perfect, or whether
there is surplusage in the complaint are not involved, or whether the complaint has other
defects is not material. The rule seems to be that if a complaint states a cause of action at all
that it will be sustained on appeal where issue has been joined and judgment rendered, where
the appeal is based on the judgment roll alone.
An allegation as to the value of the paper sought to be recovered is not essential in the
complaint. Britton v. Morss, 6 Blackf. (Ind.), 469; Schaffer v. Faldwesch, 16 Mo. 337; Root
v. Woodruff, 6 Hill (N. Y.), 418; Dow v. Dempsey, 57 P. 355; Tillotson v. Delfelder, 279 P.
714; Trujillo v. Tucker, 171 P. 788; Wentz v. Linthicum (Cal.), 245 P. 205; Clay, Robinson
& Co. v. Martinez, 218 P. 903. We think that the allegation to the effect that the plaintiff was
damaged in the sum of $1,000 by the unlawful detention of the documents is in itself
sufficient to place the jurisdiction in the district court.
OPINION
By the Court, Ducker, J.:
This is an action in claim and delivery. It is before the court on the judgment roll alone. An
appeal from the order refusing a new trial was dismissed. Johnson v. Johnson, 54 Nev. 433
55 Nev. 109, 112 (1933) Johnson v. Johnson
v. Johnson, 54 Nev. 433, 22 P. (2d) 128. Judgment was rendered for plaintiff in the court
below.
1. The first question to be determined is whether the complaint states facts sufficient to
constitute a cause of action. Every other objection raised by defendant's demurrer was waived
when he answered. Peri v. Jeffers, 53 Nev. 52, 292 P. 1, 293 P. 25, 298 P. 658, and cases
cited therein.
2. The complaint alleges, inter alia, plaintiff's ownership of the property detained, to wit,
four deeds and a bill of sale duly executed, and the property described in said documents; that
the defendant unlawfully holds and detains said documents in his possession; that they were
not taken for a tax, assessment, or fine pursuant to statute, or seized under execution of an
attachment against the property of the plaintiff; that the plaintiff has made demands upon
defendant to return and deliver up the possession of said documents to plaintiff, which have
been refused; and that plaintiff is entitled to the immediate possession of said documents, and
has been injured and damaged in the sum of $1,000 by the conduct of defendant in unlawfully
withholding the same.
These allegations include the essential facts necessary to constitute a cause of action in
claim and delivery. The case on this point is controlled by our decision in Peri v. Jeffers, in
which we said: The material facts necessary to be alleged in the complaint are: Plaintiff's
ownership, either general or special, of the property, describing it; his right to its immediate
possession, and the wrongful taking and detention thereof by defendants; and a demand for
possession, in certain instances. While the complaint in this case contains allegations other
than as stated above, they may be disregarded as surplusage. The affidavit which must be
made when plaintiff claims delivery of the property pending the trial of the action must show,
among other things, that the property has not been taken for a tax, assessment, or fine,
pursuant to statute, or seized under an execution against the property of the plaintiff; or, if so
seized, that it is by statute exempt from such seizure.
55 Nev. 109, 113 (1933) Johnson v. Johnson
such seizure. Section 8681 N. C. L. A complaint, however, need not show such matters in the
absence of a statute to that effect. 54 C. J. 510.
The contention of defendant that the complaint is fatally defective in failing to show how
the plaintiff acquired and holds possession of the documents and the facts showing such
ownership or interest as would entitle plaintiff to immediate possession, is without merit. The
ultimate facts in these respects are all that is necessary, and they appear in the complaint. It is
also contended that the complaint is fatally defective in failing to allege the value of the
documents sought to be recovered.
The case of Peri v. Jeffers, supra, decides this question adversely to this contention.
Section 8681 N. C. L., cited supra, requires the affidavit to show the actual value of the
property to be recovered, but it is not required to be stated in the complaint. That value is not
an essential of the complaint is established by the weight of authority in other jurisdictions.
Britton v. Morss, 6 Blackf. (Ind.), 469; Root v. Woodruff, 6 Hill (N. Y.), 418; Bailey, Surv.,
v. Ellis, 21 Ark. 488; Fergusson v. Comfort, 194 Mo. App. 423, 184 S. W. 1192; Schaffer v.
Faldwesch, 16 Mo. 337; Trujillo et al. v. Tucker, 24 N. M. 339, 171 P. 788; Wentz v.
Linthicum, 76 Cal. App. 486, 245 P. 205. See, also, 18 Encyc. Pl. and Prac. p. 541.
3. It is insisted that, in the absence of an allegation of value of the property to be
recovered, the complaint fails to show jurisdiction in the district court. A sufficient answer to
this contention is that the complaint alleges damages in the sum of $1,000 for the unlawful
detention of the documents, and prays recovery of the same. In an action of claim and
delivery, damages may be claimed as well as the property itself. Buckley v. Buckley, 12 Nev.
423.
4, 5. Error is claimed to appear from the judgment roll, in that title to the land was in issue by
the pleadings, and that the court in its findings determined there was a delivery of the deeds
in question, thus determining plaintiff's title to the land.
55 Nev. 109, 114 (1933) Johnson v. Johnson
was a delivery of the deeds in question, thus determining plaintiff's title to the land. In this
connection it is insisted that title to the land cannot be tried in a claim and delivery action.
There is nothing to indicate that plaintiff sought to try title. The prayer of the complaint did
not ask for a determination of her title to the property, and it is otherwise clear therefrom that
the real purpose of the action was not to have title determined, but to recover possession of
said documents. It is true the complaint alleges plaintiff's ownership of the property described
in deeds and bill of sale, and this is denied in the answer. But it is plain that this allegation is
merely an inducement as a basis for proof that the right of recovery existed. In his answer
defendant makes no claim of title in himself, but disclaims it. The court did not determine
title. Its finding that there was a delivery of the deeds to plaintiff was a finding in favor of her
right to the possession of the deeds and bill of sale which were the subject of the action. The
controversy is about such right of possession. True, defendant, in his cross-complaint,
attempted to set up and have determined certain interests of the minor children of plaintiff
and her husband, who executed the deeds and bill of sale, but the court sustained plaintiff's
demurrer thereto and granted her motion to strike parts of it, and properly so. The matter was
not a defense in the action.
6. A claim and delivery action may be maintained for the recovery of a deed where the
controversy does not involve title to the land described therein. 54 C. J. 421, and cases cited
in note 81. Such is the case here. It is claimed that the judgment should be reversed for the
failure of the court to appoint a guardian ad litem for said minor children as prayed for in said
cross-complaint. There was no error in this. Any interest they may have in the property
described in the deeds and bill of sale could not have been determined in this form of action.
The judgment should be affirmed.
It is so ordered.
____________
55 Nev. 115, 115 (1933) State Ex Rel. Stokes v. District Court
STATE Ex Rel. STOKES v. SECOND JUDICIAL DISTRICT COURT, in and for Washoe
County, Et Al.
No. 3012
December 7, 1933. 27 P. (2d) 534.
1. Appeal and Error.
Point not argued and on which no brief was filed held abandoned.
2. Judges.
Statute disqualifying district judge on filing of affidavit charging bias authorized disqualification of judge
by guardian appointed by court to represent insane person in proceedings involved (Stats. 1931, c. 153,
secs. 1, 3).
3. Judges.
Statute disqualifying judge on filing of affidavit charging bias does not contemplate making and hearing
of formal motion for change (Stats. 1931, c. 153, secs. 1, 3).
4. Judges.
When affidavit charging bias of district judge is filed, judge to whom it is addressed has no discretion but
must make change commanded by statute (Stats. 1931, c. 153, secs. 1, 3).
5. Judges.
Application for change of judge held sufficient where request therefor was made of judge by attorney
with statement that affidavit charging bias would be filed if no change were ordered, and affidavit after
filing was called to judge's attention by clerk at attorney's suggestion (Stats. 1931, c. 153, secs. 1, 3).
6. Judges.
Change of judge for bias held available to insane wife's guardian in divorced husband's second
application for further reduction of alimony since privilege given by statute is not intended to be confined
to trial on the merits but may be exercised in any step in the cause (Stats. 1931, c. 153, secs. 1, 3).
A trial is the examination before a competent tribunal, according to the law of the land, of
the facts or law put in issue in a cause, for the purpose of determining such issue, and when a court
hears and determines any issue of fact or law for the purpose of determining the rights of the parties,
it may be considered a trial.
7. Judges.
Affidavit for transfer of cause for judge's bias, filed by insane wife's guardian on divorced husband's
application for further reduction of alimony held timely, though divorce action had already been decided
on merits, and matter of allowances once before passed on (Stats. 1931, c. 153, secs. 1, 3).
55 Nev. 115, 116 (1933) State Ex Rel. Stokes v. District Court
8. Judges.
Transfer to another judge for first judge's bias would not violate statute prohibiting application to other
judge, for order refused or granted conditionally by first judge, and court rule precluding district judge
from entering on cause entered on by other judge (Stats. 1931, c. 153, secs. 1, 3; Comp. Laws 1929, sec.
8423; Rules of the District Court, rule No. 41).
Original Proceeding by the State, on the relation of Florence Crittenton Stokes by Isobel
Crittenton, her guardian ad litem and general guardian of her person and estate, for a writ of
mandamus, to be directed to the Second Judicial District Court of the State of Nevada, in and
for the County of Washoe, and Hon. B. F. Curler, Judge of Department No. 2 thereof.
Peremptory writ directed to issue.
L. D. Summerfield, for Petitioner:
The presenting of a formal motion to the court for a change of judge would presuppose
some discretion on the part of the judge, which this court has already held does not exist. It
was a proper and dignified method by which to call the matter to the attention of the court, to
have the clerk of the court advise him of the filing of the affidavit and to show him the same,
which was done. No motion, or notice of motion, is necessary under the disqualification
statute. State ex rel. Beach v. District Court, 53 Nev. 444, 5 P.(2d) 535.
In a case of this kind the guardian speaks for and stands in the place of the insane party.
Such a guardian should have the right to exercise every privilege given by the law which the
insane person could have exercised had he been sane. Further, the guardian is made a party to
the proceeding both by the statute providing for the guardian ad litem (Sec. 8549 N. C. L.),
and also by the statute relating to general guardians. (Sec. 9513 N. C. L.). Under similar
statutes, it has been held that the guardian of an insane person is entitled to file such an
affidavit of disqualification, and that he is considered a party for that purpose. State v. District
Court, 50 Mont. 506, 148 P. 312.
55 Nev. 115, 117 (1933) State Ex Rel. Stokes v. District Court
Petitioner is unable to see where either sec. 8423 N. C. L., or rule 41 of the district court
has any application to the case at bar. The 1931 disqualification act, as a statutory enactment,
modifies both the prior statute and the rule of court, which must yield to the extent specified
by the later, 1931, statute.
Petitioner contends that under the disqualification act the disqualification affidavit was
properly and seasonably filed. 33 C. J. 1013, 1014; State v. Lewis & Clark Co. Dist. Ct., 33
Mont. 138, 82 P. 789; 8 Ann. Cas. 752; City of Vallejo v. Superior Ct. (Cal.), 249 P. 1084;
Cooper v. Cooper, 83 Wash. 85, 145 P. 66; Bedolfe v. Bedolfe, 71 Wash. 60, 127 P. 594;
Stephens v. Stephens, 17 Ariz. 306, 152 P. 164.
Platt & Sinai, for Respondents:
It seems to be plain that sec. 45b of the disqualification statute of 1931 clearly
contemplates that when any objection is made to a judge by the disqualification affidavit
prescribed by the statute, it should be done in a formal manner, so that the application may be
heard in the presence of the other party, so that if it be granted the other party may be present
to urge such objections as he may see fit to the other judge selected, or to attempt to agree
upon a judge to preside in the case.
A guardian is not in the same position as an ordinary litigant. She is a subordinate officer
of the court and subject to the court's orders. It would be difficult to find a case in which a
subordinate appointee of a court could in any manner disqualify the court, or the judge
thereof.
The motion in the instant case was based upon the reservation of jurisdiction by the court
and the presiding judge thereof, and sec. 8423 N. C. L., and rule 41 of the district court
absolutely prohibit any other judge, except of a higher court, to hear the motion or to enter an
order.
That the disqualification should be urged at the inception of a proceeding and not after a
judge, sitting as a court, has made or entered an order, reserved jurisdiction or actually
proceeded upon the trial and hearing, seems not only sanctioned by orderly rules of
procedure, but apparently is justified by the expressions of the disqualification act itself,
coupled with sec.
55 Nev. 115, 118 (1933) State Ex Rel. Stokes v. District Court
court, has made or entered an order, reserved jurisdiction or actually proceeded upon the trial
and hearing, seems not only sanctioned by orderly rules of procedure, but apparently is
justified by the expressions of the disqualification act itself, coupled with sec. 8423 N. C. L.,
and rule 41 of the district court. Further, there is authority and precedent for this view
expressed in cases involving the construction of a very similar disqualification statute. State
v. Clancy (Mont.), 77 P. 312; Allan v. Allan (Ariz.), 185 P. 539.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in mandamus. Petitioner, Isobel Crittenton, is the general
guardian of the person and estate of Florence Crittenton Stokes, an insane person. She is also
the latter's guardian ad litem in that certain action pending in department No. 2 of the Second
judicial district court of the State of Nevada, in and for the county of Washoe, being case No.
32375 therein, and wherein William E. D. Stokes, Jr., is plaintiff and said Florence Crittenton
Stokes is defendant. The petition for the writ further shows that said defendant is now and at
all times since the commencement of said case No. 32375, has been an insane person. A
decree of divorce was granted plaintiff from defendant in that case on November 20, 1930,
wherein it was ordered inter alia that plaintiff, during defendant's lifetime or until her
remarriage, pay to said guardian the sum of $15,000 annually in equal monthly installments
for alimony and for maintenance, care, and support of defendant. It was also ordered that the
plaintiff, or the defendant's guardian, may at any time or times hereafter apply to the court for
a decrease or increase in the amount of said annual payment. Hon. B. F. Curler is now, and at
all times since the month of January 1931, has been, the duly elected, qualified, and
acting judge of department No.
55 Nev. 115, 119 (1933) State Ex Rel. Stokes v. District Court
since the month of January 1931, has been, the duly elected, qualified, and acting judge of
department No. 2 of said court.
After an application by plaintiff in said case for a reduction in the amounts to be paid by
him under the decree, the court in department No.2, Judge Curler presiding, made and entered
an order reducing the amount of $15,000 originally adjudged and decreed to said guardian, to
$6,000 per year. It was also ordered that the sum of $100 per month provided in the decree to
be paid to said guardian for her services, be included in the said $6,000.
The application for the reduction was made by the plaintiff on the ground that his financial
condition had been greatly changed and his income greatly reduced since the rendition of the
decree.
On the 13th day of January 1933, plaintiff filed in said case an application for a further
reduction in the amounts to be paid by him under the provisions of the decree of divorce,
which was set for hearing by Judge Curler before him, for February 13, 1933, at 10 o'clock
a.m.
On the 23d day of January 1933, petitioner filed in said case her affidavit for the transfer
thereof to some other judge to preside at the hearing and trial of said last-mentioned
application. Judge Curler refused to comply therewith.
Upon consideration of the petition, this court ordered the issuance of the alternative writ as
prayed for by the petitioner. Respondents demurred to the petition on a number of grounds.
They also filed an answer containing denials and admissions of the allegations of the petition
and alleging five affirmative defenses. The statute under which the affidavit complained of
was filed, reads in part:
Section 45. A judge shall not act as such in an action or proceeding: * * *
Fifth, if either party to a civil action in the district court or his or its attorney or agent
shall file an affidavit alleging that the affiant has cause to believe and does believe that on
account of the bias or prejudice or interest of said judge he cannot obtain a fair and
impartial trial, the said judge shall at once transfer the action to some other department
of the court, if there be more than one department of said court in said district, or request
the judge of some other district court of some other district to preside at the hearing and
trial of such action; * * * provided, that this section shall not apply to the arrangement of
the calendar, or the regulation of the order of business.
55 Nev. 115, 120 (1933) State Ex Rel. Stokes v. District Court
believe that on account of the bias or prejudice or interest of said judge he cannot obtain a fair
and impartial trial, the said judge shall at once transfer the action to some other department of
the court, if there be more than one department of said court in said district, or request the
judge of some other district court of some other district to preside at the hearing and trial of
such action; * * * provided, that this section shall not apply to the arrangement of the
calendar, or the regulation of the order of business. * * *
Section 45b. Not more than one change of judge may be granted in any action, but each
party shall be heard to urge his objections to any judge in the first instance, and the change of
judge shall be to the most convenient judge to which the objections of the parties do not apply
or are least applicable. If the parties agree upon a judge then such judge shall be selected.
Stats. 1931, pages 247, 248, c. 153, secs. 1, 3.
1. In respondents' opening brief it was stated that upon the question of the constitutionality
of the statute, a separate brief would be filed herein by respondent judge. No such brief has
been filed and counsel for respondents did not argue the point on the hearing in this court. We
take it therefore that this objection has been abandoned. However, the statute was held to be
constitutional in a recent decision of this court. State ex rel. Beach v. Fifth Judicial District
Court, in and for Nye County, 53 Nev. 444, 5 P.(2d) 535.
We are satisfied with the ruling in that case.
2. It is insisted that the statute does not apply to a case wherein a guardian is a party
because the legislature could not have intended that a guardian appointed by a court should be
permitted to question the fairness of a judge presiding therein. The argument of counsel for
respondent is extremely ingenious, but we think the statute is broad enough to authorize the
disqualification of a judge by a guardian appointed in a case to represent an insane person, as
was done in this case. Under such circumstances, the guardian is entitled to take any step in
the case that such person could have taken if sane.
55 Nev. 115, 121 (1933) State Ex Rel. Stokes v. District Court
sane. For the purposes of the statute at least, he is a party to the action. While this court is not
concerned with the policy of the statute, we are nevertheless constrained to remark that no
good reason is apparent why an insane person who is a party to an action should be accorded
less right than one who is sane.
3, 4. It is insisted that no proper application for a change of judge was made to the
respondent judge. There is no merit in this contention. The statute does not contemplate the
making and hearing of any formal motion for a change. When the affidavit is filed by a party,
no discretion is left in the judge to whom it is addressed, it is his duty to make the change
commanded by the statute. A formal motion and hearing would therefore be an idle
ceremony. This was also the opinion of the court in Stephens v. Stephens, 17 Ariz. 306, 152
P. 164, 165, in which a similar statute was construed. The court said: But where one of the
grounds allowed by the statute for a change of the judge is alleged [the bias, prejudice and
interest of the judge was alleged], the court or judge to whom it is addressed has no discretion
whatever as to its truth or sufficiency, if it complies with the language of the statute. Nor has
the opposite party any right to contest the ground or grounds alleged. If either party * * *
shall file an affidavit alleging either, * * * it shall be the duty of said judge' * * * at once to
call in another judge to try the case. He cannot decide according as the charge lodged against
him is true or false, nor can evidence by affidavit or otherwise be introduced to controvert the
application. That being true, it would serve no purpose to require notice of the application for
change of judge to the opposite party.
5. It is conceded by the respondent judge that a request for a change of judge was made of
him by the attorney for petitioner with the statement that, in the event no change were
ordered, an affidavit would be filed; and further conceded that, after the affidavit was filed, it
was called to the attention of respondent judge by the clerk of the court at the suggestion of
attorney for petitioner.
55 Nev. 115, 122 (1933) State Ex Rel. Stokes v. District Court
judge by the clerk of the court at the suggestion of attorney for petitioner. This was certainly
sufficient to appraise the judge of the filing of the affidavit requesting the transfer of the case.
Nothing more was needed.
6, 7. Respondents contend that the disqualification contemplated by the statute must be
urged at the inception of the trial. In this respect it is insisted that in this case the court having
decided the divorce action on its merits and the same respondent judge having once before
passed on the matter of allowances, the privilege given by statute is not available in the
second application. The privilege given by the statute is not meant to be confined to the trial
of the action on its merits, but may be exercised in any separate step in the cause.
A trial, said the court in Tregambo v. Comanche M. & M. Co., is the examination
before a competent tribunal, according to the law of the land, of the facts or law put in issue
in a cause for the purpose of determining such issue. When a court hears and determines any
issue of fact or of law for the purpose of determining the rights of the parties, it may be
considered a trial. Finn v. Spagnoli, 67 Cal. 330, 7 P. 746, 747.
In the case last quoted from the hearing of a motion to set aside a default was considered a
trial. In the case last cited the hearing and disposition of a motion for a new trial were
considered a trial. An application for an increased allowance was held in Stephens v.
Stephens, supra, to be a civil action in which a party was entitled to a change of judge for
bias. The application for a modification of the decree as to allowances in the case before us
calls for the determination of a substantial right of the parties. It is a phase of the case to be
tried by the court and judgment rendered thereon. If a reduction is ordered, it would work a
modification of the original decree.
We are satisfied that the filing of the affidavit of disqualification was within the remedy
given by the statute and that it was seasonably filed.
8. Respondents contend that section 8423 N. C. L., and rule 41 in rules of the district court
would be violated if a transfer to another judge were required in this case.
55 Nev. 115, 123 (1933) State Ex Rel. Stokes v. District Court
violated if a transfer to another judge were required in this case. We are not of this opinion
and hold that, if the statute in any way conflicts with said section 8423, or rule 41, it
prescribes an exception thereto to that extent.
It is ordered that a peremptory writ of mandamus issue herein commanding the
respondents to at once transfer said case No. 32375 to some other department of said Second
Judicial district court of the State of Nevada in and for the county of Washoe, or request the
judge of some other district to preside at the hearing and trial of such action.
____________
55 Nev. 123, 123 (1933) State Ex Rel. Miller v. Lani
STATE Ex Rel. MILLER Et Al. v. LANI Et Al.,
COUNTY COMMISSIONERS
No. 3037
December 5, 1933. 27 P.(2d) 537.
1. Officers.
Legislature may reduce salary of county officer to take effect during his term of office (Stats. 1933, c.
191; Const. art. 15, sec. 9, and art. 17, sec. 5).
2. Constitutional Law.
Operation of proviso is usually confined to clause or portion of enactment immediately preceding it,
unless legislative intent for more extended operation is clearly disclosed.
Original proceeding in mandamus by the State, on the relation of M. H. Miller and others,
against Ulysses Lani and others, Commissioners in and for Elko County. Writ denied.
(Sanders, C. J. dissenting.)
McNamara & Robbins and James Dysart, for Relators:
Petitioners claim that the act of March 28, 1933, is unconstitutional for the reason that it
was an attempt by the legislature to change, by diminishing, their salaries during the term of
office for which they were elected, and that the same is in conflict with the provisions of the
constitution of the State of Nevada, and particularly sec.
55 Nev. 123, 124 (1933) State Ex Rel. Miller v. Lani
particularly sec. 9 of art. XV, being sec. 170 N. C. L., in which the proviso: no such change
of salary or compensation shall apply to any officer during the term for which he may have
been elected is decidedly broad and sweeping, and under the rule of construction as laid
down in State v. Arrington, 18 Nev. 412, 4 P. 735, it is our contention that this provision of
the constitution would include any elective officer during the term for which he may have
been elected, and should not be construed as applying to any particular class of officers
named in the constitution.
Gray Mashburn, Attorney-General, and W. T. Mathews and Julian Thruston, Deputy
Attorneys-General, for Respondents:
The salaries of officers fixed in the constitution at the time of its adoption were the salaries
of state officers only. Sec. 5, art. XVII. No constitutional provision has ever been adopted
writing into the constitution any salaries for county officers; and we know of no case in this
state holding that the provision in sec. 9, art. XV of the Nevada constitution relates to county
officers. We think that the language of the provision means that no officer whose salary is
fixed in the constitution is to be subjected to a change in salary during the term for which he
may have been elected, and no other; and, so far as this constitutional provision is concerned,
other officers, even though they may be named and provided for in the constitution, are not
protected thereby unless their salaries are or were fixed in the constitution.
OPINION
By the Court, Coleman, J.:
1. This is an original proceeding in mandamus. Each of the relators was elected to a county
office in Elko County in November 1932, for a term of four years, and qualified in January
1933. At the session of the legislature held in 1933, an act was passed and duly approved
{Stats.
55 Nev. 123, 125 (1933) State Ex Rel. Miller v. Lani
of the legislature held in 1933, an act was passed and duly approved (Stats. 1933, c. 191),
effective April 1, 1933, reducing the salary of each of the relators. The only question involved
is the constitutionality of such an act; that is, can the salary of a county officer be reduced to
take effect during his term of office?
It is conceded that the legislature has plenary power to pass an act diminishing the salary
of a county officer effective during his term unless inhibited by the constitution. 46 C. J.
1020.
Article 17, sec. 5, of the constitution, as originally adopted, fixed the salary of all state
officers, but not of county officers.
The provision of the constitution which it is claimed by relators inhibits the legislature
from enacting a law changing the salary of a county officer during his term is article 15,
section 9, as originally adopted, which reads: The legislature may, at any time, provide by
law for increasing or diminishing the salaries or compensation of any of the officers whose
salaries or compensation is fixed in this constitution; provided, no such change of salary or
compensation shall apply to any officer during the term for which he may have been elected.
As we have shown, one article of the constitution fixed the salaries of all state officers,
whereas article 15, sec. 9, down to the proviso, admittedly deals solely with the question of
increasing and diminishing the salary of a state official, and none other. Petitioners rely upon
the words any officer in the proviso to sustain their contention, asserting that by the use of
these words the constitutional convention intended to include all officers mentioned in the
constitution, whether county or state.
2. We cannot accept this contention. The rule which we think here applicable is stated as
follows: The operation of a proviso is usually and properly confined to the clause or distinct
portion of the enactment which immediately precedes it, and does not extend to or qualify
other sections, unless the legislative intent that it shall so operate is clearly disclosed. 59 C.
J.
55 Nev. 123, 126 (1933) State Ex Rel. Miller v. Lani
1090; In Re McKay's Estate, 43 Nev. 114, 184 P. 305; State v. Beemer, 51 Nev. 192, 272 P.
656.
There is nothing to indicate that it was intended that the proviso should refer to any other
section of the constitution; hence it must follow that the writ sought must be denied.
There is another reason why we should deny the writ, which is that the constitution was
construed at sessions of the legislature immediately following its adoption, contrary to the
contention of petitioner, and continually down to the present time.
The legislature of this state in 1865 (Stats. 1865, c. 125, p. 386) enacted that at the general
election in 1866, and every two years thereafter, a district attorney should be elected in each
county of the state, and fixed the annual salary of such official for each of the counties.
At its session in 1867 (Stats. 1867, c. 54, p. 96), the legislature amended the act of 1865 so
as to change the salary of some of the district attorneys, to take effect during their terms.
Many amendments, changing the salaries of county officials, during their terms, have been
made by the legislature from that time to this, and particular attention may be directed to the
statutes of 1913, c. 45, Stats. 1917, c. 161, and Stats. 1929, cc. 142 and 146, increasing the
salaries of certain officers of Elko County during their terms of office.
The conclusion of this court as expressed by Hawley, C. J., in State v. Glenn, 18 Nev. 34,
1 P. 186, is not only appropriate, but controlling upon the question, in view of the action of
the legislature in 1867 changing the salary of certain district attorneys during their terms. The
court in that case points out that in the legislatures of 1866, 1873, 1879, and 1881 were men
who were members of the constitutional convention, and that their construction of the
constitution was entitled to great deference. The court, in the opinion mentioned, pointed out
that the construction by the legislature had been acquiesced in for nineteen years. The
construction of the constitutional provision in question by the legislature of 1S67 has been
acquiesced in for over sixty years.
55 Nev. 123, 127 (1933) State Ex Rel. Miller v. Lani
the constitutional provision in question by the legislature of 1867 has been acquiesced in for
over sixty years.
To the same effect see Dwarris on Statutes (2d ed.) 1848, p. 652; Labadie v. Smith, 41
Okl. 779, 140 P. 427, 430; Logan v. Davis, 233 U. S. 613, 34 S. Ct. 685, 58 L. Ed. 1121;
State v. Brodigan, 35 Nev. 39, 126 P. 680, 682; 6 R. C. L. p. 63.
It is a significant fact that in State ex rel. Scott v. Trousdale, 16 Nev. 357, a similar state of
facts to those here presented was involved, yet no such point as that now made was urged or
considered. It can be accounted for upon only one theory, and that is that no one considered it
tenable.
The application is without merit.
The writ sought is denied.
Ducker, J.: I concur.
Sanders, C. J., dissenting:
It is a common provision in the constitutions of most, if not all, of the states, that the salary
of a public officer shall not be increased or diminished during his term. Such a provision is to
be found in the constitution of Nevada. Article 15, sec. 9. The consensus of opinion is that the
provision is wise, mandatory, inexorable, admits of no exceptions, and affords no opportunity
for evasion, directly or indirectly, by legislatures or courts. 46 C. J. 1021; 22 R. C. L. 434; 23
Amer. & Eng. Encyc. of Law (2d ed.) 401. It is generally conceded that the purpose of the
constitutional prohibition, succinctly stated, is twofold: (1) To prevent the possibility of an
officer using the power and influence of his position to obtain an increase of compensation
after his election or during his term of office; (2) to protect all officers from improper
pressure by threats or otherwise to diminish the compensation of an officer after his election
and during his term of office. 46 C. J. 1021, note 22. Meachem, in his work on Public
Officers, states: The wisdom of this provision is obvious, and the courts will not permit it to
be evaded.
55 Nev. 123, 128 (1933) State Ex Rel. Miller v. Lani
The only inhibition upon the right or power of the legislature to diminish the compensation
of an officer during his term is, in form, a proviso, incorporated in section 9 of article 15 of
the constitution of this state, headed, Miscellaneous Provisions. The section provides as
follows: The legislature may, at any time, provide by law for increasing or diminishing the
salaries or compensation of any of the officers whose salaries or compensation is fixed in this
constitution; provided, no such change of salary or compensation shall apply to any officer
during the term for which he may have been elected.
The determination of the question of whether or not a statute increases or diminishes the
compensation of an officer depends, of course, upon the proper construction of the statute
itself. Unless, then, there is something in the constitution to show an intention on the part of
the makers of that instrument to permit the legislature to change or alter the compensation of
a county officer during his term of office, the writ applied for in this case should issue.
Before discussing the immediate question, it will be profitable to review the expositions
made of the meaning and scope of the section when the constitution was fresh from the hands
of its makers. In the case of Crosman v. Nightingill, 1 Nev. 323, decided in 1865, the court
took the position that the restriction imposed by the section was doubtless intended to prevent
the increase of salaries or compensation of officers, as such officers, or for duties naturally
belonging to their positions, and that the restriction could not be extended to prevent the
allowance of compensation to officers for the performance of duties in nowise connected with
their offices.
In State ex rel. Beatty v. Rhodes, 3 Nev. 240, decided in 1867, the exposition made of the
context (section 9) may be summarized thusly: (1) The legislature may at any time increase or
diminish the compensation of an officer whose salary is fixed by the schedule of the
constitution for the first term of office succeeding the formation of a state government, to
wit, the governor, secretary of state, state controller, state treasurer, surveyor general,
attorney-general, superintendent of public instruction, and each member of the supreme
court.
55 Nev. 123, 129 (1933) State Ex Rel. Miller v. Lani
formation of a state government, to wit, the governor, secretary of state, state controller, state
treasurer, surveyor general, attorney-general, superintendent of public instruction, and each
member of the supreme court. Section 5, art. 17. It is interesting to note that in State ex rel.
Beatty v. Rhodes, the relator, H. O. Beatty, was a member of the supreme court. (2) That the
restriction imposed by the section only prohibits the legislature from increasing or
diminishing the number of dollars in lawful money at which the salary of an officer is fixed at
the time of his election. (3) That the phrase during the term for which he may have been
elected applies only to elective officers for a fixed term whose compensation is fixed at the
time of election. (4) A statute which increases or diminishes the compensation of an officer
during his term does not affect the compensation of present incumbents, and as to them the
law is postponed in its effect until the term of those in office has expired by limitation of law.
The substance of the court's interpretation of the section is that a statute which increases or
diminishes the compensation of an officer during his term is to be construed, under section 9,
article 15, as if the proviso of that section was annexed to the law, to wit: Provided, no such
change of salary or compensation shall apply to any officer during the term for which he may
have been elected.
With the exposition thus made of the meaning of the constitutional provision, we should
experience no difficulty in determining what officers are included within the prohibition
imposed by the section. In Crosman v. Nightingill, the court was dealing with the increase of
salary of the lieutenant governor, an officer not named in the schedule of the constitution,
article 5, section 17. In State ex rel. Beatty v. Rhodes, the court was dealing with the question
of diminution of the salary of an officer whose salary was fixed in the schedule of the
constitution for the first term of office only. No distinction was made in these cases between
the classes of offices affected by the prohibitory clause of the section.
55 Nev. 123, 130 (1933) State Ex Rel. Miller v. Lani
The constitutional provisions are to be construed liberally in order to carry out the purpose
for which they were obviously adopted, taking into view the dangers sought to be guarded
against and the protection to be afforded. Evans v. Job, 8 Nev. 322.
The view held by the majority of decisions elsewhere in jurisdictions whose constitutional
provision provides, Nor shall the compensation of any public officer be increased or
diminished during his term of office, is that it is applicable to a person who is elected to a
public office for a fixed and definite term, without regard to whether the salary is fixed by the
constitution or by the legislature. Crawford v. Hunt (Ariz.), 17 P.(2d) 802; Calvert County
Commissioners v. Monnett, 164 Md. 101, 164 A. 155, 86 A. L. R. 1258; Commonwealth v.
Moffitt, 238 Pa. 255, 86 A. 75, Ann. Cas. 1914c, 211; State v. Board of Commissioners, 29
N. M. 209, 222 P. 654, 655, 31 A. L. R. 1310.
It is true that a distinction is drawn for some purposes between offices of legislative
creation and those specified in the constitution, designated as constitutional offices. Moore v.
Humboldt County, 46 Nev. 220, 204 P. 880, 210 P. 401; State v. Douglass, 33 Nev. 83, 110
P. 177. But in those cases the court was dealing more with the power of the legislature to
abolish an office than it was with its right to increase or diminish the salary of an officer
during the term for which he may have been elected. Upon the weight of reasoning and the
preponderance of the authorities, I am in accord with the reasoning and conclusion that a
person who is elected to a public office for a fixed and definite term at a stipulated
compensation is an officer within the intendment and meaning of the constitutional
prohibition in question, without regard to whether the office to which the salary is attached is
created by the constitution or by the legislature. The provision expressly provides in clear and
unmistakable language that the compensation of any officer shall be neither increased nor
decreased during his term of office, and there is nothing in such language which indicates that
any narrow or limited use of the term "any officer" was intended, nor that any distinction
between the two classes of officers was contemplated.
55 Nev. 123, 131 (1933) State Ex Rel. Miller v. Lani
any narrow or limited use of the term any officer was intended, nor that any distinction
between the two classes of officers was contemplated. State v. Board of Commissioners (N.
M.) supra. In other words, the intention of the constitution makers was to gather within the
prohibition the salaries of all officers, alike, having a fixed term at a salary fixed by law.
In this conclusion I am opposed by those whose judgment challenges attention. In order to
render ineffectual the plain constitutional prohibition, my associates take the position that the
operation of a proviso in a statute or constitution is usually and properly confined to the
subject of the antecedent next preceding it; hence the proviso in question is limited or
restricted to the increase or diminution of salaries of state officers fixed in the schedule of the
constitution, section 5, article 17. I decline to accept the reasoning or the use made of the rule.
The proviso in question in no way encroaches upon the authority of the legislature to increase
or diminish the salaries of offices fixed in the constitution; the reason for such authorization
being that without it salaries so fixed could not be changed without an amendment to the
constitution. 46 C. J. 1020.
Furthermore, the statement of the rule shows that it is not an arbitrary rule, to be enforced
at all events. A proviso will be so restricted in the absence of anything in its terms, or the
subject it deals with, evincing an intention to give it a broader effect. Sutherland's Statutory
Construction, sec. 223. It is obvious that the proviso in question gives to the antecedent
subject a much broader effect; it is a simple declaration that such increase or diminution shall
not apply to the salary or compensation of an officer during the term for which he may have
been elected. Thus the proviso itself furnishes the best means of its own exposition.
In construing a proviso in a constitution, it should be confined to the antecedent next
preceding it, unless a contrary intention clearly appears. State ex rel.
55 Nev. 123, 132 (1933) State Ex Rel. Miller v. Lani
Riter v. Quayle, 26 Utah, 26, 71 P. 1060; Sutherland's Statutory Construction, sec. 267.
Hence it is held that the intention of the constitution makers, though it be expressed in the
form of a proviso, is paramount to form. I decline to accept the new reasoning offered to
support the validity of the legislation in question, upon the further ground that it wrests words
into the constitution for a purpose which it does not disclose.
There exist state officers whose salaries are not fixed in the constitution, to wit, clerk of
the supreme court, state printer, and state mine inspector; the two latter being of legislative
creation. If the construction placed by my associates upon the proviso in question is to
prevail, it follows that the power of the legislature at any time to increase or diminish the
salaries of the state officers named is absolute. Under the circumstances, it is hardly to be
supposed that the constitution makers intended that the prohibition imposed by the proviso
should be applied only to the few officers whose salaries are fixed in the constitution. I am
unwilling to place such an illiberal and discriminatory construction upon the constitution. To
do so would convict the constitution makers of having acted unreasonably without first
ascertaining the wisdom and necessity for incorporating into the constitution a provision
inhibiting the legislature from increasing or diminishing the salary or compensation of any
officer during the term for which he may have been elected.
I am aware that it has been the custom of the legislature since the adoption of the
constitution to fix the salaries of all or any one county officer generally to become effective
upon the passage and approval of the act, but the custom cannot be said to be uniform. There
are instances where such enactments have been postponed in their effect until the terms of
those in office have expired. A legislative custom in conflict with the constitution and
legislative enactments passed without seemingly a constitutional scruple can hardly be
referred to as a conclusive authority upon this court to deny the application for a writ of
mandamus in this case.
55 Nev. 123, 133 (1933) State Ex Rel. Miller v. Lani
In view of the importance of the principle involved, I feel that I should add the following
quotations:
Acquiescence for no length of time can legalize a clear usurpation of power, where the
people have plainly expressed their will in the constitution, and appointed judicial tribunals to
enforce it. A power is frequently yielded to merely because it is claimed, and it may be
exercised for a long period, in violation of the constitutional prohibition, without the mischief
which the constitution was designed to guard against appearing, or without any one being
sufficiently interested in the subject to raise the question; but these circumstances cannot be
allowed to sanction a clear infraction of the constitution. Cooley's Constitutional Limitations
(7th ed.) p. 106.
We must deal with this question as strictly a judicial one, however clear our convictions
are that the purposes sought to be obtained are praiseworthy and beneficial to the public. We
cannot for that or any other reason usurp authority which does not belong to us, and by
judicial construction make ineffectual a plain constitutional provision, however long
innocently violated. Straughan v. City of Coeur D'Alene (Idaho), 24 P.(2d) 321, 324.
The writ should issue as prayed.
____________
55 Nev. 134, 134 (1934) Paterson v. Condos
PATERSON v. CONDOS (Otis Elevator Co. Et Al.,
Interveners)
No. 3014
January 2, 1934. 28 P.(2d) 499.
1. Work and Labor.
In action to foreclose mechanic's lien, plaintiff could recover in quantum meruit, though parties had
express contract, where original express contract had been abandoned.
2. Contracts.
Changes in plans and specifications in building contract so as to amount to abandonment of original
contract held waiver of provisions for benefit of owner contemplated by original contract.
3. Mechanics' Liens.
Architect drawing plans and supervising erection of building is entitled to lien thereon, under statute
allowing liens to persons furnishing labor or materials for building (Comp. Laws 1929, sec. 3735).
4. Mechanics' Liens.
Where mechanic's lien claimant was in contractual relationship with owner of building for which labor
was finished, he could recover personal judgment against owner.
5. Appeal and Error.
Finding that mechanic's lien claimant filed claim within 50 days after completion of work would not be
disturbed, where evidence was conflicting.
6. Partnership.
That mechanic's lien claimant failed to file statutory certificate setting forth names of members of firm
did not prevent claimant from bringing suit, where claimant was foreign firm not doing business within
state (Comp. Laws 1929, sec. 4450 et seq.).
7. Mechanics' Liens.
That mechanic's lien claimant who furnished concrete work for building relied on personal credit of
general contractor did not prevent claimant from acquiring lien (Comp. Laws 1929, sec. 3735).
8. Mechanics' Liens.
Where claim of subcontractor was disallowed to extent that contractor's claim for materials used by
subcontractor in building was allowed, there was no duplication of claim in allowing contractor's and
subcontractor's claims (Comp. Laws 1929, sec. 3735).
9. Appeal and Error.
Finding that mechanic's lien claim was filed within time provided by law would not be disturbed, where
record was voluminous and attention of court was not directed to place in record where evidence on point
could be found.
55 Nev. 134, 135 (1934) Paterson v. Condos
10. Mechanics' Liens.
That contract of mechanic's lien claimant furnishing elevators for building provided that title to property
should remain in claimant until paid for did not prevent mechanic's lien from attaching when claimant
waived right to reclaim property by claiming lien (Comp. Laws 1929, sec. 3735).
11. Mechanics' Liens.
Foreign corporation doing business in state but occasionally and furnishing elevators for building, was
entitled to mechanic's lien on building, though it had not complied with laws relative to foreign
corporations doing business in state.
Appeal from Second Judicial District Court, Washoe County; L. O. Hawkins, Judge.
Action by James G. Paterson against Paul Condos, in which the Otis Elevator Company
and others intervened. Judgment for plaintiff, and named defendant appeals. Affirmed.
W. M. Kearney, for Appellant:
We submit that the finding of the lower court that the original contract was by common
consent abandoned is not supported by the record nor by the testimony of any of the
witnesses, nor does it follow as a matter of form from any of the facts admitted in evidence.
Wood v. Etiwanda Water Co. (Cal.), 81 P. 512; Mallet v. Uncle Sam Mining Co., 1 Nev. 188;
McAllister-Coman Co. v. Matthews, 52 So. 416; Ingham Lumber Co. v. Ingersoll, 125 S. W.
139; Morrow v. Campbell, 31 Am. Dec. 704; Falls v. Carpenter, 28 Am. Dec. 592; Smith v.
Lewis, 24 Conn. 624, 63 Am. Dec. 180; Hood v. Smiley, 36 P. 856; Gray v. Jones et al.
(Ore.), 81 P. 813.
In the face of the contract which is in evidence, containing a clause whereby the contractor
agrees to hold the owner free from liability for liens, he cannot himself enforce a lien, and
has, by the terms of his contract, waived any right to a lien. It follows, therefore, that all liens
which the court found invalid in so far as the subcontractors and materialmen are concerned
and which were included in the plaintiff's lien and reestablished through plaintiff, the general
contractor, cannot legally be allowed to stand.
55 Nev. 134, 136 (1934) Paterson v. Condos
legally be allowed to stand. Hand Mfg. Co. v. Marks, 52 P. 512, 53 P. 1072, 59 P. 549;
Spears v. Lawrence (Wash.), 38 P. 1049; 2 Jones on Liens (2d ed.), paragraph 1500; Phillips
on Liens, paragraph 272; Long v. Caffrey, 93 Pa. 526; Sheid v. Rapp, 15 Atl. 652; Taylor v.
Murphy, 23 Atl. 1134; Pinning Bros. v. Skipper, 18 Atl. 659.
On the claim of E. W. Hooper for architect services, it is shown by the record that Mr.
Paterson employed Mr. Hooper on his own initiative, without any thought that he was to be
employed by Mr. Condos. In the states that hold, as did the Nevada court in Holtzman v.
Bennett, 48 Nev. 284, 229 P. 1097, that a lien cannot be asserted except where authorized by
statute, architects have no lien. Raeder v. Bensbert, 6 Mo. App. 445; Nelson v. Withrow, 14
Mo. App. 276; Murphy v. Murphy, 22 Mo. App. 22; Faushee v. Grigsby (Ky.), 12 Bush 76;
Railroad Co. v. Louffer, 84 Pa. St. 171; Railway Co. v. Baker, 14 Kan. 563; Nelson v.
Withrow, 14 Mo. App. 270; Mining Co. v. Smith, 1 Ore. 171; Alder v. Exposition Co., 18 N.
E. 811; Thompson v. Baxter, 92 Tenn. 305, 21 S. W. 668; Stephens v. Hicks, 72 S. E. 313;
Ames v. Dyer, 41 Maine 397; Winder v. Caldwell, 14 L. Ed. 492; Davis v. Alford, 94 U. S.
537.
We submit that the claim of lien of R. L. Seltzer was filed too late and should be
dismissed.
It was admitted during the course of the trial that the H. P. Fischer Tile & Marble
Company had not complied with chapter 156, Stats. of 1923, p. 271, and we assert, therefore,
that it cannot maintain its action.
Subcontractor I. Christensen relied upon the personal credit of the contractor, Paterson,
and is, therefore, not entitled to a lien. Deatherage et al. v. Henderson et al., 23 P. 1052;
Wagner v. Darby et al., 30 P. 475.
We contend that J. R. Bradley Company, not having dealt with Condos, the owner of the
building, nor with Paterson, the general contractor, but having dealt with a subcontractor,
Pelizzari, who was purchasing large amounts of material from it from time to time, is not
entitled to a lien against the premises of the owner, who is three times removed from the
claimant.
55 Nev. 134, 137 (1934) Paterson v. Condos
is three times removed from the claimant. Footman v. Pusey, 45 Ga. 561; Ryan Drug Co. v.
Rowe, 69 N. W. 468; Tatum v. Cherry, 6 P. 715; Esslinger v. Huebner, 22 Wis. 632.
The Otis Elevator Company predicates its complaint to foreclose its claimed lien upon a
claim of lien filed March 27, 1930, alleging that the work was completed on the 7th day of
January, 1930. In the light of the testimony that the buildings were occupied and the elevator
was in use during the last twenty days of December, 1929, it seems the claim was filed too
late. Further, the Otis Elevator Company is estopped from filing a lien upon property which it
has, by its own contract, classified as personal property.
The Otis Elevator Company is a foreign corporation and has not complied with the laws of
the State of Nevada, and hence cannot maintain its action. Portland Co. v. Hall & Grant
Construction Co. et al., 106 N. Y. Supp., 649.
E. C. Short and Green & Lunsford, for Respondent James G. Paterson, and Interveners and
Respondents A. T. Eveleth Lumber Company, R. L. Seltzer, H. P. Fischer, I. Christensen,
Otis Elevator Company, and John J. Pelizzari:
It is asserted by appellant that the estimate by Mr. Paterson for a certain building amounted
to a contract. This estimate was never embodied in any contract and the appellant never
signed any contract of any kind. Mr. Paterson testified and it is corroborated by the testimony
of all the witnesses who did testify concerning it that the plans which had been drawn by Mr.
Hooper had been almost entirely disregarded, and the building was not built according to any
plans or specifications.
Was not the trial court justified in its findings that even though a contract at a flat price
was made, that contract was abandoned and a new contract arose either by implication or the
conduct of the parties? 9 C. J. 722; 6 Cal. Juris., sec. 225, pp. 373, 374; Sweatt v. Bonne
(Wash.), 110 P. 617; Rhodes v. Clute (Utah), 53 P.
55 Nev. 134, 138 (1934) Paterson v. Condos
53 P. 990; Hollinsead v. Mactier (N. Y.), 13 Wend. 276; Bowell v. Draper (Iowa), 129 N. W.
54; Columbus Safety Deposit v. Burke, 88 Fed. 630; Smith v. Salt Lake City, 83 Fed. 784,
787; Webb v. Cobb, 172 Ark. 255, 288 S. W. 897.
Our contention is that there was no express contract made at a flat price, and that the only
contract made was a contract on cost plus 10 per cent basis. But even if there were no
contract the court did not err in awarding judgment on quantum meruit. The plaintiff may
declare upon an express contract and still prove quantum meruit, or he may declare on
quantum meruit and prove an express contract, in which case the express contract becomes
the quantum meruit. Burgess v. Helm, 24 Nev. 242, 51 P. 1025.
The trial court had before it the verified lien claim and verified amended lien claim of Mr.
Seltzer, the itemized bill of particulars and the evidence in relation to the date of completion
of the work, from which the court found that the work was completed about December 15,
1929, and the claim of lien was filed and recorded January 20, 1930, from which it appears
that the lien was filed within the period of fifty days after the completion of the work.
Mr. J. W. Snyder testified that H. P. Fischer conducted business under the name of H. P.
Fischer Tile & Marble Company as an individual, that it was neither a copartnership,
corporation or association. We submit that compliance with section 4450 N. C. L. was not
required, because the name of the owner of the business was fully disclosed and that it was no
fictitious name or designation.
The fact that I. Christensen relied on Paterson for payment does not in any manner affect
his right to a lien upon the premises for the work done within the period prescribed for filing
the lien. Secs. 3735, 3739, 3745 N. C. L.; Richardson v. Hoole, 13 Nev. 492; Hunter v.
Truckee Lodge, 14 Nev. 24; Lonkey v. Cook, 15 Nev. 58.
There was no duplication in the claims of Pelizzari and J. R. Bradley Company, and the
satisfaction of the judgment according to its terms is simple, easy and clear, and involves
a mere matter of computation.
55 Nev. 134, 139 (1934) Paterson v. Condos
and J. R. Bradley Company, and the satisfaction of the judgment according to its terms is
simple, easy and clear, and involves a mere matter of computation. Holden v. Mensinger
(Cal. Sup. Ct.), 165 P. 950.
The evidence clearly shows that the lien claim of Otis Elevator Company was filed within
fifty days after the completion of the work. The filing of a lien waived any right of action to
remove the elevator from the building. The trial court correctly found that the company was
engaged in interstate commerce and was not required to comply with the statute relating to
foreign corporations doing business within this state. S. F. Bowser and Company v.
Savidusky, 154 Wis. 76, 142 N. W. 182; Puffer Mfg. Co. v. Kelly, 198 Ala. 131, 73 So. 403;
J. C. Boss Engineering Co. v. Gunderson Brick and Tile Co., 209 N. W. 876; Southern
Discount Co. v. Rose, 296 S. W. 482; The Aeolian Company v. Jacob Fischer, 35 Fed.(2d)
34.
Nash P. Morgan, for Intervener and Respondent Hooper:
Hooper alleged and proved and the court found that his services were performed at the
request of Condos. And it has been definitely settled in this state by the case of State v. Breen,
41 Nev. 516, 173 P. 555, that personal judgment may be rendered in a lien action where the
necessary allegations in assumsit appear and are sustained.
An architect, or one who draws plans and specifications for, and supervises the
construction of a building in accordance therewith, is entitled to a lien under statutes similar
to ours, by the great weight of authority and the better reasoning. 60 A. L. R. 1257; 5 C. J.
266; 40 C. J. 79; 2 R. C. L. 401.
Ayres, Gardiner & Pike, for Respondent J. R. Bradley Company:
Subcontractor Pelizzari was the agent of the owner of the building, Condos, when he dealt
with the materialmen, J. R. Bradley Company. Sec. 3735 N. C. L.
55 Nev. 134, 140 (1934) Paterson v. Condos
In Hunter v. Truckee Lodge, 14 Nev. 24, the court held that the legislature intended to give
subcontractors and materialmen direct liens upon the premises.
OPINION
By the Court, Coleman, J.:
This is an action upon the quantum meruit to foreclose a mechanic's lien, in which
materialmen and subcontractors joined. The defendant filed an answer in which he denied
certain allegations of the complaint and pleaded affirmatively that an express contract was
entered into to erect the building in question for the sum of $38,800, pursuant to certain plans
and specifications. In his reply the plaintiff denied this affirmative allegation. The court
entered its formal findings, wherein it found that the parties originally entered into the
express contract pleaded in the answer, but that thereafter * * * fifty seven changes were
made in the building as contemplated by the original plans and specifications and the building
was thereafter constructed practically without regard to either set of plans and specifications,
and that the original offer and bid of plaintiff to construct said building was abandoned with
the consent, acquiescence and direction of the defendant.
1. The first point we will consider is the contention that, the court having found that an
express contract was entered into between the plaintiff and the defendant, as alleged in the
answer, the plaintiff cannot recover because his whole case is bottomed upon an action on the
quantum meruit. In support of this contention counsel for appellant cites Colyer v. Lahontan
M. Co., 54 Nev. 353, 17 P.(2d) 697; Christensen v. Duborg, 38 Nev. 404, 150 P. 306, and
other cases of similar import. Those cases correctly state the law applicable to the facts
involved therein, as a casual reading will show. The situation presented in this case is very
dissimilar to that presented in those cases; hence they have no application.
55 Nev. 134, 141 (1934) Paterson v. Condos
We think the rule applicable to the facts of this case is correctly stated in Hood v. Smiley,
5 Wyo. 70, 36 P. 856, 857, where it is said: It is the common experience of men that changes
and alterations in the original plans and specifications of buildings are the rule, and not the
exception, and the legal rule seems to be well established, as stated by counsel for plaintiff in
error, that where additions are ordered to be made, and are made, to a building which a
workman has contracted to furnish for a certain sum, the original contract is held to exist as
far as it can be traced to have been followed, and the excess must be paid for according to its
reasonable value;' and it is only where the alterations and changes are so great that it is
impossible to follow the original contract that it will be deemed to have been wholly
abandoned, so that the contractor can recover upon a quantum meruit.
The supreme court of Utah, in a similar case, said: The contention therefore now made by
appellant that, in an action based upon an express contract, there can be no recovery as upon
quantum meruit, is not applicable to the record in this case. Nor is the claim tenable that,
where there is an express contract entered into between parties for the construction of a
building, an action as upon quantum meruit to recover for labor performed and material
furnished in erecting the building cannot be maintained. It is quite true that a party entering
into a contract of this character may not abandon the contract and recover more than the
contract price upon a quantum meruit; but there may be cases where the stipulations of the
contract have been departed from either by the express consent of the parties or by
implication through their conduct in making changes in materials, workmanship, or structure
by reason of which it may become a matter of doubt whether the contract, as a whole, has
been abandoned or not. In such cases the contractor may, in the first instance, sue as upon a
quantum meruit, and leave it to the defendant to set up and insist upon the contract for the
purpose of limiting the recovery to the price stipulated therein. The defendant may in such a
case likewise insist that the stipulations of the contract remain in full force and have not
been performed, and may demand damages for a noncompliance with the terms of the
contract.
55 Nev. 134, 142 (1934) Paterson v. Condos
insist that the stipulations of the contract remain in full force and have not been performed,
and may demand damages for a noncompliance with the terms of the contract. The contractor
may, however, in such cases, also base his action upon both the contract and upon a quantum
meruit by setting up the former in one count, and the latter in another in his complaint. In all
such cases a recovery by either party will be allowed in accordance with the facts developed
at the trial and the law applicable thereto. Again, a contractor, in case the contract is fully
performed, and nothing remains except to obtain payment, may sue to recover the amount
unpaid without specially declaring upon the contract. These propositions have been discussed
and passed upon many times by the courts, and are illustrated and applied in the following
cases: Todd v. Huntington, 13 Ore. 9, 4 P. 295; Schwartzel v. Karnes, 2 Kan. App. 782, 44 P.
41; Board of Com'rs. v. Gibson, 158 Ind. 471, 63 N. E. 982; Moore v. Gaus & Sons' Mfg.
Co., 113 Mo. 98, 20 S. W. 975; Burgess v. Helm, 24 Nev. 242, 51 P. 1025; Wilson v. Smith,
61 Cal. 209. Foulger v. McGrath et al., 34 Utah, 86, 95 P. 1004, 1006.
In Reynolds et al. v. Jourdan, 6 Cal. 108, the court said: Where the entire performance of
a special contract has been prevented by one of the parties, or where its terms have been
afterwards varied by the agreement of both parties, the action for the amount due for work
and labor should be in the form of indebitatis assumpsit, and not upon the contract.
A contract will be treated as abandoned where the acts of one party inconsistent with its
existence are acquiesced in by the other. 13 C. J. 601.
See, also, Adams v. Pugh, 7 Cal. 150; De Boom v. Priestly, 1 Cal. 206; O'Connor v.
Bingley, 26 Cal. 20; Adams v. Burbank, 103 Cal. 646, 37 P. 640; 40 Cyc. 2825, as to
modification of contract; 13 C. J. 589.
It follows from what we have said that as a matter of law the court committed no error in
refusing to accept the contention of appellant, in view of the findings.
2. As to the contention that specifications contained certain provisions which preclude
the plaintiff's recovery, we need only say that by the abandonment of the original
contract and the erection of a building costing many thousand dollars more than
contemplated by the original contract, the defendant waived the provisions relied upon.
55 Nev. 134, 143 (1934) Paterson v. Condos
certain provisions which preclude the plaintiff's recovery, we need only say that by the
abandonment of the original contract and the erection of a building costing many thousand
dollars more than contemplated by the original contract, the defendant waived the provisions
relied upon.
Having reached the conclusion indicated, but one question remains to be considered so far
as the claim of the plaintiff is concerned, and that is as to the sufficiency of the evidence to
justify the conclusion of the court. The record in this case consists of four large volumes, and
to even undertake to analyze the evidence would result in an unduly lengthy opinion. We
have considered the evidence, and we are satisfied that the conclusion of the trial court is
amply justified.
3. It is next contended that the court erred in entering judgment in favor of E. U. Hooper
for services rendered as an architect in drawing plans for the building and in supervising its
construction. Our lien statute (section 3735 N. C. L.) provides that: Every person performing
labor upon, or furnishing material of the value of five (5) dollars or more, to be used in the
construction * * * of any building * * * has a lien upon the same. * * *
While the authorities are not uniform on the point, the great weight of authority, and we
think the better reasoning, is in favor of the rule that an architect who draws plans and
supervises the erection of a building, under a statute such as ours, is entitled to a lien. In the
case of Gould v. McCormick, 75 Wash. 61, 134 P. 676, 47 L. R. A. (n. s.) 765, Ann. Cas.
1915a, 710, the court had under consideration, so far as is here material, a statute identical to
ours; after quoting from certain authorities, and citing others, it reached the conclusion that a
superintending architect was entitled to a lien.
Another case arising out of a statute like ours is Johnson v. McClure et al., 10 N. M. 506,
62 P. 983, wherein the court held that the architect was entitled to a lien.
In support of this view, we also call attention to the following authorities: Field v.
Consolidated M. W. Co., 25 R. I. 319, 55 A.
55 Nev. 134, 144 (1934) Paterson v. Condos
following authorities: Field v. Consolidated M. W. Co., 25 R. I. 319, 55 A. 757, 105 Am. St.
Rep. 895; Von Dorn v. Mengedoht, 41 Neb. 525, 59 N. W. 800; Friedlander v. Taintor, 14 N.
Dak. 393, 104 N. W. 527, 116 Am. St. Rep. 697, 9 Ann. Cas. 96; Phoenix Furn. Co. v.
Put-in-Bay, etc. (C. C.) 66 F. 683; Knight v. Norris, 13 Minn. 473 (Gil. 438); Hughes v.
Torgerson, 96 Ala. 346, 11 So. 209, 16 L. R. A. 600, 38 Am. St. Rep. 105; Stryker v.
Cassidy, 76 N. Y. 50, 32 Am. Rep. 262. See, also, 60 A. L. R. 1267 note; 5 C. J. 266; 2 R. C.
L. p. 401.
4. As to Hooper's claim, it is further contended that no personal judgment should have
been rendered in his favor, for the reason that there was no contractual relation ship existing
between him and Condos. As to the latter contention, there is evidence that there was such
contractual relationship, and we are disposed to accept the findings of the trial court.
5. The next contention is that the testimony shows that the lien claim of R. L. Seltzer was
not filed within fifty days after the work was completed. The evidence on this point is very
conflicting, and we are not disposed to override the finding of the trial court.
6. It is further contended that the judgment should be reversed in so far as the claim of H.
P. Fischer is concerned, for the reason that he was doing business as H. P. Fischer Tile &
Marble Company and instituted this suit without having filed a certificate stating the names
of the members of the firm, as contemplated by section 4450 et seq. N. C. L. Without
deciding the question as to whether plaintiff was doing business under a fictitious name, we
may say that the evidence shows that this plaintiff has its place of business in Stockton,
Calif., and hence, on authority of the reasoning in the case of State ex rel. Pacific States Sec.
Co. v. District Court, 48 Nev. 53, 226 P. 1106, the point is not well taken. That, it is true, was
a case in which a corporation was involved, but the case turned upon the question of the
corporation doing business within this state, and the provision of the statute here invoked
contemplates doing business within this state by a person, firm, or copartnership.
55 Nev. 134, 145 (1934) Paterson v. Condos
7. It is contended that I. Christensen testified that he relied upon the personal credit of
Paterson, and hence he is not entitled to a lien. In support of the contention, we are cited to
several authorities. They are not in point. Christensen did concrete work on the building in
question, and he comes within the terms of our mechanic's lien statute above quoted.
8. The next point made is that the court erred in its judgment in favor of J. R. Bradley
Company, in that it was a duplication of the claim of John J. Pelizzari. Pelizzari was a
subcontrator in the construction of the building in question. Bradley & Co. were materialmen
who furnished certain supplies to Pelizzari which went into the building. Section 3735 N. C.
L., pertaining to mechanic's liens, makes the subcontractor the agent of the owner. The trial
court found that Bradley & Co. furnished the materials in question to Pelizzari, and that they
went into the building, hence it allowed Bradley's claim, and, though Pelizzari's claim
included Bradley's, it was disallowed to that extent. There was no duplication of the
allowance and no error in this connection.
9. It is next asserted that the trial court erred in allowing the claim of Otis Elevator
Company. It is said that the lien claim was not filed within the time provided by law for the
filing of such a claim. Our attention is not directed to the place in the record where we will
find the evidence on the point. As stated above, the record in this case is voluminous,
comprising four very thick volumes. It should not be expected that we will comb the record,
in such a situation, to ascertain if the evidence sustains the finding (State v. Milosovich, 42
Nev. 273, 175 P. 139, at page 140); hence we shall assume that the finding is sustained by the
evidence.
10. As to this claim, it is also contended that, in view of the fact that the contract between
the elevator company and Condos provides that the title shall remain in the company until the
property furnished is paid for, no lien can be claimed. Under the broad provision in the
mechanic's lien statute, we think that a lien attaches in such a case as this when claimant
waives his right to reclaim the property, which it did by claiming a lien.
55 Nev. 134, 146 (1934) Paterson v. Condos
in such a case as this when claimant waives his right to reclaim the property, which it did by
claiming a lien.
11. Nor is there any merit in the contention that this claimant, being a foreign corporation,
and not having complied with the statute relative to such corporations doing business in this
state, is not entitled to a lien. The statute in question does not apply to a foreign corporation
doing business in the state only occasionally, as does this claimant. State ex rel. Pacific States
Sec. Co. v. District Court, supra.
We find no prejudicial error in the record, hence the order and judgment are affirmed.
____________
55 Nev. 146, 146 (1934) Chamblin v. Chamblin
CHAMBLIN v. CHAMBLIN
NO. 3034
January 3, 1934. 27 P.(2d) 1061.
1. Divorce.
Complaint in suit to set aside divorce decree as obtained on perjured testimony, constituting fraud on
court, held insufficient as alleging fraud not extrinsic or collateral to matter tried in divorce case.
2. Judgment.
Equity court may set aside judgment or decree for fraud, only if extrinsic or collateral to matter tried by
court.
3. Judgment.
Fraud is extrinsic or collateral to matter tried by court within rule authorizing equity court to set aside
judgment therefor only when it prevents party from having trial or presenting all his case to court or
pertains to manner in which judgment was procured.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran and
Edgar Eather, Judges.
Suit by Mathilda Chamblin against Charles Edward Chamblin to set aside a divorce
decree. From a decree annulling and setting aside the decree, and an order denying
defendant's motion for a new trial, he appeals. Reversed, with direction to dismiss the suit.
55 Nev. 146, 147 (1934) Chamblin v. Chamblin
A. P. Johnson, for Appellant:
Plaintiff's complaint does not state facts sufficient to constitute a cause of action. Confer v.
District Court, 49 Nev. 18, 234 P. 688.
William S. Boyle, for Respondent:
The perjury of the plaintiff or his witnesses in a divorce suit does not authorize the court to
vacate the final decree. 3 Freeman on Judgments, p. 2586, sec. 1242.
OPINION
By the Court, Coleman, J.:
Mathilda Chamblin instituted a suit against Charles Edward Chamblin to set aside a decree
of divorce theretofore entered in favor of the said Charles Edward Chamblin and against the
said Mathilda Chamblin.
After taking testimony and considering the evidence and arguments of counsel, the court
entered a decree annulling and setting aside the decree of divorce theretofore entered in favor
of Charles Edward Chamblin. Thereafter a motion for a new trial was made, which was
denied by the court on May 22, 1933. The defendant has appealed from both the decree and
the order denying the motion for a new trial.
We will refer to the parties as they were designated in the trial court.
On the same day the record on appeal was filed with the clerk of this court, counsel for the
plaintiff filed a notice of motion to strike the bill of exceptions on the ground that it was not
filed within twenty days after the entry of the order denying the defendant's motion for a new
trial.
1. We do not deem it necessary to determine the motion to strike, for we think the
contention of the defendant that the complaint does not state a cause of action is well taken.
The gravamen of the complaint is that the defendant obtained his decree of divorce upon
perjured testimony, which constituted a fraud upon the court which granted the decree.
55 Nev. 146, 148 (1934) Chamblin v. Chamblin
obtained his decree of divorce upon perjured testimony, which constituted a fraud upon the
court which granted the decree.
In the divorce suit in which the decree now attacked was entered, personal service of
summons was had upon the defendant in that suit (plaintiff here), and she had every
opportunity to appear and defend. She was charged with a knowledge of the fact that the
plaintiff in that suit would produce the testimony which it is now said constituted perjury.
2, 3. We had under consideration the identical question here involved in the matter of
Confer v. District Court, 49 Nev. 18, 234 P. 688, 689, 236 P. 1097, where we held: The
power of a court of equity to grant relief from a judgment obtained by fraud is inherent, but
not every fraud committed in the course of a judicial determination will furnish ground for
such relief. The acts for which a judgment or decree may be set aside or annulled have
reference only to fraud which is extrinsic or collateral to the matter tried by the court, and not
to fraud in the matter on which the judgment was rendered.
Fraud is extrinsic or collateral within the meaning of the rule when it is one the effect of
which prevents a party from having a trial, or from presenting all of his case to the court, or
which operates, not upon the matters pertaining to the judgment itself, but to the manner in
which it is procured. 15 R. C. L. p. 763; 34 C. J. p. 472, n. 66a.
From the very nature of the grounds of fraud relied upon, it is seen that it is not extrinsic or
collateral to the matter tried by the court in the suit resulting in the decree of divorce.
Counsel for the plaintiff cites authorities which lay down a different rule from that
recognized in the Confer case, but we are convinced that the great weight of authority, as well
as the better reasoning, sustaines the conclusion reached in the Confer case. Recent decisions
in accord with the decision in the Confer case are Graure v. Detroit L. Co., 260 Mich. 47, 244
N. W. 225; Taylor v. Taylor, 159 Va. 33S, 165 S. E. 414; Hendricks v. Hendricks, 216 Cal.
321, 14 P.{2d) S3; Wm. H. Johnson Timber & Realty Co. v.
55 Nev. 146, 149 (1934) Chamblin v. Chamblin
v. Taylor, 159 Va. 338, 165 S. E. 414; Hendricks v. Hendricks, 216 Cal. 321, 14 P.(2d) 83;
Wm. H. Johnson Timber & Realty Co. v. Belt, 329 Mo. 515, 46 S. W.(2d) 153; Parker v.
Sims, 185 Ark. 1111, 51 S. W.(2d) 517.
If we were to accept a different rule than that stated, we would be encouraging endless
litigation, in which nothing would ever be finally determined. Decrees quieting title to
property would be of so little value that real estate in many instances would not be
marketable. In fact an endless list of evils might be enumerated.
The complaint failing to state a cause of action, it is ordered that the judgment and order
appealed from be, and they are hereby, reversed, and the trial court is ordered to dismiss the
suit at costs of plaintiff.
On Petition for Rehearing
February 1, 1934.
Per Curiam:
Rehearing denied.
____________
55 Nev. 150, 150 (1934) Hunnewell v. Hunnewell
HUNNEWELL v. HUNNEWELL
No. 3035
January 3, 1934. 27 P.(2d) 1062.
1. Divorce.
Verified complaint of plaintiff in divorce action held admissible on hearing of cross-complaint on
question of plaintiff's residence.
2. Divorce.
Whether evidence was sufficient to warrant divorce was addressed to discretion and judgment of lower
court, and its action was binding on supreme court.
Appeal from second Judicial District Court, Washoe County; B. F. Curler, Thomas F.
Moran, and J. Emmett Walsh, Judges.
Divorce action by Harry H. Hunnewell against Helen C. Hunnewell, in which defendant
filed a cross-complaint. From a judgment dismissing the cross-complaint, defendant appeals.
Affirmed.
R. E. Burns and L. D. Summerfield, for Appellant:
The plaintiff's verified complaint containing the allegation on residence was properly
admitted in evidence. It was a judicial admission. 22 C. J. 332, 421.
Appellant respectfully insists that the trial court was in error in holding that the residence
of the plaintiff was not sufficiently proved, and in dismissing the action.
Harlan L. Heward, for Respondent:
The proof introduced and presented by the appellant conclusively proves that the trial
court was without jurisdiction to consider the case on its merits.
An allegation in a pleading cannot control a court. Smith v. Smith (N. Dak.), 86 N. W.
721; Black v. Black, 48 Nev. 220, 229; 228 P. 889. If the trial court is not bound by an
admission as to a cause of action, then clearly the trial court should not be bound by an
admission as to jurisdiction.
55 Nev. 150, 151 (1934) Hunnewell v. Hunnewell
clearly the trial court should not be bound by an admission as to jurisdiction. Chisholm v.
Chisholm (Fla.), 125 So. 694, 701; Bradfeele v. Bradfeele (Mich.), 117 N. W. 588.
OPINION
By the Court, Ducker, J.:
This is an action for divorce instituted by the husband on the ground of extreme cruelty. In
the complaint, which was filed on March 1, 1932, it was alleged that he is, and for more than
six weeks immediately preceding the commencement of this action, has been an actual and
bona fide resident of the State of Nevada, and actually domiciled therein during all of said
period of time. The wife, a resident of the county of Cook, State of Illinois, answered. In her
answer she admitted the plaintiff's residence as alleged. By her cross-complaint she averred
such residence on the part of the plaintiff and prayed for separate maintenance on the ground
of extreme cruelty and adultery. Plaintiff duly filed his reply thereto. Thereafter on May 6,
1932, the trial court heard defendant's motion for allowances and entered an order requiring
plaintiff to pay defendant's traveling expenses to attend the trial of the case, expense money,
alimony pendente lite, and a preliminary counsel fee. The plaintiff was present when the order
was entered and had testified at the hearing. On May 14, 1932, a written order was made and
filed in which plaintiff was directed to comply therewith on or before May 15, 1932. He left
the State of Nevada several days afterwards and has never complied with the order.
On June 7, 1932, the defendant filed an amended answer and cross-complaint praying for a
divorce on the ground of adultery, and for a division of property. The plaintiff's reply to the
same verified by his attorney was duly filed.
The case came on for trial on July 11, 1933. The plaintiff was not present.
55 Nev. 150, 152 (1934) Hunnewell v. Hunnewell
plaintiff was not present. His attorney stated he did not know where he was and was unable to
present any proof. Defendant proceeded to her proof in support of her amended answer and
cross-complaint. Plaintiff's counsel offered no evidence in rebuttal and moved the court for
judgment dismissing the cross-complaint of the defendant on the ground that the
jurisdictional facts had not been proved as to the residence of plaintiff.
Judgment was entered dismissing the action on the ground urged by counsel. From the
judgment and order of the court denying the motion for a new trial this appeal was taken by
defendant. We will continue to refer to the parties as plaintiff and defendant.
The action of the trial court in holding that it had no jurisdiction of the cause and
dismissing the same is assigned as error. It is insisted by defendant that the evidence of the
plaintiff's residence was sufficient to give the trial court jurisdiction.
We will review the evidence on this phase of the case. Gordon Burrow, a clerk at the
Riverside Hotel in Reno, Washoe County, Nevada, testified that plaintiff registered at that
hotel on January 18, 1932, and remained there continually until March 1, 1932, that he saw
the plaintiff in Reno every day during that period. He made the statement to the witness that
he was putting in his time for a divorce; that he was establishing a residence here and
understood that he would have to have a residence witness, and asked Burrow if he would be
his witness when the case came up. He would come up and report and laugh and go off. He
stated on or about the 18th of January 1932, that he was establishing a residence here. He just
made the general statement that he was here for a divorce; that he was making his residence
here. The following took place between the trial court and the witness:
The Court: Q. When, Mr. Burrow, did you have the first conversation with him? A. On
January 18, 1932.
Q. Now, was that the date he made the remark that you have testified tothat he was
here putting in his time to get a divorce? A. I do not know whether it was that day or the
next day.
55 Nev. 150, 153 (1934) Hunnewell v. Hunnewell
you have testified tothat he was here putting in his time to get a divorce? A. I do not know
whether it was that day or the next day. I can recall the incident very clearly as in January,
because he had on white shoes.
Q. Do you remember what his statement was? A. Well, that he was here to establish a
residence and that he was going to get a divorce.
Q. Was that All? A. Yes, and then a little later he said something aboutwell, that he
would have to have a witness and that would I be a witness.
Q. Was that all he said about his purpose in coming here or establishing his residence
here, or anything of that sort? A. Yes, I think so.
J. G. Allard, deputy assessor of Washoe County, Nevada, was a witness for defendant and
testified in substance as follows: That on April 5, 1932, he issued a Nevada automobile
licence to the plaintiff for the fee of $16.50 and that at the same time the plaintiff paid a
personal property tax of $107.23, and a poll tax of $3.00. The automobile license was not a
visitor's permit, but the regular license for Nevada residents.
Richard Wharton was also a witness for defendant. Concerning plaintiff's residence in
Nevada he testified in substance as follows: That he was in Reno, Nevada, with the plaintiff
in the latter part of May, 1932, and while driving plaintiff and a companion back from Reno
to Pasadena he heard plaintiff say to his companion that when he got back to Pasadena he
would not need the witness any longer because he thought he liked Reno and he was coming
down here to make his home here. He said it was a small town and he would not have to use
his car so muchhe could walk wherever he wanted to go. When they arrived in Pasadena
from Reno, plaintiff told the witness that he was going back to Nevada and that he would no
longer need his services. Counsel for defendant asked the witness this question: What did
Mr. Hunnewell say in Pasadena at that time about the State of Nevada, if anything? The
witness answered: He was coming down here {Reno) to live and he would not need me
any longer."
55 Nev. 150, 154 (1934) Hunnewell v. Hunnewell
coming down here (Reno) to live and he would not need me any longer.
The following testimony given by plaintiff on the hearing of the notice for allowances was
admitted in evidence:
Q. Where have you been residing in Washoe County, Nevada? A. At the Riverside Hotel.
Q. During all the time? A. In Reno all the time. * * *
Q. Have you had a bank account in Reno since you have been here? A. I did.
Q. What bank? A. The Riverside Bank.
Q. For how long a period of time? A. Since I have been heresince January 18th.
1. Plaintiff's verified complaint was introduced in evidence by defendant. As previously
stated it was alleged therein: That the plaintiff is and for a period of more than six weeks
immediately preceding the commencement of this action has been an actual and bona fide
resident of the State of Nevada, and actually domiciled therein during all of said period.
The foregoing is all the evidence there is in the record bearing on the question of plaintiff's
residence.
Plaintiff concedes that the evidence sufficiently proves the physical presence of the
plaintiff within this state for the required period, to wit, six weeks, before the suit was
brought. He insists, however, that it does not prove that plaintiff intended to make Nevada his
home, which must be a concomitant of physical presence to establish the bona fide residence
required by the statute. The trial court was of the same opinion, as appears from the written
decision, which appears in the record.
It was stated by counsel for defendant, on the oral argument in this court, that the trial
court declined to consider the verified complaint introduced by defendant as evidence of
plaintiff's intent to make Nevada his home. A careful reading of the written decision of the
trial court does not justify that assertion. The court said in this regard: I do not think that in
view of the fact that the verified complaint alleges on the contrary that his bona fide
residence was in Washoe County, Nevada, that it strengthens the position of the
defendant one iota."
55 Nev. 150, 155 (1934) Hunnewell v. Hunnewell
contrary that his bona fide residence was in Washoe County, Nevada, that it strengthens the
position of the defendant one iota.
That is far from saying that it was not considered. Evidently the trial court attached no
weight to it as tending to prove intent, and no weight to the other evidence introduced as
evidentiary of that element of residence, for it was said in the course of the decision: The
evidence goes only to the physical presence. * * * So, under the circumstances here, until the
supreme court acts in this matter and decides that the physical presence is all that is required
for the statutory period of time to give the court jurisdiction to grant the defendant affirmative
relief, the court cannot entertain the cross complaint in this case. But in fairness to the trial
court we cannot say that consideration of the evidence was refused.
The evidence was competent for the purpose for which it was offered. 22 C. J. 975, and
cases cited in note 60.
Under the circumstances it appears to have been the best evidence that defendant could
obtain as to that phase of the case. It is not suggested how she could have produced better
evidence of plaintiff's residence in view of his whereabouts being unknown at the time of the
trial. Of course, if plaintiff had offered such proof it would have been objectionable. In such a
case his testimony as to his intent would have been the best evidence. But in this situation the
evidence produced appears to be the next best evidence obtainable and it was admitted
without objection.
2. Defendant contends that the evidence is conclusive and asks us to reverse the case, and,
as the evidence is undisputed, to direct the trial court to enter judgment of divorce for
defendant on her cross-complaint. We are not of this opinion, and think that under the
circumstances of this case it is not our province to say that the evidence is sufficient to grant
defendant a divorce on her cross-complaint. That was addressed to the discretion and
judgment of the court below, and its action is binding on us.
55 Nev. 150, 156 (1934) Hunnewell v. Hunnewell
its action is binding on us. This is particularly true in a divorce case where the court
represents the interest which the state has in such an action.
Counsel stresses the action of the plaintiff as reprehensible and deserving of the
condemnation of this court. We agree, but are not able on that account to usurp the province
of the trial court and order a divorce for the defendant.
It is insisted also that his action gives defendant's evidence greater probative force. We
think, on the contrary, that such action furnished the trial court with reason for attaching less
weight to the allegation of residence contained in the verified complaint.
The judgment and order appealed from should be affirmed.
It is so ordered.
On Petition for Rehearing
February 6, 1934.
Per Curiam:
Rehearing denied.
____________
55 Nev. 157, 157 (1934) Snyder v. Snyder
SNYDER v. SNYDER
No. 3007
January 3, 1934. 28 P.(2d) 129.
1. New Trial.
Errors in rulings upon demurrers to pleadings cannot be reviewed on motion for new trial which is
reexamination of issue of fact (Comp. Laws 1929, sec. 8875).
2. Divorce.
Where husband was granted divorce, wife held not entitled to new trial for alleged error in sustaining
demurrer to her plea of res judicata because of judgments in California court, where husband was refused
divorce, where she proceeded to trial without amending pleadings (Comp. Laws 1929, sec. 8875).
3. Divorce.
In husband's suit for divorce, evidence of exemplified copies of pleadings, findings, and judgments in
California court, wherein husband was refused divorce, held properly disallowed, where demurrers to
defenses setting up such judgment were sustained and pleadings were not amended.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, and B. F.
Curler, Judges.
Suit by George Conrad Snyder against Louise Clarke Snyder. From a decree, defendant
appeals. Affirmed. (Ducker, J., dissenting.)
Melvin E. Jepson and John G. Willis, for Appellant:
The demurrer of the respondent to the affirmative defense pleaded by appellant to the
effect that the cause of action sought to be set forth in the complaint herein had on two
separate occasions been adjudicated against the respondent, being sustained by the trial court,
laid a foundation for the sustaining of respondent's objection to the introduction of the records
of those adjudications. Sections 8602, 8603 and 8604 N. C. L.
As we esteem it, sec. 8878 is adjective in its aspect, and not substantive. In other words, it
was a criterion of practice, and, being such, was subject to legislative discontinuance, and all
rights accruing thereunder to opposing party terminated with its repeal; and the right of
appellant to urge errors under subdivision 7 of sec.
55 Nev. 157, 158 (1934) Snyder v. Snyder
right of appellant to urge errors under subdivision 7 of sec. 8876 obtained in her favor, just as
though sec. 8878 had never existed. Sutherland on Statutory Construction (2d ed.), sec. 674.
We respectfully submit that an examination of the testimony adduced in this case
disproves the truth of the averments contained in plaintiff's complaint respecting the
impotency of appellant, and that the greater weight of testimony upon the trial of this case
was with the defendant therein.
Clyde D. Souter, for Respondent:
It should be specially noted that no memorandum of errors was ever filed, and that sec.
8878 N. C. L., which required the filing of such memorandum provides that no other errors
under subdivision 7 shall be considered either upon the motion for a new trial or upon appeal
than those mentioned in such memorandum. Consequently, it is submitted, the lower court
could not consider or take any action under subdivision 7 of sec. 8876 N. C. L., set up in
plaintiff's motion for a new trial, and that this court, on appeal, because of sec. 8878 N. C. L.,
will not consider any other errors under this subdivision. Portland Cattle Loan Co. v. Wheeler
& Stoddard, Inc., 50 Nev. 205, 255 P. 999. And under the common law the sustaining of a
demurrer was never authorized as a ground for new trial. 46 C. J. p. 62, sec. 31.
We respectfully submit that the decision of the lower court was amply and completely
sustained by the evidence in the cause, and that defendant was not entitled to a new trial on
the ground of insufficiency of the evidence to justify the decision.
As the demurrers to the affirmative defenses were sustained and defendant did not see fit
to amend, but went to trial on a simple denial of the fact of impotency, it follows that in this
state of the pleadings any rulings of the court, excluding offers of copies of proceedings in the
courts of California, which could only be made under affirmative defenses, were eminently
proper.
55 Nev. 157, 159 (1934) Snyder v. Snyder
OPINION
By the Court, Sanders, C. J.:
On the 20th day of December, 1927, George Conrad Snyder filed a complaint in the court
below against Louise Clarke Snyder, the defendant, seeking a divorce. Omitting residential
facts, the complainant, for cause of action, alleges that the parties intermarried in San
Francisco, Calif., on or about the 13th day of October, 1917, and ever since said date have
been and now are husband and wife; that there are no children the issue of said marriage; that
there is no community property; that the defendant was impotent at the time of the marriage
of plaintiff and defendant, hereinabove alleged in paragraph II hereof, and said impotency of
the defendant and still continues, and will continue hereafter, as this condition of impotency
in the defendant cannot be remedied. Wherefore, plaintiff prayed judgment that the bonds of
matrimony between the parties be dissolved; that each be restored to the status of single
persons; that plaintiff be granted an absolute decree of divorce from defendant; that plaintiff
have all further and proper orders and receive general relief.
On January 30, 1928, the defendant demurred to the complaint and for demurrer alleged
that the complaint does not state facts sufficient to constitute a cause of action against the
defendant. The demurrer was overruled. Afterward, to wit, on February 23, 1928, the
defendant answered. In addition to pleas of the general issue, the defendant specially pleaded
as follows:
(1) That whatever cause of divorce may exist in favor of the plaintiff and as alleged in his
complaint has been condoned by plaintiff; that for many years after said marriage plaintiff
and defendant cohabited together and lived together as husband and wife; that plaintiff
continued to live with defendant and to cohabit with her after he had full knowledge of all
facts and circumstances surrounding the physical condition of the defendant.
(2) That the plaintiff has been guilty of laches in commencing any action for divorce on
the grounds alleged in plaintiff's complaint, and in this respect alleges that plaintiff and
defendant intermarried on October 13, 1917, and cohabited and lived together as
husband and wife until on or about the 1st day of December, 1924.
55 Nev. 157, 160 (1934) Snyder v. Snyder
alleged in plaintiff's complaint, and in this respect alleges that plaintiff and defendant
intermarried on October 13, 1917, and cohabited and lived together as husband and wife until
on or about the 1st day of December, 1924.
(3) That by way of recrimination defendant alleges that on December 1, 1924, plaintiff
willfully and without cause deserted and abandoned the defendant, and since said date has
continued to live separate and apart from defendant against her will and consent and with
intent to desert the defendant.
(4) That all matters set forth in plaintiff's complaint are res adjudicata by reason of the
following facts: (1) That in that certain action pending in the superior court of the State of
California in and for the city and county of San Francisco, numbered 152489, entitled Louise
Clarke Snyder, plaintiff, vs. George Conrad Snyder, defendant, the said George Conrad
Snyder filed a cross-complaint setting up as alleged ground for divorce the same ground as is
attempted to be set forth in the complaint on file in this action, and that by the final judgment,
duly made by said superior court of the city and county of San Francisco on February 27,
1926, and recorded in Book 238 of Judgments, at page 498, said George Conrad Snyder was
denied a divorce; that no appeal was ever taken from said judgment, and the same is now
final. (2) That in that certain action for maintenance, filed by this defendant, Louis Clarke
Snyder, against the plaintiff, George Conrad Snyder, in the superior court of the State of
California, in and for the city and county of San Francisco, numbered 163702, the said
George Conrad Snyder filed a cross-complaint, in which he sought a divorce from this
defendant upon the ground of extreme cruelty and desertion; that on the 10th day of May,
1927, judgment was duly made and entered in said action in favor of Louise Clarke Snyder,
the plaintiff therein, and thereafter duly recorded, adjudging that she was entitled to
maintenance from said George Conrad Snyder in the sum of $100 a month, commencing
April 28, 1927, and it was therein further ordered and adjudged that the said George
Conrad Snyder was not entitled to a divorce from the said Louise Clarke Snyder; that no
appeal was ever taken from said judgment, and the same is now final.
55 Nev. 157, 161 (1934) Snyder v. Snyder
therein further ordered and adjudged that the said George Conrad Snyder was not entitled to a
divorce from the said Louise Clarke Snyder; that no appeal was ever taken from said
judgment, and the same is now final. Wherefore the defendant prayed judgment and for such
other and further relief as may be meet in the premises.
On March 1, 1928, the plaintiff filed a general demurrer to each of the defendant's alleged
defenses, upon the ground that they do not state facts sufficient to constitute a defense to the
plaintiff's cause of action. The demurrers were sustained, and the defendant did not amend.
Upon the issues joined, a trial was had without a jury.
On July 20, 1928, the court, Hon. George A. Bartlett, judge presiding, rendered its
decision in favor of the plaintiff and against the defendant, and decided that the plaintiff
should pay to the defendant for her support and maintenance during her natural life, or until
such time as she should remarry, the sum of $75 per month.
On August 6, 1928, the defendant filed and gave notice of her intention to move for a new
trial upon the grounds: (1) Insufficiency of the evidence to justify the decision; (2) that the
decision is against law; (3) errors of law occurring at the trial and excepted to by the
defendant. In the notice of motion it was stated that the defendant would, upon the hearing,
use and refer to the pleadings, orders of the court, documentary evidence, report of the
testimony, and records of the court, and that a memorandum of errors and exceptions would
be filed. On August 14, 1928, upon settlement, formal findings of facts and conclusions of
law were signed and filed, upon which findings and conclusions, on, to wit, August 14, 1928,
it was adjudged, ordered, and decreed that the plaintiff be and is granted judgment for divorce
from the defendant, and it was further ordered, adjudged, and decreed that the plaintiff pay to
the defendant for her support and maintenance, during the natural life of defendant or until
such time as she may remarry, the sum of $75 per month.
55 Nev. 157, 162 (1934) Snyder v. Snyder
such time as she may remarry, the sum of $75 per month.
The defendant's motion for new trial came on for hearing and decision before the Hon. B.
F. Curler, then judge of said court. On May 13, 1931, the court rendered its decision in
writing, and ordered that the motion for new trial be denied. On, to wit, July 10, 1931, the
defendant filed and served her notice of appeal to this court from the judgment rendered on
August 14, 1928, and from the order made and entered on May 13, 1931, denying the
defendant's motion for new trial.
Pursuant to the provisions contained in our civil practice act, to be found in section 9402
N. C. L., counsel for appellant purport to state in their opening brief the grounds upon which
appellant seeks reversal of the order denying and overruling her motion for new trial. Quoting
from the brief, the errors relied upon are as follows: The appellant seeks a reversal of the
district court's denial of a new trial, and presents for this court's determination, the errors by
her claimed to have been committed by the district court in sustaining respondent's demurrer,
as stated, and in not admitting in evidence exemplified copy of the two cases that had been
instituted in, and determined by the Superior Court of San Francisco County; also, in making
its findings of fact and the conclusions of law reached, and the decree entered in said case.
Overlooking the criticism that, under the circumstances disclosed by this record, more
definite specifications of error should have been stated, for clearness we shall segregate the
alleged errors as follows: (1) The court erred in sustaining the respondent's demurrer to the
defendant's separate defenses respecting the two California cases pleaded by way of res
adjudicata; (2) the court erred in its refusal to admit in evidence exemplified copies of the
pleadings, findings, and judgments in said California cases; (3) the evidence is insufficient to
support the trial court's findings of facts, and that the court erred in denying the appellant's
motion for new trial.
55 Nev. 157, 163 (1934) Snyder v. Snyder
1, 2. Both upon the weight of reason and the preponderance of the authorities, we shall
decline to consider the assignment that the court below committed error in sustaining the
respondent's demurrer to the defendant's separate defenses as hereinabove set out. A new trial
is defined by statute to be a reexamination of an issue of fact in the same court after a trial
and decision by a jury, court, or referee. Section 8875 N. C. L. Being a reexamination of an
issue of fact, it is well settled that errors in rulings upon demurrers to pleadings cannot be
reviewed on motion for new trial. Hayne New Trial and Appeal, Revised Edit., vol. 1, sec. 7,
and cases cited. It is manifest that this is the correct principle to be applied in this case. The
record discloses that after the ruling upon the demurrer the appellant, though privileged so to
do, did not amend her answer, and upon the issues, joined upon the pleadings, a trial and
decision was had. A reversal of the order denying appellant's motion for new trial, with
directions to overrule the demurrer, would result in, not a reexamination of the issues of fact
tried, but in the formation of different issues of fact, or in the determination of the case upon
issues of law. Hayne New Trial and Appeal, supra, and cases cited.
3. For similar reasons we apply the principle to the appellant's second assignment of error,
that the court erred in refusing to admit in evidence exemplified copies of the pleadings,
findings and judgments in the superior court of the city and county of San Francisco, Calif.
The only question which remains for determination is whether or not the evidence is
sufficient to sustain the findings upon which the judgment in this case was rendered. Counsel
for appellant state in their opening brief that an examination of the testimony disproves the
truth of the averments contained in the plaintiff's complaint respecting the impotency of the
appellant, and that the greater weight of testimony upon the trial was with the appellant.
Counsel further state that they are mindful of the delicacy of the question to be determined by
the weight of the evidence, and that it is not their purpose to examine the evidence or
comment upon it in any way whatever, and that they purposely refrain from so doing.
55 Nev. 157, 164 (1934) Snyder v. Snyder
and that it is not their purpose to examine the evidence or comment upon it in any way
whatever, and that they purposely refrain from so doing. This places this court in the position,
without the aid of counsel, to review the testimony, both oral and documentary, and
determine, not as to the weight of the evidence, but whether or not there is any evidence of a
substantial character as to support the trial court's findings. We have examined the bill of
exceptions, containing all of the evidence, with great caution, and reach the conclusion that
the order denying and overruling appellant's motion for new trial should be affirmed.
It is so ordered.
____________
55 Nev. 164, 164 (1934) Schmaling v. Johnston
SCHMALING v. JOHNSTON Et Al.
No. 2950
January 4, 1934. 27 P.(2d) 1059.
1. Appeal and Error.
Exception to court's ruling overruling plaintiff's objection to question was unnecessary, since ruling
sustaining or overruling objection to evidence is deemed excepted to (Comp. Laws 1929, sec. 8874).
2. Chattel Mortgages.
In suit to foreclose chattel mortgage, identity of cattle mortgaged held for jury.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
On rehearing. Former judgment affirmed.
For former opinion, see 54 Nev. 293, 13 P.(2d) 1111.
OPINION
By the Court, Sanders, C. J.:
F. W. Schmaling, deceased, commenced an action in the court below against J. H.
Johnston to foreclose two certain chattel mortgages upon separate and distinct herds of dairy
cattle upon said Johnston's ranch near Fallon in Churchill County, Nevada. The plaintiff
joined as defendant certain fictitiously-named persons who, he alleged, claimed to have
some right or interest in the mortgaged property.
55 Nev. 164, 165 (1934) Schmaling v. Johnston
joined as defendant certain fictitiously-named persons who, he alleged, claimed to have some
right or interest in the mortgaged property. It appears that the plaintiff prayed injunctive
relief, and that on the preliminary hearing of the injunction matter both the plaintiff and the
defendant, Johnston, testified. The record discloses that the churchill County Bank of Fallon,
Nevada, was substituted as defendant for the defendant John Doe. While the action was
pending, on, to wit, November 30, 1928, F. W. Schmaling was gored to death by a Jersey
bull, probably the one mentioned in one of his mortgages. After-ward his widow, Lizzie
Schmaling, qualified as administratrix of his property and estate. As such administratrix she
filed in the original cause a second amended and supplemental complaint. Paragraph 11 of the
complaint reads as follows:
That at the time of filing the original complaint herein the mortgaged cattle referred to
above, together with their increase, were situated upon the Johnston ranch premises in
Sections 23 and 24, Township 19 North, Range 29 East, M. D. B. & M., Churchill County,
Nevada; that said cattle were pointed out to mortgagee by J. H. Johnston on the date that
service of summons and a copy of the original complaint was made upon him; that
subsequent to said date and prior to October 10th, 1928, defendant, Churchill County Bank,
seized a portion of the stock referred to above and described in Exhibit A', attached hereto
and made a part hereof to which reference is hereby made; that said Churchill County Bank
took said cattle from the premises of J. H. Johnston, the mortgagor, and brought the same to
what is known as the George Ernst Ranch in Churchill County, Nevada, claiming to have
some right, title or interest in and to said mortgaged cattle; that the portion of the mortgaged
cattle taken by said Churchill County Bank and claimed by it, consisted and consists of the
following. * * *
The defendant Churchill County Bank answered the complaint, and for answer alleged as
follows: (1) Denies all matters contained in paragraph 11, commencing on page 5 thereof;
{2) denies all matters contained in paragraph 9, commencing on page 9 thereof.
55 Nev. 164, 166 (1934) Schmaling v. Johnston
all matters contained in paragraph 11, commencing on page 5 thereof; (2) denies all matters
contained in paragraph 9, commencing on page 9 thereof. Default judgment was entered
against the defendant J. H. Johnston for his failure to answer said complaint. The issues thus
framed were tried to the court with the assistance of a jury. Upon the conclusion of the
testimony, the case was submitted to the jury under instructions, together with special
interrogatories. The general verdict and the answer to said interrogatories was favorable to the
defendant Churchill County Bank. The plaintiff filed notice for her intention to move for new
trial upon the ground of the insufficiency of the evidence to justify the verdict and that the
same was against law and for errors of law occurring at the trial and excepted to by the
plaintiff, and upon the further ground of newly discovered evidence. While the motion for
new trial was pending, each of the parties submitted to the court for its approval proposed
findings of fact and conclusions of law and forms of judgment. Afterward the motion for new
trial was denied and overruled, and upon court order the findings of fact and conclusions of
law and the form of judgment as proposed by the defendant bank were adopted. In its findings
the court adopted the general verdict of the jury and the so-called special verdict, which read
as follows:
We, the jury in the above-entitled case, find for the Plaintiff as to the following described
cattle, which we find to have been covered by one or both of the Schmaling mortgages,
namely: Five of the youngest heifers not identified positively as to lineage and we find for the
defendant Churchill County Bank as to the following described cattle, which we find not to
have been included in one or both of the Schmaling mortgages, namely: Nineteen head
including cows, older heifers and balance of younger heifers taken to Ernst Ranch.
1. Do you find that cattle were removed from the ranch of J. H. Johnston, one of the
defendants in this case, to the ranch of George Ernst after the plaintiff had served defendant
J. H. Johnston with foreclosure proceedings?
55 Nev. 164, 167 (1934) Schmaling v. Johnston
had served defendant J. H. Johnston with foreclosure proceedings? Answer: Yes.
2. Do you find that said cattle or any of them so removed from the said Johnston ranch
were removed by the Churchill County Bank, a corporation, one of the defendants herein, or
its agents? Answer: Yes.
3. Do you find that said cattle or any of them so removed from the said Johnston ranch
were or are cattle covered by the said mortgages given by defendant J. H. Johnston to F. W.
Schmaling? Answer: Yes.
4. If you answer Special Issue No. 3 in the affirmative, then which or what number of
said cattle removed from the said Johnston ranch by said Churchill County Bank were
covered by the mortgages of F. W. Schmaling? Answer: Five younger heifer calves.
5. Do you find that the cattle delivered by defendant J. H. Johnston to Eugene Raker were
returned to defendant J. H. Johnston by Eugene Raker? Answer: Yes.
6. Do you find that any of the increase of the cattle delivered to Eugene Raker by
defendant J. H. Johnston were returned to defendant J. H. Johnston by Eugene Raker?
Answer: Yes.
7. Do you find that any of the cattle delivered by defendant J. H. Johnston to Eugene
Raker were at the time of such delivery covered by the mortgages which he, Johnston, had
previously executed to F. W. Schmaling? Answer: No.
8. If your answer to Special Issue No. 7 be in the affirmative, then which or what number
of said cattle so delivered by defendant J. H. Johnston to Eugene Raker were covered by
mortgages which he, defendant Johnston, had previously executed to F. W. Schmaling?
Answer: .
Afterward the plaintiff gave separate notices of appeal from the order denying her motion
for new trial and from that portion of the judgment based upon the general verdict of the jury.
On September 14, 1932, the appeal from the judgment was affirmed. 54 Nev. 293, 13 P.(2d)
1111. The appellant petitioned the court for a rehearing of the cause, which was granted, and
the case was reargued and again submitted.
55 Nev. 164, 168 (1934) Schmaling v. Johnston
was granted, and the case was reargued and again submitted.
I being credited with the authorship of the former opinion, the case was reassigned to me
for an opinion on rehearing.
1. The court erroneously stated in the former opinion (syllabus 1) that: Where no
exception was taken to ruling of court overruling plaintiff's objection to question, plaintiff is
not entitled to have point considered on appeal. This holding was error. Under section 376 of
our civil practice act as amended in 1915, N. C. L. sec. 8874, a ruling sustaining or overruling
an objection to evidence is deemed to have been excepted to.
2. The former opinion correctly states that: The real question for the jury to decide was
that of identifying the respective bunches of cattle, and their increase. We have set out herein
an enlarged statement of the issues, the general verdict and special findings of the jury, in
order to show that as between the plaintiff and the defendant Churchill County Bank the jury
did not misapprehend the issues or the conflicting testimony as to the question of the identity
of the cattle claimed by the plaintiff and alleged to have been seized by the defendant bank.
The question of fact of the identity of the cattle was peculiarly one for a jury to determine,
and we adhere to the conclusion reached in the former opinion that we cannot say that the
evidence does not sustain the verdict and findings of the jury, adopted by the court as its own
findings.
Because of the earnestness and the assiduity with which the case has been presented, we
have gone into the record to see if the appellant was deprived of a fair and impartial trial in
any respect, or of any substantial right, by the rulings contained in the former decision. We
have carefully read and examined the record, with the result that we adhere to the former
decision and now adjudge that the order denying and overruling the appellant's motion for a
new trial be and is sustained and that the judgment appealed from be and is again affirmed.
____________
55 Nev. 169, 169 (1934) Ex Parte Esden
Ex Parte ESDEN
No. 3050
January 5, 1934. 28 P.(2d) 132.
1. Threats.
Essential ingredient of crime of blackmail is intent to extort money or property or to accomplish other
acts enumerated in statute, by means enumerated (Comp. Laws 1929, sec. 10423).
2. Threats.
Information charging that accused feloniously demanded $100 in letter and threatened to disgrace
addressee, though not charging intent to extort money, held sufficient since words used conveyed same
meaning (Comp. Laws 1929, secs. 10423, 10856).
3. Indictment and Information.
Information that accused feloniously demanded money from addressee of letter held sufficient because
not negativing contention that accused merely threatened to expose addressee because not paying bills to
accused (Comp. Laws 1929, secs. 10423, 10856).
4. Indictment and Information.
Objection that information was not signed by district attorney is waved by failure to make motion to set
information aside (Comp. Laws 1929, secs. 11328, 10888, 10889).
5. Indictment and Information.
Information in prosecution for blackmail held not invalid though filed by deputy district attorney
(Const. art. 1, sec. 8, amended in 1912; Comp. Laws 1929, sec. 4848).
Application by Henry W. Esden for writ of habeas corpus. Writ denied.
Ernest S. Brown and Talmage L. Smith, for Petitioner.
Melvin E. Jepson, District Attorney, and A. P. Johnson, Deputy District Attorney, for
Respondent.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in habeas corpus.
Petitioner sets forth in his application for the writ that he is unlawfully committed,
detained, and restrained of his liberty in the Washoe County jail at Reno, Nevada, under
sentence of six months upon a judgment rendered in the district court.
55 Nev. 169, 170 (1934) Ex Parte Esden
restrained of his liberty in the Washoe County jail at Reno, Nevada, under sentence of six
months upon a judgment rendered in the district court. It appears therefrom that petitioner
was tried upon an information in said court for a public offense and found guilty by the
verdict of a jury. The information, omitting title of court and cause, reads:
Melvin E. Jepson, District attorney within and for Washoe County, State of Nevada, in
the name and by the authority of the State of Nevada, informs the above-entitled court that
Henry W. Esden, the defendant above named, has committed a felony, to-wit: Blackmail in
the manner following: That the said defendant on the 17th day of October, A. D. 1933, or
thereabouts and before the filing of this information, at and within the County of Washoe,
State of Nevada, did, then and there, willfully, intentionally, and feloniously, make a demand,
by letter addressed to and delivered by mail to Mrs. Emma Cowles, 547 Arlington Avenue,
Reno, Nevada, that she pay defendant the sum of $100.00, said letter containing threats to
disgrace the said Emma Cowles.
All of which is contrary to the form of the statute, etc.
Melvin E. Jepson, District attorney of Washoe County, by A. P. Johnson, Deputy.
1, 2. It is insisted first that petitioner's imprisonment is illegal because the information
upon which he was tried and convicted does not state facts sufficient to constitute a public
offense in that it does not charge in the language of the statue or in words of similar import
that the letter alleged in said information to have been written by him was written with intent
to extort or gain money, which is an essential element of the crime of blackmail. We think the
contention is not well taken. The statute under which petitioner was prosecuted reads:
Every person who, with intent thereby to extort or gain any money or other property or to
compel or induce another to make, subscribe, execute, alter or destroy any valuable security
or instrument or writing affecting or intended to affect any cause of action or defense, or
any property, or to influence the action of any public officer, or to do or abet or procure
any illegal or wrongful act, shall threaten directly or indirectly
55 Nev. 169, 171 (1934) Ex Parte Esden
intended to affect any cause of action or defense, or any property, or to influence the action of
any public officer, or to do or abet or procure any illegal or wrongful act, shall threaten
directly or indirectly
1. To accuse any person of a crime; or,
2. To do an injury to any person or to any property; or,
3. To publish or connive at publishing any libel; or,
4. To expose or impute to any person any deformity or disgrace; or,
5. To expose any secret, shall be punished, etc. Section 10423 N. C. L.
An essential ingredient of the crime of blackmail as defined by the statute is the intent to
extort or gain money or property, or to accomplish any of the other things mentioned, by any
of the means enumerated therein. The intent to do so is the gist of the offense. The
information does not expressly state this essential element, but if it contains words conveying
the same meaning, it is sufficient. Section 10856 N. C. L.; State v. Mills, 52 Nev. 10, 279 P.
759.
The section cited provides: Words used in a statute to define a public offense need not be
strictly pursued in the indictment or information, but other words conveying the same
meaning may be used.
We think it contains such words. It would be difficult for a person of common
understanding to read the charge in the information that the defendant did make a demand by
letter addressed to and delivered by mail to Mrs. Emma Cowles that she pay the sum of $100,
said letter containing threats to disgrace her, without getting the idea that he intended to
extort or gain money by this method.
3. It is argued that the information does not negative the supposed case that Emma Cowles
owed him $100 and that his threat to disgrace her merely meant that he would proclaim her as
one who did not pay her bills. This refinement is met by the charge in the information that the
act was done feloniously.
This court, in State v. Switzer, 38 Nev. 108, 145 P.
55 Nev. 169, 172 (1934) Ex Parte Esden
925, held that the use in an indictment of the word feloniously was a sufficient averment of
the intent necessary to constitute the crime of robbery. In that case the court, quoting
approvingly from state v. McKiernan, 17 Nev. 224, 30 P. 831, said: The technical exactness
which existed under the rules of the common law has been superseded by statutory
provisions, and it is now sufficient if the offense is clearly and distinctly set forth in ordinary
and concise language * * * in such a manner as to enable a person of common understanding
to know what is intended.'
Viewed in this way the information is not deficient in stating the public offense of
blackmail.
4, 5. Defendant contends that the information is fatally defective and petitioner's
imprisonment consequently illegal, because the information was not filed by the district
attorney of Washoe County. The contention is based upon section 8, article 1, of the state
constitution, which, with certain exceptions, provides that no person shall be tried for a
capital or other infamous crime except on presentment or indictment of the grand jury, or
upon information duly filed by a district attorney or attorney-general of the state. The act
providing for the prosecution of certain public offenses by information provides that the
district attorney's name shall be subscribed to an information by himself or his deputy. Sec.
11328 N. C. L. The latter method was adopted as to the information before us.
If the subscription was not proper because of the amendment of section 240 of the criminal
practice act (section 10888 N. C. L.), which provides that an information may be set aside on
motion for the reason that it was not subscribed by the district attorney of the county, the
objection was waived by the failure of petitioner to make such motion. Section 10889 N. C.
L.
Although the district attorney's name was subscribed to the information by his deputy, it
does not appear which of the officers filed it. But assuming that it was filed by the deputy, we
are of the opinion that such filing does not come in collision with section S, article 1, of the
state constitution which authorizes criminal trials in the cases mentioned by information.
55 Nev. 169, 173 (1934) Ex Parte Esden
does not come in collision with section 8, article 1, of the state constitution which authorizes
criminal trials in the cases mentioned by information. That part of the section became
effective by amendment to the constitution in 1912.
For half a century prior to the adoption of the amendment it had been the law of this state
by statute that prosecuting attorneys or district attorneys were authorized to appoint deputies
with power to transact all business pertaining to the office. Stats. 1864, p. 143. State v.
Harris, 12 Nev. 414. The above statute provides: All prosecuting attorneys * * * are hereby
authorized to appoint deputies, who shall have power to transact all official business
appertaining to said offices, to the same extent as their principals.
The statute has remained unchanged in this respect to this day. Section 4848 N. C. L.
District attorneys are prosecuting attorneys. State v. Harris, supra. Their power to appoint
deputies, having the same authority as reflected by this law through all of this time, has never
been questioned. It has been a recognized policy of official business and criminal procedure,
which has greatly facilitated the discharge of public duty in the important office of district
attorney.
In view of the unchanged state of the law on this subject over a great period of time, and
the comparatively recent amendment to the constitution, we cannot believe that it was
intended by the words filed by the district attorney to exclude the doing of the act by his
deputy. Moreover, the very literal construction contended for by petitioner would prevent the
deputy from acting in this regard when his principal was unable to act by reason of sickness
or absence, a condition clearly at variance with the purpose of the amendment. A liberal
construction will give effect to that purpose. We hold, therefore, that the filing of an
information by a deputy district attorney has the same force and validity as if filed by his
principal.
The writ of habeas corpus is denied.
____________
55 Nev. 174, 174 (1934) Jackson Et Ux v. Spellman
In Re JACKSON Et Ux v. SPELLMAN
No. 3013
January 5, 1934. 28 P.(2d) 125.
1. Adoption.
Adoption of minor children by their mother and her second husband, without consent of their father, from
whom mother was granted divorce for cruelty by decree awarding her children's custody, with reservation
of certain rights to father, held invalid, notwithstanding statutory exception (Comp. Laws 1929, sec. 9478).
Comp. Laws 1929, sec. 9478, prohibits adoption of legitimate child without consent of its
parents, if living and known, but provides that consent of parent divorced for adultery, cruelty, or
abandonment is unnecessary.
2. Adoption.
Child may be adopted in common-law state only by virtue of statute.
3. Adoption.
Statute authorizing adoption of child without consent of parent divorced for cruelty should be strictly
construed in such parent's favor as in derogation of common law (Comp. Laws 1929, sec. 9478).
4. Adoption.
Natural parent's consent to child's adoption lies at foundation of adoption statute and may be dispensed
with only when letter and spirit of statute show such plain intention of legislature (Comp. Laws 1929, sec.
9478).
5. Adoption.
Adoption statute, open to construction and interpretation, should be construed, and every intendment
taken, in favor of natural parent, not consenting to adoption (Comp. Laws 1929, sec. 9478).
6. Adoption.
Consent of spouse, from whom divorce was granted for cruelty, to adoption of spouses' minor children,
can be dispensed with only when children's custody is awarded to innocent party absolutely, without
reserving any rights in guilty spouse (Comp. Laws 1929, sec. 9478).
7. Adoption.
Adoption statute provides for court proceeding and hence authorizes district court to set aside order of
adoption, though statute refers to tribunal given jurisdiction as district judge (Comp. Laws 1929, sec.
9478).
Legislature often uses words court and judge of the court and words district court and
judge of the district court without discrimination.
55 Nev. 174, 175 (1934) Jackson Et Ux v. Spellman
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Proceeding by David D. Jackson and wife to adopt John Franklin Spellman and another,
minors. From an order vacating an order of adoption on the motion of Howard Hilton
Spellman, petitioners appeal. Affirmed.
H. H. Atkinson and Cooke & Stoddard, for Appellants:
Concededly, the adoption proceedings in the instant case were in full conformity with the
statute. No notice was required by the statute to be given to the father. His consent was by the
statute expressly dispensed with because of the final decree entered by the same judge that
granted the adoption order, adjudging the father to have been guilty of cruelty and for such
cause divorced.
An adoption order is not a judicial act or exercise of judicial power. In re Johnson Est.
(Cal.), 33 P. 460; In re Stevens Est. (Cal.), 23 P. 379; 39 Am. St. Rep. 211, 212, note; In re
Williams Est. (Cal.), 36 P. 407, 41 Am. St. Rep. 163; 1 R. C. L. 602, sec. 10; 1 R. C. L. 598,
sec. 6.
An order of adoption is conclusive on the judge making it, and neither the judge nor a
court has jurisdiction to modify it, etc., and his and its jurisdiction and power is ended over
the matter when the order is made. 1 C. J. 1382, sec. 46; Matter of Bush (Kans.), 27 P. 1003;
1 C. J. 1387, sec. 77; Younger v. Younger (Cal.), 39 p. 779; In re Darling (Cal.), 159 P. 606;
Ex parte Henry (Okla.), 265 P. 105; In re Hughes (Okla.) 213 P. 79.
The adoption statute is a special proceeding, for a special purpose, and before a special
tribunal, not the court, but the district judge. Adoption proceedings cannot be an action,
because not embraced within the definition of action (sec. 8500 N. C. L.). There is no
plaintiff and no defendant (sec. 8501 N. C. L.); no issue is made by pleadings; there is no
real party in interest (sec. 8543 N. C. L.). It is not commenced by the filing of a complaint
and issuance of a summons thereon {sec.
55 Nev. 174, 176 (1934) Jackson Et Ux v. Spellman
by the filing of a complaint and issuance of a summons thereon (sec. 8573 N. C. L.). See,
also, 7 Words and Phrases, p. 6586 et seq.; 1 C. J. 1380.
Thatcher & Woodburn, for Respondent:
The supreme courts of California and Washington have held under facts like those in the
case at bar that the divorced parent must give his consent before adoption can be effected. In
re Cozza (Cal.), 126 P. 161; In re Lease (Wash.), 169 P. 816.
Under the Nevada statute it was the obvious purpose of the Legislature to place in the
hands of the district court a special judicial function; that is, supervision over the adoption of
children; and the use of the words district judge instead of district court is not necessarily
controlling. Sartin v. Snell, 87 Kan. 485, 125 P. 47. It is respondent's contention that the
adoption proceedings and the hearings held therein are, under our statute, a part of the
jurisdiction of the district court, and the orders therein entered are such as can be set aside in
the same manner as in other judicial proceedings. The following cases illustrate the rule in
other states that where an adoption order has been made which is for any reason invalid, the
same may, like any other order of a court of record, be corrected on motion, especially in
view of statutes which allow an order to set aside on the ground of mistake or excusable
neglect. Bell v. Krauss (Cal.), 146 P. 874; In re Force (Wash.), 193 P. 698; 1 C. J. 1391; In re
Moore, 132 N. Y. Sup. 249; In re Johnston, 137 N. Y. Sup. 92.
OPINION
By the Court, Ducker, J.:
This is an appeal from an order made by the Second judicial district court, by which a
previous order of said court permitting David D. Jackson and Helen Lownes Jackson, his
wife, to adopt John Franklin Spellman and Howard Hilton Spellman, Jr., was vacated, set
aside, and declared a nullity.
55 Nev. 174, 177 (1934) Jackson Et Ux v. Spellman
Spellman and Howard Hilton Spellman, Jr., was vacated, set aside, and declared a nullity.
The following is a summary of the facts:
Appellant Helen Lownes Jackson and respondent, Howard Hilton Spellman, were formerly
husband and wife. Two children were born of their marriage. The parents separated in New
York state and thereafter a certain agreement was entered into between them concerning the
children. After the execution of this agreement the appellant Helen Lownes Jackson came to
Reno, Nevada, and took up her residence at that place. On March 26, 1932, she obtained a
decree of divorce from respondent upon the ground of cruelty. Respondent appeared in the
action by attorney.
In the action for divorce the said agreement was confirmed, ratified, and approved by the
court and made a part thereof. The agreement provided in part that she should have the sole
custody and control of the two minor children, provided, however, that respondent should
have the right to visit and see said children during six stated periods in each year, the dates
for the beginning of each of said periods being specifically set forth in the agreement. It was
further provided that, if she took up her abode more than 300 miles from New York City, the
respondent had the right to cumulate his visits so as to enable him to see the children for the
same number of days per year, either at one time or at several times. In addition to the
foregoing, the agreement provided that the respondent should have the right to communicate
with the children by letter at any time, and in his discretion at reasonable times by telephone
or telegraph. It further provided that the wife should notify the husband of any serious illness
of either of the children, and in such event permit him to visit them. It further provided that
the wife should notify the husband of any important change in the plan of education of the
children and permit the husband to have the opportunity to express his opinion in reference
thereto. Another provision was that the husband and wife agreed, each for himself or herself,
that neither would ever, by word or deed, endeavor to alienate the feelings of the children
for the other parent.
55 Nev. 174, 178 (1934) Jackson Et Ux v. Spellman
would ever, by word or deed, endeavor to alienate the feelings of the children for the other
parent.
The agreement also contained a provision for the support and maintenance of the children.
The husband has kept and performed the conditions on his part to be performed in regard to
their support.
On the 21st day of April, 1932, appellant and David D. Jackson, her coappellant, were
married in the town of Austin, State of Nevada, and are now husband and wife. On the 21st
day of June, 1932, appellants petitioned the Second judicial district court of the State of
Nevada for leave to adopt the said minor children, John Franklin Spellman and Howard
Hilton Spellman, Jr. An agreement to adopt said children executed and acknowledged by
appellants was filed in said proceeding on the same day. At the same time a written consent to
such adoption, executed and acknowledged by appellant Helen Lownes Jackson, was filed in
the proceeding. The agreement to adopt was approved by the court and ordered filed with the
county clerk of Washoe County, Nevada. On the same day an order of adoption was made by
the court, under and by virtue of which the appellants, David D. Jackson and Helen Lownes
Jackson, adopted said minor children, whose names were by said order changed to John
Franklin Jackson and Howard Hilton Jackson.
The consent of respondent was not had in the foregoing proceedings and he had no notice
thereof until some time thereafter.
On the 23d day of August, 1932, after notice of motion duly given, respondent moved the
court for an order setting aside said order of adoption. The motion was resisted by appellants.
After a hearing which extended over several days and during which the parties testified and
introduced evidence, the court made and entered the order appealed from.
The order vacating and declaring null and void the order permitting appellants to adopt the
minor children was made by the court upon the ground that respondent was entitled to notice
of the adoption proceedings.
55 Nev. 174, 179 (1934) Jackson Et Ux v. Spellman
1. Appellants contend that neither notice to respondent nor his consent was necessary
under the circumstances of the case. They rely upon a provision of an act to provide for the
adoption of children under which the adoption proceedings were had. The provision reads, in
part: A legitimate child cannot be adopted without the consent of its parents, if they be living
and known; * * * provided, however, that such consent is not necessary in the following
cases, to wit: * * * 2. From a father or mother adjudged guilty of adultery or cruelty or
abandonment, and for any such cause divorced. Section 9478 N.C.L.
Respondent contends that the provision cannot be construed to dispense with his consent
or notice to him, and, if construed to the contrary, it is unconstitutional in that it violates
section 1 of the fourteenth amendment to the constitution of the United States, and section 8
of article 1 of the Nevada constitution. We need not consider the constitutional objection for
we conclude that under the facts of this case the consent of respondent was absolutely
essential to the validity of the adoption.
2. The adoption of a child is a proceeding that had its origin in the civil law. It was
unknown to the common law of England and exists in those states having that law as the
basis of their jurisprudence only and by virtue of statute.
3. Consent of the parents to the adoption of a legitimate child is a most important item of
adoption procedure. Under our statute it is specially required to make the adoption legally
effective, unless the case falls within one of the exceptions prescribed in the statute itself as
sufficient ground for dispensing with parental consent. We are concerned only with the
exception, stated, namely, where a father or mother has been adjudged guilty of cruelty and
for such cause divorced. If we were to construe this provision literally, then the consent of
respondent to the adoption would be unnecessary and the adoption valid without it. But the
nature of the proceedings forbids us to so construe it with reference to the facts of this
case.
55 Nev. 174, 180 (1934) Jackson Et Ux v. Spellman
of the proceedings forbids us to so construe it with reference to the facts of this case. The act
of adoption takes a child away from its parent by destroying the legal and natural relation
between them and creating in its stead an artificial relation deemed by law to be for the best
interests of the child. It is in derogation of the common law which regards the natural rights
of the parents to be of a sacred and enduring character. As the statute confers a special power
of this kind which may be exerted in opposition to the wishes, or without the consent of the
parents, it should be strictly construed in their favor. The courts are quite uniform in applying
the rule of strict construction in favor of the parents' natural rights in adoption proceedings.
This was the construction placed upon section 224 of the Civil Code of California by the
courts of that state in Re Cozza, 163 Cal. 514, 126 P. 161, 165 Ann. Cas. 1914a, 214. This
section of the code is practically the same as the provision of our statute under consideration.
In that case the mother had been divorced on the grounds of cruelty. A child of the divorced
parents was adopted. The mother appeared and opposed the proceedings. The order of
adoption made in the lower court was reversed. In the course of its opinion the supreme court
said:
Appellant herethe mothercontends that this is not the proper construction to be given
to the section, and that, if it is to be so construed, it is, as far as it attempts to deprive her of
the right to the custody of her children judicially awarded her by the decree of divorce
without notice or her consent, unconstitutional, as depriving her of a vested right to her child
without due process of law.
There is no necessity for considering this constitutional objection, because we do not
think the section is subject to the literal construction which the superior court placed upon it.
Such a superficial interpretation is not permissible, when the spirit of our laws and the
particular purpose of the enactment of the section respecting consent and the power of courts
to divorce proceedings over the custody of the children of the marriage are considered.
55 Nev. 174, 181 (1934) Jackson Et Ux v. Spellman
proceedings over the custody of the children of the marriage are considered.
In the latter proceeding the court has power and authority to make such orders as it may
deem necessary and proper for the custody of the children of the marriage, without being
constrained in any respect by the cause for which the divorce is granted, and may at any time
vacate or modify such order. While section 224 provides generally that consent shall not be
necessary to the adoption of children of the marriage from the parent against whom the decree
is granted on the ground of cruelty, the section stops there. It does not assume to interfere
with the orders of the court in divorce proceedings as to the custody of children, or, as said in
Miller v. Higgins, 14 Cal. App. 161, 111 P. 403, 405, speaking generally of this section 224:
This section does not undertake, nor is it intended, to modify the other sections of the Code,
dealing specifically with the right of custody.'
What is meant by this section, and what was intended by the Legislature, it having in
mind the natural rights of parents, as also the authority of courts in divorce proceedings to
award the custody of children to either spouse, was that when a divorce is granted for cruelty
(we are only concerned with this ground here), and the custody of the children is awarded
absolutely to the innocent party, the consent of the guilty one will not be required in adoption
proceedings. It contemplates that by decree of court in such proceedings the court has
deprived the guilty spouse of all right to such custody, and awarded it absolutely to the
innocent party. That this is the proper interpretation of the section we think reasonably
appears from the language used in the section in this same connection as to consent and with
reference to other proceedings than in divorce, where it is provided that, when the parent has
been judicially deprived' of the custody of the children on account of cruelty or neglect, the
consent of such parent is not necessary. The Legislature, in providing a method for adoption,
whereby the legal ties between the parent and the child should be absolutely severed, could
not have intended to interfere with the authority of the court in other proceedings
involving the custody of the child, or that the decree of a court in a divorce proceeding
which awarded such custody to the guilty spouse should be entirely ignored."
55 Nev. 174, 182 (1934) Jackson Et Ux v. Spellman
the child should be absolutely severed, could not have intended to interfere with the authority
of the court in other proceedings involving the custody of the child, or that the decree of a
court in a divorce proceeding which awarded such custody to the guilty spouse should be
entirely ignored.
It will be seen that the court in the above case declined to construe the statute literally and
held that it did not apply except in a case where the custody of the children had been given
absolutely to the innocent spouse. A similar view was taken by the court in Re Lease, 99
Wash. 413, 169 P. 816, 818. The statute construed by the former court provided that, if
parents are living separate and apart, the consent of both (consent to adoption) is not required,
but such consent may be given by the parent having the care, custody, and control of such
child. The custody of the child subsequently adopted had been awarded to its mother by
decree of divorce. The adoption was had with her consent but without the consent of the
father. The court, in the course of its opinion, after approving the reasoning in Re Cozza,
supra, said:
Now, recurring to the italicized portion of our statute above quoted, it might seem, when
read superficially apart from the evident spirit, that, when the care and custody of a child is
given to one parent by a divorce decree, the consent of such parent alone would be sufficient
to authorize the adoption of such child by another. But when we are reminded of the
conclusive and far-reaching effect of an adoption decree, and that it is not a mere custody
decree like in a guardianship or other similar proceeding, every consideration of fairness to
the natural parents dictates that the provisions of our statutes prescribing the conditions under
which consent may be dispensed with should receive a strict construction. We are of the
opinion that, to enable one parent having custody and control of a child to effectually consent
to its adoption by another, such custody and control must be of such an absolute and
unconditional nature that the other parent's right in the child is extinguished, or the other
parent's conduct is such as to estop him or her from asserting such right.
55 Nev. 174, 183 (1934) Jackson Et Ux v. Spellman
is such as to estop him or her from asserting such right. Let us suppose that pending a divorce
action, when, of course, the husband and wife are supposed to be living separate and apart,
one or the other be given the temporary custody and control of their minor child. To give the
statute the literal meaning contended for by counsel for appellant would enable the parent so
having the custody and control of the child to effectually consent to its adoption by another.
We cannot believe that such is the legislative intent. (Italics ours.)
4. The forgoing cases are illustrative of the strict construction which courts place upon the
provisions in adoption statutes which dispense with the consent of a child's parents. The
consent of the natural parents lies at the foundation of statutes of adoption. 1 Cal. Juris. p.
436. It ought not to be dispensed with in response to the mere letter of a statute, but only
when its letter and spirit conjoin in showing that such was the plain intention of the
legislature.
5. Every intendment should be in favor of the claim of the parent and where the statute is
open to construction and interpretation it should be construed in support of a natural parent.
In re Cozza, supra; 1 Cal. Juris. p. 437.
It is true that in the case last cited the custody of the child had been awarded to the guilty
party in the divorce action, whereas here, the custody was awarded to the innocent party. But
that difference does not distinguish the case in principle from the instant case. Section 224
does not prescribe any exception as to the necessary consent contingent on the custody of the
child.
6. In the case before us the custody of the children was not of such an unconditional
character as to divest the respondent of all paternal rights. His rights were recognized in the
decree in accordance with the agreement between the mother and fatherthe right of
visitation to enjoy the society of his children; the right to communicate with them by letter,
telephone, or telegraph; the right to come to them in case of serious illness; the right to have a
voice in any plan for their education; the right to support and maintain them; and the right to
remain secure in their feelings of affection.
55 Nev. 174, 184 (1934) Jackson Et Ux v. Spellman
and the right to remain secure in their feelings of affection. These rights flowing from the
family relation, guaranteed by the solemn written engagement of the father and mother and
secured in the decree of divorce, were all more or less violated by the order of adoption. We
can conceive of few circumstances more calculated to alienate the feelings of a child for a
father than to destroy the family relation between them and to give it a new father created by
law, yet such is the ruthless effect of the adoption in this case. We cannot construe the statute
as intending that a valid adoption could be effected in such a situation. More precisely, we are
of the opinion that where a divorce is granted for cruelty and the innocent spouse is awarded
the custody of the children (as in this case), consent of the guilty spouse can only be
dispensed with in a proceeding for adoption of such children when the custody is awarded to
the innocent party without reserving any rights whatever in the guilty spouse. The custody
must be absolute. To conclude otherwise would be to attribute to the legislature a very slight
regard for the great domestic relation of parent and child. As previously stated, consent lies at
the foundation of adoption statutes. It is so with our statute. The order of adoption in this case
was void because made without the consent of respondent.
7. There is nothing in appellant's contention that the adoption proceedings were not
judicial proceedings and that the court therefore had no authority to set aside the order of
adoption. If their contention were allowed, then the order of adoption would be void for the
reason, as the record shows, that the adoption proceedings were all court proceedings. The
district judge under the statute does exercise judicial functions. He hears witnesses testifying
under oath and from the evidence determines and adjudges what is for the best interests of the
child. The order of adoption is entered in the minutes of the district court of the county where
the proceedings are had.
Unless the district judge exercises judicial functions and is acting as a court in adoption
proceedings, the adoption statute is unconstitutional, for the constitution confers
exclusive original jurisdiction over the persons of minors on district courts.
55 Nev. 174, 185 (1934) Jackson Et Ux v. Spellman
and is acting as a court in adoption proceedings, the adoption statute is unconstitutional, for
the constitution confers exclusive original jurisdiction over the persons of minors on district
courts. That the legislature referred to the tribunal as a district judge is of no consequence. As
said in Sartin v. Snell, 87 Kan. 485, 125 P. 47, 49 Ann. Cas. 1913e, 384: The Legislature
often uses the words court' and judge of the court,' district court' and judge of the district
court,' without discrimination. Whenever the power or duty imposed is found, from a
consideration of the object and purposes of the act, to be one which is more properly the
function of the court, it will be so construed. * * *
Miss Peck, in her work on adoption laws in the United States, considers our statute on
adoption as conferring jurisdiction on the district court. She says: In Nevada jurisdiction in
adoption and jurisdiction in juvenile-court cases go into separate sessions of the district
court. Adoption Laws in the United States, by Emelyn Foster Peck, Bureau Publication No.
148, page 7.
We construe the act to provide for the adoption of children to provide for a court
proceeding.
It is ordered that the order appealed from be and it is hereby affirmed.
On Petition for Rehearing
February 21, 1934.
Per Curiam:
Rehearing denied.
____________
55 Nev. 186, 186 (1934) State Ex Rel. Owens v. Doxey
STATE Ex Rel. OWENS v. DOXEY, Town Clerk
No. 3046
January 5, 1934. 28 P.(2d) 122.
1. Municipal Corporations.
General statute and town charter, if dealing with same subject matter, must be construed together (Comp.
Laws 1929, secs. 1128, 1254, subd. 5, 6085 et seq.; Stats. 1933, c. 95; Const. art. 8, sec. 8, as amended
in 1924).
2. Municipal Corporations.
Where exclusive control over matter is given to municipality by constitution, municipality is exempt from
any control over such matter by subsequent legislative act (Const. art. 8, sec. 8, as amended in 1924).
3. Municipal Corporations.
Municipal legislation pursuant to constitutional authority under home rule charter supersedes inconsistent
legislative acts relating to same subject matter (Comp. Laws 1929, secs. 1128, 1254).
4. Municipal Corporations.
General statute requiring approval of electors for proposed municipal bond issue held inapplicable to
bond issue by town operating under home rule charter; general statute not superseding charter provisions
(Comp. Laws 1929, secs. 1100, 1128, subd. 5, 1248, 1254; Stats. 1933, c. 95; Const. art. 8, sec. 8, as
amended in 1924).
Original Proceeding in mandamus by the State, on the relation of W. C. Owens, against L.
T. Doxey, Clerk of the Town of Carlin, Elko County. Peremptory writ of mandamus
issued.
Milton B. Badt, for Relator:
The 1933 act, if effective, is directly contrary to sec. 3, art. XIX of the Nevada
constitution. The constitution on the one hand states that an initiative measure proposed to the
legislature, passed by it and signed by the governor, is the law of the state. The 1933 act says
that it is not a law.
Where exclusive control over a matter is given to a municipality by the constitution, the
municipality is exempt from any control over such matter by subsequent legislative acts.
Graham v. Mayor of Fresno (Cal.), 91 P. 174; Rothschild v. Bantel (Cal.), 91 P. 803; Loop
Lumber Co. v. Van Loben Sels, 173 Cal. 228, 232, 159 P. 600; Board of Education of
Ardmore v. State ex rel. Best {Okla.), 109 P.
55 Nev. 186, 187 (1934) State Ex Rel. Owens v. Doxey
State ex rel. Best (Okla.), 109 P. 563; North v. McMahan (Okla.), 110 P. 1115.
Gray Mashburn, Attorney-General; W. T. Mathews and Julian Thruston, Deputy
Attorneys-General, for Respondent:
The legislature of Nevada has the power to legislate upon every subject unless such
legislation contravenes the constitution of the United States or is prohibited by the
constitution of Nevada. Gibson v. Mason, 5 Nev. 283; State v. Rhodes, 3 Nev. 240; State v.
Williams, 46 Nev. 270; Moore v. Humboldt County, 48 Nev. 404.
We know of no constitutional inhibitions in the federal constitution relative to the legislative
act in question here, and none is alleged to exist by the relator. And we think that no such
inhibition is contained in our constitution.
OPINION
By the Court, Sanders, C. J.:
This is an original proceeding in mandamus to compel the respondent, L. T. Doxey, as
clerk of the town of Carlin in Elko County, Nevada, to forthwith proceed with the publication
of a certain notice calling for bids for the purchase of $100,000 of bonds of said town for the
establishment and construction of municipal waterworks and sewer system in conformity to
the terms and conditions contained in ordinance No. 15, as enacted and approved by the
board of commissioners of said town.
The matter came on for hearing upon the issues joined on the petition of the relator, W. C.
Owens, a citizen, resident, and taxpayer of said town, and the answer thereto of the
respondent, L. T. Doxey, as clerk of said town. Upon the presentation of the case it was
stipulated that, when the court had reached its decision, its order might be entered and its
opinion be filed at a later date. On November 24, 1933, the court, being advised of its
decision, caused to be made and entered an order granting and ordering a peremptory writ of
mandamus to be issued in accordance with the prayer of the relator's petition.
55 Nev. 186, 188 (1934) State Ex Rel. Owens v. Doxey
mandamus to be issued in accordance with the prayer of the relator's petition. Whereupon the
case was assigned to me for opinion, which follows:
The town of Carlin in Elko County, Nevada, was created, organized, and now operates
under a commission form of government, as provided by statute entitled An Act to provide
for the commission form of government for cities and towns. Stats. 1915, p. 294, c. 192, N.
C. L. sec. 1248 et seq. Section 1 of the act (N. C. L. sec. 1248) provides as follows: Section
1. Any city or town in the State of Nevada may adopt the commission form of government
and frame its own charter therefor.
Section 7 of the act (N. C. L. sec. 1254) reads as follows: Sec. 7. Any city or town
adopting a charter under the provisions of this act shall have all of the powers which are now
or may hereafter be conferred upon incorporated cities and towns by the laws of the state, and
all such powers as are usually exercised by municipal corporations of like character and
degree, whether the same shall be specifically enumerated in this act or not.
Section 8 of the act (N. C. L. sec. 1255) provides for amendments to the charter by
referendum election.
We are in the dark as to the charter framed and adopted by the town of Carlin under said
act, but the ordinance under review, No. 15, is attached to and made a part of the relator's
petition for the writ. It appears that the board of commissioners of said town, in the enactment
and the adoption of ordinance No. 15, availed itself of the powers conferred by a general law
of the state enacted in 1907, which provides for the incorporation of cities and towns and
repealing all acts and parts of acts in conflict. Stats. 1907, p. 241, c. 125, N. C. L. section
1100 et seq. Section 1 of the act (N. C. L. sec. 1100) states as follows: Section 1. The right
of home rule and self-government is hereby granted to the people of any city or town
incorporated under the provision of this act.
Section 28 of the act (N. C. L. sec. 1128) confers upon the city council of such cities and
towns eighty-five enumerated powers.
55 Nev. 186, 189 (1934) State Ex Rel. Owens v. Doxey
the city council of such cities and towns eighty-five enumerated powers. Subdivision 5 of
section 28 provides, inter alia, as follows: 5. * * * The council shall have the power to
acquire or establish any public utility only in the manner herein provided. The council shall
enact an ordinance which shall set forth fully and in detail the public utility proposed to be
acquired or established; the estimated cost thereof as shown by the report, approved by the
council and mayor, of an engineer or body theretofore appointed by the council for that
purpose; the proposed bonded indebtedness to be incurred therefor, the terms, amount, rate of
interest and time within which redeemable and on what fund. Such ordinance shall be
published in full at least once a week for four successive weeks in some newspaper of general
circulation, published in the city. At the first regular meeting of the council, or any
adjournment thereof, after the completion of said publication, the council may proceed to
enact an ordinance for such purpose which shall conform in all respects to the terms and
conditions of the previously published ordinance, unless a petition shall be presented to it,
signed by not less than fifteen per cent of the qualified electors of said city, as shown by the
last preceding registration list, and representing not less than ten per cent of the taxable
property of said city as shown by the last preceding tax list or assessment roll, praying for a
special election in said city upon the question of whether or not the proposed ordinance shall
be passed. Thereupon, no such proposed ordinance shall be enacted or be valid or effective
for any purpose whatsoever, unless at a special election called and held for the purpose, a
majority of the votes cast are for the ordinance.
It appears from the petition herein that, in conformity to the provisions of section 28, as
quoted, the board of commissioners of the town of Carlin, after the completion of the
publication of ordinance No. 15, and no petition having been presented to it praying for a
special election upon the question of whether or not the proposed ordinance No. 15, as
published, should be passed, did, on October 10, 1933, enact and adopt said ordinance
which in all respects conforms to the terms and conditions thereof, as previously
published.
55 Nev. 186, 190 (1934) State Ex Rel. Owens v. Doxey
did, on October 10, 1933, enact and adopt said ordinance which in all respects conforms to
the terms and conditions thereof, as previously published. Section 7 of the ordinance
authorizes and directs the clerk of said town of Carlin to publish the notice incorporated
therein calling for bids for the purchase of $100,000 of bonds for the construction of
waterworks and a sewer system, upon the terms and conditions specified in the ordinance and
the notice. The notice conforms to the provisions contained in Stats. 1927, p. 194, c. 110, N.
C. L. sec. 6085 et seq.
The respondent informed the board that he refused to comply with its order and direction
to publish said notice of bids for the purchase of the proposed bonds, principally for the
reason that the proposal for the issuance and sale of said bonds was not submitted at a general
or special election called for that purpose to the electors of the town of Carlin, as required by
an act of the legislature passed and approved at the last session thereof. Stats. 1933, p. 116, c.
95.
Afterward the relator herein made application for a writ of mandamus to be issued by this
court to compel the respondent to proceed forthwith with the publication of the notice of bids
for the purchase of the bonds. It appears from the petition that the respondent assigned a
number of reasons or grounds for his refusal to comply with the board's order and direction,
which are set out in the petition.
This opinion will be confined to what is considered by the court to be the only debatable
issue in the case, namely, whether, under the constitution and the charter provisions of the
town of Carlin, the act of 1933 is binding and controlling upon the town of Carlin with
reference to the calling of a general or special election, as provided in the act of 1933. Section
2 of the act provides as follows: Sec. 2. Whenever the State of Nevada, or any municipality
therein, proposes to issue bonds, or provide for loans, in any amount within the limit of
indebtedness authorized by the constitution, the proposal for such bond issue or loan shall be
submitted at a general or special election, called for that purpose, to the electors of the
state or the municipality involved who are not real property owners or the spouses of real
property owners, and also to the electors thereof who are the owners of real property or
the spouses of real estate property owners, as shown by the assessment roll of some one
or more of the counties in the state, or the spouses of such real property owners in the
manner hereinafter set forth."
55 Nev. 186, 191 (1934) State Ex Rel. Owens v. Doxey
submitted at a general or special election, called for that purpose, to the electors of the state or
the municipality involved who are not real property owners or the spouses of real property
owners, and also to the electors thereof who are the owners of real property or the spouses of
real estate property owners, as shown by the assessment roll of some one or more of the
counties in the state, or the spouses of such real property owners in the manner hereinafter set
forth.
Section 3 provides that two sets of ballots and ballot boxes shall be used and placed at
each polling place, the boxes to be designated A and B, and one set of ballots be printed
on white paper and the other set on colored paper. Section 4 of the act provides that the votes
of taxpayers and nontaxpayers be segregated, and that separate and distinct records be made
of the votes cast. Section 5 of the act provides as follows: Sec. 5. This act shall become
effective immediately upon its passage and approval.
It will be noted that the act contains no repealing clause, that no mention is made of the
charter provisions of municipalities incorporated under the general law of 1907 or the act of
1927, which deals exclusively with the subject Municipal Bonds, and repeals all acts and
parts of acts in conflict. It will also be noted that the act is silent as to procedure for calling
elections and issuance and sale of bonds, if voted.
It will be noted that subdivision 5 of section 28 of the act of 1907, as hereinabove quoted,
lays down a comprehensive scheme, perfect and full in all details, for the acquisition or
establishment of any public utility and for a bonded indebtedness therefor, reserving to the
taxpayers of any town or city the right to petition for a special election to determine whether
the proposed bonds should issue. There is no provision in the act of 1933 that it shall apply to
towns having home rule charters or commission form governments. The question to arise,
therefore, is whether or not the act of 1933, as framed and adopted, overrides or supersedes
the charter provisions of the town of Carlin and ordinance No. 15.
55 Nev. 186, 192 (1934) State Ex Rel. Owens v. Doxey
1-3. Section 8 of article 8 of the constitution of Nevada as amended in 1924 reads as
follows: Sec. 8. The legislature shall provide for the organization of cities and towns by
general laws and shall restrict their power of taxation, assessment, borrowing money,
contracting debts and loaning their credit, except for procuring supplies of water; provided,
however, that the legislature may, by general laws, in the manner and to the extent therein
provided, permit and authorize the electors of any city or town to frame, adopt and amend a
charter for its own government, or to amend any existing charter of such city or town.
It will be noted that the legislature may by general law, in the manner and to the extent
therein provided, permit and authorize the electors of any city or town to frame and adopt a
charter for its own government. This had been done by the legislature of Nevada in the
passage and adoption of the act of 1907. The town of Carlin having availed itself of the
privilege extended by section 28 of said act, the further question arises: May the legislature
consistently, by a mere declaration, provide that any proposal for the issuance and sale of
bonds by any city or town shall by general or special election called for that purpose, be
submitted to a vote of the electors involved? It is our duty to construe the act of 1933 and the
charter of the town of Carlin, in so far as they deal with the same subject matter, together. It is
held that as to matters, exclusive control of which is given to a municipality by the
constitution, the municipality is exempt from any control by any subsequent act of the
legislature. 43 C. J. sec. 294, p. 275. The text cites in support the case of Graham v. Fresno,
151 Cal. 465, 91 P. 147, 149, from which I quote as follows: The effect of subdivision 1 of
section 8 1/2 of article 11 was to make the matter of such police courts purely a municipal
affair as to any freeholders' charter city which subsequently made appropriate provision in its
charter for such court. It confided the subject-matter of such courts, and the election and
compensation of the judges thereof, to any such city desiring to assume, and assuming,
control thereof, just as, by the same section, the matter of fixing the compensation of
county officers in consolidated cities and counties was confided to the city and county to
be provided for in its freeholders' charter.
55 Nev. 186, 193 (1934) State Ex Rel. Owens v. Doxey
desiring to assume, and assuming, control thereof, just as, by the same section, the matter of
fixing the compensation of county officers in consolidated cities and counties was confided to
the city and county to be provided for in its freeholders' charter. Such jurisdiction could not
coexist in both the Legislature and the city, and the provision for the assumption of such
jurisdiction by the city necessarily contemplated the removal of the same from the
Legislature, whenever the jurisdiction was assumed by the city. Any act of the Legislature
relative to such subject-matter would necessarily be inconsistent with a charter provision in
regard to the same subject-matter. As to such matters as the Constitution authorizes to be
provided for in freeholders' charters, the provisions of the charter are supreme, superseding
all laws inconsistent therewith (section 6, art. 11, Const.), and being exempt from any control
by any subsequent act of the Legislature.
In principle the effect of this holding is that, whenever the constitution authorizes
municipalities to legislate upon a particular subject matter under the provisions of a
freeholder charter, such legislation is exclusive and supersedes all acts of the legislature
relative to the same subject matter and inconsistent therewith. Simpson v. Payne, 79 Cal.
App. 780, 251 P. 324, citing Graham v. Fresno, supra.
4. Since the constitution of Nevada authorizes the legislature to confer upon home rule
towns and cities power to legislate upon particular subjects, it necessarily follows that the act
of 1933, as framed, does not supersede the charter provisions of the town of Carlin dealing
with the same subject matter. We therefore conclude that the reason assigned by the
respondent, that it would be unlawful for him to comply with the order and direction of the
board of commissioners to proceed with the publication of notice of bids for the purchase of
said bonds, cannot be sustained.
The court has given cautious examination and careful thought to each and all of the
remaining objections assigned by the respondent as reasons for his refusal to comply with the
order and direction of the board of commissioners to publish notice of bids for the
purchase of the $100,000 of waterworks and sewer bonds upon the terms and conditions
as authorized by ordinance No.
55 Nev. 186, 194 (1934) State Ex Rel. Owens v. Doxey
to comply with the order and direction of the board of commissioners to publish notice of
bids for the purchase of the $100,000 of waterworks and sewer bonds upon the terms and
conditions as authorized by ordinance No. 15, and finds each and all of them to be untenable.
It is therefore adjudged and ordered that the peremptory writ of mandamus issued out of
this court on November 24, 1933, be, and the same is hereby, confirmed, and that the same be
and remain in full force and effect.
____________
55 Nev. 194, 194 (1934) Baer v. Lilenfeld
BAER v. LILENFELD
No. 3042
February 6, 1934. 28 P. (2d) 1038.
1. Appeal and Error.
Appeal held properly dismissed where no transcript of record had been filed within 85 days from time
appeal was perfected (Rules of Supreme Court, rules Nos. 2, 3, subds. 1, 2).
2. Appeal and Error.
That first appeal was perfected under stress of adverse counsel's action in trying to execute judgment and
that appellant took second appeal and filed record on appeal within time permitted by successive extension
orders did not excuse failure to timely file transcript of record on first appeal (Rules of Supreme Court,
rules Nos. 2, 3, subds. 1, 2).
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Jerrold H. Baer, doing business under the fictitious name of the Albert Baer
Mercantile Company, against S. Lilenfeld. Defendant's appeal from the judgment was
dismissed. On motion to restore the appeal. Motion denied.
G. Gunzendorfer and John S. Sinai, for Appellant.
James T. Boyd and Fernand de Journel, for Respondent.
55 Nev. 194, 195 (1934) Baer v. Lilenfeld
OPINION
By the Court, Ducker, J.:
This is a motion to restore the appeal in this case. The appeal was from the judgment, and
it was dismissed on October 11, 1933, upon the ex parte motion of respondent under
subdivision 1 of rule 3 of this court. That part of the rule provides: If the transcript of the
record on appeal be not filed within the time prescribed by Rule II, the appeal may be
dismissed on motion without notice. On such motion there shall be presented the certificate
of the clerk below, under the seal of the court, certifying the amount or character of the
judgment; the date of its rendition; the fact and date of the filing of the notice of appeal,
together with the fact and date of service thereof on the adverse party, and the character of the
evidence by which said service appears; the fact and date of the filing of the undertaking on
appeal, and that the same is in due form; the fact and time of the settlement of the bill of
exceptions, if there be one; and also that the appellant has received a duly certified transcript,
or that he has not requested the clerk to certify to a correct transcript of the record; or, if he
has made such request, that he has not paid the fees therefor, if the same have been
demanded. The appeal may also be dismissed, upon good cause shown, on notice to the
opposite party.
Appellant's motion to restore the appeal is made under subdivision 2 of said rule, which
provides: A cause dismissed without notice may be restored during the same term, upon
good cause shown, on notice to the opposite party.
The motion is supported by an affidavit made by appellant's counsel. In this affidavit,
which is quite lengthy, it is averred that the appeal was improvidently dismissed. There is
also alleged in the affidavit matters for the purpose of showing that, if the transcript of the
record on appeal was not filed within the time required by rule 2 of this court, it was due to
excusable neglect.
55 Nev. 194, 196 (1934) Baer v. Lilenfeld
The certificate of the clerk, made on the 28th day of September, 1933, presented by
respondent, upon which the appeal was dismissed, shows that the judgment was rendered on
the 3d day of July, 1933; that a notice of appeal was filed and served in the case on the 17th
day of July, 1933; that the undertaking on appeal and an undertaking to stay execution in due
form were filed in said cause, on the same day; that no bill of exceptions was ever filed in
said cause or presented for filing; that no transcript of the record has ever been presented to
said clerk for filing; and that no person has ever requested him to certify to a transcript of the
record. It appears from the affidavit that appellant filed in support of his motion to restore the
appeal that the court rendered its decision in the case of the 21st day of June, 1933; that
appellant served and filed his notice of intention to move for a new trial on the 1st day of
July, 1933; that ten days later he filed and served a notice of appeal from the judgment as well
as from the order denying the motion for a new trial, and on the same day served and filed an
undertaking on appeal and an undertaking to stay execution of the judgment; that within due
time after service of notice of the order denying appellant's motion for a new trial made on the
27th day of September, 1933, he procured successive orders from the district judge who tried
the cause, whereby his time to prepare, serve, and file in the district court his bill of
exceptions on appeal from the judgment and order denying his motion for a new trial was
extended to the 11th day of December, 1933, on which latter date the record on appeal,
comprising the judgment roll and bill of exceptions, was served and filed in the cause.
1, 2. We think it is clear that appellant was in default for not having filed a transcript of the
record on appeal under the requirements of rule 2 of this court when the appeal was
dismissed. The rule provides: The transcript of the record on appeal shall be filed within
thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has
been settled.
55 Nev. 194, 197 (1934) Baer v. Lilenfeld
There was no bill of exceptions settled in connection with the first appeal from the
judgment, and seventy-three days had expired from the 17th day of July, 1933, when that
appeal was perfected, before the motion to dismiss was filed in this court. Eighty-five days
had elapsed when the appeal was dismissed. The taking of the second appeal, and the steps
taken by appellant in connection therewith in regard to a bill of exceptions, indicate that he
did not intend to file any transcript of the record on appeal as to the first appeal taken from
the judgment. This conclusion is fortified by the statement in his affidavit that the first appeal
was perfected under the stress of the moment on account of the action of respondent's counsel
in trying to execute the judgment.
As no bill of exceptions was filed and settled in connection with the first appeal, appellant
had been in default under rule 2 for failure to file a transcript of record on appeal for a period
of fifty-five days when the appeal was dismissed by this court. The appeal therefore was not
dismissed improvidently. We see no ground for restoring it on the score of excusable neglect.
The motion to restore the appeal is hereby denied.
____________
55 Nev. 198, 198 (1934) Baer v. Lilenfeld
BAER v. LILENFELD
No. 3067
April 30, 1934. 31 P.(2d) 1037.
1. Appeal and Error.
Court has no discretion under court rule whereby dismissal of appeal from judgment unless appeal is
subsequently restored bars further appeals (Supreme Court Rule 3, par. 3).
2. Appeal and Error.
Order denying motion for new trial should be affirmed where record on appeal omits motion.
3. Appeal and Error.
On appeal from order denying motion for new trial, supreme court cannot presume that motion, omitted
from record, embraced all grounds enumerated in notice of intention to move for new trial.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Jerrold H. Baer, doing business under the fictitious name of the Albert Baer
Mercantile Company, against S. Lilenfeld. From an adverse judgment and also from an order
denying a motion for a new trial, defendant appeals. Motion to dismiss both of the appeals.
Appeal from the judgment dismissed, and order denying new trial affirmed.
G. Gunzendorfer, for Appellant.
Boyd & De Journel, for Respondent.
OPINION
Per Curiam:
On October 11, 1933, on ex parte motion this court dismissed a former appeal from the
judgment now appealed from and refused to reinstate the case on motion of appellant [see
Baer v. Lilenfeld, 55 Nev. 194, 28 P.(2d) 1038], in which the former appeal was pending, and
on September 30, 1933, the appellant took another appeal from the judgment and also took an
appeal from an order made on September 25, 1933, denying appellant's motion for a new
trial.
1. Respondent has made a motion to dismiss both of these appeals.
55 Nev. 198, 199 (1934) Baer v. Lilenfeld
these appeals. The motion to dismiss the appeal from the judgment is based upon two
grounds. We think we need consider only the one which is based upon rule III, par. 3, of this
court, which provides that a dismissal of an appeal from a judgment shall be final, and a bar
to any other appeal, unless the appeal is restored after such dismissal. No discretion is vested
in the court in this matter. The appeal of September 30, 1933, from the judgment should be
dismissed.
The motion to dismiss the appeal from the order denying a new trial is based upon two
grounds, but we need consider only one, namely, that the transcript of the record on appeal
does not contain a motion for a new trial.
The transcript of the record shows that on July 1, 1933, counsel for appellant served upon
counsel for respondent a notice of intention to move for a new trial, wherein eleven grounds
are enumerated as being the ones upon which defendant above-named (appellant) intends to
and will move the above-entitled court for a new trial. The record fails to contain the motion
which was actually made, but it does contain a general order denying the motion for a new
trial.
2. It is settled in this state that when the record fails to contain the motion for a new trial,
which was denied, we cannot determine whether or not the trial court erred in denying the
motion, and hence the appeal from such an order should be affirmed. Brearley v. Arobio, 54
Nev. 385, 12 P.(2d) 339, 19 P.(2d) 432.
3. But counsel for appellant contends that since the notice of intention to move for a new
trial states eleven grounds, we must presume that the motion embraced all of the grounds
therein enumerated. We cannot agree with this contention.
The supreme court of California, in People v. Ah Sam, 41 Cal. 645, said, in speaking of
just such a question: The form of the application filed would not be evidence to us of the
application of motion actually made.
55 Nev. 198, 200 (1934) Baer v. Lilenfeld
In Herrlich v. McDonald, 80 Cal. 472, 22 P. 299, the court, in considering a like question,
said:
It appears that a notice was given that on a certain day a motion would be made to recall
and set aside the execution on certain grounds stated; but no such motion appears in the
transcript, nor is it shown in any proper way that any such motion was made. The grounds of
the motion, if one was made, do not appear in any way. The notice was that the defendant
would make such a motion on certain grounds, but whether she did make it or not on those or
any other grounds is left wholly to conjecture. We presume the appellant expects us to infer
that because she said she would make the motion she did make it. The only thing tending to
show that a motion was made is a recital in the order appealed from that the cause came on
to be heard this day on defendant's motion to vacate and set aside writ of execution issued
December 31, 1886.' There is no bill of exceptions, and the certificate of the judge as to what
papers were used recites that upon the motion to recall execution in the above-entitled action
the following papers were read and referred to.' Neither of these show that a motion was
actually made, but, if they did, the grounds upon which it was made nowhere appear. This
being the state of the record, we might properly affirm the order on the ground that no error is
made apparent. The practice is this respect seems to be extremely loose. Counsel seem to
confound the notice of motion with the motion itself. The notice is not a motion, and should
not be so treated. The careful practitioner will either prepare and file his motion in writing,
stating the grounds thereof, or have the same entered in the minutes. This is not necessary,
however. The motion may be made orally; but in every case, whether the motion is made in
writing, entered on the minutes, or stated orally, the same should be preserved by a bill of
exceptions and brought to this court in that way, on appeal, so that we can see from the record
that a motion was made.
We can find no authority taking a contrary view. We think it imperative that the motion
as actually made, if one was made, must appear in the record to enable us to determine if
the trial court committed error.
55 Nev. 198, 201 (1934) Baer v. Lilenfeld
think it imperative that the motion as actually made, if one was made, must appear in the
record to enable us to determine if the trial court committed error.
It follows from what we have said that the appeal from the judgment must be dismissed
and that the order denying the motion for a new trial must be affirmed.
It is so ordered.
On Petition For Rehearing
June 18, 1934.
Per Curiam:
Rehearing denied.
____________
55 Nev. 201, 201 (1934) Jeffers v. Jeffers
JEFFERS v. JEFFERS
No. 3030
February 13, 1934. 29 P.(2d) 351.
1. Divorce
Husband's divorce complaint, alleging that parties had lived apart without cohabitation for over five years
preceding divorce action, held not demurrable as not negativing husband's fault in causing separation, since
that would not bar divorce decree (Stats. 1931, c. 111, sec. 1).
2. Divorce.
In husband's divorce action on ground of five years' separation, wife held entitled to plead and prove
recriminatory allegations as to alleged desertion, adultery, bigamy, nonsupport, and extreme cruelty,
though not causing the separation, to aid court in exercise of discretion under statute (Stats. 1931, c. 111,
sec. 1).
Defendant wife was entitled to plead and prove such alleged marital misconduct, since, under
Stats. 1931, c. 111, sec. 1, the court is vested with discretion to grant divorce in case of five years'
separation and such alleged recriminatory matter might be considered by court to aid court in exercise
of discretion conferred by statute.
____________________
See, also (Nev.) 25 P.(2d) 556, 55 Nev. 69.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action for divorce by James Jeffers against Lydia Ann Jeffers. From a judgment in favor
of plaintiff and from an order denying a new trial, defendant appeals.
55 Nev. 201, 202 (1934) Jeffers v. Jeffers
from an order denying a new trial, defendant appeals. Reversed, with direction.
Ryland G. Taylor, for Appellant:
The important point is, what does subject to the same procedure and requirements mean
in this statute? We have to inquire what the requirements and procedure is in the procuring of
a divorce generally. The general law upon this subject is stated in sec. 9460 N. C. L. First,
there must be jurisdiction of the court, and the elements of jurisdiction are stated in the act.
There is one other element, however, that is just as material as the element of jurisdiction.
That is that the party applying for the divorce be either the innocent party or the party least at
fault. It does not appear from the record in this case that the appellant is at fault in any degree
in any particular. However, it does positively appear from the pleadings that the respondent
was guilty of practically every cause set forth in the category of causes of action for divorce.
In order to give this statute the construction sought to be placed upon it, the court would have
to rewrite it and strike therefrom the language and subject to the same procedure and
requirements and substitute therefor in all events, and would have to likewise strike from
the second paragraph of the section at its discretion and substitute therefore in all events.
C. D. Breeze, for Respondent:
The ground for divorce is stated substantially in the language of the statute. Even if we
assume, for the sake of argument, that the plaintiff must be the injured party or the party least
at fault, as contended by counsel, still that would be a matter of defense and need not be
stated in the first place by the plaintiff, under the amendment of 1931 permitting the plaintiff
to state the ground for divorce in the words of the statute. Hale v. Hale, 127 S. W. 475; Clark
v. Clark, 53 S. W. 644; Ward v. Ward, 281 S. W. 801; Best v. Best, 291 S. W.
55 Nev. 201, 203 (1934) Jeffers v. Jeffers
1032; Brown v. Brown, 189 S. W. 921; Cooke v. Cooke, 80 S. E. 179.
In the only other state which has a provision similar to ours respecting the discretion of the
court, recriminatory defenses are not available, and while the trial court may hear evidence of
bad conduct on the part of the plaintiff, it is not obliged to do so, and it is not error to refuse
to entertain recriminatory defenses or to hear evidence of plaintiff's bad conduct. Guillot v.
Guillot (R. I.), 106 Atl. 801; Dever v. Dever (R. I.), 146 Atl. 478.
OPINION
By the Court, Ducker, J.:
This is an action for divorce instituted by the husband. In his complaint it was charged as
grounds of divorce as follows: That plaintiff and defendant have lived separate and apart
without cohabitation for a period of longer than five years next preceding the commencement
of this action. The defendant demurred to the complaint upon the ground that it did not state
facts sufficient to constitute a cause of action. The demurrer was overruled, and defendant
answered. In her amended answer she admitted the separation alleged, and set up five
affirmative defenses, namely, desertion, adultery, bigamy, failure to provide, and extreme
cruelty. Plaintiff demurred to each of these alleged defenses on the ground that it did not state
facts sufficient to constitute a defense to plaintiff's cause of action. The court sustained the
demurrers. Plaintiff was granted a divorce. Defendant has appealed. We will continue to refer
to the parties as they were designated in the lower court.
1. Defendant contends that the trial court erred in overruling her demurrer to the complaint
and in sustaining plaintiff's demurrers to the defenses alleged in the answer.
In Herrick v. Herrick, 55 Nev. 59, 25 P.(2d) 378, we held that under the statute {Stats.
55 Nev. 201, 204 (1934) Jeffers v. Jeffers
held that under the statute (Stats. 1931, c. 111, sec. 1) providing a cause for divorce when the
husband and wife had lived apart for five consecutive years without cohabitation, the
plaintiff's marital misconduct alleged as causing the separation was not a bar to a decree in his
favor. Consequently, defendant's demurrer to the complaint in this case, the point of which is
that the complaint is deficient because it fails to negative the fault of the plaintiff in causing
the separation, was properly overruled. We also held that fault of that kind, while not a bar to
a divorce, was a circumstance for the trial court to consider in the exercise of its discretion.
2. On this account defendant contends that it was error for the trial court to sustain
plaintiff's demurrers to her affirmative defenses, for thereby she was precluded from offering
evidence of the same.
The contention is sound, although we did not go that far in the Herrick case. While the
matters set out in the answer herein as affirmative defenses are not alleged to have caused the
separation stated in the complaint, as in the former case, they are of a recriminatory character.
We think that a matter of that kind, though not causing the separation, might be reasonably
expected to influence the discretion conferred on the court by the statute. This being so, a
defendant would be entitled to prove it, if pleaded as a defense.
As we pointed out in Herrick v. Herrick, supra, the Rhode Island statute has the same
discretionary feature as our statute. The supreme court of that state held, in Guillot v. Guillot,
42 R. I. 230, 106 A. 801, that testimony of a recriminatory character should not be binding
upon or control the action of the court, but that it might be considered by the way of aiding
the court in the exercise of the discretion conferred by the statute.
Although a defendant is entitled to prove marital misconduct of this character, he should,
as a condition precedent, in fairness to a plaintiff, be compelled to allege it.
55 Nev. 201, 205 (1934) Jeffers v. Jeffers
allege it. A plaintiff is entitled to notice of such a charge which, if proven, may defeat his
action, and to have an opportunity to meet it. It may or may not amount to an affirmative
defense, yet it is of that character and becomes a complete defense, if sufficient, to persuade
the court to exercise its discretion against the party seeking a divorce.
Plaintiff insists that the demurrers to the affirmative defenses were properly sustained
because they did not allege a sufficient ground for divorce. Under the circumstances of this
case, we need not decide whether they were so sufficient. It is enough to say that they stated
matter of a recriminatory nature which, if proven, might influence the discretion of the court.
Moreover, the trial court sustained the demurrers, as appears from the record, on the ground
that the defendant had no defense to the action, save and except the issue as to whether or not
the separation had been continuous for a period of five years or more.
In this regard it is but fair to the trial court to say that our decision in Herrick v. Herrick,
supra, was announced after the decision by the former court in the instant case.
The judgment and order denying a new trial are reversed, and the lower court is directed to
proceed in accordance with the views expressed in this opinion.
____________
55 Nev. 206, 206 (1934) Seaborn v. District Court
SEABORN, Superintendent of Banks, v. FIRST
JUDICIAL DISTRICT COURT Et Al.
Nos. 3054-3060
February 9, 1934. 29 P.(2d) 500.
1. Prohibition.
Prohibition would lie to restrain court from appointing receivers for insolvent banks and thereby taking
possession of bank assets in hands of superintendent of banks, if appointment of receivers was void
because in conflict with banking act (Stats. 1933, c. 190; Comp. Laws 1929, secs. 9255, 9256).
2. Action.
In determining whether statutory mode of procedure is exclusive, it is important to determine legislative
intent from statute.
3. Statutes.
Effect must be given, if possible, to every word of statute.
4. Banks and Banking.
Superintendent of banks has primary right to administer assets of insolvent banks, but his right is not
exclusive where conditions warrant court in assuming jurisdiction and appointing receivers to take over
assets and liquidate banks (Stats. 1933, c. 190, secs. 23, 53, 68, 70-76, 77; Comp. Laws 1929, sec. 8749).
5. Banks and Banking.
District court held authorized by filing of action by depositors or creditors representing not less than 15
percent of outstanding indebtedness to appoint receivers for insolvent banks whose assets were in
possession of superintendent of banks (Stats. 1933, c. 190, sec. 68).
6. Banks and Banking.
District court's assumption of jurisdiction to appoint receivers for insolvent banks whose assets were in
hands of superintendent of banks on filing of action by depositors or creditors held assumption of
jurisdiction as court of equity (Stats. 1933, c. 190, sec. 68; Const. art. 6, secs. 6, 14).
An action is defined as a judicial proceeding, either in law or equity, to obtain certain relief
at hands of court.
7. Equity.
Generally, if equity obtains jurisdiction of controversy on any ground and for any purpose, it will retain
jurisdiction for purpose of administering complete relief.
8. Prohibition.
On application for prohibition restraining district court from appointing receivers for insolvent banks
whose assets were in hands of superintendent of banks on ground of alleged exclusive control given
superintendent by banking act, whether district court adopted best course in appointing receivers and
whether pleadings upon which court acted were sufficient held immaterial {Stats.
55 Nev. 206, 207 (1934) Seaborn v. District Court
whether pleadings upon which court acted were sufficient held immaterial (Stats. 1933, c. 190; Comp.
Laws 1929, secs. 9255, 9256).
Original proceeding by E. J. Seaborn, as Superintendent of Banks of the State, in charge of
the Riverside Bank and other banks, for a writ of prohibition to restrain the First Judicial
District Court, in and for Ormsby County, and Hon. Clark J. Guild, as judge of such court,
from appointing receivers for the banks, wherein an alternative writ of prohibition was issued.
Alternative writ of prohibition dismissed, and petitions for writ of prohibition denied.
Harwood & Diskin, for Petitioner:
Considering the legislative history as established by legislative action in this state, we
submit it is clearly disclosed that by enacting the banking law of 1911 and the banking law of
1933 it was the intention of the legislature to place the liquidation of banks exclusively under
the supervision of the state superintendent of banks, and the court was divested of any
authority to interfere by or through the appointment of a receiver.
Statutes similar to the 1933 act have been enacted by other states, and the courts have held
with unanimity that under these statutes the court may not appoint a receiver unless it is
established that the state official is guilty of nonfeasance, etc. State v. District Court (Wyo.),
14 P. (2d) 673, at 681; Riches v. Hadlock (Utah), 15 P.(2d) 283; Knott v. Morris, 132 S. E.
372; In Re Liquidation of Oklahoma State Bank, 237 P. 603; Michie Banks and Banking, vol.
3, sec. 17, p. 34; Amos v. Trust Co., 54 Fed. (2d) 286; Cartnell v. Commercial Bank, 156 S.
W. 1048; Wilson v. Louisville Title Co., 51 S. W. (2d) 971; In Re Broderick, 275 N. Y. Sup.
382; Commissioner ex rel. v. Hargis Bank, 26 S. W. (2d) 1045; State v. Norman, 206 P. 522;
Bank of Bay Biscayne v. Hankins, 42 Fed. (2d) 209.
If there were any intent upon the part of the legislature in 1933 to change the legislative
policy which existed since 1911, declaring the liquidation of closed banks should be
exclusively handled by the bank examiner, we submit it would have so declared its
purpose in a few appropriate words.
55 Nev. 206, 208 (1934) Seaborn v. District Court
banks should be exclusively handled by the bank examiner, we submit it would have so
declared its purpose in a few appropriate words. Why should the legislature leave the
authority for the appointment of a receiver, as claimed by those urging this contention, to
innuendo and inference by making the provisions of the civil practice act applicable?
The complaints that initiated this action in the lower court were filed under the provisions
of sections 68 and 75 of the 1933 banking act. The purpose of the proceeding was to have the
court approve a plan of reorganization or reopening of the closed banks. The court acquired
jurisdiction for this purpose and this purpose only. Therefore the proceedings now pending
before the court is a special statutory proceeding, and the court has no authority or
jurisdiction to appoint a receiver therein. Murray v. American Surety Company, 70 Fed. 341;
People's Home Savings Bank v. Superior Court, 36 P. 1015; State Investment v. Superior
Court, 35 P. 549; People v. Bugg Stone and Cement Co., 29 N. E. 947; In Re Water Rights on
Humboldt River, 49 Nev. 357, 246 P. 692; Cosmopolitan Trust Co. v. Suffolk Knitting Mills,
143 N. E. 138; In Re State Bank of Portland, 243 P. 86; Miracle v. Dixon, 249 P. 153.
Each of the cross-complaints and petitions upon which the order for the appointment of a
receiver is to be made fails to state facts sufficient to constitute a cross-complaint or petition.
We submit that prohibition is the only remedy, because this court has decided in the case
of Dunfee v. McNamara, 50 Nev. 113, 252 P. 943, that the filing of a cost bond will not stay
proceedings for the appointment of a receiver, and, further, there is no section of the Nevada
statute which would authorize any undertaking on appeal that would stay the proceedings.
See, also, Golden v. District Court, 31 Nev. 250, 101 P. 1021; In Re Cowles, 52 Nev. 171,
283 P. 400; Metcalfe v. District Court, 51 Nev. 253, 274 P. 5; State v. Churchill County, 43
Nev. 290, 185 P. 489; 50 C. J. p. 711, sec. 139; A. G. Col Company v. Superior Court (Cal.),
23S P.
55 Nev. 206, 209 (1934) Seaborn v. District Court
238 P. 926; Jardine v. Superior Court, 2 P. (2d) 756; Havemeyer v. Superior Court (Cal.), 24
P. 121; People v. District Court (Colo.), 80 P. 908; 50 C. J. pp. 683, 685; State v. Court of
Common Pleas of Franklin County (Ohio), 178 N. E. 258.
H. R. Cooke, for Respondents:
Admittedly, for the purposes of the argument at least, the legislature in enacting the 1911
banking act, intended to exclude, so far as it constitutionally could at least, the courts from
having any participation whatsoever in the administering of the estates of an insolvent bank.
By the 1933 amendment, expressly qualifying the so-called exclusive language of the older
act, by the phrase or otherwise by law provided in sec. 23, and by the phrase or until
otherwise ordered by a court of competent jurisdiction in sec. 53, the legislative intent to
remove any statutory impediment or restriction upon the court as to administering assets of
insolvent banks is, to our mind, tacitly recognized. The term competent jurisdiction as
applied to a court signifies a court having general power and jurisdiction. 12 C. J. 236.
Otherwise by law provided is of an extremely broad and comprehensive meaning; it cannot
be limited to mean or otherwise by this law provided, or as herein otherwise provided, or
the like.
The clause in section 68 of the 1933 banking act providing that: every such action shall
be governed by the provisions of An Act to regulate proceedings in civil cases in this state,
and to repeal all other acts in relation thereto,' approved March 17, 1911, and acts amendatory
and supplementary thereto has the effect of making the act so referred to a part of the 1933
banking act as fully as if said act were incorporated at length in the 1933 banking act. 59 C. J.
609, sec. 165 and note; 59 C. J. 610, secs. 167, 168; 59 C. J. 1058, sec. 624; State v. District
Court (Mont.), 272 P. 525; Corkory v. Hinkle (Wash.), 217 P. 47; Lewis' Sutherland Statutory
Construction (2d ed.), vol. 2, sec. 405; Endlich Interpretation of Statutes, sec. 483; Sedgwick
on Const. and Stats. {2d ed.), p.
55 Nev. 206, 210 (1934) Seaborn v. District Court
Stats. (2d ed.), p. 229; Engel v. Davenport, 231 U. S. 33, 70 L. Ed. 813, 817; 25 R. C. L. p.
907, sec. 160; 25 R. C. L. p. 875, sec. 120; Zeman v. Dolan (Ill.), 116 N. E. 642; Evans v.
Illinois Surety Co. (Ill.), 131 N. E. 262.
The proceeding before the district court of winding updisposal of assets of insolvent
banksis an action in which both law and equity may be administered, and it is not a
special proceeding or a special statutory proceeding. The banking act, by express terms,
repeatedly and consistently refers to the proceeding such as the instant case as an action; and
nowhere is there any language indicating this proceeding to be anything but an action. If,
then, this proceeding is an action, the constitutional mandate that law and equity may be
administered in the same action would seem to effectually preclude any claim that the
equitable relief of receivership appointment herein is beyond the power of the court, merely
because of some claim that the proceeding is a special statutory action or the like.
Petitioner has an adequate remedy at law in the ordinary course by appealing from order
appointing receiver and giving stay bond to stay further proceedings. Lightner Mining Co. v.
Superior Court (Cal.), 112 P. 909; Western, etc. Co. v. Superior Court (Cal.), 134 P. 732;
Dungan v. Superior Court (Cal.), 84 P. 770, 117 Am. St. Rep. 119; Agassiz v. Superior Court
(Cal.), 27 P. 50; Jacob v. Superior Court (Cal.), 65 P. 826, 85 Am. St. Rep. 204; Turner v.
Langan, 29 Nev. 281, 88 P. 1088; State ex rel. Thatcher v. District Court, 38 Nev. 323, 149 P.
178.
If the appointment of a receiver in the case before the trial court was within the jurisdiction
of that court, then it is immaterial upon prohibition whether the facts disclosed to the court on
the application for the appointment are such as legally warrant it in putting in operation or
applying its jurisdiction in that regard, and the validity of the appointment cannot be inquired
into or reviewed in an application for a writ of prohibition. Taketa v. Superior Court (Cal.),
185 P. 406.
55 Nev. 206, 211 (1934) Seaborn v. District Court
Prince A. Hawkins, for Respondents:
If petitioner is an aggrieved party, it is submitted that he may have this court inquire into
the jurisdiction of the respondent court, not by proceedings in prohibition, but by certiorari.
Sec. 9231 N. C. L.; Silver Peak Mines v. District Court, 33 Nev. 97, 110 P. 503.
But it is his duty and he must await the making and entry of the order appointing a receiver
or receivers, from which order, if he feels aggrieved, he has a plain, speedy and adequate
remedy by appeal under subsection 2 of section 8885 N. C. L., and the operation of such
order, which petitioner alleges in his petition respondent court will make, may be stayed by
the filing and giving of an undertaking, as provided in sections 8894, 8896 and 8897 N. C. L.
Whitman v. Moran, 54 Nev. 276, 18 P. (2d) 1107; Arrascada v. District Court, 44 Nev. 37,
189 P. 621; Walcott v. Wells, 21 Nev. 47, 24 P. 369; Low v. Crown Point, 2 Nev. 75; State
ex rel. Callahan v. District Court, 54 Nev. 377, 18 P. (2d) 449; State ex rel. Thatcher v.
District Court, 38 Nev. 323, 149 P. 178.
W. M. Kearney, John Davidson and Ernest S. Brown, for Respondents:
The appointment of a receiver is a judicial function and not a legislative function. State v.
Wildes, 34 Nev. 94, 116 P. 595; In Re Cashmere Bank, 13 P. (2d) 892, at 895.
We do not think that the banking act of 1933, construed as a whole, limits the court in the
exercise of its jurisdiction in an action brought under sec. 68 of the act to a dismissal in the
event the plan under sec. 70 or the plan under sec. 75 should fail. The superintendent of banks
and the assets of all of the banks involved in the suits commenced under sec. 68 are under the
jurisdiction of the court for disposal in some manner consistent with the facts which were
brought to the court's attention. Under sec. 53 of the act it is expressly provided that a court of
competent jurisdiction may otherwise dispose of the assets of the bank.
55 Nev. 206, 212 (1934) Seaborn v. District Court
Regardless of the form of action, the court has the power to appoint a receiver where
justice requires it. Sheridan Brick Works v. Marion Trust Company, 61 N. E. 666; Mead v.
Burk, 60 N. E. 338; Hellebush v. Blake, 21 N. E. 976.
E. F. Lunsford, for Respondents:
It is our contention that the 1933 banking act, and particularly the sections under which
this complaint was filed, having adopted and made applicable the civil practice act of the
state, and having likewise throughout the act used the words complaint, action, and
other civil cases, subjects these proceedings to all of the provisions of the civil practice act
of the state, and the court being a court of general and equity jurisdiction, and having
acquired jurisdiction of every conceivable interested party, as parties defendant, and of the
res, the property of the banks, being the subject matter of the action, has jurisdiction to
appoint a receiver under the constitution of this state, as well as the civil practice act of this
state. State ex rel. Cameron v. District Court, 48 Nev. 198, 228 P. 617; 21 C. J. secs. 117,
118, 119.
OPINION
By the Court, Carville, District Judge:
The petitioner asks for a writ of prohibition to restrain the First judicial district court of the
State of Nevada, in and for the county of Ormsby, from appointing receivers for certain
banks, and the taking possession by said court through its receivers of the assets now in the
possession of petitioner as superintendent of banks, and formerly belonging to each of said
banks.
There are seven banks involved in this proceeding, and, as they are all situated in a similar
position and the same question is involved as to each of them, counsel representing the
petitioner and the respondents stipulated that this court consider all of the petitions
under one head and render its opinion disposing of the questions involved by one
decision.
55 Nev. 206, 213 (1934) Seaborn v. District Court
counsel representing the petitioner and the respondents stipulated that this court consider all
of the petitions under one head and render its opinion disposing of the questions involved by
one decision. The file numbers given the respective petitions in this court are 3054 to 3060,
inclusive, and affect the following banks: Riverside Bank, 3054; Carson Valley Bank, 3055;
Virginia City Bank, 3056; Bank of Nevada Savings & Trust Company, 3057; United Nevada
Bank, 3058; Tonopah Banking Corporation, 3059; Bank of Sparks, 3060.
Upon the filing of the petitions, an alternative writ of prohibition was issued in each case,
and the returns thereon consisted of answers, demurrers, and motions to quash the alternative
writs of prohibition, and to dismiss the petitions for the writs of prohibition, all raising the
questions whether the facts alleged in the petitions are such as to entitle petitioners to the
writs petitioned for, and whether the facts alleged show any excess of jurisdiction in the lower
court for which petitioner has no adequate remedy.
For the purpose of convenience and brevity we will refer to the act of 1933, chapter 190,
page 202, of the Nevada session laws, as the banking act.
A situation unprecedented in the State of Nevada prevails by reason of so many of the
banks of the state being involved. About seventeen thousand depositors are affected, and said
banks have been closed for a period of over a year. The economical welfare of the state, from
the banking and business standpoint, has been badly shattered, and the situation is such that
we appreciate the extraordinary nature of the effect upon the people of Nevada and business
conditions generally throughout the state. To a great extent the usual and ordinary vocations
of the people involved are stock raising, ranching, mining, and commercial business. Unusual
conditions have prevailed during the past few years in the way of declining prices and general
chaos which have made it impossible for the business men to meet their financial
obligations, which, in turn, has created an unusual strain on said banks.
55 Nev. 206, 214 (1934) Seaborn v. District Court
the business men to meet their financial obligations, which, in turn, has created an unusual
strain on said banks. With said banks closed, there has been little or no opportunity for
business men to obtain money or credit with which to carry on. We can therefore assume that
the situation confronting the lower court dealt with no ordinary state of affairs, and that these
conditions were taken into account by said court.
1. It was argued most strenuously before this court that a writ of prohibition is not the
proper procedure to determine the matters involved, and that there is an adequate remedy in
the ordinary course by appeal. We will first consider that question.
Section 9255, N. C. L. 1929, defines a writ of prohibition as follows: The writ of
prohibition is the counterpart of the writ of mandate. It arrests the proceedings of any tribunal,
corporation, board, or person, whether exercising functions judicial or ministerial, when such
proceedings are without or in excess of the jurisdiction of such tribunal, corporation, board,
or person.
Section 9256, N. C. L. 1929, provides where and when a writ of prohibition shall issue in
the following language: It may be issued only by the supreme court, to an inferior tribunal,
or to a corporation, board, or person, in all cases where there is not a plain, speedy and
adequate remedy in the ordinary course of law. It is issued upon affidavit, on the application
of the person beneficially interested.
In the case of Walser v. Moran, 42 Nev. 118, this court said (page 120, 173 P. 1149, 1150,
180 P. 492): Properly speaking, the office of the writ of prohibition is not to correct errors,
but to prevent courts from transcending the limitation of their jurisdiction in the exercise of
judicial power.
Again, at pages 120 and 121 of 42 Nev., 173 P. 1149, 1150, 180 P. 492: We do not
apprehend that the rule stated extends to the correction of errors for a mere irregularity in the
exercise of an authority inherent in a court; but, where an authority otherwise inherent is
limited by statute, the court which acts differently from the prescription of the act
exceeds its jurisdiction, and is therefore liable to prohibition."
55 Nev. 206, 215 (1934) Seaborn v. District Court
a court; but, where an authority otherwise inherent is limited by statute, the court which acts
differently from the prescription of the act exceeds its jurisdiction, and is therefore liable to
prohibition.
If the appointment of a receiver or receivers by the lower court would be void by reason of
the alleged exclusive nature of the banking act under which the action is instituted, we think it
would be a case for the proper interference by this court upon a writ of prohibition, unless
there is another plain, speedy, and adequate remedy at law. Walcott v. Wells, 21 Nev. 47, 24
P. 367, 9 L. R. A. 59, 37 Am. St. Rep. 478; Bell v. District Court, 28 Nev. 280, 81 P. 875, 1
L. R. A. (N. S.) 843, 113 Am. St. Rep. 854, 6 Ann. Cas. 982.
An early decision of the question involved is of extreme importance, since it affects the
economical welfare of the state. Many of the people of the state are so vitally concerned that
we feel this court is warranted in considering the application for the writ upon its merits in the
sound judicial discretion of the court for the furtherance of justice, and to allow a speedy
adjustment of the banking situation within the state, without the necessity of a long drawn out
and expensive process of appeal. Golden v. District Court, 31 Nev. 250, 101 P. 1021;
McComb v. Fourth Judicial District Court, 36 Nev. 417, 136 P. 563; State v. Churchill
County, 43 Nev. 290, 185 P. 459; State ex rel. Hatch v. Court, 50 Nev. 282, 257 P. 831;
Metcalfe v. District Court, 51 Nev. 253, 274 P. 5.
This brings us to a consideration of the main question. Has the lower court jurisdiction to
appoint a receiver or receivers to take from the possession of petitioner, as superintendent of
the banks, the assets of the closed banks and wind up their affairs?
Petitioner maintains that the banking act, supra, places the liquidation of the closed banks
in his possession, and the lower court has no jurisdiction to interfere except in so far as the
act itself prescribes; in other words, that the banking act confers exclusive power in the
superintendent of banks, to liquidate the assets of said banks, unless the court should
adopt the means provided in sections 70 to 76, inclusive, of said banking act.
55 Nev. 206, 216 (1934) Seaborn v. District Court
power in the superintendent of banks, to liquidate the assets of said banks, unless the court
should adopt the means provided in sections 70 to 76, inclusive, of said banking act.
Petitioner bases his petition upon the following grounds: (1) That there is no authority in
law for the filing of the cross-complaints by the respective parties, nor any authority to
determine the matters alleged in the cross-complaints, or to afford the relief prayed for
therein; (2) that the complainants are simple creditors and not qualified nor entitled to sue for
or demand the appointment of a receiver in the action, because no action of a creditor lies
solely for that purpose on any ground stated, or for any of the causes set forth in the
cross-complaints; (3) that the original complaint filed in the action was filed in a special
statutory proceeding, authorized by the banking act, which act contains no authority for filing
a cross-complaint, and no authority is contained therein for a court to hear and determine the
matters raised by such cross-complaint, or to afford the relief prayed for therein; that no
authority or jurisdiction is granted under said act to the court to appoint a receiver or to grant
any relief except the relief specifically authorized by the statute; (4) that the cross-complaints
fail to state facts sufficient to constitute a cause of action.
We will first consider the proposition of whether the banking act places the liquidation of
closed banks exclusively in the superintendent of banks and deprives a court of competent
jurisdiction of the right to interfere by the appointment of a receiver.
An examination of the said banking act discloses that it provides a means of incorporating
banks; authorizes them to conduct certain kinds of business; regulates the control of such
business; provides for the appointment of a superintendent of banks; prescribes the powers
and duties of the state board of finance; incorporates the provisions of the general corporation
law of 1925 and civil practice act of the state; provides for reorganization, incorporation of
assets, and the liquidating of banks in certain cases; makes the violation of certain
provisions a criminal offense; and repeals certain acts and all acts or parts of acts in
conflict with it.
55 Nev. 206, 217 (1934) Seaborn v. District Court
of banks in certain cases; makes the violation of certain provisions a criminal offense; and
repeals certain acts and all acts or parts of acts in conflict with it.
In this proceeding it is admitted that the banks in question are insolvent. Two means are
provided in the banking act for the taking over of insolvent banks by the superintendent of
banks. The first provides generally that, when a bank becomes insolvent, it may place its
affairs in the hands of the superintendent of banks by posting a notice on its front door, as
provided in section 23 of said act. The posting of the notice is sufficient to place all assets and
property of the bank in the possession of the superintendent of banks.
And the said bank shall be liquidated and its property and assets administered as in this
act or otherwise by law provided.
The second method provides generally that the superintendent of banks is given the right
to take possession of a bank under the conditions specified in section 53 of said act.
Upon taking possession, as aforesaid, the superintendent of banks shall retain such
possession until such bank shall be placed in condition safely to resume business or its affairs
be finally liquidated as herein provided, or until otherwise ordered by a court of competent
jurisdiction.
It will be noted that under both sections, which provide the conditions under which the
superintendent of banks might take possession of a bank, it is specified in section 23 thereof
that a bank shall be liquidated as in this act or otherwise by law provided. And in section 53
thereof such bank shall be liquidated as provided in the banking act or until otherwise
ordered by a court of competent jurisdiction.
Section 68 of said act provides generally that, when an action is commenced by depositors
or creditors representing not less than 15 percent of the outstanding indebtedness against an
insolvent bank, such action shall be governed by the civil practice act, approved March 17,
1911, and acts supplemental and amendatory thereto.
55 Nev. 206, 218 (1934) Seaborn v. District Court
Section 77 of the banking act makes the 1925 general corporation law, not in conflict, a
part of said act.
In the case of State v. Wildes, 34 Nev. 94, at page 126, 116 P. 595, 600, this court stated:
* * * The Constitution determines that there shall be three separate, co-ordinate branches of
government, the legislative, executive, and judicial, and that neither branch shall perform
functions that essentially belong to one of the other branches. The appointment of receivers
and the winding up of insolvent corporations are judicial in nature, and are functions of the
judicial branch of government, and not of the executive or legislative, further than the latter
may prescribe procedure.
While this case indicates that a legislature might in the exercise of police powers divert the
authority of liquidating insolvent corporations from the judicial to the executive branch of our
government, the point has never been directly decided in this state. We do not deem it
necessary to decide that point in this proceeding, according to the view we take of this matter.
2, 3. In all cases where, by legislative enactment, a mode of procedure is prescribed for the
accomplishment of a particular purpose, and the question is raised as to whether or not such
mode of procedure is exclusive, it is important to determine from the act the legislative intent.
This court has passed upon the construction of laws in the light of legislative intent on many
occasions.
In the case of State v. Washoe County, 6 Nev. 104, it is held that, where the language of a
statute is plain, its intention must be deduced from such language, and courts have no right to
go beyond it.
The case of Torreyson v. Board of Examiners, 7 Nev. 19, holds that no part of a statute
should be rendered nugatory, nor any language be termed mere surplusage, if such
consequence can properly be avoided.
Corbett v. Bradley, 7 Nev. 106, holds that no specific requirement of a statute should be
dispensed with or held merely directory, unless it is clearly manifest that the legislature did
not deem a compliance with it material, or unless it appears to have been prescribed
simply as a matter of form.
55 Nev. 206, 219 (1934) Seaborn v. District Court
it material, or unless it appears to have been prescribed simply as a matter of form.
In the case of State v. Ruhe, 24 Nev. 251, 52 P. 274, this court has held that the object of
the interpretation of a statute is to ascertain and enforce the intention of the legislature. No
sentence, clause, or word should be construed as unmeaning and surplusage if a construction
can be found legitimately which will give force and preserve all of the words of the statute. It
is a canon of construction that, if it is possible, effect must be given to every word of an act.
Ex parte Pittman, 31 Nev. 43, 99 P. 700, 22 L. R. A. (N. S.) 266, 20 Ann. Cas. 1319, holds
that a court has no legislative power, and cannot read into a statute something beyond the
manifest intention of the legislature, as gathered from the statute; its function being to
determine the legislature's intention from the language used in accordance with the
established rules of statutory construction.
It is held in Ex parte Rickey, 31 Nev. 82, 100 P. 134, 135 Am. St. Rep. 651, that, where a
statute is plain and unambiguous, there is no room for judicial construction, but the intention
of the statute must be deduced from the language used.
Ex parte Prosole, 32 Nev. 378, 108 P. 630, holds that effect must be given to every word,
clause, and sentence of a statute by construing it so as to make all parts harmonize with each
other and render them consistent with its general scope and object.
Heywood v. Nye County, 36 Nev. 568, 137 P. 515, holds that 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. See, also, State v. Beemer, 51 Nev. 192, 272 P.
656; Latterner v. Latterner, 51 Nev. 285, 274 P. 194.
Viewed in the light of these cases, let us consider the language in sections 23 and 53 of the
banking act, in connection with all other provisions of the act, and especially in connection
with sections 68 and 77 thereof.
55 Nev. 206, 220 (1934) Seaborn v. District Court
4. It is our opinion that the words or otherwise by law provided, found in section 23 of
said act, destroy the exclusive power of the superintendent of banks, so far as the liquidation
of insolvent banks is concerned, under the rights given him thereunder. In other words, we
conclude that the object of this section, taken in connection with the banking act as a whole,
is to give the superintendent of banks the primary right to administer the assets of insolvent
banks, but not the exclusive right if conditions are such as to warrant a court to assume
jurisdiction under proper procedure.
The force of the language expressed in section 53 is the same, when it states that the
superintendent of banks shall retain his possession until a bank be finally liquidated as
herein provided, or until otherwise ordered by a court of competent jurisdiction.
These sections, taken in connection with section 68, which provides that an action under
the banking act shall be governed by the provisions of the civil practice act, and section 77,
which incorporates the general corporation law of the State of Nevada as a part of the act,
clearly indicate that the legislature did not intend that the banking act should be exclusive.
The expression otherwise by law provided, in section 23, is extremely broad and cannot
be limited to mean as otherwise by law provided in this act; nor can the broad expression in
section 53, be finally liquidated as herein provided, or until otherwise ordered by a court of
competent jurisdiction, be subjected to the narrow meaning that it relates to methods of
procedure contained in the act itself. To prescribe this meaning to these provisions would be
reading them entirely out of the act, and we have no right to do this. If the legislature had
intended to make the procedure of the banking act exclusive, they could have easily included
words of a restrictive nature restricting the procedure within the provisions of said act and
eliminating the civil practice act.
5. The lower court took jurisdiction of the action under the provisions of section 6S of
the banking act, which provides generally that the action shall be governed by the civil
practice act.
55 Nev. 206, 221 (1934) Seaborn v. District Court
under the provisions of section 68 of the banking act, which provides generally that the action
shall be governed by the civil practice act. If petitioner's theory is correct, the lower court is
limited to the redress contained in these provisions of said act set forth between sections 70
and 76, inclusive. One of these forms of redress under sections 70 to 75 is the direction by the
court that a corporation be formed to take over the assets of the insolvent banks and conduct
the business in accordance with the articles of incorporation and the laws of the State of
Nevada. The other form prescribed under sections 75 and 76 is for the presenting of a plan or
plans for reopening a closed bank, in connection with other closed banks. The very nature of
the act itself in these respects takes away the exclusive power of the superintendent of banks
to liquidate them if either method should be adopted by the court.
Petitioner maintains that, if neither of these forms of redress can be granted by the court,
its only alternative is to dismiss the action.
With this theory we cannot agree. The lower court obtained jurisdiction under section 68
of said act by the filing of an action by depositors or creditors representing not less than
fifteen per cent of the total amount of the outstanding indebtedness against said bank,
exclusive of public deposits. The superintendent of banks, the depositors, creditors, and
stockholders of said banks, and each county and state political subdivision or state agency or
officer having deposits in said banks were made parties. The action is governed by the
provisions of the civil practice act of the State of Nevada. Incidentally in said action, upon the
application of 5 percent of the total number of depositors or creditors holding 50 percent or
more of the total indebtedness, exclusive of public deposits, the lower court was asked to
form either the corporation provided under sections 70 to 75 of said act, or adopt the plan for
reopening said banks by a consolidation thereof, or by the organization of new banks, in
connection with other corporations qualified as borrowers from the Reconstruction Finance
Corporation, or other federal agencies.
55 Nev. 206, 222 (1934) Seaborn v. District Court
from the Reconstruction Finance Corporation, or other federal agencies.
6. Since the action was commenced by the filing of the complaint under section 68 of the
banking act, all interested parties were before the court, as well as the assets and property of
the insolvent banks in question. It is elementary that, if the lower court assumed jurisdiction
at all it did so as a court of equity, since insolvency cases address themselves to the equity
side of our courts.
Article 6, sec. 6, of the constitution of Nevada, provides: The district courts in the several
judicial districts * * * shall have original jurisdiction in all cases in equity. * * * Section 14
of the same article provides: There shall be but one form of civil action, and law and equity
may be administered in the same action. An action' is a judicial proceeding, either in law
or equity, to obtain certain relief at hands of court. 1 Words and Phrases, Third Series, page
187.
7. The general rule is that, if a court of equity obtain jurisdiction of a controversy on any
ground and for any purpose, it will retain jurisdiction for the purpose of administering
complete relief. 21 Corpus Juris, Equity, secs. 117, 137, 138; 16 Cyc. 106; Harrigan v.
Gilchrist, 121 Wis. 127, 99 N. W. 909; State v. Wildes, supra.
Equity will not suffer a wrong to be without a remedy, is a maxim of equity which has
long been invoked and universally applied.
8. In this case the lower court was not satisfied to accept the plan presented for the
reorganization of the banks in question nor the plan for the organization of a corporation to
take over all the assets of said banks in connection with other banks, and has attempted to
supply another method of relief by the appointment of receivers. We can assume that the
lower court considered this action fully in the light of the situation we have referred to earlier
in this opinion, and has concluded that the appointment of receivers in the proper remedy.
55 Nev. 206, 223 (1934) Seaborn v. District Court
In this decision we are not dealing with the proposition of whether the lower court is
attempting to adopt the best course in handling the affairs of the insolvent banks, but whether
it is within the jurisdiction of said court to make the order it is about to make.
In the case of State ex rel. Cameron v. District Court, 48 Nev. 198, at page 203, 228 P.
617, 618, this court said: The jurisdiction of a court depends upon its right to decide a case,
and never upon the merits of its decision. Errors must be corrected by appeal, and not by
disobedience. Again, at page 204 of 48 Nev., 228 P. 617, 618, in the same case, we find the
following language: We do not pass upon the questions raised by counsel for the relators as
to the legality of the appointment of the receiver. We simply hold that the order, whether
erroneous or not, was within the jurisdiction of the court, and that the court had jurisdiction of
the parties and the subject matter involved in the rule to show cause why the relators should
not be punished for contempt.
Section 251 of the civil practice act of the State of Nevada (N. C. L. 1929, sec. 8749)
adopted by section 68 of the banking act, provides: A receiver may be appointed by the court
in which an action is pending, or by the judge thereof: * * * 5. In the cases when a
corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has
forfeited its corporate rights; 6. In all other cases where receivers have heretofore been
appointed by the usages of the courts of equity.
All interested parties were before the court, and jurisdiction having been attached for all
purposes, the lower court has authority to appoint a receiver or receivers to wind up the
affairs of the insolvent banks.
We do not consider the proceedings before the lower court as special statutory
proceedings, in view of the fact that sections 68 and 69 of the banking act term the cause an
action and provide that such action shall be governed by the provisions of the civil practice
act.
Since it is our opinion that the banking act is not exclusive, the case of Murray v.
American Surety Company {C. C. A.)
55 Nev. 206, 224 (1934) Seaborn v. District Court
exclusive, the case of Murray v. American Surety Company (C. C. A.) 70 F. 341, and that
class of cases relied upon by petitioner, are not in point. From our study of those cases they
deal with statutes that are clearly exclusive in their nature.
We now come to the consideration of the question whether the cross-complainants are
entitled to sue for and demand the appointment of receivers on account of being simple
creditors, and whether the cross-complaints state facts sufficient to constitute a cause of
action. Demurrers were filed by petitioner in the lower court attacking the cross-complaints
on these grounds.
We are of the opinion that these objections do not go to the question of the absence of
jurisdiction on the part of the lower court to appoint receivers. The lower court, having
properly assumed jurisdiction, had the right to decide whether the cross-complaints were filed
by the proper parties and whether they constituted causes of action. Whether the court was
correct in this respect is immaterial in this proceeding; that question we do not decide. State
ex rel. Cameron v. District Court, supra; Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 248 P.
893; McMorry v. Sutter County, 54 Cal. App. 76, 201 P. 797; Yolo Water & Power Co. v.
Lake County, 43 Cal. App. 332, 185 P. 195.
We are therefore of the opinion that the alternative writs of prohibition should be
dismissed and the petitions for writs of prohibition be denied.
It is so ordered.
Ducker, J.: I concur.
Sanders, C. J., concurring:
These combined proceedings in prohibition, initiated in this court on the petitions of
Edward J. Seaborn, as superintendent of banks of Nevada, against the respondent court and
judge thereof, may be said to be the culmination of bitter controversy between certain
depositors and creditors of the so-called Wingfield banks who favor their liquidation by the
superintendent of banks and those who favor their liquidation through receiverships.
55 Nev. 206, 225 (1934) Seaborn v. District Court
their liquidation by the superintendent of banks and those who favor their liquidation through
receiverships. As between the contestants, I wish to make it plain that this court will not
undertake to decide which is the best method of procedure. I also wish to make it plain that
the question of whether or not it is wise or foolish, expedient or inexpedient, proper or
improper, just or unjust to throw the Wingfield state banks into receivership are not matters
about which the court may concern itself. The conflict of serious opinion does not suffice to
bring these questions within the range of judicial cognizance.
I confess that prior to and upon the argument of these cases I was nearly convinced that as
a matter of law the respondent court exceeded its jurisdiction in the appointment of a receiver
or receivers in the Wingfield bank cases. In this connection, it is proper to state that I am
entirely satisfied that prohibition is the proper remedy to test the question. McComb v. Dist.
Ct., 36 Nev. 417, 136 P. 563; Walser v. Moran, 42 Nev. 118, 173 P. 1149, 180 P. 492; section
9255, N. C. L.
I entered upon the examination of the record and briefs with the preconceived notion that
the banking act of 1933 brought the Wingfield bank cases within the well-established
principle that, if a statute contains words negativing or expressly taking away the previous
equitable jurisdiction, or even if, upon a fair and reasonable interpretation, the whole scope of
the statute shows, by necessary intendment, a clear legislative intention to abrogate such
jurisdiction, then the former jurisdiction of equity is thereby ended. 1 Pomeroy Equity Jurisp.
(4th ed.) sec. 281. I also was aware of the well-settled rule that a court of equity which has
obtained jurisdiction of a controversy on any ground or for any purpose will retain such
jurisdiction for the purpose of administering complete relief and doing entire justice with
respect to the subject matter, unless deprived of the right to do so by statute, but I find that the
rule is not an inflexible one which a court of equity is bound to follow in every case that
comes before it. 21 C. J. secs. 117, 134.
55 Nev. 206, 226 (1934) Seaborn v. District Court
The petitioner herein bases his ground for prohibition solely upon the banking act of 1933,
chapter 190, Stats. 1933, 292. In order to thoroughly understand the real ground upon which
counsel for petitioner and myself differ, it will be necessary to review the statute. I note that
the statute is entitled, in part, An Act to provide a means of incorporating banks and trust
companies; * * * to provide for the regulation and control of such business; * * * to
incorporate herein the provisions of the general corporation law, as amended; to provide for
the reorganization, incorporation of assets, and the liquidation of banks and trust companies
in certain cases. * * * (Italics mine.) I note that the act comprises eighty-nine sections, and
in the last section declares that the act is an emergency measure. It is common knowledge that
the act was the outgrowth of the colossal economic tragedy of the voluntary suspension of
business by the Wingfield banks. I note that from section 1 to section 49, inclusive, the act is
devoted to the means of incorporating banks and trust companies and the regulation and
control of their business. I note that section 50 of the act provides that the governor shall
appoint a bank examiner, who, from and after the passage and approval of the act and in the
administration thereof, shall be known and designated as Superintendent of Banks, at a
fixed salary of $4,000 per year. I note that the section contains this clause: Until his
successor shall be named and appointed by the governor, the present bank examiner, who
shall hereafter be known as Superintendent of Banks,' shall continue in office at the salary
hereinabove provided, with all the powers and duties herein conferred and imposed. Edward
J. Seaborn was at the time bank examiner and is now superintendent of banks.
Section 53 of the act provides when and under what circumstances the superintendent of
banks may take possession of the business and property of any bank or banks. The section
contains this significant provision: "Upon taking possession, as aforesaid, the
superintendent of banks shall retain such possession until such bank shall be placed in
condition safely to resume business or its affairs be finally liquidated as herein provided,
or until otherwise ordered by a court of competent jurisdiction."
55 Nev. 206, 227 (1934) Seaborn v. District Court
Upon taking possession, as aforesaid, the superintendent of banks shall retain such
possession until such bank shall be placed in condition safely to resume business or its affairs
be finally liquidated as herein provided, or until otherwise ordered by a court of competent
jurisdiction. (Italics mine.)
Section 54 of the act provides, inter alia, as follows: Upon taking possession of the
property and business of such bank, the title to all assets of such bank shall immediately
become fully vested in the superintendent of banksfollowed by specific directions as to his
powers and duties in the premises.
So much of the act as is deemed applicable to the Wingfield bank cases is to be found in
sections 68, 69, 70 and 75.
Section 68 of the act reads in part as follows: Sec. 68. Whenever any bank shall have
voluntarily suspended business or when the superintendent of banks shall have taken
possession of the assets of any bank, depositors or creditors representing not less than fifteen
per cent of the total amount of the outstanding indebtedness against said bank, exclusive of
public deposits, may commence an action in the district court of Ormsby County or the
county in which the bank is located, against the bank, setting forth the facts that such bank is
insolvent, and is unable to pay its depositors and creditors in the usual course of business, or
has suspended payment of its obligations, and has refused or neglected to pay its obligations
for a period of at least thirty days prior to the filing of the complaint, or either of said causes.
In any such action the bank and the superintendent of banks and the directors of such bank,
and the depositors and creditors and stockholders, and each county and state political
subdivision or state agency or officer having deposits in said bank, shall be made parties
defendant.
A separate paragraph in the section provides, in substance, that every such action shall be
governed by the provisions of the civil practice act.
55 Nev. 206, 228 (1934) Seaborn v. District Court
Section 69 of the act provides, in part, as follows: Sec. 69. At the time of the filing of said
complaint, the court shall order the superintendent of banks, within such time as the court
shall fix by said order, to file a full and complete inventory of the assets of such bank in his
possession, together with his appraisal or opinion of the value of said assets, and of each item
constituting the same, and also a full and complete report of all claims and demands against
said bank, together with the names and amount due each creditor, depositor or claimant.
Section 70 of the act provides as follows: Sec. 70. Upon the trial of any such action, the
court shall find and determine the value of the assets of such bank, and, if the court shall find
and determine that such bank is insolvent, the court shall, on the application of persons
representing not less than five per cent (5%) of the total number of depositors or creditors
who hold fifty per cent (50%) or more of the total outstanding indebtedness, exclusive of
public deposits, direct that a corporation be formed with an authorized capital of common
stock equivalent to the aggregate amount of the value of the assets of said bank as found by
the court, and shall order said bank and the superintendent of banks to convey, assign, and set
over all of the property, real and personal, all stocks, bonds and notes, actions and causes of
actions, books and records, and all assets of every kind and character of said bank to said
corporation so formed, in consideration of the issuance, fully paid and nonassessable, of the
capital stock of said corporation.
Section 75 of the act provides, in part, as follows:
Sec. 75. At any time after the filing of the complaint, as in this act provided, persons
representing not less than five per cent of the total number of depositors or creditors who hold
fifty per cent or more of the outstanding indebtedness of the closed bank, exclusive of public
deposits, may present to the court a plan or plans for the reopening of said closed bank, or for
the reopening of said closed bank in connection with other closed banks.
55 Nev. 206, 229 (1934) Seaborn v. District Court
other closed banks. Such plan or plans for reopening of said bank or banks may be by
consolidation of banks, or by the organization of a new bank in conjunction with other
corporations qualified as borrowers from the reconstruction finance corporation or other
federal loan agencies or associations, the purpose of which shall be to take over, and which
will take over, all or any part of the assets of the closed bank or banks.
It may be assumed that the legislative power of a state is unlimited, except as may be
restricted by the constitution and laws of the United States and the constitution of any
particular state. State v. Rhodes, 3 Nev. 240. The statute in question is assailed upon
constitutional grounds, but in the view taken it is not necessary to discuss that phase of the
statute.
Counsel for the petitioner bases his argument for the issuance of the writs upon two
general propositions: (1) That the legislature, by providing a plain, complete, and adequate
method of statutory liquidation of insolvent banks, intended to divest courts of their ordinary
chancery jurisdiction and prerogative to appoint receivers of state banks. (2) If the respondent
court obtained jurisdiction of the Wingfield bank cases, it, by virtue of the banking act of
1933, was divested of its jurisdiction and power to appoint a receiver or receivers for those
institutions.
I admitted at the outset of this opinion that the district courts specified in the statute
(section 68), are without legal authority to deal with the property and assets of the Wingfield
banks in the hands of the superintendent of banks for liquidation, unless the statute so directs.
Upon mature consideration, I am of the opinion that the statute itself directs that, whenever
any bank shown to have voluntarily suspended business or when the superintendent of banks
shall have taken possession of the assets, depositors and creditors may commence an action in
the district courts mentioned and make the bank, its directors, stockholders, the
superintendent of banks, and others parties defendant. This is, to my mind, a legislative
declaration that courts may deal with the affairs of insolvent banks in the hands of the
superintendent of banks for liquidation.
55 Nev. 206, 230 (1934) Seaborn v. District Court
deal with the affairs of insolvent banks in the hands of the superintendent of banks for
liquidation. It will be observed that it is made a condition precedent to the commencement of
the action that the complaint state the fact that the bank is insolvent, unable to pay its
depositors, and unable to pay its obligations for a period of thirty days prior to the filing of
the complaint. Having the authority to commence such action upon any ground or for any
purpose, whether it be for liquidation, reorganization, incorporation of the assets, or for the
reopening of closed banks, the court which first obtained jurisdiction had jurisdiction to
administer complete relief and entire justice with respect to the subject matter of the action.
Basing my opinion upon the provisions of the act itself, I conclude that the respondent court
had jurisdiction to deal with the affairs of the insolvent (Wingfield) banks, in the hands of the
superintendent of banks.
The second point raised by counsel for the petitioner is the only controversial question in
the case. He earnestly insists that, if it be conceded that the court obtained jurisdiction of the
Wingfield bank cases, it could not legally divest the title of the property and assets of said
banks in the superintendent of banks, and transfer the title and order the superintendent of
banks to transfer and deliver up possession of the same to a person of the court's own
creationa receiver.
I have given cautious consideration to prior enactments in this state and of other states, and
have scrutinized with care all of the authorities cited by counsel, but I do not find any which
deal with an enactment such as must control the disposition of these cases. The differences in
the various statutes from other jurisdictions as compared with that of ours may readily be
accounted for. It is common knowledge that on November 1, 1932, the Wingfield banks
voluntarily suspended business, with around $26,000,000 of deposits, representing as many
as seventeen thousand depositors. As anxious as the legislature may have been and as
diligently as they tried to enact a measure to fit the local situation, they could not do so
without the enactment of a general law for the incorporation of banks containing special
features relative to the banking situation which confronted them.
55 Nev. 206, 231 (1934) Seaborn v. District Court
do so without the enactment of a general law for the incorporation of banks containing special
features relative to the banking situation which confronted them. The result was the
enactment of the banking act of 1933, which opens the door of the courts to aid in the
reorganization, incorporation of assets, and the reopening of closed banks (Wingfield banks).
It is apparent that these purposes could not be made legal and effectual without the aid of the
courts. The superintendent of banks in charge is nothing more than an administrative officer.
These new features distinguish the statute from those to be found in other jurisdictions. The
dual purposes of the enactment are confusing, when we come to analyze the intent and scope
of the jurisdiction conferred upon the courts. The actions authorized to be commenced by
depositors and creditors against insolvent banks virtually amount to the abdication of the
power and duties of the superintendent of banks. Counsel urges that any order, judgment, or
decree of the court to take from the superintendent of banks his title and possession to the
property is illegal and void.
This contention is based primarily upon the proposition that the entire import of the
enactment is to avoid the economic injustice of liquidating insolvent banks through
receiverships, and, the legislature having provided a plain, complete, and adequate method for
the liquidation of insolvent banks by and through the superintendent of banks, the respondent
court exceeded its jurisdiction in appointing a receiver or receivers in the Wingfield bank
cases. The statute itself is a sufficient answer to this proposition. It will be observed that by
section 68, 50 percent of the depositors or creditors of an insolvent bank may bring an action
in the court specified therein upon any ground or for any purpose, making the bank, the
superintendent of banks, and other parties defendant. Looking to the complaints in the several
Wingfield bank cases, the court certainly obtained jurisdiction. This being so, under the
well-settled rule it could retain jurisdiction for the purpose of administering complete relief
and doing entire justice with respect to the subject matter.
55 Nev. 206, 232 (1934) Seaborn v. District Court
with respect to the subject matter. 21 C. J. 134. But, say counsel, the order of appointment is
without jurisdiction because the statute vests the title and possession of the property and
assets of insolvent banks in the superintendent of banks; wherefore, the orders of appointment
were without jurisdiction. If the respondent court erred in the appointment of a receiver or
receivers, it was error within the jurisdiction and not reviewable in prohibition. In a
prohibition proceeding, the sufficiency of the complaint in the respondent court will not be
passed upon. 50 C. J. 708. Only for the purpose of determining the question of the court's
jurisdiction can the sufficiency of a pleading in the proceeding below be considered. Ewing v.
Harries, 68 Utah, 452, 250 P. 1049; 50 C. J. 708, note. The only inquiry permitted in this
proceeding is whether the respondent court, having jurisdiction, exceeded its legitimate
powers in the appointment of a receiver or receivers in the Wingfield bank cases. The statute
having conferred jurisdiction upon the court, with full power and authority over the property,
assets, and affairs of the Wingfield banks, it may not be said that as a matter of law the court
was without jurisdiction or exceeded its legitimate powers in the appointment of a receiver or
receivers. The fact that 50 percent of the depositors or creditors of said banks may commence
an action against the superintendent of banks is of itself sufficient to refute the contention of
counsel that the jurisdiction of the superintendent of banks to liquidate the property and assets
of insolvent banks was intended to be exclusive.
I concur in the order.
Coleman, J., having disqualified himself, the governor designated Hon. E. P. Carville,
Judge of the Fourth Judicial District Court, to sit in his place and stead.
____________
55 Nev. 233, 233 (1934) State Ex Rel. Miller v. Lani
State Ex Rel. MILLER Et Al. v. LANI Et Al.
No. 3037
March 1, 1934. 29 P.(2d) 839.
1. Officers.
Constitutional provision continuing in office for fixed time county officers holding under laws of territory
when constitution took effect held not to prevent legislature from reducing salaries of certain county
officers during their term, in county created after constitution became effective (Const. art. 17, sec.
13.)
On petition for rehearing. Petition denied. (Sanders, C. J., dissenting.)
For former opinion, see 27 P.(2d) 537.
McNamara & Robbins, for Relators:
James Dysart, pro se.
OPINION
By the Court, Coleman, J.:
A petition for a rehearing has been filed in behalf of relators, in which it is said that we
failed to consider in our former opinion that portion of article 17, sec. 13, of the constitution
as originally adopted, reading as follows: All county officers under the laws of the Territory
of Nevada at the time when the constitution shall take effect, whose offices are not
inconsistent with the provisions of this constitution, shall continue in office until the first
Monday of January, A. D. eighteen hundred and sixty-seven, and until their successors are
elected and qualified * * *.
In this connection counsel say in the petition: The point that we desire to here urge is that
when the Constitution as adopted retained or continued in office all county officers under the
law of the Territory for a definite fixed term, namely: for two years after the adoption of the
Constitution and until the first Monday in January, 1867, that this provision of the
Constitution was as much of a fixing of salaries or compensation of county officers as was
Section 5 of the said Article XVII fixing the salaries of certain state officers."
55 Nev. 233, 234 (1934) State Ex Rel. Miller v. Lani
of county officers as was Section 5 of the said Article XVII fixing the salaries of certain state
officers.
We failed to allude to that part of the constitution, for the reason that it was not referred to
in the brief filed in behalf of relators. It was alluded to on the oral argument, but unless
counsel on oral argument emphasize the fact that a point is then made which is not made in
the written brief we are liable to overlook it.
Counsel cite in connection with the point now made the case of State v. Tilford, 1 Nev.
240. We are heartily in accord with the conclusion reached in that opinion, but we do not see
that it aids the relators. After all, the question to be determined is: What did the constitutional
convention contemplate by adopting article 15, sec. 9, quoted in our former opinion, to the
effect that the legislature may at any time alter the salary of any officer whose compensation
is fixed in the constitution, provided such alteration shall not apply to any officer during the
term for which he has been elected? Counsel now contend that the constitution (article 17,
sec. 13), by continuing in office for a fixed time certain county officers, not only constituted
such officers constitutional officers, but fixed the salaries of such officers, for all time, as we
understand them, at the amount the officials were then receiving, unless the constitution is
amended. If we were to concede the theory suggested to be correct, we are unable to see how
it would help relators, since Elko County was not created until 1869 (Stats. 1869, c. 94, p.
153), several years after the constitution went into effect. How could the language quoted
apply to officers of counties not in existence at the time of the adoption of the constitution,
since by its very terms it applies only to county officers under the law of the territory of
Nevada at the time the constitution went into effect?
We can see no merit in the petition for a rehearing; hence a rehearing is denied.
Ducker, J.: I concur.
55 Nev. 233, 235 (1934) State Ex Rel. Miller v. Lani
Sanders, C. J., dissenting:
This, my dissent from the order denying petition for rehearing, will serve as a supplement
to my dissenting opinion in this cause. 27 P.(2d) 537, 538.
I am not concerned with the purely argumentative differences between my associates and
counsel for the petitioner, but since my associates have expressed themselves as being in
entire accord with the conclusion reached in the opinion of State v. Tilford, 1 Nev. 240, I may
say that the opinion in that case is bottomed on the proposition that county officers named in
the constitution are constitutional officers, which constitute a part of the framework of our
government, as established by that instrument. Being such officers, their salaries may not be
increased or diminished during the term for which they were elected. State v. Douglass, 33
Nev. 92, 110 P. 177. This court cannot hold the statute changing the salaries of petitioners
during their term of office valid because it is sanctioned by the legislature and public opinion
where it is manifest that the statue is not within the scope of legitimate legislation. State v.
Board of Com'rs. of Churchill County, 43 Nev. 290, 185 P. 459.
____________
55 Nev. 236, 236 (1934) State v. Behiter
STATE v. BEHITER
No. 2971
March 5, 1934. 29 P.(2d) 1000.
1. Criminal Law.
Supreme court, in criminal case, will not set aside judgment of conviction or grant new trial where, upon
examination of entire case, verdict is manifestly right, or no other verdict could have been properly
returned (Comp. Laws 1929, sec. 11266).
2. Criminal Law.
Accused may introduce evidence to rebut state's claim that alleged confession was voluntary.
3. Criminal Law.
Where alleged confession and admissions of accused were disclosed by testimony of his own witness,
accused, on appeal from conviction, held not in position to predicate error upon admission of such alleged
confession and admissions as being involuntary.
4. Criminal Law.
Admission is something less than confession, and is merely acknowledgement of some fact or
circumstance which in itself is insufficient to authorize conviction, and which tends only toward proof of
ultimate fact of guilt.
5. Criminal Law.
As basis for introduction in evidence of alleged admissions by accused, state is not required to make
preliminary showing that admissions were voluntarily made.
6. Criminal Law.
Accused's statements in conversation with sheriff after alleged homicide held not to amount to
confession, but constituted mere admissions indicating guilt, and therefore were admissible without
preliminary showing of voluntary character.
7. Criminal Law.
Error, if any, in admission of alleged confession and admissions by accused charged with homicide, held
not prejudicial, in view of other evidence pointing almost conclusively to accused's guilt (Comp. Laws
1929, sec. 11266).
8. Criminal Law.
Evidence showing commission of offense other than offense charged is admissible if tending directly to
establish guilt of offense charged.
9. Criminal Law.
In homicide prosecution, evidence showing commission of another offense based on defendant's entry
into room of another woman before entering deceased's apartment held admissible as directly tending to
prove offense charged.
10. Criminal Law.
In homicide prosecution, admission of evidence showing commission of another offense based on
defendant's entry into room of another woman before entering deceased's apartment
held not prejudicial, where defendant, as witness in his own behalf, grounded
defense of insanity upon such alleged collateral offense.
55 Nev. 236, 237 (1934) State v. Behiter
into room of another woman before entering deceased's apartment held not prejudicial, where defendant, as
witness in his own behalf, grounded defense of insanity upon such alleged collateral offense.
11. Criminal Law.
Cross-examination of deputy sheriff, defendant's witness, regarding result of comparison of palm
prints of defendant's hand with impression of palm prints on blood-smeared railing of deceased's bed, held
proper, in view of direct examination regarding investigation of homicide in deceased's apartment.
12. Criminal Law.
In homicide prosecution, instruction on defense of insanity, elements necessary to establish defense,
and burden of proof held not erroneous and not improper as invading province of jury or disparaging
defense of insanity.
13. Criminal Law.
Defendant's instruction that state's failure to introduce available finger print testimony authorized
inference that testimony would be unfavorable held properly refused, where deputy sheriff, who took finger
prints, testified as defendant's witness and his cross-examination concerning finger prints was unfavorable
to defendant.
Appeal from Eighth Judicial District Court, Clark County; J. Emmett Walsh, Judge,
presiding.
Joseph Behiter was convicted of murder in the first degree, and he appeals. Judgment and
order denying a new trial affirmed, with directions.
McNamara & Robbins, for Appellant:
We believe the following cited authorities are ample to sustain our contention that a
defendant who voluntarily takes the witness stand in his own defense cannot be interrogated
with respect to matters which were not inquired about in his direct examination, for the
purpose of impeachment, particularly where the answers to such interrogatories constitute
admissions or confessions on the part of the defendant with respect to the commission of the
crime, or which tend to so connect him, where the alleged confession or admission on the part
of the defendant of the crime charged have not been first offered in evidence against him and
first shown to be admissible under the theory that such statements or confessions were freely
and voluntarily made while the defendant was not persuaded through fear, hope or
inducement.
55 Nev. 236, 238 (1934) State v. Behiter
inducement. State v. Wilson, 39 Nev. 298, 156 P. 929; People v. Sweeney (Ill.), 136 N. E.
687; People v. Maggio (Ill.), 155 N. E. 373; Brown v. State (Tex.), 118 S. W. 139; Ben Cross
v. State of Tennessee, 221 S. W. 489, 9 A. L. R. 1354 and note; Nickels v. State, 106 So. 479;
State v. Carson (S. C.), 126 S. E. 755.
That any statements made by the defendant to Officer Bud Bodell or Sheriff Joe Keate
after defendant was under arrest and after the gruesome scene enacted in the Maxine
Armstrong apartment on the morning of July 24, between the hours of two and three o'clock,
if made by the defendant, were not freely and voluntarily made, and particularly those made
after the statement by Bodell to the defendant that if he would come clean he would or might
beat the gas, were erroneously admitted in evidence, we refer to the authorities as follows:
State v. Dye, 36 Nev. 143, 133 P. 935; State v. Gee Jon 46 Nev. 418, 211 P. 676; People v.
Quan Gim Gow (Cal.), 138 P. 918; People v. Clark, 203 P. 781; State v. Thomas (Iowa), 188
N. W. 689; People v. Leavitt (Cal.), 279 P. 1056; People v. Reed, 228 P. 361; State v. Nagle,
32 S. W. (2d) 596; Doublehead v. State, 228 P. 170; Bram v. United States, 168 U. S. 532, 42
L. Ed. 568; People v. Fudge, 174 N. E. 875; Deiterle v. State (Fla.), 124 So. 47; People v.
Thompson, 24 P. 384.
It is our contention, in connection with the evidence elicited from Mrs. Young concerning
the condition of her apartment, that all of the evidence in that connection was inadmissible as
not being part of the res gestae, and that it did not in any way tend to prove motive, but that
such evidence did tend to prove the commission of another crime on the part of defendant not
involved in the crime for which defendant was being tried, or in anyway connected therewith,
and that such evidence did not come within any of the exceptions to the general rule that
evidence of other crimes committed by the defendant is not admissible against such defendant
as proof or evidence of guilt of the crime with which defendant is charged and being tried for.
State v. McFarlin, 41 Nev. 4S6
55 Nev. 236, 239 (1934) State v. Behiter
McFarlin, 41 Nev. 486, 172 P. 371; State v. Monahan, 50 Nev. 27, 249 P. 566.
It is our contention that all of the testimony elicited on cross-examination from the witness
Bodell, with reference to the finding of finger prints and palm prints on the bed and various
articles of furniture in the Armstrong apartment shortly after the tragedy, and particularly that
portion of his evidence so elicited in which he stated that the palm prints on the bedstead,
where the blood smear was, were found to have had fourteen direct characteristics comparing
with the palm print of defendant's right hand was not proper cross-examination. State v.
Boyle, 49 Nev. 386, 248 P. 480; Underhill's Crim. Ev. (3d ed.), pp. 498, 500, 501; Buckley v.
Buckley, 12 Nev. 423.
The instruction to the jury, in substance and effect, that insanity on the part of the defendant
as a defense must be clearly proved, is not consistent with the general law as approved by
this court in the case of State v. Clancy, 38 Nev. 181, 147 P. 449, and is inconsistent with the
rule adopted by this court that where insanity is interposed as a defense it must be established
affirmatively by the defendant only by a preponderance of the evidence. Certainly the
language clearly proved, in our judgment, means more clear and convincing evidence than
does the language preponderance of the evidence.
The language proceeds with great caution in the instruction mentioned in exception 15,
we think likewise inconsistent with the weight of authority and with the holding in the case of
State v. Clancy, supra. Further, we believe it to be the law that where the trial court believes
the evidence sufficient to warrant the issue of insanity of the defendant to be presented to the
jury for their determination as a matter of fact, that no cautionary instruction should be given,
because, under the holding in the case of State v. Lewis, 20 Nev. 334, 22 P. 241, and the
cases therein cited, it seems to be the law that where insanity is set up as an affirmative
defense in a criminal action it is a valid defense when properly proven.
55 Nev. 236, 240 (1934) State v. Behiter
defense in a criminal action it is a valid defense when properly proven.
We contend that it is the law that the failure to introduce the evidence resulting from a
comparison of the finger prints warrants the presumption that if produced it would be
unfavorable to the state and favorable to the defendant, and that the court committed error in
its refusal to give the instruction to that effect offered by counsel for defendant. 16 C. J. 541,
art. 1023; State v. Harris, 166 N. C. 243, 80 S. E. 1067; Hiner v. state, 196 Ind. 594, 149 N.
E. 168; White v. State (Tex.), 248 S. W. 690; Studebaker Bros. Co. v. Witcher, 44 Nev. 568,
199 P. 477; Isola v. Sorani, 47 Nev. 365, 22 P. 796; 22 C. J. 115, art. 56.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; Harley A.
Harmon, District Attorney; and Roger Foley, Deputy District Attorney, for the State:
Not one question propounded by the district attorney to the defendant with reference to his
alleged statement of his connection with the crime or confession of the crime called for an
answer connecting the defendant with the crime. Any statements by the defendant upon
cross-examination connecting him with the crime were not responsive to the questions asked,
and if in his answers he volunteered information connecting him with the crime, no error was
committed. The distinguishing point between this case and the cases cited by appellant is that
the contents of the confession went before the jury in those cases. In the case at bar the
cross-examination dealt only with the mere fact of the making of a purported confession, and
this was proper cross-examination for the reason that the making of this purported written
confession was brought out on direct examination of the defendant.
Bodell's statement: Joe, you had better come clean, you might beat the gas, did not
induce defendant to confess to Bodell, because defendant had confessed before that statement
was made. And before this alleged promise was made the defendant had been warned by
Bodell that anything he might say would be used against him.
55 Nev. 236, 241 (1934) State v. Behiter
alleged promise was made the defendant had been warned by Bodell that anything he might
say would be used against him. That fact brings the matter squarely within the rule of State v.
Jon, 46 Nev. 418, 211 P. 676. Therefore, even if the so-called implied promise was made
before the defendant had been warned that what he might say would be used against him, it
would not render the confession involuntary.
From the testimony of the defendant himself it is apparent that when he entered the
apartment of Maxine Armstrong he believed that he was re-entering the room of Mary
Young. When he struck Maxine Armstrong with the pick he thought he was striking Mary
Young, to get even with her for what had taken place in her room. Therefore, all that occurred
in Mary Young's room was admissible in evidence as part of the res gestae; or if not upon res
gestae, then the same was admissible in evidence to show intent, to show malice and to show
motive, and to meet the issue of self-defense if the same should be plead by the defendant,
and the state had a right to anticipate the plea of self-defense. To show malice, deliberation
and premeditation, evidence of attending circumstances is admissible. 30 C. J. p. 153, sec.
366; Dunn v. State, 2 Ark. 229, 35 Am. Dec. 54.
Counsel for defendant had inquired of witness Bodell on direct examination if he had
investigated the crime under consideration, and gone into numerous findings of that
investigation; he took particular pains to qualify Bodell as a fingerprint expert in connection
with the testimony of the other acts and conduct of Bodell in the investigation of the case. We
had the right to inquire, on cross-examination of the facts suppressed on the direct
examination, of the remaining and unqualified circumstances of the subject of the testimony
as known by the witness. 40 Cyc. 2481; Fisher Mining Company v. Old Susan Mining
Company (Utah), 63 P. 587; Ferguson v. Rutherford, 7 Nev. 385; Buckley v. Buckley, 12
Nev. 423; State v. Boyle, 49 Nev. 386, 248 P. 48.
55 Nev. 236, 242 (1934) State v. Behiter
The subject matter of appellant's exception No. 15, being plaintiff's instruction 38d, is
copied verbatim from State v. Lewis, 20 Nev. 334, at page 353, where it is approved, among
other instructions. And it is apparent that the case of State v. Clancy, 38 Nev. 181, 147 P.
449, approves the rule announced in State v. Lewis, supra.
The record in this case does not affirmatively or otherwise show that the state failed to
introduce all of the evidence available concerning fingerprints. Therefore the refusal of
defendant's offered instruction to the effect that if evidence within the power of the state to
produce and not accessible to the defendant is withheld by the state the jury are authorized to
infer that, if produced, such evidence would be against the contentions of the state was not
error.
OPINION
By the Court, Sanders, C. J.:
The appellant, Joseph Behiter, designated here as defendant, was convicted of murder in
the first degree for the killing of Sylvia Reither, better known as Maxine Armstrong, and
was sentenced to death. Upon the trial, the accused relied upon his plea of Not Guilty and
his defense of Not Guilty by Reason of Insanity. The case is before us on appeal from an
order denying a new trial and from the judgment. We note that no point is made that the
evidence is insufficient to support the verdict, the judgment and sentence. The errors relied
upon for reversal relate solely to the court's rulings on question of law arising in the course of
the trial. The various assignments of error are classified and discussed in the opening brief
under general topics, as follows: (1) Error in admission of evidence; (2) errors in instructions
and refusal to give instructions requested by the defendant; (3) improper argument of the
district attorney; (4) error in refusing to grant a new trial upon the ground of after-discovered
evidence.
55 Nev. 236, 243 (1934) State v. Behiter
In order to thoroughly understand the various objections and the court's rulings thereon, it
will be necessary to give a statement of the facts concerning the homicide and a synopsis of
the testimony bearing upon the assignments of error.
Sylvia Reither, referred to throughout the record as Maxine, was a habitant of the
restricted district in the city of Las Vegas, Nevada. She, together with her consort, Fred
Green, occupied apartment No. 6 of the Dees Apartments in that district. Between the hours
of 8 and 9 o'clock, nearer 8 than 9, on the morning of July 23, 1931, Maxine was found lying
nude crosswise her bed in her apartment in a pool of blood, unconscious and in a dying
condition. As soon as possible she was removed to the Las Vegas Hospital, where, upon
examination by a surgeon, it was discovered that her skull had been crushed, and within an
hour after she died without regaining consciousness.
Fred Green, the consort of the deceased, testified that upon entering apartment No. 6 at
about the hour of 8:30 on the morning of July 23, he discovered that the screen and the lock
on the rear door had been torn and broken. Upon entering, he called to Maxine, asking what
the screen and the door were doing open. Receiving no reply, he started towards the bedroom
and met the defendant coming out. When asked what he was doing there, he replied that he
heard her scream, and a colored person ran out. They then engaged in a scuffle, and Green
called for help. One Norman Westmoreland, an occupant of an apartment near by, responded
within a few minutes, and, while he held the defendant, Green entered the room, and, seeing
Maxine in the condition described, rushed back and exclaimed: He killed her. The
defendant exclaimed: I didn't do it. Let me go. Turn me loose. I didn't kill her, but I saw a
nigger kill her. The scuffle continued between Westmoreland and the defendant, during
which a night officer arrived and the defendant was taken to jail. Green, Westmoreland, and
others then went into the room and saw on the bed a hammer, described in evidence as a
prospector's pick, the handle of which was smeared with blood.
55 Nev. 236, 244 (1934) State v. Behiter
prospector's pick, the handle of which was smeared with blood. The pick had been taken from
Westmoreland's automobile, parked at the Dees Apartments. The substance of the testimony
of the witness, Norman Westmoreland, was that he heard a woman scream; that there was
fresh blood on the defendant's hands, his shirt and coat. One witness, Mrs. I. O. Friend,
testified that she stood across the street, opposite the apartment and in plain view; that her
attention was attracted by loud screams of a woman, which impressed her as death screams,
pleading for life, and that she saw no person run out of the apartment.
Shortly after the defendant had been taken to jail he was brought back to the place of the
homicide by Joe Keate, the sheriff, and his deputy, Glenn E. Bodell. On being questioned, the
defendant protested his innocence, disclaimed having killed the deceased, and stated that a
nigger, or colored person, killed her. Officer Keate testified that, when the defendant had
been taken back to jail, he had several conversations with him during the day, in which
defendant maintained that he did not kill Maxine. He testified that, because of the persistent
statements of the defendant, he felt that he should satisfy himself whether he had to look for
another person. He testified that in the nighttime he contacted his deputy, Glenn E. Bodell,
and requested him to come with him; that he was going to take the defendant down to the
apartment and learn more about the crime. The sheriff and his deputy handcuffed the
defendant at the hour of 2:30 o'clock on the morning of July 24, after the homicide, placed
him in an automobile and drove to the apartment; on their arrival there, they went into the
kitchen, turned on the light, and led the defendant into the bedroom, the sheriff standing on
one side of him and the deputy on the other side; the sheriff testified that both questioned the
defendant kindly, using no force, no promises or threats, and in response to questioning the
defendant maintained that a colored person or nigger killed Maxine. At this point counsel for
the defendant interposed the objection that the witness should not be permitted to testify
to the conversation had at that time unless it was shown that any statement made by
defendant relative to the crime was freely and voluntarily made, and, in order to
determine this, a question of law, he suggested that the further examination of the
witness Keate be continued without the presence of the jury.
55 Nev. 236, 245 (1934) State v. Behiter
for the defendant interposed the objection that the witness should not be permitted to testify
to the conversation had at that time unless it was shown that any statement made by defendant
relative to the crime was freely and voluntarily made, and, in order to determine this, a
question of law, he suggested that the further examination of the witness Keate be continued
without the presence of the jury. The request was granted. On the cross-examination of Keate
we note that an attempt was made to lay a foundation for the contradiction or impeachment of
the testimony of the witness respecting the conversation had with the defendant at that time.
When the examination was concluded, counsel for defendant requested that he be permitted
to interrogate Bodell relative to the conversation and to the incidents which occurred at the
time. The request was denied. Whereupon the court ruled that the testimony of Office Keate
was admissible in evidence. The examination of Keate was continued in the presence of the
jury, and over defendant's objections he was permitted to testify relative to other
conversations had with defendant alone and in the presence of others, involving incriminating
admissions of the defendant.
A witness for the state, one Mary Young, was, over the objections of the defendant,
permitted to testify that at about 8 o'clock on the morning of the 23d the defendant entered
her room in the Honolulu Inn in the restricted district in the city of Las Vegas and but a short
distance from the Dees Apartments. She testified that defendant's presence there awakened
her, and that she was frightened by the defendant standing over her, looking mad; that he had
something concealed in his shirt; that she screamed and he told her to hush; that a difficulty
between them ensued, and both landed out into the street when others, hearing the
disturbance, appeared, and the defendant quieted down. Over the defendant's objections, the
witness was asked questions relative to the condition of her room. The substance of her
testimony was that the drawers of her dresser had been opened and their contents
disheveled and confused.
55 Nev. 236, 246 (1934) State v. Behiter
been opened and their contents disheveled and confused. In that connection the state's
attorney, in response to the court's questions, stated that the purpose of this questioning was
to show motive and the defendant's state of mind. Upon this theory the evidence as to the
condition of the room and what occurred there was permitted to go to the jury.
When the state rested, the defendant was called as a witness in his own behalf. He was
questioned respecting his history, the time he had resided in Las Vegas, his occupation, his
friendly relations with the officer, Bodell, his physical and mental condition, and as to certain
conversations he had had with Officer Bodell relative to the homicide. On direct examination
he was asked to relate what took place between himself and the witness, Mary Young, at the
time she had testified to as a witness for the state. He testified that he stopped in at her place
of business to talk to her, with no intention of having trouble; that it seemed to him that he
lost his head and became very much frightened, and from that time he had no recollection
whatever of what he did or what occurred up to the time he was being beaten at the Dees
Apartments. The substance of his testimony relative to his mental condition was that
everything seemed dark, that he was off, hazy minded, was suffering from headache, and that
he had tried the very best he could to remember what occurred after the difficulty with Mary
Young, but could not do so. In the course of his direct examination he testified that about four
or five years ago he had been hit over the head with a pistol at Poplar Bluff, Mo., and that he
went to a hospital there and took treatment for said injury, and that he stayed in the hospital
for about a week, and since that time he was subject to pains in the head and was suffering
from the same character of pains on the morning of the homicide. In the course of his direct
examination he was questioned minutely respecting the statements made to him in the
conversation at the hour of 2:30 o'clock on the morning of July 24 by Officer Bodell and the
incidents that occurred during the conversation.
55 Nev. 236, 247 (1934) State v. Behiter
Bodell and the incidents that occurred during the conversation. The conversation as testified
to by him tends to show that his answers to the questions propounded to him by Officer
Bodell were involuntary.
Officer Bodell was called as a witness for the defendant. In the course of his testimony on
direct he qualified as an expert on fingerprints, but he was not asked on direct whether he had
made any prints at the place of the homicide and compared them with prints made of the
defendant's hand. On cross-examination, over the defendant's objections, the witness stated
that he, not long after the homicide, made palm prints from the blood-smeared railing of the
bed in apartment No. 6 of the Dees Apartments, which had forty-two characteristics of the
palm prints made by him of the defendant's right hand.
On the part of the defense several witnesses who had known the defendant for a few
months in the city of Las Vegas testified that they considered him mentally unsound. Several
witnesses who gave testimony by deposition testified that they considered him mentally
unsound; each giving his reasons for considering defendant insane.
The witnesses in rebuttal on the part of the state testified that in their opinion defendant
was sane and knew right from wrong.
Upon conclusion of the trial, a volume of instructions were handed the foreman of the jury,
together with several forms of verdict, from which the jury selected and returned the
following: We, the jury in the above-entitled cause, find the defendant, Joseph Behiter,
guilty of murder in the first degree as charged in the information, and fix his punishment at
death.
On the date fixed for the pronouncement of judgment, the defendant moved the court for a
new trial on the ground of after-discovered evidence, set forth in the affidavit of one of
counsel for the defendant, then presented to the court. Upon argument, the motion was
overruled. Whereupon judgment was pronounced in accordance with the verdict of the jury,
and the defendant was sentenced to death by lethal gas in the mode and manner as
prescribed by the law of this state.
55 Nev. 236, 248 (1934) State v. Behiter
in accordance with the verdict of the jury, and the defendant was sentenced to death by lethal
gas in the mode and manner as prescribed by the law of this state.
1. We note from the record that the judgment was pronounced on November 2, 1931. The
appeal from the judgment and order denying a new trial was not submitted to this court for
decision until on September 18, 1933, since which date this court has given careful and
thorough examination of the record to determine whether or not there has been a miscarriage
of justice and whether the defendant has been prejudiced in respect to a substantial right. The
court is admonished by statute (section 11266, N. C. L.) that no judgment shall be set aside or
new trial granted in any case on the ground of misdirection of the jury or the improper
admission or rejection of evidence, unless in the opinion of the court, after an examination of
the entire case, it shall appear that the error complained of has resulted in a miscarriage of
justice or has actually prejudiced the defendant, in respect to a substantial right. In several
cases the court has had occasion to point out that the statute is designed to inhibit courts from
setting aside judgments or granting new trials, where, upon examination of the entire case, the
verdict is manifestly right or where it appears that no other verdict could have been properly
returned by the jury.
The various assignments of error are gathered from the record by learned counsel, formerly
judge of one of our district courts, who did not represent the defendant upon his trial. The
assignments have been selected with care and have been presented with assiduity and argued
with ability. Counsel insist that, in view of the entire record and accumulations of alleged
error, a judgment of reversal is warranted under the law and facts in the interests of justice
and humanity.
I look with disfavor on counsels' conclusion because the elements which would entitle
their most unfortunate client to the charity of the law are not present to the facts of this case.
55 Nev. 236, 249 (1934) State v. Behiter
The general assignment that the court erred in the admission of evidence is subdivided in
the opening brief into several headings: (1) The court erred in permitting the improper
cross-examination of the defendant relative to admissions and confession not shown to be
voluntary. (2) The court erred in permitting certain admissions and confession of the
defendant in evidence induced by hope of reward, promise of immunity from punishment,
and under circumstance sufficient to create terror or fear in the mind of the defendant. (3) The
court erred in permitting a witness for the defendant on cross-examination to testify relative
to the results made by the witness of comparison of palm prints lifted or made from the
blood-smeared railing of the bed in the apartment where the homicide occurred with the palm
prints lifted or take by the witness from the defendant's right hand.
2, 3. The chief ground upon which the defendant complains that the trial court, over his
objections, admitted in evidence his admissions and confession, not shown to be voluntary,
has its source or basis in a conversation by the sheriff and his deputy, had with the defendant
at the hour of 2:30 o'clock on the morning after the homicide at the place of the homicide,
with no one present other than the two officers and the defendant. Sheriff Joe Keate, a
witness for the state, was questioned in direct and cross relative to what was said to and by
the defendant on that occasion. The substance of Officer Keate's testimony was that the
defendant was questioned kindly, and that no promises or threats were made, and that, in
response to repeated questioning, the defendant maintained that he did not commit the crime,
but that a nigger or colored person did it. The record discloses that the testimony of the
defendant, as a witness in his own behalf, and that of Deputy Sheriff Bodell, as a witness for
the defendant, flatly contradicted the statement of the witness Keate. Bodell testified that the
defendant was shaky and nervous; that he said to the defendant: Joe, I have got you dead
bank. There's your finger prints on the bed.
55 Nev. 236, 250 (1934) State v. Behiter
prints on the bed. You killed her. Joe, how many times did you hit her? Defendant said: I
don't remember. I was dizzy and madthat he was crazy and trying to get away; that he did
not intend to hurt her; that he thought it was a hammer that he hit her with. Bodell said: Joe,
you had better come clean. You might beat the gas. The witness stated that it was dark in the
room and that he threw a flashlight on the bed of blood and hair, and that he thought the
defendant was going to faint; that he reached up in the dark and dropped a fan on the floor to
startle defendant; that the defendant was startled and suddenly exclaimed: Don't. I did it.
Under the decisions of this court and the numerous cases cited in the brief of counsel for
the defendant, there can be no controversy as to the law relative to the introduction in
evidence of a confession when relied upon by the state to connect the accused with the
commission of the crime charged. In the view we take of the record respecting the
conversation had with the defendant by the two officers at the unusual hour on the morning
after the homicide, there is nothing in the conversation, as testified to by Sheriff Keate, to
connect the defendant with the murder, but, on the contrary, no admission or confession was
made by the defendant in the course of the conversation. The defendant, in response to
repeated questions, actually denied that he killed the deceased, and insisted that a negro or
colored person had killed her. Except for the statements made by Officer Bodell in his
account of the conversation, there was no testimony or a circumstance to show that the
defendant made any admissions and confession. Sheriff Keate testified that no confession was
made. Bodell, on the other hand, testified that one was made under circumstances tending to
show that it was involuntarily made. In this situation the defendant is in no position to
predicate error upon the admission in evidence of his admissions and confession, as testified
to and detailed by his own witness. An accused is entitled to introduce evidence to rebut the
claim of the state that his confession was voluntary.
55 Nev. 236, 251 (1934) State v. Behiter
the state that his confession was voluntary. State v. Williams, 31 Nev. 360, 102 P. 974. But
here there was no testimony on the part of the state upon which it could possibly rely to
connect the defendant with the murder. Consequently, this, a reviewing court, cannot say that
as a matter of law the defendant was injured by the introduction in evidence of his admissions
and confession, testified to by his own witness, and without which there was no testimony to
show that a confession was made in the conversation referred to and that it was involuntary.
4-6. Error is predicated upon a conversation testified to by Sheriff Keate had with the
defendant subsequent to that as testified to by him and Officer Bodell on the morning of the
24th, in which Keate testified, in answer to a question, as follows:
A. He, the defendant, was telling me during the course of this conversation that the
morning that the crime was committed that he had had a couple of bottles of beer and that he
wandered down in the district and when he got down there that there was some blond girl that
he had been to see before, and that he went to the place, what he thought was her room, but it
seemed as though there was another woman there that he didn't recognize and that something
in the way of a row took place, and that there was a rock lying by the door, as her
remembered it, he didn't know whether he threw it at her or just what happened. He said that
he went away. He was mad and he kept getting madder and that he went to some car and in
the back seat of that car he found a hammer and he wanted to get even. It seemed like that he
was afraid. He said there might be someone after him, and that when he went in the room,
one time he said the woman screamed, and that he did not know how many times he hit her.
There was another conversation took place along the lines, but there was some change from
that.
A. This other time in taking about the affair he said that when he stepped in the room that
the girl screamed and he said shush' to her to keep quiet, and there was other things that
we talked about in general."
55 Nev. 236, 252 (1934) State v. Behiter
there was other things that we talked about in general.
We do not think the statements quoted amount to a confession. At most, they were
admissions of certain facts which indicated the guilt of defendant. An admission, as applied
to criminal law, is something less than a confession, and is but an acknowledgement of some
fact or circumstances which in itself is insufficient to authorize a conviction, and which tends
only toward the proof of the ultimate fact of guilt. People v. Ferdinand, 194 Cal. 555, 229 P.
341. The rule is well settled that with reference to admissions, as distinguished from
confessions, it is not necessary to show preliminarily to their introduction in evidence that
they were made voluntarily by defendant, without the use of coercion or intimidation of any
sort, and without promise of reward or immunity from punishment. People v. Cronevitch, 86
Cal. App. 646, 261 P. 309, 311. It must therefore be concluded that the contention of counsel
cannot be sustained.
7. In the case of People v. Cronevitch, supra, the court said: But aside from the
admissions made by defendant, the other evidence was so strong and so suggestive of the
guilt of defendant that, as a matter of law, it may not be said that any injury resulted to
defendant by reason of the introduction in evidence of such admissions. So, in this case, in
view of the other evidence which points almost conclusively to the defendant's guilt, we, as a
matter of law, cannot say that the defendant was injured by his admissions and confession as
shown by his own witness, Deputy Sheriff Bodell. The circumstances proven were apparently
conclusive of defendant's guilt, regardless of his admissions and confessions, so that any
mistake or error in their admission probably would not have changed the verdict. State v.
Williams, supra.
8-10. The point is raised that the trial court committed error in admitting evidence of
another offense committed by the defendant. The offense referred to is defendant's entry into
the room of Mary Young in the Honolulu Inn, a short distance from the Dees Apartments,
and shortly before his entry into the apartment of the deceased.
55 Nev. 236, 253 (1934) State v. Behiter
the Honolulu Inn, a short distance from the Dees Apartments, and shortly before his entry into
the apartment of the deceased. The evidence was admissible for two reasons: (1) That
evidence of another offense is admissible if tending directly to prove defendant's guilt of the
charge. State v. Hall, 54 Nev. 213, 13 P.(2d) 624. (2) That no injury resulted from the
admission of the evidence in that and for the reason that the defendant, as a witness in his
own behalf, grounded his defense of insanity upon the alleged offense in that he testified that
after his entry into Mary Young's room he lost his memory and had no recollection of what
occurred afterwards.
11. The next assignment of error relates to the claimed improper cross-examination of the
defendant's witness Bodell respecting the result of the comparison made by him of palm
prints of the defendant's right hand with the impression of palm prints lifted from the
blood-smeared railing of the bed upon which the deceased was lying when found. On direct
examination, the witness was qualified as a finger print expert, but he was not questioned on
direct respecting any impressions taken for the purpose of identifying the defendant as the
perpetrator of the crime charged. We note that the court, in ruling upon the objection as not
being proper cross-examination, stated that the door had been opened on direct for the
questioning. We agree with the trial court. On direct the witness was asked this question: On
or about the 23d day of July, 1931, did you conduct an investigation into the matter of the
killing in the Dees Apartments? He answered: I did. We think, therefore, that it was proper
to ask the witness on cross-examination as to the result of his investigation in the Dees
Apartments. Moreover, the particular testimony given by the witness on which prejudice is
predicated was not objected to.
12. Numerous errors are assigned to the misdirection of the jury and the court's refusal to
give directions requested by the defendant. In view of the admonition of the statute that no
judgment shall be reversed on the ground of misdirection of the jury, unless in the opinion
of the court, after an examination of the entire case, it shall appear that the error
complained of has resulted in a miscarriage of justice or has actually prejudiced the
defendant in respect to a substantial right, we cannot say that the errors complained of so
resulted.
55 Nev. 236, 254 (1934) State v. Behiter
ground of misdirection of the jury, unless in the opinion of the court, after an examination of
the entire case, it shall appear that the error complained of has resulted in a miscarriage of
justice or has actually prejudiced the defendant in respect to a substantial right, we cannot say
that the errors complained of so resulted. The learned counsel for the defendant complains
mostly of the instructions bearing upon the defense of insanity. Our attention is particularly
directed to the defendant's exceptions taken to instructions Nos. 14 and 15, which read as
follows:
To establish a defense on the ground of insanity, it must be clearly proved that at the time
of committing the act, the defendant was laboring under such a defect or suffering from
disease of the mind as not to know the nature or quality of the act he was doing, or, if he did
know it, that he did not know that he was doing what was wrong. The true test of insanity is
whether the accused, at the time of committing the crime, was conscious that he was doing
what he should not do; and if he was conscious that he was doing wrong and acted through
malice or motives of revenge, he cannot avail himself of the defense of insanity. Plaintiff's
Instruction No. 38 c.
With regard to methods of proof upon which the defense of insanity may be established,
the law from which consideration of public policy, the welfare of society and the safety of
human life, proceeds with great caution, and has adopted a certain standard by which the
insanity of the party on trial may be proved when relied upon.
The burden of proving insanity rest upon the defendant and to warrant you in acquitting
him solely upon that ground, his insanity at the time of committing the homicideif you find
that he did commit itmust be established by a preponderance of proof. The evidence of
insanity must outweigh and overcome the presumption of and evidence in favor of sanity in
some appreciable degree, and render it more probable that he was insane than that he was
sane. Insanity, being a fact to be proved by the defendant, must be established by evidence
in the case with the same clearness and certainty as any other fact alleged by the
defendant in his defense; that is to say, the proof must be such in amount that if the
single issue of sanity or insanity of the defendant should be submitted to the jury in a civil
case, they would find that he was insane.
55 Nev. 236, 255 (1934) State v. Behiter
a fact to be proved by the defendant, must be established by evidence in the case with the
same clearness and certainty as any other fact alleged by the defendant in his defense; that is
to say, the proof must be such in amount that if the single issue of sanity or insanity of the
defendant should be submitted to the jury in a civil case, they would find that he was insane.
Insanity is not proved or established by simply raising a doubt as to whether it exists or not.
Plaintiff's Instruction No. 38 d.
The language of which counsel complains in instruction No. 14 is: It must be clearly
proved, and the language complained of in instruction No. 15 is: Proceeds with great
caution, and the further language: Insanity is not proved or established by simply raising a
doubt as to whether it exists or not. It is insisted that the instructions are objectionable in that
they are inconsistent with those approved relative to the same subject matter in the cases of
State v. Clancy, 38 Nev. 181, 147 P. 449; State v. Nelson, 36 Nev. 403, 136 P. 377; State v.
Lewis, 20 Nev. 333, 22 P. 241. We do not so interpret the instructions. They do not invade
the province of the jury nor do they disparage the defendant's defense of insanity.
13. The court refused to give appellant's offered instruction, which reads: The jury are
instructed that if the State has failed to introduce proof which it might have done concerning
the finger prints taken at the scene of the crime, it is a circumstance to be considered in
reaching a conclusion as to the guilt or innocence of the defendant, and that if evidence
within the power of the State to produce and not accessible to the defendant is withheld by
the State, the jury are authorized to infer that, if produced, it would be against the contentions
of the State.
It is contended that this was error because finger prints were taken by the officers from
various articles of furniture in the room where the homicide occurred shortly after the killing
and compared with appellant's finger prints by an officer who was an expert in this respect
and who was in attendance upon the trial of the case under subpena by the state, but who
did not testify as to the result of such investigation.
55 Nev. 236, 256 (1934) State v. Behiter
respect and who was in attendance upon the trial of the case under subpena by the state, but
who did not testify as to the result of such investigation. Appellant is mistaken in this
contention. The officer referred to was placed on the stand by appellant, and on
cross-examination testified to the result of this investigation. His testimony in this respect
was unfavorable to appellant. The proposed instruction was therefore not applicable and
properly refused.
We find no error in the court's refusal to give the instruction requested by the defendant
respecting the subject of motive. We are of the same opinion as to the exceptions taken to
other instructions given and those refused.
Counsel raises the point that the court erred in refusing to grant a new trial upon the
ground of after-discovered evidence. Upon the authority of State v. Willberg, 45 Nev. 183,
200 P. 475, we are constrained to hold that the ruling was correct.
The point is stressed that the attorney for the state was permitted, over the defendant's
objections, to indulge in improper and most prejudicial statements in his closing argument to
the jury. It seems that district attorneys, in their enthusiasm and energies, overlook, or at least
disregard, the numerous cautions to be found in many opinions of this court. However, we
cannot say that in this case the argument complained of was such as to constitute reversible
error.
After an examination of the entire record, we conclude that no verdict other than guilty of
murder in the first degree, as charged in the information, could have been reached. The
judgment and order appealed from are affirmed, and the district court is directed to make the
proper order for the carrying into effect by the warden of the state prison the judgment
rendered.
Ducker, J.: I concur.
Coleman, J., concurring:
While I am of the opinion that the trial court erred in permitting the cross-examination of
defendant's witness Bodell, I think the defendant was in no way prejudiced thereby;
hence I concur in the order.
55 Nev. 236, 257 (1934) State v. Behiter
in permitting the cross-examination of defendant's witness Bodell, I think the defendant was
in no way prejudiced thereby; hence I concur in the order.
On Petition for Rehearing
June 1, 1934.
Per Curiam:
Rehearing denied.
Coleman, J.: I dissent.
____________
55 Nev. 257, 257 (1934) Lindley & Co. v. Piggly Wiggly Co.
LINDLEY & CO. v. PIGGLY WIGGLY NEVADA CO. Et Al. (Nevada Machinery &
Electric Co., Intervener).
No. 3016
March 10, 1934. 30 P.(2d) 223.
1. Corporations.
Failure to file claim against corporation in receivership within period prescribed by court order held not
to prevent filing of intervention petition seeking recovery of personal property or its value (Comp. Laws
1929, secs. 1653, 1654).
____________________
See, also, 54 Nev. 454, 22 P.(2d) 355.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Lindley & Co., on behalf of itself and all other creditors of the Piggly Wiggly
Nevada Company similarly situated, against the Piggly Wiggly Nevada Company and others,
in which the Nevada Machinery & Electric Company filed petition in intervention. From an
adverse judgment and order denying a new trial, intervener appeals. On motion to dismiss the
appeal. Motion denied.
G. Gunzendorfer, for Movent:
Section 1653 N. C. L. provides that the district court may limit the time within which
creditors shall present and make proof to the receiver or trustee of their respective claims
against the corporation, and may also prescribe whether notice shall be given to creditors
by publication or otherwise of such limitation of time.
55 Nev. 257, 258 (1934) Lindley & Co. v. Piggly Wiggly Co.
and make proof to the receiver or trustee of their respective claims against the corporation,
and may also prescribe whether notice shall be given to creditors by publication or otherwise
of such limitation of time. And by sec. 1654 N. C. L. it is provided that every claim against
any corporation for which a receiver or trustee has been appointed shall be presented to the
receiver in writing under oath. Pursuant to these provisions of the general corporation law of
1925 the district court made its order fixing four months as the time within which creditors
should present their claims.
It is expressly admitted that the Nevada Machinery and Electric Company did not present
any claim to the receiver nor file any claim in court. Unless the claim were filed within the
designated period the district court could not acquire authority to consider and pass upon the
claim of the Nevada Machinery and Electric Company. Barber v. International Co., 74 Conn.
652, 51 Atl. 857, 92 Am. St. Rep. 246; Leo v. Green (N. J. Eq.), 28 Atl. 904; Leadville Coal
Co. v. McCreery, 144 U. S. 475, 35 L. Ed. 824; Smith v. Jones Lumber & Merc. Co. 200 Fed.
647; Tex. & P. Ry. v. Johnson, 151 U. S. 81, 28 L. Ed. 81; Franklin Trust Co. v. Northern
Co., 42 N. Y. Sup. 211.
Cooke & Stoddard and Ayres, Gardiner & Pike, for Appellant:
The situation in the instant case is this: the receiver or trustee appointed by the trial court
took into his possession property claimed by appellant; appellant intervened in the
receivership proceeding and sought the order of the lower court for the restoration of the
property claimed by appellant. The procedure is in conformity with the rules and declarations
laid down by this court in several cases, to govern parties in the precise situation in which
appellant was. Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962; Mack v.
District Court, 50 Nev. 318, 258 P. 289. See, also, 53 C. J. secs. 125, 126, 247, 386 et seq.
and 394.
55 Nev. 257, 259 (1934) Lindley & Co. v. Piggly Wiggly Co.
OPINION
Per Curiam:
On May 29, 1931, Charles Hansen, the respondent herein, was appointed and qualified as
receiver of the business, property, and assets of Piggly Wiggly Nevada Company, a
corporation, and upon court order the creditors of said corporation were ordered to file their
claims against the corporation with the receiver within four months of the date of the first
publication of notice to creditors, to wit, June 1, 1931.
On March 12, 1932, the appellant filed its petition in the cause praying judgment against
the trustee for the recovery of the possession of all the personal property described in the
petition or for the value thereof in case delivery could not be had as a preferred claim. Upon
issues joined on the petition and answer of the trustee and after a full hearing, the trial court
rendered its decision, findings, and judgment in favor of the trustee and against the petitioner,
whereupon the petitioner and appellant perfected its appeal to this court from the trial court's
judgment and order denying a new trial.
The appeals are now before us upon the respondent's motion to dismiss. Quoting from the
notice of motion, the motion is based upon the ground that the district court of the Second
Judicial District of the State of Nevada in and for the County of Washoe was without
jurisdiction to hear and determine the petition of said Nevada Machinery and Electric
Company, and per consequence the Supreme court of the State of Nevada is without
jurisdiction to hear and determine the appeal of said Nevada Machinery and Electric
Company, for the like reason.
We note that the respondent in its notice of motion did not specify the particular ground
upon which it was claimed that the court was without jurisdiction to hear and determine the
petition of the appellant, but reference to the argument of counsel for the movent shows that
counsel for movent takes the position that in the matter of a receivership of a corporation the
presentation, filing, and proof of claims is made a condition precedent to the claimant's
right to have its claim adjudicated, and, without such claim having been filed within the
time specified by the court's order, the appellant has no standing in the cause as a
creditor of the corporation, citing in support of this contention sections 1653 and 1654, N.
C. L.
55 Nev. 257, 260 (1934) Lindley & Co. v. Piggly Wiggly Co.
precedent to the claimant's right to have its claim adjudicated, and, without such claim having
been filed within the time specified by the court's order, the appellant has no standing in the
cause as a creditor of the corporation, citing in support of this contention sections 1653 and
1654, N. C. L. Counsel seems to have fallen into the error of assuming that the appellant in its
petition asserts a claim for a money demand or its equivalent. Such is not the fact. Appellant
sought to proceed by way of intervention, which was held to be a proper remedy in such a
situation in Irving National Bank v. District Court, 47 Nev. 86, 217 P. 962.
It appearing from the record that the trial court had jurisdiction of the subject matter, the
motion to dismiss the appeals from the judgment and order is denied.
____________
55 Nev. 260, 260 (1934) Paterson v. Condos
PATERSON v. CONDOS (Otis Elevator Co. Et Al.,
Interveners)
No. 3014
March 10, 1934. 30 P.(2d) 283.
1. Appeal and Error.
Point not made in trial court cannot be urged on appeal for first time.
2. Appeal and Error.
In action to foreclose mechanic's lien, where recovery was permitted on quantum meruit, plaintiff's failure
to plead abandonment of express contract found by trial court to have been made held not to require
reversal of judgment; entire record showing that substantial justice was done (Comp. Laws 1929, sec.
8622).
Appeal from Second Judicial District Court, Washoe County; L. O. Hawkins, Judge.
On petition for rehearing. Petition denied.
For former opinion, see 28 P.(2d) 499.
W. M. Kearney and John Davidson, for Appellant: E. C. Short and Green & Lunsford, for
Respondent James G.
55 Nev. 260, 261 (1934) Paterson v. Condos
E. C. Short and Green & Lunsford, for Respondent James G. Paterson.
OPINION
By the Court, Coleman, J.:
A petition for a rehearing has been filed, in which it is urged that the plaintiff not having
pleaded an abandonment of the express contract found by the trial court to have been entered
into between the plaintiff and the defendant, the findings, judgment, and decree were
ill-advised, and without justification.
1. This point was not made in the trial court and cannot be urged in this court for the first
time. Sherman v. Dilley, 3 Nev. 21-27; McLeod v. Lee, 17 Nev. 103-120, 28 P. 124.
2. For another, and perhaps a better reason, the petition for a rehearing should be denied,
and that is, that from a careful consideration of the entire record we are of the opinion that
substantial justice was done by the trial court in this matter. It is provided by section 8622, N.
C. L., as follows: The court shall, in every stage of an action, disregard any error or defect in
the pleadings or proceedings, which shall not affect the substantial rights of the parties; and
no judgment shall be reversed or affected by reason of such error or defect.
This court, in Sweeney v. Schultes, 19 Nev. 53-58, 6 P. 44, 47, 8 P. 768, said: The
general tendency of the decisions is to look with disfavor upon mere technical objections,
which relate solely to the form of the process or proceedings, especially where it is apparent
that the error is one which has caused no substantial injury to the complaining party. In
pursuance with this general principle, it was enacted in our statute that the court shall in
every stage of an action disregard any error or defect in the pleadings or proceedings which
shall not affect the substantial rights of the parties, and no judgment shall be reversed or
affected by reason of such error or default.' 1 Comp.
55 Nev. 260, 262 (1934) Paterson v. Condos
by reason of such error or default.' 1 Comp. Laws, 1134. What was the object of the
legislature in incorporating this provision in the Code? There can be no difference of opinion
upon this question. The principal object was, as stated by the court in Dyas v. Keaton,
supra,'To avoid the technicalities of the common-law procedure, by which it was claimed
that justice was often defeated. This was certainly a most laudable as well as desirable object.
The practical spirit of the age, which will not brook trifling in business affairs, and whose
principal aim is utility, demands that courts should endeavor to secure the attainment of this
avowed design in the adoption of the Code. It is the general rule, now prevailing in the courts,
that wherever and whenever substantial justice is secured, a mere technical error, which is
harmless in its character, and which has worked no injury, will not be permitted to defeat or
annul the final conclusion or consummation of judicial proceedings.'
The petition for a rehearing is denied.
____________
55 Nev. 263, 263 (1934) Ex Parte Iratacable
Ex Parte IRATACABLE
No. 3043
March 7, 1934. 30 P.(2d) 284.
1. Evidence.
It is common knowledge that trucking industry of Nevada has for years contributed meagerly to support
of highways of state, compared to use it makes of them and abuse resulting from such use.
2. Constitutional Law.
Supreme court would indulge every presumption in favor of constitutionality of act licensing and
regulating motor carriers (Stats. 1933, c. 165).
3. Automobiles.
Act licensing and regulating motor carriers held excise tax measure and not police measure as respects
whether it is arbitrary and discriminatory, notwithstanding one of purposes was to protect safety and
welfare of traveling and shipping public, which purpose was incidental to main object sought, which was
revenue (Stats. 1933, c. 165, sec. 1).
4. Automobiles.
Motor vehicles may be classified and subclassified for purposes of taxation.
5. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting hearses (Stats.
1933, c. 165, sec.3).
Legislature was presumed to know that cemeteries adjacent to cities are reached by traversing
chiefly streets and highways not embraced in public highway system and that use of the public
highways by hearses is rare.
6. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting ambulances (Stats.
1933, c. 165, sec. 3).
Legislature was presumed to know that of the 90,000 population in the State of Nevada,
approximately 70,000 reside in towns and cities exceeding 400 in population, where hospitals are
located, not requiring the use of the public highways to reach the hospitals.
7. Constitutional Law.
Private motor carrier could not question constitutionality of act licensing and regulating motor carriers on
ground that it was discriminatory because exempting motor vehicles operated wholly within incorporated
limits of city or town, where carrier was exempted; act not discriminating against him (Stats. 1933, c. 165,
sec.3).
55 Nev. 263, 264 (1934) Ex Parte Iratacable
8. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting city licensed
taxicabs operating within ten-mile limit of city or town, exemption being construed as limiting operations
of taxicabs to ten-mile radius of city limits of city or town licensing them (Stats. 1933, c. 165, sec. 3).
Legislature was presumed to know that the land two or three miles beyond city limits of
substantially all of the cities and towns is arid and overgrown with sage brush and that the population
beyond such point is scattered, and that the calls for taxicabs to go out to such localities are rare, and
that beyond city limits roads lead from such city which are not part of the public highway system and
may be used largely in responding to such calls, and that taxicabs are light and do practically no
damage to public highways, while trucks are in constant use and do a great deal of damage to
highways.
9. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting city or town
draymen operating within two-mile radius of limits of city or town (Stats. 1933, c. 165, sec. 3).
Legislature was presumed to take into consideration that there is quite a population outside
city limits which is reached by public ways not part of public highway system, and that few of such
population occasionally have need of drayman operating a light vehicle who finds it convenient to use
public highways to a limited extent.
10. Automobiles.
Legislature is allowed wide discretion in classifying motor vehicles for purposes of licensing and
regulation.
11. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting private motor
carriers of property within two-mile radius of limits of city or town (Stats. 1933, c. 165, sec. 3).
12. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting transportation of
livestock by producers (Stats. 1933, c. 165, sec. 3).
Livestock industry is one of leading industries of the state, and except in rare instances the
livestock grower transports his product to market in large numbers by railway, and it is only
occasionally desirable to transport a blooded bull by truck or to use a truck to convey an animal to a
nearby neighbor or butcher.
55 Nev. 263, 265 (1934) Ex Parte Iratacable
13. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting those transporting
to market their own produce and those transporting supplies for their own use in their own vehicles (Stats.
1933, c. 165, sec.3).
14. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting transportation of
children to and from school (Stats. 1933, c. 165, sec. 3).
15. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting transportation of
highway contractor's own equipment in his own motor vehicle (Stats. 1933, c. 165, sec. 3).
Highway contractors contract with state and counties and use the highways to a very limited
extent as they are often engaged on one contract for many months.
16. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting transportation of
ores or minerals in producer's own vehicle whose unladened weight does not exceed 10,000 pounds (Stats.
1933, c. 165, sec.3).
17. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting transportation of
mining supplies in producer's own vehicle whose unladened weight does not exceed 10,000 pounds (Stats.
1933, c. 165, sec. 3).
Mines as a rule are found in mountain recesses, and public highways are traversed to a very
limited extent in reaching them.
18. Automobiles.
Act licensing and regulating motor carriers held not discriminatory because exempting privately owned
trucks in personal services, limited to unladened weight of 5,000 pounds (Stats. 1933, c. 165, sec. 3).
19. Automobiles.
Act licensing and regulating motor carriers held not unconstitutional as not being general and uniform in
its operation, where act was not limited to any portion of state and excepted no portion from its operation
(Stats. 1933, c. 165).
20. Statutes.
That act licensing and regulating motor carriers often used words and/or did not render act so vague
and uncertain that legislative intent could not be determined (Stats. 1933, c. 165).
21. Statutes.
Intent of legislature must control in construing statute, and where intent is doubtful, resort may
be had to rules of construction.
55 Nev. 263, 266 (1934) Ex Parte Iratacable265
where intent is doubtful, resort may be had to rules of construction.
Some of the rules of construction are that the entire act must be looked to, that punctuation and
grammatical construction are only aids when a doubt exists as to the legislative intent, and that an act
must be construed so as to meet the plain evident policy and purview of the act and bring it within the
intention which the legislature had in view at the time it was enacted.
22. Constitutional Law.
One not affected by statute cannot urge unconstitutionality thereof.
23. Statutes.
Act licensing and regulating motor carriers held not unconstitutional as embracing more than one subject
in its title, notwithstanding title was unduly prolix (Stats. 1933, c. 165, sec. 1; Const. art. 4, sec. 17).
24. Statutes.
Title of an act must be liberally construed.
25. Statutes.
In applying act licensing and regulating motor carriers, several sections will be harmonized where
possible to effectuate intent of legislature (Stats. 1933, c. 165, secs. 2(d), 4, 17).
26. Automobiles.
License provision in act licensing and regulating motor carriers held to mean that those who procured
license during 1933 shall not be deemed delinquent in procuring 1934 license until February 1, 1934, and of
each succeeding year in case license was procured during previous year (Stats. 1933, c. 165, sec. 17).
Original proceeding in habeas corpus on application of John Iratacable. Proceeding
dismissed, and petitioner remanded to custody of officer.
L. D. Summerfield and Platt & Sinai, for Petitioner:
Is there anything in any or all of the fourteen exemptions named in the act which take them
out of the declared purpose, policy and intent of the act and legitimately differentiates them
from the motor carriers made subject to the act? We submit there is not. Every one of the
fourteen exceptions create as much burden on the highways as those included; every one
should provide compensation for the use of such highways, as much as those included; and
every one should, by the payment of license fees thereunder, contribute to protect the
safety and welfare of the traveling and shipping public just as much as those included.
55 Nev. 263, 267 (1934) Ex Parte Iratacable
should, by the payment of license fees thereunder, contribute to protect the safety and welfare
of the traveling and shipping public just as much as those included. It is unfair and
discriminatory to require the included classes to contribute to the highway maintenance so
that they can be used and enjoyed by the excepted classes, which, as much as any of the
others, makes this maintenance necessary.
The rules of constitutional law forbidding a denial of the equal protection of the law, and
holding invalid unwarranted discriminations, are too familiar to require extensive citation of
general authorities. Ex Parte Taylor, 35 Nev. 504, 131 P. 133.
Therefore, attention will only be called to similar trucking acts held to be unconstitutional
because of discriminatory exceptions of the same character as here involved. Lossing v.
Hughes (Tex. Civ. App.), 244 S. W. 556; Ex Parte Faison, 93 Tex. Cr. 403, 248 S. W. 343;
Smith v. Cahoon, 283 U. S. 553, 51 Sup. Ct. 582, 75 L. Ed. 1264.
The and/or provisions of the act32 of them if our count is correctrender the act so
hopelessly vague and uncertain that its true meaning and intent cannot be ascertained so that
it can be fairly and justly enforced. It is a penal statute and its violation made a misdemeanor.
It is, therefore, subject to a strict construction. 25 R. C. L. 1084; 59 C. J. 601; Ex Parte
Alpine, 203 Cal. 731, 265 P. 947; 58 A. L. R. 1500.
Henderson & Marshall, Amici Curiae:
We contend that the title to the act in question, chapter 165, Statutes of Nevada 1933,
contains but one subject matter, while in the body of the act more than one subject matter is
treated, and it is therefore unconstitutional. Comparing the title of the act to that certain
portion of the act set up in subdivision (d) of section 2 of said act, it appears that the
legislature has gone beyond the scope of persons hauling for hire or engaging in other service,
as the word service as defined by Webster is: work or position of a servant; work
performed for the benefit of another."
55 Nev. 263, 268 (1934) Ex Parte Iratacable
work performed for the benefit of another. And, under and pursuant to the authority of State
v. Silver, 9 Nev. 227, we contend that the legislature was misled by the bill writer or by the
committee into levying and imposing certain license fees on that class of persons defined by
subdivision (d) of section 2, and that those persons therein defined do not necessarily haul for
hire or for any benefit whatsoever.
It can be seen by reading sections 4 and 17 in conjunction with each other that the declared
and expressed intention of the legislature was to exempt all persons not hauling for hire, in
section 4, and in section 17 to recognize any and all commercial registrations issued prior to
the effective date of the act, provided said persons fell within the class defined in subdivision
(d) of section 2 as private carriers. We believe this construction must be given weight for the
reason that prior to the act of 1933 there were no regulations prescribed other than the annual
registration fee required of merchants or persons operating in interstate commerce where said
persons do not haul for hire. These two sections of the act create a conflict which renders
those portions of the act unintelligible, uncertain and ambiguous.
The use of the term and/or is vague and indefinite, in that it cannot be determined just
what is meant by the use of the term. State v. Dudley, 159 La. 872. Thus it appears that the
definition of a private motor carrier of property hardly comes up to the requirements
expressed in the case of Ex Parte Davis, 33 Nev. 309, 110 P. 1131, for penal statutes, and we
contend that subdivision (d) of section 2 of the act, for that reason, is without legal force or
effect.
We also contend that the licensing act is unconstitutional in that it does not affect all
persons alike, in that the tax is exorbitant, unreasonable, confiscatory and prohibitive as
against the merchant or operator of a truck who makes an occasional use of the highway,
while it would not affect persons engaged in using the highways each and every day for
making their living by utilizing the facilities of the state by reason of its improved
highways.
55 Nev. 263, 269 (1934) Ex Parte Iratacable
highways each and every day for making their living by utilizing the facilities of the state by
reason of its improved highways. Interstate Transit v. Lindsay, 283 U. S. 183; Carley &
Hamilton v. Snook, 74 L. Ed. 704.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; and Julian
Thruston, Deputy Attorney-General, for Respondent:
Subject to constitutional limitations, the state has absolute control of its public streets and
highways. 13 R. C. L. 163, sec. 143; 5 R. C. L. Supp. 3324, sec. 143; 5 R. C. L. 1933 Supp. p.
762, sec. 143; State v. Reno Traction Co., 41 Nev. 405, 171 P. 375.
And the legislature may prohibit or condition the use of public highways for gain, as such
use is special and extraordinary. Packard v. Banton, 264 U. S. 140, 68 L. Ed. 596.
Chapter 165, Statutes of Nevada 1933, is a revenue act, enacted for the very purpose of
securing additional revenues needed for the construction, maintenance and repair of public
highways in this state; and this court some ten years ago recognized the power of the
legislature in this respect, as applied to common carriers by motor vehicle. State ex rel.
Ginocchio v. Shaughnessy, 47 Nev. 129, 217 P. 581. The statute is an excise tax measure.
Nance v. Harrison, 169 S. E. 22; Prouty v. Coyne, 55 Fed. (2d) 289; Portland Van & Storage
Co. v. Hoss, 9 P.(2d) 122; Louis v. Boyton, 53 Fed. (2d) 473; Iowa Motor Vehicle Ass'n. v.
Railroad Commrs., 221 N. W. 364, 75 A. L. R. 1.
The act being a revenue measure, the legislature had the right to exercise a broad
discretion in the classification for the purpose of taxation, and if it rested such classification
upon some ground of difference having a fair and substantial relation to the object of the
legislation, so that all persons in similar circumstances are treated alike, then the act is valid
and petitioner is not entitled to a dismissal herein. The exemptions contained in chapter 165
are valid exemptions. State v. Kozer (Ore.), 242 P.
55 Nev. 263, 270 (1934) Ex Parte Iratacable
242 P. 621; Continental Baking Co. v. Woodring, 55 Fed. (2d) 347; Curtis v. Pfost, 21 P.(2d)
73; Bushnell v. People, 19 P.(2d) 197; Schwartzmen v. Stahl, 60 Fed. (2d) 1034; State ex rel.
Scott v. Superior Court, 24 P.(2d) 87; Alward v. Johnson, 282 U. S. 509, 75 L. Ed. 496.
The Texas statute and the cases construing it are not in point here, upon the authority of
State v. Kozer, supra, and Continental Baking Company v. Woodring, supra.
We think that the title to chapter 165 is ample to cover every subject contained in the act.
A reading of the entire act will disclose that each section and each provision thereof is
germane to the very first statement contained in the title, i. e., An Act declaring the purpose
and policy of the legislature relative to use of the public highways of the state in the carrying
of persons and property thereon in motor vehicles.
Sec. 17, art. IV, constitution of Nevada, is to be liberally construed. Ex Parte Cerfoglio, 44
Nev. 343, 195 P. 96; In Re Calvo, 50 Nev. 125, 253 P. 671; State v. Ah Sam, 15 Nev. 27;
McBride v. Griswold, 38 Nev. 56, 146 P. 756; First National Bank v. Nye County, 38 Nev.
123, 145 P. 932.
We think that neither sec. 4 nor sec. 17 read in conjunction or otherwise, imports
ambiguity into the statute.
With respect to the term and/or, before such term can be said to void the act it must
appear that it makes the act so palpably unintelligible that the intent of the legislature cannot
possibly be ascertained. We submit that the statute under consideration is not of that type.
One not affected by the unconstitutionality of a provision of a statute, or one not injured
thereby, cannot attack its constitutionality. Ex Parte Noyd, 48 Nev. 120, 227 P. 1020.
We submit that the legislature, in the exercise of sound discretion, had the right to provide
an annual license tax for the use of the public highways, and give the licensee unlimited use
thereof, in lieu of endeavoring to provide a complex taxation scheme, costly of
administration.
55 Nev. 263, 271 (1934) Ex Parte Iratacable
give the licensee unlimited use thereof, in lieu of endeavoring to provide a complex taxation
scheme, costly of administration. The law does not require mathematical certainty or
scientific accuracy in each individual case. 55 Fed. (2d) 353.
OPINION
By the Court, Coleman, J.:
The petitioner was arrested on a charge of operating, without a license, as a private motor
carrier of property, for profit, for Nevada Packing Company, a corporation, engaged in
wholesale distribution of meat on the public highways of this state, and running between the
city of Reno, in Washoe County, and Carson City, in Ormsby County, and eleven miles south
of the city of Reno; thereupon he sued out a writ of habeas corpus.
The legislature of this state, at its last session, enacted a law regulating the use of the
public highways of the state, providing a license for the operation of motor vehicles
thereover, and matters connected therewith, being chapter 165, Statutes of Nevada of 1933.
Section 1 of the act reads: It is hereby declared to be the purpose and policy of the
legislature in enacting this law to confer upon the public service commission of Nevada the
power and authority, and to make it its duty to supervise, regulate and license the common
motor carrying of property and/or of passengers for hire, and to supervise for licensing
purposes the contract motor carrying of property and/or of passengers for hire, and to
supervise for licensing purposes the private motor carrying of property when used for private
commercial enterprises on the public highways of this state, hereinafter defined, so as to
relieve the existing and all future undue burdens on such highways arising by reason of the
use of such highways by motor vehicles in a gainful occupation thereon, and to provide for
reasonable compensation for the use of such highways in such gainful occupations, and
enable the State of Nevada, by a utilization of the license fees hereinafter provided, to
more fully provide for the proper construction, maintenance and repair thereof, and
thereby protect the safety and welfare of the traveling and shipping public in their use of
the highways.
55 Nev. 263, 272 (1934) Ex Parte Iratacable
for reasonable compensation for the use of such highways in such gainful occupations, and
enable the State of Nevada, by a utilization of the license fees hereinafter provided, to more
fully provide for the proper construction, maintenance and repair thereof, and thereby protect
the safety and welfare of the traveling and shipping public in their use of the highways. * * *
Section 2 reads: (a) The term motor vehicle' when used in this act means any
automobile, automobile truck, trailer, automobile tractor and semitrailer, motor bus,
motorcycle, or any other self-propelled or motor driven vehicle, except hearses and
ambulances, used upon any public highway of this state for the purpose of transporting
persons or property. (b) The term common motor carrier of property' when used in this act
shall mean any person engaged in the transportation by motor vehicles of property for hire as
a common carrier conducting fixed route or on-call route operations. (c) The term contract
motor carrier of property' when used in this act shall be construed to mean any person not a
common motor carrier of property engaged in the transportation by motor vehicle of property
for hire. (d) The term private motor carrier of property' when used in this act shall be
construed to mean any person engaged in the transportation by motor vehicle of property,
when engaged in wholesale occupations and/or the distribution, receiving and delivery of
property in producing and commercial enterprises. (e) The term common motor carriers of
passengers' when used in this act shall mean any person engaged in the transportation by
motor vehicle of passengers or express for hire as a common carrier conducting fixed route or
on-call route operations. (f) The term contract motor carrier of passengers' when used in this
act shall be construed to mean any person not a common motor carrier of passengers engaged
in the transportation by motor vehicle of passengers or express for hire. (g) The term public
highway' when used in this act shall mean every public street, road or highway or
thoroughfare of any kind used by the public, but shall not include that portion of
highways under construction or reconstruction.
55 Nev. 263, 273 (1934) Ex Parte Iratacable
street, road or highway or thoroughfare of any kind used by the public, but shall not include
that portion of highways under construction or reconstruction. * * *
Section 3 reads: None of the provisions of this act shall apply to any motor vehicle
operated wholly within the corporate limits of any city or town in the State of Nevada; nor to
city licensed taxicabs operating within a ten-mile radius of the limits of a city or town; nor to
the city or town draymen and private motor carriers of property operating within a two-mile
radius of the limits of a city or town, nor to the transportation of live stock and/or farm
products to market by the producer thereof, or such producer's employee, or merchandise
and/or supplies for his own use in his own motor vehicle; nor to the transportation of children
to and from school; nor to the transportation of highway contractor's own equipment in his
own motor vehicle from job to job wholly within the confines of this state; nor to the
transportation of ore or minerals in the producer's own vehicle; provided, however, only one
vehicle with an unladened weight not exceeding 10,000 pounds, or two vehicles whose
combined unladened weight does not exceed 10,000 pounds, shall be exempted for the
transportation of ore or minerals or mining supplies; nor to the operation of a privately owned
truck in personal services as distinguished from those using the highways in a gainful
occupation shall be exempted; provided, however, this exemption shall be limited to one such
vehicle not exceeding an unladened weight of five thousand pounds.
Section 4 provides that no common motor carrier of property or passengers, contract motor
carrier of property or passengers, or private motor carrier of property shall operate any motor
vehicle for transportation of either persons or property for compensation on any public
highway except in accordance with the provisions of the act.
Section 5 provides that all common motor carriers of property and/or of passengers, as
defined in the act, are declared to be common carriers within the meaning of the public
utility laws of this state, and subject to the act in question and laws of the state.
55 Nev. 263, 274 (1934) Ex Parte Iratacable
are declared to be common carriers within the meaning of the public utility laws of this state,
and subject to the act in question and laws of the state.
Section 6 vests the public service commission with authority to license, supervise, and
regulate every common motor carrier in all matters affecting the relationship between such
carriers and the traveling and shipping public over and along the public highways of the state.
Section 7 provides that no common motor carrier of intrastate commerce shall operate
without first obtaining from the public service commission a certificate of convenience, and
paid all license fees and filed an indemnity bond.
Section 8 provides that no common motor carrier of interstate commerce shall operate
within this state without paying a license fee and furnishing a liability policy.
Section 10 requires the public service commission to license and supervise for license
purposes all contract motor carriers of property and/or of passengers and all private motor
carriers of property either engaged in interstate or intrastate commerce, and such carriers are
to obtain a license before doing business.
Section 17 provides that every person operating a motor vehicle in the carrying of persons
or property for hire, or as a private carrier, shall procure a license to so operate, and section
18 fixes the basis for the license fees.
Section 16 requires that in issuing licenses provided for in section 18 the public service
commission shall require the licensee to file an obligation to pay the compensation for
injuries to third persons or their property resulting from the negligent operation of such
carrier.
The act provides that all moneys paid pursuant to its terms shall go into the state highway
fund for construction, maintenance, and repair of the public highways of the state. A violation
of the act is made a misdemeanor, punishable by fine or imprisonment, or both.
Counsel for petitioner urge several reasons to support their contention that the act in
question is unconstitutional, the chief of which are: That it deprives petitioner of the
equal protection of the law; that it violates the due process clause of the constitution;
that it is arbitrarily and unreasonably discriminatory; that it deprives petitioner of his
liberty and freedom in the selection of his business and in the acquisition and protection
of his property; that it is violative of the state constitution, in that it is not general and
uniform in its operation over the state; that the title of the act is violative of article 4, sec.
55 Nev. 263, 275 (1934) Ex Parte Iratacable
their contention that the act in question is unconstitutional, the chief of which are: That it
deprives petitioner of the equal protection of the law; that it violates the due process clause of
the constitution; that it is arbitrarily and unreasonably discriminatory; that it deprives
petitioner of his liberty and freedom in the selection of his business and in the acquisition
and protection of his property; that it is violative of the state constitution, in that it is not
general and uniform in its operation over the state; that the title of the act is violative of
article 4, sec. 17, of our state constitution, in that it embraces more than one subject. It is also
contended that the act is unintelligible and uncertain. No contention is made that the act
violates any interstate commerce provision.
In disposing of this case we shall not refer to the many decisions cited in the briefs,
because we feel that, in view of the existing condition, the reasoning and conclusions stated
in Continental Baking Co. et al. v. Woodring (D. C.) 55 F. (2d) 347, affirmed by the supreme
court in 286 U. S. 352, 52 S. Ct. 595, 76 L. Ed. 1155, 81 A. L. R. 1402, must control as to the
main questions presented.
In considering some of the questions involved it is well, too, to bear in mind that the
conditions in Nevada greatly accentuate the reasoning of the opinions in the case just cited.
For instance, while Kansas has an area of 82,000 square miles, with a population of about
2,000,000, with many cities much larger than any in Nevada, and one with a population
greater than the entire State of Nevada, Nevada's 90,000 population is scattered over an area
of 40,000 square miles in excess of that of Kansas. From this statement it is readily seen what
an enormous burden is imposed upon the taxpayers to maintain our highways.
1, 2. It is a matter of common knowledge that the trucking industry of this state has for
years contributed meagerly to the support of the highways of the state, compared to the use it
makes of them and the abuse resulting from such use. It is not only our duty to indulge every
presumption in favor of the constitutionality of the act in question, but to be loath to
override an act so wholesome and beneficent as the present one.
55 Nev. 263, 276 (1934) Ex Parte Iratacable
indulge every presumption in favor of the constitutionality of the act in question, but to be
loath to override an act so wholesome and beneficent as the present one.
While counsel for petitioner have set out in their petition several theories upon which they
contend that the act in question is unconstitutional, they confine their argument to three
points, the chief one being that it is arbitrary and discriminatory, in that it excepts from its
terms fourteen classes of motor carriers, as hereinafter designated.
Counsel insist that from a consideration of the act in the light of the express purpose,
policy, and intent thereof, as expressed in section 1, every one of the fourteen exceptions
create as much burden on the highways as those not exempted. They then take up and
consider seriatim the fourteen exceptions mentioned.
3. Notwithstanding the contention of petitioner that the act is a police measure,
demonstrated, as is claimed, by the language in section 1 to the effect that one of its purposes
is to protect the safety and welfare of the traveling and shipping public in their use of the
highway, we are of the opinion that it is an excise tax measure. A reading of section 1
demonstrates that its purpose is to provide for reasonable compensation for the use of such
highways * * * and enable the State of Nevada, by a utilization of the license fees hereinafter
provided, to more fully provide for the proper construction, maintenance and repair thereof,
and thereby protect the safety and welfare of the traveling and shipping public. These words
demonstrate that the contention of counsel in this connection is erroneousthat the raising of
funds for the construction, maintenance, and repair is the object sought from the revenue to
be raised, and that the safety of the public sought to be promoted is incident to the
maintaining of the highway in repair.
4. The right to classify motor vehicles for purposes of taxation is conceded, and the right
to subclassify is well recognized. Commonwealth v. Clark, 195 Pa. 634, 46 A.
55 Nev. 263, 277 (1934) Ex Parte Iratacable
46 A. 286, 57 L. R. A. 348, 86 Am. St. Rep. 694, affirmed in Clark v. Titusville, 184 U. S.
329, 22 S. Ct. 382, 46 L. Ed. 569; 1 Cooley Taxation (4th ed.) 748; Wingfield v. South
Carolina Tax. Commission, 147 S. C. 116, 144 S. E. 846, 853, where many authorities are
cited on the point.
5. The first class of motor vehicles claimed to be exempted under the statute, which
counsel contends is an unreasonable and arbitrary discrimination, are hearses. It is true, as
contended, that these vehicles are owned by private concerns; but we can see nothing
arbitrary or unreasonable in this exemption in view of the existing known conditions, of
which the legislature had knowledge and by which it is presumed to have been controlled. We
must presume that the legislature knew that the cemeteries adjacent to cities are reached by
traversing chiefly streets and highways not embraced in the public highway system, and that
the use of the public highways by hearses is rare; whereas, this petitioner, comparatively
speaking, to use the language of the court in Continental Baking Co. v. Woodring, supra, uses
daily upon the public highways a fleet of trucks in the conduct of their business.
6. The next class of motor vehicles counsel contend are exempted, and thereby constitute
an unreasonable and arbitrary discrimination, are ambulances. Again we think the legislature
must be presumed to know that of our 90,000 population approximately 70,000 reside in the
towns and cities exceeding 400 in population, where the hospitals are located, not requiring
the use of the public highways to reach them, and that the population scattered in the remote
regions without telephonic connections can take an injured person to a hospital in the same
length of time it would take to go for an ambulance. In this situation it certainly cannot be
said the legislature was either arbitrary or unreasonable in exempting this class.
7. The next class exempted, to which exception is taken, are motor vehicles operated
wholly within the corporate limits of a city or town. The supreme court, in Continental
Baking Co. v.
55 Nev. 263, 278 (1934) Ex Parte Iratacable
in Continental Baking Co. v. Woodring, supra, has pointed out why such an exemption is
justified in incorporated municipalities. Both Reno and Carson City are thus incorporated.
Petitioner is exempted along with all others, hence he cannot urge the point made as to this
class, as it does not discriminate against him. Doolittle v. District Court, 54 Nev. 319, 15
P.(2d) 684.
8. The next class exempted by the act, and which it is claimed constitutes an arbitrary
discrimination, are city licensed taxicabs operating with a ten-mile limit of a city or town. We
think this act should be construed as limiting the operations of such taxicabs to a ten-mile
radius of the city limits of the city or town licensing them. As so construed, we are unable to
see that the exemption is either arbitrary or unreasonable. The members of the legislature,
coming as they do from every section of this state, are familiar with the arid conditions
thereof. They know that the land two or three miles beyond the city limits of substantially all
of the cities and towns is arid and overgrown with sagebrush, that the population beyond such
a point is scattered, and that the calls for taxicabs to go out to such localities are rare; and,
furthermore, that beyond the city limits, in many instances, roads lead from such city which
are not a part of the public highway system, and may be used largely in responding to such
calls. They have a right, too, to take into consideration the fact that taxicabs are light and do
practically no damage to the public highways, while, on the other hand, the trucks, to which
are often attached heavy trailers, are in constant use and do a great deal of damage thereto.
9-11. The next class of motor vehicles exempted from the operation of the act, which is
claimed to be an arbitrary and unreasonable discrimination, are city or town draymen
operating within a two-mile radius of limits of a city or town. What we have said as to the
taxicab exemption applies, to a great extent, to this class. In this connection, the legislature no
doubt took into consideration that usually there is quite a population just outside the city
limits, reached by public ways not a part of the public highway system, a few of whom
occasionally have need of a drayman operating a light vehicle, who finds it convenient to
use the public highway to a limited extent.
55 Nev. 263, 279 (1934) Ex Parte Iratacable
into consideration that usually there is quite a population just outside the city limits, reached
by public ways not a part of the public highway system, a few of whom occasionally have
need of a drayman operating a light vehicle, who finds it convenient to use the public
highway to a limited extent. Why should it be an arbitrary discrimination to exempt such and
not exempt the Nevada Packing Company's fleet of heavy trucks which use the public
highways frequently every business day? The legislature is allowed a wide discretion in such
matters, and we cannot say it has abused that discretion. The contention as to private motor
carriers of property within a two-mile radius of a city is equally lacking in merit, and for the
same reason.
12. The next class which it is claimed was arbitrarily exempted are the producers of
livestock. Of course, the legislature in exempting this class took into consideration the extent
to which this privilege is exercised, as well as other circumstances and the conditions. The
livestock industry is one of the leading industries of the state, and we must assume that the
legislature well knew that, except in rare instances, the livestock grower transports his
product to market in large numbers and by railway. Distances are great in Nevada, and to
contemplate the transporting of large quantities of livestock by motor vehicles once or twice a
year would necessitate an undue investment in such vehicles for such rare use. Occasionally it
may be desirable to transport a blooded bull by truck, or to use a truck to convey an animal to
a nearby neighbor or butcher. In view of the conditions and customs of the ranchers, known
to the legislature, we think the exemption not unreasonable or arbitrary. The exemption of
this class by the Kansas act, in which state the conditions are far less favorable to the
exemption, was upheld by the supreme court of the United States in Continental Baking Co.
v. Woodring, supra.
13, 14. The next class which it is claimed was arbitrarily and unreasonably exempted from
the operation of the act are those who transport to market their own produce.
55 Nev. 263, 280 (1934) Ex Parte Iratacable
produce. The contention as to this exemption and the exemption in favor of those who
transport supplies for their own use in their own vehicles is without merit, as shown by the
Continental Baking Co. case mentioned. The same may be said as to the exemption of motor
vehicles used in transporting children to and from school.
15. The next class which it is claimed is arbitrarily and unreasonably exempted by the
terms of the act is the equipment of highway contractors. We see nothing unreasonable or
arbitrary in this exemption. Highway contractors contract with the state or counties, and the
same reasoning justifies the exemption of motor vehicles engaged in transporting children to
and from school. Furthermore, such contractors use the highways to a very limited extent, as
such an outfit is often engaged on one contract for many months.
16. It is next contended that the legislature arbitrarily and unreasonably exempted motor
vehicles engaged in the transportation of ores or minerals in the producer's own vehicles. The
same reason is urged against this exemption as is urged to motor vehicles used by the
producers of livestock and farm products. It is said, too, that such exemption constitutes
discriminations within discriminations, and that no constitutional reason exists for limiting
the weight of vehicles used by such producers.
As pointed out in the case of Goldfield Con. M. & T. Co. v. Old Sandstorm Annex G. M.
Co., 38 Nev. 426, 150 P. 313, mining is the paramount interest in this state. While it has been
declared the paramount interest by the legislature, and is favored in every way, as a matter of
public policy, and has been for many years a source of revenue to the state, during the period
generally known as the depression but what might more accurately be called the Gorge of
Gloom, the revenue to the state from mining has been almost entirely wiped out. In view of
this well-known fact and the further fact that mills are generally erected near the mines, for
treating the ores, and that the public highways are used to but a very limited extent for the
transportation of ores, we cannot say that the exemption is either unreasonable or
arbitrary.
55 Nev. 263, 281 (1934) Ex Parte Iratacable
ores, we cannot say that the exemption is either unreasonable or arbitrary. We think nothing
more need be said in this connection.
17. As to the contention as to the exemption of the operator in transporting his mining
supplies, much of what we have just said applies. Mines, as a rule, are not found on public
highways, but in the mountain recesses, except where the town grows up around the mines,
and public highways are traversed to a very limited extent in reaching them. The contention
in this connection, as in some others, only serves to indicate the extremity to which petitioner,
and those back of him, who are interested in the success of his cause, are driven.
18. The next class which it is claimed is arbitrarily and unreasonably exempted are
privately owned trucks in personal services, limited to an unladened weight of 5,000 pounds.
This class of vehicles is not used on the public highways as a place of business, and are
operated thereon but little, as compared to those who use the public highways in a gainful
occupation. Such an exemption was upheld in Carley & Hamilton v. Snook, 281 U. S. 66, 50
S. Ct. 204, 206, 74 L. Ed. 704, 68 A. L. R. 194, where the court said: Only a word need be
said of petitioner's contention that the exemption of all vehicles weighing less than 3,000
pounds, although their loaded weight may be much more than vehicles not exempt, infringes
the equal protection clause of the fourteenth amendment and the similar section 21 of article 1
of the state Constitution. That the legislature may graduate the fees according to the
propensities of the vehicles to injure or to destroy the public highways, and may exempt those
with respect to which this tendency is slight or nonexistent, cannot be doubted. We may not
assume that vehicles weighing less than 3,000 pounds, with loads which they usually carry,
are not of this class, or that vehicles weighing more than 3,000 pounds with their accustomed
burden added do not have this tendency.
We find no merit in the contention.
55 Nev. 263, 282 (1934) Ex Parte Iratacable
19. It is said the act is not general and uniform in its operation. We find no word limiting
the act to any portion or portions of the state, nor excluding or excepting any portions of the
state from its operation. We do not see the slightest basis for this contention.
20, 21. Learned counsel say: The and/or' provisions of this act32 of them if our count
is correctrender the act so hopelessly vague and uncertain that its true meaning and intent
cannot be ascertained so that it can be fairly and justly enforced.
They make a terrible assault upon the use of and/or, quoting from an editorial in the
American Bar Association Journal for July, 1932, and from an and/or Symposium in the
September Journal of 1932, wherein such eminent lawyers as John W. Davis and George W.
Wickersham denounced the practice in unmeasured terms. Our attention is also directed to
the language of the court in State v. Dudley, 159 La. 872, 106 So. 364, and in Preble v.
Architectural Iron Workers' Union of Chicago, 260 Ill. App. 435, which disapprove the use of
and/or.
While we approve of all that has been said in condemnation of the use of and/or, we do
not think the act is so hopelessly vague and uncertain that we cannot gather therefrom the
intent of the legislature. There are certain well-known rules which courts must never lose
sight of, among which is that the intent of the legislature must control, and where the intent is
doubtful resort may be had to rules of construction, among which are: (1) That the entire act
must be looked to; (2) that punctuation and grammatical construction are only aids when a
doubt exists as to the legislative intent; and (3) that an act must be construed so as to meet the
plain, evident policy and purview of the act, and bring it within the intention which the
legislature had in view at the time it was enacted. Escalle v. Mark, 43 Nev. 172, 183 P. 387,
389, 5 A. L. R. 1512.
The clear purpose of the act is to raise revenue, and the provisions of a regulatory character
are merely incidental; and it is clear, too, just what motor vehicle operators are sought to be
compelled to contribute to the maintenance of the public highways, and they are the ones
who cause the greatest wear and tear.
55 Nev. 263, 283 (1934) Ex Parte Iratacable
operators are sought to be compelled to contribute to the maintenance of the public highways,
and they are the ones who cause the greatest wear and tear.
22. Counsel appearing as amici curiae make certain contentions, not urged in the brief of
counsel for the petitioner, to the effect that the act in question is violative of our state
constitution. This court was held in innumerable cases that one cannot urge the
unconstitutionality of an act who is not affected thereby. Doolittle v. District Court, supra. No
court raises such questions sua sponte, and, facetiously speaking, we do not think a genuine
friend does. However, we will briefly dispose of the points made.
23, 24. The assertion that the title of the act embraces more than one subject is lacking in
merit. It may be that the title is unduly prolix, but his does not make the connected matter a
separate subject, nor otherwise violate section 17, art. 4, of the constitution. State ex rel.
Dunn v. Com'rs. of Humboldt County, 21 Nev. 235, 29 P. 974. The title of an act must be
liberally construed. In Re Calvo, 50 Nev. 125, 253 P. 671.
25. We do not thing the legislature was misled by the drafter of the bill or by the
committee into imposing license fees upon those embraced in subdivision (d) of section 2 of
the act, as contended. Certainly section 4 of the act does not support such contention. It
simply provides that none of the motor carriers named shall operate any motor vehicle for
compensation except in accordance with the provisions of the act. In applying the act the
several sections will be harmonized where possible to effectuate the intent of the legislature,
and certainly no difficulty can arise in harmonizing section 4 with section 2.
26. There is nothing mysterious, obscure, uncertain, or misleading in section 17 of the act,
when considered in connection with the act as a whole. Its sole purpose is to require the
operators of the motor vehicles therein named to contribute to the maintenance of the public
highways. Those who had complied with the law existing at the time the act went into
effect were exempted from a second paymentdouble taxationfor 1933, but those who
had not complied with the law which was repealed by the act were made subject thereto
for 1933.
55 Nev. 263, 284 (1934) Ex Parte Iratacable
existing at the time the act went into effect were exempted from a second paymentdouble
taxationfor 1933, but those who had not complied with the law which was repealed by the
act were made subject thereto for 1933.
We see nothing obscure in the portion of section 17 reading: The license herein provided
shall be secured and the fee therefor paid on or before the first day or January of each year,
commencing January 1, 1934; provided, no person shall be deemed delinquent who has
procured and paid for a license under the provisions of this act for and during the preceding
year, until the first day of February of the new year * * *.
This sentence clearly means that those who procured and paid for a license during the year
1933 shall not be deemed delinquent in the procuring and paying for a 1934 license until the
1st day of February of 1934, and of each succeeding year in case a license was procured
during the previous year.
For the reasons given these proceedings are hereby dismissed, and the petitioner is
remanded to the custody of the officer.
____________
55 Nev. 285, 285 (1934) Hennen v. Streeter Et Al.
HENNEN v. STREETER Et Al.
No. 3063
April 10, 1934. 31 P.(2d) 160.
1. Animals.
Nineteen-month lease of breeding ewes to be returned to lessor, lessee retaining wool and increase,
held bailment, not sale; hence ewes were not subject to mortgage on lessee's sheep.
2. Animals.
Whether delivery of sheep constitutes sale or bailment depends on parties' intention.
3. Appeal and Error.
On appeal, every material fact not found by court must be presumed favorably to judgment in trial
without jury.
4. Damages.
In suit for breach of contract, injured party can recover only damages and cannot be damaged in greater
sum than he would have received in absence of breach.
Appeal from Fourth Judicial District Court, Elko County; E. P. Carville, Judge.
Suit by H. A. Streeter, receiver of the First National Bank of Winnemucca, against Jose
Sustacha and others, wherein D. D. Ogilvie was appointed receiver, and J. H. Hennen
intervened. Judgment for the intervener, and plaintiff appeals. Affirmed on condition.
C. E. Robins, for Appellant:
We firmly stand on the ground that the transactions constituted a sale and passing of title
to Jose Sustacha of every animal mentioned, together with its increase and wool. If it were a
sale, if title actually passed, then those animals, wool and increase came under the mortgage,
and Hennen could not look to those sheep for remuneration. It was not agreed that he could
do so; it was not agreed that the delivery of certain sheep in October, 1933, should be culled
or taken from the bands then owned or in the possession of Sustacha; it was not agreed that
Sustacha should make good those numbers from any source, or from those bands or sheep
in those bands. The conduct of Hennen in the fall of 1932 in compelling Sustacha to take 300
sheep from the bands in his possession and sell them to pay his debt to Hennen shows that
the parties considered it a sale and not a bailment.
55 Nev. 285, 286 (1934) Hennen v. Streeter Et Al.
bands in his possession and sell them to pay his debt to Hennen shows that the parties
considered it a sale and not a bailment. That transaction on its face, without ambiguity, shows
that it was a physical impossibility that sheep to be delivered October 31, 1933, could ever
come out of the sheep mentioned in the so-called lease of April 4, 1932. How could the
four-year-old sheep mentioned in the lease of April 4, 1932, ever be used to fulfill the
contract in October, 1933? People v. Gualano (Ill.), 181 N. E. 643; 3 R. C. L. p. 73, secs. 3
and 4; Turnbow v. Beckstead (Utah), 71 P. 1062; Woodward v. Edmunds, 40 Cal. 475; In Re
Paisall's Estate (Mich.), 151 N. W. 714, Ann. Cas. 1917a, 1160, 52 A. L. R. 500.
James Dysart, for Respondent:
We contend that by the greatest stretch of imagination the lease agreement of April 4,
1932, could not be construed to be a sale or transfer of title, and that the lower court was
correct when it found as a fact that Hennen was entitled to the return of the 1,250 ewes and all
that belonged to them, including wool and lambs, at the time he was entitled to their return.
Mahoney v. Citizens National Bank of Salmon, 271 P. 935; Wetzel v. Deseret National Bank
(Utah), 83 P. 570; Manti City Savings Bank v. Peterson, 86 P. 414, 93 P. 567; Robinson v.
Haas, 40 Cal. 474.
OPINION
By the Court, Coleman, J.:
H. A. Streeter, as receiver of the First National Bank of Winnemucca, Nevada, brought
suit against Jose Sustacha and others to foreclose a mortgage, in which suit D. D. Ogilvie was
on May 22, 1933, appointed receiver, pursuant to which appointment he took possession of
several thousand head of sheep. On May 23, 1933, J. H. Hennen, claiming that Ogilvie, as
such receiver, had taken possession of 1,590 head of sheep belonging to him, demanded
possession thereof. Ogilvie refused to surrender possession of the sheep demanded,
whereupon, on June 9, 1933, Hennen filed his complaint in intervention in said action.
55 Nev. 285, 287 (1934) Hennen v. Streeter Et Al.
refused to surrender possession of the sheep demanded, whereupon, on June 9, 1933, Hennen
filed his complaint in intervention in said action. Upon the conclusion of the hearing in the
intervention proceedings, the court entered judgment in favor of Hennen, the intervener, from
which, and an order denying a motion for a new trial, Streeter, as receiver, has appealed.
On June 25, 1929, Jose Sustacha and Francisca Sustacha, his wife, executed their
promissory note to the bank for $17,400, and executed their mortgage upon certain described
sheep to secure said note. The mortgage also covers all the increase, additions and substitutes
to the sheep specifically described in the mortgage.
1. On April 4, 1932, J. H. Hennen (The intervener) entered into a written agreement,
designated a lease, with Jose Sustacha, one of the defendants, wherein it was agreed that the
said Hennen, as lessor, hereby lets and leases unto the said Sustacha, lessee, for the term
beginning on the date hereof and ending October 31, 1933, twelve hundred and fifty breeding
Merino ewes of designated ages, in consideration of the payment of $2,400, payable as
follows: $600 May 15, 1932; $600 September 15, 1932; $600 May 15, 1933; and $600
September 15, 1933. It is provided in said agreement that the lessee shall have the right to the
use of a certain forest permit, standing in the name of the lessor. It further provides that the
lessee shall retain all wool grown upon said sheep and all lambs produced by said ewes
during the 1932 and 1933 seasons. The lessee covenants to keep said sheep in good condition,
and that he will return to the said party of the first part (lessor) the said 1,250 head of sheep of
the average grade of Merino ewes and of the age, at the time of such return, as hereinbefore
set out (age at date of lease.)
The lease further provides that time is the essence of the agreement, and that, in the event
the lessee shall fail, refuse, or neglect to make the payments as provided, the lessor may
terminate the agreement and repossess the sheep.
55 Nev. 285, 288 (1934) Hennen v. Streeter Et Al.
The lease contains some other conditions which are not material to the disposition of this
case.
On the same day and in a separate agreement the said parties made another agreement as to
a band of 340 head of sheep, providing that Sustacha should keep all wool and increase, and
to return 340 average grade Merino ewes October 31, 1933.
The lower court, at the conclusion of the trial, made its findings of facts and conclusions of
law, wherein it found that after the execution of the agreements above mentioned all of the
sheep leased by the lessor were placed and run with the sheep owned by the lessee and
mortgaged to the First National Bank of Winnemucca, and so continued to be run until the
trial upon the complaint in intervention; that lessor, on or about May 23, 1933, made demand
upon said Ogilvie, as receiver, for delivery to him of the sheep so leased, and that such
demand was refused; that about the time and immediately after the possession of said sheep
by said Ogilvie, as receiver, they began to give birth to lambs, and that at the conclusion of
said lambing season 525 lambs had been born from said band of 1,250 sheep so leased; that
during the fall of 1932 lessor, with the consent of the representative of the First National
Bank in Winnemucca, caused to be returned to the herd of lessee, as increase of the leased
sheep, approximately 400 head of ewe lambs; that, while the said Ogilvie, as receiver, had
possession of said sheep, he caused to be shorn from them the wool crop then on said sheep,
which was part and parcel of the said sheep belonging to said lessor; that none of the said
leases were recorded. The court further found that the receivers still hold and has in his
possession the said 1,250 breeding ewes belonging to the said J. H. Hennen, and that said
receivers took over 340 head of sheep above mentioned as having been leased on April 4,
1932, and ever since have had and now have in their possession the said 340 head of sheep
belonging to the said J. H. Hennen, and that the plaintiff was entitled to the return thereof.
The court further found that under the terms of said lease of April 4, 1932, the said
Hennen was entitled to the immediate return of the said 1,250 breeding ewes before the
wool was shorn from them; to 525 head of lambs, the 1933 increase thereof, and that he
was entitled to the wool so shorn, which amounted to S,5S1.S7 pounds, that said wool
was sold for $1,720.15, and the total cost of shearing said sheep was $210.
55 Nev. 285, 289 (1934) Hennen v. Streeter Et Al.
lease of April 4, 1932, the said Hennen was entitled to the immediate return of the said 1,250
breeding ewes before the wool was shorn from them; to 525 head of lambs, the 1933 increase
thereof, and that he was entitled to the wool so shorn, which amounted to 8,581.87 pounds,
that said wool was sold for $1,720.15, and the total cost of shearing said sheep was $210.
Judgment was entered in favor of Hennen in the sum of $1,510.15, for 1,590 head of
sheep, and for 525 head of lambs.
The theory of appellant is that the title to all of the sheep delivered to Sustacha pursuant to
the agreement of April 4, 1932, passed to Sustacha from Hennen, and that, pursuant to the
provisions in the mortgage from Sustacha to the bank, to the effect that the mortgage should
cover all increase, additions, and subtractions, the title to the sheep became vested in the bank
and its receiver, and hence Hennen cannot recover.
While there is considerable force to the reasoning of counsel for appellant, we think the
great weight of authority applicable to such a situation is to the effect that the agreements in
question constituted bailments for the benefit of both Hennen and Sustacha.
One of the earliest cases in this country involving a similar agreement is that of Robinson
v. Haas, 40 Cal. 474. In the case mentioned, Robinson, the owner of the sheep, contracted
with one Rood in 1863 whereby it was agreed that Rood should keep the sheep in Santa
Barbara County. Later, due to the fact that there was a dry season, Rood, with permission of
plaintiff, took the sheep into Tulare County and later into Visalia County. In 1865, while the
sheep were in Visalia County, Rood sold the sheep to defendant Haas. Three months after
such sale Robinson learned of the transaction, demanded possession of the sheep of Haas, and
upon his refusal to deliver them brought suit. Judgment was rendered in favor of the plaintiff,
which was affirmed on appeal on the theory that the transaction between Robinson and Rood
was a bailment.
The supreme court of Utah has had this question under consideration in several cases,
and has uniformly held that such a contract creates a bailment.
55 Nev. 285, 290 (1934) Hennen v. Streeter Et Al.
under consideration in several cases, and has uniformly held that such a contract creates a
bailment. The cases are: Woodward v. Edmunds, 20 Utah, 118, 57 P. 848; Wetzel v. Deseret
Nat. Bank, 30 Utah, 62, 83 P. 570; Turnbow v. Beckstead, 25 Utah, 468, 71 P. 1062; Manti
City Sav. Bank v. Peterson, 30 Utah, 475, 86 P. 414, 116 Am. St. Rep. 862.
The supreme court of Michigan in Re Parsell's Estate, 184 Mich. 522, 151 N. W. 714,
Ann. Cas. 1917a, 1160, had under consideration a writing in the following words:
Almer, October 18, 1898.
This is to certify that G. F. Parsell has this day taken of M. V. Edgar twelve ewe sheep to
keep for the rental annually of one-half the wool and increase from said twelve sheep, for the
term of three years from and after this date.
G. F. Parsell.
In construing the writing, the court said: The implied legal obligation arising from this
agreement was to return the same sheep or their survivors at the end of the term. That this
was a bailment there can be no question. Woodward v. Edmunds, 20 Utah, 118, 57 P. 848;
Manti City Sav. Bank v. Peterson, 30 Utah, 475, 86 P. 414, 116 Am. St. Rep. 862; Robinson
v. Haas, 40 Cal. 474; Smith v. Niles, 20 Vt. 315, 49 Am. Dec. 782. In the latter case the
transaction was held to be a bailment and not a sale, although the animals were to be returned
or those worth as much in all respects.'
To the same effect are: Williams v. McGrade, 13 Minn. 174 (Gil. 165); Bellows v.
Denison, 9 N. H. 293.
2. The real test in determining whether an agreement for the delivery of sheep is a sale or a
bailment is the intention of the parties. The agreement in this case, being in writing, on its
face clearly indicates that it is a bailment, and the conduct of the parties substantiates that
view. The trial court was clearly right in holding the transaction constituted a bailment.
3. It is next contended by appellant that there was such a commingling of the sheep owned
by Sustacha and those of Hennen during the time the sheep were being run by Sustacha
that the two bands of sheep cannot be segregated; hence the loss should be prorated
between the Hennen sheep and the Sustacha sheep.
55 Nev. 285, 291 (1934) Hennen v. Streeter Et Al.
and those of Hennen during the time the sheep were being run by Sustacha that the two bands
of sheep cannot be segregated; hence the loss should be prorated between the Hennen sheep
and the Sustacha sheep. While the court found that there had been a commingling of the
sheep, we are of the opinion that, from all of the findings, the court was of the opinion, and
impliedly found, that the Hennen sheep were capable of being segregated from the Sustacha
sheep, though no special finding to that effect was made. Every material fact, not found by
the court, must be presumed in favor of the judgment. Jones v. Adams, 19 Nev. 78, 6 P. 442,
3 Am. St. Rep. 788; Welland v. Williams, 21 Nev. 230, 29 P. 403; Dutertre v. Shallenberger,
21 Nev. 507, 34 P. 449.
There is undisputed evidence in the record to the effect that Hennen told Sustacha not to
get his sheep mixed with his own. It is also undisputed that he insisted that his sheep be kept
branded with an H both by Sustacha and the receiver. In fact, the receiver after he took
possession in May, 1933, did so brand at least some of his sheep. If he did not thus rebrand
them all, it was his own fault. Receiver Ogilvie testified in part as follows: When the sheep
came to the corrals this bunch that now has RB on them had H on them, when they came
from the shearing corrals. I sheared them and had them branded with RB, and Hennen came
out and told me to brand up a bunch to put on the reserve, and I branded this other bunch with
H.
In view of this evidence, it was the duty of Ogilvie to keep Hennen's sheep branded so that
they could be segregated at any time, and, even if there was not sufficient evidence to enable
the trial court to pick out 1,590 sheep as being the property of Hennen, the court was
nevertheless justified under the testimony in awarding that number of sheep to Hennen.
4. But we think the judgment of the court must be modified. Had there been no
receivership, and Sustacha had made his payments according to the terms of the lease,
Hennen would have received, or at least been entitled to receive from Sustacha, $1,200 in
cash and a return of his 1,590 sheep on October 31, 1933, the date of the expiration of
the lease.
55 Nev. 285, 292 (1934) Hennen v. Streeter Et Al.
lease, Hennen would have received, or at least been entitled to receive from Sustacha, $1,200
in cash and a return of his 1,590 sheep on October 31, 1933, the date of the expiration of the
lease. The judgment which was entered July 27, 1933, awarded to Hennen his original 1,590
sheep, plus 525 lambs and a money judgment of $1,510.15. We are unable to see upon what
theory Hennen should receive more than he would have received from Sustacha had he
complied with the terms of his agreement, and none is suggested by counsel. In case of breach
of contract, the injured party can only recover damages, and he cannot be damaged in a
greater sum than he would have received had there been no breach.
We think the judgment should have been in favor of Hennen for the return of 1,590 sheep,
and for a money judgment of $1,200, plus the cost of running the 1,590 sheep until October
31, 1933, the date of the expiration of the lease.
Other questions are discussed, but we do not consider them deserving specific
consideration.
The judgment appealed from should be modified on the basis suggested.
It is ordered that, if respondent sign, acknowledge, and file with the clerk of the trial court,
and file a copy thereof with the clerk of this court, a stipulation that the trial court may
modify the judgment appealed from in accordance with the views herein expressed, within
ten days from the receipt of a copy hereof, then the judgment and order appealed from be
affirmed, subject to such modification, otherwise that the said judgment and order be
reversed.
____________
55 Nev. 293, 293 (1934) State v. Canak
STATE v. CANAK
No. 3024
April 30, 1934. 31 P.(2d) 1033.
1. Criminal Law.
Error, if any, in admitting testimony, held cured by defendant's introduction, on cross-examination of
witness, of her testimony taken at preliminary hearing, wherein she gave same evidence.
2. Homicide.
In murder prosecution, testimony that defendant told his former wife, You will be sorry and it don't be
long, shortly before defendant killed former wife's roomer, held admissible for purpose of showing
defendant's intention.
3. Homicide.
In murder prosecution, evidence regarding relations existing between defendant and his former wife and
children and conditions on former wife's premises at time of and preceding defendant's killing of former
wife's roomer held admissible to show jealousy, passion, and feelings of defendant.
4. Homicide.
Evidence sustained conviction of murder.
5. Homicide.
In murder prosecution, evidence regarding defendant's threats held not objectionable as raising issue
regarding defendant's character.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Steve Canak was convicted of murder, and he appeals. Affirmed.
W. L. Hacker, J. M. Frame and Seward J. Parks, for Appellant:
The testimony of Mary Canak and Dan Canak was clearly inadmissible because the same
related to subjects not at all connected with any transaction between appellant and deceased.
Threats made to Mary Canak against either her or their children prior to the homicide could
only be admitted under circumstances which show some connection with the injury inflicted
on the deceased by the appellant. The testimony of Dan Canak as to the alleged jealous
disposition of appellant toward boarders who lived at the home of Mary Canak had no
connection with any transaction or trouble {if any) between the appellant and decedent,
and, therefore, the testimony of both these witnesses was manifestly collateral,
prejudicial and inadmissible to prove any issue in this case.
55 Nev. 293, 294 (1934) State v. Canak
Canak had no connection with any transaction or trouble (if any) between the appellant and
decedent, and, therefore, the testimony of both these witnesses was manifestly collateral,
prejudicial and inadmissible to prove any issue in this case. State v. Crabtree (Mo.), 20 S. W.
7; Helveston v. State, 111 S. W. 959; State v. McGreevy (Ida.), 105 P. 1047; Carr v. State
(Neb.), 37 N. W. 630; Underhill on Criminal Evidence (2d ed.), secs. 327 and 328.
The evidence admitted upon the part of the state wholly fails to sustain the verdict of the
jury, because there was no proof of malice, premeditation or deliberation, but, on the
contrary, the evidence adduced upon the part of the state conclusively shows that the
homicide was the result of a sudden affray between decedent and appellant, and that
appellant, attacked by decedent, killed in self-defense. State v. Scott, 37 Nev. 412, 142 P.
1053; State v. Cerfoglio, 46 Nev. 348, 213 P. 102.
Defendant offered no testimony on the question of character, and, this being so, the state
had no right to inject that issue into the case. Evidence of bad or malicious disposition is not
admissible to show probability of guilt. Underhill on Criminal Evidence (2d ed.), sec. 85;
Reg. v. Rowston, 10 Cox Cr. Cras. 25-29.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; Julian
Thruston, Deputy Attorney-General; Melvin E. Jepson, District Attorney; and A. P. Johnson,
Deputy District Attorney, for the State:
The obvious purpose of the testimony of Dan Canak was to show motive. Appellant was
jealous of the boarders and roomers at the Canak home. Dan Canak testified that his
(appellant's) attitude was toward Mike as to any other man around there. He didn't want him
around at all. This testimony was corroborated by the testimony of Mary Canak, as shown in
the conversation with appellant immediately preceding the homicide. In this conversation
Mary Canak charged appellant had drawn a knife on her and the children two months
before, as one reason why she did not like him.
55 Nev. 293, 295 (1934) State v. Canak
appellant had drawn a knife on her and the children two months before, as one reason why
she did not like him. It was the contention of the state that this hostility intensified the
jealousy of appellant toward deceased, who was especially friendly and helpful to the Canak
family. The relevancy of threats depends largely upon the light they shed upon previous
malice or premeditation. Underhill Crim. Evidence (2d ed.), par. 329; State v. Larkin, 11
Nev. 314.
It is respectfully submitted that the evidence is more than ample to justify the verdict; that no
errors appear in the record, and that the judgment should be affirmed. If there are any errors,
they are unimportant and not so serious as to be prejudicial under the terms of sec. 11266 N.
C. L.
OPINION
By the Court, Coleman, J.:
The defendant, Steve Canak, was convicted of murder, and has appealed from the
judgment and the order denying his motion for a new trial.
In this opinion we will refer to appellant as defendant, as he was designated in the trial
court.
The defendant has assigned five errors, the first of which reads as follows: It was error for
the trial court, over defendant's objections, to admit in evidence the testimony of Mary Canak
and Dan Canak, the same being incompetent, irrelevant, immaterial and collateral to any issue
or issues in the case, because the same did not prove or tend to prove any issue in the case
and was introduced only for the purpose of prejudicing the defendant before the jury. See
Transcript, pp. 9, 10, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39.
1. This assignment of error is very general, and would justify a demand for a more specific
assignment. There is much testimony on the pages mentioned to which there cannot be the
slightest objection, and to which no objection was made during the trial.
55 Nev. 293, 296 (1934) State v. Canak
which no objection was made during the trial. Furthermore, if the trial court erred in some of
its rulings, the error was cured by the introduction by defendant on cross-examination of
Mary Canak of her testimony taken at the preliminary hearing, wherein she gave the same
evidence. State v. Johnny, 29 Nev. 203, 87 P. 3. However, we will consider what we consider
the only debatable question raised by the objections and rulings of the court, appearing in the
pages of the transcript mentioned.
Mary Canak testified to her marriage to defendant in 1914; to their being divorced in 1926;
to the fact that they had four children as issue of the marriage; to her subsequent marriage to
another man, and her divorce from him; to her owning the house and lot where the homicide
was committed; to the fact that she had built several cabins on the lot, which she rented; to
the fact that for years she had kept roomers and boarders, among whom was Mike Rakich,
whom defendant admitted killing about 2 o'clock p. m. on November 17, 1932, by striking
him on his head with a twenty-inch rasp; that about four months before the killing she
permitted defendant, who was out of employment, to occupy one of the cabins. She also
testified that shortly before the killing, defendant came upon her back porch, where she was
working, and went on into the house; that as he came in he said Hello to deceased, who was
in the back yard making a bench, and who responded, Hello; that as defendant went into the
house he asked her to come into the room which he entered, as he wanted to talk to her. We
quote from her testimony as follows:
A. He says come I want to talk to you. I say I no got no time. You no got nothing to do.
Mary, really you don't like me any more?' I say, No. You think I like you yet' and he says,
Sure I think you like me yet.' I said Steve no don't you think I got lots of trouble with you.'
Mary, you will be sorry.' I don't know why how you treat me Mary, you will be sorry, and it
don't be long.' He say you don't scare Mary, I say I don't know why be scared.
55 Nev. 293, 297 (1934) State v. Canak
be long.' He say you don't scare Mary, I say I don't know why be scared. I speak again, but I
never look at him before, and he say, You don't scare.' I hang my head like that (indicating)
and look at him.
Q. And looked at him? A. Yes. When I see his face just like paper, white just like paper,
red eyes just like blood. He used to keep his hands in both pockets. He keep both hands in
both pockets. Then I was scared though. Back way I go, my screen door. I told him you want
to see Steve who you scare.
The witness further testified that two months prior to the killing defendant pulled a knife
between family; that he said on the day of the homicide, Even if I try to kill daughter and
son, I never mean kill you.
This witness testified that after the conversation between her and defendant she left the
house by the back door and went across the street to a neighbor's to call the police; as she
went down the porch steps the deceased was making a bench about 15 feet distant, and that
the rasp with which deceased was killed was lying on the ground near the steps.
No testimony was offered to the effect that any enmity was known to exist between
defendant and the deceased. The deceased was killed while Mrs. Canak was trying to call the
police. There were no eyewitnesses to the affair.
Dan Canak, the 18-year-old son of Mrs. Canak and defendant, a high school student,
testified that the deceased had boarded and roomed at his mother's house from time to time
for several years, and that prior to his being killed he had been there for two or three months;
that the defendant was jealous of his mother's boarders and roomers and did not want them
around.
The defendant testified that he was born in Jugo Slavia and was 49 years old; that he had
been in this country thirty-one years, and that he knew deceased in the old country; that he
had never had any trouble with deceased before; that he had known him in this country four
or five years; that they had been friends always, and he had never had words with him;
that, when Mrs.
55 Nev. 293, 298 (1934) State v. Canak
him in this country four or five years; that they had been friends always, and he had never had
words with him; that, when Mrs. Canak left him, he came out of the house and went over to
where the deceased was. He then testified as follows:
A. When I come to Mike I said, How is she going,' and Mike answered me, You going
to pay me for Dracovich now.'
Q. When he said that to you, what did he do? A. He had that same rasp in his right hand.
Q. And what did he do? A. As soon as he says that to me, You going to pay me for
Dracovich now,' he tried to hit me with the rasp.
Q. And what did you do? A. So I catch the rasp in here (indicating), and took it away
from Mike. When Mike or I got the rasp he got excited, then they turned around himself. He
tried to get something else.
Q. When he done that what did you do? A. Why, of course I stopped him then.
Q. Did you strike him? You struck him with this rasp, did you? A. Yes, I have to protect
myself.
Q. Did you intend to kill him? A. No, sir.
Q. At the time that you struck him with this rasp, did you believe that you were in
danger? A. Why sure I believe I was too.
Q. And do you know exactly how many blows you struck him? A. I believe I struck him
three times.
Q. Do you know for sure whether it was three times or more? A. I think I am sure it is not
more than three. When I hit him third time I knocked him down.
He also testified that deceased was a bigger man than he and that deceased made a hard
blow at him with the rasp and that he caught it in his hands. He testified that he had
understood that deceased and Dracovich had had a fight and that deceased blamed him for the
trouble.
The above statement will enable one to understand the situation and the merit of the
assignment of error referred to.
55 Nev. 293, 299 (1934) State v. Canak
It is the contention of defendant that the testimony of Mary Canak was improperly
admitted, over objections, for the reason that it related to subjects not connected with the
killing; that the threats testified to were not directed at deceased, were collateral and
prejudicial, and inadmissible to prove any issue in the case.
Counsel cite certain cases in support of their contention that the evidence of threats on the
part of the defendant was improperly admitted in evidence, but we do not think they are in
point, since the situation presented by the facts of this case are very dissimilar from the facts
in the cases cited.
2, 3. We think all of the evidence introduced on behalf of the state was properly admitted,
including that pertaining to relations which had existed between the defendant and his former
wife and children, and the conditions which existed at the time and preceding the homicide,
on the premises of Mrs. Canak, for the purpose of showing the jealousy, passion, and feelings
of the defendant on the day of the homicide and for some time prior thereto, and his intention,
as manifested in his talk with Mrs. Canak a few minutes before he slew the deceased, when
he said, Mary, you will be sorry, and it don't be long.
The supreme court of Idaho, in State v. Larkins, 5 Idaho, 200, 47 P. 945, 946, in
considering the propriety of admitting in evidence the following statement made by one
charged with murder, a few hours before the homicide, to wit: I would like to take you with
me but I have a dirty piece of business to do tonightsaid: * * * It tended to show the
animus on the part of the accused towards deceased; and, further, the declaration of accused
testified to by the witness De Kay tended to show an abandoned, reckless, malicious spirit on
the part of the accused. This conclusion is supported by the following authorities: Jordan v.
State, 79 Ala. 9; Anderson v. State, 79 Ala. 5; Harrison v. State, 79 Ala. 29; Dixon v. State,
13 Fla. 636; State v. Grant, 79 Mo. 113 [49 Am. Rep. 218]; State v. Hymer, 15 Nev. 49;
Benedict v.
55 Nev. 293, 300 (1934) State v. Canak
Nev. 49; Benedict v. State, 14 Wis. 423. The supreme court of Missouri, in State v. Grant,
supra, says: Under the ruling in State v. Adams, 76 Mo. 355, the competency of threats made
is not affected by their newness or remoteness, and the authorities cited for the state show that
the threats made by defendant against policemen were admissible. Mr. Wills says: It is not
uncommon with persons about to engage in crime to utter menaces, or to make obscure and
mysterious allusion to purposes and intentions of revenge, or to boast to others, whose
standard of moral conduct is the same as their own, of what they will do, or to give vent to
expressions of revengeful purposes, or of malignant satisfaction at the anticipated occurrence
of some serious mischief. Such declarations or allusions are of great moment when clearly
connected by independent evidence with some subsequent criminal action. The just effect of
such language is to show the existence of the disposition from which criminal actions
proceed, to render it less improbable that a person proved to have used it would commit the
offense charged, and to explain the real motive and character of the action. Wills, Circ. Ev.,
top page 62. In Stewart's Case evidence was admitted that he had said that he hated all the
name of Campbell. 19 How. State Tr. 100. And vague threats, not against any particular
person, have often been admitted, and are competent evidence. Rex v. Barbot, 18 How. State
Tr. 1251; Benedict v. State, 14 Wis. 423. In a comparatively late case in this state a witness
was allowed to testify that she heard the defendant say, a short time before the homicide: I'll
kill him before day, Gd dm him, without calling any name. It was held admissible. State
v. Guy, 69 Mo. 430.'
In the case of People v. Craig, 111 Cal. 460, 44 P. 186, 187, wherein the defendant was
charged with the murder of his wife on July 25, 1894, the court held it proper to permit
testimony of a statement made in May of the same year, as follows: Yes, sir; he said, that
is, while they (wife and children) were in San francisco,he said to me that there would be
something happen sure before it would end."
55 Nev. 293, 301 (1934) State v. Canak
sure before it would end. In ruling upon the question, the court said: It is contended on the
part of the appellant that the court erred in admitting this testimony, for the reason that it had
no tendency to show any ill will on his part towards his wife, and that upon his trial for her
murder it was incompetent to prove ill will or malice on his part towards any other person.
This testimony was competent, however, and properly admitted for the purpose of showing
the intent of the defendant in killing his wife, and that he acted with malice aforethought. To
establish this intent, it was competent for the prosecution to offer any evidence that would
enable the jury to ascertain the state of his mind at the time of the killing, and this would be
best evidenced by his acts and declarations at or about that time. If the conversation between
the witnesses and the defendant embodied a threat on his part, it was proper that it should go
before the jury for the purpose of establishing his feeling towards his wife, and determining
whether he was actuated by malice. Whether it was of such a character as would authorize
such an inference could be determined by the jury only after it had been given, and, while the
weight to be given to the testimony was to be determined by them, its admissibility was to be
determined by the court before it was known what the testimony would be. The indefiniteness
of the threats was not a sufficient reason for excluding the testimony.
In State v. Butler, 96 Or. 219, 186 P. 55, it was held that a statement by the defendant
made eight months before the homicide, in the following words, was admissible: If I can't
beat you fellows any other way, I will do it with a Winchester.
In Moore v. People, 26 Colo. 213, 57 P. 857, 858, a general threat was held properly
admitted, the court quoting with approval the following; Threats may be admissible,
although they were not directed towards any particular person, * * * and they may not have
been to commit any specific act or injury if they tend to show a malicious condition of
defendant's mind.
55 Nev. 293, 302 (1934) State v. Canak
In State v. Harlan, 130 Mo. 381, 32 S. W. 997, vague general threats were held competent.
Beatty, C. J., in State v. Hymer, 15 Nev. 54, held that testimony to the effect that the
defendant, three hours before the killing, stated, It is the first time I have been drunk since I
have been in town; I got drunk just to kill two or three ss of bs in this town to-night, and
I'll do it too, was competent. In the course of his opinion he said: It was for the jury to
determine, from all the circumstances, whether this was mere idle vaporing or a correct
expression of the defendant's state of mind. If it was the latter and there was any circumstance
from which they might infer that the deceased was one of the persons intended, it should
express malice.
We think, too, the language of this court in State v. Larkin, 11 Nev. 314, is in point,
wherein it said: It is claimed that the court erred in allowing testimony as to the intimate and
illicit relations existing between the witness Nellie Sayers and the deceased; also, as to the
same relations between this witness and the defendant. An evil motive,' says Mr. Wills in his
work on Circumstantial Evidence, constitutes in law as in morals, the essence of guilt; and
the existence of an inducing motive for the voluntary acts of a rational agent is assumed as
naturally as secondary causes are concluded to exist for material phenomena. The
predominant desires of the mind are invariably followed by corresponding volitions and
actions. It is therefore indispensable, in the investigation of moral actions, to look at all the
surrounding circumstances which connect the supposed actor with other persons and things
and may have influenced his motives.' (38.) The prosecution had the right to offer any
evidence which tended to prove a motive in defendant for the commission of the crime, and
this testimony was clearly admissible for that purpose.
Dean Wigmore lays down the following rule, which we think applicable under the facts
and circumstances of this case: It has been noted that the more specific a design is, the
greater its probative value. There may come a point at which the design is too indefinite in
its indications to be of any probative value; but the mere fact that it is generic, i. e., points
towards a class of acts, however broad, does not in itself destroy its relevancy, provided
the purpose might naturally include the act charged." 1 Wigmore on Ev. {2d ed.), sec.
55 Nev. 293, 303 (1934) State v. Canak
come a point at which the design is too indefinite in its indications to be of any probative
value; but the mere fact that it is generic, i. e., points towards a class of acts, however broad,
does not in itself destroy its relevancy, provided the purpose might naturally include the act
charged. 1 Wigmore on Ev. (2d ed.), sec. 106.
In Underhill on Crim. Ev. (3d ed.), sec. 508, it is said: Under certain circumstances the
vague and uncertain threats of the accused may be shown to prove the condition of his mind
at the time of the crime. This rule is applied to his declarations that he is going to kill
somebody, without mentioning any names, or that he is going to make trouble, or that he is
going to shoot someone, or similar indefinite threats which indicate that he is in an ugly
frame of mind and disposed to commit some crime, though not the particular crime for which
he is on trial.
4. It is next contended that the evidence wholly fails to sustain the verdict because there
was no proof of malice, premeditation or deliberation, and, on the contrary, that it shows the
defendant acted in self-defense. The trial court instructed the jury on these points, as to which
there is no objection. The deceased was the larger man, and it is beyond belief that defendant
could have taken the rasp from him so easily; and the slight laceration between the thumb and
forefinger does not corroborate this theory. Furthermore, the defendant told the officers when
arrested that he had had no trouble with the deceased. His idea of self-defense seems to have
been thought of at a later period and when he found the evidence to the effect that he had
slain the deceased too strong to overcome. The testimony of Mrs. Canak to the effect that
when she left the house the rasp with which the killing was done was on the ground 15 feet
from where used, if believed by the jury, as it evidently was, completely refuted the
defendant's theory. Besides the testimony of the doctor that the deceased was hit on the head
five times, either of which blows might have caused death, and his description as to the
position, nature, and angle of the wound, may, in the minds of the jury, have disproved the
testimony of the defendant to the effect that he struck the deceased as he was going to
get something with which to continue the assault.
55 Nev. 293, 304 (1934) State v. Canak
wound, may, in the minds of the jury, have disproved the testimony of the defendant to the
effect that he struck the deceased as he was going to get something with which to continue
the assault. We cannot reverse the judgment for lack of sufficient evidence to sustain the
verdict.
It is next contended that the district attorney was guilty of misconduct highly prejudicial to
the defendant, in that he persisted in asking questions upon collateral matters. No particular
question or questions are pointed out as constituting such prejudice in addition to those
considered by us under the first assignment. No error was committed in this connection.
5. It is contended that, since the defendant offered no evidence on the question of his
character, the state had no right to inject that issue into the case. No evidence was offered on
the part of the state as to defendant's character. The testimony as to his threats was proper and
was not offered to prove character.
Perceiving no prejudicial error in the record, the order and judgment appealed from are
affirmed.
____________
55 Nev. 305, 305 (1934) Ex Parte Thrasher
Ex Parte THRASHER
No. 3071
May 1, 1934. 31 P.(2d) 1039.
1. Automobiles.
Grocer's truck transporting groceries from wholesalers to grocer's store held operated in personal
services, not gainful occupation, within exemption in license statute (Stats. 1933, c. 165, secs. 1-3).
Original proceeding in habeas corpus by J. J. Thrasher against the Sheriff of Washoe
County. Petitioner discharged. (Sanders, C. J., dissenting.)
L. D. Summerfield and R. E. Burns, for Petitioner:
It is here contended that where the owner of a retail grocery store in Gerlach, Washoe
County, Nevada, purchases goods wholesale in Reno, Washoe County, Nevada, to be used as
a part of his stock in trade and to be sold retail from said store, and transports said goods
direct from Reno to Gerlach for that purpose, in his privately owned truck of an unladened
weight of less than five thousand pounds, he is exempt from the provisions of chapter 165,
Statutes of Nevada 1933, p. 217. This claim of exemption is based upon the proposition that
such an operation is in personal services as distinguished from the use of the highway in a
gainful occupation. In personal services as used in this statute must mean in services
personal to the owner of the truck, and from which he derives no gain along the highway over
which he transports such goods.
Although the wording of the acts and ordinances construed were not the same as the
Nevada statute, in the following cases somewhat similar provisions were held not to include
trucks making an occasional use of the highways as an incident to the owners' business: Leif
v. Graham (N. D.), 247 N. W. 612; Denver Ry. Co. v. Linck, 56 Fed. (2d) 957; Kroger
Grocery & Baking Co. v. City of Cynthiana, 240 Ky. 701, 42 S. W. (2d) 904; City of Sioux
Falls v. Collins, 43 S. D. 311, 178 N. W. 950.
55 Nev. 305, 306 (1934) Ex Parte Thrasher
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; and Julian
Thruston, Deputy Attorney-General, for Respondent:
Our contention is that petitioner, in the operation of his truck in the manner and for the
purpose set forth in the complaint comes squarely within the licensing provisions of the
motor truck licensing act of 1933, and that, in transporting the goods, wares and merchandise,
purchased by him at wholesale in Reno, to Gerlach, over the public highway, to be there by
him sold at retail in his store, petitioner had then and there used the highway in a gainful
occupation, and, by reason thereof, does not come within the statutory exemption claimed by
counsel to exempt him. The matter of transportation in the instant case is essential to the
conduct of the gainful occupation in a commercial enterprise. It is very analogous to the
proposition that transportation is essential to commerce. Hannibal & S. J. R. Co. v. Husen, 95
U. S. 95, as cited in Conecuh County v. Simmons, 95 So. 489.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in habeas corpus. In the petition for the writ the following
facts are alleged: Petitioner is unlawfully confined and restrained of his liberty by the sheriff
of Washoe County, Nevada, by virtue of a warrant of arrest issued out of the justice's court of
Sparks township in said Washoe County, upon a complaint charging petitioner with the
violation of chapter 165, Statutes of Nevada 1933. In the complaint petitioner is accused of
operating one truck privately owned by him and of an unladened weight of less than 5,000
pounds on the public highway of this state running between the city of Reno and the town of
Gerlach in said county, said truck then and there being so operated by him for the exclusive
purpose of transporting groceries which he purchases wholesale in said city of Reno, to a
grocery store in said Gerlach, owned and operated by him, to be there resold in his retail
grocery trade, and without first having obtained a license so to do from the public service
commission of the State of Nevada.
55 Nev. 305, 307 (1934) Ex Parte Thrasher
groceries which he purchases wholesale in said city of Reno, to a grocery store in said
Gerlach, owned and operated by him, to be there resold in his retail grocery trade, and
without first having obtained a license so to do from the public service commission of the
State of Nevada. Section 1 of said act reads: Section 1. It is hereby declared to be the
purpose and policy of the legislature in enacting this law to confer upon the public service
commission of Nevada the power and authority, and to make it its duty to supervise, regulate
and license the common motor carrying of property and/or passengers for hire, and to
supervise for licensing purposes the contract motor carrying of property and/or of passengers
for hire, and to supervise for licensing purposes the private motor carrying of property when
used for private commercial enterprises on the public highways of this state, hereinafter
defined, so as to relieve the existing and all future undue burdens on such highways arising by
reason of the use of such highways by motor vehicles in a gainful occupation thereon, and to
provide for reasonable compensation for the use of such highways in such gainful
occupations, and enable the State of Nevada, by a utilization of the license fees hereinafter
provided, to more fully provide for the proper construction, maintenance and repair thereof,
and thereby protect the safety and welfare of the traveling and shipping public in their use of
the highways. * * *
Section 2 defines different terms of the act. Section 3 deals with certain exemptions from
its licensing requirements. It provides: None of the provisions of this act shall apply to any
motor vehicle operated wholly within the corporate limits of any city or town in the State of
Nevada; nor to city licensed taxicabs operating within a ten-mile radius of the limits of a city
or town; nor to the city or town draymen and private motor carriers of property operating
within a two-mile radius of the limits of a city or town, nor to the transportation of live stock
and/or farm products to market by the producer thereof, or such producer's employee, or
merchandise andJor supplies for his own use in his own motor vehicle; nor to the
transportation of children to and from school; nor to the transportation of highway
contractor's own equipment in his own motor vehicle from job to job wholly within the
confines of this state; nor to the transportation of ore or minerals in the producer's own
vehicle; provided, however, only one vehicle with an unladened weight not exceeding
10,000 pounds, or two vehicles whose combined unladen weight does not exceed 10,000
pounds, shall be exempted for the transportation of ore or minerals or mining supplies;
nor to the operation of a privately owned truck in personal services as distinguished from
those using the highways in a gainful occupation shall be exempted; provided, however,
this exemption shall be limited to one such vehicle not exceeding an unladened weight of
five thousand pounds."
55 Nev. 305, 308 (1934) Ex Parte Thrasher
by the producer thereof, or such producer's employee, or merchandise and/or supplies for his
own use in his own motor vehicle; nor to the transportation of children to and from school;
nor to the transportation of highway contractor's own equipment in his own motor vehicle
from job to job wholly within the confines of this state; nor to the transportation of ore or
minerals in the producer's own vehicle; provided, however, only one vehicle with an
unladened weight not exceeding 10,000 pounds, or two vehicles whose combined unladen
weight does not exceed 10,000 pounds, shall be exempted for the transportation of ore or
minerals or mining supplies; nor to the operation of a privately owned truck in personal
services as distinguished from those using the highways in a gainful occupation shall be
exempted; provided, however, this exemption shall be limited to one such vehicle not
exceeding an unladened weight of five thousand pounds.
A violation of the act is punishable as a misdemeanor.
Petitioner contends that the facts stated in the complaint show that in operating the truck as
charged therein he was engaged in personal services as distinguished from the use of the
highway in a gainful occupation, within the meaning of the last exemption declared in said
section 3. We think that is the proper construction of the provision.
The act was recently before this court in Ex Parte Iratacable, 55 Nev. 263, 30 P.(2d) 284,
290, and was held to be constitutional. The various exemptions declared in said section 3
were held not discriminatory, principally upon the ground that the occasional use of the
public highways by motor vehicles in these classes furnished a reasonable basis for the
exemptions. With reference to the exemption claimed here, we said: The next class which it
is claimed is arbitrarily and unreasonably exempted are privately owned trucks in personal
services, limited to an unladened weight of 5,000 pounds. This class of vehicles is not used
on the public highways as a place of business, and are operated thereon but little, as
compared to those who use the public highways in a gainful operation."
55 Nev. 305, 309 (1934) Ex Parte Thrasher
thereon but little, as compared to those who use the public highways in a gainful operation.
It is clear that petitioner, who, as appears from the complaint, uses his truck to transport
groceries purchased wholesale in Reno, to his grocery store in Gerlach, to resell in retail
grocery trade, makes but an occasional use of the public highways. So the legislature, in
pursuance of its policy in exempting from the operation of the act such classes of motor
vehicle operators who caused the least damage to the highways, could well have intended to
include the class to which petitioner belongs.
Force is given to the conclusion that such actually was the intention of the legislature when
attention is given to the precise wording of the exemption. Respondent contends that the
words in personal services must be construed as meaning such services as are entirely
disassociated with any commercial enterprise, instancing the carrying of provisions or other
property for one's household uses and the like. If this were the meaning intended, the words
in personal services would have been sufficient to convey it. But these words do not stand
unrelated in the provision. They are put in contrast with the clause from those using the
highways in a gainful occupation. On the whole the provision indicates a meaning more
comprehensive than services of a personal nature entirely disassociated from any gainful
feature. The exemption is broad enough to include the class of motor vehicle operators in
which the complaint places petitioner. His occasional use of the public highways is not
pursuant to some business carried on by him along the route. The operation of his truck, as
alleged in the complaint, is in services personal to himself and is merely incidental to the
business which he carries on at a fixed point in the state, namely, the town of Gerlach. This is
not using the highways in a gainful occupation.
The petitioner should be discharged.
It is so ordered.
____________
55 Nev. 310, 310 (1934) Nichols v. Levy
NICHOLS v. LEVY
No. 3038
May 4, 1934. 32 P.(2d) 120.
1. Mechanics' Liens.
Statutory provision making property subject to lien for improvements unless owner gives notice by
posting statement of nonliability, requires that notice be so posted that it will remain displayed for
reasonable time (Comp. Laws 1929, sec. 3743).
2. Mechanics' Liens.
Owner's posting of notice on front door and show window frame of building disclaiming responsibility
for improvements held insufficient notice by posting, where, as part of improvement, entire front wall of
building was torn down shortly after posting and lien claimants received no actual notice (Comp. Laws
1929, sec. 3743).
3. Mechanics' Liens.
That duplicate carbon copy of posted notices of owner's nonliability, with statutory affidavit attached,
was recorded, held insufficient notice by posting, where posting was not such as to give requisite notice
to avoid mechanics' liens (Comp. Laws 1929, sec. 3743).
4. Mechanics' Liens.
Increase in value of property as result of improvements held not indispensable as condition to attachment
of mechanic's lien for labor and material furnished (Comp. Laws 1929, sec. 3743).
5. Mechanics' Liens.
Property owner who failed to repudiate liability for improvements after obtaining knowledge thereof held
estopped to deny that he authorized lessees to order improvements (Comp. Laws 1929, sec. 3743).
6. Mechanics' Liens.
Lienor's assignment of account for material, where followed by reassignment, did not prevent lienor from
perfecting lien, since retransfer of account revived right to lien (Comp. Laws 1929, sec. 3751).
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, District
Judge.
Action by C. W. Nichols against Mildred Cecelia Levy and others. From an adverse
judgment and an order denying a motion for new trial, defendant named appeals. Affirmed.
Platt & Sinai, for Appellant:
Our statute expressly recognizes that a situation such as the one in the case at bar may
exist, and has made provision therefor in sec.
55 Nev. 310, 311 (1934) Nichols v. Levy
provision therefor in sec. 3737 N. C. L., wherein is contained the following statement with
reference to the person causing the alterations or improvements to be made: But if such
person owned less than a fee simple estate in such land then only his interest therein is subject
to such lien. If any meaning whatsoever is to be given to this provision of said statute it must
be to the effect that in the absence of an express agency between a landlord and tenant a
mechanic's lien only attaches to the property interest of the person who caused the alterations
or improvements to be made. See, also, sec. 3743 N. C. L.; Stewart v. Talbott, 146 P. 776;
Eastern Ohio Oil Co. v. McEvoy, 89 P. 1048.
Since no contracts were made by lien claimants directly with appellant, and since the
persons with whom lien claimants did enter into contracts were neither actual nor implied
agents of appellant, no liens may attach to the fee simple estate of appellant.
Since appellant complied in every respect with the terms and conditions of sec. 3743 N. C.
L., lien claimants were charged with notice that appellant would not be responsible for any of
the alterations or improvements made upon the building.
It is apparent from sec. 3735 N. C. L. that it is not sufficient that materials are in fact used
upon a certain piece of construction, but to entitle persons furnishing materials to a lien claim
under the section referred to said materials must have been furnished upon the credit of the
building, i. e., to be used upon a particular piece of construction, in order to entitle persons
claiming liens to the rights of the provisions of the mechanics' liens law. Bottomly v. Grace
Church, 2 Cal. 90; Wagner v. Darby, 30 P. 475; Tabor-Pierce Lumber Co. v. International
Trust Co., 75 P. 150; Gurney v. Walsham, 19 Atl. 323.
It is appellant's contention that the right to a lien is a personal right and as such is not
subject to assignment; that since the absolute assignment of the unsecured money claim was
made from Jesse E. Smith Company to Leslie E. Johnson, the right to acquire a lien was
completely destroyed, since the debt was completely severed from the personal right to
perfect a lien.
55 Nev. 310, 312 (1934) Nichols v. Levy
lien was completely destroyed, since the debt was completely severed from the personal right
to perfect a lien. Because the right to a lien was completely destroyed by the assignment, the
subsequent reassignment from Johnson to Jesse E. Smith Company did not revive that which
was once completely destroyed. Noll v. Kenneally, 56 N. W. 722; Crane Co. v. Columbus
State Bank, 91 N. W. 532; Davis v. Crookston Waterworks, Power & Light Co., 59 N. W.
482.
The alterations and improvements were detrimental rather than beneficial to the premises
in question, as a result of which the very basis upon which mechanics' liens are sustained is
lacking, since it cannot be shown that appellant has been unjustly enriched or received
beneficial improvements at the expense of the lien claimants.
Cantwell & Springmeyer, for Respondent:
It is our contention that the owner, by granting the lease in the form she did, made the
lessees her agents, under our statute, and can no more protect the property from the
attachment of liens than if the work had been done for her and upon her direct order. Secs.
3735 and 3743 N. C. L.; Verdi Lumber Co. v. Bartlett, 40 Nev. 317, 161 P. 933.
If the owner could, under the law and the facts, so protect her property, has she done so by
giving the required notice? We submit not. The notices were posted, one on the front door,
the other on the frame of the front show window, both of which were clearly to be wrecked
and removed by the very work under way at the time they were posted. The agent of the
owner knew, or ought to have known, when he posted the notices there as he did, that neither
of them could remain so posted, and, as a matter of fact, neither of them did remain there long
enough to give notice. Phillips v. Snowden Placer Co., 40 Nev. 67, 160 P. 786.
Further, the notices were not posted by the owner within three days after knowledge of the
intended construction, alteration or repair. By the lease, executed June 24, and requiring
lessees to deposit within thirty days $5,000 to be expended in making improvements on
the premises, as a condition of the lease, the owner had knowledge of the intention of the
lessees to make improvements on the property, and must, under our statute, have posted
notices within three days thereafter.
55 Nev. 310, 313 (1934) Nichols v. Levy
June 24, and requiring lessees to deposit within thirty days $5,000 to be expended in making
improvements on the premises, as a condition of the lease, the owner had knowledge of the
intention of the lessees to make improvements on the property, and must, under our statute,
have posted notices within three days thereafter. Santa Monica Lbr. & M. Co. v. Hege, 48 P.
69; Western Lbr. & M. Co. v. Merchants Am. Co., 108 P. 891.
Benefit to the property is immaterial as to right to mechanic's lien. H. I. Co. v. Bull (Cal.),
140 P. 702; Chamberlain v. Lundstrom (Ida.), 129 P. 1069.
It is very definitely established by the long line of Nevada cases involving mechanics' liens
that the right to lien is clearly conferred by our statute upon the person who deals solely with
the lessee or other occupant of the premises who has charge of the work there being done.
There is no evidence that any of the materials were diverted to any other job, but, on the
contrary, there is evidence that they were all used on the premises attached.
It is our contention that the assignment of the Jesse E. Smith Company claim to Johnson
did not extinguish the right to file the claim of lien; Johnson might have filed such a claim. It
is equally true that the Jesse E. Smith Company could have filed the claim. Moore v. Dugan
(Mass.), 60 N. E. 488. The reassignment, then, to the Jesse E. Smith Company, whether
required or not, certainly left or put the Jesse E. Smith Company in position to file the claim
of lien. Palmer v. Uncas Mining Co., 70 Cal. 614, 11 P. 666; Macomber v. Bigelow, 126 Cal.
9, 58 P. 312; 17 Cal. Juris. 159.
OPINION
By the Court, Ducker, J.:
This is an action for the foreclosure of mechanics' liens. The appellant is the owner of a
building on Virginia Street in Reno, Nevada, and the land upon which it is situated. She
leased the premises to Henry's of Hollywood, Inc., Limited, Joseph Berliner, and Morris
Berliner, for a term of twenty years.
55 Nev. 310, 314 (1934) Nichols v. Levy
which it is situated. She leased the premises to Henry's of Hollywood, Inc., Limited, Joseph
Berliner, and Morris Berliner, for a term of twenty years. The lessees entered into the
possession of said leased premises on or about the 9th day of August, 1931, and immediately
commenced to make alterations, repairs, and improvements thereon. Respondent, who was
plaintiff in the court below, and intervening lien claimants furnished materials and labor
which were used in such work. The lower court rendered judgment against the lessees for the
amount of the claims for labor and material, and made and entered a decree of foreclosure of
the liens against the building and premises. This appeal is taken from the judgment and
decree, and also from the order denying a motion for a new trial.
1, 2. Appellant asks a reversal on a number of grounds. She insists that her property was
not subject to the liens for the reason that she caused to be posted nonliability notices upon
the building and filed a duplicate original thereof with the county recorder, together with an
affidavit showing such posting. The statute under which she makes this claim reads: Every
building or other improvement * * * constructed upon any lands with the knowledge of the
owner * * * shall be held to have been constructed at the instance of such owner * * * and the
interest owned or claimed shall be subject to any lien filed in accordance with the provisions
of this chapter, unless such owner * * * shall, within three days after he shall have obtained
knowledge of the construction, alteration or repair, or the intended construction, alteration or
repair, give notice that he will not be responsible for the same, by posting a notice in writing
to that effect in some conspicuous place upon said land, or upon the building or other
improvement situate thereon, and also shall, within five days after such posting, file a
duplicate original of such posted notice with the recorder of the county where said land or
building is situated, together with an affidavit attached thereto showing such posting of the
original notice. Such filing shall be prima facie evidence of said posting."
55 Nev. 310, 315 (1934) Nichols v. Levy
be prima facie evidence of said posting. Section 3743 N. C. L.
On this phase of the case, the trial court made the following finding: That as part and
parcel of the alterations and improvements made by said lessees on said premises, the front
wall of said building was entirely torn down and thereafter rebuilt in altered form, the original
doors and windows being taken out from said front and never restored thereto; that the work
of demolishing said front wall was done at the inception of the making of such alterations and
improvements, to-wit, on the 10th, 11th and 12th days of August, 1931; that on the said 11th
day of August, 1931, and at a time when the work of wrecking and demolishing said front
wall was actually under way, the defendant, Mildred Cecelia Levy, by her agent, posted two
copies of notice of non-liability on said premises, in the form annexed to her answer filed
herein, one of which said notices was by her agent posted on the front door of said premises
and the other notice on the frame work of a show window in said front; that within a day, or
at the most two days thereafter said front door and said window frame were detached from
said front without said notices being in any manner, or at all, reposted or permitted to remain
in a conspicuous place on or about said premises; that at the time said agent of said defendant
so posted said notices he knew and ought to have known that neither of the notices by him so
posted would remain posted a sufficient length of time to give effective or any notice; That
said notices so posted where they would be necessarily torn down and destroyed in the
making of the improvements and alterations then in progress would not under ordinary
conditions remain posted a reasonable length of time, and did not in fact remain posted a
reasonable length of time and were not effective to give the statutory notice. That on the 12th
day of August, 1931, a true and exact duplicate carbon copy of said notice, with the proper
affidavit as required under the statute pertaining thereto, was recorded in the office of the
county recorder in the City of Reno, County of Washoe, State of Nevada."
55 Nev. 310, 316 (1934) Nichols v. Levy
the office of the county recorder in the City of Reno, County of Washoe, State of Nevada.
The evidence appears in the bill of exceptions, and it supports these findings. We must
determine, therefore, whether the conclusion of the trial court that the posting found to have
been made was not sufficient to comply with the requirement of the foregoing statute was
legally deducible from the findings.
It may be admitted that the front door and the framework of a show window in front were
conspicuous places on the building. But the statute is not satisfied by a mere posting in a
conspicuous place. It requires the owner to give notice by such posting. The plain implication
of the provision then is that the notice shall be so posted that under ordinary conditions it will
remain displayed for a reasonable length of time. This is the construction given the statute in
Phillips v. Snowden Placer Co., 40 Nev. 66, 160 P. 786, 791. The court in that case said: A
notice must be so posted as under ordinary conditions it will remain a reasonable length of
time; otherwise there would be no object in posting a notice at all.
We think the decision in Phillips v. Snowden Placer Co., supra, is controlling in this case.
In that case this court held that a notice posted at the collar of a mine shaft which the owner,
when he entered into an agreement with the contractor, knew would necessarily be destroyed
in preparing the shaft for mining operations, and which was so destroyed prior to the
contractor's employment of the claimants, was not binding upon the claimants.
So here the court found the agent knew that the notices posted by him would not serve the
purpose of the statute.
The work of tearing down the front wall was the first work done in the alteration of the
building. It was in progress, as the court found, when the notices were posted and within a
day, or at the most two days thereafter, the front door and the show window frame on which
the notices were posted were detached from the front and removed.
55 Nev. 310, 317 (1934) Nichols v. Levy
the front and removed. That these notices did not give actual notice to the plaintiff or other
lien claimants was established. None of them ever saw either of the notices except the lien
claimant Holliston, who did the plastering. He never saw any notice until the last day of his
work, October 12. On that date he removed the door leaning against the wall of the building
and found the notice tacked to the door on the side that was next to the wall.
It is contended that the notices were sufficient to give the notice required by the statute for
the reason that, because of the alteration of the entire building, there was no other
conspicuous place where a notice would remain posted for a longer period of time. This
contention is without merit. The statute, as we have seen, requires the owner to give notice by
posting a notice in writing to the effect that he will not be responsible in some conspicuous
place upon the land or upon the building or other improvement situate thereon, to avoid
liability. It does not appear from the record that there was no place upon the premises in
question on which notice of nonliability could have been made effective.
3. There is also no merit in appellant's contention that the duplicate carbon copy of the
posted notices with statutory affidavit attached, recorded in the county recorder's office on
August 12, 1931, furnished the required notice to respondent and intervening lien claimants.
This is only prima facie evidence of the posting. Section 3743. There is no dispute in regard
to the posting of the notices as found by the court, but, as previously stated, such posting was
not effective.
4. Appellant insists that lien rights could not have attached because, as she claims, the
evidence established that the labor and materials furnished by plaintiff and the lien claimants
decreased the value of the property. In support of this contention it is argued and cases are
cited to the effect that the general theory upon which liens to laborers, mechanics, and
materialmen are given is that by the labor, or the use of the material, the property has been
enhanced in value. However this may be, our lien laws do not express or imply such a
condition for the attaching of lien rights.
55 Nev. 310, 318 (1934) Nichols v. Levy
our lien laws do not express or imply such a condition for the attaching of lien rights. In
passing on the question, the court in Hardwood Interior Co. v. Bull, 24 Cal. App. 129, 140 P.
702, 703, in construing the lien law of California, said: While it may be true, as suggested by
appellant, that the theory upon which the mechanic's lien law is based is that the owner
receives a benefit which he is estopped to deny, yet our statute does not seem to contemplate,
as an essential prerequisite to the existence of a lien under it, that the owner must be benefited
by the labor bestowed or the materials furnished.
In Chamberlain v. City of Lewiston, 23 Idaho, 154, 129 P. 1069, it was held that the right
to a lien is not dependent upon the value of the property on which the labor was performed, or
for which the material was furnished being enhanced thereby.
But the question has already been determined by this court adversely to appellant's
contention in Richmond Machinery Co. v. Bennett, 48 Nev. 286, 229 P. 1098, 1099, 232 P.
1082, 235 P. 1117. We said in that case: The contention made is based upon the theory that
the property of the Argus Company was in no way benefited by the improvements put on the
mill. Our statute provides that the real estate upon which improvements are placed with the
knowledge of the owner shall be subject to a lien, unless the owner posts a notice to the effect
that he will not be liable. There is no exception provided in the statute within which the
Argus Company falls, and we do not feel justified in reading an exception into it. It is a
broad, comprehensive statute, but contains a provision whereby the Argus Company might
have relieved its property of all liability had it seen fit to do so. We see no escape from the
plain language of the statute.
As the statute does not embrace a condition that the property on which labor is expended
or for which materials are furnished must be enhanced in value by reason thereof before lien
rights will attach, we may not supply it.
5. It is contended that, as the only relationship which existed between appellant, as the
owner of the property, and the lessees who contracted for the labor and materials, was
that of lessor and lessees, no lien rights could attach to the property.
55 Nev. 310, 319 (1934) Nichols v. Levy
which existed between appellant, as the owner of the property, and the lessees who contracted
for the labor and materials, was that of lessor and lessees, no lien rights could attach to the
property. On the other hand, respondent insists that the terms of the lease are such as to create
a contractual relationship which authorized the liens. We need not determine this dispute.
Under section 3743, employment of the labor or purchase of the materials by the owner of the
building or his agent is not necessary to the attaching of lien rights on the part of the laborer
or the person who furnished the materials. If the owner has knowledge of the same, lien rights
are deemed to attach unless the required notice is given. This was recognized in Gould v.
Wise, 18 Nev. 253, 3 P. 30, 31, wherein the court said: But the interest of the owner may be
subjected to lien claims, notwithstanding the labor and materials have not been furnished at
his instance, if, knowing that alterations or repairs are being made or are contemplated, he fail
to give notice that he will not be responsible therefor, as provided in section nine of the act.
See Rosina v. Trowbridge, 20 Nev. 105, 17 P. 751.
As stated in Verdi Lumber Company v. Bartlett, 40 Nev. 317, 161 P. 933, section 3743
imposes an active duty upon the owner to repudiate liability for improvements made or
materials furnished without his consent within three days after acquiring knowledge thereof,
and by his failure to do so, he is, in effect, estopped from denying the authority of his tenant
or other person authorizing the improvements, because of which the property must be held
subject to a lien.
The claim is also made by appellant that the lien for materials could not attach because it
was not shown that the same had been furnished to be used on the premises. We think it
sufficiently appears that the materials were furnished for that purpose.
6. Lastly it is insisted that the claim of Leslie E. Johnson to a lien is without right. The
circumstances concerning this claim of lien are as follows: The materials for which the lien is
sought were furnished by Jesse E.
55 Nev. 310, 320 (1934) Nichols v. Levy
by Jesse E. Smith Company. After furnishing the materials, Jesse E. Smith Company made a
general assignment for the benefit of creditors to said Johnson in which was included the
account for such materials. Subsequently Johnson reassigned the debt to Jesse E. Smith
Company and the latter then filed claim of lien. Thereafter the company assigned the lien to
Johnson. We see nothing in these transactions which can affect the validity of the lien. The
reassignment of the debt by Johnson to Jesse E. Smith Company reinvested the company with
its claim for materials furnished. The assignment of the perfected lien was permissible under
the statute. It reads in part: All liens under this act shall be assignable as any other chose in
action. Section 3751 N. C. L.; State v. Breen, 41 Nev. 516, 173 P. 555.
Under the facts stated, we are not called upon to determine whether an inchoate right to a
lien is assignable under the statute.
In Noll v. Kenneally, 37 Neb. 879, 56 N. W. 722, relied upon by appellant, the facts were
different. There the account for materials was transferred to plaintiff, and, after the transfer,
the materialmen attempted to perfect a lien and assign the same to plaintiff. It was held that
the materialmen could not perfect a lien because they had disposed of their claim. True, the
court also held that the transfer of the debt before filing the claim for a lien extinguished the
right to a lien on the premises. But we are of the opinion, as previously stated, that the
retransfer of the account to Jesse E. Smith Company operated as a revival of its right to
perfect a lien.
The judgment and order denying a new trial are hereby affirmed.
____________
55 Nev. 321, 321 (1934) State Ex Rel. Houlahan v. Douglass
STATE Ex Rel. HOULAHAN v. DOUGLASS Et Al (Consolidated Virginia Mining
Company Et Al. Interveners).
No. 3051
May 4, 1934. 32 P.(2d) 257.
1. Mandamus.
Mandamus will not lie to compel county to execute conveyance of mining claim after county
commissioners accepted plaintiff's tender and ordered deed executed, following statutory procedure
respecting patented mining claims becoming property of county through operation of revenue laws, where
failure and refusal to make conveyance was because county had no title to claim (Stats. 1933, c. 44, sec. 1).
Action by the State, on the relation of J. M. Houlahan, against W. G. Douglass and others,
members of and constituting the Board of County Commissioners of Storey County, Nevada,
in which Consolidated Virginia Mining Company and Ophir Mining Company intervened.
Writ of mandamus denied.
H. R. Cooke, for Relator:
The fact, or alleged fact, that the county cannot convey as complete a title, or the title it
supposed it had when granting the option to relator to prospect the Crowley lode, should be
no defense in this proceeding to compel a conveyance of whatever right, title or interest the
county may have. If the relator is willing to take whatever the county may have, it is the duty
of the county to set over that interest, whatever it may be, to the relator. 58 C. J. 900, sec. 55,
and n. 85, also p. 906 and n. 14.
Admittedly, the taxes levied against the Crowley lode have not been paid. Therefore, the
lien for same continued and existed, and constituted an interest which Storey County had
when it gave the option to relator. Sec. 6416 N. C. L.; 26 R. C. L. 436, sec. 392; Downing v.
Lucy (Minn.), 141 N. W. 183; Ann. Cas. 1914c, 755.
Even though a tax sale may not convey title, it may still be valid for transfer of the tax lien
to the purchaser. 61 C. J. 1315, sec. 1840; 24 Cal. Jur. 218, secs. 208-211.
55 Nev. 321, 322 (1934) State Ex Rel. Houlahan v. Douglass
W. Howard Gray, for Respondents:
Relator's complaint fails to state facts sufficient to constitute a cause of action against
respondents or to warrant this honorable court in granting the relief prayed for, or for any
relief, in that Storey County does not have title to the patented mining claim described in
relator's complaint, for the reason that there is no certificate of sale or deed of record
evidencing a sale for delinquent taxes to the county treasurer for the benefit of the county and
state. It is evident from our revenue statutes that to enable the county and state to acquire title
of property at a delinquent tax sale a certificate of sale must be filed in the office of the
county recorder of the county, and that a deed must be made and executed upon the expiration
of the period of redemption, and duly recorded. Secs. 6448, 6449, 6462, 6464 N. C. L.
Without the certificate of sale and the deed there is no evidence that the sale was made in
the proper manner, in the proper time, or that the period of redemption had expired and that
there had been no redemption of the property.
The general rule is that the requirements imposed by the statute authorizing a sale to the
state, county or municipality must be complied with. 61 C. J. 1230, par. 1672; 26 R. C. L.
417, par. 375; Harris v. Mason, 120 Tenn. 668, 115 S. W. 1146; Dunbar v. Interior Lumber
Co. (Miss.), 59 So. 852; Hoffman v. Bell, 61 Pa. St. Rep. 444; Canole v. Allen, 28 Pa. Sup.
Ct. 244.
George L. Sanford, for Interveners:
Counsel for relator contends that the Crowley lode claim, survey 106 132, 7.34 acres
and the Joe Scates Consolidated Silver Mining Co. claim, survey lots 131-A and 131-B, 5.21
acres are one and the same thing, even though one cannot be picked up and placed over the
other without overlaps. And he wants a deed to the Joe Scates claim, lots 131-A and 131-B,
on the promise of proof that the county owns the Crowley lot No. 132. A deed from the
county of the Joe Scates claim, lots 131-A and 131-B, of 5.21 acreage, based on the only
assessment suggested in this case, would be invalid.
55 Nev. 321, 323 (1934) State Ex Rel. Houlahan v. Douglass
from the county of the Joe Scates claim, lots 131-A and 131-B, of 5.21 acreage, based on the
only assessment suggested in this case, would be invalid. Little v. Buckingham et al. (Ida.),
198 P. 464.
OPINION
By the Court, Sanders, C. J.:
On November 24, 1933, J. M. Houlahan, with the consent of the attorney-general in the
name of the State of Nevada, made application to this court by way of petition for a writ of
mandate to compel W. G. Douglass, Albert Evans, and James Stoddart, members of and
constituting the board of county commissioners of Storey County, to convey to him the right,
title, and interest of Storey County in and to that certain patented lode mining claim
designated and described as United State Patent No. 3984, bearing Mineral Certificate No.
212, known as the Crowley Lode, situated in Virginia Mining District in said county, or show
cause before this court on a day certain why they have not done so.
Upon the issuance and service of the writ and prior to the date fixed therein for return, the
Consolidated Virginia Mining Company, a corporation, and the Ophir Mining Company, a
corporation, with my leave filed in the cause their joint complaint in intervention, praying that
they be adjudged to be the owner of said claim, and that this proceeding be dismissed. On the
date fixed for return the respondent board of commissioners, in addition to demurrer,
answered the complaint of the relator, and the relator demurred to the complaint in
intervention. On February 14, 1933, the case came on for hearing upon the pleadings and on
argument was submitted for decision on briefs.
The case made by the complaint is predicated upon the provisions contained in section 1 of
chapter 44, Stats. 1933, p. 40, and the proceedings had between the relator and respondents
under and in virtue of said act.
55 Nev. 321, 324 (1934) State Ex Rel. Houlahan v. Douglass
the relator and respondents under and in virtue of said act.
Section 1 of the act reads as follows:
Section 1. Whenever any person shall present to and file with the county commissioners
of the proper county an affidavit and petition showing that he is a citizen of the United States;
that there is belonging to said county as shown by the official records thereof a patented
mining claim or claims, sufficiently identifying the same, which have become the property of
said county through operation of the revenue laws of this state; the amount of the tax and
penalties and costs, if any, for which said claim or claims became the property of said county;
that it is his bona fide intention to explore and develop said claim or claims, the said county
commissioners may contract respecting said claim, or claims, as follows:
By an order appearing on its minutes give to such petitioner permission to enter upon, not
to exceed two, of any such claims and explore the same for valuable minerals for a period of
six months without any charge therefor; provided, no ore or valuable mineral in excess of five
hundred (500) pounds shall be removed from any mining claim or claims until title thereto
shall have been acquired by said citizen as is hereinafter provided. At the expiration of six
months, or sooner, if said petitioner so desires, said county commissioners shall make and
execute a deed conveying the title of such county to such claim or claims, not exceeding two,
to said original petitioner for the sum for which said property became the property of the
county.
The complaint for cause of action, alleges, in substance, that relator is a citizen of the
United States; that on May 5, 1933, he presented to and filed with respondents his affidavit
and petition stating the there belongs to Storey County, as shown by the official records
thereof, a patented lode mining claim, identifying the same by appropriate description, which
became the property of said county through operation of the revenue laws of this state, in the
manner following, to wit: That said claim was duly assessed on the tax roll of said county
for the year 1914, went delinquent, and was advertised for sale by the treasurer of said
county, and that on the appointed day for sale no bidders appeared, and the claim was bid
in by said treasurer for the amount of the tax, penalties, and costs, for the use and benefit
of Storey County; that the limitation by law for redemption passed and no one appeared
to redeem the same.
55 Nev. 321, 325 (1934) State Ex Rel. Houlahan v. Douglass
That said claim was duly assessed on the tax roll of said county for the year 1914, went
delinquent, and was advertised for sale by the treasurer of said county, and that on the
appointed day for sale no bidders appeared, and the claim was bid in by said treasurer for the
amount of the tax, penalties, and costs, for the use and benefit of Storey County; that the
limitation by law for redemption passed and no one appeared to redeem the same.
The complaint alleges that it was at all times the bona fide intention of relator to explore
and develop said patented lode claim. The complaint further alleges that respondents
considered relator's affidavit and petition and that on June 5, 1933, the relator tendered to
respondents the amount of the tax, penalties, and costs, to wit, the sum of $30.24, for which
said claim became the property of said county, and demanded that they execute and deliver to
him a deed therefor, which was refused. The complaint alleges that on July 5, 1933, the
relator again tendered said sum of $30.24 in payment for said claim, and on that date the
respondents accepted his bid, as appears from the minutes of the board, reading as follows:
Mr. J. Houlahan made a cash tender to the Board of County Commissioners on Patent No.
131, Crowley, and upon motion of Mr. Stoddart and seconded by Mr. Douglass, the tender
was accepted and the deed ordered executed.
The complaint charges that the respondents refused, and have continued to refuse, and do
now refuse, to make and execute a deed conveying to relator said patented lode mining claim,
and that on July 12, 1933, there was caused to be entered on the minutes of said board the
following record in relation to relator's demand for a deed, to wit: A protest against the sale
of the Joe Skates Patented Mining Claim No. 131 A and B to John M. Houlahan was filed by
the Con Virginia and Ophir Mining Companies, read and ordered filed upon motion made by
Commissioner Stoddard seconded by Chairman Douglass and passed by the Board, the action
of the Board taken on July 5th selling the patent 131 A and B to John Houlahan was
rescinded by the Board, upon the ground that the County of Storey has no title and no
right to sell said Patent and the Clerk of this Board is hereby ordered to refund any
moneys paid therefor."
55 Nev. 321, 326 (1934) State Ex Rel. Houlahan v. Douglass
upon the ground that the County of Storey has no title and no right to sell said Patent and the
Clerk of this Board is hereby ordered to refund any moneys paid therefor.
It is alleged in the complaint that the refusal to execute and deliver said deed deprived
relator of possession, use, and enjoyment of said property and hindered and prevented him
from entering in and upon said mining claim and mining and extracting the minerals therein
contained, and that relator has no plain, speedy, and adequate remedy at law, wherefore he
prayed that an alternative writ of mandate be issued and directed to respondents commanding
them to execute and deliver to him a deed conveying the title of Storey County to said
patented lode mining claim for the sum of $30.24.
To this complaint the respondents demurred, assigning these causes of demurrer:
No. 1: Said complaint fails to state facts sufficient to constitute a cause of action against
respondents or to warrant this Honorable Court in granting the relief prayed for, or for any
relief.
No. 2: Mandamus is not the proper remedy for the reason that Chap. 44 of the Statutes of
Nevada, 1933, Page 40, is not mandatory, but is directory, in that the Board of County
Commissioners have a discretionary power delegated to them by the Statute.
No. 3: It does not appear from the allegations in relator's complaint that an affidavit or
petition was ever filed with respondents which complied with the provisions of Chap. 44 of
the Statutes of Nevada, 1933, Page 40, in this, that it does not appear from said complaint that
said affidavit or petition filed with respondents by relator set forth the facts showing the said
patented mining claim described in relator's complaint was the property of Storey County as
shown by the official records thereof.
No. 4: Chap. 44, Statutes of Nevada, 1933, Page 40 is inoperative and ineffective and
void, and mandamus will not issue to compel the doing of a futile act.
55 Nev. 321, 327 (1934) State Ex Rel. Houlahan v. Douglass
No. 5: Storey County does not have title to the patented mining claim described in
relator's complaint, for the reason that there is no certificate of sale, or deed recorded,
evidencing a sale for delinquent taxes to the County Treasurer for the benefit of the County
and State, and there is no allegation in relator's complaint alleging that a certificate of sale or
deed has ever been made, executed, filed and recorded as required by law.
The legal question raised by the demurrer involves the interpretation of section 1 of
chapter 44, Stats. 1933, above set out. By reference to the statute it will be observed that
whenever any person presents to and files with the county commissioners of the proper
county an affidavit and petition showing that there is belonging to said county a patented
mining claim which has become the property of the county through operation of the revenue
laws of the state, the amount of the tax and penalties and costs for which said claim became
the property of the county, the board of county commissioners may contract respecting such
claim in the manner provided in the statute.
The substance of the relator's contention is that since he had done all of the things named
and required in the statute, and having contracted with him respecting said mining claim in
the manner provided in the statute, the respondent board was compelled to make and execute
a deed conveying the title of Storey County to the claim for the sum for which it had become
the property of the county.
Cases may occur under the statute in which mandamus would be a proper remedy to
compel a county to make and execute a conveyance as provided in the statute, but clearly this
is not such a case. The facts stated in the relator's complaint, together with the lawful
inferences to be deduced therefrom, show that the failure and refusal of the respondent board
to make the conveyance was because Storey County had no title to the patented mining claim
in question. It can hardly be supposed that by the use of the word shall it was the
legislative intent to make it compulsory upon the board of county commissioners of a
county to convey a patented lode mining claim which had not become the property of the
county through the operation of the revenue laws of this state.
55 Nev. 321, 328 (1934) State Ex Rel. Houlahan v. Douglass
it was the legislative intent to make it compulsory upon the board of county commissioners of
a county to convey a patented lode mining claim which had not become the property of the
county through the operation of the revenue laws of this state. This court cannot substitute its
judgment in place of that of the respondents in rescinding the contract respecting the property
in controversy and ordering the money paid therefor to be refunded for the reasons stated in
the resolution of June 5, 1933. The application or petition for the writ is denied. This
conclusion renders unnecessary a consideration of relator's demurrer to the complaint in
intervention on file herein.
Coleman, J., concurring:
I concur in the conclusion reached in the foregoing opinion for the reason stated therein.
One fact which leads me to this conclusion, and which is not stated in the opinion, is that the
lode which was advertised and sold was described as Survey 132, Crowley Lode; whereas,
the property sought by this proceeding to have conveyed is the Crowley Lode, Survey No.
131. It often happens that mining claims of the same name have different numbers.
____________
55 Nev. 329, 329 (1934) Taylor v. Nevada Gas Co., Limited
TAYLOR v. NEVADA GAS CO., Limited
No. 3033
December 27, 1933. 28 P.(2d) 134.
1. Appeal and Error.
Motion to strike transcript was denied, where record on appeal was complete and complied with rules,
appeal was duly perfected, and transcript was served on respondent's counsel and timely filed (Supreme
Court Rule 2).
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Anna J. Taylor, as administratrix of the estate of William C. Taylor, deceased,
against the Nevada Gas Company, Limited. From an adverse judgment, defendant appeals.
On motion to strike the transcript of record on appeal. Motion denied.
Leo A. McNamee, Frank McNamee, Jr., and Lasher B. Gallagher, for Appellant.
Ham & Taylor, for Respondent.
By the Court, Ducker, J.:
This is a motion to strike the transcript of record on appeal.
The four grounds upon which the motion was made are set out in the notice of motion. It is
unnecessary to state them in detail. None furnishes a reason for granting the motion. The
record on appeal before us, consisting of a certified copy of the judgment roll, the order
denying the motion for a new trial, the notice of appeal and undertaking on appeal, and bill of
exceptions duly served, filed, and certified, is complete. It is carefully prepared and arranged
in an orderly manner in accordance with the rules of this court. The appeal was duly
perfected, and the transcript of the record on appeal was served on respondent's counsel, and
filed within the time required by rule 2 of the rules of the supreme court.
The motion to strike the transcript of the record on appeal must be denied, and it is so
ordered.
____________
55 Nev. 330, 330 (1934) Flickinger v. Nevada Gas Co., Limited
WILLIAM H. FLICKINGER and IONE FLICKINGER (Husband and Wife), Respondents, v.
NEVADA GAS COMPANY, Limited, A Corporation, Appellant.
No. 3032
December 27, 1933. 28 P.(2d) 134.
Appeal from Eighth Judicial District Court, Clark County ; Wm. E. Orr, Judge.
Leo A. McNamee, Frank McNamee, Jr., and Lasher B. Gallagher, for Appellant.
Ham & Taylor, for Respondents.
By the Court, Sanders, C. J.:
This is a motion to strike the transcript of the record on appeal. The grounds of the motion
are identical with the grounds set out in a motion of the same kind in the case of Anna J.
Taylor, as Administratrix of the estate of William C. Taylor, Deceased, Respondent, v.
Nevada Gas Company, Ltd., a Corporation, Appellant, 55 Nev. 329, 28 P. (2d) 134, decided
on this date, in which the motion was denied. The facts are the same. Consequently on the
authority of that decision, the motion in the case before us should be denied.
It is so ordered.
____________
55 Nev. 331, 331 (1934) State Ex Rel. Wood v. Haeger
STATE Ex Rel. WOOD, District Attorney,
v. HAEGER
No. 3066.
July 5, 1934. 33 P.(2d) 753.
1. Counties.
Board of county commissioners is without power to confess judgment for county unless power is
expressly granted or is necessarily incidental for purpose of carrying into effect other powers expressly
granted.
2. Counties.
County board of commissioners held without power to confess judgment against county, where claim,
after being approved when originally presented by merely a majority vote of board, was disallowed by
auditor and was never subsequently unanimously approved by board as required by statute (Comp. Laws
1929, sec. 1944).
3. Justices of the Peace.
Where neither service of summons nor waiver of summons by appearance appeared from record in justice
court action, judgment based on unauthorized confession of judgment by county board was not waiver of
summons conferring jurisdiction on justice court.
4. Justices of the Peace.
Judgment of justice court which is void for want of jurisdiction is subject to collateral attack.
Appeal from Fifth Judicial District Court, Mineral County; Edgar Eather, Judge Presiding.
Mandamus by the State, on the relation of Fred L. Wood, District Attorney of Mineral
County, to compel Helen A. Haeger, Auditor of Mineral County, to draw a warrant upon the
treasurer of the county. From the order, Helen A. Haeger appeals. Reversed.
N. E. Conklin, for Appellant;
A board of county commissioners cannot confess judgment against the county. Grand
Island, etc. v. Banker, Treasurer, 6 Wyo. 369, 45 P. 505; 3 Freeman on Judgments, p. 2716;
State ex rel. Blaine Co. Attorney v. Dale, 261 P. 371.
No defendant can, by consent, confer power or jurisdiction on a court to enter an illegal
judgment, or a judgment beyond the jurisdiction of the court. Hastings & Co. v. Burning
Moscow Co., 1-2 Nev. 618. "Proceedings in a justice court must show such facts as
constitute a case within the jurisdiction, otherwise the law regards the whole proceeding
as coram non judice and void."
55 Nev. 331, 332 (1934) State Ex Rel. Wood v. Haeger
Proceedings in a justice court must show such facts as constitute a case within the
jurisdiction, otherwise the law regards the whole proceeding as coram non judice and void.
State v. Breen, 41 Nev. 516, 173 P. 555.
This judgment shows upon its face that the court had no jurisdiction to render such
judgment.
Fred L. Wood, for Respondent, made an oral argument, but did not file a brief.
OPINION
By the Court, Ducker, J.:
This appeal is taken from an order made by the district court of Mineral County granting a
writ of mandate against the auditor of said county. The order required the auditor to draw a
warrant upon the treasurer in the amount of $61.20 claimed by the petitioner.
The record before us presents the following facts: Petitioner presented a claim to the
county commissioners of said county for mileage traveled by him from the county seat
thereof to the city of Reno to accept service of a writ of prohibition issued out of the supreme
court to the district judge of said county acting in a civil case pending therein. The claim was
allowed by the county commissioners, but the auditor, who is the appellant here, refused to
allow it. It was resubmitted to the commissioners and was again approved. Appellant again
refused to audit and allow the claim. Petitioner then instituted an action and obtained a
judgment in the justice's court for said claim, which was presented to and allowed by the
commissioners. Appellant refused to allow it, and it was referred back to the commissioners,
who approved it by a unanimous vote. Appellant again refused to allow the claim. Petitioner
then instituted a proceeding in mandamus in the district court of the county against
appellant, which resulted in the order from which this appeal is taken.
55 Nev. 331, 333 (1934) State Ex Rel. Wood v. Haeger
against appellant, which resulted in the order from which this appeal is taken. The clerk of the
board of county commissioners filed in the action in the justice's court a certain writing by
which said commissioners sought to confess judgment in favor of plaintiff. It reads:
In the Justice's Court of Hawthorne Township,
County of Mineral, State of Nevada.
Fred L. Wood, Plaintiff vs. Mineral County, a Political
subdivision, et al, defendants.
Confession of judgment.
I, D. M. Buckingham, County Clerk of Mineral County, Nevada, and Clerk of the Board
of County Commissioners for said county, by specific orders of the board of County
Commissioners, hereby confess judgement herein in favor of Fred L. Wood, of Mineral
County, Nevada, for the sum of forty-two and 90/100 dollars and cents, and a reasonable
attorneys fee to be fixed by the court, by authority of said Board, and the the said Board (fin)
that this confession of (D. M. B.) Judgment is for a debt justly due and owing to the said Fred
L. Wood, arising upon the following facts: Mileage to Reno, Nevada, in the scope of his
official duties.
Dated: 29th day of October, A. D. 1932.
[Signed] D. M. Buckingham
D. M. Buckingham,
Clerk of said Board.
[County Seal.]
The following, omitting title of court and cause, is a copy of the judgment rendered in the
justice's court:
The case coming on regularly to be heard on the 29th day of October, 1932, and the
plaintiff appearing in person and the defendants having heretofore filed a confession of
judgment, and the same having been duly entered and confirmed by the court: Whereupon,
upon motion of plaintiff's attorney and consent heretofore filed by the Board of County
Commissioners by and through a majority vote for and in behalf of Mineral County, as
defendant herein, by and through its clerk, D. M. Buckingham, entered judgment by default.
55 Nev. 331, 334 (1934) State Ex Rel. Wood v. Haeger
clerk, D. M. Buckingham, entered judgment by default.
It is therefore ordered, and this does hereby order that said plaintiff is awarded judgment
by confession, and judgment against said defendant, Mineral County, in the sum of Forty-two
and 90/100 ($42.90) Dollars, together with the costs in the sum of $3.30, and a reasonable
attorney's fee in the sum of $15.00, making a total of $61.20.
Done in open court this 29th day of October, 1932.
E. M. Ferrel, Justice of the Peace.
Appellant contends that the writ of mandate granted in this case is unauthorized because
the judgment of the justice's court is void for lack of jurisdiction, and that no duty therefore
rests upon her to draw her warrant upon the treasurer. She claims that the judgment is void,
because it was rendered solely upon a confession of judgment against the county, which the
board of county commissioners was without power to make.
1, 2. We think this contention must prevail. Whether county commissioners are without
power to confess judgment for the county in any case we need not determine. Certainly they
are without such power unless it is expressly granted or necessarily incidental for the purpose
of carrying into effect some power so granted. Waitz v. Ormsby County, 1 Nev. 370; Sadler
v. Board of Com'rs of Eureka County, 15 Nev. 39. However this may be, we are satisfied that
they were without power to confess judgment in this case. Petitioner's claim, before it became
embodied in the judgment, was never approved by the unanimous vote of the board, which is
essential before it becomes the duty of the auditor to allow a claim previously disallowed by
such officer. Section 1944, N. C. L. The claim, when originally presented to the county
commissioners, was approved by only two of the commissioners, Summerfield and McInnis.
Commissioner Wichman voted against its allowance. When it was returned to the
commissioners after appellant refused to allow it, the same majority of the board approved
it, and Commissioner Wichman again voted against it.
55 Nev. 331, 335 (1934) State Ex Rel. Wood v. Haeger
same majority of the board approved it, and Commissioner Wichman again voted against it. If
the majority of the board of county commissioners were permitted to confess judgment as
was attempted, they could accomplish by indirection what could not be done directly; that is,
allow a claim against the county by a majority vote only after it had been vetoed by the
auditor. Section 1944, N. C. L., as previously pointed out, requires a unanimous vote in such
a case. A judgment based solely upon such a usurpation of power is void.
3. As will be seen from the judgment set out above, it has no basis except such attempted
confession of judgment filed in the justice's court by the clerk of the board. It does not appear
from the record that there was any service of summons in the action in the justice's court, nor
was there any waiver of summons by appearance. If the filing of the paper purporting to be a
confession of judgment by the clerk may be said to be an appearance authorized by the board,
it was a special appearance only intended to give effect to an unauthorized power. It was
therefore entirely ineffective to confer jurisdiction on the justice's court by a waiver of
summons. This court said in State v. Bonner, 43 Nev. 95, 181 p. 586: It will be seen from a
perusal of the record of the justice of the peace that, so far as appears therefrom, no service of
summons had been made upon either of the defendants at the time the judgment was
rendered, nor is there in the files sent up by the justice of the peace the original summons
showing service thereof; nor does the record show that the defendants appeared in the action.
It is an ancient rule that nothing is presumed in favor of the jurisdiction of courts of limited
jurisdiction. That such a court has jurisdiction must affirmatively appear; and, unless it does
so appear, judgment by such a court is void for want of jurisdiction. See, also, McDonald v.
Prescott & Clark, 2 Nev. 109, 90 Am. Dec. 517.
4, 5. The judgment of the justice of the peace in this case being void for want of
jurisdiction, it is not binding on anyone, and is subject to collateral attack.
55 Nev. 331, 336 (1934) State Ex Rel. Wood v. Haeger
binding on anyone, and is subject to collateral attack. 34 C. J. pp. 509-528. No duty rested
upon appellant to draw her warrant for such a judgment, consequently the order of the district
court was erroneous.
The order of the district court is reversed.
____________
55 Nev. 336, 336 (1934) McKay v. Washoe General Hospital Et Al.
McKAY v. WASHOE GENERAL HOSPITAL Et. Al.
No. 3052
July 6, 1934. 33 P.(2d) 755.
1. Counties.
Generally, county cannot be sued without legislative consent.
2. Hospitals.
Hospital, organized under statute authorizing counties to establish hospitals, but which were to own no
property, have no income and no method of raising money, and which did not provide that hospitals might
sue or be sued, could not be sued for alleged negligence of nurse employed by hospital in destroying
eyesight of patient by injection of improper solution (Stats. 1929, c. 169).
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Jennie McKay against the Washoe General Hospital and G. W. Nottingham and
others as members of the board of hospital trustees. From a judgment of dismissal, plaintiff
appeals. Affirmed.
Harwood & Diskin, for Appellant:
We assert that the receiving of patients, non residents of Washoe County, is a matter
entirely in the discretion of the board. And when the board, in the exercise of such discretion,
admitted a patient from outside of Washoe County, they thereby became engaged in the
hospital business in competition with other hospitals operated in Washoe County, and they
may not now successfully urge that in this capacity they were performing governmental
functions. Pardini v. City of Reno, 50 Nev. 392, 263 P. 768; Bank of the United States v.
Planters' Bank of Georgia, 22 U. S. 904, 6 L. Ed. 244; Dillon's Municipal Corporations {5th
ed.), sec. 109; Bell v. Pittsburgh {Pa.),
55 Nev. 336, 337 (1934) McKay v. Washoe General Hospital Et Al.
L. Ed. 244; Dillon's Municipal Corporations (5th ed.), sec. 109; Bell v. Pittsburgh (Pa.), 146
Atl. 567; Oliver v. Worcester, 102 Mass. 489, 3 Am. Rep. 385; Chafor v. City of Long Beach
(Cal.), 163 P. 670; Baker v. City of Kansas City, 233 P. 1012; Kebert v. Board of County
Commissioners of County of Wilson, 5 P.(2d) 1085; Hanley v. County of St. Louis, 62 Mo.
313.
Wm. McKnight, for Respondents:
The county hospital in Washoe County and the public hospital in Washoe County are both
supported and maintained by taxes collected from the taxpayers of said county. Secs.
5137-5147, N. C. L., as amended, Stats. 1933, p. 8; Stats. 1931, p. 96; secs. 2225-2242 N. C.
L., as amended, Stats. 1931, pp. 230, 231.
As both of said institutions are maintained at the expense of Washoe County, neither is
liable for the torts of its officers or employees. Note 4, L. R. A. (n. s.) 269, and cases cited;
note 49, A. L. R. 379, and cases cited; 30 C. J. p. 465, sec. 14.
The defendant trustees were operating and conducting the defendant hospital solely as a
governmental function, for which reason all of said defendants are immune from suit on
account of the alleged negligence. The character or liability of a public charitable hospital is
not affected in any respect by the fact that such institution receives compensation from some
of its patients, nor is the rule that it is not liable for the torts of its officers latered or changed.
Roosen v. Peter Bent Bringham Hospital, 235 Mass. 66, 126 N. E. 392, 14 A. L. R. 563, 566;
Gable v. Sisters of St. Francis, 227 Pa. 254, 75 Atl. 1087; Duncan v. Nebraska Sanitarium &
Ben. Ass'n., 92 Neb. 162, 137, N. W. 1120; County of Henepin v. Brotherhood of
Gethsemane, 27 Minn. 460, 8 N. W. 595; Browder v. City of Henderson, 182 Ky. 771, 207 S.
W. 479; Downs v. Harper Hospital, 101 Mich. 555, 60 N. W. 42; Jensen v. Maine Eye and
Ear Infirmary, 107 Me. 408, 78 Atl. 898; Morrison v. Henke, 165 Wis. 166, 160 N. W. 173;
Nicholas v. Evangelical Deaconess Home and Hospital, 281 Mo.
55 Nev. 336, 338 (1934) McKay v. Washoe General Hospital Et Al.
182, 219 S. W. 643; Taylor v. Protestant Hospital Ass'n., 85 Ohio St. 90, 96 N. E. 1089; 30
C. J. p. 462, sec. 1, n. 6; 11 C. J. p. 304, sec. 9, n. 70; note 49 A. L. R. 384.
In the absence of statutory power upon the part of either the institution or the trustees
thereof to sue or be sued, it is, of course, impossible to maintain an action against them, or
either or any of them, for any alleged tort or negligence liability. Overholser v. National
Home, 68 Ohio St. 230, 67 N. E. 487.
OPINION
By the court, Coleman, J.:
This action was instituted to recover damages in the sum of $25,000. The demurrer to the
complaint was sustained, and, plaintiff declining to plead further, a judgment of dismissal
was entered, from which an appeal has been taken.
Taking the view we do of this case, we do not deem it necessary to state all of the
allegations of the complaint. Suffice to say that it avers that Washoe General Hospital was
organized pursuant to chapter 169, Statutes 1929, and that the individual defendants are the
trustees of the hospital; that the plaintiff, while a resident of Esmeralda County, Nevada,
entered defendant hospital for care and treatment, pursuant to an agreement to pay therefor $4
per day, and had actually made a payment on account. It is further averred that it was, under
the terms of said contract, the duty of defendants to furnish plaintiff with an experienced,
competent, and skilled nurse to administer such medical attention to plaintiff as might be
directed by her physician in the course of treatment to be given her, but, notwithstanding
defendant's duty in this respect, they furnished plaintiff with a nurse who was incompetent,
inexperienced, and unskilled, all of which was known to defendants, or in the exercise of
reasonable care should have been known to them.
The plaintiff further alleges that, while being treated and cared for, it was necessary that
a liquid solution prescribed by her physician be administered to plaintiff's eye many times
daily, and that it was the duty of the nurse furnished by defendant hospital to drop said
liquid into her eye; that said nurse carelessly and recklessly dropped into the right eye of
plaintiff a liquid not prescribed by plaintiff's physician, resulting in the complete and
permanent destroying of the sight of her right eye, and seriously affecting the sight of her
left eye, to her damage in the sum of $25,000.
55 Nev. 336, 339 (1934) McKay v. Washoe General Hospital Et Al.
and cared for, it was necessary that a liquid solution prescribed by her physician be
administered to plaintiff's eye many times daily, and that it was the duty of the nurse
furnished by defendant hospital to drop said liquid into her eye; that said nurse carelessly and
recklessly dropped into the right eye of plaintiff a liquid not prescribed by plaintiff's
physician, resulting in the complete and permanent destroying of the sight of her right eye,
and seriously affecting the sight of her left eye, to her damage in the sum of $25,000.
The act referred to provides that any county in the state may establish a public hospital,
and authorizes the method to be followed to attain that end. The act authorizes the levy of a
tax for the establishing and maintenance of such hospital for a period of time not exceeding
twenty years. It provides that the money raised from such levy shall be collected in the same
manner as other taxes, and credited to the Hospital Fund, and shall be paid out by the
county treasurer on the order of the hospital trustees for the purposes authorized by this act,
and for no other purpose whatever; and that the trustees shall in general carry out the spirit
and intent of the act in establishing and maintaining a county public hospital.
Section 9 of the act provides that every hospital established under the act shall be for the
benefit of the inhabitants of such county and of any person falling sick or being injured or
maimed within its limits, but that the board of hospital trustees may extend the privileges and
use of such hospital to persons residing outside of such county, upon such terms and
conditions as the trustees may prescribe; that every such inhabitant who is not a pauper shall
pay a reasonable compensation for hospital services rendered, the receipts from such sources
to be paid to the treasurer of said county and credited by him to the hospital fund.
Section 15 of the act provides that donations of real and personal property may be made
for the benefit of such hospital, the title thereto to be vested in the county.
55 Nev. 336, 340 (1934) McKay v. Washoe General Hospital Et Al.
The defendant hospital is not a corporation, nor is it a voluntary association. The act in
question does not authorize it or its trustees to sue or be sued.
The defendants filed a demurrer to the complaint upon several grounds, among which are:
That it does not state a cause of action for various reasons; that the court has no jurisdiction
over the defendant Washoe General Hospital; that said defendant has no legal capacity to be
sued.
1. It is the well-recognized general rule that a county, which is but a political subdivision
of a state (a quasi corporation, Schweiss v. First Judicial District court, 23 Nev. 226, 45 P.
289, 34 L. R. A. 602), cannot be sued without legislative consent (15 C. J. 568; Story on
Agency [9th Ed.] sec. 319.)
2. Counsel for plaintiff concedes the correctness of this general rule, but contends that the
rule stated does not apply. It is contended that the establishment of defendant hospital was not
mandatory, and that the accepting of the application of the plaintiff and caring for her was
discretionary, and that no governmental function was involved in the treatment and care of
her, hence the same rule of law applies to defendants as apply to an individual or corporation
operating a hospital for profit; that the county commissioners of Washoe County and the
county had nothing to do with the management or control of the institution, but a separate
entity as provided by the legislative act was given the entire supervision, management, and
control of the institution.
In support of the contention made by the plaintiff, our attention is directed to several cases,
but chiefly to the case of Bell et al. v. City of Pittsburgh et al., 297 Pa. 185, 146 A. 567, 64 A.
L. R. 1542. We do not think that case is in point. So far as appears, both the city of Pittsburgh
and the county of Allegheny were capable of being sued, and the only question was one of
liability. In the instant case, the question is whether the defendants can be sued at all.
The liability of an organization created by statute must be determined under an
interpretation of the statute creating it, and, though the defendant hospital was not
created by a legislative act, it was organized pursuant to such an act, and we must look to
the intention of the legislature in enacting the law authorizing the organization of
defendant hospital, in reaching a conclusion in this case.
55 Nev. 336, 341 (1934) McKay v. Washoe General Hospital Et Al.
must be determined under an interpretation of the statute creating it, and, though the
defendant hospital was not created by a legislative act, it was organized pursuant to such an
act, and we must look to the intention of the legislature in enacting the law authorizing the
organization of defendant hospital, in reaching a conclusion in this case.
The act under which the defendant hospital was organized provides that any county may
establish a public hospital in the following manner. The act did not create a corporation, but
merely authorized the respective counties to establish a hospital, and it did not provide that
such hospital might sue or be sued. All moneys raised by taxation pursuant to the act are
collected as other taxes are collected, and must be credited, to the Hospital Fund, and shall
be paid out on the order of the hospital trustees for the purposes authorized by this act, and
for no other purpose whatever, and the title to all property donated for the benefit of such
hospital shall vest in the county.
It seems to us that the intention of the legislature is perfectly plain, namely, to set up a
public institution which should own no property, have no income and no method of raising
money, and hence no ability to pay anything. Certainly it was not the legislative intent to
make such an institution liable in damages for any act done in carrying out the purposes
sought to be attained.
Furthermore, the failure of the legislature to provide that the defendant might sue and be
sued is a conclusive reason why this action cannot be maintained.
Judgment affirmed.
On Petition for Rehearing
October 1, 1934. 36 P.(2d) 78.
By the Court, Coleman, J.:
Appellant has filed an urgent petition for a rehearing, in which it is insisted, among other
things, that the respondent neither in the lower court nor in the brief or oral argument
before this court, at any time did not urge that the respondent was not a corporation, and
for this reason no suit could be maintained against it."
55 Nev. 336, 342 (1934) McKay v. Washoe General Hospital Et Al.
or oral argument before this court, at any time did not urge that the respondent was not a
corporation, and for this reason no suit could be maintained against it.
As we pointed out in our opinion, the defendant demurred to the complaint in the lower
court upon several grounds, among which was that the defendant has no legal capacity to be
sued.
On page 21 of respondent's brief in this court we think it clearly appears that it was the
theory that the respondent had no legal capacity to sue or be sued. Among other things, it is
said: The statute authorizing the creation of the Washoe County Public Hospital does not
confer upon said hospital, or upon the trustees thereof, the power to sue or to be sued.
In our opinion we said: In the instant case, the question is whether the defendants can be
sued at all. That was the only question we undertook to determine.
We think we decided a question presented and one which disposed of the case, and that
our conclusion was correct.
Petition denied.
____________
55 Nev. 343, 343 (1934) State Board v. Industrial Commission
STATE Ex Rel. STATE BOARD OF CHARITIES AND PUBLIC WELFARE v. NEVADA
INDUSTRIAL COMMISSION.
No. 3070
July 6, 1934. 34 P.(2d) 408.
1. Master and Servant.
State and its political subdivisions wherein federal emergency relief projects are carried on, need not
accept industrial insurance act, since such projects are not industries of state, and workmen thereon are
not employees of state and its political subdivisions, which are not employers with meaning of act
(Comp. Laws 1929, sec. 2680 et seq.; Federal Emergency Relief Act of 1933 [15 USCA, sec. 721 et seq.]).
Original Proceedings in mandamus by the State of Nevada, on the relation of the State
Board of Charities and Public Welfare, against the Nevada Industrial Commission.
Proceeding dismissed.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; and Julian
Thruston, Deputy Attorney-General, for Relator:
We submit that when the people who go to work under the new federal emergency relief
program are offered work and accept work in lieu of direct relief, as they do in the situation
involved in this case, an employment arises, that the employer is the political subdivision for
whose benefit the work is done, the worker becomes the employee, and the Nevada industrial
insurance act applies, and that the writ of mandate as prayed for should be granted. Los
Angeles County v. Industrial Accident Commission (Cal.) 14 P.(2d) 746; dissenting opinion
of Justice Fead in Vaivida v. Grand Rapids, 88 A. L. R. 709-711, and note.
George L. Sanford, for Respondent:
We believe it may be laid down as a general and permanent principle that work relief
emanating from governmental agencies mainly directed to the alleviation of destitution
among the people at large, does not involve or affect the relation of employer and
employee, or any laws regulating that relation.
55 Nev. 343, 344 (1934) State Board v. Industrial Commission
involve or affect the relation of employer and employee, or any laws regulating that relation.
McBurney v. Industrial Accident Commission of California, 30 P. (2d) 414; Martin v.
Industrial Accident Commission (Cal. App.), 30 P.(2d) 527; Rico v. Industrial Accident
Commission (Cal. App.), 30 P.(2d) 584; Basham v. County Court, Kanawho County (W.
Va.), 171 S. E. 893; In re Moore (Ind. App.) 187 N. E. 219; Vaivida v. City of Grand Rapids
(Mich.), 249 N. W. 826.
OPINION
By the Court, Sanders, C. J.:
This is an original proceeding in mandamus, instituted under the Nevada industrial
insurance act of 1913, as amended, N. C. L. sec. 2680, et seq. The purpose of the proceeding
was to obtain from this court a speedy and final determination of the question of whether or
not any sufficient legal duty rests upon the state and the political subdivisions thereof wherein
federal emergency relief projects are carried on under the federal emergency relief act of
1933, 48 Stat. 55 (15 USCA sec. 721 et seq.), to provide for the payment of premiums to the
state insurance fund for the payment of any and all personal injuries by accident sustained by
persons while at work upon the federal relief projects determined upon by the state
emergency relief administrations with the approval of the federal emergency relief
administrator. Upon consideration of the respondent's demurrer to the petition for the writ,
the demurrer was sustained and the proceeding ordered dismissed without the filing of an
opinion.
Now, in conformity to the civil practice act, we shall state briefly the reasons which
impelled the court to sustain the demurrer and order the dismissal of the proceeding.
In the first place, it was considered that the federal emergency relief projects carried on
under the federal emergency relief act of 1933 are entirely foreign to the purposes of the
Nevada industrial insurance act.
55 Nev. 343, 345 (1934) State Board v. Industrial Commission
emergency relief act of 1933 are entirely foreign to the purposes of the Nevada industrial
insurance act. The act, as stated in its title, relates solely to the compensation of injured
workmen in the industries of the state. The court is of the opinion that the federal emergency
relief projects are in no sense state industries, but are created under the act of Congress for the
relief of the unemployed. In the second place, the state, counties, school districts, and the
municipal corporations thereof, where federal emergency relief work is carried on, are not
employers within the meaning of the term employers as used and defined in the Nevada
industrial insurance act, and the persons placed at work upon such projects are not employees
within the meaning of the term employees as defined and used in the Nevada industrial
insurance act. McBurney v. Industrial Accident Comm. of Calif. et al. (Cal. Sup.), 30 P.(2d)
414; Jackson v. North Carolina Emergency Relief Administration, 206 N. C. 274, 173 S. E.
580.
Not being employers or employees within the meaning of said act, no legal duty is
imposed upon the Nevada industrial insurance commission to compel the state or its political
subdivisions wherein federal emergency relief projects are carried on to provide for the
payment of premiums to the state insurance fund for the payment of compensation for injuries
sustained by workmen while in the course of the performance of work upon the federal
emergency relief projects. In short, the court is of the opinion that such workmen are not
employed by the state, the counties, the school districts, or the municipal corporations of the
state, but are provided with work because of the need of means of support for themselves and
their families. The money paid them is not paid as a contractual remuneration for their work,
but is paid for the relief of themselves and their families. Consequently, whatever else should
be done for the relief of unemployment, it is manifest that the terms, conditions, and
provisions of the Nevada industrial insurance act cannot be converted into something in the
nature of an unemployment insurance benefit for the relief of the unemployed of this
state.
55 Nev. 343, 346 (1934) State Board v. Industrial Commission
into something in the nature of an unemployment insurance benefit for the relief of the
unemployed of this state.
For the reasons stated, the demurrer to the petition for the writ of mandate was sustained
and the proceeding was ordered dismissed.
____________
55 Nev. 346, 346 (1934) State Ex Rel. Adams v. Allen
STATE Ex. Rel. ADAMS, Mayor, v. ALLEN, City Clerk
No. 3077
July 31, 1934. 34 P.(2d) 1074.
1. Municipal Corporations.
Municipal bond issue which had been voted at special election and which was invalid because providing
for redemption in unequal annual installments could not be corrected by resolution of city council
providing for smaller issue redeemable in equal annual installments (Comp. Laws 1929, sec. 6085; Stats.
1933, c. 95).
2. Constitutional Law.
Unconstitutionality of statute under which bond issue was voted at special election was not considered,
where bond issue was held invalid on other grounds, since court would not determine constitutional
question unless clearly involved, and a decision was necessary to determination of the case (Stats. 1933, c.
95).
Original proceeding in mandamus by the State, on the relation of W. R. Adams, Mayor of
the City of Sparks, against W. S. Allen, City Clerk of the City of Sparks, Washoe County, to
compel respondent to publish a notice of sale of bonds of the city. From an order dismissing
the proceeding, realtor appeals. Affirmed.
R. S. Flanary, City Attorney of Sparks, and Le Roy F. Pike, for Relator:
The defect or error in resolution No. 174, if there were such, was cured by the expressed
provisions of ordinance No. 134, which does provide for equal annual redemptions. In both
resolution 174 and city ordinance No.
55 Nev. 346, 347 (1934) State Ex Rel. Adams v. Allen
No. 134, $36,000 worth of bonds are in fact fully authorized, with equal annual maturities.
Any other differences, such as the change in the number of the bonds from 1 to 36, in place of
from 1 to 45, and the change in the starting date of redemption from January 1, 1935, to
January 1, 1937, are immaterial, and does not constitute a variance substantial enough to
invalidate the issue or to place its legality in question. Oxnard v. Bellah, 21 Cal. App. 33, 130
P. 701; Derby v. Modesto, 104 Cal. 532, 38 P. 410; City of San Diego v. Millar, 16 P.(2d)
357.
Gray Mashburn, Attorney-General, and W. T. Mathews and Julian Thruston, Deputy
Attorneys-General, for Respondent:
If the 1933 act is unconstitutional or inapplicable to the city of Sparks, then it naturally
follows that the bond election should have been held pursuant to the Sparks city charter,
section 55, which provides that no person not a taxpayer and qualified elector within the
corporate boundary of the city is qualified to vote at any special bond election. It appears and
is admitted by the pleadings that this section was not complied with, in that 116 voters who
were not taxpayers were permitted to vote at the election, presumably under the authority of
the 1933 act, the provisions of which last-mentioned act were completely ignored in the
actual conduct of the election. In other words, this election was held not pursuant to the terms
of any law or laws, but was admittedly held contrary to both the Sparks charter provisions
governing such elections, and also contrary to the provisions of the general laws relating to
same.
OPINION
Per Curiam:
This is an original proceeding in mandamus instituted to compel W. S. Allen, as city clerk
of the city of Sparks in said county, to forthwith proceed to publish a notice of sale of
$36,000 of the bonds of said city for the purpose of relieving the unemployment existing
therein, and for constructing a drainage system, culverts and bridges, and extending and
renovating the sewer system.
55 Nev. 346, 348 (1934) State Ex Rel. Adams v. Allen
a notice of sale of $36,000 of the bonds of said city for the purpose of relieving the
unemployment existing therein, and for constructing a drainage system, culverts and bridges,
and extending and renovating the sewer system.
It was heard on the issues made by relator's petition and respondent's answer thereto.
Thereafter an order was made dismissing the proceedings. The petition shows, inter alia, that
the city of Sparks is organized and operating under a special act of the legislature of the State
of Nevada, approved March 15, 1905. On the 9th day of October, 1933, the city council,
acting under the authority granted by sections 53 and 54 of the charter, adopted a resolution
known as resolution No. 174, providing for the issuance of $45,000 worth of municipal
bonds. The resolution provides that the bonds shall be of the denomination of $1,000 each
dated January 1, 1934, numbered from 1 to 45, consecutively, and shall be due and payable as
follows: Bonds numbered 1 and 2 shall be payable on January 1, 1935; bonds numbered 3
and 4 shall be payable on January 1, 1936; and in like manner until January 1, 1944, two of
said bonds in numerical sequence shall be redeemed. On January 1, 1944, three bonds in
numerical sequence shall be redeemed, and on January 1, 1949, redemption of three bonds
each year shall cease, and from that date on two bonds in numerical sequence shall be
redeemed until all of said bonds are redeemed.
The resolution also provides that a special bond election shall be conducted pursuant to the
statutes of the State of Nevada 1933, chapter 95 at page 116, and that due notice of said
election be given as required by law.
A petition requesting that a special election be held to determine whether or not the bonds
proposed in resolution 174 shall issue was filed by a number of taxpayers and residents of the
city of Sparks, and thereafter an ordinance providing for a special election was passed and
adopted pursuant to which a special bond election was held on November 25, 1933. The
result of the election was 422 votes for the bond issue, and 175 votes against the bond issue.
55 Nev. 346, 349 (1934) State Ex Rel. Adams v. Allen
votes against the bond issue. Thereafter, the city council enacted city ordinance No. 134, in
which it was recited that it was not necessary to issue 45 bonds, and providing for the
issuance, advertisement, and sale of 36 bonds of the denomination of $1,000 each. Provision
was made in ordinance No. 134 for the bonds to mature, $2,000 on January 1st in each of the
years 1937 to 1954, inclusive. Respondent was ordered to publish notice of such sale, which
he refused to do. Hence this proceeding.
1. We are of the opinion that the bond issue is invalid, and the respondent therefore
justified in refusing to publish the notice of sale. Our opinion is upon the ground that the
bonds initiated by resolution No. 174 and voted are not the same in a substantial particular
with the bonds ordered to be noticed for sale. Section 6085, N. C. L., requires that all such
bonds shall be redeemed in equal annual installments. The election was noticed and held
pursuant to resolution No. 174, providing redemption in installments in a substantial
difference in amounts. It was too late to correct this to conform to the statute, as was
attempted to be done by ordinance No. 134. It would be impossible to say to what extent the
favorable vote was influenced by the maturities as provided in resolution No. 174 noticed to
the voters. It was held in California under facts somewhat similar, that the city council was
without authority to issue bonds of the city. City of North Sacramento v. Irwin, 94 Cal. App.
652, 271 P. 788, 272 P. 767.
2. Respondent contends that the bond issue fails because the election was not conducted
pursuant to said act of 1933 as provided in resolution No. 174, of which due notice was
given. Relator insists that this act is unconstitutional in several respects. We may not
determine this question, for our conclusion that the bond issue is invalid for the reasons
heretofore given is decisive of the case.
It is a settled rule of law that a constitutional question will not be determined unless clearly
involved and a decision thereof necessary to a determination of the case.
55 Nev. 346, 350 (1934) State Ex Rel. Adams v. Allen
a decision thereof necessary to a determination of the case. State v. Meder, 22 Nev. 264, 38 P.
668; State v. Stoddard, 25 Nev. 452, 62 P. 237, 51 L. R. A. 229; Karns v. State Bank & T.
Co., 31 Nev. 170, 101 P. 564.
We will state that the city of Sparks and the town of Carlin are not in the same class.
The order of this court previously made and entered dismissing this proceeding is
confirmed.
____________
55 Nev. 350, 350 (1934) Strohecker v. Mutual Building & Loan Ass'n
STROHECKER v. MUTUAL BUILDING & LOAN
ASSOCIATION OF LAS VEGAS, NEVADA
No. 3045
August 1, 1934. 34 P.(2d) 1076.
1. Mortgages.
Execution of mortgage upon realty to secure loan constituted a conveyance within statute making every
unrecorded conveyance of realty void as against subsequent purchasers in good faith, and for valuable
consideration (Comp. Laws 1929, secs. 1498, 1546).
2. Mortgages.
Facts held to show that building and loan association took mortgage without notice of previous mortgage
which had not been recorded, and hence was entitled to priority (Comp. Laws 1929, secs. 1498, 1546).
Facts disclosed that the secretary of the association was informed that the mortgagor would
like to borrow money and give a first mortgage therefor and get other money on a second mortgage,
and that such secretary was cashier and director of the bank where such other money for the second
mortgage was deposited, but there was no showing that he had knowledge of such prior mortgage.
3. Corporations.
Corporation can acquire knowledge or receive notice only through its agents; general rule being that
corporation is affected with constructive knowledge, regardless of its actual knowledge of all material facts
of which its officer or agent receives notice or acquires knowledge while acting in course of his employment
and within scope of his authority, and corporation is charged with such knowledge, notwithstanding agent
does not in fact communicate such knowledge to corporation.
55 Nev. 350, 351 (1934) Strohecker v. Mutual Building & Loan Ass'n
4. Building and Loan Associations.
Information which came to secretary of building and loan association while acting as cashier of bank, or
in any other connection than as officer of association, could not bind association.
5. Appeal and Error.
Judgment would not be reversed, notwithstanding demurrer to cross-complaint was allegedly erroneously
overruled, where plaintiff would win empty victory.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by H. M. Strohecker against the Mutual Building & Loan Association of Las
Vegas, Nevada, a corporation, and another, wherein defendants filed a cross-complaint.
Judgment for defendants, and plaintiff appeals. Affirmed.
A. A. Hinman, for Appellant:
Previous to the escrow, Mr. Hinman advised Mr. Wengert that Mr. Hooper was to get
$2,000 from Mr. Cook on a second mortgage, in addition to his proposed $3,000 loan from
the association; that he wanted to purchase the property for cash; that he had no other means,
and would have to proceed in that manner, or he could not make the purchase.
Mr. Wengert agreed that the loan could be made, and it was thereupon made, upon that
basis, passing through the regular procedure, and being approved by Mr. Wengert and Mr.
Hinman acting as the executive committee of the association. The association, therefore, was
conclusively bound by the knowledge of Mr. Wengert, acting as a member of its executive
committee, within the course of his employment, and the scope of his authority, in relation to
said loan. 41 A. C. J. 484, n. 99; 14 A. C. J. 492, n. 68.
The cross-complainants do not have a sufficient interest in the property to entitle them to
relief. 41 C. J. 283, 284, nn. 48-50; 41 C. J. 279, n. 19; sec. 9065, N. C.L.; Orr v. Ulyatt, 23
Nev. 134, 43 P. 916; So. Pacific Co. v. Miller, 39 Nev. 169, 154 P. 929; 41 C. J. 281, n. 22
1J3; Hart's Estate {Wis.), 205 N. W. 3S6, 3S7; Gallatin Co. v.
55 Nev. 350, 352 (1934) Strohecker v. Mutual Building & Loan Ass'n
n. 22 1/3; Hart's Estate (Wis.), 205 N. W. 386, 387; Gallatin Co. v. Beattie, 3 Mont. 173;
Holland v. Comrs. (Mont.), 39 P. 575; 51 C. J. 180, n. 22; 51 C. J. 168, n. 71; Daly v.
Lahontan Mines Co., 39 Nev. 14, 23, 151 p. 514; sec. 9048, N. C. L.; Wyam v. Kelly, 1 Nev.
179, 185; Scott v. Woodworth (Cal.), 167 P. 543, at 547.
Leo A. McNamee and Frank McNamee, Jr., for Respondents:
It appears from the record that the only knowledge or notice Wengert could have had
relating to the existence of the Cook mortgage was what Mr. Hinman told him prior to the
consummation of the September, 1928, deal. even assuming that such conversation took place
between Wengert and Hinman, the same would not be sufficient in law to impute notice or
knowledge to Wengert, let alone the Mutual Building & Loan Association, of the existence of
the Cook mortgage in March, 1931. 46 C. J. 543, sec. 28; 46 C. J. 546, sec. 34; 46 C. J. secs.
29, 30; Tarke v. Bingham (Cal.), 55 P. 759; McDonald v. Reich (Cal.), 281 P. 106; Zeller v.
Milligan (Cal.), 236 P. 349-352; Cushing v. Hurel, 4 Pick. (Mass.) 253, 16 Am. Dec. 335;
Koon v. Tramel, 32 N. W. 243 (Ia.); Goodwin v. Dean, 50 Conn. 517; White v. Fisher, 77
Ind. 65, 40 Am. Rep. 287; Foulks v. Reed, 89 Ind. 370; Christie v. Sherwood (Cal.), 45 P.
820; Distilled Spirits, 11 Wall 366, 20 L. Ed. 167; Lunt v. Neely, 24 N. W. 741; Constant v.
University (N. Y.), 2 L. R. A. 734; 2 C. J. P. 866, sec. 546, nn. 99, 100.
The following cases from states having a statute identical with ours sustain the proposition
that the holder of the equitable title has such an estate or interest as to enable him to maintain
an action against adverse claimants also holding equitable interests, for the purpose of
determining such adverse claims. Tuffree v. Polhemus, 41 P. 806; McKinnon v. McIlhargey
(Ida.), 135 P. 826; Buchner v. Malloy (Cal.), 100 P. 687; Hayford v. Wallace (Cal.), 46 P.
293; Akres v. Brooks {Okla.),
55 Nev. 350, 353 (1934) Strohecker v. Mutual Building & Loan Ass'n
v. Brooks (Okla.), 229 P. 544; Chesney v. Valley Livestock Co. (Wyo.), 244 P. 216; Coleman
v. Jaggers (Ida.), 85 P. 894; Turner v. Deacon (Cal.), 289 P. 179; 5 R. C. L. p. 646.
OPINION
By the Court, Coleman, J.:
The material facts of this case are these:
On September 18, 1923, William J. Hooper and Katherine Hooper, his then wife, executed
their promissory note payable to George H. Cook, in the sum of $2,000; and to secure the
payment thereof executed and delivered their mortgage upon certain real property situated in
Clark County, Nevada. This mortgage was not recorded until the 12th day of January, 1932.
The note and mortgage were assigned to this plaintiff on May 9, 1932. On March 11, 1931,
said William J. Hooper and his then wife, Violet M. Hooper, executed their promissory note
to Mutual Building & Loan Association in the sum of $3,500, and to secure the payment
thereof executed and delivered to said association their mortgage upon the identical property
covered by the mortgage first above mentioned, which was duly recorded on March 13, 1931,
in the proper office of the county in which the property was situated.
The plaintiff, the assignee of the first note and mortgage mentioned, brought suit to
foreclose said mortgage. The defendants filed an answer in the suit denying certain
allegations of the complaint and alleging, as an affirmative defense, the execution, delivery,
and recording of the second mortgage, and their lack of notice of the existence of the first
mortgage. The trial court made findings in support of the affirmative defense, and entered
judgment accordingly. Plaintiff has appealed from the judgment and from the order denying a
motion for a new trial.
While several questions are discussed in the briefs, taking the view we do it is
unnecessary that we consider but one of them; namely, whether the defendants had
actual or constructive notice of the first mortgage.
55 Nev. 350, 354 (1934) Strohecker v. Mutual Building & Loan Ass'n
taking the view we do it is unnecessary that we consider but one of them; namely, whether
the defendants had actual or constructive notice of the first mortgage.
Section 1498, N. C. L., provides that every conveyance of real estate which shall not be
recorded is void as against subsequent purchasers, in good faith, and for a valuable
consideration; and section 1546, N. C. L., provides that the term conveyance as used in the
act shall be construed to embrace every instrument in writing, except a last will and
testament, whatever its form, and by whatever name it may be known, by which any interest
or estate in lands is created, aliened, assigned, or surrendered.
1. The mortgage in question created an interest in the real estate conveyed; hence it
constituted a conveyance in the sense contemplated by the statute mentioned. Such has been
the uniform construction of bench and bar. In Brophy Min. Co. v. Brophy & Dale Gold &
Silver Min. Co., 15 Nev. 101, 113, Hawley, J., referring to the statutes requiring the recording
of instruments pertaining to real estate, quotes with approval from 1 Story Eq. Jur., sec. 397,
as follows: The object of all acts of this sort is to secure subsequent purchasers and
mortgagees against prior secret conveyances and incumbrances.
2. Was the mortgage to the Building & Loan Association taken without notice? We think
the trial court reached the correct conclusion in holding that it was.
The contention of the plaintiff, to the effect that the defendant had notice of the Cook
mortgage, is based mainly upon the fact that Mr. C. S. Wengert, while secretary of the
defendant company and member of its executive committee, during 1928, was informed that
Mr. Hooper would like to borrow $3,000 of the defendant company and give a first mortgage
therefor, and get $2,000 from Mr. Cook on a second mortgage, with which to pay for the
property in question.
On the 18th of September, 1928, and until after the execution of the $3,500 note and
mortgage mentioned, Wengert was cashier and director of First State Bank of Las Vegas,
Nevada, where the $2,000 received from Cook and secured by the mortgage sought to be
foreclosed was deposited, and through which it was paid out.
55 Nev. 350, 355 (1934) Strohecker v. Mutual Building & Loan Ass'n
Wengert was cashier and director of First State Bank of Las Vegas, Nevada, where the $2,000
received from Cook and secured by the mortgage sought to be foreclosed was deposited, and
through which it was paid out. He was, on said 18th day of September, director, secretary,
and member of the executive committee of the Mutual Building & Loan Company.
On and prior to said last-named date there was a mortgage on the property mentioned
herein. All of the deeds, mortgages, etc., which were executed and delivered in the clearing of
the title to said lot, as well as the mortgage to Mutual Building & Loan Association to secure
the $3,500, passed through the hands of Wengert as an officer of said bank.
It is contended that in view of all of these facts the Mutual Company had constructive
notice of the Cook mortgage, and hence the findings and judgment must be reversed.
We cannot accept this contention. In fact, we do not see how the trial court could have
reached any other conclusion than it did.
3. The general rule applicable to a case of this character is stated in 14 A. C. J. p. 482, sec.
2350, as follows: A corporation can acquire knowledge or receive notice only through its
officers and agents, and hence the rule holding a principal, in case of a natural person, bound
by notice to his agent is particularly applicable to corporations, the general rule being that the
corporation is affected with constructive knowledge, regardless of its actual knowledge, of all
the material facts of which its officer or agent receives notice or acquires knowledge while
acting in the course of his employment and within the scope of his authority, and the
corporation is charged with such knowledge even though the officer or agent does not in fact
communicate his knowledge to the corporation.
We are unable to see how the facts of this case bring it within the rule quoted. The first
intimation of any fact which came to Wengert's knowledge, relative to the Cook mortgage,
was the statement to him of Mr.
55 Nev. 350, 356 (1934) Strohecker v. Mutual Building & Loan Ass'n
the Cook mortgage, was the statement to him of Mr. Hinman that Mr. Hooper told me he
would like to borrow three thousand dollars from the Building and Loanand get two
thousand dollars from Mr. Cook on a second mortgage.
4. This was not testimony as to an existing fact, but testimony of what Mr. Hooper desired
to do; of something which might or might not occur. To hold that a busy cashier of a bank,
who is actively connected with other business enterprises, must charge his mind, as an officer
of a corporation, so as to bind it, with all of the statements which are made to him,
particularly as to things which may or may not transpire, would be stretching the rule too far.
It would result in the ruination of every corporation in the land. Certainly the information
which came to Wengert's knowledge, while acting as cashier of the bank, or in any other
connection than as an officer of the Building & Loan Association, can in noway bind the
association.
Giving all of the testimony the most favorable construction possible in behalf of the
plaintiff, any other conclusion than that reached by the trial judge would be without
justification.
5. It is also contended that the lower court erred in overruling plaintiff's demurrer to the
cross-complaint of the Building & Loan Association. If we were to concede this contention to
be well founded and reverse the judgment and order for that reason, plaintiff would win but
an empty victory. This court has for many years turned a deaf ear to appeals in such
situations. Paterson v. Condos et al., 55 Nev. 260, 30 P.(2d) 283.
Judgment and order affirmed.
On Petiton for Rehearing
October 1, 1934.
Per Curiam:
Rehearing denied.
____________
55 Nev. 357, 357 (1934) Austin v. Dilday
AUSTIN v. DILDAY
No. 3062
August 6, 1934. 34 P.(2d) 1073.
1. Automobiles.
In action against motorist for injuries to guest passenger, evidence held not to justify findings of
defendant's negligence in driving at excess speed on rough road and in permitting steering gear to be in
defective condition.
Plaintiff's witness and traffic officer both testified that it was not dangerous to drive over road
in question at 35 miles per hour, about which speed court found defendant was driving. Witness
testified that after accident, steering arm was bent forward so it was not possible to turn to left; but
defendant testified that automobile was turned to left only a few minutes before accident, which was
not denied by passenger.
Appeal from Eighth Judicial District Court, Clark County; L. O. Hawkins, Judge
Presiding.
Action by Mary Hortense Proctor against Claborn Dilday, wherein Harry H. Austin, as
executor, etc., was substituted as plaintiff. From a judgment for plaintiff, defendant appeals.
Reversed, and case dismissed.
See, also, 55 Nev. 1, 23 P.(2d) 504.
Henderson & Marshall, for Appellant:
It is the claim of appellant that there is no evidence upon which to sustain a verdict for
plaintiff in this case. We contend that there is no evidence whatsoever produced which shows
that the speed of defendant's car was excessive or was in excess of the speed at which an
ordinary person would travel upon that particular highway.
Harry H. Austin, for Respondent:
We maintain that under the surrounding conditions, excessive speed was shown.
Witness Robbins' testimony that the steering arm of the car, after the accident, was in such
shape that you could turn it to the right but could not turn it to the left, is not denied.
55 Nev. 357, 358 (1934) Austin v. Dilday
left, is not denied. If it were in that condition before the accident, the appellant was guilty of
negligence in driving such a car. And if it were not in that condition, how did it get that way?
Robbins says it could have been bent by great pressure on the steering wheel. Appellant was
driving the car, and if he exerted such pressure on the wheel, we submit that was not careful
driving.
OPINION
Per Curiam:
This action was commenced by Mary Hortense Proctor to recover damages alleged to have
been sustained by reason of defendant's negligence while riding in an automobile with her.
After the trial of the case but before judgment was rendered, Mrs. Proctor died, and the
action was revived in the name of her administrator. The defendant has appealed from the
judgment and from the order denying a new trial.
We will first consider the contention that the evidence does not justify the judgment and
the findings.
The court found that while the deceased was riding with the defendant as his guest, the car
in which they were riding, as a result of the negligence of defendant in operating the car at an
excessive speed, overturned; that the road over which the defendant was driving, at the time
of the accident, was rough, choppy and full of small potholes, some of which was partly
filled with loose dirt, dust and desert sand, and that there was a slight depression on both
sides of the improved portion of said roadway, immediately adjoining and parallel to the
same, for some considerable distance, both ways from and at the place of said accident, and
that all of the foregoing facts were well known to this defendant prior to and at the time of
said accident.
The court also found that for several months prior to and at the time of the accident, the
steering gear on defendant's automobile was defective, in that the control, movement,
direction, and guidance of the front wheels of the same did not at all times quickly,
readily, and truly respond to the movement of the steering wheel of said car, thereby
rendering it impossible for the driver of said car to at all times direct its course, and that
during all of such time said defective condition of said steering gear was well known to
the defendant, but not known to the deceased.
55 Nev. 357, 359 (1934) Austin v. Dilday
defendant's automobile was defective, in that the control, movement, direction, and guidance
of the front wheels of the same did not at all times quickly, readily, and truly respond to the
movement of the steering wheel of said car, thereby rendering it impossible for the driver of
said car to at all times direct its course, and that during all of such time said defective
condition of said steering gear was well known to the defendant, but not known to the
deceased.
The court further found: That if said automobile had been in proper condition and
properly propelled and controlled by this defendant, at the time of said accident, in the usual
and ordinary manner, and driven over said road at a reasonable rate of speed, said accident
would not have occurred and no injury would have resulted to plaintiff's testatrix, Mary
Hortense Proctor.
Does the evidence support the findings and judgment? We think it is clear that it does not,
and, it so appearing, the judgment must be reversed. Valverde v. Valverde, 55 Nev. 82, 26
P.(2d) 233.
To demonstrate this conclusion does not, in our opinion, necessitate a very extensive
review of the evidence.
The trial court found as a fact that the defendant at the time of the accident was driving at
the rate of at least thirty-five miles an hour. This finding is supported by the evidence. The
plaintiff called one witness who testified that it was not dangerous to travel over the road in
question at the rate of thirty-five miles an hour. This witness was James H. Down. His
testimony stands unquestioned and uncontradicted, and, coming from the mouth of a witness
produced by the plaintiff, it would seem to be conclusive to show that the defendant was not
guilty of negligence in the manner of driving, which is the sole basis of negligence asserted
by the plaintiff in the complaint.
The defendant produced James Foxley, a witness of wide experience with automobiles,
and traffic officer at the time of the accident, who corroborated plaintiff's witness on this
point. These were the only witnesses who testified as to this question, both of whom
inspected the road soon after the accident.
55 Nev. 357, 360 (1934) Austin v. Dilday
who testified as to this question, both of whom inspected the road soon after the accident.
But the court also found that at the time of the accident, and for some time prior thereto,
the steering gear of the car in question was so defective as at times to prevent its readily
responding to the efforts of the driver thereof, and it appears that the court was influenced in
reaching its judgment because of this finding, coupled with the other finding mentioned as to
negligence. We do not find a scintilla of testimony to support this finding. The only witness
who testified as to the condition of the steering wheel prior to the accident was the defendant,
and he testified that at one time the steering wheel did not work well, but that he had had it
fixed in Los Angeles, since which time he had had no trouble with it.
The witness Robbins testified to examining the car shortly after the accident, and to
finding the steering arm of the car bent forward to such an extent (2 1/2 inches) that it was
possible to turn the car to the right but not possible to turn it to the left. It was evidently this
testimony which influenced the court in reaching the conclusion that the car was not in proper
condition to be controlled by the defendant. As we read the evidence, the condition of the
steering arm testified to by Robbins was the result of the accident, for the reason that Mrs.
Proctor at no time testified that the car could not be turned to the left by defendant, but she
did testify that while driving it (car) hit a bump and then the car went to the left and quite a
little way to the left. Furthermore, the defendant testified:
Q. Now, after you had gotten about five miles from town you turned around? A. Yes, sir.
Q. Was that just on the other side of Mr. Gregory's house was it not? A. Yes, sir.
Q. Which way did you turn, to the right or to the left? A. Turned to the left.
After the above testimony was given, the plaintiff was recalled, but did not deny the above
testimony; hence it stands unquestioned that the car was turned to the left only a few
minutes before the accident, which clearly conclusively disproves the theory that there
was something wrong with the steering gear prior to the accident.
55 Nev. 357, 361 (1934) Austin v. Dilday
the left only a few minutes before the accident, which clearly conclusively disproves the
theory that there was something wrong with the steering gear prior to the accident.
For the reasons given, the order and judgment must be reversed.
Counsel for appellant also contend that the judgment should be reversed for the reason that
it was entered subsequent to the death of Mrs. Proctor and prior to the substitution of the
administrator of her estate.
We do not deem it necessary to decide this question, but in view of the fact that our statute
applicable to the situation was taken from California, we invite attention to the following
cases: Judson v. Love, 35 Cal. 463, at page 469; McCreery v. Everding, 44 Cal. 284; 1 Cal.
Jur. p. 59.
It is ordered that the judgment and order appealed from be reversed and that the case be
dismissed, at cost of plaintiff.
On Petition for Rehearing
October 1, 1934. 36 P.(2d) 359.
1. Appeal and Error.
Respondent, having declined to argue motion to dismiss appeal, held to have waived
his right to insist upon it.
2. Negligence.
Doctrine of res ipsa loquitur held inapplicable where complaint is predicated upon
specific acts of negligence only.
3. Appeal and Error.
It is common practice to order dismissal of case when it appears that no case is made
out, nor can be made.
OPINION
Per Curiam:
Counsel for respondent has filed a petition for a rehearing upon the ground, among others,
that we did not dispose of respondent's motion to dismiss the appeal.
1. This case was set for oral argument on June 18, last, on which day counsel for
respective parties appeared in court.
55 Nev. 357, 362 (1934) Austin v. Dilday
appeared in court. Counsel for appellant made his opening argument on the merits,
whereupon counsel for respondent argued the case upon the merits. At the conclusion of his
argument, counsel for respondent stated, according to the notes of the court reporter and our
memory: There was a written notice to dismiss the appeal from the judgment. I won't argue
it. No further allusion was made to it by either counsel. Thereupon counsel for appellant
made his closing argument, and the case was ordered submitted.
In this situation, the court naturally assumed counsel for respondent had waived his motion
to dismiss the appeal. It has always been the practice to make and argue a motion to dismiss,
when one was insisted upon, prior to the argument on the merits, and the general
understanding by the court has been that if not done before argument on the merits, it is
waived, though the notice of motion be given in apt time. Respondent must be held to have
waived his right to insist upon his notice of motion to dismiss.
Respondent also seems to contend that we did not dispose of the finding of the trial court
to the effect that the steering gear of the defendant's car was defective and contributed to the
accident. We covered this finding to our entire satisfaction, and think it unnecessary to add
more to what was said on this point.
2. It is contended that under the rule stated in the care of Ireland v. Marsden, 108 Cal. App.
632, 291 P. 912, a rehearing should be granted. As to this contention, whatever else might be
said, it appears that there is no allegation in the complaint bringing the case within the
doctrine of res ipsa loquitur. The cause of action set forth in the complaint is predicated upon
specific acts of negligence only, and was tried upon that theory only. As said in Connor v.
Atchison, T. & S. F. Ry. Co., 189 Cal. 1, 207 P. 378, 22 A. L. R. 1462:
The general rule is that, where the plaintiff in his complaint gives the explanation of the
cause of the accident, that is to say, where the plaintiff, instead of relying upon a general
allegation of negligence, sets out specifically the negligent acts or omissions complained
of, the doctrine of res ipsa loquitur does not apply."
55 Nev. 357, 363 (1934) Austin v. Dilday
out specifically the negligent acts or omissions complained of, the doctrine of res ipsa
loquitur does not apply.
See, also, Marovich v. Central Cal. Traction Co., 191 Cal. 295, 216 Pac. 595; 19 Cal. Jur.
p. 713, sec. 127.
Such is the well-recognized general rule. 45 C. J. p. 1225. The point is not well taken.
3. It is said we should not have ordered the dismissal of the case; that in so doing the court
acted only upon the record before it, and has not undertaken to delve into any equities dehors
the record. It is a common practice to order a dismissal of a case when it appears that no case
is made out, nor can be made. From a consideration of the record, it appears no stronger case
can be made. Equities such as suggested cannot be considered now or at any other time.
Rehearing denied.
____________
55 Nev. 363, 363 (1934) State Ex Rel. Robinson v. Beemer
STATE Ex Rel. ROBINSON v. BEEMER
No. 3084
August 23, 1934. 35 P.(2d) 301.
1. Hospitals.
Statute creating county public hospital and providing for trustees, three of whom were to serve for two
years and two for four years, and at subsequent general election offices of trustees whose terms were to
expire should be filled by nomination and election in same manner as other county officers are elected,
held to require clerk to designate candidates for long and short term of office of trustees at primary and
general elections; word manner meaning mode of procedure or way, and not comprehending a term of
office (Comp. Laws 1929, sec. 2226).
Original proceeding in mandamus by the State of Nevada, on the relation of J. La Rue
Robinson, against Elwood H. Beemer, as County Clerk of Washoe County, Nevada.
Peremptory writ of mandamus issued.
William McKnight and George Gunzendorfer, for Petitioner:
When used with regard to holding elections, the word "manner" means the usual,
ordinary, or necessary details required for the holding of the election.
55 Nev. 363, 364 (1934) State Ex Rel. Robinson v. Beemer
word manner means the usual, ordinary, or necessary details required for the holding of the
election. 38 C. J. p. 960, n. 92; Coffin v. Thompson, 97 Mich. 188, 56 N. W. 567, 21 L. R. A.
662, 668; State v. Adams, 2 Stew. (Ala.) 231, 242.
By omitting all reference to the term of office, in the act under consideration, the
legislature clearly intended that the phrase should apply only to the manner of nomination and
election, and not to the term of office.
OPINION
By the Court, Ducker, J.:
This is an original proceeding in mandamus instituted to compel the county clerk of
Washoe County, Nevada, to designate the candidates for the office of trustee of Washoe
County Public Hospital on the ballots for both primary and general elections; two for long
term or four years, and one for short term or two years.
Relator shows in his petition that among other officers to be elected at the next general
election are three trustees of said hospital.
Prior to and on Saturday, August 4, 1934, which was the last day for filing declaration of
candidacy, four persons filed with said county clerk their declarations of candidacy for
long-term trustee of said hospital; three filing as democrats, and one filing as a republican.
Prior to and on said Saturday, four persons filed with said county clerk their declarations of
candidacy for short-term trustee of said hospital; two filing as democrats, and two as
republicans.
Thereafter the said county clerk caused to be published in a newspaper of general
circulation in said county a notice of the primary election for the year 1934, in which he
named the offices for which candidates are to be nominated, and therein named two
long-term trustees and on short-term trustee for Washoe County Public Hospital.
55 Nev. 363, 365 (1934) State Ex Rel. Robinson v. Beemer
Notwithstanding said declarations of candidacy and published notice, said clerk has
declared that the names of all of the eight persons who have filed their declarations of
candidacy will be by him placed on the primary ballots for the four-year term, and that those
nominated will be designated on the general election ballots.
Relator has demanded of the said county clerk that he designate the candidates for trustees
on the primary ballots as for the long term and short term in accordance with their
declarations of candidacy, which he has refused and will refuse to do.
The clerk filed an answer to the petition. Relator demands a peremptory writ.
A determination of the issue depends upon the construction to be given the latter part of
section 2 of the act of the legislature of 1929 (Stats. 1929, c. 169) pursuant to which the
Washoe County Public Hospital was established. The section reads: Should a majority of all
the votes cast upon the question in each county concerned be in favor of establishing such
county public hospital, the board or boards of county commissioners shall immediately
proceed to appoint five (5) trustees chosen from the citizens at large, with reference to their
fitness for such office, all residents of the county or counties concerned, not more than three
(3) to be residents of the city, town, or village in which said hospital is to be located, who
shall constitute a board of trustees for said public hospital. The said trustees shall hold their
offices until the next following general election when five (5) hospital trustees shall be
elected and hold their offices, three (3) for two (2) years and two (2) for four (4) years, and at
subsequent general elections the offices of the trustees whose terms of office are about to
expire shall be filled by the nomination and election of hospital trustees in the same manner
as other county officers are elected. Section 2226, N. C. L.
One general election at which trustees were elected as provided in said section has
intervened since the establishment of the hospital.
55 Nev. 363, 366 (1934) State Ex Rel. Robinson v. Beemer
We are of the opinion that the peremptory writ should issue as prayed for. It is reasonable
to assume from said section that it was intended to provide for hold-over trustees by means of
long and short terms of office. This is the customary way of providing for hold-over members
on boards, and there is nothing in the language of the section indicating that it was intended
to depart from this method. Respondent contends that the same end would be accomplished if
the offices of the trustees whose terms are about to expire were filled at general elections for
the terms of four years, and that such a purpose is evidenced by the words offices of the
trustees whose terms of office are about to expire shall be filled * * * in the same manner as
other county officers are elected. This would be an unusual way of providing hold-over
members for a board, and such purpose is not, in our opinion, warranted by the language last
quoted. The word manner, in its common acceptation, means mode of procedure; way. It
does not comprehend a term of office. So we conclude that, as employed in the section, it
means the mode by which a citizen may be nominated or elected for the office of hospital
trustee.
It is ordered that a peremptory writ of mandamus issue out of this court commanding the
respondent, Elwood H. Beemer, as county clerk of Washoe County, Nevada, to designate the
candidates for the office of trustee of Washoe County Public Hospital on the ballots for both
primary and general elections, two for long term or four years, and one for short term or two
years.
____________
55 Nev. 367, 367 (1934) Reno Plumbing & Heating Co. v. Bickel
RENO PLUMBING & HEATING CO. Et Al. v. BICKEL Et Al.
(Tallman Et Al., Interveners)
RED RIVER LUMBER CO. v. CAPURRO Et Al.
No. 3028
August 31, 1934. 35 P.(2d) 302.
1. Mechanics' Liens.
Filing by lessors of notice of nonliability for lessee's improvements cast burden of proof on lien claimants
to show that such notices were not posted in conformity with statute (Comp. Laws 1929, sec. 3743).
2. Mechanics' Liens.
Evidence held to show posting by lessors of notices of nonliability for improvements on leased premises
sufficient within statute to relieve lessors from liability for labor and materials furnished by lien claimants
(Comp. Laws 1929, sec. 3743).
3. Mechanics' Liens.
Ordering sale of entire ranch in mechanics' lien actions against lessors for improvements on leased
premises held error, where under evidence only main ranch building and curtilage were leased.
Appeal from Second Judicial District Court, Washoe County, Thomas F. Moran, Judge.
Consolidated actions by the Reno Plumbing & Heating Company and another against R.
W. Bickel and others, wherein W. G. Tallman and another, doing business under the firm
name and style of Reno Tent & Awning Company, and Red River Lumber Company, a
Corporation, intervene, and by Red River Lumber Company, a Corporation, against John
Capurro and others. From an adverse decree and from an order denying a new trial,
defendants appeal. Reversed. (Coleman, J., dissenting.)
W. M. Kearney, for Appellants, Ernest Capurro, B. Capurro, and Augustus Capurro:
It will be observed from an examination of defendant's exhibits 8 and 10, photographs of
the premises, which are shown to have been good representations of the premises, that the
notice on the small building north of the kitchen in the yard where the material was delivered
and where the workmen congregated was plainly visible and conspicuous.
55 Nev. 367, 368 (1934) Reno Plumbing & Heating Co. v. Bickel
plainly visible and conspicuous. And aside from the notice on the small building designated
in the recorded notice, there was a notice on the very tree under which the workmen parked
their cars.
The testimony of Mr. Fred DeLongchamps, a noted architect of Nevada and a disinterested
person; of Mr. Melillo, the hod carrier and plasterer; of Ernest Capurro and August Capurro,
is all positive and direct testimony of the existence of the fact of notices being posted and
existing. The testimony of all of the other witnesses is negative and cannot, therefore,
overcome the positive testimony given by the witnesses named. 10 R. C. L. 1010, par. 202;
10 R. C. L. 1011; 12 Ann. Cas. 1033; Slatter v. Halton, 19 La. 39; Dunpley v. Inman, Paulson
Co., 70 P. 529, Stit v. Huidekopers, 17 Wall 393; Railroad Co. v. Elliot, 38 Ohio St. 346;
Horn v. V. & R. Co., 54 Fed. 305.
It is difficult for one to escape the conclusion that the workmen who testified were not
interested in notices, because it will be observed from the testimony that Mr. Bickel paid
those particular witnesses each week.
The trial court erred in ordering the sale of the entire Mayberry ranch, as the proof and
evidence in the case show that the only land leased by defendant Bickel from defendants B.
Capurro and Sons was limited in area and designated in the lease, and constituted but a small
portion of the area commonly called the Mayberry Ranch.
Thatcher & Woodburn, John Donovan, Leroy F. Pike and John Robb Clarke, for
Respondents, Reno Plumbing & Heating Company, W. H. Curtin, and Red River Lumber
Company:
There is a direct conflict between the testimony of the plaintiff's witnesses and the
defendant's witnesses. The law governing such a situation in this state is so well settled that
citation of authority seems unnecessary.
The notice, if any were posted, was on an isolated shack about one hundred and fifty feet
from the main dwelling house.
55 Nev. 367, 369 (1934) Reno Plumbing & Heating Co. v. Bickel
dwelling house. No notice was posted on the main dwelling house, nor on any of the cabins
where the work was being done, and no work was done on the small shack nor any where
near it. Nor did the workmen congregate within a few feet of the shack, as appellants would
have this court understand.
A claim of lien is not rendered invalid by a description of the property to be charged with
the lien which includes more land than the law subjects to such lien. A lien will not fail if the
claimant described too large a tract, if the land properly subject to it is included therein,
especially where no innocent party is misled or injured. Cary H. Co. v. McCarty, 10 Colo.
App. 200, 50 P. 744; Western I. W. v. Montana P. & P. Co., 30 Mont. 550, 77 p. 413.
John W. Burrows and Seward J. Parks, for Intervening Respondents, W. G. Tallman and
Alice C. Tallman:
The testimony of Judge Seeds and W. C. Tallman clearly shows that the situation here is
parallel to that in the case of Didier v. Webster Mines Corporation, 49 Nev. 5, 234 P. 520,
where it was held that the notices were not posted in a conspicuous place within the meaning
of the statute.
It does not appear that there was any notice of nonliability posted on the house where the
two awnings involved in this suit were put, at the time the awnings were installed.
OPINION
By the Court, Sanders, C. J.:
These mechanic lien cases were consolidated and tried to the court without a jury. The
validity of each claim of lien was established by the court's findings and conclusions, upon
which each was adjudged to be a lien upon the land designated and described in the decree of
foreclosure and order of sale as The Mayberry Ranch situate about four miles west of Reno
in Washoe County, Nevada, on the old Verdi Road. The cases are here on appeal from said
decree of foreclosure and from an order denying a new trial.
55 Nev. 367, 370 (1934) Reno Plumbing & Heating Co. v. Bickel
are here on appeal from said decree of foreclosure and from an order denying a new trial.
In May, 1929, the appellants, as copartners doing business under the firm name and style
of B. Capurro & Sons, granted, demised, and leased unto Ralph Bickel for a term of two years
the property described in the indenture of lease as follows: That certain dwelling house
known as the Sparks Mayberry Dwelling House on the Sparks Mayberry Ranch; also the
small dwelling house on the same premises near the Mayberry Bridge Crossing, and the north
part of barn and all other small outbuildings, except milk house, lying between the Truckee
River and the Reno-Verdi Southside Highway and situate on the premises of lessors, together
with the orchard ground near dwelling, reserving, however, the main center or hay space and
the south half of the large barn situate on the said premises of lessors, together with the right
of egress and ingress for the use and occupation of the same. The lease provided that all
other portions and parts of said ranch property known as the Sparks Mayberry Ranch are
hereby expressly reserved from this lease.
The lessors knew that it was the intention of the lessee to use and operate the premises as a
dude ranch and as a public place of amusement. The dwelling house was altered and
modernized and two small cottages were constructed within the curtilage. The lessee failed in
his venture and did not pay for the materials and labor furnished and used in the
improvements on the premises. The claim of the Red River Lumber Company, a corporation,
was for lumber furnished and used in the alteration of the dwelling house and the construction
of said cottages. The claim of the Reno Plumbing & Heating Company, a corporation, was for
materials and labor furnished for plumbing, heating, and sewerage. The claim of W. H.
Curtin, coplaintiff of the Reno Plumbing & Heating Company, was for materials and labor
furnished in painting the completed improvements. The claim of the Reno Tent and Awning
Company as intervening plaintiff was for awnings placed on the windows of the dwelling
house.
55 Nev. 367, 371 (1934) Reno Plumbing & Heating Co. v. Bickel
placed on the windows of the dwelling house. The lessors, within three days after having
obtained knowledge of the intended plan of converting the leased premises into a place
suitable for the purposes stated, did, on May 20, 1929, post a notice and file a duplicate
thereof with the recorder of Washoe County of their nonliability for the intended
improvements. The notice reads as follows:
Notice: Notice is hereby given that the undersigned will not be responsible for the
payment of any labor performed upon or material or supplies furnished for or used upon these
premises known and described as follows:
That certain dwelling house known as the Sparks-Mayberry dwelling house on the
Sparks-Mayberry Ranch; also the small dwelling house on the same premises near the
Mayberry bridge crossing, and all other smaller outbuildings lying between the Truckee River
and the Reno-Verdi south side highway and situate on said premises, together with the large
barn and the north half of the corral situate adjacent to and adjoining the said large barn, all in
the S 1/2 of SE 1/4 of Sec. 18, T. 19 N., R. 19 E., whether the said materials be used for the
construction, alteration or repair or the intended construction, alteration or repair of buildings
or other structures or otherwise upon the said premises, including labor performed thereon.
On May 20, 1929, the lessors posted duplicates of the original notice on the front of a
small building situate about 125 or 130 feet from the rear portion of the main building or
dwelling house and posted a notice on the fence surrounding the building at or near the point
of ingress and egress to and from the back yard, and in addition posted the notice on a tree
situate in the back yard near the place where material was delivered and fashioned into shape
by workmen employed on the premises.
1, 2. The defense common to each claim of lien was the posting and filing of the duplicate
of the original in the recorder's office. This defense involves the application of the statutory
rule of evidence to be found in section 9 of our mechanics' lien statute of 1S75, as
amended in 1917, Stats.
55 Nev. 367, 372 (1934) Reno Plumbing & Heating Co. v. Bickel
application of the statutory rule of evidence to be found in section 9 of our mechanics' lien
statute of 1875, as amended in 1917, Stats. 1917, 435, N. C. L., sec. 3743. The section as
amended reads as follows: Every building or other improvement mentioned in section 1 of
this act, constructed upon any lands with the knowledge of the owner or the person having or
claiming any interest therein, shall be held to have been constructed at the instance of such
owner or person having or claiming any interest therein, and the interest owned or claimed
shall be subject to any lien filed in accordance with the provisions of this chapter, unless such
owner or person having or claiming an interest therein shall, within three days after he shall
have obtained knowledge of the construction, alteration or repair, or the intended
construction, alteration or repair, give notice that he will not be responsible for the same, by
posting a notice in writing to that effect in some conspicuous place upon said land, or upon
the building or other improvement situate thereon and also shall, within five days after such
posting, file a duplicate original of such posted notice with the recorder of the county where
said land or building is situated, together with an affidavit attached thereto showing such
posting of the original notice. Such filing shall be prima facie evidence of said posting. The
proof of the filing of the notice stands uncontradicted. When introduced and admitted in
evidence, such filing was, under the statute, prima facie evidence of the fact of posting of the
notices as required by the statute, and the burden of proof was cast upon the lien claimants to
show that the notices were not posted and in addition were not posted in conformity to the
requirements of the statute. Against the prima facie evidence of the posting of the notice and
copies of the notice, the lien claimants, through their officers and representatives, and several
of the workmen in and upon the buildings and other improvements, testified that they never
saw either of the notices, thus controverting the prima facie evidence that the notice was
posted in a conspicuous place.
55 Nev. 367, 373 (1934) Reno Plumbing & Heating Co. v. Bickel
place. On the other hand, one of the Capurros testified that he posted the notices, and another
of the Capurros testified that he saw the notices, and three disinterested witnesses testified
that they saw the notices while in place from some distance away, and read sufficient of the
contents of the notices to enable them to testify as to their meaning and purpose.
The testimony of the lien claimants, being negative in character, is not so satisfactory nor
convincing as the positive testimony of the Capurros, and their witnesses, who saw and
observed the notices while in place. In Marshall v. Cardinell, 46 Or. 410, 80 P. 652, 653, a
mechanics lien case, the writer of the opinion used this language: The testimony of a person
who asserts that he saw a thing is inherently stronger than that of another of equal veracity
who says that he did not see it unless both were intent upon observing for a specific purpose
and noting a condition. Here the Capurros posted the notices seen by the witnesses, who
took note of them and were able to testify to the fact, while the witnesses for the lien
claimants and the claimants themselves had an opportunity to see, but did not see, the notices.
It is true that the notices were not posted upon the buildings under alteration and construction,
but they were posted upon the land. There is nothing in the testimony of any of the witnesses
from which this court might infer anything but good faith on the part of the owners in giving
the notice and filing it for record. It seems hardly possible that the notices could have been
posted in a more conspicuous place than those where they were posted, the place of ingress
and egress to and from the premises, where they were seen and observed while in place. The
testimony on the part of the appellants is that the notices were posted in places where those
who furnished material and performed labor could see them while they were at work upon the
main building and the construction of the cottages. In the case of Gaston v. Avansino, 39
Nev. 128, 154 P. 85, the court had under consideration the question of whether the giving and
posting in writing on the premises in a conspicuous place was a conspicuous place within
the meaning of the statute.
55 Nev. 367, 374 (1934) Reno Plumbing & Heating Co. v. Bickel
on the premises in a conspicuous place was a conspicuous place within the meaning of the
statute. The substance of the decision on this issue was that the testimony of one claiming a
lien for work performed upon a building, that he worked thereon, that at the time he looked
for a notice signed by the owner that he would not be responsible for the repairs, and that
there was no such notice at any time while he was doing the work, is not negative testimony
such as may be disregarded in the face of positive testimony that the notice was posted. Not
so in the present case. The lien claimants were corporations and had an equal opportunity
with the witnesses for the owners of seeing the notices, but did not look for them. Neither of
them went to the record for the purpose of ascertaining whether a notice was posted as
required by law. It seems impossible to say that the posting was not sufficient to fulfill the
requirements of the statute and to relieve the owners of the responsibility for the materials
and labor furnished by the lien claimants to their lessee in the alteration and construction
work done upon the buildings upon the land.
3. I am further of the opinion that the learned trial court erred in ordering the sale of the
entire Mayberry ranch, when it appeared from the testimony, both oral and documentary, that
the ranch was expressly excluded and only the main ranch building and curtilage was leased.
Being of the opinion that the lien claimants have failed to sustain the burden of proof cast
upon them by the statute, and that the posting of the notices was sufficient to fulfill the
requirements of the statute as to relieve the owners of the responsibility of liability for the
construction of buildings and the alteration of the main ranch house and other improvements
on the land, the decree of foreclosure and order of sale should be reversed.
Ducker, J.: I concur.
Coleman, J.: I dissent.
____________
55 Nev. 375, 375 (1934) Hough v. Reserve Gold Mining Co.
HOUGH Et Ux. v. RESERVE GOLD MINING COMPANY
No. 3040
August 31, 1934. 35 P.(2d) 742.
1. Witnesses.
Statute providing that no party shall testify when other party to transaction is dead should be construed so
as not to exclude testimony unless clearly inhibited (Comp. Laws 1929, sec. 8966).
2. Witnesses.
Plaintiff's testimony that signature of deceased party to contract was genuine held not within statute
providing that no party shall testify when other party to transaction is dead (Comp. Laws 1929, sec. 8966).
3. Corporations.
Signatures of president and secretary and corporate seal proved, prima facie, due execution of contract by
corporation.
4. Corporations.
Corporation's contract, under seal and executed by its president and secretary, to buy certain property,
held not invalid because also bearing president's signature as an individual, where he was not a party, or
because seller was secretary and director.
5. Corporations.
Corporation's execution of contract implies full knowledge and sanction by majority of directors,
independently of officer and director with whom it was made.
6. Corporations.
Contact between corporation and officer thereof is not void, nor voidable except for unfairness or fraud, for
which equity will closely scrutinize it.
7. Witnesses.
Plaintiff's suing on contract with corporation were competent to testify to work done and to account kept
thereof, regardless of death of corporation's president (Comp. Laws 1929, sec. 8966).
8. Appeal and Error.
In action against corporation for work done, refusal to strike plaintiff's irresponsive statement that
corporation's dead president had paid for certain items held harmless (Comp. Laws 1929, sec. 8966).
9. Account Stated.
In action on account stated, evidence sustained finding that parties agreed upon an account that showed
balance of $33,933.04 due to plaintiffs.
10. Appeal and Error.
Court's finding on substantial conflict in evidence cannot be disturbed on appeal.
55 Nev. 375, 376 (1934) Hough v. Reserve Gold Mining Co.
11. Evidence.
Letters of corporation's president on his private stationery and not signed as president held admissible in
action against corporation, where they admitted corporate indebtedness referred to in corporate minutes
authorizing president and secretary to give creditor a note and mortgage therefor.
12. Witnesses.
Attorney's letter to corporation's secretary concerning matter in which he represented both corporation
and creditor held not inadmissible against corporation as privileged communication between attorney and
client, where attorney represented both parties, though he was paid by corporation.
13. Limitation of Actions.
Where third cause of action set forth in amendment was on account stated composed of amounts sued for
in first and second causes of action, respectively, amendment related back to commencement of action so
as to avoid bar of statute of limitations, though it was filed after running of statute of limitation