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54 Nev. 1, 1 (1931) Lovelock Lands v. Lovelock Land & Development Co.

LOVELOCK LANDS INCORPORATED v. LOVELOCK LAND &


DEVELOPMENT CO.
No. 2941
August 1, 1931. 2 P.(2d) 126.
On Motions to Dismiss and Strike
1. Appeal and Error.
Statement that bill of exceptions and record on appeal was filed in supreme court without right or
authority, and in violation of the statutes of Nevada in such cases made and provided, and in violation of the
rules of the above-entitled court, held too general to be taken as a ground of motion to dismiss appeal.
2. Appeal and Error.
Motion to strike bill of exceptions will not be granted on ground urged in argument but not stated in
motion.
3. Exceptions, Bill ofWords and Phrases.
In statute providing that objections to bills of exceptions shall be heard and determined within five
days, word shall is directory as to the specific time designated, and mandatory as to act required to be done
(N. C. L., sec. 9386).
4. Exceptions, Bill of.
Trial court did not lose jurisdiction to settle bill of exceptions because it was not settled within five
days after objections thereto were filed (N. C. L., sec. 9386).
5. Appeal and Error.
Where original bill of exceptions was served and afterwards amended by adding documents of which
respondent's counsel were authors, bill as so amended and settled would not be stricken because it was not
served.
6. Exceptions, Bill of.
Judge settling bill of exceptions is not required to make order for its service as settled (N. C. L., sec.
9386).
7. Appeal and Error.
Motion to strike bill of exceptions and record on appeal for failure to serve them before filing in
supreme court denied where there is but a technical deviation from rule and respondent was not prejudiced
thereby (Supreme Court Rule 13, subd. 3).
8. Appeal and Error.
Statement that bill of exceptions and record on appeal were filed without right or authority and in
violation of the statutes and supreme court rules held too general to be considered as ground of motion to
strike them.
9. Appeal and Error.
Judgment roll is not required to be served upon a respondent on the taking of an appeal.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
54 Nev. 1, 2 (1931) Lovelock Lands v. Lovelock Land & Development Co.
Action by Lovelock Lands Incorporated against Lovelock Land & Development Company.
From the judgment plaintiff appeals, and respondent moves to dismiss the appeal, to strike
the transcript of record on appeal, and to strike certain parts thereof, and a counter motion is
filed by appellant. Respondent's motions denied, thus also disposing of appellant's
motion.
Hawkins, Mayotte & Hawkins, for Respondent:
The appeal in this case having been perfected on or before February 6, 1931, and the
transcript of the record on appeal not having been filed until April 22, 1931, under the
statutes, the rules of the above-entitled court (particularly rules 2 and 3), and the decisions of
this court, the motion by the respondent, duly noticed and made to dismiss said appeal,
should be granted, and the appeal dismissed. American Sodium Company v. Shelley, 50 Nev.
416; Skaggs v. Bridgman, 39 Nev. 310; Collins v. Goodwin, 32 Nev. 342-345.
The appeal was from the judgment alone, sustaining defendant's motion for judgment on
pleadings, dismissing the action, terminating the option agreement, and awarding defendant
its costs. The error, if any, thus appearing upon the face of the judgment roll, is not required
to be incorporated in a bill of exceptions. Miller v. Walser, 42 Nev. 497, 505. It is, therefore,
submitted that there is and was no function for a bill of exceptions to perform, and no
necessity for a bill of exceptions. Southwest Cattle Loan Company v. Nevada Packing
Company, 53 Nev. 55; Vickers v. Vickers, 45 Nev. 274.
If it be contended that the bill of exceptions was or is necessary in order to transmit to the
appellate court the Notice of Motion for Judgment on Pleadings, served and filed December
16, 1930, which contention we deny, said bill of exceptions could not be amended at the time,
to wit, March 14 or March 28, 1931, after the time has expired within which such bill of
exceptions should have been settled so as to bring into it evidence not incorporated therein.
Caldwell v. Wedekind Mines Co.,
54 Nev. 1, 3 (1931) Lovelock Lands v. Lovelock Land & Development Co.
Co., 50 Nev. 366-370. See, also, Water Co. of Tonopah v. Tonopah Belmont Dev. Co., 49
Nev. 172; Shirk v. Palmer, 48 Nev. 32.
Cooke & Stoddard, for Appellant:
Respondent's general statement, as ground of motions, that bill of exceptions and record
on appeal were filed in this court without right or authority, in violation of the statutes of
Nevada, and in violation of the rules of the above-entitled court, without any specification
wherein the record was filed in violation of law, etc., is fatally defective. It is elementary law
that the purpose of a notice of motion is to acquaint the opposite party with the ground, so as
to give him an opportunity to answer it. Quinn v. Quinn, 53 Nev. 67-75, 292 P. 620, 621; Peri
v. Jeffers, 53 Nev. 49, 292 P. 1; Gray v. Coykendall, 53 Nev. 113, 293 P. 436, 437.
We contend that in any view the bill of exceptions was properly served and settled. Under
sec. 9386, N. C. L., when amendments, changes, etc., are made, the court may require the bill
to be engrossed. But here, clearly, the case did not call for any engrossment further than by
adding the documents demanded by respondent and consented to by appellant. Under said
sec. 9386 engrossment is necessary only when the court orders it. Here no such order was
ever made. But even if a bill is ordered engrossed, nowhere is it provided or contemplated
that a respondent shall be entitled to new service of the bill as engrossed.
We say there is no law requiring service of bills of exceptions and records on appeal, as
filed in this court, to be made upon the opposite party.
Under no circumstances, and under no proper construction of any statute or rule of court,
is an appellant ever required to serve or deliver a judgment roll, certified, to the opposing
party.
We contend that the clause in sec. 9386, N. C. L.: Such objection shall be heard and
determined by the court within five days thereafter is directory merely. The word shall
means may when used in an act granting authority to a court.
54 Nev. 1, 4 (1931) Lovelock Lands v. Lovelock Land & Development Co.
granting authority to a court. 35 Cyc. 1452; State v. Board, 27 Nev. 469, 472, 77 P. 984; State
v. Baker, 8 Nev. 141-145; State v. Salge, 1 Nev. 455-460.
OPINION
By the Court, Ducker, J.:
Motions to dismiss the appeal, to strike the transcript of the record on appeal, and to strike
certain parts thereof, were filed by respondent. A counter motion was filed by appellant, and
all were heard together. Our disposition of respondent's motions will necessarily dispose of
the matter.
The case has been tried once before in the lower court, appealed to this court, and the
judgment reversed. 52 Nev. 140, 283 P. 403.
Thereafter the trial court on December 18, 1930, rendered judgment on the pleadings, and
at that time made an order that entry of the judgment be suspended for a period of ten days
within which time appellant would be permitted to propose such amendments, or to apply to
the court for such action as it might be advised. Written notice thereof was served on
appellant on December 19, 1930. Respondent filed its cost bill on December 23, 1930. Notice
of motion to strike the same was served on December 24, 1930, and filed two days later. On
December 22, 1930, appellant filed a motion to vacate the judgment. On December 30, 1930,
respondent filed a motion for entry of judgment on the pleadings. This motion and appellant's
motion to strike cost bill and vacate judgment were all heard together by the court on the
last-mentioned date. Appellant's motions were both denied on that date and judgment entered
that the action be dismissed, and that the option agreement mentioned in the action be
terminated. Upon application of the respondent, the foregoing judgment was entered nunc pro
tunc, as of December 19, 1930. From this judgment appellant filed and served a notice of
appeal on January 30, 1931, and filed an undertaking on appeal and for stay of
proceeding on the following day.
54 Nev. 1, 5 (1931) Lovelock Lands v. Lovelock Land & Development Co.
of appeal on January 30, 1931, and filed an undertaking on appeal and for stay of proceeding
on the following day. Thereafter appellant filed and served a notice of dismissal of the appeal
on February 5, 1931. Later, and on the same day, appellant filed another notice of appeal from
said judgment and another undertaking on appeal and for stay of proceedings. The appeal was
thus finally perfected on February 5, 1931. The transcript on appeal was filed in this court on
April 22, 1931.
1. Respondent contends that the transcript on appeal was filed too late, and in support of
his motion to dismiss invokes rules 2 and 3 of the supreme court rules. This ground for
dismissal of the appeal was argued elaborately both in the written briefs and in the oral
argument by counsel for respondent, but it is not stated specifically in the motion to dismiss.
The reference to it in the motion is as follows: That said Bill of Exceptions and record on
appeal (Vol.1)' was filed in the above entitled court without right or authority, and in
violation of the statutes of Nevada in such cases made and provided, and in violation of the
rules of the above entitled court. This statement is altogether too general to be taken as a
ground of motion. See Perri v. Jeffers, 53 Nev. 49, 292 P. 1; Quinn v. Quinn, 53 Nev. 67-75,
292 P. 620; Gray et al. v. Coykendall, 53 Nev. 113, 293 P. 436, for rulings to that effect. In
the cases cited we held such general statements fatally defective, and are of the opinion that
the statement in the motion before us is so fatally defective. The courts of other states have
taken the same view. Jackson v. Barrett, 12 Idaho, 465, 86 P. 270-272; Loucks v.
Edmondson, 18 Cal. 203; Cupit v. Park City Bank, 11 Utah, 427, 40 P. 707. The motion to
dismiss the appeal must be denied on this ground. Other grounds for dismissing the appeal
are specified, but, as these are also stated as grounds of a motion to strike the bill of
exceptions and record on appeal, they will be discussed in that connections.
2. In support of the motion to strike the bill of exceptions, counsel for respondent argued
that the motion must be granted, because, as they contend, a bill of exceptions was
unnecessary on an appeal from a judgment.
54 Nev. 1, 6 (1931) Lovelock Lands v. Lovelock Land & Development Co.
exceptions was unnecessary on an appeal from a judgment. This ground was not stated in the
motion to strike, and therefore the motion must be denied for the reasons heretofore given in
denying the motion to dismiss the appeal.
3, 4. Respondent also moved to strike the bill of exceptions upon the ground that the trial
court lost jurisdiction to settle the same because it was not settled within five days after
respondent filed it objections thereto. It is contended that the trial court so lost the power to
settle the bill by reason of section 3 of act of 1915 concerning bills of exceptions, which reads
in part: Such objection shall be heard and determined by the court within five (5) days
thereafter, and upon such hearing the court shall designate in what respect said bill is
incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such
bill be corrected in accordance with said determination, and engrossed so as to contain the
true facts as herein required, and when so engrossed said bill shall be allowed and settled as
in this act provided, and when so settled shall become and be a part of the record of said
action. If the objections of the adverse party are disallowed, then such bill as originally filed
shall be immediately settled and allowed as by this act required. Section 9386, Nev. Comp.
Laws.
Respondent points out that it filed and served its notice of objection to allowance and
settlement of the bill of exceptions on February 6, 1931, and that no action whatever was
taken and no time requested or granted for an extension of time within which said proposed
bill of exceptions should be settled until March 14, 1931, at which time the respondent
objected to the authority or jurisdiction of the district court to settle or allow the same; that
further hearing of appellant's application for a settlement of bill of exceptions was continued
to March 28, 1931, at which time, in open court, respondent again objected to the right or
jurisdiction of said district court to settle any bill of exceptions in said action.
54 Nev. 1, 7 (1931) Lovelock Lands v. Lovelock Land & Development Co.
We think that the word shall in the statute was used by the legislature in both a directory
and mandatory sensedirectory as to the specific time designated, and mandatory as to the
act required to be done.
In the case of State ex rel. Gray v. District Court, 51 Nev. 412, 278 p. 363, where the trial
court refused to settle a bill of exceptions, mandamus was issued to compel such settlement.
In the more recent case of Ratliff v. Sadlier, 53 Nev. 292, 299 P. 674, 675, we held the
following provision of a statute to be directory merely: Upon a trial of a question of fact by
the court its decision must be given * * * within thirty days after the cause is submitted for
decision. The ruling in the latter case is decisive of the question presented here, as there is
no difference in principle.
5, 6. Respondent also moved to strike the bill of exceptions because the same was not
served upon it. The following indorsement is on the bill of exceptions appearing in the
record: Service of the within bill of exceptions and record on appeal admitted this 2nd day of
February, 1931. Hawkins, Mayotte & Hawkins, attorneys for Defendant. It is ture that after
the 2d day of February, 1931, and before the bill of exceptions was settled and allowed by the
district judge on April 13, 1931, it was amended by the addition of certain papers and the bill
as amended and settled was not served on respondent. The additions consist of: respondent's
notice of motion for judgment on the pleadings; and order shortening time for hearing of
same and acknowledgment of service of such notice by attorneys for appellant; copies of
affidavits of service of notice of decision, of service of decision and order, of service of
notice to have judgment dismissing the action and terminating option agreement, for costs,
and order shortening time for notice and hearing. It will be seen that respondent's counsel
were the authors of these documents added to the bill of exceptions, and therefore had perfect
knowledge of the same. Moreover, it appears from the certificate of settlement and allowance
by the judge that respondent demanded the incorporation of said affidavits of service of
notice of decision and order.
54 Nev. 1, 8 (1931) Lovelock Lands v. Lovelock Land & Development Co.
the judge that respondent demanded the incorporation of said affidavits of service of notice of
decision and order. Their incorporation was consented to by counsel for appellant. Under
such circumstances it is difficult to see how respondent was prejudiced by the failure to serve
the bill of exceptions as settled. The judge settling the bill of exceptions made no order for its
service as settled and was under no duty to do so. The statute does not require it.
7. A motion was made to strike the bill of exceptions and record on appeal (which,
together with the last notice of appeal and undertaking on appeal, constitute the transcript on
appeal in this case), for failure to serve it before filing in this court. This motion will be
denied for the reasons we have just given for not striking the bill of exceptions. It is true that,
by subdivision 3 of rule 13 of the rules of the supreme court, service of a copy of the
transcript of the record on appeal is required to be made upon the opposite party. But the most
we would do if this rule were not substantially observed would be to order compliance
therewith before applying any other remedy. But where, as in this case, there is but a technical
deviation from the rule, such as not serving respondent with copies of the papers heretofore
mentioned, of which respondent had full knowledge, no useful purpose would be served in
ordering such service.
8, 9. The last motion is also based upon the following statement, to wit: That said bill of
exceptions and record on appeal was filed in the above entitled court without right or
authority, and in violation of the statutes of Nevada in such cases made and provided, and in
violation of the rules of the above entitled court. The motion will be denied in this respect
because the statement is too general to be considered as a ground of motion. The last motion
is also based upon the ground that no judgment roll certified by any one authorized by the
statute or court rules to certify judgment roll was ever at any time served upon respondent or
the attorneys for respondent herein.
54 Nev. 1, 9 (1931) Lovelock Lands v. Lovelock Land & Development Co.
The judgment roll is not required to be served upon a respondent on the taking of an appeal.
The motion to strike a portion of the certified copies of the judgment roll is directed
against what is named in the record as a copy of the original first judgment roll, and against
all of the papers contained therein. The clerk certified to a copy of the judgment roll in the
case as originally tried in the lower court, and to a copy of the judgment roll as judgment was
rendered and entered on the pleadings. After the reversal of the judgment in this court,
respondent, who was appellant in the first instance, filed an amended and supplemental
answer to the second amended complaint as finally amended, to which latter pleading a reply
was filed, and, as heretofore stated, judgment was thereafter rendered and entered on the
pleadings. It will be seen that there may be papers in the first certified judgment roll that are
not essential to a proper consideration of the questions that may arise on this appeal, but as
counsel for respondent have not much insisted on this latter motion, either in their briefs or
oral argument, and as no useful purpose will be served thereby, we will not attempt to
determine in advance which papers, if any, are not essential, and strike them.
It is ordered that all motions made by respondent be, and they are hereby, denied on all the
grounds state.
On The Merits
February 5, 1932. 7 P.(2d) 593.
1. Pleading.
Upon motion for judgment on pleadings nothing dehors the complaint or any
defense there to set up in the answer can be taken into account.
2. Pleading.
In action for specific performance of land sale contract, judgment for defendant on
pleadings held improper.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett, Judge.
Action by Lovelock Lands Incorporated against Lovelock Land & Development Company.
Judgment for defendant, and plaintiff appeals. Reversed.
54 Nev. 1, 10 (1931) Lovelock Lands v. Lovelock Land & Development Co.
Cooke & Stoddard and Booth B. Goodman, for Appellant:
In sustaining and granting defendant's motion for judgment on the pleadings, the court
erred in taking and considering facts or alleged facts dehors the pleadings. Edwards v. Jones,
49 Nev. 342; Southwest Cattle Loan Co. v. Nevada Packing Co., 53 Nev. 55; Hibernia
Savings, etc. Society v. Thornton (Cal.), 49 P. 573; Way v. Shaver (Cal.), 84 P. 283; 21 Cal.
Jur. 240, sec. 166 and n. 7.
Hawkins, Mayotte & Hawkins, for Respondent:
Appellant does not seem to question that a motion for judgment on pleadings is a proper
procedure in a proper case. That such is the holding of the courts, we cite the following: 21
Cal. Jur. p. 234, sec. 163; Hudenthal v. Spokane & I. Ry. Co. (Wash.), 86 P. 955, 958;
Vickers v. Vickers, 45 Nev. 274, 288; Southwest Cattle Loan Co. v. Nevada Packing Co., 53
Nev. 55; 21 R. C. L. p. 594, sec. 142; 49 C. J. 668, sec. 945.
It having been demonstrated to the trial court that plaintiff below had not performed the
conditions precedent, as required in the option; and it appearing from the second amended
complaint as amended, and the reply, that plaintiff was not entitled to maintain its action for
specific performance; and it appearing from the amended and supplemental answer to the
second amended complaint as amended that plaintiff had violated the terms and conditions of
said option, among such violations being the mortgaging of the property and the failure to pay
taxes; and it appearing that Notice of Termination of Agreements as Corrected and
Amended had been duly served; and that plaintiff had failed and refused to comply with the
requirements of said option agreement within the time authorized therebythe action was
dismissed, the option terminated, and defendant awarded its costs.
54 Nev. 1, 11 (1931) Lovelock Lands v. Lovelock Land & Development Co.
OPINION
By the Court, Sanders, J.:
This was an action in specific performance. Upon a former appeal in the action (52 Nev.
140, 283 P. 403), the judgment in favor of the plaintiff on the merits was reversed, and the
cause was remanded for new trial upon two grounds: (1) That the trial court erred in
permitting testimony concerning transactions with persons since deceased who represented
the defendant corporation; (2) that a denial of a new trial without hearing or consideration of
the motion on its merits by the judge succeeding the judge who rendered judgment and
reassigned the case to him, was error.
Upon the filing of this court's remittitur in the court below, the defendant, with leave of
court, filed an amended and supplemental answer to the plaintiff's second amended
complaint, as finally amended, to which the plaintiff filed a reply, and the cause was set for
trial. On the day of the trial, before any evidence was offered, the defendant orally moved for
judgment on the pleadings. Upon objection, notice of motion and motion was reduced to
writing and served upon the plaintiff. The plaintiff was notified that the defendant would
move for judgment on the pleadings upon three grounds: (1) That the plaintiff's pleadings did
not state facts sufficient to constitute a cause of action; (2) that plaintiff's pleadings did not
state facts sufficient to entitle plaintiff to specific performance of the contract made the
subject of the complaint; (3) that plaintiff's pleadings demonstrate that the defendant is
entitled to judgment of dismissal of the action and for judgment terminating the contract
counted on in the pleadings.
The court granted the motion and entered judgment upon the pleadings. The judgment is
unusual in form, in that it contains a recital of each step taken in the proceedings on the
motion, from which it was adjudged, ordered, and decreed as follows:
That defendant's motion for entry of such judgment be, and the same is hereby,
sustained and granted; that the above entitled action be, and the same is hereby,
dismissed; that said option agreement, of date October 20, 1917, exhibit A to said 'Second
Amended Complaint, as Amended,' as altered and changed by the said agreement of date
July 1, 191S, exhibit C to said 'Second Amended Complaint, as Amended,' be and said
option agreement is hereby, terminated; that the defendant do have and recover of the
plaintiff its costs herein taxed, in the sum of $63.55.
54 Nev. 1, 12 (1931) Lovelock Lands v. Lovelock Land & Development Co.
be, and the same is hereby, sustained and granted; that the above entitled action be, and the
same is hereby, dismissed; that said option agreement, of date October 20, 1917, exhibit A to
said Second Amended Complaint, as Amended,' as altered and changed by the said
agreement of date July 1, 1918, exhibit C to said Second Amended Complaint, as Amended,'
be and said option agreement is hereby, terminated; that the defendant do have and recover of
the plaintiff its costs herein taxed, in the sum of $63.55.
That, upon application of defendant, and good cause appearing therefor, it is further
ordered: That the foregoing judgment be entered nunc pro tunc, as of December 18, 1930.
From this judgment the plaintiff has appealed.
1. We decline to follow the strategic arguments of learned and experienced counsel with
respect to the regularity and validity of the proceedings had in the court below upon the
motion for judgment on the pleadings. Upon the argument of this case, the Chief Justice
suggested to counsel that for the purposes of a motion for judgment on the pleadings this
court would consider only the pleadings. The settled rule is that upon a motion for judgment
on the pleadings nothing dehors the complaint nor any defense thereto set up in the answer
can be taken into account in disposing of such motion, but the motion is to be determined
upon the same principles as would be a demurrer to the complaint upon the same ground. All
the facts alleged are admitted for the purposes of the motion, and the court is to determine
whether these facts constitute a cause of action. If the necessary facts are contained in the
complaint, the objection that they are defectively set forth, or are in an ambiguous or
uncertain form, will be unavailing. There must be an entire absence of some fact or facts
essential to constituting a cause of action. Elmore v. Tingley, 78 Cal. App. 460, 248 P. 706;
Hibernia S. & L. Soc. v. Thornton, 117 Cal. 481, 49 P. 573. Since the movant's motion
admits the truth of all well-pleaded facts in the complaint, together with all fair inferences to
be drawn therefrom, and since, for the purposes of a motion of this character, the
pleadings must be liberally construed, this court, after searching the complaint as on
demurrer, is of opinion that the order and judgment under review must be reversed.
54 Nev. 1, 13 (1931) Lovelock Lands v. Lovelock Land & Development Co.
with all fair inferences to be drawn therefrom, and since, for the purposes of a motion of this
character, the pleadings must be liberally construed, this court, after searching the complaint
as on demurrer, is of opinion that the order and judgment under review must be reversed.
A summary of the material allegations of the complaint with its exhibits A, B, and C
makes a voluminous document, subject to the criticism that it is not a concise statement of the
facts, and is inartificially drawn with respect to the allegations of the performance of the
covenants and conditions of the contract made the subject of the complaint. The complaint is
divided into three causes of action, each predicated upon and arising out of a contract dated
on October 20, 1917, exhibit A, as changed and amended on July 1, 1918, exhibit C. The
complaint alleges that on October 20, 1917, the defendant made, executed, and delivered to
one C. M. Wooster a certain option contract to purchase certain lands, water rights, and
personal property situated in Pershing County, Nevada, a copy of which is attached to the
complaint and marked exhibit A. The complaint alleges that on June 21, 1922, Wooster, for a
valuable consideration, assigned and set over to the plaintiff exhibit A, and that plaintiff is
now, and since which date has been, the owner of said contract as assignee of Wooster, and is
the real party in interest in this action. Exhibit A shows that the defendant agreed to sell to
Wooster the property mentioned for the payment of the consideration fixed therein at
$202,003.25, $22,003.25 of which sum was paid by Wooster in cash, and the balance to be
paid upon specified dates, with interest. The complaint alleges that under the provisions
contained in said contract Wooster sold certain parts or parcels of the land described therein
to one J. B. Daniel. The complaint in this connection alleges that, under express oral
agreement made by Wooster with the defendant, Daniel gave to the defendant, for the mutual
benefit of plaintiff and defendant, a mortgage on the property sold him to secure the payment
of seven promissory purchase money notes for $9,180 each, with interest. The complaint
alleges that under the contract, exhibit A, the moneys collected on the Daniel notes were,
by the defendant, to be applied as payments on the defendant's indebtedness to the
Humboldt Lovelock Irrigation Light and Power Company, for 16,5S9 1J5 shares of class
"B" stock of said company.
54 Nev. 1, 14 (1931) Lovelock Lands v. Lovelock Land & Development Co.
that under the contract, exhibit A, the moneys collected on the Daniel notes were, by the
defendant, to be applied as payments on the defendant's indebtedness to the Humboldt
Lovelock Irrigation Light and Power Company, for 16,589 1/5 shares of class B stock of
said company. The complaint alleges said stock to be of special value which cannot be
obtained in the open market. The complaint alleges that it was verbally agreed and understood
that, after the defendant had collected three of the Daniel notes, all of the notes remaining due
and unpaid were to be credited upon the purchase price of the property described in exhibit A;
that the defendant credited all sums paid, and credited the face value of the Daniel notes
remaining unpaid on the purchase price of the property, as orally agreed, but that defendant
failed in making such credits to credit plaintiff with the sum of $6,609.60, interest collected
on the Daniel note of November 1, 1920; that otherwise said contract, exhibit A, as changed
and amended, exhibit C, was in all respects fully executed by both parties.
As a second cause of action, the complaint alleges, in substance, that at the time of the
execution and delivery of exhibit A, and as a consideration for the execution thereof, the
defendant orally agreed with C. M. Wooster that Wooster would use his best efforts to find
purchasers for the land and property described in exhibit A and to complete the payment of
the purchase price, and as compensation therefor, it was agreed that the defendant should pay
Wooster as compensation for services so rendered, immediately upon completion of the
payments of the full purchase price, the sum of $15,000, that Wooster had fully performed
said services, and that the same, as rendered, were of the reasonable value of $15,000. The
complaint alleges that, prior to suit, Wooster, for a valuable consideration, sold and assigned
the said debt and claim for services to plaintiff, and that the plaintiff is the owner thereof and
the real party in interest. The complaint, as finally amended, shows that on October 20, 1917,
the defendant, by its secretary, F. M. Lee, delivered to Wooster a written agreement in the
form of a letter directed to said Wooster, whereby the defendant agreed to pay Wooster
$15,000 as a commission on account of services rendered in reference to the sale of the
property described in exhibit A, said sum to be paid when said contract had been fully
completed and performed by Wooster, and not otherwise or at all.
54 Nev. 1, 15 (1931) Lovelock Lands v. Lovelock Land & Development Co.
a written agreement in the form of a letter directed to said Wooster, whereby the defendant
agreed to pay Wooster $15,000 as a commission on account of services rendered in reference
to the sale of the property described in exhibit A, said sum to be paid when said contract had
been fully completed and performed by Wooster, and not otherwise or at all. The complaint
alleges that, prior to suit, demand was made upon the defendant to credit the contract of
purchase and sale of the property with $6,609.60 (Daniel note), and with $15,000, evidenced
by the Lee letter, hereinabove referred to. In the amendment to the second amended complaint
it is alleged, in substance, that the plaintiff is, and at all times had been, willing and able to
perform any and all obligations arising out of said contracts, and hereby and herewith pays
into court the sum of $13,477.29, being a sum equal to the difference between the actual cash
payments received by defendant and the total amount of the balance for principle and interest
owing on April 2, 1923, plus interest at 6 per cent on $12,849.83; that said sum was paid into
court to abide the decree settling all the rights of the parties arising out of said contracts,
exhibits A and C. The prayer of the complaint is for a conveyance of the property from the
defendant to the plaintiff, and that all rights of the parties arising out of the contracts and
matters alleged in the complaint be determined, and that any sum or sums found to be due
plaintiff be declared a lien upon and satisfied out of the money paid into court, and plaintiff
be given judgment for any deficiency unsatisfied.
The learned trial judge, in passing upon the movant's motion for judgment on the
pleadings, took the position that the item of $15,000 alleged in the complaint as commissions
under the F. M. Lee letter, and the $6,609.60 item of interest on the Daniel note, should not
be allowed as credits on the purchase price of the property made the subject of the pleadings,
and therefore on the pleadings technically counsels' motion was good. Whether the items
claimed were allowable as credits on the purchase price of the property were material
issues tendered in the complaint.
54 Nev. 1, 16 (1931) Lovelock Lands v. Lovelock Land & Development Co.
the items claimed were allowable as credits on the purchase price of the property were
material issues tendered in the complaint. It is well settled that, where a material issue is
tendered by the pleadings, judgment on the pleadings is improper. Parks v. W. U. T. Co., 45
Nev. 411, 197 P. 580, 204 P. 884; 49 C. J. 670. In view of the allegations of the complaint
relative to the two claimed credits, for the purpose of the movant's motion judgment could not
be rendered on the pleadings. This court in one case has had occasion to hold that a motion
for judgment on the pleadings raises a question of law only, and should be sustained, when,
under the admitted facts of a pleading, the moving party would be entitled to a judgment on
the merits. Edward v. Jones, 49 Nev. 342, 246 P. 688. Clearly no such case is presented by
the bill or complaint under review as would entitle the defendant to judgment on the merits.
The trial court, in rendering final judgment, dismissing the action and terminating the
contracts made the subject of the pleadings, apparently entered judgment on the theory that its
separate and affirmative defense, pleaded by way of counterclaim, set forth matter which the
court concluded entitled the defendant to the judgment rendered. No judgment could be
rendered for defendant where his defense, as here, is put at issue. 49 C. J. 672. It is a
well-settled rule that, if material allegations are denied in the answer, a motion for judgment
on the pleadings should not be granted. Manchester M. A. State Bank v. Smith, 90 Cal. App.
506, 265 P. 981. The material issues of fact presented by the complaint made it erroneous to
grant the defendant's motion for judgment on the pleadings.
Contention is made that the verbal agreement made in connection with the contracts in
respect to the Daniel note transaction brings the case within our statute of frauds. This
contention is untenable.
2. The authorities hold that, when a court of equity has once obtained jurisdiction in a suit
for specific performance, it will, in accordance with the settled rules of equity jurisprudence,
do complete justice by deciding the entire case and determining the whole controversy, as
between the persons interested who have been made parties to the action.
54 Nev. 1, 17 (1931) Lovelock Lands v. Lovelock Land & Development Co.
entire case and determining the whole controversy, as between the persons interested who
have been made parties to the action. 23 Cal. Jur. sec. 65, p. 509. Hence, in such cases, courts
are frequently called upon to enter alternative decree under the doctrine of conditional
specific performance. In such cases decrees in equity are molded in such a way as to give full
protection as to the rights of the parties as set forth in the pleadings. Consequently, should it
be determined, upon the trial of the issues tendered by this complaint, that the plaintiff had
not kept and performed the conditions precedent in respect to payments of the purchase price,
a decree under the pleadings in favor of the plaintiff might be conditioned on his performance
of the covenants, of which performance on his part is due, or will be due on performance by
the defendant. 6 Page on the Law of Contracts, sec. 3368.
Without intimating any opinion on the merits of the issues tendered by the pleadings, we
conclude that the order sustaining the defendants motion for judgment thereon and the
judgment should be reversed, with costs, and that plaintiff should have and recover all costs
incurred by it at the session of the court in which the order for judgment on the pleadings was
entered, and that the remittitur of this court reversing the order and judgment should issue
forthwith.
It is so ordered.
Ducker, J. :
I concur in the order of reversal and that the remittitur issue forthwith.
Coleman, C.J.:
I concur in the order. This case was tried several years ago, and a judgment was rendered
in favor of the plaintiff, which was reversed because of errors of law. The case was remanded
and set for trial on the merits. On the day of trial, the defendant, for the first time, made a
motion for judgment on the pleadings, which was granted; but in granting the motion the
court was influenced entirely by matters dehors the pleadings.
54 Nev. 1, 18 (1931) Lovelock Lands v. Lovelock Land & Development Co.
was influenced entirely by matters dehors the pleadings. From the judgment thus rendered,
the plaintiff took an appeal. Upon the argument in this court, the defendant not only insists
upon the contention put forth in the lower court, but urges for the first time that the complaint
does not state a cause of action because of certain allegations relative to the Daniel notes.
I concur in the order of reversal, for the reason that the lower court in granting the motion
took into consideration matters dehors the pleadings, something it had no right to do on a
motion of the character mentioned.
As to the Daniel matter, the complaint alleges that, pursuant to an oral modification of the
original agreement, the defendant accepted certain notes for collection and agreed to credit
the amounts collected upon the indebtedness. This constituted an executed contract. It is now
too late to urge that there could be no oral modification of the original written contract.
I think the case should be remanded for trial upon the merits according to the principles of
equity governing such matters.
On Costs
June 17, 1932.
1. Costs.
All items of costs may be included in cost bill after petition for rehearing is denied.
2. Costs.
Respondent's failure to move to strike, prior to decision on merits, parts of record
contended unnecessary to determination of appeal precluded raising of point on appeal
from ruling of clerk on cost bill.
Appeal from ruling of clerk in taxation of costs. Ruling sustained.
OPINION
By the Court, Sanders, J.:
The appellant filed a cost bill in this case containing a number of items. Respondent filed
objections to several of the items, on the ground that they are excessive The clerk ruled upon
the objections and reduced some of the items, from which ruling the respondent has
appealed.
54 Nev. 1, 19 (1931) Lovelock Lands v. Lovelock Land & Development Co.
The clerk ruled upon the objections and reduced some of the items, from which ruling the
respondent has appealed.
1. The objection to the item of costs for typing in the matter of respondent's motion to
dismiss the appeal for the reason that no cost bill therefor was filed within five days from
notice of decision thereon is without merit. All items of costs may be included in cost bill
after petition for rehearing is denied. Siebert v. Smith, 49 Nev. 312, 246 P. 1.
2. We agree with the ruling of the clerk on the contention that certain parts of the record
were not necessary to the determination of the case, in holding that if such were the case,
respondent's failure to move to strike prior to a decision on the merits precludes the raising of
the point at this time and in this manner.
As to the calculations made by the clerk and the ruling based thereon, we are of the
opinion that they should be sustained.
It is so ordered.
____________
54 Nev. 20, 20 (1931) Elsman v. Elsman
ELSMAN v. ELSMAN
No. 2951
September 3, 1931. 2 P.(2d) 139.
On Motion to Dismiss Appeals
1. Judgment.
Judgment or decree is the final determination of rights of parties, whereas an order generally is
a direction of the court preliminary and incidental to such final determination (sec. 8909, N. C. L.).
2. Divorce.
Determination of application to modify amended divorce decree relative to custody of child held not a
special order made after final judgment (sec. 8909, N. C. L.).
3. Divorce.
Amendment of divorce decree relative to custody of child, having supplanted original decree in that
respect, was a final judgment, subject to further modification or amendment (sec. 8909, N. C. L.).
4. Appeal and Error.
Determination denying divorce defendant's motion for sole custody of child, but modifying amended
decree as to her right of visitation, being a final judgment or decree, defendant held entitled to move for new
trial and appeal from order denying same within sixty days from entry of order in minutes.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett and L. O.
Hawkins, Judges.
Divorce action by Ralph Elsman against Beatrice J. Elsman, where in defendant was
granted a divorce and plaintiff awarded custody of the parties' minor child, subject to certain
rights of visitation by defendant. From a refusal of defendant's motion to amend the decree, as
amended, so as to give defendant sole possession and custody of such child, and from an
order denying defendant's motion for new trial of such motion, defendant appeals. On motion
to dismiss the appeals. Motion denied.
Thatcher & Woodburn and Forman & Forman, for Respondent:
The order of December 3, 1930, and made and entered in the minutes of the court of that
date, denying appellant's motion for an order modifying the decree of divorce theretofore
made on January 4, 1927, was a special order made after judgment and under section SSS5,
N. C. L., and an appeal was required to be taken within sixty days after such order was
made and entered in the mninutes of the court.
54 Nev. 20, 21 (1931) Elsman v. Elsman
made after judgment and under section 8885, N. C. L., and an appeal was required to be
taken within sixty days after such order was made and entered in the mninutes of the court.
As the appeal was not taken within the time provided by statute this court has no jurisdiction
to entertain the appeal from the order of December 3, 1930, and the motion to dismiss must
be sustained as to the appeals from that order. Paroni v. Simonsen, 34 Nev. 26; Clark v.
Turner, 42 Nev. 450; Kingsberry v. Copren, 47 Nev. 466.
We know of no authority in the laws of the State of Nevada which authorizes or sanctions a
motion for new trial of an order based upon and made in pursuance of a notice of motion, as
was attempted in the case at bar. Nor do we know of any authority elsewhere for such a
proceeding. Bancroft's Code Practice and Remedies, vol. 7, sec. 5908, p. 7821; Rule XI of
District Court, subd. 4, vol. 4, N. C. L., p. 2477; secs. 8753, 8875, N. C. L.; Harper v.
Hildreth, 99 Cal. 265, 33 P. 1103; Doyle v Republic Life Ins. Co., 125 Cal. 9, 57 P. 667; Gray
v. Cotton, 174 Cal. 256, 162 p. 1019.
The motion for new trial of the appellant being an unauthorized proceeding under our
statutes, it becomes unnecessary for the court to determine whether the order of December 23,
1930, denying appellant's motion for a new trial, was made and entered in the minutes of the
court on that date or, as stated in appellant's notice of appeal, on or about December 31,
1930.
There being only one appealable order, viz, that of December 3, 1930, and the appeal from
this order not having been taken until February 26, 1931, a period of eighty-five days after the
order was made and entered in the minutes of the court, twenty-five days after the time
allowed by law in which to appeal therefrom, this court has no jurisdiction to entertain the
appeals.
Samuel Platt and Cooke & Stoddard, for Appellant:
The order made on December 3, 1930, was and is a judgment. The defendant's custody
motion was a "proceeding," and the order of December 3, 1930, was a final determination
of the rights of the parties in that "proceeding."
54 Nev. 20, 22 (1931) Elsman v. Elsman
proceeding, and the order of December 3, 1930, was a final determination of the rights of
the parties in that proceeding. Sec. 8794, N. C. L.; Perkins v. Sierra Nevada S. M. Co., 10
Nev. 411; 33 C. J. 1051, n. c.; 3 C. J. 442, sec. 258, n. 53.
Conceding, for the purposes of the argument, that defendant's proceeding was a mere
motion and that the court's decision thereon was a mere order, we contend that by common
consent, express as well as tacit, of the plaintiff as well as of the trial court, there was by
defendant's motion for new trial proceeding a renewal and rehearing on defendant's said
motion for custody, and hence it was the making and entry of the decision dated December
23, 1930, denying defendant's motion for a new trial, that, when entered, started defendant's
time to appeal to run, and not the making and entry of the decision dated December 3, 1930.
District Court Rule XI, subd. 4; 42 C. J. 516 and n. 22; Sec. 8875, N. C. L.; Vickers v.
Vickers, 45 Nev. 288; Edwards v. Jones, 49 Nev. 342.
Records written up by the clerk of the court, orders, proceedings, etc., do not constitute
minutes of the court nor can such proceeding be deemed entered in the minutes until such
minutes have been read, approved and signed by the judge. Rule IV of District Court. Hence,
whether the instant appeals be considered as having been taken from an order denying a new
trial or from a special order made after final judgment, it is the time of entry of such order in
the minutes of the court that starts the sixty days' time to appeal running. Sec. 8885, N. C. L.;
15 C. J. 976 and n. 22; Whitcomb v. State (Tex.), 190 S. W. 484; Wilder v. Bush (Ala.), 75
So. 143; Johnson v. Johnson (Tex.), 2 Heisk. 521; Cloughton v. Black, 24 Miss. 185; In Re
Pearsons' Estate (Cal.), 50 P. 929.
OPINION
By the Court, Coleman, C. J.:
Respondent has moved to dismiss the appeals in the above-entitled cause.
54 Nev. 20, 23 (1931) Elsman v. Elsman
In January, 1927, the lower court granted a divorce to Beatrice J. Elsman from Ralph
Elsman, and awarded to him the custody of their minor child, Ralph Elsman, Jr., subject to
certain rights of visitation by the mother. In May, 1928, the court modified the original decree
relative to the custody of the minor child. On November 4, 1929, Ralph Elsman filed in said
court and cause a motion to again amend the said decree relative to the custody of said child,
and thereafter the said Beatrice J. Elsman filed her objections to the modification as sought by
Ralph Elsman, and applied for a modification thereof so as to give her the sole possession and
custody or said child.
After numerous continuances, hearings, and a prohibition proceeding in this court (State
Ex Rel. Elsman v. District Court, 52 Nev. 379, 287 P. 957), the lower court on December 3,
1930, filed its written opinion and decision wherein it incorporated the following:
It is the order of this court that the petitions or motions of both plaintiff and defendant for
the modification of the decree of this Court entered herein January 4, 1927, relative to the
custody of Ralph Elsman, Jr., as modified May 2nd, 1928, be, and each of said motions or
petitions for modification is denied.
And it is ordered that the said order of modification of May 2nd, 1928, be and the same is
affirmed and continued in force as therein provided, save and except that instead of the
defendant, Beatrice Elsman, being entitled to one month's visitation of an hour a day on
notice by her to plaintiff of any one month in each year desired by her, it is the order of this
Court that said right of visitation be, and the same is fixed for the month of July of each year,
at which time defendant shall have the right to visit the minor child, Ralph Elsman, Jr., for
one hour each day at either of the homes of said minor's father in Washoe County, Nevada, at
the Franktown residence or the Reno residence.
Thereafter, and on December 10, 1930, counsel for the defendant served and filed a
motion for a new trial. Counsel for plaintiff also filed a motion for a new trial.
54 Nev. 20, 24 (1931) Elsman v. Elsman
Both motions came on for hearing on December 23, 1930, at which time counsel for plaintiff
withdrew his motion for a new trial, and thereafter, on December 23, 1930, argument was
heard upon defendant's motion. After argument the court entered an order denying defendant's
motion.
On the 23d of December, 1930, the court, on motion of counsel for plaintiff, ordered that
an order, nunc pro tunc, as of December 3, 1930, in terms identical to those incorporated in
the decision of December 3, 1930, be entered.
On February 26, 1931, the defendant served and filed her notice of appeal from a
judgment rendered in favor of the plaintiff and against the defendant in the above-entitled
action and court on December 3, 1930, and also from that certain order made by the
above-entitled court in the above-entitled cause on December 23, 1930, denying defendant's
motion and application for a new trial of said cause, said order being entered in the minutes
of the court on or about December 31, 1930.
Thereafter, on May 4, 1931, the defendant served and filed her notice of appeal from an
order Made December 3, 1930 in the above-entitled Court and cause in favor of plaintiff and
against the defendant, denying defendant's application for an award that defendant be granted
custody of Ralph Elsman, Jr., a minor child of plaintiff and defendant, the Minute record of
which said order denying defendant's said application, was not approved and signed by the
trial judge, to-wit: Hon. Geo. A. Bartlett, prior to March 10, 1931; and also, from that certain
order made by the above-entitled Court in the above-entitled cause on December 23, 1930
denying defendant's Motion and application for a new trial of said cause, said order being
written up by the Clerk in the Minute Book of said Court on or about December 31, 1930 and
which said record was not approved and signed by the said Judge Geo. A. Bartlett prior to
March 10, 1931.
Counsel for respondent on June 22, 1931, served and filed notice to dismiss the two
appeals taken by appellant, for lack of jurisdiction of this court to entertain the same, for
which the following reasons are assigned:
54 Nev. 20, 25 (1931) Elsman v. Elsman
the same, for which the following reasons are assigned:
First: The proceedings sought to be appealed from and called in appellant's first Notice of
Appeal, dated February 26, 1931, a judgment rendered in favor of plaintiff and against the
defendant in the above-entitled action on December 3, 1930,' is not and was not a Judgment,
but was and is an Order of the Court, denying defendant's Motion for an Order modifying,
changing, and amending certain parts of the Decree of divorce heretofore made and entered in
said action on the 4th day of January, 1927, and that no appeal was taken from said Order of
December 3, 1930, within sixty days from the time said Order was made and entered in the
Minutes of the Court;
Second: That the appeal from the Order of the Court in said cause on December 23, 1930,
denying defendant's Motion and Application for a new trial, was not taken within sixty days
from the time said Order was made and entered in the Minutes of the Court;
Third: That there is no authority under the laws of the State of Nevada, for the new trial
of a Motion, and that no appeal lies from an order denying such motion for new trial;
Forth: That the court has no jurisdiction to entertain defendant's attempted appeal under
her Notice of Appeal dated May 4, 1931. That said appeal was not taken within sixty days
from the time the Order of December 3, 1930 was made and entered in the Minutes of the
Court, denying defendant's application for an award that defendant be granted custody of
Ralph Elsman, Jr., a minor child of plaintiff and defendant.
That there is no authority under the laws of the State of Nevada, for the new trial of a
motion and that no appeal lies from an Order denying such motion for new trial.
That such attempted appeal from said Order denying defendant's motion for new trial was
not taken within sixty days after said Order denying said motion for a new trial was made and
entered in the Minutes of the Court.
54 Nev. 20, 26 (1931) Elsman v. Elsman
Counsel for respondent have stated the points involved on this motion as follows:
First: Whether the appeal is taken from a final judgment in an action or special
proceeding, or whether it is an appeal from a special order made after final judgment entered
in the minutes of the court.
Second: Whether or not an appeal lies from an order overruling a motion for new trial of
a motion.
On May 5, 1928, the court, on application of the plaintiff, ordered, adjudged and decreed
that the original decree be amended, modified and changed. It further reserved the right to
again alter the decree, judgment or order, or whatever it may be, whenever the best interest of
the child so demands.
The determination of the motion to dismiss turns upon whether or not the order, decree, or
judgment of December 3, 1930, was an order or a judgment. If it were a judgment, the motion
to dismiss must be denied.
Counsel for respondent contend that it is an order, and in support of their contention they
rely strongly upon section 420 of our civil practice act, section 8909, Nev. Comp. Laws 1929,
which reads: Every direction of a court or judge made or entered in writing, and not included
in a judgment, is denominated an order. An application for an order is a motion.
The section quoted is no aid in determining the point, for the reason that it excepts an
order included in a judgment.
Under the old practice, when actions at law and suits in equity were separate and distinct,
the final determination of action at law was called a judgment, while in suits in equity it was
designated a decree. Divorce suits were equitable in character, hence they were known as
decrees. Under the code of civil procedure the words action, suit, and judgment are
often used without any regard to their old meaning. Even in our divorce act we do not find the
words judgment or decree used, but do find the words order and ordered (see
sections 9462, 9463, 9464, 9465 and 9466, Nev. Comp. Laws 1929), which indicates to our
minds that the legislature was not so much interested in the word or words used to
indicate its intention as to the final determination of the matters involved, as it was to
direct what might or should be done.
54 Nev. 20, 27 (1931) Elsman v. Elsman
minds that the legislature was not so much interested in the word or words used to indicate its
intention as to the final determination of the matters involved, as it was to direct what might
or should be done.
1, 2. It is our impression that a judgment or decree, as the case may be, as distinguished
from an order, is the final determination of the rights of the parties, whereas an order
generally is a direction of the court preliminary and incidental to such final determination.
There may be, or course, certain orders after final judgment, such as an order denying a
motion for a new trial and a special order made after final judgment. The latter, however, is
one which relates to the final judgment, either by way of enforcing or staying its operation.
Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; Watson v. Prior, 49 Cal. App. 554, 193 P.
797.
The determination of December 3, 1930, did not pertain to enforcing or staying the
operation of a judgment or decree, hence we think it is not a special order made after final
judgment.
3. The original decree in this cause was a final determination. The amendment of May 3,
1928, was, when entered, of equal dignity to the decree of 1927, when it was entered, and
entirely supplanted the decree of 1927, as to the custody of the child. No other view can, in
reason, be maintained. This being true, we think no other sound conclusion can be reached
but that the determination of December 3, 1930, was a final judgment, subject, of course, to
further modification, altering, or amendment, as subsequent developments may justify.
In Gury v. Gury (Cal. App.), 300 P. 81, 83, which was a case involving the custody of a
child, the court says: The authorities are clear that a change which materially affects the
judgment and the rights of the parties against whom it is rendered and which involves the
exercise of judicial discretion amounts to a new judgmentciting authority.
We think this is such a case. There was a material change affecting the rights of the
parties, and the making of the change involved the exercise of judicial discretion.
54 Nev. 20, 28 (1931) Elsman v. Elsman
change affecting the rights of the parties, and the making of the change involved the exercise
of judicial discretion.
4. The determination of December 3, 1930, being a final judgment or decree, the
respondent had the right to move for a new trial and to appeal from the order denying the
same within sixty days from the day it was entered in the minutes of the court. It is the
practice of the clerk to jot down, at the time an order, judgment, or decree is entered, the
substance of the same, and thereafter to enter it in a formal manner in the minute book so
known and designated. It appears that the court did not enter in the minute book the order
denying the motion for a new trial in this matter until on or after December 28, 1930. The
appeal was taken February 26, 1931, or within sixty days from such entry, which was within
apt time. It follows that the motion must be denied.
It is so ordered.
On Petition for Rehearing
October 29, 1931. 3 P.(2d) 1071.
1. Appeal and Error.
Judgment is final which disposes of issues and leaves nothing for future
consideration of court, and when cause is retained for further action it is interlocutory.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett and L. O.
Hawkins, Judges.
On petition for rehearing of motion to dismiss appeals. Petition denied.
Samuel Platt and Cooke & Stoddard, for Appellant.
Thatcher & Woodburn and Forman & Forman, for Respondent.
OPINION
By the Court, Coleman, C. J.:
Respondent has presented his petition for a rehearing.
Counsel quote from our opinion the language in which we seek to distinguish a judgment
from an order, wherein we say that a judgment is a final determination of the rights of
the parties, whereas an order is a direction of the court preliminary and incidental to such
final determination, and so forth.
54 Nev. 20, 29 (1931) Elsman v. Elsman
we seek to distinguish a judgment from an order, wherein we say that a judgment is a final
determination of the rights of the parties, whereas an order is a direction of the court
preliminary and incidental to such final determination, and so forth.
Accepting our statement in which we sought to distinguish between a final judgment and
an order, counsel contends that it must follow that the action of the court on December 3,
1930, was an order, and not a final judgment from which an appeal may be taken. In support
of their contention it is said, quoting from Hunter v. Hunter, 111 Cal. 261, 43 P. 756, 31 L. R.
A. 411, 52 Am. St. Rep. 180, that the allowance of alimony is an incident to an action for a
divorce, and by analogy the question of the custody of children is an incident to a divorce,
hence it must follow that the ruling of December 3 must be an order and not a judgment.
In Lake v. Lake, 17 Nev. 230, 30 P. 878, 879, which was a suit for a divorce and alimony,
the court said: That appellant had the right to appeal from a specific part of the whole
judgmentthe portion against herwithout disturbing the other portions in her favor, we
have no doubt.
In Lake v. Bender, 18 Nev. 361, 4 P. 711, 7 P. 74, it was held that where a divorce was
first granted and subsequently the issues as to the property were determined, the court had
authority to entertain a motion for a new trial as to the property rights. No motion for a new
trial was made as to the divorce, but was made as to property rights. The motion was denied.
An appeal was taken, and though the court recognized that the question of property rights was
one incident to the divorce suit, it held that the right to move for a new trial and to appeal
existed. Thus we see that our own court long ago took a position that an appeal might be
taken upon that portion of a case which was incident to the main issue.
Counsel contend that the views expressed in our former opinion are contrary to our
holding in Hough v. Nevada Treasure M. Co., 53 Nev. 333, 300 P. 948. We do not think so.
54 Nev. 20, 30 (1931) Elsman v. Elsman
do not think so. In that case the order appealed from was one vacating a final judgment,
leaving the case standing to be tried upon the issues made by the pleadings, whereas in the
instant matter such was not the fact.
Nor do we find anything in the opinion of Nevada First National Bank v. Lamb, 51 Nev.
162, 271 P. 691, 692, contrary to our previous holding. It is true that in that case we said: It
is a well-known general rule that there can be but one final judgment in a case. We thank
counsel for calling our attention to the opinion mentioned. Their only mistake lies in the fact
that they did not read far enough, for we quoted therein from an earlier Nevada case, Perkins
v. Sierra Nevada Silver Min. Co., 10 Nev. 405, as follows: A judgment or decree is final that
disposes of the issues presented in the case, determines the cost, and leaves nothing for the
future consideration of the court. When no further action of the court is required in order to
determine the rights of the parties in the action, it is final; when the cause is retained for
further action it is interlocutory.
Thus it appears that we recognized the correct rule to be that a judgment is final which
disposes of the issues and leaves nothing for the future consideration of the court, and that
when the cause is retained for further action it is interlocutory.
We cannot see why the same rule would not apply to the question of the custody of the
children.
We must not overlook the fact that the practice is different in divorce suits involving the
question of alimony and custody of children, than in an action at law. In the later there is no
such thing as amending or modifying a judgment once rendered, except as the result of an
appeal, while in divorce suits authority may be retained to modify the decree, or order as our
statute calls it, as to alimony and custody of the children.
We do not wish to be understood as holding that a decree might not be modified as to the
custody of children even if the authority to do so were not reserved. On this point we express
no opinion.
54 Nev. 20, 31 (1931) Elsman v. Elsman
We fail to see the force of the contention relative to the entry of the order denying the
motion for a new trial. The entry of the order was a ministerial act of the clerk. In our former
opinion we said the court did not enter the order, whereas we should have said the clerk did
not enter it.
Petition denied.
On Merits
April 26, 1932. 10 P.(2d) 963.
1. Divorce.
Supreme court would not penalize husband for refusing divorced wife permission to
see child as required by order, where trial court did not take cognizance of his refusal to
comply with order and in view of whole record.
2. Divorce.
Letter to husband by third party suggesting that for a sum of money he thought he
could bring about a settlement of controversy as to child's custody held inadmissible
against divorced wife seeking modification of decree regarding custody, in absence of
evidence that she authorized such proposal.
3. Divorce.
Adjudication of lower court that both parties to divorce action were suitable persons
to have custody of child is conclusive as to conditions then existing, and should not be
altered unless there has been a change of conditions which make it necessary for welfare of
child that order be modified.
4. Divorce.
In determining question of custody of a child, sole consideration should be its
welfare (sec. 9462, N. C. L.).
5. Divorce.
Fact that husband's second wife was unfriendly to divorced wife held not to affect
child's welfare and warrant change of custody (sec. 9462, N. C. L.).
6. Divorce.
Error in admitting in evidence third party's letter to husband suggesting he thought
he could bring about a settlement of controversy over child's custody, for monetary
consideration, held not prejudicial to divorced wife.
Divorced wife was in no way shown to have authorized the letter or to have
known of its being sent. The only purpose of such evidence could be to show that
she was endeavoring to extort a large sum of money from child's father, but when
approached along this line she spurned the offer of money.
7. Divorce.
Even if divorced wife had sought to obtain money from child's father for settlement
of controversy over its custody, that fact would not necessarily affect the determination
of what was for the welfare of the child.
54 Nev. 20, 32 (1931) Elsman v. Elsman
that fact would not necessarily affect the determination of what was for the welfare of the
child.
8. Divorce.
Where divorced wife was nonresident, fact that husband having custody of child
took it to adjoining state, held not to justify change in custody.
9. Divorce.
In awarding custody of child of divorced parents, very large discretion is vested in
trial court, and its orders should not be lightly overturned.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett and L. O.
Hawkins, Judges.
Action by Ralph Elsman against Beatrice Elsman. From an order modifying prior order
and original divorce decree regarding custody of child, defendant appeals. Affirmed.
Cooke & Stoddard and Samuel Platt, for Appellant:
The court erred in overruling and denying defendant's motion to suspend and abate the
plaintiff's motion and proceeding for in that plaintiff was guilty of contempt of the court by
his willfully disobeying the order of the court which he was by his motion herein seeking
affirmative relief respecting, by a modification thereof in his favor. 32 C. J. 433, sec. 739, n.
63; 32 C. J. 511, sec. 891, n. 27; Soderberg v. Soderberg (Cal.), 219 P. 82; Knoob v. Knoob
(Cal.), 218 P. 568; Weeks v. Superior Court (Cal.), 203 P. 93; Funfar v. Superior Court
(Cal.), 290 P. 626, 627; State v. Ronald (Wash.), 180 P. 125; Casebolt v. Butler (Ky.), 194 S.
W. 306; Monterey Coal v. Superior Court (Cal.), 104 P. 585; McClung v. McClung, 40 Mich.
493; Baily v. Baily (Ia.), 28 N. W. 443; Skirven v. Skirven (Md.), 140 Atl. 205; Campbell v.
Campbell (Ky.), 4 S. W. (2d) 1112; Gant v. Gant (Tenn.), 53 A. D. 736; 6 R. C. L. 526, sec.
39; 13 C. J. 91, sec. 139; Hovey v. Elliott (N. Y.), 39 L. R. A. 449, affd. 42 L. Ed. 215; Early
v. Early (D. C.), 261 Fed. 1003-1004.
The court erred in overruling defendant's objection to plaintiff's exhibit 9, being a
purported letter from one D. Philip MacGuire to plaintiff, suggesting to plaintiff that he,
MacGuire, might be able to effect a compromise of the controversy between plaintiff and
defendant relative to the child if defendant will listen to reason and if plaintiff will put up
a sum of money in six figures, well up, etc.
54 Nev. 20, 33 (1931) Elsman v. Elsman
compromise of the controversy between plaintiff and defendant relative to the child if
defendant will listen to reason and if plaintiff will put up a sum of money in six figures, well
up, etc.there being no proper, sufficient or any foundation laid showing or tending to show
that defendant had any previous notice or knowledge whatever of said MacGuire sending
such or any similar letter to plaintiff; and there was no evidence directly or indirectly
connecting her with the transaction of said letter being sent by said MacGuire.
Admission in evidence of the MacGuire letter was highly prejudicial to appellant. 4 C. J.
910, 911, 912, sec. 288 and n. 83; Peterson v. Pittsburg Silver Peak G. M. Co., 37 Nev. 117;
Meek v. Daugherty (Okla.), 97 P. 557; Wells Fargo & Co. v. Mitchell (Tex.), 139 S. W. 926;
State, etc. Bank v. Roseberry (Okla.), 148 P. 1034; Muncey v. Pullman, etc. Co. (Pa.), 112
Atl. 130; Acree v. Shaw (Ala.), 80 So. 817; Ford v. Piowaty & Sons, 197 Ill. 417; Levy v. J.
L. Mott, etc. Co., 127 N. Y. S. 506; Metropolitan State Bank v. McNutt (Colo.), 215 P. 151;
Southern Surety Co. v. Nalle & Co. (Tex.), 242 S. W. 197; Saari v. Wells Fargo Co. (Wash.)
186 P. 898; St. Louis etc. Co. v. Freasier (Tex.), 237 S. W. 344; 2 R. C. L. 235, sec. 196; 2 R.
C. L. 253, sec. 206.
Thatcher & Woodburn and Forman & Forman, for Respondent:
The law requires a party urging such a motion as here presented to the lower court by the
defendant to make a sufficient showing of a change of circumstances as to warrant a
modification of the original decree and orders of the court. Crockett v. Crockett, 132 Iowa
388, 106 N. W. 944; Rasmussen v. Rasmussen, 231 P. 964; Kettelle v. Kettelle, 294 P. 453;
Wood v. Wood, 216 P. 937.
In determining whether the motions of the respective parties should be granted, or whether
both should be denied, the lower court had one guide only to follow. That guide was what
was to the best interests of the child. Atkins v. Atkins, 50 Nev. 333; Ex Parte Madson, 169 P.
54 Nev. 20, 34 (1931) Elsman v. Elsman
Madson, 169 P. 336; Wilkerson v. McGinn, 188 P. 472; Brock v. Brock, 212 P. 550.
There was presented to the lower court evidence which tended to establish that the best
interests of the child would be benefited by remaining with the plaintiff.
In arriving at its decision, under the facts, the trial court was clothed with a broad
discretion. Sec. 9462, N. C. L.; Atkins v. Atkins, supra.
The sole question before this court is whether the lower court abused its discretion.
Lefebvre v. Lefebvre, 192 P. 76; Black v. Black, 86 P. 505; Bancroft v. Bancroft, 173 P. 582.
Unless modified or set aside, a decree awarding the custody of a child is conclusive as to
all questions affecting the matter existing at the time it was rendered, and cannot be
collaterally attacked. 19 C. J. 349. See, also, 19 C. J. 352, 366; Crockett v. Crockett, 132 Ia.
388, 106 N. W. 944.
It is contended by respondent that the MacGuire letter was admissible, yet even if that
letter had been inadmissible and incompetent as evidence, no reversal of this case would be
warranted because of its admission, for the reason that no prejudice resulted therefrom to
defendant. In this state, where a case is tried without a jury, the admission of incompetent
evidence does not necessarily require a reversal. Rehling v. Brainard, 38 Nev. at p. 21;
Rawhide Baloon Fraction Mining Co. v. The Rawhide Coalition Mines Co., 33 Nev. 307.
The mere failure of a complainant to comply with an interlocutory order of the court without
any adjudication that he is in contempt does not preclude him from being heard in the case.
13 C. J. 91.
OPINION
By the Court, Coleman, C. J.:
This is a proceeding involving the custody of an infant child.
The parties were intermarried on October 22, 1923, and lived for some years at Great
Neck, on Long Island, New York.
54 Nev. 20, 35 (1931) Elsman v. Elsman
Island, New York. The father, to whom we will refer as plaintiff, according to often-repeated
and undenied statements, is a man of great wealth. He owned a home on Long Island which
cost a handsome sum. While living there the infant in question was born, on August 7, 1924.
Some differences arose between the parties, and the wife left the home and went to her
mother's. Their differences were composed, and a young lady entered the household as nurse
for the child. Thereafter the plaintiff sought to establish his home in Nevada. He purchased a
tract of land and erected thereon a magnificent house. After some persuasion, he succeeded in
inducing the wife to come to Nevada and to occupy the house he had constructed. Only a few
months elapsed when differences sprang up between the parties, the wife leaving the home
and taking with her to Reno the child in question, Ralph Elsman, Jr. A few weeks thereafter
the plaintiff brought suit for a divorce. The defendant filed an answer and cross-complaint.
Upon the trial, on January 4, 1927, in which the plaintiff did not appear, the wife was
awarded a divorce because of the cruel and inhuman treatment of the plaintiff. The court also
found that both parties were fit, proper, and suitable persons to have the sole custody, care,
and control of the minor child mentioned, but that it was for the best interest of the child that
the plaintiff be awarded the custody of said minor. This finding was based upon the testimony
and agreement of the defendant. It was further ordered that the defendant might have the
possession of the child in Washoe County, Nevada, for one month and for two weeks at
another time, annually.
In February, 1927, the plaintiff married Miss Florence Diehl, the nurse mentioned. On
March 31, 1928, plaintiff filed a notice of motion to change the decree as to the custody of the
child. The defendant at that time was in New York state, and she filed a counter motion.
Upon the hearing of these motions the court, in May, 1928, entered an order modifying the
original decree so that the defendant might only visit the child at the home of the plaintiff, at
Franktown, Nevada, and not elsewhere, unless otherwise mutually agreed, during one hour
of each day of one calendar month in each and every year; said month to be designated
by the defendant upon thirty days' notice to the plaintiff.
54 Nev. 20, 36 (1931) Elsman v. Elsman
elsewhere, unless otherwise mutually agreed, during one hour of each day of one calendar
month in each and every year; said month to be designated by the defendant upon thirty days'
notice to the plaintiff. Neither of the aforesaid orders were appealed from.
In the fall of 1929, the plaintiff sought to have the former order modified so as to deny to
the defendant the right of visitation. Thereafter the defendant filed a motion asking for a
modification of the order so as to give her exclusive custody of the child. The matter came on
for hearing on February 6, 1930, and continued intermittently for many weeks, having been
submitted on oral and documentary evidence, depositions, and affidavits.
On December 3, 1930, the court entered an order denying both the motion of the plaintiff
and that of the defendant. However, it modified the order of May 2, 1928, being the order
modifying the original decree, to the effect that the defendant be entitled to visit said child for
one hour each day during the month of July of each year, at the residence of the plaintiff at
Franktown, Nevada, or at his home in Reno, Nevada, under like conditions mentioned in the
former order.
The defendant has appealed.
The plaintiff, in support of his petition, set forth several grounds, all of which are
enumerated in his brief, but since nothing can be considered which happened prior to the
order of May, 1928, we will not state his contention as to those, except where they may be
said to be of such nature as to demand our consideration in connection with the alleged
circumstances arising subsequent to May, 1928.
Plaintiff alleges his marriage to Florence Diehl Elsman in 1927, and that by reason of the
absence of defendant and the care of the stepmother the child had come to regard the latter as
his mother; that since the 4th of January, 1927, defendant had not made inquiry of any one
personally as to his health or welfare, and had manifested but little interest in him, and that
the child had not retained any love or affection for the defendant; that the defendant no
longer knew or understood the requirements of the child so as to give him the necessary
care; that her sole interest in the minor child has been to utilize the love and affection of
the plaintiff for the child to extort large sums of money from him; that defendant has
harassed and annoyed the plaintiff and kept him in a nervous and unstrung condition; and
that these actions on the part of the defendant have reacted upon the child, through the
plaintiff.
54 Nev. 20, 37 (1931) Elsman v. Elsman
not retained any love or affection for the defendant; that the defendant no longer knew or
understood the requirements of the child so as to give him the necessary care; that her sole
interest in the minor child has been to utilize the love and affection of the plaintiff for the
child to extort large sums of money from him; that defendant has harassed and annoyed the
plaintiff and kept him in a nervous and unstrung condition; and that these actions on the part
of the defendant have reacted upon the child, through the plaintiff.
Defendant, in her petition to modify the order, alleges that the stipulation of January 3,
1927, which was the basis of the decree of January 4, 1927, awarding the custody of the child
to the plaintiff, was induced by false and fraudulent representations made by plaintiff to
defendant, and the legal advice which she received at the time; that the modification of the
decree of May, 1928, was entered through inadvertence and excusable neglect; that on
account of the tender age of the child it would be to his best interest to be placed in the
custody of the mother, for the reason that the plaintiff is of a nervous, excitable, and irritable
disposition, and of a violent and ungovernable temper; that the plaintiff and Florence Diehl
Elsman had conspired to deprive the defendant of the right to visit the child; that since May,
1928, the plaintiff and the child have moved from Nevada to the State of California; that
since the remarriage of plaintiff two minor children have been born as issue of such marriage;
that the defendant is on unfriendly terms with the present wife of plaintiff; that plaintiff has
an extreme hatred for the defendant and has communicated the same to the child, and has
concealed from said child the true parentage as to his mother, and has continued to wean
away the affection of the child for its natural mother; and that the plaintiff has willfully and
maliciously refused to comply with the order of the court in respect to the defendant's visits to
the child.
1. The first matter which we sill consider is the motion of the defendant to abate the
plaintiff's motion to modify, on the ground that he was in contempt of court, in that he had
refused the defendant permission to see the child, though she had given him the required
notice.
54 Nev. 20, 38 (1931) Elsman v. Elsman
to modify, on the ground that he was in contempt of court, in that he had refused the
defendant permission to see the child, though she had given him the required notice. While
the conduct of the plaintiff in this regard, as in some other things, particularly his repeated
and uncalled for insinuations while on the witness stand, does not comport with our ideals of
what one situated as he was should have been, yet in view of the fact that the trial court did
not see fit to take cognizance of his refusal to comply with the order, and in view of the
record as a whole, we are of the opinion that we should not inflict a penalty for a violation of
that court's order.
2. It is next contended that the court erred in admitting in evidence a letter written to the
plaintiff by one D. Philip MacGuire, in which he suggested to the plaintiff that he thought that
for a sum of money he could bring about a settlement of the controversy as to the custody of
the child. We think the court erred in admitting this letter in evidence, for, though it appears
that MacGuire is a relative of the defendant and had been one of her advisors, there is nothing
in the record to indicate that he had any authority from the defendant to make such proposal.
Indeed, in the letter he disclaimed any such authority; furthermore, the defendant had
repeatedly signified and we are convinced that money was not the motivating cause in her
contest over her right to have access to the child and to his custody at times. Whether the
ruling was prejudicial remains to be determined.
The next point goes to the proposition that the court unduly restricted the
cross-examination of the plaintiff. We have carefully examined the record in this connection
and are of the opinion that the court not only did not err, but that its ruling on the point was
clearly right. In fact, the matter sought to be gone into was one upon which both sides were
agreed. It was not in issue. The so-called cross-examination which counsel desired to make
was not cross-examination at all, as no testimony had been given on direct examination on
the point.
3. We enter upon the consideration of this matter upon its merits with a solemn
adjudication of the lower court to the effect that both parties are fit, proper, and suitable
persons to have custody of the child.
54 Nev. 20, 39 (1931) Elsman v. Elsman
upon its merits with a solemn adjudication of the lower court to the effect that both parties are
fit, proper, and suitable persons to have custody of the child. Such determination is
conclusive as to the conditions then existing, and should not be altered unless there has been
a change of conditions which make it necessary for the welfare of the child that the
last-mentioned order be modified. This rule of law is overwhelmingly established by
authority, and the considerations leading to such conclusion seem unanswerable in reason.
Milner v. Gatlin, 143 Ga. 816, 85 S. E. 1045, L. R. A. 1916b, 977; Dawson v. Dawson, 57 W.
Va. 520, 50 S. E. 613, 110 Am. St. Rep. 800; Weatherton v. Taylor, 124 Ark. 579, 187 S. W.
450; Jewett v. Jewett, 73 Mont. 591, 237 P. 702; Griffin v. Griffin, 95 Or. 78, 187 P. 598;
Crockett v. Crockett, 132 Iowa, 388, 106 N. W. 944; Bates v. Bates, 166 Ill. 448, 46 N. E.
1078; Bryan v. Lyon, 104 Ind. 227, 3 N. E. 880, 54 Am. Rep. 309; Raily v. Raily (Ky.), 66 S.
W. 414; Flory v. Ostrom, 92 Mich. 622, 52 N. W. 1038; Eckhard v. Eckhard, 29 Neb. 457, 45
N. W. 466; 19 C. J. 350; 9 R. C. L. p. 476; see note to Averbuch v. Averbuch, Ann. Cas.
1916b, 894.
4. In determining the question of the custody of a child, the sole consideration of the court
should be its welfare. Atkins v. Atkins, 50 Nev. 333, 259 P. 288; 9 R. C. L. p. 475; 19 C. J.
343. In fact, our statute settles this question. It provides: The court * * * shall make such
disposition of, and provision for, the children, as shall appear most expedient under all the
circumstances, and most for the present comfort and future well-being of such children.
(Section 9462, N. C. L.)
The section just mentioned also provides that the court upon good cause shown, may
change the custody of a child.
Do the developments subsequent to May 2, 1928, warrant a change of custody of the
child?
The record in this case is very voluminous and precludes a consideration of it at length;
nor do we deem it advisable to quote or comment upon it at length.
We cannot find in the record a scintilla of evidence justifying even a suspicion that the
defendant lost her love and affection for the child, or that she sought to extort money
from the plaintiff.
54 Nev. 20, 40 (1931) Elsman v. Elsman
justifying even a suspicion that the defendant lost her love and affection for the child, or that
she sought to extort money from the plaintiff. On the other hand, the record shows
conclusively that at no time did she undertake the latter. When an offer of money was made
to relinquish her claim, she spurned it.
We think the contention that the defendant's action in seeking to see the child, at the times
she gave notice of her intention to visit him, harassed and annoyed the plaintiff and kept him
in an unstrung nervous condition, which reacted upon the child, is without merit. She had a
legal right to give such notices, and, while they may have come at inopportune times for the
plaintiff, there is no evidence to justify the conclusion that there was any design on the part of
the defendant to harass or annoy him. The evidence of Dr. Emge, the plaintiff's own witness,
clearly shows his temperament, and the evidence of the three specialists called on behalf of
the defendant tends to sustain the contention of the defendant that the plaintiff is not of such
temperament as to best promote the welfare of the child; but since it does not appear that this
condition did not prevail prior to May, 1928, we think we are precluded from pursuing that
line of inquiry.
As to the contention that the child has not retained any love or affection for the defendant,
conceding it to be true, it may be accounted for because of its extreme youth and the
infrequency of its contact with her, for which she reasonably accounts, and the failure of the
plaintiff and Florence Diehl Elsman to instruct it as to its real maternal parentage.
If we were to concede that the defendant were misled in entering into the agreement of
January 3, 1927, which resulted in the decree of the following day, we fail to find anything in
the showing made justifying the modification of the order on that ground. Nor do we find any
showing of excusable neglect relative to the order of May 2, 1928. In fact, neither of these
contentions is seriously urged.
As to the suggestion that the tender age of the child is a ground for changing the custody
of the child, it may be said that he was, at the time of defendant's application to modify,
nearly four years older than when the original decree was entered, and, hence, whatever
force there might be to the contention, were the case up for consideration on appeal from
an original decree, is of no weight in view of the original decree and subsequent order.
54 Nev. 20, 41 (1931) Elsman v. Elsman
is a ground for changing the custody of the child, it may be said that he was, at the time of
defendant's application to modify, nearly four years older than when the original decree was
entered, and, hence, whatever force there might be to the contention, were the case up for
consideration on appeal from an original decree, is of no weight in view of the original decree
and subsequent order.
5. The fact that Florence Diehl Elsman is unfriendly to the defendant does not go to affect
the welfare of the child. She might be dominated by the most malignant hatred for her, and
yet may have centered her devotion upon and consecrated her life to the mental, physical, and
moral development of the child. It is claimed that she and plaintiff have sought to poison the
mind of the child against its real mother. As to this we must assume that the lower court
found to the contrary. The plaintiff testified that it had always been his attitude in the past and
that it would be in the future to raise the child to respect its mother.
If it develops at any time in the future that the plaintiff and his present wife are poisoning
the mind of the child against its mother, an application may be made to modify the order.
Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1; Bedolfe v. Bedolfe, 71 Wash. 60, 127 P. 594.
6, 7. Looking at this matter as we do, we can see no theory upon which it can be said that
the error in admitting in evidence the MacGuire letter could have prejudiced the lower court.
The defendant was in no way shown to have authorized it or to have known of its being sent.
The only purpose of such evidence could be to show that the defendant was endeavoring to
extort a large sum of money from the plaintiff. As we have pointed out, the defendant, when
approached along this line, spurned the offer of money. However, even if she had sought to
obtain money from the plaintiff, that fact would not necessarily affect the determination of
what was for the welfare of the child, which is the real question in this proceeding.
We think the rule applicable to this situation was expressed by this court in Rehling v.
Brainard, 3S Nev. 16
54 Nev. 20, 42 (1931) Elsman v. Elsman
expressed by this court in Rehling v. Brainard, 38 Nev. 16, 144 P. 167, 169, Ann. Cas. 1917c,
656, as follows: We think a rule sufficiently established and worthy of adherence is
applicable here, i. e., where incompetent evidence is admitted in a trial of a cause by a court
sitting without a jury, a reversal is only warranted when it is apparent from the record that the
competent evidence was insufficient to support the judgment, or when it is affirmatively
shown that the improper evidence affected the result. Miller v. Foster, 28 Okl. 731, 116 P.
438; Gernert v. Griffin, 28 Okl. 733, 116 P. 439.
The great mistake made in this case, if any has been made, was the entering of the original
decree. Yet we feel that no criticism can be justly leveled at the defendant in that connection.
8. In view of the fact that the defendant is a non-resident, we cannot say that the fact of the
taking of the child to California by the plaintiff justifies a change in the custody of the child.
But it has been held that the parent having custody of the child should not take it out of the
state having jurisdiction, and if in the future the plaintiff fails or neglects to have the child in
the state for visitation in compliance with the order of the court and notice from the
defendant, it might be a ground justifying serious consideration.
9. A very large discretion is vested in the trial court in matters of this kind, and its orders
should not be lightly overturned. 9 R. C. L. p. 475; Jewett v. Jewett, 73 Mont. 591, 237 P.
702.
In considering such matters, the welfare of the child being the sole consideration, it is
obvious, as said in Campbell v. Campbell, 96 N. J. Eq. 398, 130 A. 361, that a 7-year old
child ought not to be harassed by shifting her from one parent to the other for any
considerable length of time.
And in Bennett v. Bennett, 200 Iowa, 415, 416, 203 N. W. 26, 27, it was sagely said:
Experience has shown that allowing the child to live a part of the time in one household,
and a part of the time in another, is not only not to the best interest and welfare of the
child, but in many instances it is wholly destructive of discipline.
54 Nev. 20, 43 (1931) Elsman v. Elsman
the time in another, is not only not to the best interest and welfare of the child, but in many
instances it is wholly destructive of discipline. It also shows that the party who has the child
for the short time in some instances sows seed of discontent, inculcates a spirit of
dissatisfaction and rebellion against authority in the child, and devotes the whole time that the
child is with that person in trying to wean the child away from the other party in whose
custody it is placed by the decree, and [that the situation] is not for the best interest and
welfare of the child, which, as said, should be the fundamental basis on which an order is
such matters is founded.
We do not seek to penalize this appellee for her conduct which resulted in the granting of
a divorce to her husband. Neither do we lose sight of the affection which she possibly bears
for this child, but it does seem to us that the best interest and welfare of the child requires that
it be not taken away from the home and control of the appellant for two months out of each
year. On the other hand, we feel that the mother should have the option of visiting the child
under reasonable circumstances and conditions, and, if conditions have arisen since the
original decree which make the arrangement under that decree unsatisfactory, the lower court
would be warranted in making an order changing the place, times, or conditions under which
the mother might visit the child. * * *
If we were to lay aside the principles of law involved in this case and permit ourselves to
be dominated by sentimental considerations alone, we would not hesitate in changing the
order appealed from, but, viewing the record from a judicial standpoint, and animated as we
try to be by judicial considerations alone, we can reach no other conclusion but that the order
appealed from should be affirmed, and such is our order.
____________
54 Nev. 44, 44 (1931) Miller v. Miller
MILLER v. MILLER
No. 2934
October 19, 1931. 3 P.(2d) 1069.
On Merits
1. Judgment.
Parties can litigate to judgment same thing but once.
2. Judgment.
Whether prior judgment constitutes bar to subsequent suit does not depend upon difference in relief
sought, but upon question whether same matter put in issue in second suit between same parties was actually
in issue in first and adjudicated.
3. Judgment.
Varying form of action will not prevent principle of res judicata from operating.
4. Divorce.
Where spouse intentionally brings cohabitation to an end by misconduct which renders continuance of
marital relations so unbearable that other leaves family home, former, and not latter, is deserter.
5. Divorce.
One spouse is not justified in leaving other unless conduct of offending spouse is such as would in
itself constitute ground for divorce.
6. Divorce.
Denial of divorce for extreme and repeated cruelty held res judicata in suit for divorce on ground of
willful desertion.
Wife's bill in Illinois for divorce upon ground of extreme and repeated cruelty was
dismissed for want of evidence. Wife then sought divorce in Nevada for willful desertion.
Husband set up defense of res judicata. Facts pleaded in both cases were identical and same
evidence determined both cases.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Fannie May Miller against Isaac C. Miller. From a judgment in favor of
plaintiff, defendant appeals. Reversed.
Kendrick Johnson and John S. Sinai, for Appellant:
It is our theory that there is no merit to respondent's defense to the plea of res judicata. It is
undenied and unequivocally admitted by the respondent herself that she left appellant on
December 8, 1925. She gave as her reason in the Illinois case that it was because of the
cruelties practiced upon her by the appellant.
54 Nev. 44, 45 (1931) Miller v. Miller
her reason in the Illinois case that it was because of the cruelties practiced upon her by the
appellant. It makes no difference what the cause of action is called in Illinois. The important
and unanswerable argument against the respondent on this appeal is that she lost the Illinois
case and was held to be the culpable party. Certainly, if the verdict of the jury there was to the
effect that the appellant did not practice the cruelties alleged to have been practiced by him,
then the respondent had no right in the law to leave him on December 8, 1925, and to remain
away from him from that date to the present time. It is undenied that the appellant made many
overtures toward the resumption of marital relations, but that the respondent at all times
repulsed his advances toward a reconciliation. Inasmuch as the respondent pleads practically
the same cruelties in this case which she pleaded in her Illinois case, we say that it makes no
difference whether it is called extreme cruelty or extreme and repeated cruelty, since it is
apparent that the courts of both states have the same interpretation of the statutes referring to
what constitutes cruelty. Any acts of cruelty occurring previous to December 8, 1925, and
which were not pleaded by the respondent in her Illinois case certainly cannot be pleaded in
the Nevada case.
The husband must be guilty of conduct affording a basis for a divorce upon the ground of
extreme cruelty before a wife is justified in leaving him. Carter v. Carter, 62 Ill. 439, at 447;
Fritts v. Fritts, 138 Ill. 436; Walton v. Walton, 114 Ill. App. 116, at 118; Loftus v. Loftus, 134
Ill. App. 360, at 362.
Brown & Belford, for Respondent:
Extreme and repeated cruelty, as used in the Illinois statute, has a definite and particular
meaning. Teal v. Teal, 155 N. E. 28; Werres v. Werres, 102 Ill. App. 360; Kline v. Kline, 104
Ill. App. 274; Trenchard v. Trenchard, 92 N. E. 243; Whitlock v. Whitlock, 109 N. E. 6;
Harman v. Harman, 16 Ill. 85; Turbit v. Turbit, 21 Ill. 438; Embree v. Embree, 53 Ill. 186;
Fritts v. Fritts, 13S Ill. 436; Fizette v. Fizette, 146 Ill.
54 Nev. 44, 46 (1931) Miller v. Miller
v. Fritts, 138 Ill. 436; Fizette v. Fizette, 146 Ill. 328. It is thus apparent that more is required
in Illinois to establish cruelty in the defendant spouse than in most of the other jurisdictions,
including that of Nevada.
The law in Illinois is also to the effect that although a husband may not be guilty of
extreme and repeated cruelty, nevertheless his wife may be justified in leaving him. French v.
French, 134 N. E. at p. 34; Watts v. Watts (Mass.), 36 N. E. 479; Maddox v. Maddox, 59 N.
E. 599. It is thus apparent that although the husband in the instant case was not guilty of
extreme and repeated cruelty toward the wife, nevertheless she may have been justified in
leaving him.
We respectfully submit that an examination of the doctrine of res adjudicata will convince
the court that it is not applicable to this case. Cromwell v. County of Sac., 94 U. S. 351, 24 L.
Ed. 195; Russell v. Place, 94 U. S. 606, 24 L. Ed. 215; DeSollar v. Hanscome, 158 U. S. 216,
39 L. Ed. 956; In Re Letson (C. C. A.), 157 Fed. 78; Ornauer v. Penn Life Ins. Co. (Colo.),
123 P. 650; Lewis v. Ocean Company (N. Y.), 26 N. E. 301; Fahey v. Esterly Co., (N. D.), 55
N. W. 580; Sawyer v. Nelson (Ill.), 43 N. E. 728; Wahle v. Wahle, 71 Ill. 516; Lyons v.
Lyons, 231 Ill. App. 568; Umlauf v. Umlauf, 71 Ill. 58; Patrick v. Patrick (Wis.), 121 N. W.
130; Wulke v. Wulke, 149 Minn. 289; Caperton v. Schmidt, 26 Cal. 494; Potter v. Baker, 19
N. H. 166; Lillis v. Emigrant Ditch Co. (Cal.), 30 P. 1108; Sweet v. Sweet, 49 Nev. 254; Prall
v. Prall (Fla.), 50 So. 867.
The decree in the former suit can operate neither as a bar nor as an estoppel to the present
action. Silverman v. Silverman, 52 Nev. 152.
The Nevada courts have often held that extreme cruelty (and, impliedly, conduct justifying
desertion) under our statute may consist of much less than is required in Illinois. Reed v.
Reed, 4 Nev. 395; Kelly v. Kelly, 18 Nev. 49; Gardner v. Gardner, 23 Nev. 207; McAllister
v. McAllister, 37 Nev. 92; McLaughlin v. McLaughlin, 48 Nev. 155.
Who can say what the Illinois jury decided? Did it find that only one of the allegations of
physical violence pleaded was true and that there was no "repeated" cruelty?
54 Nev. 44, 47 (1931) Miller v. Miller
find that only one of the allegations of physical violence pleaded was true and that there was
no repeated cruelty? And if so, which allegation did it find true and which untrue? Did it
find that the acts were committed but that they did not produce bodily injury? The only fact
which may be gleaned from the Illinois record with any degree of certainty is that the husband
was not guilty of extreme and repeated cruelty, and with this fact we are not concerned.
OPINION
By the Court, Sanders, J.:
The parties to this action for divorce intermarried in the city of Chicago, county of Cook,
State of Illinois, in August, 1920. In December, 1925, the wife commenced a proceeding in
chancery in the superior court of said county for divorce upon the ground of extreme and
repeated cruelty. Upon issues made by the amended bill and answer the cause was tried to
the court with the assistance of a jury. The verdict of the jury was as follows: We, the jury,
find the defendant not guilty of extreme and repeated cruelty as charged in the bill of
complaint. The complainant moved to set aside the verdict and for a new trial. In November,
1926, her motions were overruled and denied. On the same day it was ordered, adjudged, and
decreed that the bill of complaint be dismissed for want of evidence. No appeal was taken.
Thereafter, in January, 1927, the complainant filed her bill in said superior court against her
husband, in which she prayed that the defendant be decreed to provide for her separate
maintenance for the same acts of cruelty and repeated cruelty pleaded in her bill of complaint
for an absolute divorce. While the case was at issue, upon plaintiff's own motion her action
for separate maintenance was dismissed without prejudice.
Thereafter the wife left her marital domicile in Illinois and came to Reno, Washoe County,
Nevada, arriving there on or about February 9, 1929.
54 Nev. 44, 48 (1931) Miller v. Miller
there on or about February 9, 1929. Having resided in Reno for the statutory period of three
months, on, to wit, June 22, 1929, she filed her complaint in the court below for divorce,
setting up in her complaint two causes of action, one for willful desertion and the other for
extreme cruelty. As and for her first cause of action for desertion, she pleaded the same acts
of cruelty and other misconduct of the defendant relied on in her bill of complaint for divorce
in said superior court in and for Cook County, Ill. In response to process, the defendant, a
resident of Illinois, appeared and answered the complaint. He denied specifically each and all
of the allegations of ill treatment and misconduct and set up exemplified copies of all of the
proceedings in the Illinois court as a defense and in bar of the plaintiff's right to maintain her
action for divorce in Nevada for willful desertion. The plaintiff made reply to the defendant's
answer and denied, in substance, that the judgment of the Illinois court was conclusive of the
issue of willful desertion present in this action and therefore was not res judicata.
Upon issues thus made and after a full hearing, the court, without the assistance of a jury,
found, in substance, that the plaintiff had been forced to leave the defendant because of his
cruelty and other misconduct; that the plaintiff was justified in leaving the defendant; that the
defendant had willfully abandoned and deserted the plaintiff without cause or provocation on
her part for more than one year immediately preceding the filing of her complaint; and that
the defendant's acts and conduct relied on in the second cause of action were such as to
constitute extreme cruelty. Judgment was rendered in favor of the plaintiff and against the
defendant, from which judgment and from an order denying his motion for new trial the
defendant appeals.
We shall, as far as possible, refer to the parties as the wife and the husband, respectively.
Upon appeal from the judgment we are in limine confronted with the question of whether
or not the judgment of dismissal of the plaintiff's suit in Illinois for want of evidence to
support the charges of cruelty and repeated cruelty is conclusive of the issue of willful
desertion alleged in the plaintiff's Nevada complaint.
54 Nev. 44, 49 (1931) Miller v. Miller
for want of evidence to support the charges of cruelty and repeated cruelty is conclusive of
the issue of willful desertion alleged in the plaintiff's Nevada complaint. A review of the
exemplified copies of the proceedings in the Illinois court shows that the sole and only acts of
the defendant assigned by the plaintiff in the Nevada court as a cause of action for the
defendant's willful desertion were those pleaded in her action for divorce in Illinois for
extreme and repeated cruelty, wherein the jury found that the charges were untrue, and the
suit was dismissed for want of evidence.
1-3. It is fundamental in judicial practice that parties can litigate to judgment the same
thing but once. For example, where, in an action by a wife for divorce on the ground of
cruelty, the court finds the alleged charge to be untrue, and gives judgment against the wife,
such judgment is res judicata, and bars her from pleading the same alleged misconduct in her
subsequent action for divorce on the ground of desertion. Civille v. Civille, 22 Cal. App. 707,
136 P. 503. Whether or not such prior judgment constitutes a bar to a subsequent suit does
not depend upon the difference in relief sought in the two actions, but upon the question
whether the same matter put in issue in the second suit between the same parties was actually
in issue in the first and adjudicated. 9 Cal. Jur. 752. In Silverman's Case, 52 Nev. 152, 283 P.
593, it will be observed that the concurring opinion became the law of the case. It was held
that a foreign divorce suit based on extreme cruelty and gross neglect of duty did not disclose
a different cause of action from a suit founded on willful desertion and did not preclude the
former decree from operating as res judicata. The court said that the true test of identity of
causes of action, as that term is used in connection with the plea of former adjudication, is
the identity of the facts essential to their maintenance, and when the same evidence supports
both, the two causes of action are identical as regards the plea of res judicata. One cannot, by
varying the form of an action, escape the operation of the principle that one and the same
cause of action shall not be twice adjudicated upon the merits between the same parties
or their privies.
54 Nev. 44, 50 (1931) Miller v. Miller
principle that one and the same cause of action shall not be twice adjudicated upon the merits
between the same parties or their privies. In Vickers v. Vickers, 45 Nev. 274, 199 P. 76, 202
P. 31, it was held that a question of fact, distinctly put in issue and determined by a court of
competent jurisdiction as a ground of recovery or defense, is conclusively settled by the final
judgment or decree therein, so that it cannot be further litigated in a subsequent suit between
the same parties or their privies, where a proper plea is interposed, whether the second suit be
for the same or for a different cause of action. The reasoning of the court was that it matters
not the character of the proceeding in which issues are adjudicated, but whether they have in
fact been adjudicated between the same parties or their privies. So, in this case, we are
confronted with the direct question of whether or not the plaintiff, by reason of her Illinois
proceeding, and the result thereof, is precluded from pleading the same alleged misconduct of
the defendant in her action for divorce in Nevada for willful desertion.
4, 5. It is well settled that where a spouse intentionally brings the cohabitation to an end by
misconduct which renders the continuance of the marital relations so unbearable that the
other leaves the family home, the former, and not the latter, is the deserter. 19 C. J. 61. Such
misconduct is sufficient to charge the offending spouse with desertion under our statute.
Sweet v. Sweet, 49 Nev. 254, 243 P. 817. In Illinois, as elsewhere, this doctrine, known as
constructive desertion in the law, is qualified by the general rule that one spouse is not
justified in leaving the other unless the conduct of the offending spouse is such as would in
itself constitute a ground for divorce. Frank v. Frank, 178 Ill. App. 557; Walton v. Walton,
114 Ill. App. 116; Carter v. Carter, 62 Ill. 439, 19 C. J. 80. That the plaintiff was not entitled
to a divorce for extreme and repeated cruelty under the Illinois statute is manifest, but it is
argued that the judgment of dismissal of plaintiff's suit in Illinois for want of evidence left
undecided the question of the defendant's constructive desertion of the plaintiff.
54 Nev. 44, 51 (1931) Miller v. Miller
undecided the question of the defendant's constructive desertion of the plaintiff.
Consequently, there is no identity of issues in the two cases and no resulting res judicata. We
are of the opinion that the verdict of the jury and the judgment of the Illinois court established
that the charges made in the plaintiff's bill of complaint therein were untrue. Undoubtedly the
causes of action are different, but the facts pleaded in both cases are identical, and we take it
that the same evidence necessarily determined both cases. Consequently, no good reason
appears for holding that the same matter put in issue in the present case as constituting
desertion was not actually in issue in the Illinois case and adjudicated.
In the argument at bar there is a ground taken that in Illinois the denial of a divorce for
extreme and repeated cruelty is not res judicata in a suit for divorce on the ground of
desertion. The cases relied upon do not sustain the proposition based on them. In the cases
cited it was held that a decree in a suit for separate maintenance is not res judicata in a suit for
divorce on the ground of desertion, and vice versa.
It is also argued that the verdict of the jury in the Illinois case was general and that with the
judgment of dismissal of the suit for want of evidence this court cannot say that the verdict
and judgment necessarily established that the defendant was not guilty of willful desertion.
Undoubtedly the verdict of the jury and the judgment in the Illinois case conclusively settled
that the facts pleaded were not true, but notwithstanding the plaintiff comes to Nevada and
asserts a right to divorce based on the same facts through a different remedy called
constructive desertion.
In the case of Hitchins v. Hitchins, 41 Ill. App. 82, the court said: The too common
practice of parties whose marital life has been spent in another State, resorting to the courts of
this for relief, consequent upon acts all of which happened outside of our boundaries, is not to
be encouraged, and we are not inclined to interfere with the decree of the court dismissing
the bill in this cause."
54 Nev. 44, 52 (1931) Miller v. Miller
to interfere with the decree of the court dismissing the bill in this cause.
This court has clearly indicated in several recent decisions its disapproval of the practice of
parties resorting to our courts for a divorce in cases where they have been denied relief upon
the same state of facts in the courts of their marital domicile. The good faith of plaintiff's
action is challenged by the defendant's plea or defense of res judicata.
6. We are of the opinion that the decree or judgment of the Illinois court dismissing the
plaintiff's bill of complaint for want of evidence was conclusive of the question of the
defendant's willful desertion.
The judgment must therefore be reversed, and it is so ordered.
On Petition For Rehearing
December 31, 1931.
Per Curiam:
Rehearing granted.
On Rehearing
June 17, 1932.
1. Judgment.
When same specific fact or facts adjudicated in former suit are again put in issue in
subsequent suit between same parties, determination in former suit if properly presented
and relied upon, will be conclusive upon parties in later suit, without regard to whether the
causes of action are the same in both suits.
2. Judgment.
Party could not be permitted to relitigate in this jurisdiction same facts adjudicated
in prior suit in another jurisdiction, by seeking different remedy based thereon.
3. Divorce.
If husband, defendant in divorce action, maltreated child of parties solely for purpose
of giving mother pain, resulting in impairment of her health, he was guilty of such act
justifying decree in favor of plaintiff.
4. Divorce.
Testimony that acts of defendant in divorce action made plaintiff nervous held not
sufficient to support charge of cruelty; evidence must show that acts produced such a
nervous condition as to result in impairment of plaintiff's health.
54 Nev. 44, 53 (1931) Miller v. Miller
OPINION
By the Court, Sanders, J.:
In an opinion filed in this cause on October 19, 1931, a decree of divorce in favor of
respondent, plaintiff in the court below, was reversed as to her cause of action for willful
desertion, but no disposition was made of plaintiff's cause of action for extreme cruelty,
except by inference. Miller v. Miller, 54 Nev. 44, 3 P.(2d) 1069. Afterwards a rehearing was
ordered by the court, and the rehearing has been had.
1, 2. Upon this further consideration of the case we adhere to the view that the issue of
willful desertion present in this action is res judicata by reason of the Illinois judgment
pleaded as an affirmative defense. In Illinois, as in Nevada, it is held that when the same
specific acts have been adjudged in a former suit and the same fact or facts are again put in
issue in a subsequent suit between the same parties, its determination in the former suit, if
properly presented and relied upon, will be conclusive upon the parties in the later suit,
without regard to whether the causes of action are the same in both suits. Hoffman v.
Hoffman, 246 Ill. App. 60; Silverman v. Silverman, 52 Nev. 152, 283 P. 593. Applying this
rule to the instant case, plaintiff should not be permitted to relitigate in this jurisdiction by
seeking a different remedy based upon the same facts pleaded and relied upon in her Illinois
suit for extreme and repeated cruelty.
3. The complaint alleges, in substance, that the defendant went to the home of the parents
of the plaintiff, where she and her child were then residing, and used to her violent, abusive
and threatening language and violently seized their child and attempted to carry it away by
force, nearly causing serious physical injury and put plaintiff in great bodily fear for herself
and child. Plaintiff further alleged that in December, 1927, and on numerous occasions
defendant willfully and maliciously harassed and annoyed plaintiff and put her in fear of
serious physical injury by calling her to the telephone and using violent, abusive and
threatening language, often making threats of bodily injury and sometimes even
threatening her life and that such conduct of the defendant caused plaintiff to suffer
extreme mental anguish, put her in fear of receiving serious bodily injury at the hands of
defendant and threatened to and did seriously impair plaintiff's health and rendered it
unsafe and improper for plaintiff ever to live and cohabit with defendant.
54 Nev. 44, 54 (1931) Miller v. Miller
plaintiff and put her in fear of serious physical injury by calling her to the telephone and using
violent, abusive and threatening language, often making threats of bodily injury and
sometimes even threatening her life and that such conduct of the defendant caused plaintiff to
suffer extreme mental anguish, put her in fear of receiving serious bodily injury at the hands
of defendant and threatened to and did seriously impair plaintiff's health and rendered it
unsafe and improper for plaintiff ever to live and cohabit with defendant. It will be observed
that the gravamen of plaintiff's cause of action for extreme cruelty is based on great bodily
fear for plaintiff and their child resulting in the impairment of plaintiff's health. The charge of
cruel conduct to the child may be dismissed with the statement that if defendant maltreated
the child solely for the purpose of giving the mother pain, resulting in the impairment of her
health, he was guilty of such an act as justifies a decree in favor of the plaintiff. 19 C. J., sec.
90, pp. 50, 51.
4. The only testimony tending in the least to support the charge of cruelty is that the acts of
the defendant made her nervous. This is not sufficient. If the evidence showed that the acts of
the defendant produced such a nervous condition as to result in the impairment of her health,
we would affirm the judgment. There being no such showing, the judgment must be reversed,
and it is so ordered.
____________
54 Nev. 55, 55 (1931) Meyer Et Al. v. Flood Et Al.
MEYER Et Al. v. FLOOD Et Al.
No. 2927
November 2, 1931. 4 P.(2d) 305.
On Motion to Dismiss Appeal
1. Appeal and Error.
Decision duly pronounced, which finally determines and disposes of action or proceeding, is
appealable (N. C. L. sec. 8794).
2. Appeal and Error.
In action on conflicting claims under will, decision which finally disposed of proceedings, in so far as
respected conflicting claimants under will, held appealable (N. C. L. sec. 8794).
Appeal from Fourth Judicial District Court, Elko County; E. P. Carville, Judge.
Action between X. Rodwell Meyer against Mary D. Flood and others. From the judgment,
defendants appeal. On motion to dismiss appeal. Motion denied.
John Wm. Ham and Thomas, Beedy, Presley & Paramore, for Appellants.
Badt & Dysart, Tobin & Tobin, Geo. A. Clough and Perry Evans, for Respondents.
By the Court, Sanders, J.:
On behalf of the respondents, it is claimed on their motion to dismiss this appeal that at the
time it was taken no final judgment had been rendered, and that therefore the appeal was
premature, and should be dismissed.
1. A judgment is the final determination of the rights of the parties in the action or
proceeding. Section 8794, N. C. L. 1929. A decision duly pronounced which finally
determines and disposes of the action or proceeding is appealable. Nev. First Nat. Bank of
Tonopah v. Lamb, 51 Nev. 162, 271 P. 691; Perkins v. Sierra Nev. S. M. Co., 10 Nev. 405;
Calif. State Telegraph Co. v. Patterson, 1 Nev. 150. In Perkins v. Sierra Nev. S. M. Co.,
supra, it was held that a judgment is none the less final because some future orders of the
court may become necessary to carry it into effect.
54 Nev. 55, 56 (1931) Meyer Et Al. v. Flood Et Al.
because some future orders of the court may become necessary to carry it into effect.
2. The record discloses that the decision in the instant case was duly pronounced and
finally disposed of the proceeding, in so far as it respects appellants and respondents as
conflicting claimants under the will of James C. Dunphy, deceased.
The motion to dismiss the appeal is denied.
____________
54 Nev. 56, 56 (1931) State v. Robison
STATE v. ROBISON
No. 2928
December 28, 1931. 6 P.(2d) 433.
1. Homicide.
Evidence held sufficient to support verdict of murder of second degree (sec. 10081, N. C. L.).
2. Homicide.
Where evidence supported conviction of second degree murder, appellate court could not reverse
judgment for insufficiency of evidence nor modify it to one of manslaughter (Stats. 1931, c. 41, sec. 1, par.
6).
Stats. 1931, c. 41, sec. 1, par. 6 does not purport to clothe the court with power to
modify a judgment in a criminal case without giving or ordering a new trial, as a matter of
leniency, but only when the judgment is not supported by the evidence which does show the
defendant guilty of a lesser degree of the crime for which he was convicted, or of a lesser
crime included therein.
3. Criminal Law.
Jurors held not bound by testimony of defendant in murder case, although he was the only witness to
the killing.
4. Criminal Law.
District attorney's argument that jurors must decide whether a man can be shot down in cold blood
and the killer go free in the state of Nevada held not misconduct.
The district attorney was justified in assuming from the evidence that the defendant
was guilty of the crime charged in the information and to characterize it as such. In cold
blood is a term commonly used to designate a homicide in which it is believed there are no
circumstances in mitigation or to justify or excuse the killing.
5. Criminal Law.
In argument a district attorney is entitled to state to the jury any fact or facts which the evidence tends
to establish, or any legitimate inference which may be drawn from such evidence.
54 Nev. 56, 57 (1931) State v. Robison
or any legitimate inference which may be drawn from such evidence.
6. Criminal Law.
Instruction that jury should receive and consider certain testimony in homicide case with care and
caution held properly refused, the weight of the testimony being for the jury to determine without the aid of
the court.
Evidence referred to was that of witnesses attempting to repeat and detail certain
conversations had with wife of defendant.
7. Criminal Law.
Instruction containing a summarization of defendant's testimony and charging the jury to acquit if they
found it to be true held properly refused.
Proposed instruction marshaled a number of circumstances which defendant's
testimony sought to prove, which had no bearing upon his defense, and those portions of it
which were applicable to material testimony were substantially covered by other instructions.
8. Criminal Law.
Appellate court will not reverse judgment for refusal to give instructions, if it appears that law of case
was laid down properly and fairly in instructions given.
9. Criminal Law.
Instruction of self-defense held properly refused where law applicable was correctly declared in other
instructions given.
10. Homicide.
Instruction that there was no evidence that would warrant a verdict of guilty of murder of second
degree held properly refused under evidence.
11. Homicide.
Refusal of instruction that there was no evidence to justify conviction of first degree murder could not
have prejudiced jury where defendant was convicted of second degree murder, even though lack of evidence
as to premeditation warranted such an instruction.
12. Homicide.
Instruction on duty of defendant claiming self-defense to make reasonable effort to avoid or withdraw
from encounter held proper under evidence.
Instruction was, in part: And in this case even if you should believe from the
evidence that deceased commenced the encounter in question and was the first to offer violence,
but further believe from the evidence, beyond a reasonable doubt, that the defendant could, by
making a reasonable effort, have avoided or safely withdrawn from it, and thereby avoided
further trouble, and that he made no effort to do so, but voluntarily entered into and continued
the encounter and shot and killed the deceased, then I charge you that the killing of the
deceased could not be excused or justified on the ground of self-defense and
you would have no right to acquit the defendant on that ground."
54 Nev. 56, 58 (1931) State v. Robison
I charge you that the killing of the deceased could not be excused or justified on the ground of
self-defense and you would have no right to acquit the defendant on that ground.
13. Homicide.
Rule that a person assailed need not retreat is based upon the assumption that he is not at fault in
commencing the encounter (sec. 10084, N. C. L.).
If slayer is at fault in bringing on the encounter, before he can justify the killing it
must appear that he had in good faith endeavored to decline any further struggle before the
mortal blow was given.
Appeal from Ninth Judicial District Court, White Pine County; George A. Bartlett, Judge
presiding.
Lloyd Robison was convicted of second degree murder, and he appeals. Affirmed.
Samuel A. King and Louis E. Callis, for Appellant:
The district attorney was guilty of misconduct in stating to the jury: You jurors must now
decide whether a man can be shot down in cold blood and go free in the State of Nevada,
and the court erred in refusing to instruct the jury to disregard said statements, and in
permitting the jury to consider the same was reversible error. State v. Martinez, 56 Utah 381,
191 P. 214; State v. Horr, 63 Utah 22, 221 P. 867; People v. Ah Lem (Cal.), 28 P. 286;
People v. Wells, 34 P. 1078; People v. Bowers, 21 P. 752.
Cautionary instructions are always proper when an attempt is made to repeat the exact
language of another long after the occurrence. The jurors do not always understand or fully
appreciate the uncertainty of testimony of this character, and therefore the defendant was
entitled to have the jury properly instructed as to the care and caution with which they should
receive testimony of this nature, and we insist that it was error for the court to refuse
defendant's requested instruction No. 2.
We insist that the refusal of the court to give defendant's requested instruction No. 3
constituted prejudicial error. The defendant was entitled to have his theory fully presented.
54 Nev. 56, 59 (1931) State v. Robison
fully presented. 13 R. C. L., secs. 235 and 236, pp. 933, 934 and 935; 30 C. J., sec. 611, p.
357.
That the law of self-defense is correctly stated by defendant's requested instruction No. 4 is
so well recognized that citation of authorities is unnecessary. This particular branch of the
law of self-defense was not covered by the instructions given, and in view of the defense
relied upon by the defendant he was entitled to have the jury so instructed.
Under the undisputed facts in the case there was nothing whatever to show that the offense
of second degree murder was committed. There was no evidence that the killing was unlawful
or felonious, or that it was committed with malice aforethought. The only evidence with
respect to the killing was that which came from the lips of the defendant, corroborated by the
circumstances in the case. Under this evidence he acted in defense of his own person.
Therefore, to submit to the jury the question of second degree murder and permit them to
consider a degree of crime not shown by the evidence to exist was prejudicial to the
substantial rights of the defendant, and warrants a reversal of this cause for the refusal to give
defendant's requested instruction No. 6.
The court's refusal to give defendant's requested instruction No. 7 amounts to prejudicial
error. True, the defendant was not found guilty of first degree murder, but by submitting that
question to the jury for its consideration it permitted the jury to speculate upon the verdict and
to compromise upon a lesser degree, which also was not warranted by the evidence.
There is not a word of testimony in the record to warrant the giving of the last part of
instruction No. 13. There was nothing to justify the assumption that the defendant may have
been able to have avoided or safely withdrawn from the controversy and thus have avoided
further trouble, nor was there anything to warrant an assumption that the defendant
voluntarily entered into and continued the encounter and shot and killed the deceased. The
testimony without dispute established the fact that the deceased was the aggressor, that he
began the controversy, and that there was no time or opportunity for the defendant to do
any thing other than defend himself.
54 Nev. 56, 60 (1931) State v. Robison
the fact that the deceased was the aggressor, that he began the controversy, and that there was
no time or opportunity for the defendant to do any thing other than defend himself. But the
real evil of this part of the instruction is that it does not correctly state the law. State v.
Grimmett, 33 Nev. 531; State v. Kennedy, 7 Nev. 374; People v. Lewis (Cal.), 48 P. 1088;
Beard v. United States, 158 U. S. 549, 39 L. Ed. 1086; 30 C. J. 69; 13 R. C. L., sec. 130, p.
826.
M. A. Diskin, Attorney-General; Wm. J. Forman, Deputy Attorney-General, and Guy E.
Baker, District Attorney, for the State:
There was no error in the statement made by the district attorney. The rule of law is that a
district attorney in his argument may argue from any facts that are in evidence and may draw
any reasonable inference therefrom. State v. Holbrook, 97 So. 31; Washington v. State, 98
So. 605; Blackshare v. State, 128 S. W. 549.
The record in this case shows undoubtedly that there was evidence in the case which
would have justified the jury in sentencing the defendant to the death penalty. Under these
conditions, certainly the district attorney was justified in assuming that a cold-blooded
murder had been committed, for the facts show such was the case.
The lower court properly refused to give defendant's requested instruction No. 2. To have
given it would have violated art. VI, sec. 12 of the Constitution of Nevada, providing that:
Judges shall not charge juries in respect to matters of fact, but may state the testimony and
declare the law. State v. Simas, 25 Nev. 432. Furthermore, the proposed instruction is
argumentative and, for that reason alone, should not have been given. State v. Buralli, 27
Nev. 41.
Defendant's requested instruction No. 3 was a lengthy recital of practically all the evidence
introduced by the defendant, and concluded with a statement that if the jury found these facts
to exist then they should find the defendant not guilty.
54 Nev. 56, 61 (1931) State v. Robison
the defendant not guilty. The court covered defendant's theory of the case elaborately in a
number of instructions given, and did not err in refusing to give this one. State v. Buralli,
supra.
Defendant's requested instruction No. 4 had been thoroughly covered by two other
instructions given, and obviously the court would not be required to repeat the same matter to
the jury simply because of defendant's request. State v. Buralli, supra.
The lower court did not err in refusing to give defendant's requested instruction No. 6. The
killing was established by the prosecution, showing circumstances warranting the finding of a
verdict even of murder in the first degree. Under these circumstances shown by the state and
under sec. 6399, Rev. Laws 1912, the burden was on the defendant to show mitigating
circumstances and, if he did not convince the jury of these circumstances by a preponderance
of the evidence, it was their duty under the law to find him guilty of murder. State v. Pierce, 8
Nev. 302; State v. Marks. 15 Nev. 37. The argument on behalf of appellant upon this point is
based upon the erroneous assumption that, because defendant was the only eye witness to the
murder, his testimony was bound to be accepted. No such doctrine has ever been sanctioned
by law.
Inasmuch as defendant was not convicted of murder in the first degree, even if the failure
to give his requested instruction No. 7 had been erroneous it could not have been prejudicial.
State v. Jackman, 31 Nev. 511. There was, however, ample evidence in the record for the jury
to have convicted the defendant of first degree murder, and under the facts the court would
have erred had it given the requested instruction.
Instruction No. 13 is not erroneous. There is a wide difference between the instructions
given in the cases cited by appellant and the one involved in the case at bar. In the cases cited
by appellant, the trial court charged that defendant must retreat; but here the court said if he
did not make an effort to avoid or withdraw, but voluntarily entered into and continued the
encounter and killed the deceased, he could not set up self-defense.
54 Nev. 56, 62 (1931) State v. Robison
the encounter and killed the deceased, he could not set up self-defense. The very basis of
self-defense is that it is necessary for self-defense and not voluntary. Sec. 6402, Rev. Laws
1912. Here defendant, even if we accept his story as stated by his confession, was not being
attacked; furthermore, he provoked the attack, if the statement in his confession is true, when
he called the deceased the name he did.
OPINION
By the Court, Ducker, J.:
1, 2. The defendant, convicted of murder of the second degree for the killing of John
Rowland, has appealed from the judgment and from the order denying him a new trial. He
assigns many errors, forty-three in number, but his counsel in their briefs discuss only a part
of the errors claimed. It is not assigned as a ground of reversal that the evidence is insufficient
to support the verdict of murder of the second degree. However, in their argument as to the
error of a certain instruction, counsel contend that the evidence is so insufficient and, when
the case was submitted for consideration and decision, called our attention to a recent statute
which is intended to clothe a trial or appellate court with authority to modify a judgment in a
criminal case without granting or ordering a new trial if the evidence shows the defendant to
be not guilty of the degree of crime of which he was convicted, but guilty of a lesser crime
included therein. Stats. 1931, c. 41, sec. 1, par. 6, p. 48. Consequently we will consider the
evidence with reference to its sufficiency.
As the defendant admitted the killing and sought to justify under a claim of self-defense,
much of the evidence introduced by the state to connect him with the homicide may be
omitted in the following statement of facts:
The defendant shot and killed John Rowland in the rear of the former's home in East Ely,
White Pine County, Nevada, on September 12, 1929, at about 3:30 a. m.
54 Nev. 56, 63 (1931) State v. Robison
County, Nevada, on September 12, 1929, at about 3:30 a. m. The killing was done with a
pistol. Rowland was unarmed. His body was found that evening about 6 o'clock in the back
part of his automobile parked near the Steptoe Hospital in East Ely. The body was covered
with a blanket when found. The automobile had been seen standing there between 5:30 and 6
o'clock that morning and again at noon. An autopsy revealed a wound in the face caused by a
pistol bullet which entered the head of deceased about an inch below the eye and exploded
into a number of fragments in the brain, causing instant death. There was no other bullet
wound in the body.
The defendant was arrested at about 11:30 o'clock on the night of September 13, 1929, at a
construction camp where he was employed, about 25 miles from the scene of the killing, and
brought to Ely by the officers that night. A pistol belonging to defendant was found in his car
at the camp. On the same night in the sheriff's office in the presence of the sheriff, his
deputies, the district attorney of White Pine County, and a stenographer, the defendant made a
statement. He appeared to be very nervous during the time and took seven or eight drinks out
of a jug he had brought with him from the camp, and which he said contained moonshine
whisky. The statement was taken down in shorthand by the stenographer and transcribed by
her. It was introduced in evidence by the prosecution. In this statement, among other matters,
defendant admitted killing Rowland and placing his body in the latter's car in which it was
found that evening.
At the trial of the case defendant was a witness in his own behalf. His testimony,
summarized, was as follows: Defendant, who was thirty-six years of age, had been acquainted
with John Rowland in White Pine County for approximately thirty years. Their families had
been neighbors in the farming business and on intimate terms for a number of years.
Deceased and defendant had been schoolmates and had continued to be fast friends after they
had attained manhood and to the time of the homicide.
54 Nev. 56, 64 (1931) State v. Robison
to the time of the homicide. Both were married. On or about the 28th day of August, 1929,
defendant had trouble with his wife on account of his getting drunk, and left home. From then
on until the 5th of September he stayed part of the time in town, part of the time in the
country at Spring Valley, and the rest of the time at the home of John Rowland, who lived in
Ely, a city adjacent to East Ely. Mrs. Rowland was away from home during that time. He
went there at the invitation of Rowland. While staying at the latter's home he slept in the
same bed with him. On the 5th of September defendant took some wearing apparel to
Rowland's home and also a five-gallon keg of whisky, which he put in the attic. Defendant
was subsequently employed and went to work at the construction camp. He returned to Ely on
the evening of the 11th of September; after attending a meeting of the Legion at the Legion
Hall, he went to Rowland's house at about 10 o'clock to get some whisky. He found Rowland
at home and there was considerable drinking. They consumed a quart or more of moonshine
whisky and finally went to bed together, both being intoxicated. They had several drinks after
they went to bed and got to talking about defendant's domestic troubles. Rowland stated he
had seen defendant's wife uptown that day and had taken her home. Robison asked him why
he had not told him that today, and Rowland became angered and said he was going to whip
defendant. He hit the latter in the neck and they landed on the floor. While Rowland was
sitting on him he hit defendant twice more in the neck and said he would kill him. Defendant
said, If that is the way you feel about it I'll get out of here. There was another discussion
about defendant's going home, and Rowland wanted to go to defendant's home and settle the
differences between defendant and his wife. Robison and Rowland both dressed and the
former went out and got into his car and drove away. Just before defendant left, Rowland
went to get his car and defendant followed him down to his garage and told him it wasn't
necessary to have him go down home with him, and furthermore that he didn't intend to go
home but was going back to his job.
54 Nev. 56, 65 (1931) State v. Robison
him go down home with him, and furthermore that he didn't intend to go home but was going
back to his job. Rowland got into his car, turned the lights on, and backed the car out of the
garage. After driving about awhile, defendant drove to the rear of his place and found
Rowland's car parked there near the back gate. He drove past it a little ways, stopped his car,
got out, and walked in the back gate. After walking around the house and seeing nobody, he
walked back out of the gate to the car and had started to walk back. Just as he was stepping in
at the gate he met Rowland coming out. Defendant said: John, I thought I told you you didn't
need to come down here. Get in your car and go home. John said, You s of a b, I'll kill
you, and hit defendant in the chest and knocked him through the gate. Defendant said,
John, I'll not be killed by you. John said, You s of a b, it's my life or yours right
now. As he said this he pointed his left finger at defendant and reached back quickly with his
right hand to his right hip pocket. Defendant immediately drew his gun and there was a
grapple. Rowland got hold of defendant's gun and it was discharged. Defendant drew his gun
he said for the purpose of then and there defending his life or preventing himself from
receiving great bodily harm. He did not intend to shoot Rowland unless it had to be done. He
did not know whether Rowland had a gun or not, but he knew if he did not deceased would
beat him to death. Rowland was six feet in height and a very strong man, who could easily
overpower defendant in a physical contest. (Rowland's large stature and great physical
strength was testified to by other witnesses.) Rowland grabbed the gun near the barrel at the
instant it was discharged. He fell forward on his face and defendant did not touch him or in
any manner attempt to beat him or use the gun on him. He stepped up to him to see if he had
a gun on him. Immediately thereafter defendant started to go the telephone office to apprise
the sheriff of the killing but changed his mind. He thought that Rowland might not be dead
and felt his pulse to ascertain if he was alive.
54 Nev. 56, 66 (1931) State v. Robison
his pulse to ascertain if he was alive. He then loaded the body into Rowland's car and drove
towards the Steptoe Hospital thinking he might get him into the hospital. Before reaching the
hospital he felt the pulse again and knew that Rowland was dead. He ran the car off the right
side of the road and left it there. He was in an intoxicated condition and was laboring under
great excitement. He thought if he left the car there he would probably not be implicated.
Defendant then went to his home and told his wife he had killed John Rowland. She told him
to call up the sheriff and insisted upon his doing so. He told her if he called up the sheriff he
would be locked up. He changed his clothing and destroyed the clothes he had taken off, took
a coal shovel and shoveled up the blood stains in the dirt, and put the contents into the ash
can. He put ashes and dirt over the stains that were left on the ground. Defendant then got his
traveling bag and the five-gallon keg of whisky he had brought from Rowland's house and
carried them to a store uptown. From there he went to secure a mechanic to fix his car. After
the mechanic got his car going he bid his wife good-bye and stated to drive back to the
construction camp. He left between 7 and 8 o'clock on the morning of the 13th of September.
On the way out of town he turned and drove back to Rowland's car. The reason he drove back
to this car was to see if the part the mechanic found to be missing from his car was there. He
thought Rowland must have taken the part out of his car, and defendant in his drunken
condition thought that was the only thing that could connect him up with the killing of
Rowland. He opened the door of Rowland's car and looked in the pockets of the deceased for
the part but did not find it. He then put a blanket that was in the car over the body, closed the
door, and drove away to the construction camp. He had the pistol with him with which he did
the killing. During the day his employer asked him if he had heard of his friend John
Rowland being killed. He pretended not to know anything about it except that he had heard
that some one had been killed in East Ely.
54 Nev. 56, 67 (1931) State v. Robison
he had heard that some one had been killed in East Ely. He said: That's too bad. That means
I have lost my best friend. He was in a tent and had retired when the officers came and
arrested him for the killing of John Rowland.
Mrs. Edith Robison, defendant's wife, was a witness for the defense. In substance, the
testimony she gave which had any bearing on the killing, the motive for it, or his claim of
self-defense, was as follows: They had been married ten years. After their marriage they first
resided at the Ranger Station in Spring Valley where he had a position as forest ranger. He
continued to render service in that capacity for about eight years. Just after that service had
terminated they moved to East Ely. She had known deceased and his wife for eighteen years.
Their relations were very pleasant and friendly and the Rowlands were frequent visitors at her
home. For a week or more prior to the killing defendant had been drinking and her objection
to this had caused friction between them, and he had left home. He returned a short time on
the 5th of September, stating that he had obtained employment, and there was a partial
adjustment of their trouble. She saw him no more until the early morning of the 12th of
September shortly after the killing. On the 11th of September she had seen Rowland in front
of the post office and a few minutes later he met her and offered to drive her home. While he
was doing so he made inquiries as to whether she and her husband had settled their trouble
and made some suggestions towards composing their differences. On more than one occasion
he had spoken to her about her husband drinking with the end in view of doing something to
stop it. On the early morning of September 12th she was at home in bed when she heard a
gunshot. Just before she had heard footsteps passing the bedroom window on the outside. She
had heard them twice at an interval of about a minute and a half. Prior to the hearing of
footsteps she had heard an automobile come up and stop. This was a minute or so before she
heard the footsteps the first time. Between the time she heard the footsteps the last time
and the shot she heard no loud voices quarreling or disturbance of any kind.
54 Nev. 56, 68 (1931) State v. Robison
she heard the footsteps the last time and the shot she heard no loud voices quarreling or
disturbance of any kind. When she heard the shot she got out of bed and looked out of the
window which faced the alley, but was unable to see anything. She returned to her bed. This
was about 3:20 o'clock in the morning. About one-half hour after she heard the shot she heard
the noise of some one trying to start a car. Shortly afterwards her husband came in the house
drunk. He said: Mama, I've done it. I've killed my best friend, John Rowland. She said:
Why did you do it? He said: Because he threatened my life and I did it to protect myself.
She said: Call up the sheriff and give yourself up. He said, I think that will be the best
thing to do, but hesitated and said: Well, they have no evidence against me that I committed
the crime. She said, I pleaded with him for some time and he still said they had no evidence
to connect him with the crime. She said: Is he dead? He said: Yes, I started to the hospital
with him and found he was dead and I turned round and was going to take him to the sheriff's
office and I thought no one would know I did it. And he said it was down by the Windrus
Hospital. He said he left it there in Rowland's own car.
He suggested burning the clothing that was stained with blood, and after changing did so,
burning them in the kitchen stove. He covered up the bloody spot outside and left the house at
about 6:30 a. m. saying he was going to the camp. She said that everything she had done in
the affair was through love and affection for her husband and her children. She said that Mrs.
Nell Carpenter, a sister of deceased, came to see her on the 15th of September, and they had a
conversation about the unfortunate affair. She denied saying to Mrs. Carpenter: When Lloyd
told me he had shot John, I said, Lloyd, please if you are so low as to do such a dirty trick,
take John to a doctor and give yourself up,' or that he had said: He is dead, for I saw to that
and you keep your mouth shut or you will get just what he did.' Mrs. Carpenter testified as a
witness for the prosecution and stated that Mrs.
54 Nev. 56, 69 (1931) State v. Robison
and stated that Mrs. Robison had made such statements to her. Mrs. Robison could not
recollect of having told the sheriff that her husband had objected to her having ridden from
McGill to Ely in a truck with John Roland. The sheriff, testifying for the prosecution, stated
that she told him shortly after the killing of this incident, and that her husband was extremely
jealous. The sheriff also testified that she told him when Lloyd came into the house after the
shooting he told her he saw John coming out of the gate and pulled his gun and shot him.
The foregoing summarization coincides with the evidence of the prosecution as to the time
and place of the killing of John Rowland by the defendant, the finding of the body in the
former's car, and subsequent arrest of defendant at the construction camp.
3. The evidence is, we think, sufficient to support the verdict of murder of the second
degree. Consequently we could not reverse the judgment on the ground of insufficiency of the
evidence, nor are we authorized by statutes of 1931 to modify the judgment to one of
manslaughter. The statute does not purport to clothe the court with power to modify a
judgment in a criminal case without giving or ordering a new trial, as a matter of leniency, but
only when the judgment is not supported by the evidence which does show the defendant
guilty of a lesser degree of the crime for which he was convicted, or of a lesser crime
included therein. There was, however, as we have indicated, evidence upon which the jury
could legally base a verdict of murder. While there was no witness to the killing other than
defendant, who asserted self-defense, the jurors were of course not bound by his testimony.
They had a right to consider, from his conduct after the killing and until his arrest, that his
testimony as to the act being done in necessary self-defense was unreliable. It was certainly
unnatural for one who had slain his best friend and under the dire necessity of preserving his
own life to refrain from divulging the killing and to attempt to remove all traces of it from his
person and his premises.
54 Nev. 56, 70 (1931) State v. Robison
from his person and his premises. On the other hand, the natural promptings of a heart stirred
by the consciousness of innocence, and feeling of regret, would be expected to cause the
defendant to declare at the earliest opportunity the exigency which made it necessary for him
to kill his friend.
It is evident from the verdict that the jury, moved by these considerations, disbelieved
defendant's testimony as to his plea of self-defense. The defendant therefore failed to sustain
the burden cast upon him by section 10081 of the N. C. L., and there is no other evidence in
the record which tends to mitigate, justify, or excuse the homicide. Besides, there were other
circumstances which the jury had the right to consider as incriminating. The circumstances of
the empty shell ejected from the defendant's pistol immediately after he fired the fatal shot,
being found at some distance from the blood spot where deceased fell, and the absence of any
loud talk immediately prior to the shooting as testified to by witnesses near the scene of the
killing, were circumstances proper to be considered in connection with defendant's conduct
after the killing as tending to show the commission of the crime found by the jury.
In their brief, counsel for defendant discuss a number of errors which they claim the lower
court committed in overruling defendant's objections to numerous questions asked of Mrs.
Robison on cross-examination, to numerous questions asked of the defendant on
cross-examination, and to certain questions asked of the witnesses Mrs. Nell Carpenter and
Sheriff Nicholson by the prosecution on rebuttal. The questions were all so obviously proper
that we deem it unnecessary to state them, or the evidence which made them proper. It is
sufficient to say that we have examined these assignments with the care which the nature of
the case requires and find that the court committed no error in these respects.
4, 5. It is alleged that the district attorney was guilty of misconduct in his remarks to the
jury during his closing argument which was prejudicial to the defendant.
54 Nev. 56, 71 (1931) State v. Robison
closing argument which was prejudicial to the defendant. The district attorney in his closing
remarks to the jury said: That you jurors must now decide whether a man can be shot down
in cold blood and (the killer) go free in the State of Nevada. (The words in parenthesis are
ours.)
Counsel for defendant objected to the remarks at the time and moved the court to direct the
jury to disregard the statement. The court denied the motion. The making of the statement
objected to was not misconduct. The district attorney was justified in assuming from the
evidence that the defendant was guilty of the crime charged in the information and to
characterize it as such. State v. Holbrook, 153 La. 1025, 97 So. 27. In cold blood is a term
commonly used to designate a homicide in which it is believed there are no circumstances in
mitigation or to justify or excuse the killing. That the counsel used this term instead of
murder of the first degree, or deliberate or premeditated murder, or any other term or word of
similar signification, is unimportant. In argument a district attorney is entitled to state to the
jury any fact of facts which the evidence tends to establish, or any legitimate inference which
may be drawn from such evidence. Washington v. State, 86 Fla. 533, 98 So. 605. The jury
had the power to acquit the defendant even thought the evidence established that he was
guilty of murder, and we do not think that he was prejudiced by the way the district attorney
stated the proposition.
Counsel for defendant also objected to and assigned as misconduct remarks of the district
attorney to the court stating his purpose in asking certain questions. We see no fault in the
statement.
6. The refusal of the court to give five of the instructions offered by defendant is in each
instance assigned as error. We will examine these in their order. In defendant's request No. 2
the court was asked to instruct the jury as follows: In this case some evidence has been
offered by the state by witnesses Mrs. Carpenter and Sheriff Nicholson, wherein they attempt
to repeat and detail certain conversations had with the wife of the defendant.
54 Nev. 56, 72 (1931) State v. Robison
and detail certain conversations had with the wife of the defendant. I therefore charge you in
this connection that testimony of this character should be received with care and caution, for
it is hard for the human memory or mind to retain the exact words spoken and to enable the
party attempting to repeat them to thereafter repeat them accurately, and it is ofttimes hard to
repeat the same in a way that will convey the exact thought intended to be conveyed in the
first instance, and for this reason any testimony given with respect to conversations of this
kind should be considered by you with care and caution.
The court was not authorized to disparage the value of the testimony as was designed by
the proposed instruction, and therefore properly refused it. State v. Simas, 25 Nev. 432, 62 P.
242. The weight of the testimony was for the jury to determine without the aid of the court.
7. Defendant's proposed instruction No. 3 contained a summarization of his testimony and
charged the jury to acquit if they found the same to be true. It was properly refused. It
marshaled a number of circumstances which defendant's testimony sought to prove which had
no bearing upon his defense, and those portions of it which were applicable to material
testimony were substantially covered by other instructions. State v. Ward, 19 Nev. 297, 10 P.
133, 138; State v. Buralli, 27 Nev. 41, 71 P. 532.
8. The trial court in this case gave forty-four instructions. These, to say the least, were
ample to cover every phase of the case, especially as the facts were in no wise complicated.
This court has repeatedly stated that the tendency is to give too many instructions. It will not
be amiss to repeat here what was quoted with approval in State v. Ward, supra: This court
will not reverse the judgment of the court below for the refusal to give instructions, provided
it appears from the record that the law of the case has been laid down properly and fairly by
the court in instructions which it did give to the jury.
54 Nev. 56, 73 (1931) State v. Robison
the jury. Instructions are to enable the jury to understand the law of the case. A few short,
pithy, sententious instructions, embodying the law of the case, will always be better
understood, and will have more effect upon the triers of fact, than a long list of instructions
loaded with words, generally so involved that it tends to confuse rather than conduct the jury
to a proper conclusion.
9. Defendant's proposed instruction No. 4, refused by the trial court, reads as follows: If
the defendant had reasonable cause to believe from the words, acts and conduct of the
deceased that he had a design to do the defendant some great bodily injury, and that such
design was about to be accomplished, then the defendant had the right to act on appearances
and shoot the deceased if necessary, to prevent the accomplishment of the design. And, in this
connection, the jury are further instructed that the defendant was not required to nicely gauge
the force used, but that he was justified in using such force and means as appeared to him
reasonably necessary under the circumstances.
The principle applicable to the defense of self-defense stated in the foregoing offer was
correctly declared in two other instructions given by the court. Its refusal was therefore
proper.
10. Defendant's proposed instruction No. 6 stated that there was no evidence offered or
received that would warrant a verdict of guilty of murder of the second degree, and directed
the jury to return a verdict of not guilty of murder of that degree. We have already pointed out
the evidence which warranted the refusal of this instruction. Its refusal was therefore proper.
11. Defendant's proposed instruction No. 7 stated that there was no evidence from which
the jury might find the defendant guilty of murder of the first degree and directed the jury to
acquit him of murder of the first degree. We are of the opinion that the evidence was
sufficient to support a verdict of murder of that degree.
54 Nev. 56, 74 (1931) State v. Robison
degree. However, the defendant was not convicted of murder of the first degree and
consequently could not have been prejudiced by the refusal of this instruction even though a
lack of evidence as to premeditation warranted such an instruction.
12. Instruction No. 13 given by the court reads, in part: And in this case even if you
should believe from the evidence that deceased commenced the encounter in question and
was the first to offer violence, but further believe from the evidence, beyond a reasonable
doubt, that the defendant could, by making a reasonable effort, have avoided or safely
withdrawn from it, and thereby avoided further trouble, and that he made no effort to do so,
but voluntarily entered into and continued the encounter and shot and killed the deceased,
then I charge you that the killing of the deceased could not be excused or justified on the
ground of self defense and you would have no right to acquit the defendant on that ground.
Defendant contended that this instruction was inapplicable, in that there was no evidence
tending to show that defendant voluntarily entered into and continued the contest or that he
could have safely withdrawn from it and thus have avoided further trouble. We think that
there was evidence of this character sufficient to justify the assumptions. Defendant testified
that Rowland was the aggressor, and to the imminence of danger to him from the attack on
account of Rowland's threat to kill, his threatening attitude and great strength, and on account
of his being close enough to get hold of defendant's gun as it was discharged, it is true, yet, as
we have stated, the jurors were not bound by this testimony. And there was other evidence in
this connection which they had a right to consider. The deceased was unarmed, and the
defendant, who had known him intimately from childhood, knew that it was his custom to go
unarmed.
There was evidence which tended to show that defendant voluntarily entered into the
contest and was willing to provoke a continuance of it. In his statement to the officer
introduced in evidence by the prosecution he said: "I met John coming out of the yard.
54 Nev. 56, 75 (1931) State v. Robison
I met John coming out of the yard. He was just coming out of the back gate when I met him.
Before he said anything or I did we stopped and I said: John, get in your car and go home.'
John hit me with his left hand and knocked me back a little. I said, John, you have beat up on
me enough. Get in your car and go home,' and I said, You sof a bget in your car and go
home. I won't be killed by you.' I said, John, get in your car and go home,' and he said, One
of us has to die.' I tried to talk him out of it then and he didn't give me a chance to talk and he
said, It is your life or mine.' When he said that he pointed his finger at me and reached for his
hip pocket. I fired and John fell.
If this was a true version, the application of the vile epithet to Rowland by the defendant
was certainly calculated to provoke a continuance of the assault. As to whether defendant
could have safely withdrawn from the contest, if there was a contest, it was proper for the jury
to consider the physical fact which the evidence tended to show, as we have previously stated,
that the empty shell ejected from defendant's pistol immediately after the fatal shot was found
some distance from the blood spot on the ground. This, together with the absence of any loud
talk as testified to by several witnesses who were near the scene, the defendant's subsequent
conduct, tended to negative self-defense. The instruction was applicable for these reasons.
But it is also contended that it is an erroneous statement of law, and in support of this
contention we are referred to the case of State v. Grimmett, 33 Nev. 531, 112 P. 273. The law
was correctly stated in the foregoing case, but the facts were different from the case at bar. In
State v. Grimmett the evidence introduced in behalf of the state and also of the defendant,
as stated by this court, conclusively proves that Baker was the aggressor in the difficulty,
which resulted in the loss of his life, and that it was necessary for the defendant to kill him in
order to preserve his own. The court held that under such circumstances it was not necessary
to flee for safety, but that the defendant had the right to stand his ground and slay his
adversary.
54 Nev. 56, 76 (1931) State v. Robison
but that the defendant had the right to stand his ground and slay his adversary. It appeared that
the defendant in State v. Grimmett had not voluntarily sought, provoked, invited, or willingly
engaged in the difficulty. On these points the evidence was conclusive. Here the evidence was
such that the jury could say that the defendant was the assailant.
13. The rule of law declaring that a person assailed need not retreat is based upon the
assumption that he is not at fault in commencing the encounter. If he is at fault in bringing on
the encounter, before he can justify the killing it must appear that he had in good faith
endeavored to decline any further struggle before the mortal blow was given. Section 10084,
N. C. L. For these reasons we think the instruction was not erroneous. On the whole the jury
was fully and fairly instructed.
The judgment is affirmed.
____________
54 Nev. 76, 76 (1932) Weisheyer v. Weisheyer
WEISHEYER v. WEISHEYER
No. 2947
January 5, 1932. 6 P.(2d) 439.
1. Judgment.
Generally a valid judgment for plaintiff is conclusive, not only as to defenses which were set up and
adjudicated, but also as to those which might have been raised, and such defenses cannot be used by the
former defendant as the basis of a subsequent action against the former plaintiff.
2. Judgment.
If the matters on which a second action is based, although usable as a defense in the first suit,
constitute a substantive and distinct cause of action which the defendant in the former suit was not bound to
plead, the former judgment is not a bar.
3. Judgment.
Separate maintenance judgment in favor of wife held not a bar to husband's subsequent divorce action
on ground of wife's extreme cruelty in making false accusations against him in action for an accounting.
Even if it were conceded that the matter counted upon in the divorce complaint might
have been used as a defense to the separate maintenance suit, no sufficient reason
appeared why the husband was bound to use it, the action for accounting
and the separate maintenance suit being independent and in no way
connected as to matters of claim and defense.
54 Nev. 76, 77 (1932) Weisheyer v. Weisheyer
sufficient reason appeared why the husband was bound to use it, the action for accounting and
the separate maintenance suit being independent and in no way connected as to matters of
claim and defense.
4. Judgment.
Issue of falsity of wife's accusations in pleading in accounting action against her husband could not be
used by him as a defense to wife's pending separate maintenance suit until the termination of the accounting
action and the determination of the falsity of the averments.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Divorce action by Henry W. Weisheyer against Wilhelmina Weisheyer. Judgment for
plaintiff, and defendant appeals from an order overruling and denying her motion for a new
trial. Affirmed.
N. J. Barry, for Appellant:
From the time that the matters set up as constituting extreme cruelty were alleged in the
amended complaint in the accounting case in May, 1927, until the entry of the final judgment
in the separate maintenance suit in January, 1928, plaintiff had an opportunity to set them up
as a defense to the separate maintenance suit. Had these acts constituted extreme cruelty they
would have been a perfect defense to the separate maintenance suit, and the plaintiff in this
suit having had the opportunity to set forth such facts as a defense to the separate
maintenance suit, and having failed to do so, he is now estopped. 15 R. C. L., Judgments, sec.
446, p. 969; 34 C. J. sec. 1236, p. 818; Fairchild v. Lynch, 99 N. Y. 359, 2 N. E. 20.
Sardis Summerfield, for Respondent:
The act of extreme cruelty constituting the gravamen of the first cause of action in
respondent's complaint was committed on March 18, 1927. In the separate maintenance
action final issues had been joined by the filing of the reply previous to that time, to wit, on
February 17, 1927. Hence respondent could not have pleaded within pleadable time in the
separate maintenance action an act which had then not been committed, and consequently
res adjudicata could not apply and no estoppel or bar could be imputed to him.
54 Nev. 76, 78 (1932) Weisheyer v. Weisheyer
act which had then not been committed, and consequently res adjudicata could not apply and
no estoppel or bar could be imputed to him. No one who understands the elementary
principles of the law of res adjudicata can in good faith contend that it extends to matter
nonexistent at the time of final joinder of issues.
OPINION
By the Court, Sanders, J.:
This was an action for divorce instituted by the husband, Henry W. Weisheyer, as plaintiff,
against his wife, Wilhelmina Weisheyer, as defendant. After a trial of the issues judgment
went for the plaintiff. The defendant appeals from an order overruling and denying her
motion made for new trial of the action.
The order in question is presented for review on briefs. The facts which concern the two
assignments of error relied upon for the reversal of the order are as follows:
The parties intermarried at the city of St. Louis, State of Missouri, in the year 1902, which
city was their marital domicile during all of the time they lived together as husband and wife.
Because of marital differences existing between the parties during and since the year 1920,
Henry W. Weisheyer in July, 1926, filed a petition in the circuit court of the city of St Louis,
State of Missouri, against Wilhelmina Weisheyer for divorce on the ground of cruel and
barbarous treatment. After a trial of the issues said court on, to wit, December 6, 1926,
entered judgment of dismissal of the petition upon the ground that the plaintiff was not an
injured and innocent party.
Thereafter, to wit, on January 19, 1927, Wilhelmina Weisheyer, as plaintiff, filed her
petition in the circuit court of the city of St. Louis, State of Missouri, against Henry W.
Weisheyer, as defendant, to recover separate maintenance under the Missouri statutes,
alleging as ground therefor that the plaintiff had been abandoned by the defendant and
since December 1, 1926, he had refused and neglected to maintain and provide for
plaintiff.
54 Nev. 76, 79 (1932) Weisheyer v. Weisheyer
ground therefor that the plaintiff had been abandoned by the defendant and since December 1,
1926, he had refused and neglected to maintain and provide for plaintiff.
On the day on which the petition for separate maintenance was filed, to wit, January 19,
1927, Wilhelmina Weisheyer, a stockholder in the Norma Realty Company, a corporation,
instituted an action in said circuit court of the city of St. Louis, State of Missouri, against said
Norma Realty Company and joined Henry W. Weisheyer with others as parties defendant.
The declared and avowed purpose of the suit was to obtain an accounting of the business
affairs and property of the defendant corporation and for an injunction and the appointment of
a temporary receiver. The defendant corporation was a small family corporation dominated
and controlled by Henry W. Weisheyer, who was its president and treasurer. After issues had
been joined upon the pleadings, Wilhelmina Weisheyer, with leave of court, on March 18,
1927, filed her amended petition in the cause. No answer was filed to the petition as amended
for the reason that the case was settled out of court by the purchase of the plaintiff's shares of
stock in the corporation by the defendant, Henry W. Weisheyer, and upon her written
statement filed in the cause that she would vacate the property of the corporation then
occupied by her with Henry W. Weisheyer as a home in said city of St. Louis. Pursuant to the
terms of settlement, the cause was dismissed to the prejudice of the plaintiff on March 24,
1927, and at the costs of the defendants. In her original and amended petition the plaintiff
made certain charges against Henry W. Weisheyer, as president and treasurer of the Norma
Realty Company, a corporation, which charges furnish the basis for the present action in
Nevada for divorce on the ground of extreme cruelty.
Some time in the forepart of the year 1928, Henry W. Weisheyer came to Nevada and on
June 26, 1928, took up his residence in the city of Reno, Washoe County. After the expiration
of three months' residence in said city and county required by law to obtain a divorce, Henry
W.
54 Nev. 76, 80 (1932) Weisheyer v. Weisheyer
Henry W. Weisheyer filed his complaint in the court below for divorce from the defendant,
Wilhelmina Weisheyer, on the ground of extreme cruelty and also upon the ground of willful
desertion. For a first cause of action for cruelty the complaint alleged that on March 18, 1927,
the defendant, Wilhelmina Weisheyer, filed in the circuit court of the city of St. Louis, State
of Missouri, an amended verified petition in an action then and there pending in said court
entitled, Wilhelmina Weisheyer, Plaintiff Vs. Norma Realty Company, a corporation, Lillian
Weigl, Martha Heintze, August C. Hilmer and Henry W. Weisheyer, defendants, in which
she charged Henry W. Weisheyer with the performance of certain acts in the following
language, to wit: And the defendant Henry W. Weisheyer, in the exercise of his power and
control of the defendant Norma Realty Company, as aforesaid, has usurped the office of
President and Treasurer of said Corporation, and has dominated and controlled its business
and affairs; and has failed and refused to account for his conduct in the management and
disposition of the funds, property and business of said Corporation, and has acquired unto
himself sums of money and property belonging to said corporation, and applied the use of the
same to his own use and benefit in private business endeavors of his own; and in violation of
law, has loaned moneys, the property of the defendant Norma Realty Company to the
defendant Lillian Weigl, a stockholder in the defendant Realty Company.
The complaint alleges that the accusations quoted were false and unfounded in fact and
were intended by the defendant to harass and humiliate the plaintiff and to injure him in his
reputation as an honorable business man in said city; and to prevent plaintiff from pursuing
any remunerative business occupation in the city of St. Louis, Missouri, where he was well
known and where his property was then situated. That said false accusations seriously
affected plaintiff's business and greatly embarrassed him in his attempts to continue in
business, and caused him to endure serious mental and physical distress, suffering, and
humiliation, and seriously affected plaintiff's health and otherwise materially and greatly
impaired plaintiff's capacity to successfully conduct business of any character whatever.
54 Nev. 76, 81 (1932) Weisheyer v. Weisheyer
and physical distress, suffering, and humiliation, and seriously affected plaintiff's health and
otherwise materially and greatly impaired plaintiff's capacity to successfully conduct business
of any character whatever.
For a second cause of action the complaint alleges that the defendant, without the
knowledge or consent of plaintiff, deserted and abandoned plaintiff and removed from the
common home of plaintiff and defendant at 4212 St. Louis Avenue, in the city of St. Louis,
practically all of the household furniture contained in said home, to some other place in said
city unknown to plaintiff, and ever since said time had continued said desertion and
abandonment without the consent of plaintiff.
In response to process served upon her at her place of domicile in the city of St. Louis, the
defendant came to Nevada and defended the action. Following her denials the defendant, in
her answer, pleaded or set up as a bar to both causes of action counted upon in the complaint
the judgment of dismissal of the plaintiff's petition for divorce entered in the circuit court of
the city of St. Louis on December 6, 1926, and the judgment in favor of the wife for separate
maintenance entered in said circuit court on January 25, 1927.
After a trial of the issues made by the pleadings, the court found and adjudged that the
judgments entered in the Missouri cases did not relate to or affect any of the subject matter at
issue in this action and were not res judicata or a bar to or an estoppel of any issue present in
this action. Whereupon judgment was entered against the defendant and in favor of the
plaintiff for divorce upon the ground of cruelty and also for desertion.
Upon appeal from the order denying the defendant's motion for new trial, the defendant
seeks reversal of the order upon two grounds:
(1) That even though the judgments entered in the Missouri cases were based upon
different causes of action from those pleaded in this action, nevertheless the court committed
substantial error in its refusal to find from the evidence that the matter counted upon in the
plaintiff's first cause of action could and should have been pleaded as a defense to the
wife's action in Missouri to recover separate maintenance from this plaintiff on the
ground of his neglect and refusal to provide.
54 Nev. 76, 82 (1932) Weisheyer v. Weisheyer
in the plaintiff's first cause of action could and should have been pleaded as a defense to the
wife's action in Missouri to recover separate maintenance from this plaintiff on the ground of
his neglect and refusal to provide.
(2) That the judgment in favor of the wife for separate maintenance entered in the circuit
court of the city of St. Louis was not conclusive upon the plaintiff in this action of the issue
of willful desertion.
1-3. It is a general rule that a valid judgment for plaintiff is conclusive not only as to
defenses which were set up and adjudicated, but also as to those which might have been
raised, and that such defenses cannot be used by the former defendant as the basis of a
subsequent action against the former plaintiff. 34 C. J. 856, sec. 1267. The rule, however, as
pointed out in section 1267, has its exceptions and limitations. It will be observed from the
numerous authorities cited in support of the text that one prominent exception to the rule is
that if the matters on which a second action is based, although they might have been used as a
defense in the first suit, constitute a substantive and distinct cause of action which the
defendant in the former suit was not bound to plead or set up, the former judgment is not a
bar. In other words, the rule has no application to those independent matters which the parties
may, but are not required to and do not in fact, plead or rely upon. 15 Cal. Jur. 145. If, for the
sake of the argument advanced on the part of the defendant wife, it be conceded that the
matter counted upon in this complaint for divorce for cruelty might have been used as a
defense to the wife's suit to recover separate maintenance, no sufficient reason appears why
this plaintiff, as defendant in that suit, was bound to set up as a defense to that action the
issue of the falsity of the averments contained in the wife's complaint against the Norma
Realty Company, a corporation, and others, for an accounting. It is apparent from the
pleadings in evidence that there is no identity in the two cases. They were independent
actions, brought for different and unrelated purposes in no way connected in respect to
matters of claim and of defense.
54 Nev. 76, 83 (1932) Weisheyer v. Weisheyer
in no way connected in respect to matters of claim and of defense. Consequently, under the
exception to the rule in respect to defenses which might have been pleaded, the former
judgment in favor of the wife for separate maintenance in Missouri is not a bar to the present
action for divorce in Nevada based upon a substantive and distinct cause of action which this
plaintiff was not required to plead or rely upon as a defense to the suit to recover separate
maintenance.
4. Upon further consideration of the point that the matter present in the plaintiff's first
cause of action for divorce could have been used by him as a defense to the wife's former suit
in Missouri to recover separate maintenance, we conclude that the orderly administration of
the law demands of us to hold that the point, as made, is not well taken. The issue of the
falsity of the accusations contained in the pleading filed in the Norma Realty Company case
could not be used as a defense to the wife's pending suit to recover separate maintenance until
the termination of the action against the Norma Realty Company, a corporation, and others,
and the issue of the falsity of the averments in respect to this plaintiff, as president and
treasurer of said corporation, had been tried and determined therein. 9 Cal. Jur. 659, 702. We
know of no rule of pleading where by this plaintiff could, by merely alleging the falsity of the
averments in the pending and undetermined action against the Norma Realty Company and
others, transfer to the suit to recover separate maintenance, also pending and undetermined,
the trial of the issue of the falsity of accusations contained in the pleading in the former suit
as constituting such extreme cruelty on the part of the wife as to deprive her of her marital
right of support and maintenance.
We find no error in the trial court's refusal to find and adjudge, as requested by the
defendant wife, that the matter complained of in the plaintiff's first cause of action could and
should have been pleaded as a defense to her action in Missouri to recover separate
maintenance.
54 Nev. 76, 84 (1932) Weisheyer v. Weisheyer
This conclusion renders it unnecessary for us to discuss the assignment that the trial court
erred in its refusal to hold and to adjudge that the judgment in favor of the wife for separate
maintenance entered in the Missouri court was conclusive upon this plaintiff of the issue of
willful desertion.
The order entered in the cause overruling and denying the wife's motion for new trial and
made the basis of this appeal is affirmed.
It is so ordered.
____________
54 Nev. 84, 84 (1932) State v. Bardmess
STATE v. BARDMESS
No. 2945
February 3, 1932. 7 P.(2d) 817.
1. Criminal Law.
Overruling of objection to cross-examination question so general that it presented nothing for the
court to act upon held not erroneous.
Defendant's witness testified on direct examination that he did not see the defendant
making an assault. On cross-examination he was asked if he had not told the sheriff that the
affair was the most brutal and horrible thing he had ever seen happen. Defendant's objection
to the question was: I object, to that, as irrelevant, incompetent and immaterial, and upon
the further ground that the Defendant was not present, and it is not binding on the Defendant;
and upon the further ground that it is a mere expression of general opinions; that it is not
competent for any purpose in this case, either as evidence or impeachment, or admission, or
anything else.
2. Criminal Law.
Point that cross-examination was as to a collateral matter, urged on appeal but not suggested at the
trial, comes too late.
3. Indictment and Information.
Information held to state facts sufficient to constitute an offense under the habitual criminal act (sec.
9976, N. C. L.).
Information averred that defendant had been twice theretofore convicted of crimes
which constitute felonies in Nevada, detailed the time and place of conviction, the passing of
sentence by the court, the receipt of the defendant at the penitentiary and his discharge
therefrom.
4. Indictment and Information.
Habitual criminal act does not contemplate that accused shall be tried again for the crimes of which he
has been adjudged guilty, but it is proper that he should be informed that his former
convictions will be invoked to increase his punishment, provided he has in fact been
thus convicted by a court having jurisdiction {sec.
54 Nev. 84, 85 (1932) State v. Bardmess
adjudged guilty, but it is proper that he should be informed that his former convictions will
be invoked to increase his punishment, provided he has in fact been thus convicted by a
court having jurisdiction (sec. 9976, N. C. L.).
5. Criminal Law.
Use of crime in the sense of case, by the court in admonition to counsel that there are a lot of
questions that have no bearing on this particular crime held not prejudicial where, upon exception, the court
stated it did not intend to convey the idea that it thought a crime had been committed, and that was for the
jury to determine.
6. Criminal Law.
Conviction of charge in information under habitual criminal act where plea of guilty was taken in
chambers held nullity (secs. 8385, 10906, N. C. L.).
Information, in addition to charge of assault with intent to kill, contained habitual
criminal charge. Defendant, on advice of his counsel, entered plea in chambers of guilty to
charge of prior convictions, to avoid prejudicing his trial before jury on other charge. There
having been no authority for accepting the plea of guilty in chambers, defendant was on trial
upon his general plea of not guilty, and as no evidence was adduced against him as to his
prior convictions, there was not and could not have been a finding or conviction upon that
issue.
Appeal from Fifth Judicial District Court, Nye County; Frank T. Dunn, Judge.
A. J. (Jack) Bardmess was convicted of assault with intent to inflict violent injury, and
adjudged to be an habitual criminal, and he appeals. Conviction of assault with intent to
inflict violent injury affirmed; judgment and sentence upon charge of being an habitual
criminal annulled.
Frame & Raffetto, for Appellant:
The information is insufficient in law and does not state facts sufficient to constitute the
aggravated offense under the habitual criminal act, inasmuch as it did not allege more than
that the defendant had previously been convicted of a felony, to wit, grand larceny, without
stating any fact other than a mere conclusion to show that the offense was in fact grand
larceny under the law of the State of Idaho, or a felony under the laws of this state.
54 Nev. 84, 86 (1932) State v. Bardmess
of this state. The indictment must be direct and positive in its allegations. Direct and positive
allegations cannot be supplied by mere inferential allegations or allegations which are merely
argumentative. People v. Logan, 1 Nev. 89. As to the necessity for stating with some
particularity the nature of the property or the value thereof, so as to show that the offense
committed in another state is in fact a felony in the State of Nevada, see 16 C. J., sec. 3159, p.
1342.
It is the settled law that a defendant cannot enter a plea of guilty to the prior offenses and a
plea of not guilty to the main offense unless the statute expressly authorizes such a
proceeding to be had. 16 C. J., secs. 3164, 3166, 3167, pp. 1344, 1345. This establishes
beyond question that the portion of the judgment based on the defendant's plea of guilty to
prior offenses is a nullity, and that part of the judgment should be reversed.
It was error for the trial court to permit the district attorney on cross-examination, over the
objection of the defendant, to impound the impeaching questions to the witness Griffin as to
his statements to the sheriff that the affair was the most horrible and brutal that he had ever
witnessed. Such evidence would have been incompetent if offered either on behalf of the state
or the defendant, for the manifest reason that it was merely collateral, immaterial,
incompetent and irrelevant for any purpose. 40 Cyc., p. 2699.
We insist that the remarks of the court, in effect: there are a lot of questions that have no
bearing on this particular crime assumed the guilt of the defendant and, whether intentional
or merely inadvertent, violates sec. 120 of the constitution of Nevada, which prohibits judges
from charging juries in respect to matters of fact. This section of the constitution has been
frequently applied by this court, and we especially call attention to the cases of State v.
Tickel, 13 Nev. 502, and State v. Harkin, 7 Nev. 377, wherein the court expressly announced
the law to be that such remarks by the judge, wherein the judge expressed an opinion as to a
question of fact, is injurious to the defendant, and demands redress as imperatively in the
case of a mere inadvertence on his part as in case of a wilful evasion of the law.
54 Nev. 84, 87 (1932) State v. Bardmess
an opinion as to a question of fact, is injurious to the defendant, and demands redress as
imperatively in the case of a mere inadvertence on his part as in case of a wilful evasion of
the law.
Gray Mashburn, Attorney-General; W. Howard Gray, Special Deputy Attorney-General,
and Lowell Daniels, District Attorney, for the State:
The purpose of the habitual criminal act of this state, as in other states, is not to charge a
substantive crime, but it is for the punishment only. The sufficiency of the information, as to
the prior conviction, what is necessary to show as to this conviction, as well as the ordinary
rules governing the pleadings and procedure, should have no application. It is not a question
of guilt or innocence of the defendant as to the prior charges; it is a question of proof of
record only. That it is not necessary to allege the previous convictions with the same
particularity as if the party were charged originally with such offense is held in various
jurisdictions. People v. Columbo, 70 Cal. App. 489, 233 p. 413; State v. Dowden, 137 Ia.
573, 115 N. W. 211; State v. Asher (Mo.), 246 S. W. 911; Green v. Commonwealth, 213 Ky.
323, 280 S. W. 1094; State v. Edelstein (Wash.), 262 P. 622.
The defendant was arraigned under sec. 10884, N. C. L., and pleaded not guilty to the
information. Thereafter, and prior to the opening statements of counsel on the case and the
taking of testimony, the defendant modified and changed his plea to the prior convictions,
confessing same. Change of plea to the information is discretionary with the court. State v.
Salge, 2 Nev. 321. Under a similar statute on arraignment (sec. 988 of Penal Code) in the
State of California, the courts of that state had occasion to pass upon similar questions.
People v. Brooks, 4 P. 7. See, also, Howard v. State (Wis.), 121 N. W. 133; Meyers v. State
(Wis.), 213 N. W. 645.
The impeaching question asked the witness Griffin on cross-examination was relevant to
the issues involved, as it described the nature of the attack as it appeared in the eyes of
the witness.
54 Nev. 84, 88 (1932) State v. Bardmess
as it described the nature of the attack as it appeared in the eyes of the witness. 28 R. C. L.,
pp. 64, 219; 40 Cyc., p. 2687. Respondent contends, as the witness practically admitted
making such statements, there was no necessity for proving them, and as the jury had been
instructed that the question was for impeachment, there was no error.
The remarks made by the court, now assigned as error, were not made in the way of comment
on evidence, rulings of the court or instructions, but were addressed to counsel as to the
conduct of the case. The remarks in no way gave any intimation of the court's opinion as to
the right and sufficiency of any evidence. The court has a right to admonish counsel during
the trial of a case, provided the accused is not prejudiced in the eyes of the jurors. State v.
Lewis, 50 Nev. 212.
OPINION
By the Court, Coleman, C. J.:
A. J. (Jack) Bardmess was informed against by the district attorney of Nye County,
omitting formal portions, in words and figures following:
Walter Rowson, District Attorney, within and for the County of Nye, State of Nevada, in
the name and by the authority of the State of Nevada, informs the Court that A. J. (Jack)
Bardmess of Ione, Nye County, State of Nevada, on or about the 8th day of September, 1930,
and before the filing of this Information, near the town of Ione, in the said County of Nye,
State of Nevada, did then and there commit the crime of assault with intent to kill, in the
manner as follows, to-wit:
That he, the said A. J. (Jack) Bardmess, on or about the said 8th day of September, 1930,
near the said town of Ione, in the said County of Nye, State of Nevada, did unlawfully,
feloniously, willfully, knowingly and with the intent to kill one Pete Cazan, a human being,
beat and strike the said Pete Cazan on the face and head with a pistol, and did inflict wounds
upon the said Pete Cazan with the said pistol, with the intent then and there to kill the said
Pete Cazan.
54 Nev. 84, 89 (1932) State v. Bardmess
with the said pistol, with the intent then and there to kill the said Pete Cazan.
That the said A. J. (Jack) Bardmess has previously been twice convicted, in this State and
elsewhere, of a crime which under the laws of this State amounts to a felony, as follows,
to-wit:
1. That the said A. J. (Jack) Bardmess, on or about the year 1891, in the County of Logan,
State of Idaho, committed the crime of Grand Larceny, and was thereafter duly tried and
convicted of said offense in the Superior Court of said County of Logan, State of Idaho, and
was thereupon sentenced to serve a term of three (3) years in the Idaho State Penitentiary at
Boise, Idaho; that in execution of said sentence said defendant, A. J. (Jack) Bardmess was
received at said Idaho State Penitentiary, at Boise, Idaho, on November 22nd, 1892, and was
discharged therefrom for expiration of sentence on August 21st, 1895.
2. That the said A. J. (Jack) Bardmess, on or about the 23rd day of December, 1914, in
the County of Nye, State of Nevada, committed the crime of Grand Larceny, and was
thereafter tried and convicted of said offense in the District Court of the Fifth Judicial District
of the State of Nevada, in and for the County of Nye, on the 25th day of March, 1915, and
was thereupon, on March 29th, 1915, sentenced to serve an indeterminate term of from four
(4) to seven (7) years in the Nevada State Penitentiary, at Carson City, Nevada; that in
execution of said sentence said defendant, A. J. (Jack) Bardmess was committed to said
Nevada State Penitentiary on March 29th, 1915, and was discharged therefrom for expiration
of sentence on May 9th, 1919.
All of which is contrary to the form, force and effect of the statutes in such cases made
and provided and against the peace and dignity of the State of Nevada.
The defendant entered a plea of not guilty.
Upon the trial the jury brought in a verdict finding the defendant guilty of assault with
intent to inflict a violent injury, the circumstances showing an abandoned and malignant
heart.
54 Nev. 84, 90 (1932) State v. Bardmess
A motion for a new trial having been denied, the court sentenced the defendant to serve a
term of not more than two nor less than one year for the crime of assault, and adjudged him to
be an habitual criminal and sentenced him to serve a term of not less than twenty years
therefor.
Defendant assigns several alleged errors, and among them is the contention that the court
erred in permitting the district attorney, over the objection of counsel, to ask one Griffin, a
witness in behalf of the defendant, on cross-examination, if he had not told the sheriff that the
affair was the most brutal and horrible thing he had ever seen happen. The witness testified
on direct examination that he did not see the defendant making the assaultthat they were
out of his line of vision. The court permitted the question for the purpose of impeachment.
The witness admitted making the statement to the sheriff.
The objection made to that question is as follows: I object, to that, as irrelevant,
incompetent and immaterial, and upon the further ground that the Defendant was not present,
and it is not binding on the Defendant; and upon the further ground that it is a mere
expression of general opinions; that it is not competent for any purpose in this case, either as
evidence or impeachment, or admission, or anything else.
1. We do not think the court committed error in overruling the objection. It has been often
held that such a general objection presents nothing for the court to act upon. In State v. Jones,
7 Nev. 408, it was said: In criminal as well as in civil cases, the objection should be so
pointed that the attention of the court below may be directed to the exact point, so that the
objection may be then obviated, if it be one of that character. See, also, State v. Mangana, 33
Nev. 511, 112 P. 698.
2. Furthermore, the point now made that the cross-examination was as to a collateral matter
was not suggested at the trial, hence it comes too late. State v. Chapman, 6 Nev. 320; State v.
O'Flaherty, 7 Nev. 153. 3.
54 Nev. 84, 91 (1932) State v. Bardmess
3. It is asserted that the information filed against the defendant does not state facts
sufficient to constitute an offense under the habitual criminal act (section 9976, N. C. L.).
It is said that the information is insufficient in that there are no statements of fact
contained in the information from which the court could determine, as a matter of law, that
the former conviction of the defendant was in fact for a felony, or that under the law the
offenses for which the defendant had formerly been convicted were in fact felonies.
We can see no merit in the contention. In one paragraph it is averred that defendant had
been twice theretofore convicted of crimes which constitute felonies in Nevada, and in the
two succeeding paragraphs it details the time and place of conviction, and follows that up by
averring the passing of sentence by the court and the receipt of the defendant at the
penitentiary and his discharge therefrom.
4. It is not contemplated by the statute that one proceeded against thereunder shall be tried
again for the crimes of which he has been adjudged guilty, but it is proper that he should be
informed of the fact that his former convictions will be invoked that his punishment may be
increased, provided he has in fact been thus convicted by a court having jurisdiction. Lord
Campbell, in Regina v. Clark, Dears. 198, said: A statement of a previous conviction does
not charge an offense. It is only the averment of a fact which may affect the punishment. The
jury do not find the person guilty of the previous offense; they only find that he was
previously convicted of it, as a historical fact.
In People v. Gowasky, 244 N. Y. 451, 155 N. E. 737, 742, 58 A. L. R. 9, in passing upon a
similar point to the one under consideration, the court said: The only thing that is to be tried
before a jury is the identity of the prisoner. By the information he is charged with having been
previously convicted. If he denies it, his previous conviction is the only thing to be tried.
In State v. Edelstein, 146 Wash. 221, 262 P. 622, 630, the court, having under
consideration the point here urged, quoted as follows from a previous decision: "When
the prosecuting attorney has charged, by simple reference to the judgments, that a party
has been convicted three times, he has done all that the law requires, for it is not a
question of guilt or innocence, but merely a question involving a state of the record,
either in the court where the charge is made, or some other court.
54 Nev. 84, 92 (1932) State v. Bardmess
630, the court, having under consideration the point here urged, quoted as follows from a
previous decision: When the prosecuting attorney has charged, by simple reference to the
judgments, that a party has been convicted three times, he has done all that the law requires,
for it is not a question of guilt or innocence, but merely a question involving a state of the
record, either in the court where the charge is made, or some other court. It is necessary, when
pleading a judgment, to say no more than that a judgment (describing it) was rendered in a
certain court at a certain time.
To the same effect are: Green v. Com., 213 Ky. 323, 280 S. W. 1094; Keeney v. Com.,
147 Va. 678, 137 S. E. 478; State v. Asher (Mo. Sup.) 246 S. W. 911. See, also, exhaustive
note in 58 A. L. R. 20.
5. It is contended that the trial court committed prejudicial error during the
cross-examination by the district attorney, by making the following remark, to which counsel
for defendant excepted: It seems to me there has been a lot of questions asked here by both
sides that appear to me to be absolutely immaterial and taking up a lot of time; and if counsel
do not do it, I will step in myself, because we are taking an awful lot of time. I don't say this
particular question, but there are a lot of questions that have no bearing on this particular
crime.
The court, upon exceptions being taken to the remarks, stated: In referring to that, the jury
are not to understand that the Court means that there is a crime committed, that there is an
alleged crime that has been committed. The Court doesn't know whether a crime has been
committed, any more than the jury; and the alleged crime we are investigating now, the Court
doesn't know anything more about that yet, and that it is for the jury to determine from all the
facts in the case.
Counsel for appellant rely upon the cases of State v. Harkin, 7 Nev. 377, and State v.
Tickel, 13 Nev. 502, to sustain his contention. We think the instant case distinguishable from
the cases mentioned. In the instant case the remarks of the court were directed solely to the
apparent undue prolongation of the examination of witnesses by counsel, and was not a
comment upon the evidence.
54 Nev. 84, 93 (1932) State v. Bardmess
the apparent undue prolongation of the examination of witnesses by counsel, and was not a
comment upon the evidence. The court used the word crime in the sense of case. In its
statement thereafter it was made clear to the jury that the court did not intend to convey the
idea that it thought that a crime had been committed. We think the statement of the court
cleared up the matter and that the appellant was in no way prejudiced.
It is also asserted that the taking of the plea of guilty to the charge of prior convictions was
unauthorized.
The record shows that in the chambers of the court, in the presence of the presiding judge,
counsel for the defendant, the district attorney, the clerk of the court, and the official court
reporter, the following proceedings were had:
Mr. Frame: Mr. Bardmess, I spoke to you a minute ago in the court room about these
prior convictions in Idaho and Nevada; and to avoid prejudicing this case I have concluded to
advise you to admit those convictions. Do you want to do that?
Mr. Bardmess: Yes, I will do that.
Judge Dunn: Then you may enter an order that the defendant has plead guilty to the
charge in the information in relation to the conviction and sentence in the Idaho penitentiary
and also to the allegation in the Information as to the conviction and sentence in the Nevada
State Prison.
Section 10906, N. C. L., provides that the plea of guilty by an individual can be put in only
in open court, and though section 8385, N. C. L., authorizes certain acts to be done in
chambers, the entry of a plea of guilty to a crime is not one of them.
In Kline v. Vansickle, 47 Nev. 139, 217 P. 585, which was an action to recover damages
for the alienation of affections, we held that a judge at chambers can have no greater authority
than that conferred by statute.
The supreme court of Colorado so held in Bean v. People, 6 Colo. 100, and also in Scott v.
Stutheit, 21 Colo. App. 28, 121 P. 152, as did the supreme court of California in Larco v.
Casaneuava, 30 Cal. 560.
54 Nev. 84, 94 (1932) State v. Bardmess
6. There having been no authority for accepting the plea of guilty in chambers, the
defendant was on trial upon his general plea of not guilty, and as no evidence was produced
against the defendant as to his prior convictions, there was not and could not have been a
finding or conviction upon that issue.
It is ordered that the order and judgment appealed from be and the same is hereby affirmed
as to the conviction of assault with intent to inflict a violent injury, and that the judgment and
sentence of the defendant upon the charge of being an habitual criminal be and the same is
hereby annulled.
____________
54 Nev. 94, 94 (1932) Bertagnole Et Al. v. Nicholson
BERTAGNOLE Et Al. v. NICHOLSON
No. 2960
February 3, 1932. 7 P.(2d) 597.
1. Constitutional LawPublic Lands.
Statutes providing that nonresidents who drive their sheep into state to graze upon uninclosed public
domain shall pay license fee for all such sheep held unconstitutional because discriminative.
Secs. 6679-6682, N. C. L., provide that nonresidents who drive their sheep into this
state to graze upon uninclosed public domain shall pay a fee of 15 cents per head on all
sheep and procure a license to so graze, make it a misdemeanor to comply therewith, and
authorize the seizure and sale of enough sheep to pay same. Citizens of Nevada are exempt
from the payment of such license on 1,000 head of sheep. It is provided further that citizens
of Nevada shall pay 35 cents per head on each sheep grazed, but this provision shall not
apply to persons who own one or more acres of land in fee simple in the state for each five
sheep so owned, grazed or pastured.
Appeal from Seventh Judicial District Court, White Pine County; H. W. Edwards, Judge.
Action by Leo Bertagnole and others, copartners doing business under the firm name and
style of Bertagnole Brothers, against H. C. Nicholson, as Sheriff and ex officio Collector of
Licenses of White Pine County.
54 Nev. 94, 95 (1932) Bertagnole Et Al. v. Nicholson
and ex officio Collector of Licenses of White Pine County. From a judgment in favor of
plaintiffs, defendant appeals. Affirmed.
V. H. Vargas, District Attorney, and Geo. P. Annand, Deputy District Attorney, for
Appellant:
The constitutionality of sections 6679-6682, N. C. L. must be justified, as we view them,
upon the ground that they are a valid exercise of the taxing power of the state. They are purely
revenue measures and not the exercise of police power. The license provided for is a burden
laid upon the animals per capita. It is a property tax. The grazing of livestock by nonresidents
within the State of Nevada is not sought to be regulated by these sections. 22 Am. and Eng.
Enc. of Law (2d ed.), 917; Cooley's Const. Lim. (6th ed.) 242; 2 Cooley on Taxation (3d ed.),
1127; Shaffer v. Carter, 252 U. S. 50.
Ashby D. Boyle and Chandler, Quayle & Gill, for Respondents:
The act is manifestly discriminatory. No construction of it is possible under which citizens
of Nevada and citizens of other states are accorded like or substantially similar privileges and
immunities. Art. X, sec. 1, Const. of Nevada; Smith v. Mahoney (Ariz.), 197 P. 704;
Hostetler v. Harris, 45 Nev. 43; People v. Harris, 76 Colo. 395; 232 P. 675; art. IV, sec. 2, U.
S. Const.; Douglas v. Stephens, 1 Del. Ch. 465, 476; Buchannan v. Knoxville & O. R. Co., 1
Fed. 324, 334, 18 C. C. A. 122; 12 C. J. 1130, 1152; Gunn v. Minneapolis, etc. R. R. Co., 34
N. D. 418, 158 N. W. 1004; State v. Butterfield Livestock Co., 17 Ida. 441, 106 P. 455.
OPINION
By the Court, Coleman, C. J.:
Respondents, copartners, residents and citizens of the state of Utah, while grazing about
7,700 head of sheep on the public domain in White Pine County, Nevada, not being
landowners in said state, were confronted with a demand from the appellant, as sheriff of
that county, for the payment of a grazing fee of $1,155, pursuant to sections 6679 to
66S2, N. C. L., both inclusive, and a collection charge of $2, and, in the event of failure to
pay the same, with a threat on the part of said sheriff to seize and sell sufficient of said
sheep to pay said amount, and in addition thereto, with a threat to arrest and prosecute
respondents for a violation of law.
54 Nev. 94, 96 (1932) Bertagnole Et Al. v. Nicholson
being landowners in said state, were confronted with a demand from the appellant, as sheriff
of that county, for the payment of a grazing fee of $1,155, pursuant to sections 6679 to 6682,
N. C. L., both inclusive, and a collection charge of $2, and, in the event of failure to pay the
same, with a threat on the part of said sheriff to seize and sell sufficient of said sheep to pay
said amount, and in addition thereto, with a threat to arrest and prosecute respondents for a
violation of law.
Contending that the sections authorizing such seizure and arrest by said sheriff are
unconstitutional, null and void because discriminative, but, to obviate the annoyance,
inconvenience, loss, and expense incident to such seizure and arrest, the respondents paid to
said sheriff, under protest, the amount demanded. Thereafter this action was instituted to
recover the money so paid. Judgment was rendered in favor of plaintiffs.
The constitutionality of the statutes is the only question presented.
Counsel for appellant frankly state that they are of the opinion that the statutes in question
are unconstitutional, but feel that they should be enforced until declared so to be by this court.
The statutes in question provide that nonresidents who drive their sheep into this state to
graze upon the uninclosed public domain shall pay a fee of 15 cents per head on all sheep and
procure a license to so graze, make it a misdemeanor to fail to comply therewith, and
authorize the seizure and sale of enough sheep to pay for such grazing.
Pursuant to the sections in question, citizens of Nevada are exempt from the payment of
such license on 1,000 head of sheep. It is further provided that citizens of Nevada shall pay 35
cents per head on each sheep grazed, but that this provision shall not apply to persons who
own one or more acres of land in fee simple in the state for each five sheep so owned, grazed,
or pastured.
Counsel for appellant suggest that the statutes in question are revenue measures, and as
such are valid pursuant to the rule stated in the following authorities, namely: Shaffer v.
Carter, 252 U. S. 50, 40 S. Ct. 221, 64 L. Ed. 445; 2 Cooley on Taxation {3d ed.),
54 Nev. 94, 97 (1932) Bertagnole Et Al. v. Nicholson
pursuant to the rule stated in the following authorities, namely: Shaffer v. Carter, 252 U. S.
50, 40 S. Ct. 221, 64 L. Ed. 445; 2 Cooley on Taxation (3d ed.), 1127; Cooley, Const. Lim.
(6th ed.) 242; 22 Am. and Eng. Ency. Law (2d ed.), 917.
However it might be if the sections in question were not discriminatory, it is clear that the
rule invoked can have no application in the instant case, for the reason that the statutes clearly
discriminate against respondents, in that they own no land in the state and are not exempt
from such license to the number of 1,000 head of sheep.
The conclusion reached by the learned trial judge is clearly right. The question is no longer
a debatable one. A similar question was before us in Hostetler v. Harris, 45 Nev. 43, 197 P.
697, wherein we held such a discriminatory statute null and void. Since the rendition of that
decision the question has arisen in Colorado, where the supreme court followed the Hostetler
opinion. People v. McPherson, 76 Colo. 395, 232 P. 675.
A few days after the decision in the Hostetler Case, the supreme court of Arizona reached
a like conclusion in Smith v. Mahoney, 22 Ariz. 342, 197 P. 704. To the same effect is the
opinion in Reser v. Umatilla Co., 48 Or. 326, 86 P. 595, 120 Am. St. Rep. 815.
There is no dissent from the view expressed in the cases mentioned.
Judgment affirmed.
____________
54 Nev. 98, 98 (1932) Nordyke v. Pastrell Et Al.
NORDYKE v. PASTRELL Et Al.
No. 2946
February 3, 1932. 7 P.(2d) 598.
1. Death.
Act authorizing action by heirs for adult's death held not superseded or repealed by act requiring
every such action to be brought by deceased's personal representative (secs. 8554, 9194, 9195, N. C. L.).
2. Statutes.
Presumption is against repeals by implication.
3. Statutes.
Presumption against implied repeals is especially strong where the provisions supposed to conflict
were passed at or nearly the same time.
4. Statutes.
When two statutes are so repugnant that both cannot be executed, the latest in position will control.
5. Trial.
In action for death of one struck by automobile, court's action in entertaining and granting, in
chambers and before case was called for trial, defendant's motion to prohibit plaintiff from examining
veniremen on voir dire concerning possible interests in insurance companies held improper and erroneous.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Action by Claribel Nordyke against Margaret Pastrell and others. From an order sustaining
a demurrer to and dismissing amended complaint, plaintiff appeals. Reversed and
remanded.
W. M. Kearney and S. W. Robinson, for Appellant:
It is appellant's contention that the proviso in section 9195, N. C. L., merely sets forth one
of the conditions which must be met if the proceeds of a judgment obtained for the wrongful
death of a person are to be exempted from liability for the debts of the decedent and
distributed as in said section provided, namely, that such action must be maintained by the
personal representative. And, on the other hand, that if the action is brought by the heirs at
law of the decedent, as may properly be done under section 8554, that the proceeds are liable
for the debts of the decedent and are not necessarily distributed in accordance with the
order of distribution set forth in section 9195.
54 Nev. 98, 99 (1932) Nordyke v. Pastrell Et Al.
are not necessarily distributed in accordance with the order of distribution set forth in section
9195.
Counsel are contending for a far-fetched rule of statutory construction when they seek to
have the proviso applying solely to one section of a statute govern every other section relating
to a like subject matter. The proviso in section 9195, by all rules of statutory construction,
relates only to the matters immediately preceding the same within the section within which it
is set forth, and said proviso in no way governs or relates to section 9554, under which this
action was instituted.
An interpretation of these statute sections, together with the legal history thereof, is
concisely set forth by the late Hon. Edward S. Farrington in the case of Perry v. Tonopah
Mining Co., 13 Fed. (2d) 865. Appellant adopts the interpretation given to said sections by
Judge Farrington in toto. See, also, Hartigan v. Southern Pac. R. Co. (Cal.), 24 P. 852.
Appellant contends that the ruling of the lower court refusing to permit appellant to
examine the veniremen upon voir dire relative to any interest which they might have in
insurance companies generally and in the insurance company carrying the policy upon the
automobile which caused the death of the decedent was prejudicial to appellant, in view of
the fact it prevented and would prevent appellant from securing a fair and impartial trial by
jury, and that such an order as made and entered is contrary to all rules relating to trial by jury
and, if permitted, would in effect nullify plaintiff's right to a trial by a fair and impartial jury.
Wilson v. St. Joe Boom Co., 200 P. 884; Beeler et al. v. Butte & London Copper Dev. Co.,
110 P. at 530; Granruse v. Croxton Mng. Co., 113 N. W. 694; Penhansky v. Drake Realty
Construction Co., 190 N. W. 268.
Thatcher & Woodburn (Thomas F. Ryan, of Counsel), for Respondents:
Appellant, as the widow and heir at law of Stafford C. Nordyke, lacked capacity to
maintain an action for damages alleged to have been sustained by reason of his death; and
the district court properly sustained respondents' special demurrer based upon this
ground.
54 Nev. 98, 100 (1932) Nordyke v. Pastrell Et Al.
death; and the district court properly sustained respondents' special demurrer based upon this
ground. In considering this point it must be remembered that at the common law an action
would not lie for the recovery of damages alleged to have been sustained by reason of the
wrongful death of another. Where this cause of action exists at all it is purely a creature of
statute, and such statutes, being in derogation of the common law, are always strictly
construed. Perry v. Tonopah Mining Co., 13 Fed.(2d) 865.
The only cases which we have been able to find in which the court was compelled to face
the situation created by such conflicting statutes are Kramer v. Market Street R. R. Co., 25
Cal. 434, and Perry v. Tonopah Mining Co., supra. In the first-named case the supreme court
of California was quite emphatic and left no doubt as to its opinion and decision that the act
of 1862 of that state was absolutely controlling over that section of the California practice act
which apparently was the equivalent of our section 8553, and held flatly that an action to
recover damages for the death of a minor child could not be brought by the parent in his
capacity as heir, but had to be brought by and in the name of the personal representative.
Since there are no other decisions involving two such sets of statutes, we must turn to the
rules of statutory construction. We believe that under all of these rules sections 9194 and
9195 must be given precedence over section 8554.
The bill of exceptions in this case shows that on the motion to limit voir dire examination
of the jury, testimony was offered by the respondent Donald Maclean that the only insurance
which he carried on the automobile involved was carried in the Occidental Indemnity
Company; that Mr. Dearing, a representative of that company testified as to the names and
addresses of its stockholders; that the list of stockholders of the company, as well as a list of
the jurors was offered in evidence, and showed that no member of the jury venire was a
stockholder in the company.
54 Nev. 98, 101 (1932) Nordyke v. Pastrell Et Al.
was a stockholder in the company. The case was thus brought squarely within the reasoning
of the supreme court of Oregon in the case of Putnam v. Pacific Monthly Co., 130 P. 986, and
it is our contention that under such circumstances appellant's counsel would not be in good
faith if he insisted on injecting the insurance element into this case through his questions to
the prospective jurors.
OPINION
By the Court, Ducker, J.:
This is an action for damages instituted by the appellant, Claribel Nordyke. It is alleged
that such damages were suffered by her by reason of the death of her husband, Stafford C.
Nordyke, whose death was caused on February 2, 1929, by being struck and crushed by the
automobile of the respondent Donald Maclean. It is alleged that at the time of the accident
said automobile was being driven by respondent Margaret Pastrell, at the special instance and
request of respondent Donald Maclean. The respondents interposed a special and general
demurrer to the complaint. The special demurrer raised the objection of appellant's legal
capacity to sue. The point of this objection is that an action such as this, for wrongful death,
should have been brought by the personal representative of the deceased husband instead of
his heir at law. The demurrers were argued and submitted to the court, Honorable L. O.
Hawkins, District Judge, presiding, and were overruled. After issue had been joined on all
matters raised in the pleadings, the case was set down for trial before a jury for March 19,
1930. Immediately preceding the convening of the court, and before the court called the case
for trial, counsel for respondents interposed an oral motion, in chambers, for an order
directing appellant's counsel to refrain from questioning any member of the venire on voir
dire as to whether or not he was a stockholder in any insurance company carrying public
liability in the State of Nevada, or as to whether or not he was an employee of such
company, or interested in any insurance company.
54 Nev. 98, 102 (1932) Nordyke v. Pastrell Et Al.
insurance company carrying public liability in the State of Nevada, or as to whether or not he
was an employee of such company, or interested in any insurance company. The motion was
heard forthwith and the testimony of one Wm. N. Dearing, who claimed to be an employee of
the Occidental Indemnity Company of California, which carried the insurance upon the car of
Donald Maclean, was taken. He testified that said company would be obliged to pay any
judgment rendered against the respondents herein. Thereupon the court entered an order
prohibiting appellant from asking any of the veniremen upon their voir dire any questions
relating to the possible interests which they might have in insurance companies. Appellant
was thereupon given leave to file an amended complaint, which was forthwith filed. The
court gave the respondents time within which to plead to the amended complaint, and
dismissed the jury. Thereafter respondents interposed a demurrer to the amended complaint.
The demurrer raised the question that the appellant did not have legal capacity to sue. The
demurrer was argued and submitted to the court, Honorable George A. Bartlett, District
Judge, presiding. Thereafter said trial judge entered an order on November 12, 1930,
sustaining said demurrer and dismissing the amended complaint. The appeal has been taken
from this order.
Appellant makes three contentions: (1) That appellant had the legal capacity to maintain
the cause of action as the sole heir at law of Stafford C. Nordyke, the decedent. (2) That the
lower court, Honorable George A. Bartlett, District Judge, presiding, in considering the
questions raised by demurrer to appellant's amended complaint, was obliged to follow the law
of the case as laid down by the decision of the same court upon the identical questions raised
by the demurrer to appellant's original complaint, Honorable L. O. Hawkins, District Judge,
presiding. (3) That the lower court erred in entering an order in the above matter preventing
plaintiff from examining veniremen upon their voir dire concerning any possible interest
which said veniremen might have had in insurance companies and in particular in the
insurance company which carried the insurance upon the car of respondent Donald
Maclean.
54 Nev. 98, 103 (1932) Nordyke v. Pastrell Et Al.
might have had in insurance companies and in particular in the insurance company which
carried the insurance upon the car of respondent Donald Maclean.
1, 2. Appellant grounds her contention that she has legal capacity to sue as the sole heir at
law of her late husband, upon section 8554 of the Nevada Compiled Laws, which reads:
When the death of a person not a minor is caused by the wrongful act or neglect of another,
his heirs, or his personal representatives for the benefit of his heirs, may maintain an action
for damages against the person causing the death, or, if such person be employed by another
person who is responsible for his conduct, then also against such other person. If such adult
person have a guardian at the time of his death, only one action can be maintained for the
injury to or death of such person, and such action may be brought by either the personal
representatives of such adult person deceased for the benefit of his heirs, or by such guardian
for the benefit of his heirs as provided in section 54. In every action under this and the
preceding section such damages may be given as under all the circumstances of the case may
be just.
Respondents concede that a surviving wife is an heir of her deceased husband, but contend
that section 8554 has been superseded or repealed by the provisions of chapter 68 of the
Nevada Compiled Laws (sections 9194, 9195). These provisions read:
Section 9194: Whenever the death of a person shall be caused by wrongful act, neglect or
default, and the act, neglect or default is such as would, if death had not ensued, have entitled
the party injured to maintain an action and recover damages in respect thereof then, and in
every such case, the persons who, or the corporation which would have been liable if death
had not ensued shall be liable to an action for damages notwithstanding the death of the
person injured; and although the death shall have been caused under such circumstances as
amount in law to a felony.
Section 9195: The proceeds of any judgment obtained in any action brought under the
provisions of this chapter shall not be liable for any debt of the deceased; provided, he or
she shall have left a husband, wife, child, father, mother, brother, sister, or child or
children of a deceased child; but shall be distributed as follows: 1.
54 Nev. 98, 104 (1932) Nordyke v. Pastrell Et Al.
in any action brought under the provisions of this chapter shall not be liable for any debt of
the deceased; provided, he or she shall have left a husband, wife, child, father, mother,
brother, sister, or child or children of a deceased child; but shall be distributed as follows: 1.
If there be a surviving husband or wife, and no child, then to such husband or wife; if there be
a surviving husband or wife, and a child or children, or grandchildren, then, equally to each,
the grandchild or children taking by right of representation; if there be no husband or wife,
but a child or children, or grandchild or children, then to such child or children and
grandchild or children by right or representation; if there be no child or grandchild, then to a
surviving father or mother; if there be no father or mother, then to a surviving brother or
sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore
named, then the proceeds of such judgment shall be disposed of in the manner authorized by
law for the disposition of the personal property of deceased persons; provided, every such
action shall be brought by and in the name of the personal representative or representatives
of such deceased person; and, provided further, the jury in every such action may give such
damages, pecuniary and exemplary, as they shall deem fair and just, and may take into
consideration the pecuniary injury resulting from such death to the kindred as herein named.
We do not think the circumstances of these statutes are sufficient to sustain the contention
of respondents that the repeal of section 8554 has been effected. There is no expression of
such an intention in sections 9194 and 9195, and the circumstances are not strong enough to
force the conclusion of repeal by implication. The late Judge Farrington, in considering these
statutes in connection with the one permitting a parent to maintain an action for the wrongful
death of a minor child in the case of Perry v. Tonopah Mining Co. (D. C.) 13 F.(2d) 865,
reached the conclusion that our practice act confers a right of action upon the heirs or
personal representatives for the death of a person not a minor.
54 Nev. 98, 105 (1932) Nordyke v. Pastrell Et Al.
We do not think he reached a wrong conclusion in this regard. The right is expressly given in
section 8554. While sections 9194 and 9195, the latter of which limits the right to a personal
representative or representatives, covers the same subject matter on account of which the
heirs of a deceased person are permitted to maintain an action in section 8554, there is little
beyond this to warrant the conclusion that they were intended as a substitute for the latter.
The presumption is against repeals by implication. State v. La Grave, 23 Nev. 25, 41 P. 1075,
1076, 62 Am. St. Rep. 764. In support of this rule recognized and applied in the foregoing
case the court quoted as follows: Repeals by implication are not favored,' said Judge Field,
speaking for the court, in Crosby v. Patch, 18 Cal. 438. Such is the universal doctrine of the
authorities. Whenever two acts, says the supreme court of Pennsylvania, can be made to
stand together, it is the duty of a judge to give both of them full effect. Even where they are
seemingly repugnant they must, if possible, have such a construction that one may not be a
repeal of the other, unless the latter one contain negative words, or the intention to repeal is
made manifest by some intelligible form of expression. Brown v. County Commissioners,
21 Pa. 42.' See, also, Estate of David Walley, 11 Nev. 260; Abel v. Eggers, 36 Nev. 372, 136
P. 100.
3. More force would be given to respondents' contention if sections 9194 and 9195
constituted a later enactment than section 8554, but they were enacted in 1871, while section
8554 made its first appearance in our law in the Revised Laws of 1912. It is true that the
statute of 1871 was amended at that time so as to include parents among the kindred entitled
to the proceeds of any judgment for wrongful death and to give them preference over brothers
and sisters when there were no surviving husband, wife, children, or grandchildren. This,
however, could only serve to make the sections contemporaneous in enactment. If
respondents' contention of repeal by implication were conceded, it would seem that the
legislature had enacted section S554 merely for the purpose of repealing it in the same act
by amending a law which had been in effect ever since 1S71.
54 Nev. 98, 106 (1932) Nordyke v. Pastrell Et Al.
8554 merely for the purpose of repealing it in the same act by amending a law which had
been in effect ever since 1871. It would be too curious to believe that such was the intention.
Under the circumstances the presumption against repeal by implication becomes especially
strong. In 25 R. C. L., p. 930, it is said: The presumption against implied repeals is
especially strong where the provisions supposed to conflict were passed at nearly the same
time.
The reason for such strong presumption is given in Lewis' Sutherland on Statutory
Construction, vol. 1 (2d ed.), as follows: The presumption is stronger against implied repeals
where provisions supposed to conflict are in the same act or were passed at nearly the same
time. In the first case it would manifestly be an inadvertence, for it is not supposable that the
legislature would deliberately pass an act with conflicting intentions; in the other case the
presumption rests on the improbability of a change of intention, or if such change had
occurred, that the legislature would express it in a different act without an express repeal of
the first. Section 268.
4. Stress is placed by respondents on the circumstances of the sections 9194 and 9195
having a later place in the Revision of 1912. They appear in said Revised Laws as sections
5647 and 5648. Emphasis is also given to the circumstance that these sections deal with the
subject in a more minute and definite way. These considerations constitute legitimate indicii
of intent; but standing alone are too slight to overcome the strong presumption against repeal
in this case. Kramer v. Market Street Railroad Co., 25 Cal. 434, cited by respondents, is not
in point. Sections 9194 and 9195 are broad enough to include sections in behalf of minors.
Perry v. Tonopah Mining Co., supra; Pardini v. City of Reno, 50 Nev. 392, 263 P. 768. Yet
the court in the former case did not regard section 8553 of the Nevada Compiled Laws
permitting parents to sue for the wrongful death of a minor, as having been repealed by the
former sections. The legislature of 1913 did not regard the latter section as having been
repealed because it amended the section at that session.
54 Nev. 98, 107 (1932) Nordyke v. Pastrell Et Al.
legislature of 1913 did not regard the latter section as having been repealed because it
amended the section at that session. Stats. 1913, p. 28, c. 35, sec. 2. When two statutes are so
repugnant that both cannot be executed, it is the rule that the latest in positon will control. But
in this case the statutes may well subsist together and we are unwilling to say that this was not
the intention.
The criticism leveled at the complaint by respondents for charging reckless and wanton
conduct upon which a claim for exemplary damages is founded, goes merely to a question of
pleading. The allegation has no bearing upon the question of repeal. We conclude that
sections 8554, 9194, and 9195 are all effective and that the demurrer to the complaint was
improperly sustained. This conclusion makes it unnecesary to determine appellant's second
contention as to the conclusiveness of Judge Hawkins' decision on the demurrer.
5. As to the third contention, we hold that the action of the court in entertaining
respondents' motion and entering the order complained of was improper practice. The trial
court was not authorized to hear evidence and determine the qualifications of jurors in
advance of their examination on their voir dire. Counsel for respondents have not directed us
to any precedent for such practice, and we know of none. The order was so far erroneous.
The order and judgment appealed from are reversed, and the case remanded to the trial
court.
____________
54 Nev. 108, 108 (1932) Anderson v. Anderson Et Al.
In Re ANDERSONS'S Guardianship
ANDERSON v. ANDERSON Et Al.
No. 2962
February 3, 1932. 7 P.(2d) 814.
1. Guardian and Ward.
Guardian cannot be permitted to reap any personal benefit from the estate of his ward, other than
compensation for his services.
2. Guardian and Ward.
Guardian will not be allowed to blend or commingle the assets of the ward with those of his own.
3. Guardian and Ward.
Generally, it is the duty of guardian to invest the funds of the ward so as to produce an income.
4. Guardian and Ward.
Guardian must make annual report of the condition of his ward's estate (sec. 9501, N. C. L.).
5. Guardian and Ward.
Order directing guardian to release and waive her own and her ward's claim against estate for payment
of money, without segregating amount guardian was to receive in settlement of her individual claim from that
which she was to receive as estate of her ward held error (sec. 9501, N. C. L.).
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
In the matter of the guardianship of the person and estate of Hans Christian Anderson, a
minor, wherein Bartine Christina Anderson, his guardian, filed a petition praying that an
agreement with Fred H. Anderson and others, heirs and next of kin of Henry Anderson,
deceased, be ratified, and that petitioner be permitted to release her rights and the rights of her
ward against the estate of Henry Anderson, deceased. From an order approving the agreement
and directing the petitioner to release all claims of the minor, Hans Christian Anderson, a
minor, by John S. Belford, his guardian ad litem, appeals. Reversed and remanded, with
directions.
John S. Belford, for Appellant:
A guardian cannot release the rights of a ward for a consideration which passes to the
guardian and not to the ward.
54 Nev. 108, 109 (1932) Anderson v. Anderson Et Al.
to the ward. Woerner on Guardianship, sec. 60; 12 R. C. L. 1169; Pomeroy on Equity (4th
ed.), sec. 961; Williams v. Francis (Okla.), 166 P. 699.
Stats. 1931, p. 14, does not provide that a parent or guardian has the right to give up the
rights of a child or ward in return for a consideration that does not move to the child or ward,
and in so far as it pertains to guardians is merely a restatement of the common law.
The contract was made between Bartine Christina Anderson in her individual capacity and
the heirs and executrices of Henry Anderson, deceased. It is significant that Mrs. Anderson
was not at that time the guardian of her son, and that she had no authority to act for him or to
waive any rights which he then had. It is also apparent from the contract itself that she was
acting solely in her individual capacity and that the entire consideration moving from the
heirs and executrices moved to her in such capacity and not as guardian.
Chas. L. Richards and Melvin E. Jepson, for the heirs at law and next of kin of Henry
Anderson, deceased, and the executrices of the will of Henry Anderson, deceased:
Bartine Christina Anderson has acted as natural and legal guardian of appellant in an effort
to compromise and settle an alleged claim on the part of her son and ward. Nevada has
positive law authorizing just such act on the part of a guardian. Stats. 1931, p. 14. This case
meets two features provided for therein, namely, the mother is the general guardian appointed
as such by the lower court hearing the petition, and the court approves the compromise.
The consideration of $5,210 and other good and valuable considerations were given
Bartine Christina Anderson in her dual capacity as an individual and as guardian. What
portion was to go for the use and benefit of herself and what portion was to go to the use and
benefit of the ward rests in the understanding between herself and the ward.
54 Nev. 108, 110 (1932) Anderson v. Anderson Et Al.
and the ward. It is no concern of ours if she acts fraudulently in her dealings between herself
and her ward, provided her acts with us were within the scope of her lawful powers. The
presumption is against any fraud toward the ward, that she will act honestly in her dealings
with his right; otherwise she is liable for damage done the ward and her bond is responsible.
OPINION
By the Court, Coleman, C. J.:
Henry Anderson died testate, November 3, 1930. In due time his will was admitted to
probate and letters testamentary issued. Hans Christina Anderson, a minor, and his mother,
Bartine Christina Anderson, asserted claims against the estate. Appellant's claim rests upon
the assertion that he was the natural son of the decedent, recognized by the decedent as such
during his lifetime, but was not mentioned by decedent in his will. His mother's claim is
based upon a contract settling the property rights of herself and decedent, executed at the time
an action of divorce was pending, wherein decedent was plaintiff and Mrs. Anderson was
defendant. On November 26, 1930, Mrs. Anderson entered into an agreement with the heirs
and next of kin and executrices of the will of decedent, whereby, in consideration of the
payment to her of certain sums of money, she agreed to release the estate from all claim she
held, as well as from the claim of appellant.
Pursuant to the terms of said agreement, she applied for and received letters of
guardianship, and on July 1, 1931, filed a petition in the second judicial district court, in and
for Washoe County, praying that said agreement be ratified by the court, and that she be
permitted and allowed to release her rights and the rights of the minor. John S. Belford,
having been appointed guardian ad litem of the minor, objected to the approval of that portion
of the agreement permitting Mrs. Anderson to release the rights of her ward for a
consideration that moved to her individually and not as guardian.
54 Nev. 108, 111 (1932) Anderson v. Anderson Et Al.
the rights of her ward for a consideration that moved to her individually and not as guardian.
After a hearing was had on said petition, the court entered an order granting the same and
permitting the petitioner to release the rights of her ward. It is from this order that appellant
appeals.
The order mentioned reads in part as follows: It is therefore ordered that Bartine Christina
Anderson, guardian of the person and estate of Hans Christian Anderson, a minor, execute
and deliver to the attorneys for the executrices of the said estate of Henry Anderson,
deceased, a release and waiver to said estate of all claim or claims on the part of said Hans
Christian Anderson, a minor, as alleged heir at law or next of kin of said Henry Anderson,
deceased; that Bartine Christina Anderson, petitioner herein and in her individual capacity,
execute and deliver to the attorneys for the executrices of the said estate of Henry Anderson,
deceased, a release and waiver to said estate of all claim or claims she holds against said
estate by virtue of said agreement of November 26, 1930, upon the payment and for the
consideration to be rendered to, said Bartine Christina Anderson as guardian of said minor
and in her individual capacity, as mentioned and set forth in that said compromise and
agreement of November 26, 1930, between Fred H. Anderson, Botella Anderson Ball,
Andrew E. Anderson, Dorothy B. Anderson and Dagmar G. Yoakam, parties of the first part,
and Bartine Christina Anderson, party of the second part, which said agreement is attached to
the petition herein and to which reference is hereby made.
The objection which was made to the entry of the order in question in the lower court and
which is urged on this appeal is that the consideration for the compromise of a claim of a
ward must move solely to the ward, and not to the guardian totally or in part.
Mr. Woerner, in speaking of the duties and responsibilities of a guardian in dealing with
his ward's estate, observes: It results from the nature of the guardians' office that the law
cannot permit them to reap any personal benefit therefrom at the cost of the wards; for
their office is to protect the interests of the wards.
54 Nev. 108, 112 (1932) Anderson v. Anderson Et Al.
office that the law cannot permit them to reap any personal benefit therefrom at the cost of the
wards; for their office is to protect the interests of the wards. This principle needs no citation
of authorities; it is announced in most of the cases adjudicating between guardian and ward,
and is self-evident. Hence, it is said that chancery not only punishes corruption in guardians,
but treats with suspicion all acts and circumstances evincing a disposition on their part to
derive undue advantage from their position. The guardian cannot bind his ward by a contract
injurious to the latter. He cannot trade with himself on account of his ward, nor buy or use his
ward's property for his own benefit, or as agent for another. Woerner on Guardianship, sec.
60.
The same principles are stated in 12 R. C. L. 1169, in the following words:
In no relation, except perhaps that of parent and child or husband and wife, are the
elements of confidence on one side, and active good faith on the other, more essential than in
this. The ward is always a minor, and often so young as to be entirely dependent on his
guardian. The guardian is sometimes the ward's father or mother, and, if not, sustains a
quasi-parental relation. The government itself is, in a sense, the supreme guardian, whom the
individual guardian represents in its solicitude for the welfare of the wards. Guardianship,
therefore, is a trust of the highest and most sacred character. * * *
Dealings of the guardian with the ward's estate must invariably be in the interest of the
ward, and not of the guardian. Any transaction by which it appears that the guardian has made
a gain for himself, other than his allowed compensation, is presumptively fraudulent,
especially if by the same transaction the ward suffered a loss. When, and by what evidence,
the unfavorable presumption the court is compelled to indulge against a transaction between
guardian and ward, from which the guardian derives benefit and the ward suffers injury, will
be removed, it is neither desirable nor possible to define more certainly than to say that the
court must be satisfied that there is an absence of any influence springing out of the
relation, and of any violation of duty by the guardian.
54 Nev. 108, 113 (1932) Anderson v. Anderson Et Al.
be satisfied that there is an absence of any influence springing out of the relation, and of any
violation of duty by the guardian. The act must proceed from the volition of the ward, and he
must have full knowledge of its effect.
But we need not look beyond our own jurisdiction for authority on the point. In Deegan v.
Deegan, 22 Nev. 185, 37 P. 360, 363, 58 Am. St. Rep. 742, it is said: The office of guardian
is one of trust and obligation. He is bound to act for the best interest of his ward, and not for
his own; and, whenever he seeks to gain an advantage at the expense of his ward, such act is
fraudulent.
In 28 C. J. at p. 1154, it is stated that the guardian cannot purchase, use, or in any way deal
with his ward's property for his own benefit or profit. He is bound to protect the interest of his
ward, and may not place himself voluntarily in a position where his own personal interests are
in conflict with those of his ward.
In Stillman v. Young, 16 Ill. 318, the wholesome principle is declared that a guardian
cannot be allowed, by blending the two characters of guardian and administrator, to throw the
administration and management of the two estates into a kind of hotchpotch confusion, and
thereby sustain a misapplication of the funds and interest of the one to the other. See, also,
Foteaux v. Lepage et al., 6 Iowa, 123.
It was the duty of the guardian to keep the money of his ward separate and intact from his
own funds, and invest the same for the best interest of his ward. Deegan v. Deegan, supra.
It was the clear legal duty of a guardian to keep separate all guardianship funds in his
hands, and not to commingle them with his own individual property. Crothers v. Crothers,
123 Md. 603, 91 A. 691, 693.
In Sparhawk v. Sparhawk, 114 Mass. 356, the court said: It is one of the primary duties of
a trustee [which a guardian is] to keep the funds of the trust separate from his private funds,
and not, by mingling them together, to expose the trust funds to the risks to which his
own property may become liable."
54 Nev. 108, 114 (1932) Anderson v. Anderson Et Al.
them together, to expose the trust funds to the risks to which his own property may become
liable.
To the same effect are White v. Parker, 8 Barb. (N. Y.) 48; In Re Allard et al., 49 Mont.
219, 141 P. 661.
Furthermore, it is generally the duty of the guardian to invest the funds of the ward so as to
produce an income. 28 C. J. 1139; 12 R. C. L. 1131.
Our statute (section 9501, N. C. L.) imposes upon a guardian, among other duties, that of
managing the estate for the best interest of his ward, and within one year after his
appointment, and annually thereafter, to render under oath a true account of the property of
the estate and of the money of the ward.
1-4. From the foregoing statements of legal principles, it will be seen: (1) That a guardian
cannot be permitted to reap any personal benefit from the estate of his ward, other than
compensation for his services; (2) that a guardian will not be allowed to blend or commingle
the assets of the ward with those of his own; (3) that it is the duty of the guardian to invest the
funds of his ward so as to produce an income; and (4) that he must make annual report of the
condition of his ward's estate.
5. The order appealed from provides for the payment of a certain sum to Bartine Christina
Anderson as guardian of said minor and in her individual capacity. It does not undertake to
segregate the amount she is to receive in settlement of her individual claim from that which
she is to receive as the estate of her ward. The order permits, in the words of Stillman v.
Young, supra, a blending of the amount she is to receive individually and as guardian, and to
throw the administration and management of the two estates in a kind of hotch-pot
confusion. No specific sum being designated as the amount to go to the ward, the guardian
would not be able to keep the money of her ward separate and intact from her own funds.
Neither could she, as our statute requires, render an annual statement of the estate of the
ward, or invest the same to his advantage.
54 Nev. 108, 115 (1932) Anderson v. Anderson Et Al.
It is clear that the court erred in entering the order it did.
It is ordered that the order appealed from be, and the same is, reversed, and the matter is
hereby remanded for further proceedings in accordance with the views expressed herein.
____________
54 Nev. 115, 115 (1932) Taylor Et Al. v. Ruddell Et Al.
In Re WATERS OF THE HUMBOLDT RIVER STREAM SYSTEM
TAYLOR Et Al. v. RUDDELL Et Al.
No. 2953
February 3, 1932. 7 P.(2d) 813.
1. Waters and Water Courses.
Right to appeal in proceeding for determination of relative rights to use of waters of stream or stream
system is expressly conferred by provisions of water law (Stats. 1913, c. 140, sec. 36, as amended by Stats.
1915, c. 253, p. 381, sec. 6).
2. Waters and Water Courses.
Appeal will not lie in proceeding for the determination of relative rights to use of waters of stream or
stream system until decree is entered (Stats. 1913, c. 140, sec. 36, as amended by Stats. 1915, c. 253, sec. 6).
3. Appeal and Error.
Supreme court could not in any event affirm a judgment or decree when no appeal has been perfected.
Appeal from Sixth Judicial District Court, Humboldt County; Geo. A. Bartlett, Judge
Presiding.
Proceeding for the determination of the relative rights of claimants and appropriators of
the waters of the Humboldt River Stream System and its tributaries, wherein a petition was
filed by John G. Taylor and others, claimants under the Last Chance or Irish-American Canal,
to which a demurrer and answer were filed. From that part of the decision pertaining to the
relative rights of the parties herein to the use of the waters of the Humboldt River flowing or
to flow into the said canal, W. C. Ruddell, Sr., and Ruth Ruddell appeal. On motions to strike
various papers appearing in purported record on appeal, to dismiss the appeal, and to affirm
decree.
54 Nev. 115, 116 (1932) Taylor Et Al. v. Ruddell Et Al.
Motion to dismiss appeal granted, and motion to affirm decree denied.
Hawkins, Mayotte & Hawkins, for Respondents:
This being a special statutory proceeding, no right to appeal exists unless it is expressly
conferred by the statute. Coffin v. Coffin, 40 Nev. 345, 163 P. 731; In Re Water Rights in
Humboldt River, 49 Nev. 357, 246 P. 692.
There is certainly no justification for the contention of appellants that the final judgment or
decree be declared void as to the portion appealed from, for the very apparent reason,
among others, that appellants did not appeal from the final decree, but the appeal is from the
judgment of December 31, 1931, filed and entered January 2, 1931. If such be correct, the
appeal is without force or effect and should be dismissed and the judgment affirmed.
John A. Jurgenson and Cooke & Stoddard, for Appellants:
If respondents' contention that the appeal is taken from the judgment rendered on
December 31, 1930, and not from the Final Decree entered upon June 17, 1931, is
predicated upon lack of clarity in, or proper form of, the notice on appeal, the motion to
dismiss is not well taken upon that ground, because of the provisions of sec. 8905, N. C. L.,
which, in part, provides that no appeal shall be dismissed for insufficiency of the notice of
appeal, etc. We think, however, that the notice of appeal is clear and definite as to the
portion of the judgment and final decree appealed from.
OPINION
By the Court, Ducker, J.:
On June 27, 1930, John G. Taylor, T. C. Johnson, Chris Hansen, Baker & Hart, a
copartnership, C. & L. Arobio, Alice Taylor, and Ada Kafader, filed their petition in the
matter of the determination of the relative rights of claimants and appropriators of the
waters of the Humboldt River stream system and its tributaries, then pending in the
district court of Humboldt County, Nevada.
54 Nev. 115, 117 (1932) Taylor Et Al. v. Ruddell Et Al.
rights of claimants and appropriators of the waters of the Humboldt River stream system and
its tributaries, then pending in the district court of Humboldt County, Nevada. In their petition
they asked, among other things, that they be adjudged to be tenants in common with W. C.
Ruddell to the Last Chance or Irish-American dam and canal, and all water diverted by said
dam from the Humboldt River and flowing or to flow in said canal or ditch, situated in
Lovelock Valley, Pershing County Nevada.
Appellants, W. C. Ruddell and Ruth Ruddell, demurred to the petition and also noticed a
motion to strike it from the files. The demurrer was overruled, and the motion denied. One of
the appellants filed an answer, and respondents filed their reply thereto. The issues were
heard by the court on December 9, 1930. On January 2, 1931, the court filed its decision in
the said Humboldt River adjudication suit. This appeal is from that part of the said decision
pertaining to the relative rights of the parties herein to the use of the waters of the Humboldt
River flowing or to flow into the said Last Chance or Irish-American canal and to the
diverting works and works necessary to conduct said water to the places of use. The notice of
appeal, omitting the names of the state officers and parties to whom addressed, reads as
follows:
You will please take notice that W. C. Ruddell, Sr., W. C. Ruddell and Ruth Ruddell
hereby appeal to the Supreme Court of the State of Nevada from that portion or part of the
judgment herein rendered in the above-entitled Court on December 31, 1930, reading as
follows:
Irish-American or Last Chance Ditch System. It is my opinion that the findings will
show the dates of priority fixed by the State Engineer in said Order of Determination for
appropriators or claimants of water from the Humboldt River, diverted and applied by or
through the Last Chance or Irish-American dam, ditch or canal in the Lovelock Valley,
Pershing county, Nevada, be, and the same are hereby approved, with the modification that
such priorities begin March 15th of each year; that, as among themselves, the
appropriators or claimants to the waters of said Humboldt River, diverted and applied by
or through said Last Chance or Irish-American dam, ditch or canal, are tenants in common
in and to the diverting works and works necessary to conduct the water to the places of
use, and in and to the water to be, and which has heretofore been, diverted and
conducted to the places of use; that there is no priority, as among such appropriators or
claimants, on or to the waters so diverted from said Humboldt River or to any of such
waters flowing in said Last Chance or Irish-American canal or ditch; that W. C. Ruddell,
Sr. and all persons claiming rights or interest under or through said W. C. Ruddell, Sr.,
have no right to divert from said canal or ditch any greater part than 1J4th or 16.64th of
the waters flowing or to flow therein, and that the balance of all such waters flowing or to
flow therein at the partition gate or weir constructed in said Last Chance or
Irish-American canal, and at the head of said Ruddell ditch, shall flow unobstructed down
said canal to the points of diversion of the other tenants in common, petitioners named in
that certain petition filed June 7, 1930.'"
54 Nev. 115, 118 (1932) Taylor Et Al. v. Ruddell Et Al.
the modification that such priorities begin March 15th of each year; that, as among
themselves, the appropriators or claimants to the waters of said Humboldt River, diverted and
applied by or through said Last Chance or Irish-American dam, ditch or canal, are tenants in
common in and to the diverting works and works necessary to conduct the water to the places
of use, and in and to the water to be, and which has heretofore been, diverted and conducted
to the places of use; that there is no priority, as among such appropriators or claimants, on or
to the waters so diverted from said Humboldt River or to any of such waters flowing in said
Last Chance or Irish-American canal or ditch; that W. C. Ruddell, Sr. and all persons
claiming rights or interest under or through said W. C. Ruddell, Sr., have no right to divert
from said canal or ditch any greater part than 1/4th or 16.64th of the waters flowing or to flow
therein, and that the balance of all such waters flowing or to flow therein at the partition gate
or weir constructed in said Last Chance or Irish-American canal, and at the head of said
Ruddell ditch, shall flow unobstructed down said canal to the points of diversion of the other
tenants in common, petitioners named in that certain petition filed June 7, 1930.'
Said judgment being followed by entry of final decree as to such part or portion hereby
appealed from, filed herein on June 17, 1931.
Said final decree filed herein on June 17, 1931 being in favor of petitioners John G.
Taylor, T. C. Johnson, Chirs Hansen, Baker & Hart, a copartnership, C. & L. Arobio, Alice
Taylor and Ada Kafader and against said W. C. Ruddell, Sr., W. C. Ruddell and Ruth
Ruddell.
The foregoing notice of appeal was filed on June 29, 1931, and on June 30, 1931, an
undertaking on appeal was filed. Prior to the taking of the appeal the trial court had made
findings of fact and conclusions of law, and had entered a decree as to the issues made by the
said petition, answer, and reply herein.
The matter is now before this court on motions to strike various papers appearing in what
purports to be the record on appeal, to dismiss the appeal, and for the affirmance of the
decree entered June 17, 1931.
54 Nev. 115, 119 (1932) Taylor Et Al. v. Ruddell Et Al.
the record on appeal, to dismiss the appeal, and for the affirmance of the decree entered June
17, 1931.
1. It will be unnecessary to consider the motion to strike the various papers designated in
the notice of that motion, as we are satisfied that the appeal must be dismissed. It will be
observed that the appeal is from a part of the judgment rendered in the main Humboldt River
adjudication suit on December 31, 1930. It was therefore taken prematurely. By the
provisions of the civil practice act, an appeal may be taken from a final judgment in an action
or special proceeding within six months after the rendition of such judgment. Section 8885,
N. C. L.; Cal. State Tel. Co. v. Patterson, 1 Nev. 150; Coleman v. Moore & McIntosh, 49
Nev. 139, 241 P. 217. But the right to appeal in a proceeding of this kind is expressly
conferred by the provisions of the water law. That part of section 36 of the water law (Stats.
1913, c. 140, as amended by statutes of 1915, c. 253, p. 381, sec. 6), providing for a decree
and appeal therefrom, reads: After the hearing, the court shall enter a decree affirming or
modifying the order of the state engineer. Upon the hearing the court may assess and adjudge
against any party such costs as it may deem just and equitable, or may assess the costs in
proportion to the amount of water right allotted. Appeals from such decree may be taken to
the supreme court by the state engineer or any party in interest, in the same manner and with
the same effect as in civil cases.
2. From the foregoing it appears quite clearly that an appeal will not lie in a proceeding for
the determination of the relative rights to use of the waters of a stream or stream system until
the decree is entered. The appeal taken in this case from the judgment rendered December 31,
1930, is not effective.
3. The motion to dismiss is granted. The motion for an affirmance of the decree is denied.
This court could not in any event affirm a judgment or decree when no appeal has been
perfected.
____________
54 Nev. 120, 120 (1932) Trieloff v. Robb
TRIELOFF v. ROBB
No. 2936
March 5, 1932. 8 P.(2d) 956.
1. Automobiles.
Failure of driver of automobile in plain view to sound horn to warn drunken driver approaching on
left side of highway at high speed held not negligence entitling guest to recover for injuries in collision.
2. Automobiles.
Motorist traveling on state highway had right to presume that it was free from dangers not of an
exceptional nature.
3. Automobiles.
Motorist on state highway is charged with the exercise of that reasonable care which a reasonable and
prudent person would be expected to exercise under the same or similar circumstance.
4. Automobiles.
Refusal of motorist to quit public highway upon demand of guest expressing mere fear of danger not
apparent and based on rumor held not such lack of reasonable care entitling guest to recover for injuries.
Facts were: Guest stated she had heard there was danger of meeting automobiles
driven by drunken drivers on that particular section of highway, and insisted that he turn his
automobile around and return; motorist refused, and car was struck by another driven on
wrong side of road, at high rate of speed, by a drunken driver. When the danger became
apparent, motorist acted as a person of ordinary prudence would have acted.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Action by Amelia Trieloff against Clement D. Robb. From a judgment for defendant,
plaintiff appeals. Affirmed.
N. J. Barry, for Appellant:
The question of the duty an automobile owner owes to his guest, to exercise reasonable
care, has been decided in this state by the decision of this court in the case of Thorne v.
Lampros, 52 Nev. 417. As far as I am able to find, there is not another case in the books like
this one upon the facts. We must, therefore, get to it by analogy and reason.
When a man has a woman out for a pleasure ride and has her eleven miles from home, is
he exercising reasonable care when he refuses to heed the warning of his lady guest and
comply with her request to take her home?
54 Nev. 120, 121 (1932) Trieloff v. Robb
has her eleven miles from home, is he exercising reasonable care when he refuses to heed the
warning of his lady guest and comply with her request to take her home?
Defendant's action in this matter is not clearly defined as mere negligence; it is more than
thatit is active negligence; it is a trespass upon the personal rights of plaintiff; it practically
amounts to duress. Except for the element of intent, it is similar to abduction or kidnaping.
Green & Lunsford, for Respondent:
Where, in the facts as described in the complaint or the amended complaint in this case,
did the defendant himself commit any negligent act? On the contrary, the complaint itself
discloses that as soon as the danger became apparent the defendant did all within his power to
avoid it.
What good would it have done for the defendant to have sounded the horn? The complaint
does not show that there was any obstruction so as to obscure the defendant's car from the
sight of the drunken driver. Failure to sound a horn, if to do so would not have avoided the
injury, is not an act of negligence. Van Dyke v. Johnson (Ore.), 144 P. 540; Berry on Law of
Automobiles (3d ed.), sec. 186.
The true test is whether the circumstances were such that a man of ordinary prudence
would have appreciated that there was danger. Bostwick v. Minn. etc. (N. D.), 51 N. W. 781.
The defendant had the right to presume that others using the highway would observe the
duty they owe to persons using the same highway. Dozier v. Woods, 67 So. 283.
OPINION
By the Court, Sanders, J.:
The appellant, Amelia Trieloff, sued the respondent, Clement D. Robb, to recover
damages for personal injuries alleged to have been sustained by her while riding with him in
his automobile as his invited guest.
54 Nev. 120, 122 (1932) Trieloff v. Robb
riding with him in his automobile as his invited guest. Respondent interposed a general
demurrer to appellant's complaint, which was sustained. Appellant elected to stand on her
complaint, whereupon, on motion, judgment of dismissal of her action was entered, from
which judgment she appeals.
In the complaint, as amended, for cause of action it was alleged that on January 6, 1929,
the defendant, at the city of Reno in Washoe County, Nevada, invited plaintiff to ride with
him in his automobile as his guest; thereupon they proceeded in defendant's automobile along
the public highway from Reno to Verdi; that there was no snow on the ground at Reno, but at
Verdi there was a little snow and the highway was becoming slick and icy in places; that
plaintiff feared if they proceeded up the Truckee River canyon west of Verdi the highway
would become more and more slippery and dangerous; that the 6th day of January, 1929, was
a Sunday; that plaintiff had heard there was danger on Sunday of meeting automobiles driven
by drunken drivers on the highway between Verdi and Truckee; that when they reached Verdi
plaintiff, because of her fears, as aforesaid, insisted that defendant turn his automobile around
and return to the city of Reno, and then and there stated to defendant that she was afraid of
the highway on Sunday and strenuously insisted that defendant not travel the road, but that he
immediately turn his automobile around and return to Reno, where the roads were less
dangerous; that plaintiff was very much in earnest in demanding that defendant turn his
automobile around at Verdi and return to Reno; that she begged and implored the defendant
not to go up the road and explained to him her fears, but that defendant treated her request as
a joke and flippantly refused and treated her request in a light and frivolous manner, his reply
thereto being, Applesauce; that he proceeded to drive on the highway to a point at the west
end of a bridge that crosses the Truckee River immediately west of Verdi; that as the
automobile passed the west end of the bridge they observed a car coming in a northeasterly
direction toward the bridge at a furious rate of speed on the left-hand side of the road;
that defendant immediately shifted his automobile into second gear and forced it as far as
possible to the extreme right-hand side of the road; that defendant had a horn on his
automobile in good workable condition; that defendant negligently failed and neglected
to blow said horn so as far as possible to give the driver of the oncoming car warning of
the presence of his car; that defendant had plenty of time to have blown his horn so as to
have called the attention of the driver of the approaching car to the presence of
defendant's car and in time for the former to have avoided a collision; that the driver of
the approaching car was drunk and took no notice of defendant's car and crashed into it,
striking the same on the left front portion thereof and almost completely demolishing it;
that in the collision plaintiff's neck was fractured, causing a partial paralysis from which
plaintiff has never recovered and which injury left plaintiff with a stiff neck that gives her
constant pain from pressure on the spinal cord of plaintiff's body; that plaintiff was badly
scarred on her head and face, and that her face was permanently disfigured; that plaintiff
had no control over defendant's car and was in no wise responsible for its management or
the course that defendant took in driving his car; that plaintiff was led to believe that the
drive was being taken solely for the pleasure it would give plaintiff, and for no other
object or purpose; that the injuries inflicted upon plaintiff, as aforesaid, were not the
result of any negligence on her part, but were caused by the concurrent negligence of the
drunken driver and the want of reasonable care on the part of the defendant, which he
owed the plaintiff as his guest, and by defendant's negligence in refusing to comply with
plaintiff's request and insistence that defendant turn car around at Verdi and return
plaintiff to Reno and that he not proceed up the Truckee River canyon on said highway,
and by the failure of defendant to heed the request and warning of plaintiff in proceeding
up said road
54 Nev. 120, 123 (1932) Trieloff v. Robb
observed a car coming in a northeasterly direction toward the bridge at a furious rate of speed
on the left-hand side of the road; that defendant immediately shifted his automobile into
second gear and forced it as far as possible to the extreme right-hand side of the road; that
defendant had a horn on his automobile in good workable condition; that defendant
negligently failed and neglected to blow said horn so as far as possible to give the driver of
the oncoming car warning of the presence of his car; that defendant had plenty of time to have
blown his horn so as to have called the attention of the driver of the approaching car to the
presence of defendant's car and in time for the former to have avoided a collision; that the
driver of the approaching car was drunk and took no notice of defendant's car and crashed
into it, striking the same on the left front portion thereof and almost completely demolishing
it; that in the collision plaintiff's neck was fractured, causing a partial paralysis from which
plaintiff has never recovered and which injury left plaintiff with a stiff neck that gives her
constant pain from pressure on the spinal cord of plaintiff's body; that plaintiff was badly
scarred on her head and face, and that her face was permanently disfigured; that plaintiff had
no control over defendant's car and was in no wise responsible for its management or the
course that defendant took in driving his car; that plaintiff was led to believe that the drive
was being taken solely for the pleasure it would give plaintiff, and for no other object or
purpose; that the injuries inflicted upon plaintiff, as aforesaid, were not the result of any
negligence on her part, but were caused by the concurrent negligence of the drunken driver
and the want of reasonable care on the part of the defendant, which he owed the plaintiff as
his guest, and by defendant's negligence in refusing to comply with plaintiff's request and
insistence that defendant turn car around at Verdi and return plaintiff to Reno and that he not
proceed up the Truckee River canyon on said highway, and by the failure of defendant to
heed the request and warning of plaintiff in proceeding up said road, and by defendant's
negligence in failing to blow his horn and give warning to said drunken driver.
54 Nev. 120, 124 (1932) Trieloff v. Robb
plaintiff in proceeding up said road, and by defendant's negligence in failing to blow his horn
and give warning to said drunken driver. In consequence of her injuries, pain and suffering,
medical care, hospital fees, nurses' hire, and loss of employment resulting from said collision,
plaintiff demanded judgment against defendant for the sum of $7,500.
Counsel for plaintiff in error asserts that there are but three questions involved on this
appeal: (1) Was the defendant negligent when he refused to comply with plaintiff's request,
not to say demand, that he immediately return her to Reno, in the face of plaintiff's insistence
that the road up the canyon was dangerous and in the face of her warning that they were liable
to meet a drunken driver and suffer injury? (2) If defendant were negligent in practically
forcing plaintiff to continue with him up the canyon, was he relieved of such negligence by
the intervention of the acts of the drunken driver? (3) Was the alleged negligence of
defendant a question of law to be decided by the court or was it a question of fact to be
submitted to a jury?
If the first question, as propounded, be decided in the negative, it would seem to be
decisive of the case. This court in one case has had occasion to hold that an automobile driver
is liable for injuries received by his guest through his negligence; that an automobile driver
owes his guest the duty to exercise reasonable care in the operation of his automobile and not
to unreasonably expose to danger and injury his guest by increasing the hazard of that method
of travel; that he must exercise the care and diligence which a man of reasonable prudence
engaged in like business would exercise for his own protection and the protection of his
family and property, a care which must be reasonably commensurate with the nature and
hazards attending this particular mode of travel; that ordinary and reasonable care is the
measure of the host's duty. Thorne et al. v. Lampros, 52 Nev. 417, 288 P. 601.
Counsel for plaintiff, in his oral argument, as well as in his opening brief, asserts that no
case like the present in point of its facts can be found in the books, and that only by
analogies and reason can the defendant be held responsible for his client's injury.
54 Nev. 120, 125 (1932) Trieloff v. Robb
in point of its facts can be found in the books, and that only by analogies and reason can the
defendant be held responsible for his client's injury. With all respect to counsel, learned in the
law, the analogies presented and the reasoning employed are not convincing. Conceding the
right of a guest to make known to her host her fear that to continue further along a particular
highway might result in injury from a collision such as that described in the complaint under
review, it cannot be said that as a matter of law the defendant host was bound to anticipate
that further travel on the highway would involve an unreasonable risk to his guest, even
though her fears are shown to have been well grounded. There is nothing in the complaint to
show that the defendant knew or in the exercise of ordinary care should have known that
there would be danger of a collision such as that described in the complaint. The demurrer to
the complaint was properly sustained, in that it does not charge actionable negligence on the
part of the defendant or the violation of any legal right of the plaintiff.
The other questions presented and discussed are questions of fact which have no place on
demurrer.
The judgment is affirmed.
Ducker, J., concurring:
I concur in the order. The main contention of appellant in this case is that the allegations of
the complaint show concurrent negligence on the part of respondent and the driver of the
other automobile which caused the accident and resultant injuries to appellant. The question
for determination then is, Do the allegations of the complaint show negligence on the part of
respondent?
1. The failure to blow the horn is not much insisted upon, nor can it be. The accident
occurred in the afternoon, and the other driver was drunk, and driving on the left side of the
highway at a furious rate of speed. Respondent's automobile was in plain view. Under these
circumstances it is highly probable that the sounding of the horn would not have averted the
collision. It would have given the drunken driver of the on-coming automobile no
knowledge that he did not already have of the position of the respondent's automobile.
54 Nev. 120, 126 (1932) Trieloff v. Robb
would have given the drunken driver of the on-coming automobile no knowledge that he did
not already have of the position of the respondent's automobile. It cannot be inferred,
therefore, that the failure to sound the horn contributed to the accident.
2-4. The point insisted upon as showing negligence on the part of respondent is his refusal
to heed appellant's request and demand that he turn his automobile around and return to the
city of Reno. This request and demand were made, it is alleged, because appellant had heard
that there was danger on Sunday of meeting automobiles driven by drunken drivers on the
highway between Verdi and Truckee. Out of deference for the fears of his guest it would have
been a considerate act for respondent to have acceded to her wishes, but can it be said that his
refusal amounted to a breach of any legal duty resting upon him? He was traveling on a
highway constructed for the business and pleasure of the public. His presence on the highway
was therefore by sanction of the state, and he had the right to presume that it was free from
dangers not of an exceptional nature. He was charged with the exercise of that reasonable
care which a reasonable and prudent person would be expected to exercise under the same or
similar circumstances. If the respondent had kept on going up the highway in the face of
apparent danger and against the protest of his guest, his action would have been legally
censurable. But the mere expression of fear by a guest in an automobile of danger not
apparent and based on rumor is, in my opinion, not sufficient to charge the driver with the
duty of quitting a public highway on demand of the guest. Under such circumstances, one
refusing to discontinue a pleasure trip would be delinquent in manifesting a lack of
consideration for the feelings of his guest, but the essential element of legal liability, namely,
lack of reasonable care, would be absent. When the danger became apparent, respondent
acted as a person of ordinary prudence would have acted under the same or similar
circumstances.
____________
54 Nev. 127, 127 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
SANTINO v. GREAT AMERICAN INS. CO. of NEW YORK
SANTINO v. GLEN FALLS INS. CO.
No. 2954
April 4, 1932. 9 P.(2d) 1000.
1. Insurance.
Insured held entitled under allegations of complaint and reply to prove waiver by insurer of
conditions, performance of which was alleged in complaint and denied by answer.
The complaints, in actions to recover on fire insurance policies, alleged full
performance of covenants of policies, part of which was denied by answers. Replies, in
which most of the allegations as to separate defenses were denied, alleged that insurers, by
communicating to insured lack of title as the sole reason for their denial of liability, waived
all and every other defense of any kind, character, or nature.
2. Contracts.
Waiver of an act is equivalent to an admission that it has been performed.
3. Pleading.
In modern pleading and practice, regard is had for substance and not form.
4. Insurance.
In actions to recover on fire insurance policies, general allegation of waiver and estoppel in replies
warranted proof of waiver as to all issues involving forfeiture by nonperformance of conditions of policies
(sec. 8622, N. C. L.).
Replies, in addition to pleading waiver and estoppel specially to each affirmative
defense, contained general allegation that defendants' denial of liability on sole ground of
title waived all and every defense of any kind, character of nature.
5. Pleading.
Pleadings are to be liberally construed (sec. 8622, N. C. L.).
6. Insurance.
Judgment for recovery on fire insurance policy held erroneous in absence of proof of waiver on
condition of policy as alleged.
7. Estoppel.
Knowledge is an essential element of waiver.
8. Estoppel.
Generally accepted definition of waiver is the intentional relinquishment of a known right.
9. Insurance.
In action on fire insurance policy, wherein insurer set up defense that insured did not have title to
property, testimony of insured that deed was made to his mother to protect himself from creditors and
the United States government, was admissible.
54 Nev. 127, 128 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
from creditors and the United States government, was admissible.
10. Insurance.
Circumstances in testimony of insured indicating fraudulent intent in transferring property to mother
without intention of conveying title merely affected its weight.
Appeal from Second Judicial District Court, Washoe County; George A. Bartlett and B. F.
Curler, Judges.
Separate actions by A. Fred Santino against Great American Insurance Company of New
York and Glens Falls Insurance Company, the actions being consolidated and tried as one.
Judgment for plaintiff in each case, and from orders overruling their motions for new trial,
defendants appeal. Reversed, and new trial ordered.
Harwood & Diskin, for Appellants:
It is earnestly urged that inasmuch as plaintiff in his complaint had specifically alleged and
plead that he had performed each and every condition of the contract of insurance, and
inasmuch as he had alleged and plead other facts which went to make up his cause of action,
and the defendants having denied these facts, the burden was upon plaintiff to prove such
facts, and they could not be established by an alleged estoppel or waiver; that if the plaintiff
relied upon defendants' acts as constituting an estoppel or waiver, it was necessary to plead
such estoppel or waiver in his complaint in the first instance, and that having elected to plead
specifically a performance, he could not establish such performance by the plea of an estoppel
or waiver, not having alleged such in his complaint in the first instance. Waller v. The City of
New York Ins. Co., 164 P. 959; Mercer v. Germania Fire Ins. Co., 171 P. 412; 26 C. J. pp.
496, 497; 25 Cal. Jur. sec. 6, p. 931; Gillon v. Northern Assur. Co., 59 P. 901; Rogers v.
Kimball, 53 P. 648; Goorberg v. Western Assur. Co., 89 P. 130; Greeley v. Noble, 181 P.
666; Hartford Fire Ins. Co. v. Mathis, 157 P. 134; Snell v. North British & Mercantile Ins.
Co., 203 P. 521; Feder v. Midland Cas. Co., 147 N. E. 461; State M. Ins.
54 Nev. 127, 129 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
Co. v. Green, 166 P. 105; Krause v. Ins. Co., 235 P. 406; Barton v. London Guaranty &
Accident Co., 105 P. 865.
We further respectfully urge that the burden of proof was upon the plaintiff to show that
the defendants had knowledge of the facts in reference to the use of the building insured as a
dwelling only and to the use of the building insured as a restaurant only. The plaintiff clearly
assumed the burden, because in his reply he distinctly alleges knowledge of such use by the
defendant prior to the fire. Taylor-Baldwin Company v. Northwestern Fire Ins. Co., 122 N.
W. 396; United Benev. Soc. v. Freeman, 36 S. E. 764; Jackson v. Life & Annuity Assoc., 195
S. W. 535; Union M. Ins. Co. v. Huntsberry, 156 P. 327; Raddock v. Detroit Life Ins. Co.,
177 N. W. 242; Cooley's Briefs on Insurance, vol. 5, p. 3955, par. (c); 19 Cyc. p. 778, par. 3.
In the trial of the case certain questions were asked plaintiff dealing with his ownership of
the property, whether or not he was the owner at the time of the fire, and what plaintiff's
purpose was when he executed the deed. The defendants objected to these questions on
various grounds, and we submit the court erred in permitting plaintiff to answer them. The
purpose which actuated the plaintiff in executing the deed was immaterial, and inasmuch as
the plaintiff had submitted to the defendants a statement under oath stating emphatically that
he was not the owner of the property at the time of the fire, he was estopped to change his
position after getting into court. We submit that the lower court committed error in rewarding
plaintiff for the fraud which, according to his own testimony, he attempted to perpetrate upon
the Government of the United States and his creditors in making the conveyance.
Samuel Platt, for Respondent:
Should the waiver have been pleaded in the complaint, or was it sufficient to plead it by
way of reply? There are two lines of authorities upon this proposition, one of them
contending that it is necessary to plead it in the complaint, and the other that it is sufficient
to plead it in the reply.
54 Nev. 127, 130 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
the complaint, and the other that it is sufficient to plead it in the reply. It is the view of
respondent that the latter method more nearly comports with the liberal practice and
procedure in this state and favors the usual code regulations that technicalities should be
avoided as far as possible in pleadings, providing such avoidance does not interfere with
substantial justice. Secs. 8621, 8622 and 8636, N. C. L.; Ferguson v. V. & T. R. R. Co., 13
Nev. 184; Prezeau v. Spooner, 22 Nev. 88; Laws v. Ross, 44 Nev. 405.
It is well recognized by good authority that a plea of performance of the conditions and
covenants of an insurance policy set up in the complaint is not inconsistent with a plea of
waiver set up in the reply. Cooley's Briefs on Insurance, vol. 5, pp. 4544, 4548; German Ins.
Co. of Freeport, Illinois, v. Arthur L. Shader, 60 L. R. A. 818; Suf Fire Office of London,
England v. Fraser et al. 47 P. 327; Berliner v. Travelers' Ins. Co. 53 P. 922, at 924; Southern
Surety Co. v. Farrell, 244 P. 475; Great American Ins. Co. (N. Y.) v. Scott, 299 P. 1051; 26
C. J. 504, sec. 710, and authorities cited.
If, in accordance with the authorities submitted, plaintiff's allegation of performance in
effect means such performance as has not been waived, then it must follow that a waiver of
acts alleged to have been performed is equivalent to an admission that they were performed.
It seems fundamental that the question of intention as affecting delivery of a deed is very
vital, and that a question propounded to a grantor as to his intention would be considered
quite pertinent. 18 C. J. 205, sec. 100, and authorities cited; Whitney v. American Ins. Co., 59
P. 897.
Upon litigated questions involving a change of title whereby, in insurance cases, a change
of title will operate as a forfeiture of the insurance policy, the construction favors the insured.
Paige on Contracts, col. 5, p. 4570; Phillips v. Farmers Mut. Fire Ins. Co. 174 N. W. 144; 26
C. J. p. 231, sec. 281; Orrell v. Hampden Fire Ins. Co., 13 Gray (Mass.), 431.
There are many authorities to the effect that a colorable conveyance to escape a possible
lien on property, or an attachment, or to frighten off creditors, does not void the
insurance policy.
54 Nev. 127, 131 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
colorable conveyance to escape a possible lien on property, or an attachment, or to frighten
off creditors, does not void the insurance policy. Wiley v. London & L. F. Ins. Co., 89 Conn.
35, 66 Atl. 678; Hogadone v. Grange Mut Fire Ins. Co., 133 Mich. 339, 94 N. W. 1045;
Forward v. Constitutional Ins. Co., 142 N. Y. 382, 25 L. R. A. 637; 26 C. J. p. 528, sec. 741.
The real test of delivery of a deed is as to whether it was the intention of the grantor to
treat the deed as his and to make delivery of the same. It was, therefore, competent to inquire
from the alleged grantor as to his intent. 18 C. J. 199, 200.
Counsel for appellants contend that because the plaintiff had submitted a sworn proof of
loss in which he had stated he was not the owner of the property, he was estopped from
afterwards claiming title to it. The testimony established that the plaintiff was unfamiliar with
the real meaning or purport of the questionnaires submitted to him, and that he did not
understand the answers given at the instance of the attorney to whom he was sent by the
insurance agent. Therefore, no successful estoppel could be established. 21 C. J. 1125;
Leedom v. Ham et al., 48 P. 222.
OPINION
By the Court, Ducker, J.:
These are actions brought by the assured to recover on policies of insurance for loss by
fire. They were consolidated and tried as one. In the first case the property insured was
described as a one-story, shingle roof, frame building and personal property therein, situated
on lots 3 and 4 between First and Second Streets in Verdi, Washoe County, Nevada, and was
insured by the defendant Glens Falls Insurance Company, as stated in the policy of insurance,
while said building was occupied only for restaurant purposes. This policy was for $2,400.
54 Nev. 127, 132 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
In the other case the property insured was described as a shingle roof, frame building, and
personal property therein, situated on lots 1 and 2 between First and Second Streets in Verdi,
Washoe County, Nevada, and was insured by defendant Great American Insurance Company,
N. Y., as stated in policy of insurance, while said building was occupied only for dwelling
house purposes. This policy was for $1,500.
The complaints allege the corporate characters of the defendants, the making of the
contracts of insurance, the payment of premiums at the time of the execution of the contracts,
and that the insurance was in full force and effect at the time of the fire which destroyed the
property. They allege that the property insured was located at the time of the issuance of said
policies, and thereafter until the time of said fire, at the place or places particularly designated
in or on the indorsement or indorsements attached to said policies. The complaints allege that
at the time of said fire the plaintiff was the owner of all the property so insured, and that at all
of said times said buildings were used for the purposes stated in said policies; that all of the
merchandise and fixtures described in said policies were, at the time of said fire, contained in
said buildings. The complaints allege that all of said property was at the time of its
destruction of a greater cash value or market value than the total of all of said insurance. The
complaints allege that the entire amount of said policies of insurance is now due, owing, and
unpaid, and, though demand has been made for the same, defendants have refused, and do
now refuse, to pay the same; that plaintiff gave to defendant due notice and proof of its said
loss in the manner and time required under the terms of the policies of insurance, and had
otherwise performed all of the conditions of the policies on his part, and that more than sixty
days has expired since said proof of loss has been given to and served upon said defendants,
and these actions are commenced within twelve months next after said fire.
The insurance policies alleged to have been executed by defendants and delivered by
them to plaintiff at the time of the payment of the premiums are made a part of the
complaint.
54 Nev. 127, 133 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
by defendants and delivered by them to plaintiff at the time of the payment of the premiums
are made a part of the complaint.
The answers admit the execution of the policies; that the same had not expired at the time
of the fire; that plaintiff gave to defendants notice of loss and at the same time declared to
defendants in writing, under oath, proof that the buildings described in said policies of
insurance and all personal property located therein had been destroyed by fire; that plaintiff
demanded from defendants the amounts stated in said insurance contracts, and that
defendants have refused payment. Most of the other allegations of the complaint as to
performance of covenants are denied in the answer.
The answer in each case sets up several separate defenses. One of these defenses is based
upon the provision in the contract of insurance that the same shall become void if the
interest of the insured in the property be not truly stated herein, or if the interest of the insured
be other than unconditional and sole ownership.
In this connection it is alleged that, prior to the execution of the contract of insurance, the
said plaintiff, by deed duly executed, conveyed all his right, title and interest in said building
and the lot upon which said building was located to Adele Santino, and that by virtue of said
conveyance the said Adele Santino became the owner of all of plaintiff's right, title or interest
in said building and the whole thereof; and that by reason of said conveyance the said
insurance policy and the whole thereof became and was void at the time of said loss; that
defendants had no notice or knowledge, prior to the execution of the contract of insurance, of
said conveyance.
Another separate defense in each answer is based upon the alleged violation of the contract
of insurance by plaintiff in permitting the building insured to be occupied and used at the time
of its loss by fire for a purpose other than that agreed and warranted by him in the policy of
insurance. In this connection it is alleged in each answer that, at the time of the fire, the
building insured was being used and occupied without the consent of defendant for the
purpose of a barroom, saloon, and soft drink parlor.
54 Nev. 127, 134 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
that, at the time of the fire, the building insured was being used and occupied without the
consent of defendant for the purpose of a barroom, saloon, and soft drink parlor.
In the replies, in which most of the allegations as to separate defenses are denied, it is
alleged as follows: Plaintiff further alleges that the sole and exclusive ownership in and title
to said property and premises, during all of the times mentioned in his said complaint and in
his said reply, up to and including the time of the fire and the loss thereof, was in him, the
said plaintiff, and that during all of said times he was the sole and exclusive owner in fee and
otherwise of said title and premises, and the whole thereof, and is now the exclusive owner in
fee to the land upon which said buildings and premises were located prior to the fire. Plaintiff
further alleges that during all of the times mentioned herein, and at the present time, he
always had, and now has, an insurable interest in and to all of the property, real and personal,
mentioned in said complaint on file herein. Plaintiff further alleges that, after his submission
of proof of loss and his demand duly made upon said defendants for the payment to him as in
said policies provided, the said defendants wrote the plaintiff letters dated October 19, 1929,
denying liability for the reason that plaintiff did not have title to the property insured. Copies
of said letters written by the duly authorized adjuster of the insurance companies are set out in
the replies.
It is further alleged in the replies that defendants by and through their said letters and
communications to plaintiff, and communicating to plaintiff the sole and exclusive reason for
their denial of the liability, namely, that plaintiff did not have title to the property insured,
waived all and every other defense of any kind, character, or nature to said actions filed by
plaintiff as aforesaid, and were then and there estopped from relying upon or setting up any
other defense whatever to plaintiff's complaint filed herein. It is further alleged that, because
of said waiver and estoppel, the defendants in law and in equity are foreclosed and
estopped from avoiding or defeating the payment of said insurance for any ground or
reason whatever, save and except the alleged reason that the plaintiff at the time of the
loss did not have title to the property insured.
54 Nev. 127, 135 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
defendants in law and in equity are foreclosed and estopped from avoiding or defeating the
payment of said insurance for any ground or reason whatever, save and except the alleged
reason that the plaintiff at the time of the loss did not have title to the property insured.
It is further alleged that, at or about the time of and prior to the execution of said insurance
policies and contracts, said property was examined and inspected by a duly authorized agent
and representative of said defendants, and upon other times during the life of said policies
and prior to said loss by fire, and that said defendants during the entire life and existence of
said insurance policies were familiar with the use and occupancy and status of said property.
Judgment was rendered in favor of plaintiff in both cases. Defendants have appealed from
the orders overruling their motions for new trials.
On the trial of the case plaintiff introduced in evidence, without objection, the policies of
insurance. He introduced no evidence to prove the allegations of the complaints, denied in the
answers as to his performance of the covenants of the contracts of insurance except the
payment of the premiums. He introduced in evidence the two letters, copies of which are set
out in the replies, in which defendants denied liability for the reason that plaintiff did not
have title to the property insured at the time of the loss. Plaintiff contends that by such denial
of liability defendants waived all other covenants and warranties in the contracts of insurance,
and were estopped to defend except on the single ground of title not being in plaintiff at the
time of the loss; and that it was essential for him to prove the performance only of such
covenants as had not been waived.
Defendants contend that, plaintiff having elected to allege in his complaints full
performance of the contracts of insurance instead of a waiver of the same, the burden was on
him to prove such allegations; and that the allegations of waiver and estoppel pleaded in the
replies in defense only of defendants' affirmative defenses could not be considered by
way of estopping defendants to prove the affirmative facts alleged in the answer, and
that such matters could not be received in proof of the allegations of the complaint.
54 Nev. 127, 136 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
the replies in defense only of defendants' affirmative defenses could not be considered by way
of estopping defendants to prove the affirmative facts alleged in the answer, and that such
matters could not be received in proof of the allegations of the complaint. They contend that
the judgment should be reversed because of the failure of plaintiff to prove the material
allegations of the complaint showing performance of the covenants of the contracts of
insurance, which were denied in the answers.
1. A question presented is whether, under the allegations of the complaint and replies,
plaintiff was entitled to prove a waiver by defendants of the conditions alleged to have been
performed in the complaints and denied in the answers. We resolve the question in the
affirmative. While there is authority to the contrary, it has been held that, in an action on an
insurance contract, waiver may be proved under allegations of performance. Atlantic
Insurance Co. v. Manning, 3 Colo. 224; Southern Surety Co. v. Farrell, 79 Colo. 53, 244 P.
475; Andrus v. Insurance Ass'n., 168 Mo. 151, 67 S. W. 582; Berliner v. Travelers' Insurance
Co., 121 Cal. 451, 53 P. 922, 925.
It has been held that an averment in the complaint of performance of conditions of the
policy must be considered as meaning such as have not been waived, and that therefore a
reply setting up waiver did not constitute a departure from such complaint. Levy v. Peabody
Ins. Co., 10 W. Va. 560, 27 Am. Rep. 598; Cooley's Briefs on the Law of Insurance, vol. 3, p.
2772.
2, 3. The view that waiver may be shown in proof of allegations of performance is not
without reason to support it. The waiver of an act is equivalent to an admission that it has
been performed. It is, in a sense, evidence of performance. The pleadings do not in such a
case, except in form, involve a different issue, and, in modern pleading and practice, regard is
had for substance and not form. On this point the court in St. Louis Insurance Co. v. Kyle, 11
Mo. 278, 49 Am. Dec. 74, said: It [waiver] is merely evidence of a performance. It is not the
case of a substitution of a new contract for the old one; it is not an excuse for
nonperformance, by the prevention or discharge of the defendants; but it is evidence of
performance.
54 Nev. 127, 137 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
contract for the old one; it is not an excuse for nonperformance, by the prevention or
discharge of the defendants; but it is evidence of performance. The party for whose benefit
the condition is inserted, is presumed to understand its import, and his acceptance is the
strongest evidence that the act agreed to be done has been done according to contract. This
reasoning was approved in James v. Mut. Reserve Fund Life Ass'n., 148 Mo. 1-10, 49 S. W.
978.
It was stated in Pace v. Insurance Co., 173 Mo. App. 485-507, 158 S. W. 892, 898, that:
It has been the rule in this state from a very early date up until the present time, in actions
upon insurance policies, to admit proof of waiver without requiring the waiver relied on to be
alleged in the pleadings. In Berliner v. Travelers' Ins. Co., supra, the court quoted from May
on Insurance as follows: The weight of authority seems to be that, under an allegation of the
performance of a condition, proof of a waiver is admissible without alleging the waiver.
A contrary view is expressed in 26 C. J. 504, sec. 710. It is stated in the text: While there
is authority to the contrary, yet in most jurisdictions in the absence of statute regulating the
subject, if plaintiff relies on estoppel or waiver to avoid a plea of breach of warranty or
condition, he must specially plead it by replication or reply, unless he has already alleged it in
his declaration or complaint.
But be the weight of authority as it may on this point, it cannot affect our ruling, for, as we
have pointed out, waiver is pleaded in the reply. In German Ins. Co. v. Shader, 68 Neb. 1, 93
N. W. 972, 60 L. R. A. 918, plaintiff alleged that all the conditions on his part had been
performed, and to meet a defense based on conditions of the policy he was permitted to
amend his petition by inserting the allegation that defendant had waived the requirement for
prepayment of the premium. It was held that this was not inconsistent with allegations of
performance, and that there would have been no departure from the cause of action set up in
the petition if waiver had been set up in the reply.
54 Nev. 127, 138 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
up in the petition if waiver had been set up in the reply. See, also, Sun Fire Office of London,
England v. Fraser et al., 5 Kan. App. 63, 47 P. 327.
The contention of defendants that the waiver and estoppel pleaded in the replies could only
be applicable to the special defenses set forth in defendants' answers and would not relieve
plaintiff from proving the allegations of the complaint, denied in the answers, is highly
technical.
4. While waiver and estoppel are pleaded specially in the replies to each affirmative
defense, there is a general allegation in the replies, as we have previously pointed out, that
defendants' denial of liability on the one ground of title waived all and every defense of any
kind, character or nature to said actions. We think, under this allegation, in view of the
liberal procedure enjoined by our code, that waiver could be proved as to all the issues
involving forfeiture by nonperformance of conditions of policies.
Section 8622, N. C. L., provides: 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.
5. Pleadings are to be liberally construed, and, in doing so in this instance, it is difficult to
see how defendants could be injured. They had ample notice from the pleadings that waiver
would be relied on.
6-8. Defendants contend that there was no proof of waiver. Their counsel concedes that
during the trial in the lower court they stated that defendants waived any right to question the
payment of the policies on any ground, except title, but contend that such admission was
based upon the assumption that plaintiff would prove the allegation in the replies that
defendants during the entire life and existence of said insurance policies, were familiar with
the use and occupancy and status of said property; and that no such proof was offered. We
think that this contention is well taken, and that the case must be reversed on this ground.
54 Nev. 127, 139 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
case must be reversed on this ground. No evidence was offered to prove that the use of the
buildings for the purpose of a barroom, saloon, and soft drink parlor was known to the
defendants when they denied liability on the score of title in Adele Santino. Knowledge is an
essential element of waiver. A party cannot waive something unknown to him. The generally
accepted definition of waiver is the intentional relinquishment of a known right. 27 R. C. L.
904; 21 C. J. 1116. The very great weight of authority is to the effect that the knowledge of
the insurer of a breach of condition in the policy is necessary to a waiver of its forfeiture. In
19 Cyc. at page 778, 779 it is stated: It is a fundamental principle of the doctrine of waiver
applicable equally to insurance as to other branches of the law, that a waiver to be effective
against the party making it must have occurred with full knowledge of all material facts. For
example it has been repeatedly held that the violation of the condition must have been known
to the insurer or a waiver cannot be asserted by the insured. (See note 24 on page 779 citing
decisions from a large number of states in support of the foregoing statement of the rule.)
In the case of Mrs. Annie Snyder v. Supreme Ruler of the Fraternal Mystic Circle, 122
Tenn. 248, 122 S. W. 981, 45 L. R. A. (N. S.) 209, cited by plaintiff in support of his
contention that defendants, having expressly declared a single reason for refusing to pay
plaintiffs insurance, waived every other ground of objection, the principle is stated that
knowledge on the part of an insurer is essential to waiver. The court said: A fraternal benefit
society which refuses to pay a claim on the ground that the member was addicted to the
excessive use of narcotics cannot subsequently set up the defense that the claim is on behalf
of the divorced wife of the member, contrary to its by-laws, which fact it knew at the time it
refused payment. (The italics are ours.) See, also, United Ben. Soc. of America v. Freeman,
111 Ga. 355, 36 S. E. 764; Jackson v. Life & Annuity Association (Mo. App.), 195 S. W.
535; Union M. Insurance Co. v. Huntsberry, 57 Okl. 89, 156 P.
54 Nev. 127, 140 (1932) Santino v. Great American Insurance Co.; Santino v. Glens Falls
Ins. Co.
P. 327; Ruddock v. Detroit Life Ins. Co., 209 Mich. 638, 177 N. W. 242; Levy v. Peabody
Ins. Co., supra; Pace v. Ins. Co., 173 Mo. App. 485, 158 S. W. 892; Cooley's Brief on the
Law of Insurance, vol. III, p. 2460, 2461.
9. Defendants concede that the evidence is sufficient to support the findings that, at the
time of the execution of the insurance policies and at the time of the fire and loss, the title to
the property was in plaintiff, but contend that the court erred in permitting plaintiff to answer
certain questions over defendants' objections touching his title to the property. When these
questions were asked the defendant had introduced in evidence a certified copy of the deed
conveying the property from plaintiff to Adele Santino, his mother, and the proofs of loss
sworn to by plaintiff where in he stated under oath that he did own the property, and that the
title was held by said Adele Santino. In answer to these questions plaintiff testified that at the
time he signed the deed he did not intend to deed the property to her; that he did not intend to
deliver the deed to her; that he signed the deed to protect himself from creditors who were
threatening to sue, and against the possibility of the United States government with whom he
had had trouble over his manner of using the property, getting the property. He testified that
he was the sole owner of the property. There was other testimony tending to show that there
was no delivery of the deed. We think the testimony was admissible.
10. Defendants claim that plaintiff was estopped from giving such testimony on account of
the foregoing circumstances indicating a fraudulent intent on his part. We think these
circumstances merely affected the weight of his testimony, which was for the trial court.
The judgments and orders are reversed and a new trial ordered.
____________
54 Nev. 141, 141 (1932) Ferguson v. Camino Et Al.
FERGUSON v. CAMINO Et Al.
No. 2955
April 5, 1932. 9 P.(2d) 1005.
1. Justices of the Peace.
On certification of pleadings in justice's court action involving ownership of land, jurisdiction of
district court was original and not appellate (sec. 9268, N. C. L.).
2. Justices of the Peace.
Jurisdiction of district court in trespass action transferred from justice's court because involving
ownership of land, being original in character, was not affected by finding that land was in adjoining county
to one where action was commenced (sec. 9268, N. C. L.).
Appeal from Third Judicial District Court, Eureka County; E. P. Carville, Judge Presiding.
Action by Martin Ferguson against Mike Camino and another, commenced in justice's
court and transferred to district court. Judgment for plaintiff, and defendants appeal.
Affirmed. (Coleman, C. J., dissenting.)
Howard E. Browne, for Appellants:
Under the statutes of this state, and the law applicable thereto, it is sincerely contended
that the district court never acquired jurisdiction of the parties nor of the cause of action, to
authorize, justify or entitle it to decide said case on the merits, and that the most that said
court had authority to do was to order said action dismissed with costs to the defendants.
Secs. 9262 and 9319, N. C. L.
W. R. Reynolds, for Respondent:
This case was not in the district court on appeal. Therefore the jurisdiction of that court is
limited only by the law relating to its general jurisdiction. Sec. 8793, N. C. L., provides when
a judgment of dismissal may be entered, and in what cases the judgment must be on the
merits. If appellants did not wish to submit to the jurisdiction of the courts of Eureka County,
then, under the answer which they filed, they had the right to demand that the case be
transferred to Lander County for trial, under the provisions of section 8572, N. C. L.
54 Nev. 141, 142 (1932) Ferguson v. Camino Et Al.
But in the absence of any such demand the district court was required by law to decide the
case on the merits, even if it were found that the land was located in Lander County. Elam et
al. v. Griffin, 19 Nev. 442.
OPINION
By the Court, Sanders, J.:
This action was begun in the justice court of Eureka township in and for Eureka County, to
recover actual and exemplary damages and an attorney's fee for the alleged unlawful herding
and grazing of defendant's sheep upon plaintiff's land.
The case was formerly before us on certiorari, wherein it was held that, while the justice
court had jurisdiction over the subject matter and of the parties, a default judgment in a
justice court, without proof of amount of damages, was in excess of jurisdiction. Camino v.
Lewis, 52 Nev. 202, 284 P. 766. Aside from other procedural steps taken after the ruling on
certiorari, the defendants filed a verified answer to the complaint, in which they averred that
plaintiff was not the owner of the land described in his complaint, and that the land was
situated in Lander County and not Eureka County. The answer made it necessary, under
section 9268, N. C. L., for the justice to suspend all further proceedings and certify the
pleadings to the clerk of the district court of Eureka County, which was accordingly done at
the instance of defendants. After the case had been transferred to the district court it was tried
to the court without the assistance of a jury upon issues made by the pleadings as certified.
After a full hearing the court found plaintiff to be the owner of the land described in his
complaint; that the land was situated in Lander County, and that defendants were guilty of the
alleged trespass. Upon its findings of fact and conclusions of law, the court, over defendants'
objections, rendered judgment in favor of the plaintiff and against the defendants, for the sum
of $20 damages and for the additional sum of $200 attorneys' fee, together with costs
taxed at $1S0.65.
54 Nev. 141, 143 (1932) Ferguson v. Camino Et Al.
$20 damages and for the additional sum of $200 attorneys' fee, together with costs taxed at
$180.65.
1, 2. The defendants have appealed from the judgment on the judgment roll alone. The
single question presented is one of jurisdiction. Defendants contend and insist that, the
district court having found the land trespassed upon to be in Lander County and not in Eureka
County as alleged in the complaint and denied in the answer, the district court had no
jurisdiction other than to dismiss the action. We are not in accord with this contention. It is
conceded or must be conceded that, upon the filing of the defendants' answer, the case was
properly transferred to the district court. Tobin v. Gartiez, 44 Nev. 179, 191 P. 1063. From
the time of the filing of defendants' answer the district court had over the action the same
jurisdiction as if it had been commenced therein. Section 9268, N. C. L. On the certification
of the pleadings its jurisdiction was original and not appellate. 15 Cal. Jur. 471; 35 C. J. 566,
567. The purpose of section 9268 is to secure to the district court the right to hear and
determine the causes that are placed within its jurisdiction by the constitution, art. 6, sec. 6.
Dungan v. Clark, 159 Cal. 30, 112 P. 718. The result of the argument advanced on the part of
the defendants is that, the court having found that the land alleged to have been trespassed
upon was in Lander County, the justice court had no jurisdiction over the subject matter;
therefore none was acquired by the district court on removal. We concede that, if the justice
court did not primarily have jurisdiction to hear and determine the action, the certification of
the pleadings to the district court did not confer jurisdiction. 35 C. J. 566. In this case,
however, the ruling on certiorari established that the justice court primarily had jurisdiction
over the subject matter and of the parties. Under the express provision contained in section
9268, N. C. L., it had the same jurisdiction over the action as if it had been commenced
therein. Consequently the jurisdiction of the district court, original in character, was not
affected by its finding that the land trespassed upon was in Lander County.
54 Nev. 141, 144 (1932) Ferguson v. Camino Et Al.
by its finding that the land trespassed upon was in Lander County. Counsel for defendants
complain that to uphold the judgment would be to deprive defendants of their statutory right
to have the case tried in the county were the land was located. If plaintiff brought the action in
the wrong county, as alleged in the defendants' answer, their remedy was in the justice court,
but, they having procured the transfer of the case to the district court, claiming that its
determination necessarily involved title to land, they cannot be heard to assert that the district
court lost jurisdiction because of its finding that the land trespassed upon was located in
Lander County.
The judgment is affirmed.
Ducker, J.: I concur.
Coleman, C. J., dissenting:
This is an action for actual damages for trespass upon certain lands. The complaint alleges
that the land in question is owned by plaintiff, is situated in Eureka County, Nevada, and that
the defendants had wantonly and unlawfully trespassed upon it to the plaintiff's damage in the
sum of $200. These allegations gave the justice of the peace jurisdiction to hear the case.
The defendants moved to dismiss the action for the reason that the land was in Lander
County. This motion was denied, and judgment was rendered in favor of plaintiff, which was
set aside on certiorari. Camino v. Lewis, 52 Nev. 202, 284 P. 766. Thereafter, pursuant to
order of court, the defendants filed an answer denying the title of plaintiff to the land and that
it is situated in Eureka County.
Section 9262, N. C. L., provides that actions in the justice's court in cases of injury to
person or property must be commenced in the township where the injury was committed.
Upon the filing of the answer the justice certified the case to the district court.
The defendants have at all times contended that the action should have been commenced
in Lander County, where the district court found the land to be situated, and that neither
the justice of the peace in Eureka County nor the district court of that county had
jurisdiction to do more than dismiss the action for want of jurisdiction when it appeared
that the land is in Lander County.
54 Nev. 141, 145 (1932) Ferguson v. Camino Et Al.
where the district court found the land to be situated, and that neither the justice of the peace
in Eureka County nor the district court of that county had jurisdiction to do more than dismiss
the action for want of jurisdiction when it appeared that the land is in Lander County. We
held in Tobin v. Gartiez, 44 Nev. 179, 191 P. 1063, that the facts and not the answer
constituted the test of jurisdiction in such a situation.
In my opinion the contention of the defendants is well founded. This view is sustained, in
my opinion, by both reason and authority. Hallett, J., in Hummel, Adm'r v. Moore (C. C.), 25
F. 380, 381, in considering a similar case, said: * * * Defendant contends that in this court
the action is subject only to the jurisdiction of this court, without reference to the jurisdiction
of the county court, because it is provided in the act of 1875 (18 Stat. 471) that upon removal
of a cause to a circuit court of the United States, and upon filing a copy of the record therein,
the cause shall then proceed in the same manner as if it had been originally commenced in
the said circuit court.' The language of the act is very general, but it must not be taken to
enlarge the scope of an action removed from a state court into a circuit court. It is a general
rule of civil procedure that in respect to the object of a suit, and the relief to be granted in it, it
will retain its character and individuality from beginning to end. The character of a suit, and
the limitations and restrictions affecting it, when it is begun, remain with it in all jurisdictions
through which it may pass. Accordingly it was held in Louisiana, in a suit begun in a parish
court for an amount exceeding the jurisdiction of that court, and afterwards transferred to a
district court of larger jurisdiction, that it could not be maintained in the latter court, because
of the limitation in the court in which it was begun. Parker v. Shropshire, 26 La. Ann. 37.
And in cases appealed from justices of the peace to courts of larger jurisdiction, limitations
upon the jurisdiction of justices of the peace must be enforced in the appellate court. Allen v.
Belcher, 3 Gilman [Ill.] 594; Billingsly v. State, 3 Tex.
54 Nev. 141, 146 (1932) Ferguson v. Camino Et Al.
594; Billingsly v. State, 3 Tex. App. 686; Cooban v. Bryant, 36 Wis. 605. In all essential
features the case is subject in this court to the limitations and restrictions which would have
been applicable in the county court if it had not been removed into this court. See, also,
Smith v. Clark, 38 Colo. 89, 88 p. 636.
I think, too, this court has determined the point in two cases. In State v. Breen, 41 Nev.
516, 173 P. 555, we said: * * * It is also well established that the jurisdiction of an appellate
court on appeal from a justice's court is entirely derivative, and it acquires no jurisdiction to
try a case on appeal from a justice's court where the later is without jurisdiction to entertain
the case and render judgment therein. Fitchett v. Henley, 31 nev. 341, 102 P. 865, 104 P.
1060.
I do not think the fact that the case just mentioned was one in which an appeal was taken
lessens its weight as an authority. The reasoning is just as applicable to the situation here
presented.
Courts have only such jurisdiction as is conferred by law. The parties cannot, even by
consent, extend that jurisdiction.
____________
54 Nev. 147, 147 (1932) Manhattan Ins. Co. v. Central Garage
MANHATTAN FIRE & MARINE INS. Co. v.
GRAND CENTRAL GARAGE
No. 2940
April 5, 1932. 9 P.(2d) 682.
1. Bailment.
Bailee had burden of proving that goods had not been lost or damaged through any fault of his.
2. Automobiles.
In action to recover against garage owner storing automobile for hire, proof that employee was acting
outside scope of employment when automobile was wrecked is no defense.
3. Automobiles.
Garage owner storing automobile for hire was liable for damages regardless of fact that employee
who wrecked it was acting without the scope of his employment at the time.
4. Automobiles.
Evidence held sufficient to sustain finding that employee of garage storing automobile for hire was
acting as servant for owner at time he wrecked it, and to overcome presumption of negligence on part of
garage owner.
5. Appeal and Error.
Appellate court cannot disturb a finding supported by substantial evidence.
Appeal from Second Judicial District Court, Washoe County, Geo. A. Bartlett, Judge.
Action by Manhattan Fire & Marine Insurance Company against Grand Central Garage.
From a judgment for the defendant and an order denying its motion for a new trial, plaintiff
appeals. Affirmed.
Ernest S. Brown, for Appellant:
The bailee is liable to the bailor for the loss of the automobile, irrespective of whether or
not the destruction of it was due to the negligence of an employee acting within or without
the scope of his employment, for the plaintiff was not suing for damages resulting from the
tort of defendant's servant, but was suing defendant for damages resulting from the breach of
the contract to store the automobile. 6 C. J. 1153, 1154, n. 99, a, b.
And when the bailor has elected to sue the bailee on the theory that the damages were the
result of a breach of contract entered into between the bailor and the bailee, the plea of
defendant that the damages were caused to the subject of the bailment by its employee
while acting outside the scope of his employment is no defense.
54 Nev. 147, 148 (1932) Manhattan Ins. Co. v. Central Garage
breach of contract entered into between the bailor and the bailee, the plea of defendant that
the damages were caused to the subject of the bailment by its employee while acting outside
the scope of his employment is no defense. Corbett v. Smeraldo (N. J.), 102 Atl. 889; Evans
v. Williams, 232 Ill. App. 439; McLain v. West Va. Automobile Co., 79 S. E. 731; Roberts v.
Kinley et al., 132 P. 1190; Handley v. O'Gorman, 41 R. I. 242, 121 Atl. 399; Medes v.
Hornbach, 6 Fed. (2d) 711.
When the plaintiff has made a prima facie case it then becomes the duty of the defendant
to prove by a preponderance of evidence that the damage to the automobile was not due to his
failure to exercise ordinary care, and where there is a conflict of evidence, the case stands the
same as though no evidence to that effect had been offered. Donlan v. Clark, 23 Nev. 203;
Beck v. Wilkins-Ricks Co. (N. C.), 102 S. E. 313.
The proof introduced by defendant was insufficient to overcome the presumption of
negligence after a prima facie case had been made by plaintiff.
Le Roy F. Pike, for Respondent:
If a contract is alleged and proved and it is shown to be a bailment, as this undisputably
was, then all of the elements of a bailment apply, and if it is shown that the destruction of the
property was caused by the act of the servant of the bailee, acting without the scope of his
employment, still the bailor could not recover.
In the cases cited by appellant the actions were brought by the bailor against the bailee, on
complaints alleging breach of contract. Whereas in the instant case the suit is brought by the
insurance company, which, as the assignee of the bailor, alleges damages due for a tort. The
difference is recognized in the principle cases cited by counsel in support of his contention
that the principles applicable to bailment do not apply in this case; namely, Corbett v.
Smeraldo, 102 Atl. 889, and Evans v. Williams, 232 Ill. App. 439.
54 Nev. 147, 149 (1932) Manhattan Ins. Co. v. Central Garage
Hence we say that if the bailor himself had brought the action and had filed a complaint
for breach of contract, instead of the insurance company filing the suit for damages sounding
in tort, there might be some merit to appellant's contention, but that even under his own
citations the rule he contends for cannot be applied in the case at bar.
The rule is not disputed that when the bailor has established the bailment and the loss of
property through negligence or otherwise, then the bailee must show reasonable care in the
bailment to avoid liability. This we contend the Grand Central Garage proved conclusively.
The most that appellant can contend is that there was a conflict of evidence on some points,
and if this be true, under the well-established rule of this court the decision of the lower court
will not be disturbed.
OPINION
By the Court, Ducker, J.:
This action was instituted in the lower court by appellant to recover damages from the
respondent, resulting from the negligence of an employee of the latter in driving an
automobile belonging to a patron of the respondent. The automobile was wrecked by
colliding with a power pole and fire plug in the city of Reno. Appellant was the insurer of the
automobile, and paid damages to the owner in the amount of $656.30. The appellant was
subrogated to the rights of the owner.
The action was tried by the court without a jury. The appeal is from the judgment rendered
and from an order denying a motion for a new trial. The facts in the main are undisputed.
At the time of the accident respondent was a partnership engaged in the business of
conducting a public garage in the city of Reno, and maintained a day and night service. On
December 5, 1928, John A. Capper placed his Packard 5-passenger sedan automobile with
the respondent for storage and the service usually connected therewith, for the payment of
$10 per month.
54 Nev. 147, 150 (1932) Manhattan Ins. Co. v. Central Garage
Under the conditions of the contract, the respondent, Grand Central Garage, was to store the
car, service it, and deliver it to the home of Mrs. Marion Dowd, Capper's daughter, or her
mother, Mrs. Capper, when ordered by either of them to do so, and, if either brought the car
to the garage, she was to be taken home by the garageman and the car returned to the garage.
This was the entire contract, and was the usual service given other patrons of the respondent.
The automobile was kept in the garage under the foregoing contract to and including the
morning of March 18, 1929. One William Tener, known to Mrs. Dowd and her mother as
Fred, was an employee of the respondent during all of the time mentioned. He was the
nightman at the garage. His hours of work were from 6 p. m. to 6 a. m., and the nature of his
services was to attend to the business of respondent as heretofore stated. At about 9 o'clock
on the evening of March 17 Mrs. Capper called up the garage by telephone. The call was
answered by Sam Frank, one of the owners of the garage, and Mrs. Capper told him she
would like to speak to Fred. Frank called Tener to the telephone. As a witness for plaintiff,
Mrs. Capper testified that she told Fred over the telephone at this time that she wanted the car
delivered at 8 o'clock the next morning at the station for the train coming from San Francisco,
for Mrs. Dowd, her daughter, and that Tener said, All right. William Tener, as a witness for
the plaintiff, testified that when he went to the telephone Mrs. Capper said, That being that I
done all the extra work for Mrs. Dowd, would I go down to the early morning train and meet
Mrs. Dowd when she came in. On being asked by counsel for plaintiff if she said the 8
o'clock train in the morning, he answered, Absolutely not; didn't specify, said the early
morning train. This constitutes the only conflict in the entire evidence.
Some time in the early morning of March 18 Tener took the Capper automobile out of the
garage and wrecked it.
54 Nev. 147, 151 (1932) Manhattan Ins. Co. v. Central Garage
The answer denied the allegations of the complaint, and alleged that said William Tener
while driving the said automobile claimed to have been owned by said John A. Capper, was
acting in the employ of said John A. Capper or his agent, and was not under the influence or
control of the defendant or in the employ of the said defendant at said time. The trial court
found that at the time of the accident said William Tener was acting as the agent of the said
John A. Capper and Mrs. John A. Capper, his wife, and that the said William Tener was not,
at the time of the accident in which said automobile was damaged, in the employ of the
defendant, Grand Central Garage, and was acting outside of the scope of his duties as an
employee of the Grand Central Garage.
The errors assigned amount to a claim by appellant that the evidence is insufficient to
support the finding upon which the judgment is based. In this regard appellant contends that
its action is for a breach of the contract to store the Capper automobile, and that the defense
that respondent's servant was not acting within the scope of his employment is not available,
and that, after appellant had proved a prima facie case by showing the contract, and the failure
of respondent to deliver the automobile on demand, the burden was on the respondent to
show that its loss or damage was not due to its negligence. This contention presents a correct
statement of the law applicable to an action for breach of a contract of bailment for hire. The
rule is stated in 6 C. J. page 1158: The rule in the more modern decisions is that the proof of
loss or injury establishes a sufficient prima facie case against the bailee to put him upon his
defense. Where chattels are delivered to a bailee in good condition and are returned in a
damaged state, or are lost or not returned at all, the law presumes negligence to be the cause,
and casts upon the bailee the burden of showing that the loss is due to other causes consistent
with due care on his part.
The reason for the rule is given in Davis & Son v. Hurt, 114 Ala.
54 Nev. 147, 152 (1932) Manhattan Ins. Co. v. Central Garage
Hurt, 114 Ala. 146, 21 So. 468, 469, as follows: The rule is founded in necessity, and upon
the presumption that a party who, from his situation, has peculiar, if not exclusive, knowledge
of facts, if they exist, is best able to prove them. If the bailee to whose possession, control,
and care goods are instrusted will not account for the failure or refusal to deliver them on
demand to the bailor, the presumption is not violent that he has been wanting in diligence, or
that he may have wrongfully converted, or may wrongfully detain them. Or, if there be injury
to or loss of them during the bailment, it is but just that he be required to show the
circumstances, acquitting himself of the want of diligence it was his duty to bestow.
This court is among the courts adhering to the modern rule stated. In Donlan v. Clark, 23
Nev. 203, 45 P. 1, this court held: When a bailee, either for hire or gratuitous, is intrusted
with the care and custody of goods, it is his duty to return them at the end of the bailment, or
account for their loss, and show that it happened without legal negligence upon his part. If he
fails to do either, the presumption is that they have been converted by him, or lost through his
negligence, and he is responsible for them.
It was further held that the burden of proving that the goods had not been lost or damaged
through any fault of his (bailee) was upon him, and he must establish such defense to the
satisfaction of the court.
1, 2. The respondent had this burden in the instant case. Assuming, as we have, that this is
an action for breach of a contract of bailment, respondent could not support this burden by
proving that Tener was acting outside the scope of his employment when the automobile was
wrecked. That is no defense in an action of this kind. A different rule of liability exists in a
case of this kind from that which prevails when the liability sounds entirely in tort. The
doctrine is thus stated in Wood's Law of Master and Servant, sec. 321: When by contract, or
by statute, the master is bound to do certain things, if he intrusts the performance of that duty
to another, he becomes absolutely responsible for the manner in which the duty is
performed precisely the same as though he himself had performed it, and that without
any reference to the question whether the servant was authorized to do the particular
act.
54 Nev. 147, 153 (1932) Manhattan Ins. Co. v. Central Garage
duty to another, he becomes absolutely responsible for the manner in which the duty is
performed precisely the same as though he himself had performed it, and that without any
reference to the question whether the servant was authorized to do the particular act. * * *
Where the master by contract or operation of law is bound to do certain acts, he cannot
excuse himself from liability upon the ground that he has committed that duty to another, and
that he never authorized such person to do the particular act. Being bound to do the act, if he
does it by another, he is treated as having done it by himself, and the fact that his agent or
servant acted contrary to his instructions, without his consent, fraudulently even, will not
excuse him.
3. As the respondent's agent, it was Tener's duty, growing out of the contract of bailment,
to protect appellant's automobile, but, if he disregarded that duty and violated the contract he
was bound to perform, his principal was liable. The fact that he was acting outside of the
scope of his employment at the time would be immaterial. Corbett v. Smeraldo, 91 N. J. Law,
29, 102 A. 889; Evans v. Williams, 232 Ill. App. 439.
But respondent's defense goes further than that Tener was acting beyond the authority
delegated to him. It is alleged that he was acting as the agent of Capper or his family at the
time of the accident. The trial court found this as a fact, as we have seen, and respondent
contends that the evidence in this regard is sufficient to satisfy the rule of law which places
the burden on the bailee in such case to prove the damage was not due to its negligence.
We think the contention is well founded. As pointed out by the trial court in its written
decision found in the record, Frank paid Tener for certain services in the garage, but the
testimony shows that Mrs. Dowd paid him for special services to her outside of the contract
between her and the Grand Central Garage, such as driving her to market, taking the maid,
and so forth. These special services were frequently rendered to her during his hours of
employment in the garage. Frank testified that taking a car to a train or shopping or
anywhere other than to the home of the person and returning it to the garage by one of
his employees was outside of the contract of storage with patrons.
54 Nev. 147, 154 (1932) Manhattan Ins. Co. v. Central Garage
testified that taking a car to a train or shopping or anywhere other than to the home of the
person and returning it to the garage by one of his employees was outside of the contract of
storage with patrons. On this particular occasion and during his hours of employment the
evidence shows without conflict that a special service was requested of Tener by Mrs.
Capper; namely, for him to take the automobile to the train to meet her daughter, Mrs. Dowd,
who was returning from San Francisco to Reno. But there is a conflict in the testimony of
appellant's witnesses, as we have seen, as to the time Tener was to take the automobile for
this special service. Mrs. Capper testified that she told him to deliver the automobile at the
station at 8 o'clock the next morning. Tener testified that she did not specify any hour, but
told him to take it to an early morning train; that he inquired from different persons when
early morning trains came into Reno; that he was informed that there was one about 3 or 4
o'clock in the morning and one about 7 or 8 in the morning, and concluded that he would
have to meet them both in order not to miss Mrs. Dowd; that he never got any definite
information until he reached the railroad station and there was informed that certain trains
came in around 3 or 4 o'clock in the morning, and that the next one was due in about
forty-five minutes; that he was a little early for that train and went for a ride in the
automobile. The following examination on this point was conducted by the court:
The Court: Let me ask you a question; you say you were taking a ride, what time did you
leave the garage when you started on this ride? A. I don't know, you Honor, it has been so
long ago.
Q. Was it your intention of going to meet this train to get this lady, Mrs. Dowd? A. Yes,
sir.
Q. You intended to use the car on that mission, is it true? A. Yes, sir.
Q. And you left the garage a little while ahead of that, I assume from what you state? A.
No, sir. I had a misunderstanding when the train was due, and I went to the station to see if
the train was in and inquired from the man at the station there when the next train would
be in.
54 Nev. 147, 155 (1932) Manhattan Ins. Co. v. Central Garage
to the station to see if the train was in and inquired from the man at the station there when the
next train would be in. He told me it would be a little later. Then I went back to the Grand
Cafe to pick up the other boy that was eating; the other boys asked us if we would take them
for a ride and we went for a ride and smashed the car up.
Q. As I understand it, you were killing time with the car until the train should get in, is
that it? A. Yes, sir.
The Court: That is all.
4, 5. Tener was a witness for plaintiff, and we think his version of the affair and of Mrs.
Capper's appointment with him to meet the train furnishes a sufficient basis in the evidence
for the finding of the court that he was at the time rendering a special service for her. Tener
and Frank both testified that meeting trains was not a part of the regular service rendered by
employees of the garage. There is no conflict in the evidence as to this. The only conflict is as
to the time Tener was directed by Mrs. Capper to take the car out. We cannot disturb a
finding supported by substantial evidence. The evidence which the trial court accepted and
had a right to accept established that, while Tener at the time of the accident was acting
outside the scope of his employment by respondent, he was at the same time acting as the
servant of Mrs. Capper pro hac vice.
The judgment and order appealed from are affirmed.
____________
54 Nev. 156, 156 (1932) State Ex Rel. Ward v. District Court
STATE Ex Rel. WARD v. FIFTH JUDICIAL DISTRICT
COURT in and For Mineral County Et Al.
No. 2974
April 6, 1932. 9 P.(2d) 681.
1. Prohibition.
Prohibition proceeding, wherein it does not appear that prior application for relief was made to lower
court nor any showing made that such application would have been futile, must be dismissed.
Original Proceeding in prohibition by the State, on the relation of Grace V. Ward, against
the Fifth Judicial District Court of the state of Nevada in and for Mineral County, and the
Honorable J. Emmett Walsh, Judge thereof. Dismissed without prejudice.
Emerson J. Wilson, for Petitioner:
In the absence of fraud or mistake a court is without power to interfere with collection of a
judgment rendered by another court of competent and concurrent jurisdiction. Lumber Co. v.
Danziger (Colo.), 42 P. 683; Flinn v. Richardson (Mo.), 15 S. W. (2d) 941; Weiland v. Canal
Co. (Colo.) 156 P. 596, 598; Hume v. Rice (Ore.), 167 P. 578; Marks v. Stephens (Ore.), 63
P. 824. There is not such allegation of fraud or mistake in the supplemental complaint or in
any of the other pleadings filed in the action in the respondent court.
A senior lienor or encumbrancer has no occasion for an injunction, since the sale cannot
affect his lien. 23 C. J. 562, n. 30. See, also, 23 C. J. 563, n. 43; American Land Co. v.
Maxwell (Fla.), 22 So. 751.
Green & Lunsford, Amici Curiae, and Walter Rowson, for William Royle as State Labor
Commissioner:
The necessity that petitioner shall first apply for relief to the inferior court before resorting
to the extraordinary writ is fully recognized by this honorable court. Walcott v. Wells, 21
Nev. 47; State Ex Rel. Irving National Bank v. District Court, 47 Nev. 83, 86. The California
courts also recognize the rule.
54 Nev. 156, 157 (1932) State Ex Rel. Ward v. District Court
California courts also recognize the rule. Drew v. Sup. Ct., 43 Cal. App. 651, 185 P. 680.
The petitioner has never made any attempt to appear, and has in fact emphatically refused
to appear, individually in the action which she is seeking to prohibit by this application.
Having ignored that avenue of relief, she cannot claim that she has no plain, speedy and
adequate remedy at law or in equity.
OPINION
By the Court, Coleman, C. J.:
This is an original proceeding in prohibition.
Grace V. Ward instituted an action in the second judicial district court in and for Washoe
County, Nevada, to foreclose a certain chattel mortgage given by Kernick Divide Mining
Company, a corporation, upon a mill situated in Mineral County, Nevada, to secure certain
notes of said company. The company appeared by answer in said suit, and, on April 15, 1931,
a judgment was rendered in favor of the plaintiff and a decree was entered foreclosing said
mortgage, appointing a receiver to preserve the property, and an order was entered ordering
and directing Henry Boerlin, the sheriff of Mineral County, Nevada, to advertise and sell the
property covered by the mortgage, to satisfy said judgment. Thereafter the said Boerlin, as
such sheriff, advertised said property for sale on the 8th day of January, 1932.
During the month of April, 1931, several individuals filed, or attempted to file, labor liens
against the property of said company for work and labor alleged to have been performed at
the instance and request of said company, prior to and after the execution of the mortgage
aforesaid.
It further appears that the individuals who contended that said company was indebted to
them for work and labor rendered and performed assigned such claims to William Royle, as
labor commissioner of the State of Nevada; that thereafter, and on or about the Sth day of
May, 1931, said Royle instituted an action against Kernick Divide Mining Company and
others, in the fifth judicial district court of Nevada, in and for Mineral County, not for the
purpose of foreclosing said lien claims, but for the purpose of recovering judgment in the
amount alleged to be due, and for a penalty and attorney's fee, but that no summons was
served in said action prior to January S, 1932.
54 Nev. 156, 158 (1932) State Ex Rel. Ward v. District Court
Nevada; that thereafter, and on or about the 8th day of May, 1931, said Royle instituted an
action against Kernick Divide Mining Company and others, in the fifth judicial district court
of Nevada, in and for Mineral County, not for the purpose of foreclosing said lien claims, but
for the purpose of recovering judgment in the amount alleged to be due, and for a penalty and
attorney's fee, but that no summons was served in said action prior to January 8, 1932.
It further appears that on the 7th day of January, 1932, the said Royle, as labor
commissioner aforesaid, as plaintiff in the action against Kernick Divide Mining Company et
al., filed a supplemental complaint, as the basis for an injunction to restrain the said Boerlin,
as sheriff, from proceeding with the sale of the property as aforesaid, though said
supplemental complaint did not seek to foreclose said lien claims.
It further appears that on the 7th day of January, 1932, upon the filing of said supplemental
complaint, the Honorable J. Emmett Walsh, as judge of the fifth judicial district court, in and
for Mineral County, Nevada, issued a restraining order restraining the said Henry Boerlin, as
sheriff as aforesaid, from making the sale as ordered, and directing the said Kernick Divide
Mining Company and its officers and directors to show cause why said restraining order
should not be made permanent.
It is not alleged in either of the complaints in the Mineral County suit, in which the
restraining order was issued, that there was any fraud, mistake, or fact attacking the regularity
or validity of the judgment mentioned, nor other allegations giving the respondent jurisdiction
to issue an injunction restraining the sheriff from making the sale under a valid judgment and
order. Furthermore, it appears that there was no attempt to foreclose the liens mentioned
within the time prescribed by statute (section 3742, N. C. L.).
If the state labor commissioner has a lien prior to that of Ward we fail to see how it can be
affected by the threatened sale, and it certainly follows that, if the lien claimants have lost
their prior claim, if they ever had one, by failure to foreclose it in due time, the injunction
should be dissolved.
54 Nev. 156, 159 (1932) State Ex Rel. Ward v. District Court
the lien claimants have lost their prior claim, if they ever had one, by failure to foreclose it in
due time, the injunction should be dissolved.
But we think this proceeding must be dismissed, as it does not appear that application was
made to the respondent court for relief prior to the institution thereof, nor any showing made
that such application would have been futile. Irving Nat. Bank v. District Court, 47 Nev. 86,
217 P. 962.
Dismissed without prejudice.
____________
54 Nev. 159, 159 (1932) Murrish v. Kennedy
MURRISH v. KENNEDY
No. 2819
April 25, 1932. 10 P.(2d) 636.
1. Jury.
Right to jury trial held not waived by delay in moving to set aside ex parte order setting case for trial
without jury, where party was not shown to have received written notice thereof (N. C. L. sec. 8782).
2. Jury.
Trial by jury, being constitutional right, must be afforded unless waived in accordance with statute
(Const. art. 1, sec. 3; N. C. L. sec. 8782).
3. Jury.
Trial by jury being constitutional right, waiver in accordance with statute must appear of record
(Const. art. 1, sec. 3; N. C. L. sec. 8782).
Appeal from Sixth Judicial District Court, Pershing County; L. O. Hawkins, Judge.
Action by H. J. Murrish, as receiver for Cash Store, Incorporated, against George W.
Kennedy. From a judgment for plaintiff, defendant appeals. Reversed.
Campbell & Robins, for Appellant:
The court erred in denying defendant's demand for a trial by jury. Art. 1, sec. 3,
Constitution of Nevada; sec. 257, Rev. Laws. A right to a jury trial is a constitutional right,
and no act on the part of a litigant shall be deemed a waiver of the right, except such as are
so constituted by express law.
54 Nev. 159, 160 (1932) Murrish v. Kennedy
be deemed a waiver of the right, except such as are so constituted by express law. In this
connection, a new rule of court has not the force of such a law. Biggs v. Lloyd, 11 P. 831
(Cal.).
Sec. 5226 of the 1912 code, referred to by this court in the case of O'Banion v. Simpson,
44 Nev. 188, differs wholly from the present statute, sec. 8782 of the 1929 Rev. Laws, as
amended by Stats. 1919, p. 239.
John A. Jurgenson and Cooke & Stoddard, for Respondent:
While neither defendant nor his counsel were present in court at the time the cause was set for
trial, the cause was and has been at issue for some time, and was subject to be set on any
regular law and motion day, all of which counsel had notice of. Therefore, having such
notice, by failing to appear and demand a jury trial at or before the time the cause was set for
trial on a regular law and motion day, defendant waived his right thereto. O'Banion v.
Simpson, 44 Nev. 188.
OPINION
By the Court, Sanders, J.:
H. J. Murrish, as receiver for Cash Store, Inc., a small mercantile corporation, formerly in
business at Lovelock, Nevada, sued George W. Kennedy to recover the sum of $894.41 for
goods, wares, and merchandise sold and delivered by said Cash Store, Inc., between January
1, 1922, and December 2, 1924. A trial of the issues joined upon the pleadings was had to the
court without a jury. Judgment went for the plaintiff in the sum demanded. The defendant
appeals from the judgment and from an order denying his motion for new trial.
The numerous assignments of error relied upon for reversal of the judgment and order may
be summarized as follows: {1) The court erred in its refusal to vacate the order setting the
case for trial on May 24, 1927, and in its refusal to order that the case be tried by jury.
54 Nev. 159, 161 (1932) Murrish v. Kennedy
(1) The court erred in its refusal to vacate the order setting the case for trial on May 24,
1927, and in its refusal to order that the case be tried by jury.
(2) Errors of law occurring on the trial.
(3) Insufficiency of the evidence to support the court's findings.
The first assignment involves the question of whether or not the defendant waived a jury
trial in one of the ways prescribed by law. The facts bearing upon the subject of waiver are
undisputed, and are, in short, as follows: The case was at issue on and prior to April 26, 1929,
on which date the court, on ex parte motion of counsel for plaintiff and without the presence
of either the defendant or his attorneys and without notice that the case would be called for
setting, set the case for trial on May 24, 1927, without a jury. On May 20, 1927, or four days
before the date on which the case was set for trial, the defendant caused to be served and filed
in the cause notice of motion and motion to the effect that he would move the court for an
order vacating the setting of the case and for an order that the case be tried by a jury. Upon
the calling of the case for trial on May 24, 1927, counsel for defendant informed the court of
the pending motion, whereupon the motion was presented and upon argument was overruled.
The defendant duly excepted to the ruling of the court, and now assigns it as error.
Section 284 of the civil practice act (section 8782, N. C. L.), provides as follows:
Trial by jury may be waived by the several parties to an issue of fact in actions arising on
contract, or for the recovery of specific real or personal property, with or without damages,
and with the assent of the court in other actions, in the manner following:
1. (a) If a party or his attorney is present at the setting of the cause for trial or has notice
thereof, then by failing to demand a trial by jury at or before such setting.
(b) If such party or his attorney is not present at or has no notice of such setting, then by
failing to demand a trial by jury within five days after receiving written notice of such
setting."
54 Nev. 159, 162 (1932) Murrish v. Kennedy
demand a trial by jury within five days after receiving written notice of such setting.
1. In view of the fact that it does not affirmatively appear from the record that written
notice was given the defendant that on April 26 the court entered an order setting the case for
trial without a jury on May 24, we think the judgment and order must be reversed.
2, 3. Trial by jury is a constitutional right (article 1, sec. 3) and must be afforded unless
waived in one of the methods provided by statute, and such waiver must appear of record. 35
C. J. 220.
For the reason given it is ordered that the judgment and order appealed from be and is
hereby reversed.
____________
54 Nev. 162, 162 (1932) Russell Et Al. v. Ruffcorn Et Al.
RUSSELL Et Al. v. RUFFCORN Et Al.
No. 2949
April 25, 1932. 10 P.(2d) 632.
1. Contracts.
Money or property conveyed under contract for which consideration fails may be recovered back.
2. Contracts.
Executory contract for which consideration failed held unenforceable; hence land deeded as part
payment for corporate stock never received could be recovered.
3. Corporations.
Where consideration for conveyance of land failed, holding company organized by grantee and
associates held not innocent purchaser as regards former owner's right to recover premises.
Evidence disclosed that promoter organized corporation and impounded certain
number of shares of his personal stock therein in escrow subject to order of corporations
commissioner of another state, and thereafter contracted to sell 3,350 shares of stock so
impounded, purchaser conveying to promoter 200 acres of land as part payment therefor.
Thereafter corporation was discovered to be on verge of bankruptcy, whereupon transferer
of land, not having received such stock, sued to have deed canceled and land reconveyed.
Shortly before commencement of such suit and filing of notice of lis pendens,
promoter and associated owners of majority of outstanding stock of
corporation organized another corporation, to which promoter conveyed
land.
54 Nev. 162, 163 (1932) Russell Et Al. v. Ruffcorn Et Al.
such suit and filing of notice of lis pendens, promoter and associated owners of majority of
outstanding stock of corporation organized another corporation, to which promoter conveyed
land.
Appeal from Eighth Judicial District Court, Clark County; George A. Bartlett, Judge
presiding.
Suit by John L. Russell and another against Oren Ruffcorn and another. From a judgment
of dismissal of the action, plaintiffs appeal. Reversed and remanded, with directions.
(Ducker, J., dissenting.)
F. R. McNamee, Leo A. McNamee, Edwin J. Miller and Wier Casady, for Appellants:
The commissioner of corporations of California had power to make the restrictions
contained in the permit and in the escrow, to make the escrow, and to require the promotion
stock of Ruffcorn to be deposited therein, as is seen by section 4 of the corporate securities
act. It has been decided by the California court of appeals that that provision of the California
statute is perfectly legal. Otten v. Chocolate Co., 82 Cal. App. 83; Basalt Rock Co. v.
McMillian, 51 C. A. D. 473, 251 P. 322; Doble Steam Motors Corporation v. Daugherty, 195
Cal. 158.
Holding in mind the fact that the corporate securities act, which was admittedly in force in
California at the date of the contract in question, that the lower court especially found this to
be true, that the permit forbade the sale without the commissioner's consent, and that the
California courts have held said statutes and like permits to be valid, it must be held that there
was a violation of the permit and of the corporate securities act. Then, if we are right in this
propositionand the undisputed evidence, the admissions in the pleadings, the findings of
the court all substantiate itit must necessarily follow that the judgment of the trial court is
wrong and should be reversed. Secs. 12 and 14 of California Corporate Securities Act;
Tatterson v. Kehrlein, 88 Cal. App. 34, 263 P. 285; Reilly v. Clyne (Ariz.), 40 A. L. R. 1005.
54 Nev. 162, 164 (1932) Russell Et Al. v. Ruffcorn Et Al.
Ruffcorn gave nothing for the conveyance from the Russells, because he was prohibited
from giving the agreed consideration. It is against the policy of the law that one party shall
receive something for nothing.
How can any court find that the Joint Holding Company was an innocent holder for value
and without notice, when the undisputed evidence shows that all the parties who were
interested in the Joint Holding Company were likewise parties to and interested in the
Russell-Ruffcorn contracts and therefore had full notice of all the terms and conditions on
which the Russell-Ruffcorn contracts were entered into?
The case of People v. Pace, 73 Cal. App. 548, 238 P. 1089, relied on by respondent, has
none of the features of the case at bar. After the decision in the Pace case, the case of People
v. Eiseman, 78 Cal. App. 233, was decided, wherein the reference to and distinguishment
from the Pace case is found at page 243. Elements of fraud, watered stock, nor failure of
consideration, that characterize the case at bar, were not in the Pace case.
John W. Maltman, Warner I. Praul, Louis G. Campbell and A. W. Ham, for Respondent:
Our view is that since the stock in question was the personal stock of Mr. Ruffcorn,
whether in or out of escrow, and he had an inherent constitutional right to deal with and sell
his own property. The fact that he complied with the expressed wish of the commissioner of
corporations did not divest him of the legal or equitable title to the stock. The only power, as
we read the California corporate securities act, that the commissioner had was to require the
impounding of the securities authorized to be sold under the terms of the permit. Assumption
of power cannot broaden that invested in an officer by law. It has been decided in the case of
People v. Pace, 73 Cal. App. 548, 238 P. 1089, that the section of the corporate securities act
which attempted to require a natural person to secure a broker's permit, as provided in said
act, before he may lawfully sell his own securities, is unconstitutional and invalid.
54 Nev. 162, 165 (1932) Russell Et Al. v. Ruffcorn Et Al.
The contract of sale itself shows that it was made subject to the escrow, and defendant's
exhibit, in which Russell says that he is thoroughly familiar with the affairs of the company
and wishes to accept the stock now held in escrow in the Bank of America in his
(Ruffcorn's) name shows that he intended to and did accept the stock in question.
The general rule is that it is not necessary that the seller shall be in possession of the
property at the time of the sale, or that there shall be a delivery to the buyer, and the property
will ordinarily pass unless a contrary intention appears and although the goods are in
possession of a third person. 35 Cyc. 311; Dupleix v. Galleon, 21 L. A. Ann. 534; Driscoll v.
Driscoll, 143 Cal. 528; Visher v. Webster, 13 Cal. 58. In Mattingly v. Roach, 84 Cal. 207, the
rule that personal property sold is deliverable at the place where it is at the time of the
agreement of sale, is made applicable to corporate stock.
If the contract was illegal (which we do not admit), for the reasons put forth by appellants,
then Russell knew, at the time he entered into it, of all the facts and circumstances making it
illegal, and there is no escaping the conclusion that he is in pari delicto and consequently
entitled to no relief. Domenigoni v. Imperial Live Stock and Mortgage Co., 189 Cal. 467, 209
P. 36; Parrish v. American Railway Employees Publishing Corporation, 53 C. A. D. 393, 394.
OPINION
By the Court, Sanders, J.:
This is an equity case of long standing. The case is here on plaintiffs' appeal from a
judgment of dismissal of the action after trial, entered in June, 1930, and from an order
denying plaintiffs' motion for new trial, entered in December, 1930. Since the case reached
this court, defendants in error gave notice that they would, on the date specified, move: First,
to dismiss the appeal on the ground that the bill of exceptions was not settled, allowed,
and served as required by law; that the bill of exceptions was not filed within the time
required by the statute.
54 Nev. 162, 166 (1932) Russell Et Al. v. Ruffcorn Et Al.
on the ground that the bill of exceptions was not settled, allowed, and served as required by
law; that the bill of exceptions was not filed within the time required by the statute. Second,
to strike from the bill of exceptions a document entitled Assignments of Errors of Law
Occurring on the Trial, upon the ground that no assignment of errors was filed and served on
motion for new trial as required by law. Third, to strike from the bill of exceptions certain
affidavits used on the motion for new trial for after-discovered evidence, in that the same
were not indorsed as required by law.
As to the motion to dismiss the appeal, counsel for movants consent that the motion may
be disregarded as having been improvidently made. As to the motion to strike the
assignments of error, counsel for contestants consent that the motion may be granted. The
motion to strike the affidavits will be disregarded for the reason that the matter contained in
the affidavits affects in no way the disposition made of the appeal. The respective motions are
denied.
An abridged statement of the history of the case will serve to clarify the issues. In may,
1922, Oren Ruffcorn, as principal promoter, caused to be created and organized under the
Nevada laws a corporation called National Land Value Guaranty Company, with an
authorized capitalization of $5,000,000, divided into 50,000 shares of the par value of $100
each per share, 10,000 of which were classed as preferred, and 40,000 were classed as
common stock. The corporation was organized for the purpose of engaging in the business of
selling and issuing contracts of guaranty of land values. The principal office of the company
was located at Las Vegas, Nevada, with its business office in Los Angeles, Calif. Upon its
organization the company acquired certain actuarial tables and tables of classification of
values of land from one E. E. Luesley, the compiler of the tables, and issued him therefor at
par 7,000 shares of its capital stock, which tables were carried on the books of the company
as a property right of the value of over a million dollars. The company qualified to engage in
business in the state of California in virtue of a statute of that state known and called
"Corporate Securities Act."
54 Nev. 162, 167 (1932) Russell Et Al. v. Ruffcorn Et Al.
qualified to engage in business in the state of California in virtue of a statute of that state
known and called Corporate Securities Act. Stats. 1917, p. 673, as amended. In May, 1923,
on the application of the company, signed by Oren Ruffcorn as its president, the
commissioner of corporations of California, in virtue of said corporate securities act, issued to
the company a permit to sell and issue 4,000 shares of its capital stock for cash at par, for the
uses and purposes stated in the application, upon certain conditions, two of which read as
follows:
(b) That 75 per cent. of each payment received from the sale of any of the shares
hereinabove authorized shall be paid to the Bank of America in accordance with the terms of
the Trust Agreement entered into by the applicant and said Bank, dated May 5th, 1923, to be
held by said Bank for the establishment of the Reserve Fund, and subject to the further order
of the Commissioner of Corporations.
(c) That all certificates evidencing 6,500 shares of the 7,000 shares of Capital Stock
heretofore issued shall be forthwith deposited with a Depositary to be selected by said
certificate holder and approved by the Commissioner of Corporations, to be held as an escrow
pending the further order of said Commissioner; that the receipt of such Depositary for such
certificates shall be filed with said Commissioner of Corporations and that while said
certificates shall be so held, the holder of the shares evidenced thereby shall not sell, or offer
for sale, or otherwise transfer, or agree to sell or transfer such shares, until the written consent
of said Commissioner shall have been obtained so to do.
In January, 1925, Oren Ruffcorn and his associates caused to be created and organized
under the Nevada laws a corporation called National Land Insurance Company, consisting
of 200 shares of common stock of the par value of $100 per share each. This corporation was
organized for the purpose of engaging in the business of land insurance. The principal office
of the company was at Las Vegas, Nevada. Its business office was in Los Angeles, Calif.
54 Nev. 162, 168 (1932) Russell Et Al. v. Ruffcorn Et Al.
was in Los Angeles, Calif. The National Land Value Guaranty Company acquired all of its
capital stock except that of its qualifying directors. The company qualified to engage in
business in the state of California in virtue of the consent of the insurance commissioner of
that state.
In January, 1926, the National Land Value Guaranty Company sold a number of preferred
shares of its capital stock to residents of the city of Las Vegas, Nevada, and took as security
for the payment for the stock first mortgages on the real estate of the purchasers. The sum of
the mortgages aggregated over $217,000. The mortgages so taken in the name of the company
were delivered into the hands of the treasurer of the State of Nevada, presumably for the
purpose of giving to the National Land Insurance Company a legal status in Nevada and
elsewhere. All of the mortgages so taken were subsequently canceled and annulled in the
court below at the suit of the mortgagors.
On February 5, 1926, at the city of Los Angeles, State of California, Oren Ruffcorn and
John L. Russell entered into a written agreement which, among many others, contained the
following clauses:
Whereas, Oren Ruffcorn, of the City of Los Angeles, County of Los Angeles, and State of
California, owns or controls the ownership of Thirty-three Hundred and Fifty (3350) shares of
the Common Capital Stock of the National Land Value Guaranty Company of the issue made
prior to July 19, 1924, and
Whereas, said Thirty-three Hundred and Fifty (3350) shares of stock have been placed in
escrow with the Corporation Commissioner of California under limitations and restrictions
declared by said Commissioner, and
Whereas, said Oren Ruffcorn desires to sell said Thirty-three Hundred and Fifty (3350)
shares of stock unto John L. Russell, of the City of Las Vegas, County of Clark, and State of
Nevada, and said John L. Russell is desirous of purchasing said stock, "Now, therefore, it
has been and is hereby agreed between the undersigned as follows:
54 Nev. 162, 169 (1932) Russell Et Al. v. Ruffcorn Et Al.
Now, therefore, it has been and is hereby agreed between the undersigned as follows:
Said Oren Ruffcorn agrees to sell unto said John L. Russell, and John L. Russell agrees to
purchase from and through said Oren Ruffcorn Thirty-three Hundred and Fifty (3350) of said
shares of the Common Capital Stock of the National Land Value Guaranty Company, of the
issue prior to July 19, 1924, now standing in the name of Oren Ruffcorn and in escrow with
the Corporation Commissioner of the State of California, at and for the price of Fifty ($50.00)
Dollars per share, payable as follows:
Said John L. Russell concurrently upon transfer to him of Eight Hundred (800) shares of
said stock, will convey unto said Oren Ruffcorn the ranch now owned by said John L.
Russell, located in Las Vegas, Nevada, and containing approximately Two Hundred (200)
acres, conveyance to be by the usual grant or warranty deed, free and clear of all liens and
encumbrances, * * * subject to a present existing lease which provides for $100.00 per month
rental, expiring March 1st, 1928, which lease shall be at once assigned to Oren Ruffcorn,
earned rental to be prorated between the parties. * * *
Said John L. Russell by reason of said conveyance shall receive a credit of Sixty
Thousand ($60,000.00) Dollars on the total purchase price of said stock, and the balance of
the purchase price, to wit: One Hundred and Seven Thousand, Five Hundred Dollars shall be
paid as follows:
Ten Thousand ($10,000) Dollars on or before April 1, 1926. * * *
On February 6, 1926, as promised, John L. Russell and Mary J. Russell executed and
delivered to Oren Ruffcorn a deed to the 200 acres of land described in the agreement, 160
acres of which belonged to John L. Russell and 40 acres belonged to his mother, Mary J.
Russell.
On February 9, 1926, John L. Russell was elected a director of the National Land Value
Guaranty Company, and on said date was appointed assistant secretary of the company.
54 Nev. 162, 170 (1932) Russell Et Al. v. Ruffcorn Et Al.
and on said date was appointed assistant secretary of the company.
In April, 1926, John L. Russell made a further payment of $10,000 on the purchase price
of said 3,350 shares of stock, and in July, 1926, made another payment of $10,000, less a
credit of $250 for services rendered by him in connection with the sale of stock of the
National Land Value Guaranty Company prior to the execution of the agreement. No further
payments were made.
In September, 1926, upon investigation of third parties who had under consideration a
proposition to take over the National Land Value Guaranty Company, it was found that the
company was on the verge of bankruptcy.
On September 20, 1926, John L. Russell and Mary J. Russell commenced this suit against
Oren Ruffcorn for the declared purpose of having the court direct the cancellation and
discharge of record of their deed executed and delivered to Oren Ruffcorn in pursuance to the
contract of February 5, 1926, and to direct the reconveyance to them of the land upon the
ground that no consideration was received for the land that passed by their deed. The
complaint underwent several amendments. In their first amended complaint the Joint Holding
Company, a California corporation, was made a party defendant. This corporation was
created and organized in September, 1926, by Oren Ruffcorn and his associates as the holders
and owners of a majority of the outstanding capital stock, common and preferred, of the
National Land Value Guaranty Company. On October 1, 1926, and after the commencement
of the action and subsequent to the filing of notice of lis pendens, there was placed of record
in Clark County, Nevada, a deed dated on September 8, 1926, from Oren Ruffcorn and wife
to the Joint Holding Company, conveying the land which had been theretofore conveyed by
the Russells to Oren Ruffcorn on February 6, 1926.
In their third amended complaint, filed as late as in February, 1928, the plaintiffs set up
two causes of action and exhibited with and made a part of the complaint the contract of
February 5, 1926, the "Corporate Securities Act of California," with amendments; the
corporation law of the State of California; and the permit of the commissioner of
corporations of date May 11, 1923.
54 Nev. 162, 171 (1932) Russell Et Al. v. Ruffcorn Et Al.
and exhibited with and made a part of the complaint the contract of February 5, 1926, the
Corporate Securities Act of California, with amendments; the corporation law of the State
of California; and the permit of the commissioner of corporations of date May 11, 1923. As
and for a first cause of action it was alleged, in substance, that the agreement of February 5,
1926, was invalid and illegal in that it was made and entered into in violation of certain
provisions contained in the corporate securities act of the State of California, and also in
violation of the limitations and restrictions contained in the permit of the commissioner of
corporations of California; that the deed of plaintiffs to the defendant Oren Ruffcorn was
void, in that no consideration was received for the land that passed.
As and for a second cause of action the complaint alleged, in substance, that the defendant
Joint Holding Company was an illegal corporation, in that it had not complied with the
statutes of California respecting the organization of corporations; that John L. Russell was
induced to enter into said contract and the the deed executed and delivered in pursuance to its
terms and conditions was procured through the false and fraudulent misrepresentations of
Oren Ruffcorn made to John L. Russell at the time of the execution of said agreement with
respect to the business, the amount of business, the character of business, the business and
affairs of the National Land Value Guaranty Company and the value of its stock; that the
corporation was insolvent and its securities valueless. The complaint alleged that the Joint
Holding Company was not a bona fide or innocent purchaser, and that the conveyance to it by
Oren Ruffcorn of the land in suit was made with intent to hinder, delay, and defraud the
plaintiffs. The complaint concluded with the prayer that the deeds mentioned be canceled and
discharged of record and that the land that passed be reconveyed to plaintiffs with an
accounting. After a full hearing of the issues joined upon the pleadings, a trial was had to the
court without the assistance of a jury. The court made and caused to be entered extended
findings of fact which specifically negatived each and all of the issues tendered in the
plaintiffs' third amended complaint.
54 Nev. 162, 172 (1932) Russell Et Al. v. Ruffcorn Et Al.
extended findings of fact which specifically negatived each and all of the issues tendered in
the plaintiffs' third amended complaint. From its findings of fact the court deduced the
conclusions of law that the contract made the basis of the plaintiffs' several causes of action
was a legal, existing, and enforceable contract; that the Joint Holding Company was a legally
constituted and existing corporation under the law of California; that it was the lawful owner
of the land in controversy, free from the claims of the plaintiffs. Upon its findings of facts and
conclusions of law the court entered judgment of dismissal of the action with costs and
denied plaintiffs a new trial. Hence this appeal.
Referring to the parties here as they stood in the court below, the plaintiffs seek reversal of
the judgment and of said order upon numerous grounds. It is contended that the contract of
February 5, 1926, was illegal and unenforceable, in that it was made and entered into in
violation of the provisions contained in the corporate securities act of California and in
violation of the permit of the commissioner of corporations of California in virtue of said act.
In reply to this contention counsel for defendants cite and stand upon the trial court's findings
of fact to the effect that neither the corporate securities act of California nor any law inhibited
or abridged the right of Oren Ruffcorn to contract for the sale of the 3,350 shares of stock or
to sell the same; that nothing in the permit of the commissioner of corporations of California
restricted or abridged the right of Oren Ruffcorn to make sale of the shares of stock deposited
in escrow with the commissioner of corporations of California and standing on the books of
the company in the name of Oren Ruffcorn or the right of John L. Russell to buy the shares of
stock; that Russell agreed to buy said shares of stock with knowledge that the same had been
placed in the Bank of America under an escrow with the limitations and restrictions as
provided in the permit of the commissioner of corporations; and that the delivery of the stock
was subject to the terms and conditions of said permit.
54 Nev. 162, 173 (1932) Russell Et Al. v. Ruffcorn Et Al.
permit. The court's finding and its conclusion respecting the enforceability of the contract and
the inviolability of the deed executed and delivered in accordance with the contract are
traceable to the court's interpretation of the corporate securities act of California and the
powers of the commissioner of corporations charged with the administration of the law.
At the time of the issuance of the permit of the commissioner of corporations of California
of date May 11, 1923, the case of People v. Pace, 73 Cal. App. 548, 238 P. 1089, had not
been decided. In that case it was held that the corporate securities act, sec. 2, subd. 9(a), in so
far as it required the owner of securities not the issuer thereof to secure broker's permit if he
desired to sell such securities in more than one sale, violated the Constitution of the United
States and of the State of California, in that it contravened the inalienable right of every
citizen to enjoy, acquire, possess, and protect his property.
1,3. It is argued on behalf of the defendants that People v. Pace eliminates from this case
any question as to the right of Oren Ruffcorn to sell or contract for the sale of the 3,350
shares of the capital stock under his ownership and control and impounded by order of the
commissioner of corporations of California with the restriction and limitation that the shares
of stock so impounded in escrow could not be sold or dealt with without the consent of the
commissioner. If this contention is to prevail, it would be a gross injustice to the plaintiffs
and an unconscionable advantage to the defendants to permit the latter to defend this action
upon the ground that the permit of the commissioner of corporations was invalid, illegal, and
unconstitutional. It must not be overlooked that this is an equitable proceeding in which
specific justice between the parties to a contract is of greater importance than the enforcement
of a mistake of law to the advantage of one of the parties and to the detriment of the other.
Under the facts and circumstances disclosed by this record, for a court of equity to say that
the defendant Oren Ruffcorn may retain the fruits of the contract, and that the plaintiffs be
dismissed empty handed and stripped of their property, does not accord with established
principles of equity, as I understand them.
54 Nev. 162, 174 (1932) Russell Et Al. v. Ruffcorn Et Al.
Ruffcorn may retain the fruits of the contract, and that the plaintiffs be dismissed empty
handed and stripped of their property, does not accord with established principles of equity,
as I understand them. If, on the authority of People v. Pace, the permit of the commissioner of
corporations of California and the contract for the sale and purchase of the stock in suit is to
be stripped of its provisions respecting the sale of or the transfer of the stock impounded
under the permit, then the case is resolvable into one of whether or not the plaintiffs have
shown themselves to be entitled in equity to the return of the land which was conveyed and
accepted as a credit of $60,000 on the purchase price of the stock, at $50 per share, totaling
$165,000, which stock was never issued or delivered. The defendants cannot rely upon
People v. Pace as an excuse for the nondelivery of the stock, but they contend and insist that
the proof shows that the defendant John L. Russell agreed to purchase the stock without its
delivery, well knowing at the time of the execution of the agreement that the stock had been
placed in an escrow under the control of the commissioner of corporations of California. It is
impossible to read this record without seeing plainly that it was the intention of the parties
and their understanding, implied, if not expressed, that the consent of the commissioner of
corporations to the sale of the stock would be obtained. The evidence tends to show that the
parties to the contract believed honestly that such consent could and would be obtained. The
evidence further tends to show that the parties individually and through others endeavored to
obtain the release of the stock from the escrow. One is no more responsible than the other for
its nondelivery. The truth is that John L. Russell agreed to buy the stock and conveyed his
land as part payment therefor. Under these circumstances the defendant Oren Ruffcorn
obtained property belonging to plaintiffs for which he gave nothing in return. This creates a
proper basis for this action for the return of the land. Ordinarily, if a person voluntarily pays
another money, he cannot maintain an action to recover it back.
54 Nev. 162, 175 (1932) Russell Et Al. v. Ruffcorn Et Al.
money, he cannot maintain an action to recover it back. This rule, however, does not apply
where money is paid under a contract, and the consideration fails. The money or property may
be recovered back in such a case. Clark on Contracts (4th Ed.), p. 647, 13 C. J. 367. The
contract of February 5, 1926, made the basis of the plaintiffs' several causes of action, was
and remained executory. Undoubtedly plaintiffs never received the consideration bargained
for in the contract. Consequently, the writer of this opinion is unable to concur in the
conclusion of law deduced by the trial court from its findings of fact that the contract is an
enforceable contract. Under the facts and circumstances as disclosed by this record, I
conclude that the defendant Joint Holding Company was not a bona fide or innocent
purchaser of the land. The plaintiffs having received no consideration whatever for their deed,
it would be against equity and good conscience to permit the Joint Holding Company to
retain and keep land for which its grantor gave nothing in return. This conclusion renders it
unnecessary to consider the other matters discussed by counsel for plaintiffs in respect to the
insufficiency of the evidence to support the trial court's findings on the issue of fraud and
fraudulent misrepresentations.
Upon the whole case the majority of the court entertains the view that the judgment of
dismissal of the action should be reversed, and to the end that this protracted litigation be
concluded and ended, it is ordered that the judgment and order appealed from be reversed,
and the cause remanded with directions to the court below to sustain and grant the prayer of
the plaintiffs' third amended complaint.
It is so ordered.
On Petition For Rehearing
July 6, 1932.
Per Curiam:
Rehearing denied.
Ducker, J.: I dissent.
____________
54 Nev. 176, 176 (1932) Consolazio v. Summerfield
CONSOLAZIO v. SUMMERFIELD
No. 2967
April 25, 1932. 10 P.(2d) 629.
1. Appeal and Error.
Generally, when evidence is conflicting and there is substantial evidence to sustain the judgment it
will not be disturbed.
2. Executors and Administrators.
Claims against the estate of a deceased person should be established by very satisfactory evidence.
3. Executors and Administrators.
Evidence in action upon claim rejected by executor on ground that claimant obtained deceased's
signature and wrote alleged promise to pay over it held sufficient to support judgment for executor.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by D. Consolazio against Lester D. Summerfield, as executor of the estate of Peter
Steffes, deceased. From a judgment for defendant, and an order denying a motion for a new
trial, plaintiff appeals. Affirmed.
W. M. Kearney, for Appellant:
It is significant that the lower court in deciding the case admits that if the facts as testified
to by the plaintiff's witnesses are true that it would be conclusive of the case, but that the
court was not convinced of the truth of these sworn statements by even disinterested
witnesses.
The trial court has no power to reject uncontradicted evidence on the ground that he does
not believe it. Newton v. Pope, 1 Cow. (N. Y.) 109, 110; Lewis v. New York City Ry. Co., 99
N. Y. S. 462; Schecter v. Watson, 70 N. Y. S. 1; Decker v. Braverman, 196 Ill. App. 459;
Atlantic Coast Line R. Co. v. Drake, 94 S. E. 65; Baranov v. Scudder, 170 P. 1122; Chilvers
v. Race, 63 N. E. 701; Louisville and Nashville R. Co. v. Harned, 66 S. W. 25; Spring v.
Millington, 90 N. Y. S. 152; Nehbe v. Price, 2 Nott & McCord, 328; Deheave v. Hines, 217
Ill. App. 427; Shepard v. Shepard, 223 P. 1012; Woulfe et al. v. Arkansas Valley Interurban
Ry. Co., 223 P. 817; Abel v. Love, 143 N. E. 515; Engmann v. Estate of Immel, 1S N. W.
1S3; Elwes v. Elwes, 4 Eng.
54 Nev. 176, 177 (1932) Consolazio v. Summerfield
Abel v. Love, 143 N. E. 515; Engmann v. Estate of Immel, 18 N. W. 183; Elwes v. Elwes, 4
Eng. Ecc. 401; Hughey v. Sullivan, 80 Fed. 72; Barrette v. Carr et al., 56 Atl. 93; Ford v.
Minneapolis & St. Louis R. Co., 107 N. W. 817; Brown v. Peterson, 25 App. Cas. (D. C.)
359; New Iberia Peoples National Bank v. Voorhies (La.) 64 So. 120; McNamara v. Georgia
Cotton Co., 73 S. E. 1092; American Lead Pencil Co. v. Gottieb, 189 Fed. 178; Flaherty v.
Butte Electric Railway Co. (Mont.), 111 p. 348; Cutler v. State of Arizona, 138 P. 1038.
We submit that none of the proof herein offered by the defendant, all of which is of a
negative character, is sufficient to overcome the direct and positive testimony of the facts that
have been shown to exist by the plaintiff.
Lester D. Summerfield, in Pro. Per., and Brown & Belford, for Respondent:
The general rule is that claims should be established by very satisfactory evidence, and
that such claims and the evidence adduced to support them should be carefully scrutinized so
as to prevent, as far as possible, the allowance of unjust or fictitious demands. 24 C. J. 404.
The evidence offered in this case in chief did not come anywhere near satisfying this rule.
The claimant sought interest on a promissory note, which would have amounted at the
time of judgment, had he prevailed, to about four hundred dollars. On being asked
impeaching questions on cross-examination, he changed his entire story. He had been a trusty
in the jail where the deceased had been day jailer. He was in frequent contact with the
deceased. He had ample opportunity to secure pieces of paper from deceased's desk with his
signature thereon. One need only observe the position of the signature and the effort made to
space the lines to meet the signature to feel convinced that the body of the document was
filled in over the signature. These facts, together with all of the other facts and circumstances
surrounding the case, compel the conclusion that the judgment should be affirmed. Williams
v. Douglas, 139 La. 1067, 72 So.
54 Nev. 176, 178 (1932) Consolazio v. Summerfield
455; Wilder v. Franklin, 10 L. Ann. 279; Tolchinsky v. Succ. of Lirette, 148 La. 1067, 88 So.
458.
This court, in Nicora v. Cerveri, 49 Nev. 261, at 270, has held that the matter of the
credibility of witnesses is for the trial court. See, also, 4 C. J. 848.
OPINION
By the Court, Coleman, C. J.:
This is an action to recover upon a claim rejected by the executor of the estate of Peter
Steffes. Judgment was rendered in favor of the executor. Plaintiff has appealed from the
judgment and the order denying a motion for a new trial.
In this opinion we will allude to the parties as plaintiff and defendant, and to the deceased
as Steffes.
The paper which was the basis for the claim filed with the executor, and which was sued
upon and frequently referred to in the trial as a note, reads as follows:
Reno Nev Dec. 271929
I owe D. Consolazio the sum of Four Thousand Dollars 4000.00 in American coin any
demand maid for said money is to be paid back at once with Interest at 6% six per sent
X Peter Steffes
The claim filed with the executor demanded accrued interest to the date of payment.
There is no assignment of error in this case as required by law. Shirk v. Palmer, 48 Nev.
on page 458, 232 P. 1083, 236 P. 678, 239 P. 1000; Smith v. Lucas, 43 Nev. 348, 186 P. 674.
Since the assignment of errors is jurisdictional (Coffin v. Coffin, 40 Nev. 345, 163 P. 731),
this appeal should be dismissed; however, we will dispose of the matter upon the merits.
The assignment in behalf of the plaintiff is confined to the proposition that the evidence is
not sufficient to justify the judgment.
Counsel for the plaintiff cites several authorities to the effect that "It is mockery to talk
of evidence if it is discretionary with the tribunal to which it is addressed to disregard it
when uncontradicted and unimpeached," citing, among many others, the following
authorities: Newton v. Pope, 1 Cow. {N. Y.)
54 Nev. 176, 179 (1932) Consolazio v. Summerfield
the effect that It is mockery to talk of evidence if it is discretionary with the tribunal to
which it is addressed to disregard it when uncontradicted and unimpeached, citing, among
many others, the following authorities: Newton v. Pope, 1 Cow. (N. Y.) 109; Decker v.
Braverman, 196 Ill. App. 387; Atlantic Coast Line R. Co. v. Drake, 21 Ga. App. 81, 94 S. E.
65; Baranov v. Scudder, 177 Cal. 458, 170 P. 1122; Chilvers v. Race, 196 Ill. 71, 63 N. E.
701; Louisville & Nashville R. Co. v. Harned (Ky.), 66 S. W. 25; 10 Cal. Jur. 1143.
It is quite probable that the rule invoked is sound, but we do not find that the case falls
within the rule, since there is contradictory evidence in the record, and certainly some of the
evidence is self-impeached.
1. 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, 1116; Smith v. Goodin, 46 Nev. 229, 206 P. 1067; Walker Brothers Bankers v.
Janney, 52 Nev. 440, 290 P. 413.
2. Looking at the evidence in cold type, we are frank to say that we think the judgment
should be for the plaintiff; but the cold type does not always present the picture as it appears
in its making. The demeanor of the witnesses, their manner of testifying, and a variety of
things may develop before the trial judge which cannot be presented in the record. For these
reasons, the exception to the general rule stated above is rarely found to exist. In a case where
one of the parties to the alleged transaction is dead, we should be even more guarded than in
the ordinary action in which both parties appear. In fact, it is generally recognized that claims
against the estate of a deceased person should be established by very satisfactory evidence,
and that such claims and the evidence advanced to support them should be carefully
scrutinized so as to prevent, as far as possible, the allowance of unjust or fictitious
demands.
54 Nev. 176, 180 (1932) Consolazio v. Summerfield
be established by very satisfactory evidence, and that such claims and the evidence advanced
to support them should be carefully scrutinized so as to prevent, as far as possible, the
allowance of unjust or fictitious demands. 24 C. J. 404.
In the light of the observations, let us consider the record. The case was called for trial
April 10, 1931. The plaintiff, after giving the usual preliminary testimony, testified that on
December 27, 1927, he got from Steffes the note in question, for which he gave Steffes
$4,000, and that no part of it had been returned to him. He testified he saw Steffes sign it on
the desk in the office in the county jail at Reno. The note was admitted in evidence as exhibit
A. On cross-examination the witness testified that, because of trouble he was having with his
wife, he gave the money to Steffes to keep for him, and that he was not entitled to interest.
The witness also testified that during the time Steffes was county jailer he served a term of
nine months in said jail for violating the prohibition law, during which time he was a trusty.
At the conclusion of this evidence the plaintiff rested his case. Thereupon the defendant
made an application for leave to have a handwriting expert examine the note. The court
continued the case to April 25, 1931. On that date, a preliminary motion having been
disposed of, the plaintiff asked leave to open his case and offer further evidence. The court
granted the application, whereupon E. N. Landers and Thos. W. Bath, Jr., were called as
witnesses in behalf of the plaintiff. The witness Landers testified that on a Sunday about a
month prior to the death of Steffes he had a conversation with Steffes in which he stated to
Steffes that he soon would want to borrow some money; that the deceased asked why he did
not borrow it from the plaintiff; that he (Steffes) knew that the plaintiff had the money, as he
had in his possession $3,500 or more belonging to him. Bath testified that shortly before the
death of Steffes in November, 1930, he was in the place of business of the plaintiff, where he
saw Steffes and heard him ask the plaintiff when he wanted his money, to which the
plaintiff replied, "After the holidays."
54 Nev. 176, 181 (1932) Consolazio v. Summerfield
he saw Steffes and heard him ask the plaintiff when he wanted his money, to which the
plaintiff replied, After the holidays.
Thereupon the plaintiff rested his case.
In opposition to the foregoing testimony the defense called several witnesses. J. D.
Hillhouse testified that, at the time of the death of Steffes, the witness was sheriff of Washoe
County, Nevada, and had been such for some years; that Steffes had been his day jailer for
about eight years; that he was on intimate terms with Steffes; that they frequently discussed
his affairs; and that at no time did Steffes mention having any money belonging to the
plaintiff. He also testified that Steffes, during the time he served as jailer, had access to a safe
in the jail office; that the witness frequently checked the cash and property in that safe; and
that he never saw any larger sum therein than $700. Thorough search by Hillhouse, the
witness Trathen, the executor, and inquiry among the banks and other places, failed to
disclose $4,000 or any other sum belonging to Steffes traceable to the money alleged to have
been deposited by the plaintiff with him, or at all, except as hereinafter stated. The executor
testified that he had known Steffes intimately since 1914, and that during that time Steffes
frequently consulted him and talked over his affairs; that he drew the will of Steffes; and at
no time did he allude to having received money from the plaintiff.
Witness Harris, assistant cashier of the First National Bank, testified that the deceased had
a savings account in his bank at the time of his death; that on July 1, 1929, the deceased had a
balance of $15,619.99; on January 7, 1930, he had a balance of $16,029.36; and that on July
1, 1930, interest in the sum of $319.36 was added; that on July 7, 1930, a deposit of $300 was
made; that on January 1, 1931, interest was added, making a total of $16,880.23. The witness
testified that Steffes did not have a checking account with his bank, and though he had a safe
deposit box, examination thereof disclosed no money or thing of value.
Steffes died suddenly, and $200 in cash was found on his person.
54 Nev. 176, 182 (1932) Consolazio v. Summerfield
his person. This is the entire pertinent testimony in behalf of defendant, except that of the
experts.
The defendant conceded at the trial that the signature on the paper in question was that of
Steffes, and urges the theory that the plaintiff, while serving a term in jail in 1921-1922, got
possession of the paper with the signature of Steffes thereon and erased therefrom writing,
and had the matter filled in which is now relied upon.
In support of this theory, E. O. Heinrich was called and qualified as a consulting
criminologist practicing in the field of chemistry as a part of his business, as well as in the
examination of disputed handwritings.
This witness testified that he had examined plaintiff's exhibit A, the document sued upon;
that he examined it with a suitable magnification and binocular vision with suitable lighting,
the light being brought onto the document from various angles, obliquely and directly, and
also on inspection of the document under the ultraviolet ray lamp. The first step in the
examination was an inspection without reference to magnification.
He testified that the signature of Peter Steffes was written prior to the other writing now
appearing on the paper, and that it was put there in accordance with a different text than now
appears.
In support of his conclusion, he testified that the subject matter of the document is
irregularly placed with respect to the signature; that the first section of it, consisting of five
lines plus the date and place where written, are spaced with fair uniformity; that the last two
lines are spaced increasingly apart with reference to the upper portion of the note; that the
right and top edge of the paper had been torn as an act of trimming; that the bottom and left
edges had been cut with a sharp instrument; and that the writing was done prior to the
trimming of the paper.
The witness further testified as follows: * * * That there was evidence in the third line of
the text over the word in, and in the fifth line of the text, running from the y of the word
money through to the end of the word paid, and particularly over the words to be, there was
evidence of some pencil writing which had been on this paper prior to the writing which is
now on the paper.
54 Nev. 176, 183 (1932) Consolazio v. Summerfield
be, there was evidence of some pencil writing which had been on this paper prior to the
writing which is now on the paper. The wordthe deletion of the pencil writing was too
complete to enable it to be read, but in the area over the words to be in line five, I was able to
read most of the word. It is theit seems to be the word possibly, I see distinctly o,s,s,i,b,l,y.
This writing is a little smaller than the writing which is now on the paper, and there is
evidence of cleaning of the paper extending in the area from the right edge to the vertical line,
extending through the e of the word owe, and down vertically to the s of the word interest,
and down the page. The maximum effect or abrasion of the paper showing some cleaning
action surrounding the area which now carries the words once with. I could get no
information from the ink as to the time of the writing of the text or the signature with respect
to each other; the inks are both of the same character, chemically and physically, and are
permanent black ink, and write black at the time written.
He also testified that in other areas of the paper on which the note was written there is
evidence of cleaning of the paper.
Two experts were called by the plaintiff, who testified that they could find no evidences of
writing upon the paper prior to the placing thereon of the obligation sued on.
At the conclusion of the foregoing testimony, the defendant rested his case.
The plaintiff called in rebuttal one Pinkston and one Gardelli. Pinkston testified that he
worked part time for plaintiff at the Sierra Beverage Company in Reno; that on December 27,
1929, he wrote, at plaintiff's dictation, the body of the note; that the signature was not on the
note at the time he wrote it; and that he put the X at the point at which Steffes was to sign. He
also testified that the paper was of the same size as now, and that there was no writing on the
paper at the time.
The witness Gardelli testified that just about Christmas in 1929 he went in a car with the
plaintiff from the Sierra Beverage Company to the county jail in Reno, where he saw the
plaintiff hand to Steffes a bunch of greenbacks, which Steffes put in the safe and gave
plaintiff a receipt therefor.
54 Nev. 176, 184 (1932) Consolazio v. Summerfield
in 1929 he went in a car with the plaintiff from the Sierra Beverage Company to the county
jail in Reno, where he saw the plaintiff hand to Steffes a bunch of greenbacks, which Steffes
put in the safe and gave plaintiff a receipt therefor.
On cross-examination, he testified as follows:
Q. How close were you to Mr. Steffes? A. Not very close.
Q. How close? A. About seven or eight feet. * * *
Q. Were you in the office? A. No, I was on the outside.
Q. What? A. I was in the door.
Q. You were not in the office? A. Yes, I was in the office.
Q. You were in the office? A. Yes, I was in the office.
Q. You were in the office? A. Yes.
Q. About seven or eight feet from Mr. Steffes? A. Yes, about three or four feet; I don't
remember.
Q. You say three or four feet now? A. I don't remember. * * *
Q. How near to Mr. Steffes were you? Were you two feet or three feet, or four feet, or
how far? A. Three or four feet.
3. We think there is a clear conflict in the evidence, and that there is substantial evidence
in the record to support the judgment. The evidence of Professor Heinrich standing alone
justifies this statement. He testified that the signature of Peter Steffes was written on the
paper prior to the writing of the matter constituting this demand. The question is, then, Do the
facts bring the case within the exception to the general rule stated; that is, that it is clear that a
wrong conclusion was reached by the trial judge?
After carefully weighing the evidence, we are unable to say that it is clear that a wrong
conclusion was reached.
The plaintiff impeached himself. He filed a claim, sworn to, in which he asserted that the
note bore interest. On the witness stand he swore that the claim bore no interest; that Steffes
was simply holding the money for him.
54 Nev. 176, 185 (1932) Consolazio v. Summerfield
for him. If he was capable of demanding the interest which he admittedly was not entitled to,
he was capable of fabricating the whole case, and of manufacturing whatever evidence might
be needed to assure his success at the trial. The testimony of the witness Gardelli bears
earmarks of fabrication. If the plaintiff took him to jail at all on December 27, 1929, he took
him for the purpose of having him act as a witness, as he must have known; yet, from his
testimony, he did not know whether he was eight feet from Steffes or two feet when he said
the money passed. In fact, he first testified he was out of the room. We think the trial court
was justified in rejecting his testimony, and, in that event, he was doubly justified in rejecting
the testimony of plaintiff. If he expected to get a signed statement from Steffes, which was
regular in every respect, why was a witness necessary at all? Furthermore, in view of the
contest made in this case by the defendant, one would think that plaintiff would have brought
forward this witness, if he had him, before the expert testified. In our opinion, the court had a
right to look upon this evidence, not only with suspicion, but as spurious. What we have said
of this witness is more or less applicaable to one or two other witnesses for the plaintiff. It
looks like a case of the plaintiff saying, when threatened: Wait till I go out and get some
more witnesses. Of course he presents an excuse for not having called two other witnesses.
One of those witnesses had been discharged for drinking, and his entire story does not ring
true. The other witness' testimony was indefinite.
Steffes had about $15,000 in a savings bank on December 27, 1929, drawing 4 per cent. Is
it likely that he, a man of seventy-five years of age, with his experience, would have signed a
paper agreeing to pay 6 per cent? Furthermore, no trace of the money could be found. It was
not in the safe where plaintiff and Gardelli testified he put it; he did not deposit it in the bank;
he never referred to it in conversation with Sheriff Hillhouse or his attorney who had advised
him for fifteen years, free of charge, and who drew his will and now acts as his executor.
54 Nev. 176, 186 (1932) Consolazio v. Summerfield
for fifteen years, free of charge, and who drew his will and now acts as his executor.
We cannot say that it is clear that the trial court reached a wrong conclusion.
Judgment affirmed.
____________
54 Nev. 186, 186 (1932) Denison v. Ladd Et Al.
DENISON v. LADD Et Al.
No. 2939
April 26, 1932. 10 P.(2d) 637.
1. Contracts.
What constitutes reasonable time for performance of contract depends on nature of contract and
particular circumstances.
2. Vendor and Purchaser.
Approximately four months held reasonable time for vendors to deliver good abstract of title under
circumstances.
Facts disclosed that vendors had unqualifiedly agreed to deliver to purchaser within a
reasonable time from February 5, 1929, the date of the contract, a good and sufficient
abstract of title; that an abstract was delivered about March 27, which did not show good
title; that the purchaser instructed his attorney to clear up the matter, but that the attorney
was not successful in doing so; and that on May 21, 1929, written notice of rescission of
contract was served on vendors.
3. Vendor and Purchaser.
Under vendors' contract to deliver good abstract of title within reasonable time, purchaser owned
vendors no duty to point out defect in abstract delivered, and give vendors reasonable time thereafter to
furnish good abstract.
The purchaser owed vendors no such duty; the burden being upon vendors to furnish
a good abstract of title within a reasonable time as they agreed to do, and a vendor being
presumed to know the condition of his own title.
4. Vendor and Purchaser.
In action for vendors' failure to deliver good abstract of title within reasonable time, facts held not to
show purchaser waived reasonable time provision.
Facts disclosed that purchaser pointed out a defect in the abstract of title delivered to
him, and refused to accept it; that he instructed his attorney to clear up the matter; and that
purchaser, in a letter to the bank which was seeking to collect the second installment on the
purchase price, wrote that he would withhold the second payment until his
attorney reported the abstract was acceptable.
54 Nev. 186, 187 (1932) Denison v. Ladd Et Al.
he would withhold the second payment until his attorney reported the abstract was acceptable.
5. Vendor and Purchaser.
In action for vendors' failure to deliver good abstract of title within reasonable time, facts held to
show vendors did not exercise ordinary diligence.
Facts disclosed that the contract was entered into February 5, 1929; that on March 27
a defective abstract was delivered to purchaser; that as early as April 1, vendors knew that
there was some question about it, yet nothing was done; and that on May 21, 1929, purchaser
notified the vendors of the rescission of the contract.
6. Contracts.
Amount of diligence used is element in deciding whether undertaking has been performed within
reasonable time.
Appeal from Eighth Judicial District Court, Clark County; Frank T. Dunn, Judge
presiding.
Action by J. C. Denison against J. H. Ladd and others. From the judgment for defendants,
plaintiff appeals. Reversed, and new trial ordered.
A. A. Hinman, for Appellant:
What constitutes a reasonable time depends upon the nature of the attendant
circumstances in each particular case, and is defined as meaning as soon as circumstances
will permit, and with such promptitude as the situation of the parties and the circumstances of
the case will allow. 52 C. J. 1182-1184.
As a matter of law, the plaintiff was not bound to point out any defects in the title, nor was
he bound to point out any defects in the abstract, in the absence of a provision in the contract
imposing that duty upon him. 39 Cyc. 1521, nn. 75, 76, 80; Lessnich v. Sellers (Ia), 93 N. W.
348; Brown v. Wilden (Ia.), 103 N. W. 158; McCroskey v. Ladd (Cal.), 28 P. 216. Even when
required by the express terms of the contract, a simple notification in general terms is
sufficient. Danzer v. Monschal, 7 A. L. R. 1162.
The obligation of the defendants was to deliver a good and sufficient abstract within a
reasonable time, regardless of the actual condition of the title.
54 Nev. 186, 188 (1932) Denison v. Ladd Et Al.
Nothing whatever was said by appellant or his attorney granting or extending time to
respondents to cure defects in the title. Assuming, for the sake of argument only, that the
abstract was returned for correction, the time for the delivery of the corrected abstract would
not have been rendered uncertain. On the contrary respondents would then have been bound
by the rule stated in Carroll v. Mundy, 4 A. L. R. 811.
Five days after the date of the contract was a reasonable time within which the abstract
could have been furnished if the title had been as represented and agreed, and respondents
had acted with ordinary diligence.
Stevens, Henderson & Nolan, for Respondents:
We submit that the lower court did follow the rule as to what constitutes a reasonable time,
as stated in 52 C. J. 1182-1184, and found as a fact that a completed abstract could not be
furnished to plaintiff prior to the 24th day of December, 1929, at which time a new and
complete abstract was tendered.
Where the title is in fact good, although it appears to be defective from the abstract
furnished by the vendor, the duty rests on the purchaser to discover the true title, and he is not
justified in declining to perform. 39 Cyc. 1521.
By receiving the abstract and returning it to defendants for correction, plaintiff waived the
failure to furnish an abstract, showing free and clear title, within any specified time,
particularly as the parties had provided in the contract that such abstract should be furnished
within a reasonable time. Carroll v. Mundy et al., 4 A. L. R. 811.
By acquiescence of vendee to the vendors' attempting to cure defects in the abstract,
plaintiff waived the failure of the first abstract furnished to show a title as called for by the
contract. Plummer v. Kennington, 128 N. W. 552.
Under such circumstances it has been held that two and one-half years was not an
unreasonable time. Garrison v. Newton, 4 A. L. R. 804.
54 Nev. 186, 189 (1932) Denison v. Ladd Et Al.
We submit that under the circumstances of this case, where plaintiff had received an
abstract and returned it for correction, that it was the duty of plaintiff to point out any defects
in the abstract. We further submit that where, as in this case, a supplemental abstract was
furnished and tendered to plaintiff, he was bound to receive same and point out any defects
either in the abstract or title, and demand a correction thereof before he could rescind his
contract. Garrison v. Newton, 4 A. L. R. 804; 59 A. L. R. n. 9, p. 248; Maupin on Marketable
Title to Real Estate, p. 818, n. 89; Maupin, supra, p. 818; Maupin, supra, p. 645, sec. 244;
Dozier v. Union Bank & Trust Co., 225 S. W. 611; Wurfel v. Bockler, 210 P. 213; Hobson v.
Lenox (Mo.), 201 S. W. 964, at 966.
OPINION
By the Court, Ducker, J.:
This action was brought by plaintiff to recover the first installment of $10,500 paid on a
contract for the sale and purchase of certain real property situated in the city of Las Vegas,
and damages for the breach of said contract. By the terms of the contract entered into on the
5th day of February, 1929, defendants agreed to sell said property for $28,000 payable as
follows, to wit: $10,500 to be paid at the First State Bank, in the City of Las Vegas, upon the
execution of the agreement and the balance as follows, to wit: $2,187.50 on or before the 5th
day of May, 1929, and $2,187.50 on or before the 5th day of each and every third month
thereafter until the whole of said balance was paid, together with interest at the rate of 8% per
annum on deferred payments.
It was agreed that in the event the plaintiff failed to comply with the terms of the contract
the defendants could, at their option, be released from all obligation, in law or equity, to
convey said property and should forfeit all right thereto, and all money theretofore paid
should be deemed liquidated damages; that the defendants on receiving such payments
at the time and in the manner above mentioned, would, within a reasonable time, execute
and deliver to said plaintiff or to his heirs, successors, or assigns, a restricted grant,
bargain, and sale deed conveying said land free and clear of all incumbrances, except
taxes and assessments assumed or to be paid by the defendants hereunder.
54 Nev. 186, 190 (1932) Denison v. Ladd Et Al.
should be deemed liquidated damages; that the defendants on receiving such payments at the
time and in the manner above mentioned, would, within a reasonable time, execute and
deliver to said plaintiff or to his heirs, successors, or assigns, a restricted grant, bargain, and
sale deed conveying said land free and clear of all incumbrances, except taxes and
assessments assumed or to be paid by the defendants hereunder.
The defendants agreed to deliver to plaintiff, within a reasonable time of date of contract, a
good and sufficient abstract of title prepared and certified by a duly commissioned abstractor,
or by the county recorders of Clark and Lincoln Counties, showing the title to be vested in
defendants free and clear of all liens and incumbrances, and agreed that until such abstract of
title showing title to be vested in defendants as aforesaid was furnished, all further payments
hereunder should be deferred, until the same was so furnished and delivered. It was also
agreed that time is of the essence of this agreement.
The first payment of $10,500 agreed to be paid by plaintiff to defendants upon the
execution of the contract was paid by him. On May 21, 1929, each of the defendants was
served with a written notice of rescission of said contract signed by plaintiff and demand for
the return to plaintiff of said $10,500. The ground of rescission stated therein was that you
and each of you have failed to deliver a good and sufficient abstract of title as provided in
said agreement.
The action was tried by the court without a jury and judgment entered for defendants.
Plaintiff has appealed from the order denying his motion for a new trial.
There are several assignments of error, but they embrace but one point, and that is,
whether the defendants breached the contract by failing to deliver to plaintiff within a
reasonable time from the date thereof a good and sufficient abstract of title to the property
involved as provided in the contract. The trial court held that there was no failure of
performance in this respect, and it is insisted that the findings from which this conclusion
was derived are not supported by the evidence.
54 Nev. 186, 191 (1932) Denison v. Ladd Et Al.
this conclusion was derived are not supported by the evidence.
As previously stated, the contract was executed on February 5, 1929. On this occasion a
clause in the contract as prepared, providing that the abstract should be furnished within thirty
days, was struck out and the clause, within a reasonable time, inserted instead. This change
was made because Mr. Delkin, one of the defendants, objected that the time, thirty days, was
too short. At this time the question of the marital status of one Ben Mounts, a grantor and
grantee in the chain of title, came up, and defendant Ladd agreed to furnish his affidavit that
Mounts was a single man.
The first payment of $10,500 was deposited in the First State Bank of Las Vegas to the
credit of defendants. Shortly after the execution of the contract the defendant Ladd ordered
from Mr. Whitehead, the county recorder of Clark County and a commissioned abstractor, an
abstract of title and told him to prepare the affidavit as to the marital status of Mounts.
The abstract was furnished by Mr. Whitehead and delivered to defendants about March 1,
1929, and was delivered to plaintiff about March 27. He had left Las Vegas for his home in
California on the evening after the contract was executed, and did not return until the latter
part of March. After plaintiff received the abstract he employed Mr. Alward, an attorney at
law, to examine it. Mr. Alward, on the following day, reported that part of the property was
missing from the abstract. Plaintiff instructed Alward to go ahead and clear the matter up, and
left Las Vegas the next morning.
On or about the 1st day of April, Alward met Ladd on the street and told him that plaintiff
had asked him to examine the abstract and he found that lot 1 was missing. Ladd referred him
to Mr. Henderson, an attorney at law. Alward testified that he saw Henderson in his office on
the 1st or 2d of April, but got no satisfaction from him; that he saw Ladd again about the 6th
of April and told him of his conversation with Henderson and that Henderson didn't know
much about the property, that he told Ladd again that plaintiff had employed him to
examine the abstract and that lot 1 was missing; that Ladd said, "I own all that property
and the abstract is all right, he can take it as it is, I will not furnish him with another
abstract."
54 Nev. 186, 192 (1932) Denison v. Ladd Et Al.
and that Henderson didn't know much about the property, that he told Ladd again that
plaintiff had employed him to examine the abstract and that lot 1 was missing; that Ladd said,
I own all that property and the abstract is all right, he can take it as it is, I will not furnish
him with another abstract.
Ladd denied that he made the statement attributed to him by Alward at this meeting.
On May 7, 1929, Ladd notified the bank that plaintiff had failed to pay his installment due
on the contract, and the bank on that day wrote to plaintiff in Newport Beach, Calif., of the
past-due payment. A few days later plaintiff in reply stated that he had not realized that the
time for the second payment had arrived, provided the abstract was acceptable, and, as to that,
his attorney was not quite satisfied with the abstract supplied by Mr. Ladd; that while he felt
Ladd knew the title to the property was all right, yet he did not feel at liberty to make any
further payments until he got a clear report; that to hasten the matter he was writing his
attorney at Las Vegas to check on it to verify the findings one way or the other; that he would
be obliged to withhold check for second payment until he reported the abstract acceptable,
and that as soon as he had heard from his attorney he would communicate with the bank, and
also requested the bank to allow his attorney to examine the abstract.
Nothing further was done in the matter until May 21, 1929, when written notice of
rescission of the contract was served on all the defendants, as before stated. The defendants,
upon receipt of this notice, at once took the matter up with their attorneys, who caused Ladd
to make the affidavit concerning the marital status of Mounts. This affidavit was made and
recorded on May 25, 1929. These attorneys, upon examining the abstract, found several
defects, and proceeded to clear them up. This action was instituted on July 12, 1929. On or
about December 24, 1929, the defendants offered an additional abstract to plaintiff's attorney,
who refused to accept it, and on the same date defendants notified plaintiff by letter, and
requested instructions as to where to deliver the abstract.
54 Nev. 186, 193 (1932) Denison v. Ladd Et Al.
the abstract. They received no answer, and deposited the abstract with the clerk of the court.
1. What constitutes a reasonable time for the performance of a contract depends on the
nature of the contract and the particular circumstances. 13 C. J. 685.
2, 3. We think that under the circumstances a reasonable time for defendants to deliver an
abstract to plaintiff as agreed had expired when the latter exercised his right to withdraw from
the contract. Almost four months had elapsed from the execution of the contract on February
5 to the time when plaintiff served his notice of rescission. There were no material difficulties
in the way of their obtaining an abstract of the record title in Clark County or in Lincoln
County in a short time. The recorder of Clark County furnished it on March 1, and the
recorder of Lincoln County testified that he could have furnished an abstract from his records
in ten days. It is conceded that the evidence shows without dispute that the abstract delivered
on March 27 did not show a good title in defendants. The trial court, in the written opinion,
which we find in the record, seemed to think that plaintiff, when he received the abstract, was
under some duty to point out defects, if any there were, and that defendants would then have a
reasonable time to remedy such defects. Defendants share this view. It is erroneous. It would
have been generous of plaintiff in a business way to do so, but there was no contractual
obligation requiring him to do it. The defendants had unqualifiedly agreed to deliver to
plaintiff within a reasonable time from the date of contract a good and sufficient abstract of
title showing the title to be vested in defendants free and clear of all liens and incumbrances.
Certainly the plaintiff had a right to contract for this, and in doing so he relieved himself of
any duty of pointing out defects. The burden was on the defendants to furnish the abstract
they had agreed to furnish within a reasonable time. Smith v. Taylor, 82 Cal. 533, 23 P. 217;
Boas v. Farrington, 85 Cal. 535, 24 P. 787.
4. A different situation might be presented if the contract had been silent on this point.
54 Nev. 186, 194 (1932) Denison v. Ladd Et Al.
contract had been silent on this point. It is not correct to say that plaintiff waived anything in
this respect simply because his attorney Alward spoke to defendant Ladd and attorney
Henderson about a defect in the abstract, or that he waived the reasonable time agreed upon
by his letter to the bank. There was nothing in either of these circumstances to warrant
defendants in concluding that plaintiff must move in the matter other than to accept or reject
the abstract and thus ratify or withdraw from the contract. There is no evidence of waiver.
Defendants claim they were justified in not delivering an abstract showing good title
earlier than their tender of the supplemental abstract on December 24, 1929, on account of the
conduct of plaintiff in not notifying them of defects, and because they did not know their title
was defective until after the notice of rescission; that they then proceeded with reasonable
diligence to obtain the necessary deeds to clear up these defects and to prepare and offer the
supplemental abstract showing good title.
5, 6. A vendor is presumed to know the condition of his own title. 25 Cal. Jur. p. 554;
Parsons v. Weis, 144 Cal. 410, 77 P. 1007. Moreover, if the defendants did not know that
their title was defective before the notice of rescission, it was the result of their own neglect.
The defendant Ladd knew that there was some question about it as early as April 1, on
account of his contact with Alward; yet he did nothing. They did not exercise ordinary
diligence, and the amount of diligence used is an element to be considered in deciding
whether an undertaking has been performed within a reasonable time. An example of the lack
of diligence shown by defendants is presented in the matter of furnishing the affidavit
concerning the marital status of Mounts. Defendant Ladd agreed to make this affidavit, and
there is nothing to indicate that it could not have been made in a very short time. Ladd failed
to provide it until after the notice of rescission, a period of nearly four months. It is true he
testified that he spoke to the recorder several times about the affidavit, but it was not
necessary to make it before the recorder.
54 Nev. 186, 195 (1932) Denison v. Ladd Et Al.
was not necessary to make it before the recorder. It could have been taken before any officer
authorized to administer an oath.
We find no merit in the contention made by defendants' counsel in concluding their brief
that the complaint does not state facts sufficient to constitute a cause of action.
The judgment is reversed, and a new trial ordered.
____________
54 Nev. 195, 195 (1932) Carter v. City of Fallon
CARTER v. CITY OF FALLON
No. 2906
June 4, 1932. 11 P.(2d) 817.
1. Automobiles.
Generally, rules governing functions of court and jury in civil actions apply in actions for negligent
operation of motor vehicles at street intersections.
2. Negligence.
Contributory negligence is usually question of fact, and becomes question of law only when evidence
will support no other legitimate inference.
3. Automobiles.
Traffic regulation giving right of way to automobile approaching from right must be applied
according to particular circumstances.
4. Automobiles.
Fact one vehicle has right of way over another at street intersection does not relieve driver of favored
vehicle from duty of exercising care to avoid collision
5. Automobiles.
Whether motorist, seeing truck approaching intersection 75 feet to his right with driver watching
electric wires along street, was contributorily negligent in proceeding to cross held for jury.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by J. C. Carter against the city of Fallon. Verdict for plaintiff. From an order
granting a new trial, plaintiff appeals. Reversed.
54 Nev. 195, 196 (1932) Carter v. City of Fallon
John S. Sinai, for Appellant:
A person given the right of way at intersections under a statute or ordinance is still obliged
to exercise ordinary care for the safety of himself and others, and the authorities go even
further and state that this right of way preference is not a privilege which can be exercised
arbitrarily by the right-hand driver, but is dependent upon conditions existing at the time he is
approaching the intersection. Thus, if the left-hand driver is already in the intersection and the
right-hand driver is sixty to one hundred and twenty feet away, then the left-hand driver is not
approaching the intersection, but is already in the intersection, and the right-hand preference,
of course, would not control.
The question of contributory negligence of plaintiff is a matter for the jury, based upon the
state of facts presented to them, and the court may only instruct the jury as to the law of the
case. Schwartz Trial of Automobile Accident Cases, pp. 274, 276-277; Burch v. Southern
Pacific Co., 32 Nev. 75, 104 P. 240; Schultz v. Nicholson, 189 N. Y. S. 722; Ray Mead
Company, Inc., v. Produce Manufacturing Co., 180 N. Y. S. 641; Esmark v. Tandler, 198 N.
Y. S. 644; Simon v. Lit Bros., Inc., 107 Atl. 636; Werner v. Yellow Cab. Co., 188 N. W. 77;
McCurrie v. Southern Pacific Co., 55 P. 324; Rabinowitz v. Hawthorne, 98 Atl. 315; Erwin v.
Traud, 100 Atl. 184; Spawn v. Goldberg et al., 110 Atl. 565; Salmon v. Wilson, 227 Ill. App.
286; Black v. Mark, 116 Atl. 656; Carbaugh et al. v. White Bus Company, 195 P. 1066;
Minnis v. William J. Lemp Brewing Company, 226 S. W. 999; Hughes v. Hudson-Brace
Motor Co. (Kan.), 207 P. 795; Rupp v. Keebler, 175 Ill. App. 610; Brown v. Chambers, 65
Pa. Super. Ct. 373; Barrett v. Alamita Dairy Co., 105 Neb. 658, 181 N. W. 550; Bramley v.
Dilworth, 274 Fed. 267; Ward v. Gildea (Cal.), 186 P. 612; Weber v. Beeson, 197 Mich. 607,
164 N. W. 255; Ward v. Clark, 179 N. Y. S. 466; Golden Eagle Dry Goods Co. v. Mockbee,
68 Colo. 312, 189 P. 850; Bramley v. Dilworth, 274 Fed. 267; Pabst Brewing Co. v. Laitner
{Mo.),
54 Nev. 195, 197 (1932) Carter v. City of Fallon
(Mo.), 208 S. W. 487; Cyclopedia of Automobile Law, Annotated, Blashfield, vol. 2, p. 1751;
Primock v. Goldenberg, 200 N. W. 920; Lee v. Pesterfield (Okla.), 188 P. 674; Waltring v.
James, 111 Atl. 125.
Eli Cann and A. L. Haight, for Respondent:
We do not know upon which theory counsel is proceeding in this matterwhether he feels
(1) that the plaintiff had the right of way by having arrived at the street intersection first; or
(2) that even though the city car had the right of way the city was to blame for the accident
because its driver failed to note the approach of the car from the left.
If it is counsel's view that Carter had the right of way, we respectfully refer him to the
decision of Erle v. Consolidated Truck Co., 46 Atl. 61, that while the first to reach a
crossing had the right of way, yet, where it appeared to him that the other was not yielding
this right, he could not recklessly proceed, but was bound to stop or to turn aside if he could
by the exercise of due care do so.
In Kinney v. King (Cal.), 190 P. 834, it is held that if the driver approaching an
intersection from the left sees a vehicle coming from the right, at such a rate of speed and at
such a point on the intersecting street as will bring the car approaching from the right into
collision with his own if he proceeds along his respective line of approach at his respective
rate of speed, the two vehicles must be deemed to be approaching such intersection
simultaneously, and it thereupon becomes the absolute duty of the driver from the left to yield
the right of way, and he is guilty of negligence per se if he fails to do so.
The ignorance of the driver approaching from the left of the prior right of passage of the
driver from the right will not excuse his failure to accord such precedence, nor will the failure
of the favored vehicle to give a signal of approach, nor the fact that the driver from the left
sounds his horn so excuse; and that the driver from the right would, in exercising his right of
way, put himself and a person unlawfully refusing to recognize such right in jeopardy does
not destroy the right.
54 Nev. 195, 198 (1932) Carter v. City of Fallon
person unlawfully refusing to recognize such right in jeopardy does not destroy the right.
Rosenau v. Peterson (Minn.), 179 N. W. 647; Carlson v. Meusberger (Ia.), 204 N. W. 432;
Dansky v. Kotimaki (Me.), 130 Atl. 871; Halpin v. Tillou (N. J.), 126 Atl. 665.
Statutes and regulations, in granting the right of way to the driver on the right when two
cars are approaching a street intersection at about the same time, are no longer construed as
recognizing the priority of the first vehicle at the intersection as constituting the test of who
has the right of way. Golden Eagle Dry Goods Co. v. Mockbee (Colo.), 189 P. 850.
Furthermore, the law of the State of Nevada recognizes that the old rule in regard to street
intersections has become obsolete and that the true test as to who is entitled to the right of
way should depend upon the time of the arrival of the respective vehicles at the point where
their actual paths will intersect. Stats. 1925, p. 256.
OPINION
By the Court, Sanders, J.:
This case grew out of a collision between plaintiff's automobile and the defendant's truck
within the intersection of Virginia and Esmeralda Streets in the city of Fallon. A jury was
called and sworn to try the issue of defendant's negligence and that of the plaintiff's
contributory negligence. At the conclusion of the testimony introduced by plaintiff the
defendant moved for nonsuit upon the ground that plaintiff had failed to prove a sufficient
case for the jury. The court reserved its ruling on the notion and directed trial to proceed.
When both sides had rested, the defendant renewed its motion for nonsuit and also moved for
directed verdict. The motions were denied upon the ground that the case was one for the jury.
Thereupon the issues were submitted to the jury with twenty-two instructions for its guidance.
The verdict of the jury was in favor of the plaintiff in the sum of $5,000.
54 Nev. 195, 199 (1932) Carter v. City of Fallon
the sum of $5,000. The defendant gave notice of its intention to move for a new trial, stating
in the notice that upon its hearing it would rely upon a memorandum of errors, to be
subsequently filed. The errors assigned were that the court erred in its refusal to grant the
defendant's motion for nonsuit at the close of plaintiff's case, and erred in its refusal to grant
the defendant's motion for directed verdict upon the conclusion of the evidence.
The plaintiff appeals from the order granting to the defendant a new trial.
The court minutes show that the written decision of the court was made a part of its order
granting the motion, from which it appears that the motion was granted solely upon the
ground that plaintiff was guilty of contributory negligence as matter of law.
The evidence warrants the following statement of facts. On May 2, 1927, at the hour of
about 10 o'clock a. m., the plaintiff was driving his automobile east on Virginia Street on the
right side thereof. The defendant's employee, Robert Guire, was driving the defendant's truck
north on Esmeralda street, on the right side thereof. Said streets are sixty feet in width at the
point of intersection. The plaintiff testified that when he reached the intersection he was
driving his automobile at the rate of ten or twelve miles an hour; that as he approached the
intersection he looked to the right and saw defendant's truck seventy-five or eighty feet away,
approaching the intersection at the rate of about twenty-five or thirty miles an hour; that he
observed that the driver of the truck had his vision on electric wires strung on poles erected
along Esmeralda Street; that he continued to cross the intersection at the same rate of speed,
and when he was practically leaving the same, the defendant's truck collided with his
automobile with such force as to greatly damage the automobile and cause the plaintiff
permanent personal injury.
Defendant's employee, Guire, testified that he was an employee of the defendant city as its
city electrician, and that he came into Esmeralda Street from Ferguson Street looking for
wire trouble which had been reported to him, and while driving north on Esmeralda Street
at the rate of about twelve miles per hour, examining the wiring strung from poles along
said street, he did not see plaintiff's automobile until within a few feet of it and did what
he could in the emergency to avoid the collision.
54 Nev. 195, 200 (1932) Carter v. City of Fallon
Street looking for wire trouble which had been reported to him, and while driving north on
Esmeralda Street at the rate of about twelve miles per hour, examining the wiring strung from
poles along said street, he did not see plaintiff's automobile until within a few feet of it and
did what he could in the emergency to avoid the collision.
Upon the trial a traffic ordinance of the city of Fallon was read in evidence, as follows:
The operators of vehicles approaching any intersection of the streets within the City of
Fallon, shall yield the right of way to vehicles approaching such intersection from the right of
such first named vehicles.
The trial court, in its written decision, quotes from the testimony of the plaintiff given on
his cross-examination, as follows:
Q. Did you make any effort to avoid the collision? A. I did not have a chance; it came
right up against me.
Q. You say you saw him when you entered this intersection. Is that true? A. Yes sir.
Q. He was up in there (indicating on blackboard)? A. Yes sir.
Q. You said about seventy-five or eighty feet? A. I judge about seventy-five to eighty
feet.
Q. Did you notice the place where he was looking? A. Yes sir.
Q. And you saw him looking where? A. At the wires.
Q. And not at the road? A. Yes sir.
Q. Did you notice his vision was fixed up there all of the time on the wires and it was not
on the road? A. No, it was not on the road.
Q. Why did you not stop there prior to the time that you came to the point of intersection
of these two cars? A. Well, it was bad enough as it was. If I had stopped he would have struck
me right in the center.
Q. Why did you not stop before you got to that point? A. Why did I not stop?
Q. Yes, why did you not stop? A. I had as much right on the road as anyone else, did I
not? "Q.
54 Nev. 195, 201 (1932) Carter v. City of Fallon
Q. That was the reason you did not stop? A. What was I going to stop for, I had nothing
to stop for.
From this testimony, taken in connection with other evidence, the trial court considered
that the plaintiff was guilty of contributory negligence as matter of law, which was the
proximate cause of his injury and damage. Counsel for defendant, following the argument
advanced in the trial court's ruling and decision, insist that the plaintiff, in direct violation of
the defendant's ordinance, failed to yield the right of way to the defendant's approaching
truck.
1, 2. In general the rules governing the respective functions of court and jury in civil
actions apply in actions growing out of the negligent operation of motor vehicles at street
intersections. Huddy's Ency. of Auto. Law (9th ed.) vol. 17-18, p. 139. This court, in personal
injury cases, has had occasion to hold that where the question of contributory negligence
arises upon a state of facts in regard to which reasonable men might honestly differ, it is a
question for the jury. Smith v. I. O. O. F. B. A., 46 Nev. 48, 205 P. 796, 23 A. L. R. 38;
Crosman v. S. P. Co., 44 Nev. 286, 194 P. 839; Burch v. S. P. Co., 32 Nev. 75, 104 P. 225,
Ann Cas. 1912b, 1166; Bunting v. C. P. R. Co., 14 Nev. 351. The question is usually one of
fact and becomes a question of law only when the evidence is of such a character that it will
support no other legitimate inference. Couchman v. Snelling, 111 Cal. App. 192, 295 P. 845.
3-5. It is argued on behalf of the defendant city that plaintiff, having, in direct violation of
defendant's ordinance, failed to yield the right of way to the defendant's truck approaching the
intersection from the right, no inference can be drawn from the evidence other than that
plaintiff was contributorily negligent. We are not in accord with this argument for several
reasons. In the first place, a traffic regulation giving right of way to an automobile
approaching from the right is relative, and must be applied according to the circumstances of
the case. Bland v. Hershey, 60 App. D. C. 226, 50 F. (2d) 991. In the second place, the mere
fact that one vehicle has the right of way over another at a street intersection does not
relieve the driver of the vehicle thus favored from the duty of exercising due care to avoid
collision at the intersection.
54 Nev. 195, 202 (1932) Carter v. City of Fallon
has the right of way over another at a street intersection does not relieve the driver of the
vehicle thus favored from the duty of exercising due care to avoid collision at the intersection.
Burdette v. Henson, 96 W. Va. 31, 122 S. E. 356, 37 A. L. R. 489, annotation VI, p. 509.
Applying this principle to this case, the jury may have believed that the defendant's employee,
Guire, did not exercise due care to avoid the collision. In the third place, whether the plaintiff,
seeing defendant's truck approaching the intersection from the right seventy-five feet away,
was contributorily negligent in proceeding to cross the intersection, was a question for the
jury. Couchman v. Snelling, supra. The issue of negligence and contributory negligence
having been properly presented to the jury in the first instance and no good or sufficient
reason appearing why the trial court, upon the defendant's motion for new trial, should find
plaintiff guilty of contributory negligence as a matter of law, we conclude that the order
granting to the defendant a new trial should be reversed.
It is so ordered.
On Petition for Rehearing
August 29, 1932. 16 P.(2d) 655.
Per Curiam:
Rehearing denied.
On Costs
December 12, 1932.
1. Costs.
Item charged for typing appellant's bill of exceptions held $71 rather than $90, in
view of uncontradicted affidavit of respondent's attorney.
From decision or ruling of the Clerk of the Supreme Court on objections interposed to the
cost bill on appeal respondent appeals. Appellant's memorandum of costs as allowed by
clerk affirmed as modified.
John S. Sinai, for Appellant.
A. L. Haight and Eli Cann, for Respondent.
54 Nev. 195, 203 (1932) Carter v. City of Fallon
OPINION
By the Court, Sanders, J.:
This appeal is taken from the decision or ruling of the clerk of this court upon the several
objections interposed by the respondent to the appellant's cost bill on this appeal.
It appears that all of respondent's objections were sustained, except as to two items, as
follows: To cost of typing appellant's bill of exceptions, 663 folios at 15 per folio, for one
copy$99.45; to reporter's fees$47.60.
Upon review of the record, it appears that the clerk finds that the bill of exceptions on file
herein does not contain more than 600 folios, and the amount as to this first item should be
reduced from $99.45 to $90. The clerk further finds that the item of $47.60 for reporter's fees
should be stricken from appellant's memorandum of costs.
The question presented for decision is whether under the facts and circumstances as shown
by respondent's objections the cost of the bill of exceptions is not to exceed the sum of $71,
as against the sum of $90, as allowed by the clerk.
It appears that the respondent's attorney of record filed, in connection with the objections
interposed to the appellant's cost bill, an affidavit, which stands uncontradicted, to show how
the bill of exceptions was prepared, settled, and allowed in the court below. It appears from
the affidavit that the transcript of the testimony and proceedings in the court below and
included in the bill of exceptions on file in this cause was directed by the trial court to be
prepared, with a stipulation that each of the parties should bear one-half the cost of the
transcription thereof to be made by the court's official reporter; that the reporter, pursuant to
said direction and stipulation, transcribed and bound three full copies of the testimony, being
the same and only copies which were used, filed, and served in connection with this appeal;
that the reporter's charge in connection therewith was the sum of $95.20; that each party
paid half of said sum, namely, $47.60, which sum represents the entire outlay of the
appellant in connection with such portion of the bill of exceptions; and that the appellant
did not type or cause to be typed nor incur any expense in connection therewith except to
the extent that such transcript of testimony embraced 14S pages or 444 folios of the 663
folios included in the appellant's memorandum of costs, as reduced by the clerk to 600
folios at the sum of $90; that the remaining portion of the bill of exceptions was not in
excess of 12S folios, as shown by a numerical count, and that the maximum amount
which the appellant could in any event be entitled to recover for the cost of typing his bill
of exceptions would be and is the sum of $19.20, as against the sum of $99.45, or the
sum of $90 as allowed by the clerk.
54 Nev. 195, 204 (1932) Carter v. City of Fallon
of $95.20; that each party paid half of said sum, namely, $47.60, which sum represents the
entire outlay of the appellant in connection with such portion of the bill of exceptions; and
that the appellant did not type or cause to be typed nor incur any expense in connection
therewith except to the extent that such transcript of testimony embraced 148 pages or 444
folios of the 663 folios included in the appellant's memorandum of costs, as reduced by the
clerk to 600 folios at the sum of $90; that the remaining portion of the bill of exceptions was
not in excess of 128 folios, as shown by a numerical count, and that the maximum amount
which the appellant could in any event be entitled to recover for the cost of typing his bill of
exceptions would be and is the sum of $19.20, as against the sum of $99.45, or the sum of
$90 as allowed by the clerk.
It is argued on behalf of the respondent that, whether the item of $47.60 be taxed as a part
of the costs on appeal or as a part of the costs in the district court, the effect of the clerk's
ruling makes it obligatory upon the respondent to pay to the appellant the sum of $90, plus
the sum of $47.60, whereas the total liability of the respondent in this connection should be
the total of two items, $23.40 and $47.60, or $71 in all. We are of the opinion that the
argument is not only plausible but reasonable, and are satisfied that the item to be charged for
the cost of typing appellant's bill of exceptions should be the sum of $71, as against $90
allowed by the clerk.
As thus reduced or modified, the appellant's memorandum of costs as allowed by the clerk
stands affirmed.
____________
54 Nev. 205, 205 (1932) Crayne v. Crayne
CRAYNE v. CRAYNE
No. 2970
August 4, 1932. 13 P.(2d) 222.
1. Judgment.
Only final judgments or decrees are res judicata.
2. Divorce.
Interlocutory judgment of divorce in action by wife in another state held no bar to husband's action
for divorce.
3. Divorce.
Plaintiff's reply denying allegations of answer that interlocutory judgment of divorce had force of
final adjudication imposed burden of proof on defendant.
4. Divorce.
Exemplified copy of record including interlocutory judgment of divorce obtained in another state,
held not proof that such judgment had force of final adjudication.
The judgment itself recited that after expiration of one year a final judgment dissolving the
marriage would be entered.
5. Divorce.
Evidence held to show that husband resided within state for required period before commencement of
divorce action.
6. Evidence.
Judicial notice will be taken of fact that Reno is situated in and is the county seat of Washoe County.
7. Evidence.
Judicial notice will be taken of fact that Washoe County constitutes Second judicial district of
Nevada.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit for divorce by Albert B. Crayne against Addie Crayne. From a decree for plaintiff and
an order denying her motion for a new trial, defendant appeals. Affirmed.
Ayres, Gardiner & Pike, for Appellant:
The evidence is not sufficient to establish plaintiff's residence. Certainly no court will take
judicial notice of the fact that the Y. M. C. A. is in Washoe County, Nevada. As individuals
we know that there are many Y. M. C. A.'s throughout the United States. Neither will the
court take judicial notice that 435 Riverside Avenue is in the county of Washoe, State of
Nevada.
54 Nev. 205, 206 (1932) Crayne v. Crayne
We confess that we have had great difficulty in finding authorities concerning just how
much proof of venue is necessary in a suit for divorce. The legislature of the State of Nevada
has specifically declared that residence in divorce cases must be corroborated (Stats. 1931, p.
277). This statute certainly establishes a much more strict requirement of proof than the
criminal law, where no corroboration is required.
Before the trial of this case the issues involved had been decided by a court of competent
jurisdiction of a sister state, which constituted a bar to this trial. It is our contention that
notwithstanding the fact that the decree was only interlocutory in California, that
nevertheless, by the laws of that state, such a decree is a final adjudication of facts. California
Civil Code, sections 131, 132; Gould v. Superior Court, 47 Cal. App. 198, 191 P. 56;
Suttman v. Superior Court, 174 Cal. 244, 162 P. 1032; Bancroft v. Bancroft, 178 Cal. 367,
173 P. 582.
The effect of the interlocutory decree which appellant recovered in California would have
barred a similar action brought in any court of that State. Applying, then, the doctrine
established by the supreme court of the United States in Haddock v. Haddock, 201 U. S. 562,
and also the various cases in this state, such as Silverman v. Silverman, 52 Nev. 152, 283 P.
593, and the various cases cited therein, and Vickers v. Vickers, 45 Nev. 274, 199 P. 76, the
respondent should not be permitted to maintain in the courts of this state a suit which the
interlocutory decree of the court of California would prevent him from maintaining in that
state.
J. G. Willis, for Respondent:
We submit that the trial court's finding on the question of residence of appellant was
justified and is supported by evidence sufficiently authorizing it.
Appellant's decree from the California court lacks the element of finality, the very
necessary element essential to a proper application of the principle enunciated in the
decisions in Vickers v. Vickers, 45 Nev. 274, 199 P. 76, and other Nevada cases cited by
him.
54 Nev. 205, 207 (1932) Crayne v. Crayne
and other Nevada cases cited by him. Mere findings of facts are not pleadable as res judicata;
nor are conclusions of law. It is judgments, having the element of finality, alone, that are so
pleadable. This requirement has been exacted as early as 3 Nev. 386, and finds approval with
this court in 51 Nev. 162, 271 P. 691; so, early and late, the doctrine seems to have
characterized the holdings of this court. That it is consistent with and has met universal
approval, we cite the following: 70 Atl. 119; 78 Atl. 1071 (cited in 193 P. 1065); 297 Fed.
733; 175 N. Y. Sup. 526; Keezer, sec. 536; 67 L. Ed. 226; 24 Fed. (2d) 89, 99 U. S. 168, 25
L. Ed. 385; 13 Fed.(2d) 1014; 125 So. 280 (La.); 157 N. E. 540 (Mass.). California has
likewise so held: 100 Cal. 41, 35 P. 433; 97 Cal. 546, 32 P. 589; 117 P. 539-41; 226 P. 989;
274 P. 522; 280 P. 181.
It would appear from the above holdings, in this and the state of California, the two states
involved, that the question had become static, in a condition of repose; that as long as a
judgment remains subject to judicial modification, or recall, or invalidation, neither faith nor
credit may be claimed under the law of evidence, as declared by the federal constitution.
OPINION
By the Court, Ducker, J.:
This is an action for divorce. The appellant was defendant in the court below, and has
taken this appeal from a decree granting her husband a divorce and the order denying her
motion for a new trial.
The salient facts appear in the following summary: Appellant instituted an action for
divorce against respondent herein on the 8th day of January, 1931, in the superior court of the
State of California, in and for the county of Los Angeles. She alleged in her complaint that
she was then and for more than one year immediately preceding the commencement of the
action had been a bona fide resident of the county of Los Angeles, State of California.
54 Nev. 205, 208 (1932) Crayne v. Crayne
Angeles, State of California. Two causes of action are pleaded in the complaint, failure to
provide and extreme cruelty. As to the former ground, it is alleged that for more than two
years last past defendant had failed and refused to furnish her with the common necessities of
life; he having at all times been able to do so. As to the latter ground, it is alleged that on
January 20, 1930, plaintiff and defendant separated, at which time the defendant deserted and
abandoned her, and that for more than one year prior to said separation he had treated her in a
cruel and inhuman manner and had inflicted upon her a course of great and grievous mental
and physical pain and suffering, and in more particular as follows: That during said period of
time he had continuously, and on occasions too numerous to mention, stayed away all night
from their home, and had repeatedly refused to account for his whereabouts to her, or advise
her where he had been. It is alleged that during said period of time he had made numerous
arrangements and engagements to take her to dinner and to their friends and acquaintances on
many occasions, the exact dates of which were unknown to her, and had, without provocation
or excuse, broken said engagements, and on many occasions had permitted her to wait for
him at public places for several hours at a time without appearing. It is alleged that he had
repeatedly stated to her that he cared nothing for her, that he would no longer live with her,
and that he wanted a divorce. It is alleged that said acts and conduct had inflicted upon her a
course of great and grievous mental and physical pain and anguish, and that, by reason
thereof, her health was injured and her nerves impaired.
Service of summons was made upon him by publication, and, upon his failure to appear or
answer within the time required by law, default was entered against him on the 28th day of
April, 1931. Thereafter on the same day the case was heard and an interlocutory judgment of
divorce in her favor and against him was duly rendered and entered. In said interlocutory
judgment all of the allegations of the complaint are found to be true, and it is adjudged that
plaintiff is entitled to a divorce from defendant; that, when one year shall have expired
after the entry of this interlocutory judgment, a final judgment dissolving the marriage of
plaintiff and defendant be entered, and at that time the court shall grant such other and
further relief as may be necessary to a complete disposition of this action.
54 Nev. 205, 209 (1932) Crayne v. Crayne
true, and it is adjudged that plaintiff is entitled to a divorce from defendant; that, when one
year shall have expired after the entry of this interlocutory judgment, a final judgment
dissolving the marriage of plaintiff and defendant be entered, and at that time the court shall
grant such other and further relief as may be necessary to a complete disposition of this
action.
On the 4th day of February, 1931, the said husband, respondent herein, instituted the
present action for divorce against appellant in the Second judicial district court of the State of
Nevada. As to his residence he alleged in his complaint herein that he is, and for more than
three months last past has been, a bona fide resident of Washoe County, Nevada; his said
residence consisting of his actual continuous physical presence at and in the said county
during all of said period of time. He alleged that he and the defendant intermarried on the
28th day of May, 1920, at Tucson, in the State of Arizona. For cause of action he alleged that
since and during their married life his wife has been repeatedly guilty of cruel and inhuman
treatment towards him to such a degree and extent that by reason thereof they had separated
and lived apart several times prior to their present separation. He alleged that said conduct on
her part consisted of abusive language used towards him; nagging and finding fault with him
to such degree of frequency as to be almost continuous, and this without cause or reason
therefor on his part; that because thereof he, in order to have the least peace of mind, and to
prevent as far as might be the continual worry and mental distress that possessed him, all the
result of her said conduct, separated from her finally on the 10th day of January, 1930; since
which time they have not resumed marital relations.
Appellant answered, and in her answer denied all of the allegations of cruelty in the
complaint, and set up four separate defenses. For a second and separate defense she alleged
that respondent deserted her on or about January 30, 1930. For a third and separate defense
she alleged the failure to provide the common necessities of life.
54 Nev. 205, 210 (1932) Crayne v. Crayne
necessities of life. For a fourth and separate defense she alleged his extreme cruelty by
substantially the same allegations set out in her complaint in the California court. For a fifth
and separate defense she pleaded the trial and interlocutory judgment in the California action,
and among other things averred that in that action she had alleged in her complaint all matters
set forth by her in the second, third, and fourth defenses in her answer in the present action;
that the issues made and determined in the California case are identical with the issues
tendered and allegations made in said defenses; and that said interlocutory judgment is a final
adjudication of the issues made in the pleadings herein, and of the facts found in said
judgment.
It is also averred in said fifth and separate defense that said superior court of the state of
California, in and for the county of Los Angeles, is a court of record, and has a clerk and seal,
and that said county of Los Angeles, State of California, is the last place in which the parties
lived and cohabited together at the time of their separation, and for a long period theretofore
was the domicile of both and each of them, and was and still is their matrimonial domicile.
The material allegations of the answer are denied in the reply.
At the trial in the court below, after respondent had concluded his case, appellant
introduced in evidence an exemplified copy of the record in the California case including said
interlocutory judgment, and rested.
1. Appellant makes two points on this appeal: First, that the evidence is not sufficient to
prove the residence of respondent; second, that the interlocutory judgment is a bar to
respondent's action. We will determine the second point first. Respondent does not deny, and
cannot deny, that the issues determined in the California case are identical with the issues
tendered in appellant's answer. He contends, however, that the interlocutory judgment lacks
the element of finality essential to a proper application of the principle of res adjudicata, and
cannot therefore operate as a bar to respondent's action.
54 Nev. 205, 211 (1932) Crayne v. Crayne
It is well settled that the doctrine of res adjudicata is available only after a final decree has
been entered. The Whitman Gold & Silver Mining Co. v. Baker, 3 Nev. 386; New York Cent.
& H. R. R. Co. v. T. Stuart & Son Co., 260 Mass. 242, 157 N. E. 540; In Re Rick's Estate,
160 Cal. 467, 117 P. 539; Individual Drinking Cup Co. v. Errett (C. C. A.) 297 F. 733; People
ex rel. Multer v. Multer, 107 Misc. 58, 175 N. Y. S. 526.
The reason that such a judgment is the bar is that other preliminary determinations of the
court and jury may be modified or set aside. Oklahoma City v. McMaster, 196 U. S. 533, 25
S. Ct. 324, 49 L. Ed. 587. The principle upon which the rule of res adjudicata is founded is
that the point has already been decided between the parties, or their privies, by a court of
competent jurisdiction, and that future litigation would be useless and vexatious. Cummings
v. Banks, 2 Barb. (N. Y.) 602. As stated in McLeod v. Lee, 17 Nev. 103, 28 P. 124, this rule
is necessary for the repose of society. The prevention of the retrial of such litigated points in
another action is the purpose of the full faith and credit requirement of the federal
constitution, and that purpose would be largely frustrated if anything short of a final judgment
were permitted to prove a bar to an action upon the principle of res adjudicata. Interlocutory
orders or judgments will not therefore operate as res adjudicata. The Whitman Gold & Silver
Mining Co. v. Baker, supra; Drake v. Drake, 76 N. H. 32, 78 A. 1071; People ex rel. Multer
v. Multer, supra; Individual Drinking Cup Co. v. Errett, supra; De Forest Radio Tel. & Tel.
Co. v. Westinghouse Electric & Mfg. Co. (D. C.) 13 F. (2d) 1014; Hills & Co. v. Hoover (C.
C.) 142 F. 904; 2 Freeman on Judgments (5th ed.), secs. 627a, 717.
2. It is obvious that the judgment pleaded and proved in this case is an interlocutory
judgment because it shows upon its face that, when one year shall have expired after its entry,
a final judgment dissolving the marriage will be entered. Hence it could not, under the
general rule above stated, operate as a bar to respondent's action.
54 Nev. 205, 212 (1932) Crayne v. Crayne
3, 4. But appellant contends, and it is alleged in the answer, as previously stated, that it has
the force and effect of a final adjudication. These allegations are all denied in the reply. By
virtue of this denial the burden of proof was thrown on appellant. If the interlocutory decree is
a final adjudication, as she alleged, and is in full force, effect, and virtue, it was incumbent on
her to prove the facts from which the same could be inferred. This was not done by the
evidence of the judgment roll in the former case. If appellant had proved the laws of
California governing interlocutory judgments of divorce and that the interlocutory judgment
in this case was in full force and effect as she alleged, she might have satisfied the burden of
proof placed upon her by the pleadings. As it is, she has failed in her proof in this regard.
The first point, which we passed temporarily, is without merit. It is lodged upon the fact
that none of the witnesses, including respondent, testified directly that his residence during
the three months immediately prior to the filing of the complaint was in Washoe County. The
first witness, Mr. L. Powell, the assistant secretary of the Y. M. C. A., testified that he had
known respondent since the afternoon of November 1, 1930; that he became acquainted with
him at the Y. M. C. A.; that respondent was residing there from that period until January 10,
1931, continuously; that after the respondent ceased residing at the Y. M. C. A. he saw him
every two or three days when he came to call for his mail. Mrs. Neil Barber testified that she
resided in Reno, Nevada, and had known respondent since January 10, 1931, when he came
to her and rented a room, that he resided there up to February 6, 1931, and that she saw him
every day from that time to February 6, 1931, and knew he resided there during that time.
Respondent testified that he resided at Reno and began his residence there November 1,
1930, at the Y. M. C. A.; that he resided there until January 10, 1931; that after that date he
continued to reside in Reno at Mrs. Barber's house, and resided there until February 6, 1931.
At the conclusion of counsel's examination of respondent, the following took place
between the trial court and respondent:
54 Nev. 205, 213 (1932) Crayne v. Crayne
respondent, the following took place between the trial court and respondent:
The Court: Q. You intended to make this place your permanent home when you came
here? A. I did.
Q. And that intention remains with you down to the present time? A. Yes sir.
5-7. The foregoing testimony is sufficient to prove the residence of respondent in Washoe
County, Nevada, for the required period prior to the commencement of the action. The courts
can take judicial knowledge of the fact that Reno is situated in Washoe County and is the
county seat thereof. State v. Buralli, 27 Nev. 41, 71 P. 532. Judicial notice may be taken also
of the fact that Washoe County constitutes the Second judicial district of Nevada.
The judgment and order appealed from are affirmed.
____________
54 Nev. 213, 213 (1932) State v. Hall
STATE v. HALL
No. 2966
August 4, 1932. 13 P.(2d) 624.
1. Homicide.
First degree murder conviction held sustained by evidence, as against defenses of self-defense and
that killing occurred in chance mele upon sudden impulse (Comp. Laws 1929, sec. 10068).
2. Criminal Law.
That defendant was intoxicated does not render confession inadmissible, unless he was unconscious
of what he was saying.
3. Criminal Law.
Unless defendant was unconscious of what he was saying, weight of confession as affected by
intoxication is for jury.
4. Criminal Law.
In murder prosecution, sufficient foundation held laid to render defendant's admissions admissible, as
against contention defendant was intoxicated.
Witnesses testified that no inducements or rewards were offered to defendant, and that no
threats were made to induce him to confess the killing, and, while testimony indicated that he
had been drinking to some extent prior to making statements attributed to him by officers and
other witnesses, there was testimony upon which jury could conclude that defendant's mind
was not in maudlin condition and that he knew what he was saying.
54 Nev. 213, 214 (1932) State v. Hall
5. Criminal Law.
Defendant not requesting specific instruction respecting manner of weighing confession held not
entitled, on appeal, to complain of lack of such instruction.
It appeared that no objection was taken to admission of defendant's statements on
ground of intoxication, nor was it otherwise pointed out or suggested to trial court that
statements of defendant were considered objectionable on that score, and trial court
instructed generally in regard to way in which jury should consider and weight the evidence
in the case.
6. Criminal Law.
In murder prosecution, testimony that defendant, immediately after shooting, beat deceased's wife
with gun held admissible as part of res gestae, though tending to prove another offense.
7. Homicide.
In murder prosecution, testimony that defendant, immediately after shooting, beat deceased's wife
with gun, held admissible to prove motive and malice and to rebut claim of self-defense, though tending to
prove another offense.
8. Criminal Law.
Evidence of another offense is admissible if tending directly to prove defendant's guilt of crime
charged.
9. Criminal Law.
Instruction, on first degree murder, that fixed design maliciously to kill before fatal blow is sufficient,
held not misleading as omitting element of premeditation, in view of other instructions (Comp. Laws 1929,
secs. 10068, 10069).
Instruction did not tend to lead jury to believe that such fixed design need not be
result of premeditation or deliberation to constitute first degree murder, since, in another
instruction, court defined manslaughter in language of Comp. Laws 1929, sec. 10069, and, in
the instruction preceding instruction complained of, court defined first degree murder in
language of section 10068, and since element of premeditation or deliberation was repeated
in preceding sentence of instruction complained of.
10. Criminal Law.
Supreme court must presume that jury followed instruction.
11. Homicide.
It is sufficient to constitute first degree murder if deliberation was formed at moment of firing fatal
shot (Comp. Laws 1929, sec. 10068).
12. Homicide.
That instruction on first degree murder omitted to state that deliberation could be formed at moment
of firing shot held favorable error, of which defendant could not complain (Comp. Laws 1929, sec. 10068).
54 Nev. 213, 215 (1932) State v. Hall
13. Homicide.
Instruction defining malice aforethought held correct.
Court stated that to constitute malice aforethought it is not always necessary that
there exist in mind of slayer an intention or design to take human life, for, when an
unintentional killing happens in commission of unlawful act, which in its consequences
naturally tends to destroy the life of a human being, the evil or unlawful purpose, motive, or
design with which such unlawful act is done constitutes malice aforethought and makes
even such involuntary killing murder.
14. Homicide.
In murder prosecution, instruction that design with which unlawful act, tending to destroy life, is done
constitutes malice aforethought, held not prejudicial, though inapplicable under evidence.
15. Homicide.
Instructions that words deliberation and premeditation are synonymous or equivalent terms held
correct.
16. Criminal Law.
Instruction that intent to kill may be deduced from use of deadly weapon and attendant circumstances
held not erroneous as invading jury's province (Comp. Laws 1929, sec. 10068).
Instruction was not erroneous as against contention that it invaded province of jury by
telling jury in effect that intent to kill was presumed from act of killing and use of deadly
weapon.
17. Homicide.
Jury may ascertain intent to kill from use of deadly weapon and attendant circumstances (Comp. Laws
1929, sec. 10068).
18. Homicide.
Instruction that jury may presume intent to kill from assault with deadly weapon in manner reasonably
calculated to produce, and actually producing, death, unless from all evidence jury entertain reasonable
doubt as to such intention, held correct (Comp. Laws 1929, sec. 10068).
19. Homicide.
In murder prosecution, instruction that intention is manifested by circumstances connected with
perpetration of offense and sound mind and discretion of accused held correct (Comp. Laws 1929, sec.
9956).
20. Criminal Law.
Instruction respecting required degree of proof of guilt held not to violate statute forbidding other
than statutory definition of reasonable doubt, nor prejudicial (Comp. Laws 1929, secs. 10963, 10964).
Instruction was to effect that guilt need not be established beyond any doubt or to
absolute certainty, but merely beyond reasonable doubt as thereafter defined in statutory
terms.
54 Nev. 213, 216 (1932) State v. Hall
21. Criminal Law.
Instruction requiring jury in determining facts, to be governed solely by evidence and reasonable
inferences, held not erroneous.
Instruction stated that, in determining questions of fact, jury should be governed
solely by evidence introduced and admitted before them; that they were to bring to
consideration of evidence their everyday common sense and judgment as reasonable men;
that they should act on those just and reasonable inferences and deductions which they would
ordinarily draw from facts and circumstances proved in the case; and that they were not to
fancy situations or circumstances which they could not draw from evidence.
22. Homicide.
Instruction that, to justify homicide on ground of self-defense, it must appear that slayer was
reasonably without fault in bringing on difficulty, held not misleading.
Such instruction was not open to objection that words without fault included any
trivial fault and that jury might have believed from instruction that, when defendant told
deceased to drive on with automobile because there were some things he wanted to talk to
him about, that was such a fault as deprived defendant of right of self-defense, since the
words reasonably without fault were sufficient to preclude such understanding, and jury
were clearly instructed as to self-defense, where court gave another instruction on
self-defense, predicated upon the evidence introduced by defendant, which correctly stated
law applicable upon such theory.
23. Homicide.
To justify killing on ground of self-defense, slayer must be without fault in bringing on encounter or
must have endeavored, in good faith, to decline further struggle before mortal blow.
24. Criminal law.
Defendant desiring more explicit instruction respecting fault in bringing on encounter which would
make self-defense unavailable should prepare and request instruction.
25. Criminal Law.
Instruction that minority of jurors should consider whether to distrust weight or sufficiency of
evidence which failed to carry conviction to majority held not erroneous as comment upon weight and
sufficiency of evidence.
It was within discretion of court to give instruction embodying such statement to all
the jurors in discharge of their duty, if court thought proper to do so.
54 Nev. 213, 217 (1932) State v. Hall
26. Criminal Law.
Each juror must consult with fellows and consider their views, but ultimately each must act upon own
convictions.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
John Hall was convicted of murder in the first degree, and he appeals. Affirmed, with
directions.
Frame & Raffetto and Louis Cohn, for Appellant:
It is the contention of appellant that in view of the maudlin condition of defendant, the
aftermath of excessive drinking, that the statements of the defendant at the times mentioned
in the testimony were involuntary, and that there is not a sufficient showing of the free and
voluntary character of the statements to make the same admissible, and that, therefore, the
admission of the same, over defendant's objection, without a proper foundation being laid,
was erroneous and highly prejudicial to the defendant. It may be observed in this connection
that the court failed to instruct the jury at all as to the weight to be given to the alleged
confessions or admissions of the defendant.
Appellant further assigns as error the admission of the testimony of Mrs. Theresa O'Brien,
witness for the state, and other kindred testimony, upon the ground that the same essentially
tended to prove the commission of a separate and distinct offense; that the same having
occurred after the shooting of the deceased, is not admissible under the exception to the rule
rejecting the evidence of other offenses. The same was not a part of the res gestae. The
encounter with Mrs. O'Brien, having occurred subsequent to the shooting of O'Brien, resolved
itself into another transaction. State v. McFarlin, 41 Nev. 486, at 494, 172 P. 371; State v.
Ferguson, 9 Nev. 106; State v. Ah Loi, 5 Nev. 99; State v. O'Connor, 11 Nev. 416, at 423.
Instruction No. 11 utterly ignores the well-established definition of the word
deliberation, which means prolonged meditation and deliberation, under circumstances
negativing the idea that the killing resulted from the heat of passion or from adequate
provocation, rather than a deliberate killing done in a cool state of the blood.
54 Nev. 213, 218 (1932) State v. Hall
negativing the idea that the killing resulted from the heat of passion or from adequate
provocation, rather than a deliberate killing done in a cool state of the blood. And under State
v. Thompson, 12 Nev. 140, it may be gleaned from said instruction No. 11 that when the
fixed purpose to kill precedes the killing that this, as a matter of law, established deliberation
and removes the question from the consideration of the jury, especially so because of its
failure to distinctly inform the jury that the question of whether the elements of the crime did
exist was a question of fact for the jury to determine from all the evidence, facts and
circumstances of the case. State v. Vaughan, 22 Nev. 285, 39 P. 733.
Instruction No. 15 does not correctly state the law as to the legal definition of malice
aforethought. It is so broad in its scope that the lay minds of the jury might have concluded
that even though the killing was under provocation, or even in self-defense, that because of
the cruel and aggravated circumstances they were justified in finding the defendant guilty of
murder of the first degree, even though the evidence failed entirely to establish the elements
of deliberation and premeditation. The latter portion of this charge is clearly inapplicable to
the facts in the case at bar.
Instruction No. 17 is clearly a misstatement of the law and incorrectly defines
deliberation. As an element of murder of the first degree this instruction erroneously tells
the jury that the words deliberation and premeditation are synonymous or equivalent
terms.
Instruction No. 21 invades the province of the jury and tells the jury as a matter of law that
the jurymen are entitled to presume the intent to kill from the use of a deadly weapon, where
death ensues. Upon this subject the law is that intent may be inferred from all of the facts and
circumstances of the case. The decision of this question is not determined by any rule of law,
but is essentially a question of fact to be determined by the jury. State v. Pappas, 39 Nev. 40,
152 P. 571; State v. McKinnon, 41 Nev. 182, 168 P. 330, and cases cited.
Instruction No. 34 is misleading and is a violation of the terms of the statute which
prohibits the giving of any definition or instruction upon the doctrine of reasonable doubt
other than that adopted by the statute and therein set forth.
54 Nev. 213, 219 (1932) State v. Hall
the terms of the statute which prohibits the giving of any definition or instruction upon the
doctrine of reasonable doubt other than that adopted by the statute and therein set forth.
Sections 10963 and 10964 N. C. L. 1929.
Instruction No. 39 is in many respects an incorrect and inaccurate statement of the law,
especially in telling the jury that they are to make those just and reasonable inferences from
the circumstances proven which the guarded judgment of reasonable men would ordinarily
make under like circumstances.
Instruction No. 40b is erroneous in that the court did not, in that instruction or in any
instruction in the series, instruct the jury or even intimate that the defendant might lawfully
defend himself in case he was at fault, or voluntarily enter into the difficulty, if the same was
not with the felonious intent to kill the deceased or to do him bodily harm. State v. Smith, 10
Nev. 106.
Instruction No. 30 invades the province of the jury and assumes that the defendant committed
an offense in telling the jury that the intent may be ascertained from the circumstances
surrounding the commission of the offense.
Instruction No. 41 is clearly erroneous, in that a portion of it tells the jury, in effect, that
the minority of the jury should doubt the reliability of the testimony upon which they based
their conclusions, because of the fact that the greater number of their fellows was not
impressed by the same evidence. This is a comment on the weight and sufficiency of the
evidence, and invades the province of the jury.
The evidence taken as a whole tends reasonably to establish that the killing occurred in a
chance melee, upon sudden impulse, and that the elements of deliberation and premeditation
necessary to make the same murder of the first degree are entirely lacking.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; Harley A.
Harmon, District Attorney; and Roger Foley, Deputy District Attorney, for the State:
54 Nev. 213, 220 (1932) State v. Hall
Attorney; and Roger Foley, Deputy District Attorney, for the State:
A reading of the evidence as set forth in the bill of exceptions is sufficient to convince the
court that the verdict returned by the jury in this case was justified thereby.
It is an established law that a confession is not rendered involuntary or inadmissible in
evidence because the defendant was not, at the time, in full possession of his faculties. 8 Cal.
Juris. 111, n. 9. See, also, People v. Miller 135 Cal. 69, 67 P. 12; 16 C. J. 628, sec. 1244, n.
11; People v. Farrington (Cal.), 74 P. 288. A collection of cases on the subject is to be found
in the note to Ammons v. State (Miss.), in 18 L. R. A. (n. s.) 788, 789.
The evidence of the admissions and confessions of the defendant in this case was clearly
admissible. If counsel for defendant remained silent with respect to such instructions as he
might desire concerning such evidence, and failed to make a request for them at the time of
the instructing of the jury, he cannot now complain. Clark Criminal Procedure (2d ed.), p.
550, and cases cited.
We believe the testimony shows that the shooting of deceased and the assault upon Mrs.
O'Brien were parts of the same transaction. Also, the assault upon Mrs. O'Brien followed so
closely the shooting of her husband that it would be admissible also for the purpose of
showing motive, intent and absence of mistake or accident. State v. McFarlin, 41 Nev. 486.
We think that instruction No. 11 clearly and concisely states the law upon the question of
deliberation and premeditation. A very similar instruction has been considered by this court,
and decided adversely to the contention of the appellant here, in State v. Acosta, 49 Nev. 184,
242 P. 316.
Instruction No. 15 does not say that the killing under the circumstances stated in the
instruction would be murder in the first degree, as implied by appellant, but says that under
the circumstances such involuntary killing would be murder. The jury was instructed fully as
to the degrees of murder and as to manslaughter, in other instructions, and we submit
that the last sentence of instruction No.
54 Nev. 213, 221 (1932) State v. Hall
to the degrees of murder and as to manslaughter, in other instructions, and we submit that the
last sentence of instruction No. 15 only amplifies instruction No. 27, which is clearly the
statute (sec. 10072 N. C. L.) defining involuntary manslaughter. Further, the law is that
malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. Sec. 10067, N. C. L.
See, also, the following: State v. McGuire, 80 Atl. 761; Banks v. State, 211 S. W. 217; sec.
9978 N. C. L.
The words deliberate and premeditated as used in the statutory definition of murder
are of similar importeach implies the other. State v. Lopez, 15 Nev. 407.
We do not agree that instruction No. 21 is identical with the instructions held erroneous in the
cases of State v. Pappas, 39 Nev. 40, 152 P. 571, and State v. McKinnon, 41 Nev. 182, 168 P.
330. We think the instruction here complained of follows the form mentioned at page 42 of
the Pappas case; if so, it was not error to give it. A similar instruction was sustained in State
v. Muldoom, 51 Nev. 329, 275 P. 1.
We think defendant was not prejudiced by the giving of instruction No. 34. It in no way
qualified the statutory definition of reasonable doubt which was given to the jury in
instruction No. 35 immediately thereafter. We submit this instruction did no more to the
reasonable doubt definition than did the instruction defining abiding conviction in the
statutory definition of reasonable doubt, in the case of State v. Hunter, 48 Nev. 358, at 365,
332 P. 778.
Appellant's contention that instruction No. 39 takes from the jury, or juror, the right to
draw its or his own conclusions as to what the evidence showed, and that the instruction
substitutes what the judgment of other men might be for the judgment of the juror or jurors
trying the case, is, we think, without merit. Nothing in the instruction can be said to take away
the independence of the jury. It is proper to instruct the jury to apply to the facts in the case
the sound common sense which is supposed to characterize their daily transactions.
54 Nev. 213, 222 (1932) State v. Hall
the facts in the case the sound common sense which is supposed to characterize their daily
transactions. 1 Randall, Instructions to Juries, 692, citing Dunlop v. U. S., 41 L. Ed. 799.
The law is well settled that a defendant setting up self-defense to a charge of murder must
not have been the aggressor to the extent that he willfully provokes another to attack him in
order that the aggressor may have an excuse to kill. The language complained of in
instruction No. 40b does not go so far as to say that the slayer must be free from all fault, but
only that he be free from such fault as would denominate him the aggressor beyond that
permitted by the law of self-defense. If there is any error in the instruction, it is that it is more
favorable to the defendant than the circumstances of the case warranted. State v. Huber, 38
Nev. 253, at 262, 148 P. 562.
We think the record does not disclose that the defendant requested any other instruction
upon the matter involved in instruction No. 40b. If the defendant considered that it was
important, under the circumstances, to have the jury instructed as to just what fault in
bringing on the difficulty would have deprived defendant of his right to kill, or what would
constitute being without fault on his part, surely it was the duty of defendant's counsel to
request such an instruction. State v. Smith, 10 Nev. at p. 122.
We do not agree with the contention of appellant that instruction No. 20 is erroneous, that
it invades the province of the jury; neither does it tell the jury that the use of a deadly weapon
is sufficient proof of the intent to kill. It is true that the intent to murder cannot be
conclusively inferred from the mere use of a deadly weapon; but when a deadly weapon is
used in a manner likely to produce death, and death results, the presumption is that the person
used such weapon intending to kill, and that such intent is a malicious one. State v. Newton, 4
Nev. 410.
Further, intent, though a material element of the offense covered by the instruction, need not
to be proved by positive and direct evidence, but may be inferred from the conduct of the
parties and other facts and circumstances disclosed by the evidence.
54 Nev. 213, 223 (1932) State v. Hall
by positive and direct evidence, but may be inferred from the conduct of the parties and other
facts and circumstances disclosed by the evidence. State v. Thompson, 31 Nev. 209, 101 P.
557.
We submit that instruction No. 41 is not erroneous. It comes within the rule stated by the
court in State v. Hennessy, 29 Nev. 320, at 341343, 90 P. 221.
OPINION
By the Court, Ducker, J.:
The appellant, John Hall, was convicted in the district court of Clark County of the crime
of murder of the first degree. The jury exercised their discretion and fixed the punishment at
death. The appeal is taken from the judgment and order denying appellant's motion for a new
trial.
1. The conviction of appellant resulted from his killing one John C. O'Brien by shooting
him with a pistol on the night of June 15, 1931, near what was known as the Fox ranch
situated about six miles south of the city of Las Vegas, Nevada. O'Brien, Hall, their wives,
and the former's stepdaughter, Lillian, had been living together at the Fox ranch in a
two-room house for a few days prior to the time of the homicide.
The shooting occurred about 10:30 at night, when they were going to their home from Las
Vegas in an automobile. Mrs. O'Brien, as a witness for the state, gave substantially the
following version of the affair: Mr. O'Brien was sitting at the wheel, I was sitting in the
middle and my daughter on the side. Mr. and Mrs. Hall were sitting in the back seat. When
we got near our home where we generally stopped the car Mr. Hall hollered, Drive on and
don't stop.' Mr. O'Brien drove a short distance, stopped the car, looked back and hollered,
What's the idea?' Then Mr. Hall commenced shooting. My daughter and I got out of the right
side of the car and Mr. O'Brien followed us the same way. Mr. Hall shot twice while in the
car and then got out the left side of the car and shot four times more.
54 Nev. 213, 224 (1932) State v. Hall
of the car and shot four times more. I ran around to stop Mr. Hall from hurting my husband
further and Mr. Hall hit me. He hit me on the top of the head. He just kept on hitting me then
on the head. I kept falling down and getting up. He was cursing all the time. These words I
can remember, G d you, I'll get you too.' I ran around the car and asked Mrs. Hall if she
would help me. She started beating me up. At the time Mrs. Hall hit me, Mr. Hall was after
Lillian. He hit me with a gun. He hit me a good many times and knocked me down. I asked
Lillian to run for help. He said there is no need of going for help. He was right behind us. We
ran down through the bushes.
Lillian, Mrs. O'Brien's daughter, was also a witness for the state. She testified that she was
15 years of age. She gave the following account of the affair: On the evening of June 15,
1931, about 10:30 in the evening, my daddie, mother, myself and Mr. and Mrs. Hall were on
our way home in a Studebaker car. Mr. O'Brien was driving, my mother was in the middle of
the front seat and I was sitting on the outside of the front seat. Mr. Hall told my father not to
stop the car. He stared to stop and Mr. Hall took out the gun and started to shoot. After the
shooting he beat my mother. I started after my mother, and she said to go after father. I started
to go down the road after him and he said he was all right. I then went after mother. Mr. Hall
was beating her. I heard six shots, two in the car and four outside. I saw no gun or anything
else in the hands of Mr. O'Brien.
N. R. Burkhart was driving his car on the highway past the Fox ranch between 10:30 and
11:00 on the night of the shooting. He saw O'Brien in the road in front of him with both
hands up. His shirt was bloody, and he was staggering. Burkhart took O'Brien to the Las
Vegas Hospital, where he died shortly afterwards on that night. An examination of the body
by a physician and surgeon revealed bullet wounds, one of which, a wound through the chest,
was the cause of death. The bullet causing the latter wound entered the back about two inches
from the spine and emerged in front near the nipple.
54 Nev. 213, 225 (1932) State v. Hall
two inches from the spine and emerged in front near the nipple.
Hall and his wife were taken into custody at Yermo, Calif., on the morning of July 16,
1931, by Lester Sample, an inspector with the highway border patrol. Hall was asked by
Sample why he killed those folks at Las Vegas, and replied: I didn't kill any body. Sample
told him that he did, and Hall said: Why, there was a little shooting went on out there, some
shooting. I didn't know I hit any of them. Sample asked him where his guns were, and Hall
said he had no guns. Sample found two guns in Hall's suitcase. They were pistols.
A short time afterwards Hall told Sample that O'Brien stole six or seven hundred dollars of
his money. He said: I knew that he got this money and I rented this ranch to watch him and
if I caught him spending any of this money I was going to kill him. If he is dead I sure am
glad of it. I was going to shoot him before at their home but my wife interfered and wouldn't
let me. If I die in the electric chair he won't be able to spend any of my money.
When Hall and his wife were taken into custody by Sample, they had come into Yermo on
a motor express truck. The driver of the truck, T. V. Shafer, testified that they were walking
along the road about 1:30 a. m. June 16, 1931, when he took them into the truck. He
corroborated Sample in the main as to the statements made by Hall, and in addition testified
that Hall said: He would hate for his friends back in South Carolina to know that he had
fired six shots at a man and only hit him three times. He also testifed that Hall said that he
was glad he did it because O'Brien deserved everything he got. Hall and his wife were
detained at Yermo until the arrival of Joe Keate, sheriff of Clark County, on the same day.
Hall waived extradition, and he and his wife returned to Las Vegas in the car with the sheriff
and his deputy, Mr. Bodell.
The deputy drove the car. Mrs. Hall sat in the front seat with him, while Hall sat in the
back seat with the sheriff. Hall was not handcuffed. The sheriff testified that during the ride
Hall said: "The son of a gun stole my money.
54 Nev. 213, 226 (1932) State v. Hall
that during the ride Hall said: The son of a gun stole my money. I killed him and I'm glad of
it. I never was happy until I knew he was dead. The witness testified further as to Hall's
statements: He said at one time there about two weeks prior to that time he would have
killed him if his wife hadn't stopped him. He said that another time, that what he wanted, or
as soon as he found out they had been spending this money that he had lost, he had decided
he needed killing and he was going to kill him, and various things of that kind, but it all
pertained to that one thing. The witness also testified that Hall said that at the time he shot
him, O'Brien was reaching back to strike him; that Hall said, I don't know what he had in
his hand but he had what I thought might be a blackjack in his hand'; that he said he ran out of
shells for the big gun and wanted to use the little gun to shoot the others with, especially Mrs.
O'Brien; that she had as much to do with the stealing of that money as did O'Brien, and also
he figured the little girl would be along with them; that if the little gun had worked he would
have killed the others.
Bodell also testified as to Hall's statements on the return to Las Vegas. His version of these
statements is substantially as follows: Hall said, Well, I guess you boys thought I was trying
to get away from you, but I wouldn't; I was just full of booze, out of my head and just wanted
to go somewhereanywhere.' Later on he said: You know that son of a gun stole $700 from
me. I told him, I warned him before that that if I ever caught he or any of his family spending
any of my money, that I was going to kill him.'
He told the sheriff that he (Hall) was a good shot; that he would not want any of the boys
back in Carolina to know he emptied a gun at a man at that range and only hit him a couple of
times; that when he was in the Philippines he used to ride horse back around a center pole
with a ball on the post and shoot the ball off with a six-shooter at full speed ahead. He
continued and said his only regret was that he did not fix all three of them up, and that, had
the small gun worked, he would have done so, but that the "dog-gone thing wouldn't
work"; that he could not pull the hammer back, so he went back to the house to get more
shells for the big gun to finish them up, but that he could not find the shells in the house.
54 Nev. 213, 227 (1932) State v. Hall
done so, but that the dog-gone thing wouldn't work; that he could not pull the hammer
back, so he went back to the house to get more shells for the big gun to finish them up, but
that he could not find the shells in the house. He said: If I got to hang, sheriff, I have only
one favor to ask of you, that is, that I can throw the dog-gone little gun as hard and as far as I
can throw it. The witness gave the following testimony concerning Hall's statements as to
the shooting: O'Brien and his wife were in the front seat of the car. Hall and his wife and
Lillian were in the rear seat. They were driving down the road and Hall said to O'Brien, don't
you stop.' O'Brien was slowing the car down and knowing that he stole my money, I knew he
had stolen it, and I told him that when I caught him or any of his family spending my money I
was going to kill him, and I was so mad and knew at the time they were spending my money,
so I pulled a gun and said, Jack, I told you if I caught you spending my money I would kill
you,' and started shooting.
Hall claimed that the shooting was done in self-defense. He was a witness in his own
behalf, and testified at length as to the shooting and his relations with O'Brien shortly prior
thereto. Much of Hall's narrative as to his dealings with O'Brien, and conversations between
them, which are immaterial, will be omitted from the following summarization of his
testimony. O'Brien, his wife and stepdaughter, Lillian, and Hall and his wife had been living
at the tourist camp for a short time, and moved to the Fox ranch near which the shooting
occurred on the 9th of June, 1931. They lived there in the same house until the night of the
homicide. Hall said that O'Brien was a bootlegger. Shortly before their coming to the Fox
ranch, O'Brien told Hall he had a deal with a fellow to purchase liquor for $2 a gallon and
requested him to furnish the money to buy the liquor and go with him to meet this person. He
told Hall he would give him 50 cents on every dollar he advanced. Hall assented. They went
on this mission in an automobile. O'Brien was driving. Hall had on his person $680 which he
carried in an old tobacco can.
54 Nev. 213, 228 (1932) State v. Hall
he carried in an old tobacco can. O'Brien did not find the person from whom he was to buy
the liquor, and they returned home about 11:30 at night. When Hall awoke the next morning
he missed his tobacco can. It was the first thing he felt for every morning. He told his wife
that O'Brien had robbed him last night of every cent he had. He remembered that when they
were out on the trip the night before O'Brien kept feeling back behind him, and that at one
time he heard a gun which was in the seat between them hit the can in his pocket.
Immediately after he missed his money he called O'Brien into the house and charged him
with having stolen it. He told O'Brien to give it up or he would kill him right there. O'Brien
told Hall that it did look suspicious, but for Hall not to think that he stole the money. Hall
stated: I said, Jack, I'm going to tell you one thing now. I don't want to kill you but if I catch
you or any of your family with my money and I can't get it back any other way, I will kill you
or get it back.' O'Brien said: John, don't say that, it hurts my feelings.'
On the 13th of June he noticed that Lillian had $3.75, and on the evening of that day at the
Fox ranch he overheard O'Brien say to his wife, You had better quit spending this money
around here, John is going to catch on. You had better quit spending it.
O'Brien had a place in Las Vegas where he sold liquor, and Hall took him to this place in
his car on the morning of the 15th of June, 1931. That evening O'Brien told him to bring
down one of his (Hall's) guns because there were some stool pigeons around and he did not
want them coming into his joint without a search warrant. Hall brought the gun in a paper
bag. O'Brien took it into his place and later placed it in the pocket under the steering wheel of
the car. Hall had also brought the women into town that day, and in the evening they went to
a picture show with O'Brien. Hall remained in the car with a blanket thrown over him. Before
they went into the show he heard O'Brien say to Mrs. Hall: Don't get mad about what I say.
You know I love you. You know I do and always will. After the show they left town in the
car for the Fox ranch.
54 Nev. 213, 229 (1932) State v. Hall
left town in the car for the Fox ranch. O'Brien, his wife, and Lillian were in the front seat.
O'Brien was driving. As to the circumstances of the shooting, Hall gave the following
version: I should say we was within fifteen or twenty yards of the house. I said, Jack,' I says,
Your folks have been spending my money around here pretty free and I have heard some
other things. I want to talk with you about them.' He started to stop the car. I said, Jack, drive
this car on.' At the same time, when he started to stop the car he struck at me across the seat
with this paper bag. I wasn't thinking about the gun in the paper bag, but when he struck at
me I hit the gun with my gun and knocked it up. It was in the paper bag. I said, Jack, drive
this car on, don't go on stopping here with this crowd here.' I said, Drive on.' At that time he
throwed the gun into my face, at that time with the paper bag tore off the barrel. Then he hit
me in the forehead with my gun and knocked me back in the seat. He said, Damn you I will
fix you.' He started to get up. When he did that I shot at him twice or three times. At that time
his wife and daughter had all started to fight my wife across the back seat. Jack O'Brien's wife
and Lillian were fighting my wife across the seat in the back seat. So when I shot Jack said,
Open this door.' I think he was leaning across the seat and couldn't open it. So then Jack
reached over and opened it himself and knocked both women out of the door. That was after I
fired the shot. Well, he came out of the car. I got out on the left. He came on around to my
side of the car. As he got around the car he raised his arm. I didn't know whether he was
going to throw something or what he meant to do. When he did that I finished emptying my
pistol at him. When I shot the last shot Mrs. O'Brien came around and said, John Hall, you
s of a b you are shooting my husband,' and struck me with something across the
shoulder, and at that time I took my empty gun and hit herthat was the 38. The 32 gun I
found in the front seat of the car with the paper bag tore about half off of it. We put it in my
suit case after we started off with the car that night."
54 Nev. 213, 230 (1932) State v. Hall
suit case after we started off with the car that night.
Hall testified that he was afraid O'Brien was going to kill him from his actions at the time
of the shooting and from what he had heard, and that when he shot O'Brien he believed his
life was in imminent danger. His testimony as to what he had heard is substantially as
follows: On the day before the shooting, one Strickland told him that he had been talking to
O'Brien about Hall's money, and had said to him: Jack you had better give the money back to
him. I understand you are accused of taking it. You had better give it backto which
O'Brien replied: Before I would give him back a dime of it I would kill the s-of a b-,
and ran back to his car and got the holster and showed he had a gun in it to do it with. Hall's
wife told him as they were going home in the car on the night of the shooting that O'Brien and
another man had planned to kill him. She said the other man, a stranger, came to the house
that night and O'Brien took the man around the corner of the house and through the window
she heard O'Brien say to the other man, You get in your car and go back home and get your
gun and meet me where the old Los Angeles highway turns off, I will get John Hall in my car
and take him down there and we will make him leave the state or we will kill him. Hall said
that the reason he told O'Brien to drive on that night and not stop at the Fox ranch was
because he saw a light in the house. There was no light when he left. He thought maybe
O'Brien had the other man there to kill him. After the shooting Hall drank some liquor in the
house, and then he and his wife left in the car and drove until a tire became flat. Then they
left the car and started walking. They continued walking until the truck came along. Hall
denied that he stated to the officer that he felt happy because O'Brien was dead. He denied
that he pursued Mrs. O'Brien at the time of the shooting. On cross-examination he said he
struck Mrs. O'Brien on the head twice with the larger gun; that this gun was on the back seat
when he told O'Brien to drive on.
54 Nev. 213, 231 (1932) State v. Hall
Mrs. Hall was a witness for the defendant. She testified substantially as follows: About ten
days before the shooting, when she was alone at the house, O'Brien tried to assault her. She
told her husband of it on the night of the 15th of June when they were driving home in the
car. On this occasion she also told Hall of a man and woman coming to the house, and that
she heard O'Brien tell this man he would ask Hall to go to town and he wanted them to meet
him where the road turns off the Los Angeles highway, and that they would take Hall and kill
him or make him leave Las Vegas that night; that pursuant to this plan O'Brien asked Hall to
go to town but she interfered and prevented Hall from going; that this other man came out of
the house after they had gone to bed and tried to get Hall to go to town with them, but Hall
refused to go. On one occasion Hall woke her up and she heard Mr. and Mrs. O'Brien talking.
She heard O'Brien tell Mrs. O'Brien if she didn't quit spending that money John was going to
catch on to it. Concerning the shooting, she said: We all started to drive out home and we
turned off the New Los Angeles highway on to the old, and Mr. O'Brien made some remark
about going back after some milk and Mr. Hall spoke up and told him no, there was some at
the house. I told him there was enough to do until the next day, and Mr. O'Brien didn't come
back to town. He said he would take us out to the house and then he might come back. We
got pretty near to the house and Mr. Hall said to Mr. O'Brien, Jack, I see you folks spending
my money,' and from then on Jack started to stop the car and throwed something in his face
and Mr. Hall knocked the lick off and said, Drive this car on Jack, I want to talk these
matters over with you,' Jack struck at him and throwed back at him again. With that he struck
him on the side of the head. Mrs. O'Brien and Lillian started to beat me and said I was the
cause of it; that I had told all that. Then Mr. Hall shot twice or three times in the car, I don't
know which. Mr. O'Brien got out on the right side of the car and Mr. Hall on the left.
54 Nev. 213, 232 (1932) State v. Hall
I did not see Mr. Hall beat Mrs. O'Brien or chase her.
On cross-examination she corroborated Hall as to O'Brien's trying to shoot Hall with the
gun that was in the paper bag. She said: Mr. O'Brien throwed it on to Mr. Hall like he was
going to shoot; Mr. Hall knocked it off. He threw it on him again. He knocked it up with his
hand. Mr. Hall knocked the gun up with his right hand and shot Mr. O'Brien with his left. Mr.
O'Brien was turned clear around in the seat. He was turned plumb sideways in the seat. I think
the gun was in his right hand. The gun was clear over the seat. Mr. Hall struck Mr. O'Brien's
gun with his gun the first time. The second blow Mr. Hall took his hand and knocked Mr.
O'Brien's lick off and shot him. Hall never shot until Mr. O'Brien throwed the gun on him the
second time and he knocked his hand up with his hand and shot. Mr. O'Brien cursed Mrs.
O'Brien and told them to open the door and they didn't open the door. Mr. O'Brien reached
over and opened the door and knocked them both out and went over the top. It was while Mr.
O'Brien was trying to get Mrs. O'Brien and Lillian out of the car when the second shot was
fired. On redirect examination she stated that after the shooting they found the little gun on
the seat of the car.
Seth Custer was a witness for the defense. He knew Hall and O'Brien. He had a
conversation with O'Brien in which O'Brien told him that he had a man from the east who had
plenty of money. He said, I am going to work him out of a bunch of money. A few days
after Hall lost his money, witness met O'Brien and said: Jack this man has treated you awful
nice. He bought you grub and furniture and paid your rent and you ought to give him his
money back. On cross-examination the witness said he was living on a ranch. He had some
chickens and had done some bootlegging.
Jack Brighthopt was a witness for the defense. He was a sheet metal worker. He knew Hall
and O'Brien. They were in his shop on one occasion and were joking each other. Mr. O'Brien
looked at Hall and said: I don't see how this old buzzard can have a good looking woman
like that and I am going to steal her."
54 Nev. 213, 233 (1932) State v. Hall
woman like that and I am going to steal her. Hall grinned and said: Jack is about as good a
friend as I have in this end of the country. When asked if it was a joshing remark, the
witness said: I figured it that way.
In rebuttal Bodell testified that when Hall was talking of the shooting on the return to Las
Vegas he said he had the large gun in his left hind pocket and the little gun in his right hind
pocket.
Mrs. O'Brien in rebuttal testified that on the night of the 14th of June she had no
conversation with O'Brien relating to Hall's money; that O'Brien did not tell her to quit
spending money around here or John will catch on.
The foregoing summarization of the evidence includes all that has any bearing upon the
case made by the state and appellant's defense. Appellant's contention that this evidence tends
reasonably to establish that the killing occurred in a chance melee, upon a sudden impulse,
and that the elements of first degree murder are lacking, was resolved against him by the jury.
Sufficient legal evidence appears in the record to support the verdict and judgment. Inquiry by
this court, therefore, as to this phase of the case may not be pursued further.
2-4. Appellant insists that no proper foundation was laid for the admission of the
testimony of the witnesses Sample, Shafer and Keate, as to the statements made by him to
them concerning the shooting. In this connection it is urged that the maudlin condition of the
defendant, the aftermath of excessive drinking, rendered said statements involuntary. The
evidence of appellant's drinking on which this claim is made is as follows: Appellant testified
that after the shooting he was nervous and went into the house and took three drinks out of a
jug. There were two pints already in the car. His wife said: John, don't drink any more. You
are going to get out. You are going to get drunk. He said: We had the two pints of whisky
in the car. His wife said he was drunk. He stated that the whisky he drank in the house did
not seem to have any effect on him. He testified that he did not remember telling the
witness Sample that he would have killed all of the O'Briens that night, including Lillian,
and that he did not remember having made such a statement to the witness Keate or
Bodell.
54 Nev. 213, 234 (1932) State v. Hall
testified that he did not remember telling the witness Sample that he would have killed all of
the O'Briens that night, including Lillian, and that he did not remember having made such a
statement to the witness Keate or Bodell. Asked by his counsel as to his condition when the
officers saw him, he said: I was pretty talkative from the whisky, under the influence of it,
talking I guess from all reports. It is to be noted, however, that, when asked if he made the
statement he felt happy that O'Brien was dead, he answered, No sir, and made the following
explanation: I started to feel betterI felt better after they read the telegram to me, to know I
was in the hands of officers than I did when I was riding along and wasn't arrested, because I
wanted to come back and get the thing cleared up. I didn't want to go on. He stated that was
what he meant by saying he was happy. To officer Bodell he said he was not trying to get
away: I was just full of booze, out of my head and just wanted to go
somewhereanywhere.
Witness Bodell testified that, at the time appellant made the statements to which the
witness and the sheriff testified, the appellant did not appear to to be drunk. On this point
Bodell gave the following testimony:
Q. Did he appear to be drunk or otherwise when you saw him? A. Very sober when I first
saw him.
Q. He did not appear to be drunk? A. No.
Q. Did he appear to be calm, Mr. Bodell? A. Very calm and collected and joking about
the incident.
On this point Sheriff Keate testified as follows:
Q. Mr. Keate, I will ask you if you noticed the demeanor and actions of the defendant at
that timewhether he was cool and calm and collected? A. Mr. Hall was very cool and calm.
I judge the full effects of the liquor had not worn off at that time. He still had the effect of
liquor.
Q. Was he cool and calm? A. Yes, sir.
Q. You would take it he thoroughly understood his position? A. Yes, sir.
Q. And knew what he was telling you? A. Yes, sir.
While the testimony we have set out indicates that the appellant had been drinking to
some extent prior to making the statements attributed to him by the officers and Sample
and Shafer, still it includes testimony upon which the jury could well conclude that his
mind was not in a maudlin condition and that he knew what he was saying.
54 Nev. 213, 235 (1932) State v. Hall
the appellant had been drinking to some extent prior to making the statements attributed to
him by the officers and Sample and Shafer, still it includes testimony upon which the jury
could well conclude that his mind was not in a maudlin condition and that he knew what he
was saying. The fact that a person charged with crime is intoxicated when he makes a
confession will not necessarily exclude it as evidence. It is only when an accused is so drunk
when he makes a confession as to render him unconscious of what is saying that the law
deems his confession incompetent. Intoxication of a lesser degree is for the jury to consider in
determining the weight to give the confession. Eskridge v. State, 25 Ala. 30; White v. State,
32 Tex. Cr. R. 625, 25 S. W. 784; People v. Kent, 41 Misc. 191, 83 N. Y. S. 948; People v.
Ramirez, 56 Cal. 533, 38 Am. Rep. 73; 18 L. R. A. (N. S.) 789, note; 16 C. J. 628, 729; 1 R.
C. L. 563.
All of the witnesses testifying to appellant's statements said that no inducements or
rewards were offered to appellant, or threats made to induce him to confess the killing. The
statements were properly admitted for the consideration of the jury.
5. It is insisted also that the court erred in failing to instruct the jury as to the
circumstances to be considered in determining what weight should be given to the
confessions. We do not think so. No objection was taken to the admission of the statements
of appellant on the ground of intoxication. Nor was it otherwise pointed out or suggested to
the court that statements of appellant were considered objectionable on that score. The trial
court instructed the jury generally in regard to the way in which they should consider and
weigh the evidence in the case, and if appellant wished a specific instruction as to the manner
of weighing the confession he should have requested such an instruction. This he did not do,
and cannot now be heard to complain of the lack of such instruction.
6, 7. Error is assigned to the admission of the testimony of Mrs. O'Brien and her daughter,
Lillian, as to appellant striking and beating the former with a gun immediately after the
shooting.
54 Nev. 213, 236 (1932) State v. Hall
immediately after the shooting. It is insisted that such testimony tended to prove another
offense and was therefore objectionable. We think that proof of the offense was admissible as
a part of the res gestae. While not precisely concurrent in point of time, it sprang out of the
shooting and followed immediately upon it. It tended to elucidate the frame of mind appellant
was in at the time, and was a part or a continuation of the same transaction. Moreover, this
testimony tended to prove motive and malice and to rebut the claim of self-defense. It was
material and competent for such purposes. The principle upon which the striking of Mrs.
O'Brien by the appellant was admissible is well stated in People v. Walters, 98 Cal. 138, 32 P.
864, 865. The court said: The superior court did not err in admitting this evidence. It is true
that in trying a person charged with one offense it is ordinarily inadmissible to offer proof of
another and distinct offense, but this is only because the proof of a distinct offense has
ordinarily no tendency to establish the offense charged; but whenever the case is such that
proof of one crime tends to prove any fact material in the trial of another, such proof is
admissible, and the fact that it may tend to prejudice the defendant in the minds of the jurors
is no ground for its exclusion. These remarks are applicable to any case in which two persons
are murdered or assaulted at the same time, and as part of the same transaction, and the
present case affords an excellent illustration of the necessity of the exception to the general
rule. On the occasion of this homicide, Mrs. Wall and her son were the representatives of one
side of a long-standing controversy, which had resulted in a bitter family feud, and the
shooting of the mother immediately after the shooting of the son, by a representative of the
other side, was convincing evidence of the motive of the act. It showed the malice which is an
essential ingredient of the crime charged and tended strongly to disprove the claim of
self-defense, which the people could anticipate if they chose to do so.
Discussing the rule and its exceptions in the case of State v. Adams, 20 Kan. 311, the
court, in the opinion of Judge Brewer said: "The rule of law applicable to questions of this
kind is well settled.
54 Nev. 213, 237 (1932) State v. Hall
of Judge Brewer said: The rule of law applicable to questions of this kind is well settled. It is
clear that the commission of one offense cannot be proven on the trial of a party for another,
merely for the purpose of inducing the jury to believe that he is guilty of the latter because he
committed the former. You cannot prejudice a defendant before a jury by proof of general bad
character, or particular acts of crime other than the one for which he is being tried. And on the
other hand, it is equally clear, that whatever testimony tends directly to show the defendant
guilty of the crime charged, is competent, although it also tends to show him guilty of another
and distinct offense. State v. Folwell, 14 Kan. 105. A party cannot, by multiplying his crimes,
diminish the volume of competent testimony against him. A man may commit half a dozen
distinct crimes, and the same facts, or some of them, may tend directly to prove his guilt of
all; and on the trial for any one of such crimes it is no objection to the competency of such
facts, as testimony, that they also tend to prove his guilt of the others.
See 16 C. J. p. 588, and the many authorities cited in note 8 supporting the principle stated
in the text.
8. The case of the State v. McFarlin, 41 Nev. 486, 172 P. 371, relied on by appellant, is not
opposed to our ruling in this case. The categorical statement of various exceptions to the
general rule made therein was not designed to be exhaustive of all instances in which an
exception may be recognized. While the exceptions generally fall into the category stated in
State v. McFarlin, supra, and restated in State v. Monahan, 50 Nev. 27, 249 P. 566, it may be
broadly stated that evidence of another crime is admissible if it tends directly to prove
defendant's guilt of the crime charged. Moore v. U. S., 150 U. S. 57, 14 S. Ct. 26, 37 L. Ed.
996; Farris v. People, 129 Ill. 521, 21 N. E. 821, 4 L. R. A. 582, 16 Am. St. Rep. 283; People
v. Moeller, 260 Ill. 375, 103 N. E. 216; People v. Argentos, 156 Cal. 720, 106 P. 65; Renfroe
v. State, 84 Ark. 16, 104 S. W. 542; Wallace v. State, 41 Fla. 547, 26 So. 713; Regina v. John
Briggs, 2 Moody & Robinson, 199.
54 Nev. 213, 238 (1932) State v. Hall
The trial court did not err in admitting the testimony of Mrs. O'Brien and her daughter,
Lillian, objected to as proving a distinct offense from the crime charged.
9, 10. Error is assigned to the giving of instruction No. 11, which reads: It is not essential
that the willful intent, premeditation or deliberation, shall exist in the mind of the slayer for
any considerable length of time before the actual perpetration of the crime. It is sufficient if
there was a fixed design or determination to maliciously kill distinctly framed in the mind of
such slayer before the striking of the fatal blow or the infliction of any other cause of death.
It is contended that the instruction is an incorrect statement of the law of first degree
murder, and misleading, in that the jury may have been led to believe by the words fixed
design or determination to maliciously kill that such intent need not be the result of
premeditation or deliberation and that a conviction of that degree could be had on facts
amounting only to murder of the second degree, or manslaughter. We do not think the
instruction read in its entirety and in connection with the rest of the charge could have been
so understood. The court instructed the jury in the language of the statute (Comp. Laws 1929,
sec. 10069) that manslaughter is a willful killing of a human being without malice, etc. So if
the jury attended to this instruction and others which the court gave defining manslaughter,
which we must presume they did, the word maliciously alone in the instruction complained
of would have precluded the idea that a conviction of first degree murder would be proper on
facts showing the killing was done in a sudden heat of passion, an essential element in
voluntary manslaughter.
It is not at all likely that the jury could have understood the instruction to mean that the
fixed design or determination to kill need not be the result of premeditation or deliberation to
constitute murder of the first degree. The preceding instruction set out in the language of the
statute (Comp. Laws 1929, sec. 10068) murder of the first degree as "All murder which
shall be perpetrated by means of poison, or lying in wait, torture, or any other kind of
willful, deliberate, and premeditated killing, or which shall be committed in the
perpetration, or attempt to perpetrate any arson, rape, robbery or burglary.
54 Nev. 213, 239 (1932) State v. Hall
murder of the first degree as All murder which shall be perpetrated by means of poison, or
lying in wait, torture, or any other kind of willful, deliberate, and premeditated killing, or
which shall be committed in the perpetration, or attempt to perpetrate any arson, rape, robbery
or burglary. * * * The element of premeditation or deliberation is repeated in the forepart of
the instruction complained of, and throughout the charge as a whole it is made clear that the
intention to kill must be the result of premeditation or deliberation to constitute murder of the
first degree. The purpose of the instruction was to inform the jury that length of time for
deliberation is not an essential ingredient in murder of the first degree. In this respect it tends
to refute the contention that the jury could have understood it to justify a conviction of
murder of the first degree, if only murder of the second degree was proven.
11, 12. The instruction is inaccurate in that it omits to inform the jury that such
deliberation could have been formed at the very moment the fatal shot was fired. State v.
Acosta, 49 Nev. 184, 242 P. 316; State v. Ah Mook, 12 Nev. 369; State v. Millain, 3 Nev.
409. This, however, is an error in appellant's favor, of which he cannot complain.
13, 14. The next instruction objected to is instruction No. 15. The instruction contains an
extended definition of malice aforethought, and is not erroneous. Appellant's principal
objection is to the latter part of the instruction, which reads: * * * To constitute malice
aforethought it is not always necessary that there exist in the mind of the slayer an intention
or design to take human life; for, when an involuntary, that is to say, an unintentional killing
happens in the commission of an unlawful act, which in its consequences naturally tends to
destroy the life of a human being, the evil or unlawful purpose, motive or design, with which
such unlawful act is done, constitutes malice aforethought, and makes even such involuntary
killing murder.
54 Nev. 213, 240 (1932) State v. Hall
This is a correct statement of the law in this regard. Appellant contends that it is
inapplicable, in that the evidence does not show nor intend to show a killing under such
circumstances. Even so, the instruction could not have been prejudicial as appellant claims.
15. Error is assigned to the giving of instruction No. 17. It is contended that by this
instruction the court erroneously told the jury that the words deliberation and
premeditation are synonymous or equivalent terms. The instruction is correct. State v.
Lopez, 15 Nev. 407.
16, 17. Instruction No. 20 reads: In this case in order to constitute murder of the first degree
the killing must have been with malice aforethought and willful, deliberate and premeditated.
In such a murder an intention to kill must exist. The intention may be ascertained or deduced
from the facts and circumstances of the killing such as the use of a weapon calculated to
produce death, the manner of its use, and the attendant circumstances characterizing the act.
This instruction is assailed as invading the province of the jury by telling them in effect
that the intent to kill is presumed from the act of killing and the use of a deadly weapon. It is
obvious that such is not the effect of the instruction, and it is not erroneous. Certainly the jury
could ascertain an intent to kill from the circumstances stated.
18. Appellant complains of instruction No. 21 which reads: A person of sound mind and
discretion may be presumed to intend all the natural, probable and usual consequences of his
act; and when one person assaults another violently, with a deadly weapon, in a manner
reasonably calculated to produce death, and the life of the party assaulted is actually
destroyed in consequence of such assault, the jury are entitled to presume that death was
intended, unless from a consideration of all the evidence, the jury entertain a reasonable doubt
whether such intention did exist.
The instruction is correct. An instruction embodying the same principle was approved in
State v. Muldoon, 51 Nev. 322
54 Nev. 213, 241 (1932) State v. Hall
the same principle was approved in State v. Muldoon, 51 Nev. 322, 274 P. 922. The
instruction is essentially different from the instruction condemned in State v. Pappas, 39 Nev.
40, 152 P. 571, and in State v. MacKinnon, 41 Nev. 182, 168 P. 330, as was pointed out in
State v. Muldoon, supra.
19. Error is assigned to the instruction No. 30. The instruction is correct. It is an exact
copy of section 9956 N. C. L.
20. Error is assigned as to instruction No. 34, which reads: It is not necessary that the
defendant's guilt should be established beyond any doubt or to an absolute certainty, but
instead thereof that the defendant's guilt must be established beyond a reasonable doubt as
hereinafter defined.
It is contended that this was misleading and in violation of the statute which prescribes
that no definition of reasonable doubt shall be given by the court to juries in criminal actions
in this state other than the statutory definition. Comp. Laws 1929, secs. 10963, 10964. We do
not perceive any violation of the statute by this instruction. It essayed no other definition of
reasonable doubt, but merely stated what in part appears from such definition as the same was
afterwards given by the court in the terms of the statute. No prejudice could have accrued
from the instruction.
21. Appellant complains of the thirty-ninth instruction, which reads: The court has
already instructed you that you are made the sole judges of the testimony, and the weight to
be given the same. In determining questions of fact presented in this case you should be
governed solely by the evidence introduced and admitted before you. You are to bring to the
consideration of the evidence before you your everyday common sense and judgment as
reasonable men; and those just and reasonable inferences and deductions which you as men
would ordinarily draw from facts and circumstances proven in the case, you should act on as
jurors. You are not to fancy situations or circumstances which you could not draw from the
evidence, but you are to make those just and reasonable inferences from the
circumstances proven which the guarded judgment of reasonable men would ordinarily
make under like circumstances."
54 Nev. 213, 242 (1932) State v. Hall
draw from the evidence, but you are to make those just and reasonable inferences from the
circumstances proven which the guarded judgment of reasonable men would ordinarily make
under like circumstances.
We see no fault in the instruction.
22-24. Error is assigned as to the instruction numbered 40b. It reads: The court instructs
the jury that to justify homicide on the ground of self-defense, it must appear that the slayer
was reasonably without fault in bringing on the difficulty, and that he believed as a reasonable
man at the time that he was in such immediate danger of losing his life, or receiving serious
bodily harm as rendered it necessary to take the life of his assailant to save himself therefrom;
and it must appear therefrom that the defendant, acting as a reasonable man, upon the
appearance of the existing conditions at the time of the encounter, believed at that time that it
was necessary for him to commit the act to protect himself, and the inquiry for the jury is not
whether the harm apprehended was actually intended by the assailant, but was it actual and
real to the defendant as a reasonable man as compared with danger remote or contingent, and
bare fear that a person is in danger of his life or receiving great bodily harm will not justify
him in taking life, but it must appear that the circumstances were such as to excite the fears of
a reasonable person, and that the party killing really acted under the influence of his fears and
not in a spirit of revenge.
The part of the instruction complained of as faulty and prejudicial is where the instruction
reads, that to justify homicide on the ground of self-defense it must appear that the slayer
was reasonably without fault in bringing on the difficulty. It is argued that the words
without fault include any trivial fault, and that the jury might well have believed from the
instruction that, when appellant told O'Brien to drive on, that there were some things he
wanted to talk to him about, that was such a fault as deprived him of the right of self-defense.
We think the words reasonably without fault were sufficient to preclude such
understanding.
54 Nev. 213, 243 (1932) State v. Hall
sufficient to preclude such understanding. It is true that a person must be without fault in
bringing on an encounter before he can justify a killing on the ground of self-defense, or else
must have endeavored in good faith to decline any further struggle before the mortal blow
was given. State v. Robison, 54 Nev. 56, 6 P.(2d) 433. The latter proposition has no basis in
the evidence in this case. If the appellant desired the court to instruct more explicitly as to the
nature or extent of the fault committed by a defendant in bringing on an encounter which
would make the defense of self-defense unavailable, he should have prepared and requested
such an instruction. State v. Smith, 10 Nev. 106-122; State v. Acosta, 49 Nev. 184, 242 P.
316. This was not done. Moreover, the court gave another instruction on self-defense
predicated upon the evidence introduced by appellant to show self-defense, which correctly
stated the law applicable upon this theory. On the whole the jury were fairly instructed as to
this defense.
25, 26. By instruction No. 41 the court charged the jury as follows: Although the verdict
to which each juror agrees must, of course, be his own conclusion, and not a mere
acquiescence in the conclusion of his fellows, yet, in order to bring twelve minds to a
unanimous result the jurors should examine with candor the questions submitted to them,
with due regard and deference to the opinions of each other. If much the larger are for
conviction, a dissenting juror should consider whether the doubt in his mind is a reasonable
one, when it makes no impression on the minds of so many men equally honest, equally
intelligent with him, who have heard the same evidence, with an equal desire to arrive at the
truth, under the sanction of the same oath. On the other hand, if the minority should seriously
ask themselves whether they may not reasonably, and ought not, doubt the conclusion of the
judgment which is not concurred in by the most of those with whom they are associated, and,
therefore, distrust the weight of sufficiency of that evidence which fails to carry conviction to
the minds of their fellows.
54 Nev. 213, 244 (1932) State v. Hall
their fellows. You are not to give up a conscientious conclusion after you have reached such a
conclusion finally, but it is your duty to confer with your fellow jurors carefully and earnestly,
and with a desire to do absolute justice both to the state and to the defendant.
Appellant's complaint of this instruction is, in substance, that it tells a minority of the jury
to distrust the testimony upon which they based their conclusions because of the fact that the
greater number of their fellows was not impressed by the same evidence, and is thereby in
effect a comment by the court upon the weight and sufficiency of the evidence. We perceive
no ground for such criticism. It was within the discretion of the court to give such an
instruction to all the jurors in the discharge of their duties if it thought proper to do so. The
instruction does not tell the jurors to distrust the weight of sufficiency of any evidence
unconditionally, but only that they may do so after careful consideration induced by the fact
that such evidence fails to carry conviction to the minds of the majority of the jury. They are
not asked to yield a conscientious conclusion finally reached, to the views of the majority, but
are in fact admonished not to do so. As stated in State v. Hennessy, 29 Nev. 321, 90 P. 221,
226, 13 Ann. Cas. 1122, it is not the duty of a jury to hold strenuously to impressions or
convictions which might be in fact based upon an erroneous view or a misconception of the
law or the evidence in the case, and which the juror might, upon discussion with his fellows,
readily see were untenable. It is the duty of each juror to consult with his fellows and to
consider their views, to the end that each may aid in arriving at the truth. Ultimately, of
course, each juror should act upon his own convictions, but this is what his oath enjoins on
him to do. The instruction enjoins nothing more than what was held proper in that case.
As no error appears in the record, 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.
54 Nev. 213, 245 (1932) State v. Hall
into effect by the warden of the state prison the judgment rendered.
On Petition for Rehearing
October 19, 1932.
Per Curiam:
Rehearing denied.
____________
54 Nev. 245, 245 (1932) Dodge Bros. v. General Petroleum Corp.
DODGE BROS., INC., v. GENERAL PETROLEUM
CORPORATION OF NEVADA
No. 2984
On Petition for a Writ or Order Staying all
Proceedings Under Injunction
April 23, 1932. 10 P.(2d) 341.
1. Appeal and Error.
Injunction restraining defendant from violating contract, although prohibitive in form, held mandatory
in effect, as regards right to stay pending appeal.
The order restrained defendant from refusing to promptly ship gasoline ordered by plaintiff,
from imposing any conditions or restrictions upon shipment or delivery of defendant's product
ordered by plaintiff, or upon payment therefor, except as outlined in certain letter, from attempting
to terminate any contract theretofore made between plaintiff and defendant, from interfering with,
interrupting, or disrupting plaintiff's business or preventing its orderly conduct, and from
committing any breach of contract set out in complaint.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Suit by Dodge Brothers, Incorporated, against the General Petroleum Corporation of
Nevada. From an order of injunction pendente lite and from an order refusing to dissolve or
modify the injunction, defendant appeals, and petitions the Supreme Court for a writ or order
staying all proceedings under the injunction.
54 Nev. 245, 246 (1932) Dodge Bros. v. General Petroleum Corp.
order staying all proceedings under the injunction. Order staying proceedings under
injunction pending appeal issued.
Thatcher & Woodburn, for Appellant.
A. L. Haight, for Respondent.
OPINION
By the Court, Sanders, J.:
This is an appeal from an order of injunction pendente lite and from an order refusing to
dissolve or modify the injunction after a full hearing had in the court below for that purpose.
Since appeal the appellant, who was the defendant in the action, has petitioned this court for a
writ or order staying all proceedings under the injunction. The injunction order reads as
follows:
The plaintiff in the above-entitled cause having this day commenced an action in the First
Judicial District Court of the State of Nevada, in and for Ormsby County, against the
above-named defendant, and having prayed for an injunction against the said defendant
requiring it to refrain from certain acts in said complaint and hereinafter mentioned; On
reading the complaint in said action, duly verified by the oath of Carl F. Dodge, and it
satisfactorily appearing to me therefrom that it is a proper case for an injunction and that
sufficient grounds exist therefor, and the necessary undertaking having been given; It is
therefore ordered by me, Clark J. Guild, the judge of said District Court, that until further
order in the premises, you, the said General Petroleum Corporation of Nevada, defendant
herein, and each and every of your attorneys, officers, servants, employees and agents, and all
others acting in aid or assistance of you, do absolutely desist and refrain from:
(1) Refusing or failing to promptly ship to the plaintiff at Reno, Nevada, the car of
Motogas' third structure gasoline ordered by the plaintiff on March 9, 1932, as alleged in the
complaint, or any further supply of such commodity which the plaintiff may hereafter
order;
54 Nev. 245, 247 (1932) Dodge Bros. v. General Petroleum Corp.
as alleged in the complaint, or any further supply of such commodity which the plaintiff may
hereafter order;
(2) Imposing any conditions or restrictions upon shipment or delivery of any of
defendant's products ordered by plaintiff or upon payment therefor except as outlined in letter
or memorandum set out in paragraph VII of the complaint herein and dated December 29,
1930;
(3) Threatening or attempting to terminate any contract heretofore made between the
plaintiff and defendant or from giving any notice or commencing any act indicating an
intention to so do;
(4) In any manner interfering with, interrupting, impeding or disrupting the plaintiff's
business or preventing its orderly conduct as set out in plaintiff's complaint or otherwise;
(5) And/or committing any breach whatsoever of the contracts set out in the complaint
herein according to the legal effect thereof as pleaded or otherwise.
It is impossible to read the order without seeing plainly that, while it is prohibitive in form,
it is mandatory in its effect. It commands the appellant to absolutely desist and refrain from
doing five specific acts.
The court is of the opinion that an order staying the proceedings under the injunction
pending appeal should issue. It is therefore ordered and adjudged that the proceedings in that
certain suit entitled Dodge Bros., Inc., a Nevada Corporation, Plaintiff, v. General Petroleum
Corporation of Nevada, a Nevada Corporation, Defendant, upon that certain order of
injunction made and entered on the 12th day of March, 1932, and that certain order made and
entered on the 25th day of March, 1932, refusing to dissolve said injunction, be and the same
are hereby stayed until the final determination of the merits of the litigation on appeal, unless
the said petroleum corporation shall fail and neglect to execute and file with the clerk of the
lower court a good and sufficient stay bond in the amount to be fixed by the lower court or
the judge thereof within five days from the entry of the order fixing the amount of such
stay bond.
54 Nev. 245, 248 (1932) Dodge Bros. v. General Petroleum Corp.
lower court or the judge thereof within five days from the entry of the order fixing the amount
of such stay bond.
It is further ordered that in case of the failure of said petroleum corporation to execute and
file said bond within the time mentioned, then the stay herein ordered shall no longer be of
force and effect.
The members of the court concur in the order, but differ in the reasons which lead to that
decision. The writer is influenced to concur in the order upon the authority of the following
cases: Lovelock Merc. Co. v. Lovelock Irr. Dist., 51 Nev. 179, 272 P. 1; State v. Ducker, 35
Nev. 214, 127 P. 990; Silver Peak Mines Co. v. Second Judicial Dist. Court, 33 Nev. 97, 110
P. 503, Ann. Cas. 1913d, 587; Brooks v. Nev. Nickel Syndicate, 24 Nev. 311, 53 P. 597; 3 C.
J. 1924, sec. 1420; 3 C. J. 1281, sec. 1405.
Coleman, C. J., concurring:
I concur in the order on the authority of State v. Ducker, 35 Nev. 214, 127 P. 990. The
application for the stay order was based solely upon the theory that the injunction is
mandatory in effect.
Ducker, J., concurring:
I concur in the order.
The injunction in this case, though preventive in form, is mandatory in effect. Injunctions
of this character are classed as mandatory injunctions. Delaware, L. & W. R. R. Co. v.
Central Stock-Yard Co., 43 N. J. Eq. 71-75, 10 A. 490; County Commissioners of
Washington County v. School Commissioners of Washington County, 77 Md. 283, 26 A.
115, 116.
In form the injunction before us restrains acts or threatened acts which are summed up in
paragraph 5 thereof as follows: And/or committing any breach whatsoever of the contracts
set out in the complaint herein according to the legal effect thereof as pleaded or otherwise.
54 Nev. 245, 249 (1932) Dodge Bros. v. General Petroleum Corp.
It will be readily seen that the effect of these restraints is to compel the company to
perform the contract.
A preventive injunction is one that restrains the commission or continuance of some act
of the defendant, while a mandatory injunction is one that requires him to do a particular
act which is not merely incidental to the main purpose of the order. Goodrich v. Georgia R. &
B. Co., 115 Ga. 340, 41 S. E. 659.
Commanding the performance of the contract is not an incidental feature of the temporary
injunction in this case, but is its sole purpose. Such being the purpose of the injunction, it is
mandatory.
It has been decided by this court that on an appeal from a temporary mandatory injunction
the appellant is entitled as a matter of right to a stay of proceedings under the injunction upon
the filing of a proper stay bond. State v. Ducker, 35 Nev. 214, 127 P. 990.
On the Merits
August 5, 1932. 13 P.(2d) 218.
1. Sales.
Contract held to reserve to seller power to cancel gasoline contract upon impairment
of buyer's credit, of which seller was to judge, acting in good faith.
The contract provided that seller reserved the right to cancel contract on 24 hours'
notice in writing should buyer's credit become so impaired that seller should not deem
it desirable to continue deliveries thereunder.
2. Sales.
Evidence held to show that seller exercised in good faith reserved power to cancel
gasoline contract for impairment of buyers credit.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action by Dodge Brothers, Incorporated, against the General Petroleum Corporation of
Nevada. From orders granting a mandatory injunction and refusing to dissolve it, defendant
appeals. Reversed, and injunction dissolved.
54 Nev. 245, 250 (1932) Dodge Bros. v. General Petroleum Corp.
Thatcher & Woodburn, for Appellant:
Testimony was offered by appellant to show that the credit of Dodge Brothers had become
impaired so as not to be satisfactory to appellant, and therefore appellant was entitled to
terminate the contract. It is indisputed in the evidence that they failed to pay their bills on
time for a period of more than a year preceding this suit. Certainly, such conduct reflects upon
their credit and would entitle the appellant to terminate the contract on the ground that their
credit was unsatisfactory to appellant, and which termination the lower court has prevented
by its injunction.
The authorities are uniform that specific performance of a contract cannot be compelled by
one who has failed to perform his part of the agreement. 42 C. J. p. 192; Cook v. Dane, 86 P.
947; Ellis v. Treat, 236 Fed. 122.
A. L. Haight, for Respondent:
There was no testimony offered by appellant to show that the credit of Dodge Bros. had
become impaired. Counsel contend this was shown by the mere fact that Dodge Bros. had
been a few days' late during each month in making the remittance. It seems to us that the fact
that the appellant continued to do business during all of the period when the payments were a
few days' late demonstrates most conclusively that it did not consider this to constitute any
impairment of credit, and absolutely no other testimony was introduced bearing even
remotely upon this point.
Finally, the appellant's bad faith in this respect is most forceably illustrated by the attitude
of Mr. Bowman, who, while delivering his ultimatum to Dodge Bros., stated that even though
the court should uphold the contracts, still they were not going to comply with the same, as
there were twenty technical grounds whereby the contracts might be canceled; for instance,
that they could cancel the contracts by taking the position that the credit of Dodge Bros. was
impaired; that of course we know that it is not impaired, but they were the sole judges as
to whether it was impaired; and that they could cancel on that ground.
54 Nev. 245, 251 (1932) Dodge Bros. v. General Petroleum Corp.
judges as to whether it was impaired; and that they could cancel on that ground.
OPINION
Per Curiam:
This is an appeal from an order granting a mandatory injunction and refusing to dissolve
said injunction. The appeal was taken by the General Petroleum Corporation of Nevada, a
Nevada corporation. The action was instituted against said petroleum company in the lower
court by Dodge Bros., Inc., a Nevada corporation, respondent here, and the controversy arose
out of certain contracts entered into between these corporations on the 7th day of April, 1930.
The contracts in question are set out in the complaint filed by respondent. Appellant
demurred to the complaint, and moved the lower court to dissolve the injunction, upon the
grounds that it was improvidently issued for the reason that the complaint failed to state facts
sufficient to constitute a cause of action or to entitle the plaintiff to the relief demanded
therein, upon the ground that plaintiff, respondent here, had repeatedly breached the
contracts, and that defendant had the right to terminate the contracts and refuse to make
delivery thereunder. The demurrer was overruled and the motion to dissolve denied.
It is provided, in substance, in one of the contracts that respondent should investigate and
recommend to appellant distributors for its petroleum products within the State of Nevada,
and respondent agreed, after the appointment of such distributors, to give its personal
attention to the sale and distribution of appellant's products. Appellant agreed to allow
respondent a commission on its products sold to distributors recommended by it.
A further contract was entered into on the same day by the parties, whereby appellant
agreed to sell and respondent agreed to purchase all gasoline and automobile oils and greases
which respondent sold in a certain territory in Nevada.
54 Nev. 245, 252 (1932) Dodge Bros. v. General Petroleum Corp.
territory in Nevada. Respondent agreed to devote itself exclusively to the sale of appellant's
products, or to appoint a manager, at all times acceptable to appellant, who would devote all
of his time to such business. Respondent also agreed not to combine this agency with any
other business during the existence of the contract, except with the written consent of the
appellant. Respondent agreed to sell a certain amount of gasoline and motor oils within the
territory named. The prices to respondent were to be based upon appellant's tank wagon
prices. Payment was to be made on demand of appellant. Appellant reserved the right to
cancel the contract on twenty-four hours' notice if respondent failed to perform any of its
obligations, or violated any of the terms of the contract, or if the sales of respondent fell
below the sales quota in its territory, or should respondent's credit become so impaired that
appellant should not deem it desirable to make further deliveries. The contract also provided
that waiver of any default by appellant would not constitute a waiver of a continuance thereof,
or of any subsequent default. After the execution of the contract, the following letter was
written by appellant's division manager to respondent's president:
San Francisco, Cal., Dec. 29, 1930.
Mr. Carl Dodge, Distributor
Fallon, Nevada
Dear sir:
This will confirm the understanding arrived at today in conversation between you, Mr.
Rich, Mr. Weil, and the writer as related to the basis of payment to be made by Dodge
Brothers, Incorporated, under agreements dated April 7, 1930, covering Fallon and Reno
activities.
The agreement as outlined in Paragraph 17 specifically outlines that in each instance
there is consigned to you two (2) tank cars of gasoline. This letter is to change that portion
referred to above and in lieu thereof the following will be the arrangement: On or before the
10th of January, 1931, you are to pay your account in full up to November 1, 1930, and
during the month of January you are to make such further remittances as your receipts will
permit.
54 Nev. 245, 253 (1932) Dodge Bros. v. General Petroleum Corp.
as your receipts will permit. On or before February 10 you are to pay us the balance
remaining as of November 30, 1930, and subsequently on or before the 10th of each
succeeding month you are to pay us in full the amount standing to your debit as of the close
of business on the third preceding month: i. e. on or before March 10th you are to pay the
balance as of December 31. On or before April 10 the balance as of January 31st, et cetera.
In order that our records may be complete, will you kindly sign and return the attached
copy of this letter in token of your agreement with the foregoing, and oblige,
Yours very truly,
J. F. Walsh, Division Manager.
It will be seen that this letter, the terms of which are accepted by respondent, gave
respondent seventy days' time in which to make payment for products purchased under the
contract.
On February 12, 1932, appellant advised respondent that it had terminated all the
provisions of the letter of December 29, 1930, and would not extend further credit, but that
respondent would be held to the terms of the original agreement.
Thereafter respondent ordered certain cars of gasoline, and these cars were shipped with
the agreement that payment therefor should be made immediately upon receipt of the gasoline
at the destination. On March 9, 1932, the respondent ordered a certain car of Motogas,
which was a product that had not before been supplied to the respondent or sold by appellant.
This order was not filled prior to the filing of this suit.
On March 10, 1932, Carl Dodge, the president of respondent company, requested that a car
of gasoline be immediately sent to Fallon. The appellant demanded cash or the equivalent
therefor, and Dodge stated that it would be agreeable to forward the car with sight draft, bill
of lading attached. This was done.
The complaint in this action was filed by respondent, and the injunction heretofore
mentioned issued out of the lower court. By the terms of the injunction appellant was required
to ship the car of Motogas ordered by respondent on March 9, 1932, and to ship any
further supply of such commodity which respondent might thereafter order.
54 Nev. 245, 254 (1932) Dodge Bros. v. General Petroleum Corp.
by respondent on March 9, 1932, and to ship any further supply of such commodity which
respondent might thereafter order. Appellant was further restrained from imposing any
restrictions upon shipment or delivery of any of its products ordered by respondent, or upon
payment therefor, except as outlined in the letter of December 29, 1930, and was further
restrained from committing any breach whatsoever of the contracts set out in the complaint.
Appellant has presented a number of points which it claims are against the issuance of an
injunction in this case. Among these points are alleged several breaches of the contracts by
respondent which appellant insists that by the terms thereof it was authorized to cancel the
same. We are satisfied that one of the latter contentions must prevail, and will therefore not
discuss or determine the other points made by appellant.
1,2. The point we decide is that appellant was authorized to cancel the contracts under the
reservations made therein in regard to respondent's credit becoming impaired. As previously
indicated, the contract contained the following provisions: Genpet reserves the right to
cancel this contract on twenty-four (24) hours' notice in writing for any of the following
reasons: (b) Should buyer's credit become so impaired that Genpet should not deem it
desirable to continue deliveries hereunder.
The appellant is designated in the contract in which this condition appears as Genpet.
The evidence in respect to the above condition of the contract, adduced on the part of
appellant at the hearing on motion to dissolve the injunction, shows that respondent on each
month of the year 1931 and until February 10, 1932, was behind in payments required by the
contract. The payments were overdue during this time from one to thirty-one days. The
evidence also shows that during this time the appellant was constantly writing respondent
urging payment. It further appears that appellant had tried to get a statement from respondent
as to its affairs. Such statement was not produced until the trial of the case, and showed, as
of December 31, 1931, $1,269.S2 cash on hand.
54 Nev. 245, 255 (1932) Dodge Bros. v. General Petroleum Corp.
produced until the trial of the case, and showed, as of December 31, 1931, $1,269.82 cash on
hand. No further statement was furnished by appellant.
Respondent contends that the fact that it was in arrears in payment as stated, is no evidence
that its credit was impaired and that appellant offered no testimony showing such impairment
of credit.
The proof of arrears in payment, extending over the time mentioned, and of appellant's
insistence throughout upon payment in accordance with the terms of the contract, might not
be sufficient evidence of impairment of respondent's credit if that was a question for the trial
court to determine. But we do not so consider it. That is not the effect of the condition in the
contract. It will be seen by reference to said condition that appellant has reserved to itself the
right to judge as to the impairment of respondent's credit. And as appellant has concluded that
respondent's credit has become so impaired that it is not desirable to continue deliveries under
the contract, the only inquiry is whether the evidence presents reasonable grounds for such
conclusion. The legal effect of the condition in the contract is that respondent was obliged to
maintain its credit to the satisfaction of appellant. We hold that under the condition there
must be a proper basis in the evidence for the exercise of the right to terminate the contract
before it could be authorized, and that such appears in the record. In other words, the
evidence shows that appellant was not acting in bad faith, but that its dissatisfaction with the
soundness of respondent's credit was a fact and not pretense.
Respondent stresses a statement which the president of the respondent company testified
was made by Mr. Bowman, assistant general sales manager of the appellant company, that
they could cancel the contracts by taking the position that respondent's credit was impaired;
that of course they knew it was not impaired, but they were the sole judges whether or not it
was impaired. It is sufficient to say that any probative value this statement may have as
tending to show credit standing is entirely neutralized by the averments concerning this
phase of the case in the affidavit of Mr.
54 Nev. 245, 256 (1932) Dodge Bros. v. General Petroleum Corp.
standing is entirely neutralized by the averments concerning this phase of the case in the
affidavit of Mr. Walsh, division manager of the appellant company, offered by appellant on
the hearing of the motion to dissolve the injunction. These averments are as follows: Affiant
further, on behalf of defendant, alleges that said contracts between the parties, as described in
the complaint, reserves to this defendant the right to cancel said contracts and each of them
on twenty-four hours notice in writing for any of the reasons set forth therein; that defendant
desires, intends to, and will cancel said contracts and give the notice of such cancellation as
required by said contracts, the order or orders of this court permitting, and affiant, on behalf
of defendant alleges that the buyer's credit has become so impaired and/or unsatisfactory in
the opinion of the defendant that the defendant does not deem it desirable to continue
deliveries under said contract.
We do not share respondent's view that the fact that appellant continued to do business
during all of the periods when payments were late, demonstrates that it did not consider
belated payments as tending to show impairment of credit. Such an inference is not legally
deducible from that fact. Appellant had the option under the contract to waive any default
without the same constituting a waiver of continuance thereof or of any subsequent default.
That it may have waived acting on evidence tending to convince it that respondent's credit
was not satisfactory to it will not support an inference that it deemed such credit satisfactory.
It is ordered that the orders of the lower court granting the injunction and refusing to
dissolve it on appellant's motion be and they are hereby reversed, and the temporary
injunction granted herein be and the same is hereby dissolved.
On Petition for Rehearing
September 22, 1932.
Per Curiam:
Rehearing denied.
____________
54 Nev. 257, 257 (1932) Bailey Et Al. v. Neagle Et Al.
BAILEY Et Al. v. NEAGLE Et Al.
No. 2980
August 6, 1932. 13 P.(2d) 634.
1. Payment.
Debtor making payment and desiring that it apply on particular one of several obligations must direct
to which obligation payment must be applied; otherwise creditor may apply it as he chooses.
2. Evidence.
Written guaranty on back of note cannot be varied by parol testimony.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by Claude F. Bailey and another against William Neagle and Le Roy Neagle. From
an adverse judgment, Le Roy Neagle appeals. Judgment modified, and, as so modified,
affirmed.
Ham & Taylor, for Appellants:
It is an elementary principle of law that parol evidence, in the absence of fraud or mistake,
is not admissible for the purpose of contradicting or varying the terms of a written contract,
and it is well settled that this rule applies to contracts of guaranty. Ann. Cas. 1912a, 781
(notes); Case v. McKinnis (Ore.), 213 P. 422, at 426-27.
H. N. Gambill, for Respondent:
We submit that this is an action on an independent contract entered into by and between
appellants and the respondents at the time of the execution of the instruments referred to in
the complaint, and a different rule of law is applicable than would have been had this action
been commenced by the bank, the payee of the notes. Hunter v. Harris (Ore.), 127 P. 786.
OPINION
By the Court, Coleman, C. J.:
This action was brought to recover money alleged to have been paid by plaintiffs on two
notes on which it is claimed they became liable as accommodation comakers, and for
which they received no consideration.
54 Nev. 257, 258 (1932) Bailey Et Al. v. Neagle Et Al.
claimed they became liable as accommodation comakers, and for which they received no
consideration. Judgment was rendered in favor of plaintiffs upon both causes of action. The
defendants have appealed from the order denying a motion for a new trial and from the
judgment.
The parties will be referred to as plaintiffs and defendants, as they were entitled in the
lower court.
William Neagle having failed to answer, his default was entered. Le Roy Neagle filed an
answer in due time, denying, among other things, that the plaintiffs were accommodation
signers on the notes, as alleged.
The evidence shows: That on November 5, 1931, Claude F. Bailey, Le Roy Neagle, and
William Neagle executed a joint and several note to the First State Bank of Las Vegas,
Nevada, in the sum of $250, payable ninety days after date. That on January 13, 1931, a note
payable to said bank in the sum of $500 was executed, which reads in part as follows: In
installments as herein stated, for value received, Claude F. Bailey and Elizabeth Bailey, his
wife promise to pay * * *which was signed at the bottom of the note as follows:
Claude F. Bailey
Elizabeth Bailey.
On the back of the note is the following indorsement:
For value received I hereby guarantee payment of the within note, and waive demand and
notice of protest on same when due.
William Neagle
Le Roy Neagle
Wm. May
The $500 note by its terms was payable in $50 monthly installments. The first payment fell
due February 13, 1931.
It appears from the bill of exceptions that the plaintiffs testified that the defendant agreed
to pay both notes when they fell due. This testimony was objected to upon the usual grounds
of irrelevancy, and upon the further ground that such testimony could only serve to alter and
vary the terms of written instruments, and because all of the agreements had been merged
into the notes.
54 Nev. 257, 259 (1932) Bailey Et Al. v. Neagle Et Al.
because all of the agreements had been merged into the notes.
The defendants testified that there were no agreements other than expressed in the notes
themselves.
It appears from the indorsements on the $250 note that on and prior to February 28, 1931,
defendants made certain payments thereon, which left a balance of $58.
On the $500 note are indorsements of payments by defendants as follows: February 17,
1931, Roy Neagle, $4.20 interest and $25 principal; February 18, 1931, by Wm. Neagle,
$22.50 principal; June 3, 1931, Wm. Neagle, $7.30 interest.
The defendants testified that the payments made by them and credited on the $500 note
was intended to be applied on the $250 note, which it is insisted would have extinguished it.
There is some other evidence in the record which is not material to the determination of this
case.
1. It is a rule of law so well recognized that we should not find it necessary to cite an
authority to the point that, where two or more obligations are held by an individual against
another, the debtor making a payment and desiring that it apply upon a particular one of the
obligations must direct to which obligation the payment must be applied (see 48 C. J. 646);
otherwise the creditor may apply it as he chooses. The first payment on the $500 note was
past due when the payments of February 17th and 18th were made, and, no direction having
been given as to how they should be credited, the bank could use its option in the matter.
Counsel for the plaintiffs rely upon a portion of the rule stated in 10 R. C. L. p. 1048, sec.
241, and in 3 R. C. L. p. 1122, sec. 338. The portion of the text quoted from 10 R. C. L. reads
as follows: While the cases are not harmonious, the prevailing view is that the true relation
of parties to a negotiable instrument, may, as between themselves, be proved by parol
whenever it is necessary to a correct determination of the right or liability of either of them
thereon.
The portion of the text quoted from 3 R. C. L. reads as follows: "The payee is named in
the body of the note, the makers sign it upon its face below the body of the instrument,
and the indorser or guarantor signs his or her name upon the back.
54 Nev. 257, 260 (1932) Bailey Et Al. v. Neagle Et Al.
as follows: The payee is named in the body of the note, the makers sign it upon its face
below the body of the instrument, and the indorser or guarantor signs his or her name upon
the back. But the extent of the obligations assumed in and by promissory notes ought to be
determined between the parties contracting, as in other contracts, by the intention of the
parties rather than by the particular place where one of the parties has placed his signature.
It is too plain for words that counsel did not read far enough in considering these sections.
A reading of the entire sections mentioned clearly shows that it was merely sought to state the
rule to be that, in an action between the parties to negotiable instruments, oral evidence is
admissible to prove an agreement between them different from that indicated by the relative
position of their signatures, and nothing more. The question of varying the terms of a written
guaranty is not treated in those sections.
That the publisher had nothing else in mind is to be readily seen by the following language
in 10 R. C. L. p. 1048: There has been much difference of opinion as to whether the contract
implied from the indorsement of a negotiable instrument may be varied by proof of a special
agreement. So there is a direct conflict of authority as to whether the liability intended to be
assumed by a stranger to a promissory note, who places his name on the back of it, may be
shown by parol.
We do not wish to be understood as accepting the rule stated in 10 R. C. L., referred to, but
simply to state that, even if conceded to be correct, it does not apply to the situation in hand.
2. That a written guaranty on the back of a note cannot be varied is too well recognized to
need citation of authorities; however, we call attention to the following:
In 3 R. C. L. p. 1123, it is said: If there is anything to be found in the writing itself that
indicates what the particular relation is that the party intends to assume to the note, then
parol evidence is not admissible to vary such relation."
54 Nev. 257, 261 (1932) Bailey Et Al. v. Neagle Et Al.
to the note, then parol evidence is not admissible to vary such relation.
In the same work, at page 1060, 12 R. C. L., after considering the inferences to be drawn
from the appearance of a signature on the back of a note, it is said: But, whatever may be the
legal effect of one's irregular signature on the back of a negotiable instrument, it is clear that
if he writes above his signature words to the effect that he guarantees the payment of the
instrument, it cannot be afterwards claimed that his rights and liabilities are not those of a
guarantor.
The rule is correctly stated in 22 C. J. p. 1112, as follows: A written undertaking of
guaranty or suretyship cannot be varied by parol or extrinsic evidence; but such evidence may
be received to apply a guaranty to its subject matter. See the same volume, page 1254, sec.
1669.
Dean Wigmore, in his excellent work on Evidence, in considering the rule as applicable to
negotiable instruments, holds that, as regards the expressed terms of the obligation, no
extrinsic agreement can be availed of to avoid their enforcement. 5 Wigmore on Evidence
(2d. ed.) p. 337. See, also, Ann. Cas. 1912a, note, page 781.
It follows from what we have said that the court erred in receiving parol testimony to vary
the terms of the written guaranty.
It is ordered that the judgment against Le Roy Neagle be modified in accordance with the
views herein expressed, and, as so modified, that the judgment be affirmed; Le Roy Neagle to
recover his costs.
On Petition for Rehearing
November 4, 1932.
Per Curiam:
Rehearing denied.
____________
54 Nev. 262, 262 (1932) Quinn v. Quinn
QUINN v. QUINN
No. 2912
August 6, 1932. 13 P.(2d) 221.
1. Appeal and Error.
Party not having exhausted peremptory challenges before jury was accepted could not complain of
denial of his challenges for cause to jurors thereafter peremptorily challenged.
2. Appeal and Error.
Error of denying challenges for cause is harmless where impartial jury is obtained.
3. EvidenceMarriage.
In divorce suit, insurance solicitor's testimony that in alleged husband's insurance application solicitor
erroneously designated beneficiary as his wife, though husband had stated beneficiary was not his wife, held
not inadmissible as self-serving or tending to contradict writing.
The rule excluding testimony contradicting a written instrument applies to writings signed by
both parties to the litigation or their representatives and by which both are bound, and did not
control in this case because the insurance application in question was not a writing signed by both
parties; the alleged wife not having signed the instrument and not being bound thereto.
4. Marriage.
Declaration of divorced husband that there was no such thing as another marriage for him held
admissible in divorce suit to disprove common-law marriage.
Appeal from Second Judicial District Court, Washoe County; G. A. Ballard, Judge
presiding.
Suit for divorce by Anna Quinn against Frank P. Quinn. From a judgment for defendant,
plaintiff appeals. Affirmed.
See, also, 53 Nev. 68, 71, 72; 292 P. 620; 295 P. 1111; 2 P.(2d) 130.
Frame & Raffetto, for Appellant:
It was manifestly error for the trial court to deny plaintiff's challenge to juror Caton. It is
clear that the prejudice existing in the mind of the juror against common-law marriages was
such as to amount to actual bias, and the juror should have been excused upon that ground.
54 Nev. 262, 263 (1932) Quinn v. Quinn
ground. Also, the business relations existing between the juror and the defendant, together
with the fact that an officer of the bank in which the juror was employed and of which
defendant was a patron testified as a witness in behalf of defendant, are likewise sufficient
and did constitute implied bias, sufficient to raise a just inference that the juror would not be
entirely impartial. While plaintiff did challenge the juror Caton peremptorily after the denial
of her challenge for cause, this was the fourth and last peremptory challenge the plaintiff had.
In view of the fact that the juror Yori was disqualified for actual bias upon the same
ground as juror Caton, having also expressed a prejudice against common-law marriages,
and, in addition to this, inasmuch as Mr. Kearney, one of the attorneys for defendant,
represented a holding corporation composed of Mr. Yori and members of his family, which in
reason and justice and to all intents and purposes showed the existence of the relation of
attorney and client, the same was sufficient to raise the just inference that the juror would not
be entirely impartial. Therefore it was error prejudicial to plaintiff to deny her challenge to the
juror Yori, inasmuch as her challenge to the juror Caton exhausted the peremptory challenges
of plaintiff, and she did not have any to exercise on Yori.
It was prejudicial error to admit the testimony of the witnesses Reber and Harrington. We
contend that defendant cannot be permitted to hold out and act out and make apparent a status
that did not exist in fact, and then, by his uncorroborated declarations, destroy the effect of
that which by his acts he had solemnly declared. Keezer on Marriage and Divorce, sec. 74,
pp. 91, 92; Clark v. Clark, 44 Nev. 44, 189 P. 676; Stripe v. Meffert, 229 S. W. 762; Hummel
v. State, 126 N. E. 444; State v. Hughes, 12 P. 28; McClurkin v. McClurkin, 90 So. 917;
Jackson v. Jackson, 113 Atl. 495; Mickle v. State, 21 So. 66.
54 Nev. 262, 264 (1932) Quinn v. Quinn
W. M. Kearney and Sidney W. Robinson, for Respondent:
Neither of the talesmen, Mr. Caton nor Mr. Yori, served upon the jury, Mr. Caton being
challenged on the first and Mr. Yori having been challenged on plaintiff's second peremptory
challenge. There is no showing whatever of any prejudice; no showing that because of the
exercise of these challenges the statutory number of peremptory challenges was exhausted.
The application for insurance was a writing exclusively between Mr. Quinn and the
insurance company; Mrs. Quinn, the appellant, was not a party to it. In such cases the law is
well settled that a third party cannot complain if either party to the writing gives oral
testimony to contradict the statements on the face of the writing. Travis v. Epstein, 1 Nev. 94;
Goodman v. Reinowitz, 95 N. Y. S. 534.
A writing which does not vest, pass, nor extinguish any right, either by contract, operation
of law, or otherwise, but is used as evidence of a fact, and not as evidence of a contract or
right, may be susceptible of explanation by extrinsic circumstances or facts. In Re Baird, 245
Fed. 504; Smith v. Natl. Surety Co., 149 P. 1040; Winter v. Friedman, 97 N. Y. S. 733;
Davidge v. Velie, 160 N. Y. S. 820.
Where the writing, as here, merely included the mistaken fact, it would seem that abstract
justice would permit the explanation given in the deposition of Mrs. Harrington. Thompson v.
McClenachan, 17 Serg. & R. (Pa.) 110.
It seems to be well settled that declarations of a man that he was not married are proper
evidence of his intent. Sharon v. Sharon, 22 P. 26, 131; Henry v. McNeilly, 50 P. 37; Dowdy
v. Hesters, 130 Ga. 161, 60 S. W. 451; Topper v. Perry, 95 S. W. 203; Imoden v. St. Louis
Trust Co., 83 S. W. 263; Crawford v. Blackburn, 77 Am. Dec. 323; Barnum v. Barnum, 42
Md. 251; Central Trust Co. v. Culver, 83 P. 1064; Stall v. People, 30 P. 64; Denver v.
Jacobson, 30 P. 246; Mutual Insurance Co. V. Hillmon, 145 U. S. 285.
54 Nev. 262, 265 (1932) Quinn v. Quinn
OPINION
By the Court, Sanders, J.:
This is a suit for a divorce tried with a jury. It was alleged that the parties entered into a
common-law marriage in October, 1924, they having theretofore had a ceremonial marriage
which was dissolved by a decree of court in September of the same year.
The plaintiff in the court below being the appellant here, the parties will be referred to as
they were designated in the trial court.
The jury having brought in a verdict in favor of the defendant and judgment having been
entered accordingly, an appeal was taken.
It is contended that the court erred in denying plaintiff's challenges for cause to jurors
Caton and Yori, in admitting the deposition of Mabel Harrington, and in admitting the
testimony of the witness Reber.
1, 2. While we do not think the court erred in over-ruling the challenges, we do not find it
necessary to decide the point, for the reason that it appears from the record that both of the
jurors mentioned were peremptorily challenged by the plaintiff and it does not appear from
the record that plaintiff exhausted her peremptory challenges before the jury was accepted. In
this situation she cannot complain. State v. Hartley, 22 Nev. 342, 40 P. 372, 28 L. R. A. 33.
Nor could there have been any prejudice if an impartial jury was obtained, which is not
denied. State v. Larkin, 11 Nev. 327; Sherman v. S. P. Co., 33 Nev. 385, 111 P. 416, 115 P.
909, Ann. Cas. 1914a, 287.
3. The court did not err in admitting in evidence the deposition of Mrs. Harrington. In
April, 1926, she obtained from defendant an application for life insurance, in which the
plaintiff is named as beneficiary. The application states that the beneficiary was the wife of
the defendant. Mrs. Harrington testified that the application was written entirely by herself,
except the signature of the defendant. She also testified that in response to the question in the
application, What is the relationship of the beneficiary to you?" she wrote, "Wife"; that
he {the defendant) "said not to put wife.
54 Nev. 262, 266 (1932) Quinn v. Quinn
the relationship of the beneficiary to you? she wrote, Wife; that he (the defendant) said
not to put wife. They were divorced. * * * But I put it anyway. I should have put ex-wife' or
divorced wife,' but I didn't think fast enough.
Mrs. Harrrington's testimony is objected to on the ground that it tends to contradict a
written instrument and that it is self-serving. We do not think the statement can be said to be
objectionable as a self-serving declaration, for the reason hereinafter given in relation to the
testimony of the witness Reber. Nor do we think it is objectionable on the ground that it tends
to contradict a written instrument. The rule relied upon applies to writings signed by both
parties to the litigation or their representatives, and by which both are bound. The plaintiff did
not sign the application and was not bound by the statement of the defendant. Bank of
California v. White, 14 Nev. 373; 2 Abbott's Trial Enc. (4th ed.) p. 883. See, also, 5 Wigmore
on Ev. (2d ed.) sec. 2446.
4. We do not think the court erred in admitting in evidence the testimony of the witness
Reber. The witness testified that at the time at which the conversation to which he testified to
was had with the defendant, which was about six months after the divorce, the plaintiff was
running the Vendome Hotel, and the defendant the Grand; that he was rooming at the Grand;
and that on the occasion in question he stated to the defendant, You look to me as though
you are sneaking back, to which the defendant replied: Not by a damned sight. There is no
such thing as a marriage for me again.
While the authorities are divided on the question, the decided weight of authority is in
favor of the admission of such declarations, though they are held to be entitled to but little
weight when not made in the presence of the other party. 1 Abbott's Trial Ev., sec. 154; Beck
v. Utah-Idaho Sugar Co., 59 Utah, 314, 203 P. 647; Coleman v. James, 67 Okl. 112, 169 P.
1064; In Re Foley's Estate, 76 Colo.
54 Nev. 262, 267 (1932) Quinn v. Quinn
Estate, 76 Colo. 286, 230 P. 618; Topper v. Perry, 197 Mo. 531, 95 S. W. 203, 114 Am. St.
Rep. 777.
For the reasons given it is ordered that the judgment be affirmed.
On Petition for Rehearing
December 12, 1932.
Per Curiam:
Rehearing denied.
____________
54 Nev. 267, 267 (1932) Davis v. Davis
DAVIS v. DAVIS
No. 2956
August 30, 1932. 13 P.(2d) 1109.
1. Divorce.
Plaintiff seeking divorce for grounds accruing without state held not required to reside in state for
three calendar months before suit.
2. Courts.
That courts had construed statutes contrary to contention made for nearly 70 years, and construction
suggested would upset property rights and bastardize children, justified court in rejecting contention without
considering merits.
3. Divorce.
Appellate court could not weigh conflicting evidence on bona fide residence of plaintiff in divorce
suit.
4. Divorce.
It is better practice for court in divorce suit to make special findings as basis for decree.
5. Trial.
Instruction giving correct statement of law, based upon assumption that jury found facts in accordance
with plaintiff's theory, held not erroneous.
6. Trial.
Refusal of requested instruction covered by instruction given held not error.
7. Limitation of Actions.
Statute of limitations of state where parties formerly resided did not apply in divorce suit, where
causes of action sued on arose under statute of Nevada.
8. Evidence.
Courts of Nevada cannot take judicial notice of existence of superior court in another state.
9. Evidence.
Court improperly admitted deposition purporting to have been taken in superior court of
another state, where there was no evidence that there was superior court in such
state.
54 Nev. 267, 268 (1932) Davis v. Davis
been taken in superior court of another state, where there was no evidence that there was superior court in
such state.
10. Evidence.
Deposition taken in alleged previous suit in another state held improperly admitted, where there was
no showing that deposition was made part of record in such previous suit (28 USCA, sec. 687).
11. Evidence.
In divorce action, court improperly admitted evidence on whether witness had ever observed whether
plaintiff was of quarrelsome disposition, since traits of character can only be established by showing general
reputation as to them.
12. Trial.
Instruction that if wife refused to live in suitable home provided by husband it constituted desertion
held improperly given, in absence of evidence that husband provided such home.
Appeal from Second Judicial District Court, Washoe County; Geo. A. Bartlett, Judge.
Divorce suit by Norris K. Davis against Therese Morgan Davis. From a judgment in favor
of plaintiff and an order denying a motion for a new trial, defendant appeals. Reversed, and a
new trial ordered.
Green & Lunsford, for Appellant:
The court erred in holding that it had jurisdiction to enter any judgment in this action other
than a judgment of dismissal. As a basis for recovery it was necessary for the plaintiff to
prove by substantial evidence a residence in Washoe County for three months prior to the
commencement of this action. That residence must consist of two elements, namely, physical
presence and intent to remain indefinitely, both coexisting for the whole period of three
months. N. C. L. sec. 460, subdivision 8. Under the authorities the expression three months
as used in the statute must be taken to mean calendar months. 3 Words and Phrases, 2d series,
p. 440, col. 2; 5 Words and Phrases, 3d series, p. 207, col. 2.
We submit that a reading of the testimony leads irresistibly to the conclusion that the
plaintiff came to the State of Nevada for the purpose of obtaining a divorce and for no other
purpose.
54 Nev. 267, 269 (1932) Davis v. Davis
The court erred in entering judgment of divorce upon a general verdict without any
findings.
The court erred in giving to the jury upon its own motion instruction No. 11. Said
instruction was indefinite as to the time when the intention to become a resident became
essential, or as to how long such intent should continue.
The court erred in refusing to give defendant's requested instruction relative to the bona
fides of plaintiff's residence. The giving of this instruction was rendered necessary and
important because of misleading instructions given as to residence.
The court erred in refusing to give defendant's requested instruction relating to laches and
the statute of limitations of California. Sec. 124, subd. 3, Cal. Civil Code; 37 C. J., pp. 732,
733, secs. 50, 51; Wing v. Wiltsee, 47 Nev. 350, 223 P. 334; Lewis v. Hyams, 26 Nev. 68, 64
P. 817.
The court erred in admitting the deposition of Nora Silva over the objection of the
defendant, for the reason that it is incompetent and not admissible in the courts of this state,
and especially for the reason that it had never been published or admitted in evidence in the
California proceeding, was not of record in any court and had not received any judicial
sanction of the foreign court, and was not, therefore, a record of any court which could be
exemplified. 28 USCA, sec. 687; 22 C. J., p. 799, sec. 910, also, n. 86, subd. b.
The court erred in overruling the defendant's objection to the following question: Did you
ever observe whether Colonel Davis was or was not of a quarrelsome disposition? It is
well-established rule that character cannot be proved by evidence of specific cases. 22 C. J.
pp. 479, 481, secs. 574, 579.
The court erred in giving to the jury upon his own motion instructions No. 13 and No. 14,
for the reason that there is no evidence in the record that the husband ever provided or offered
to provide a home for the defendant.
54 Nev. 267, 270 (1932) Davis v. Davis
Painter & Withers, for Respondent:
According to respondent's very definite testimony, he was present in Washoe County
ninety-six days, with intent to make that county his residence. Since appellant admits that
ninety-two days' physical residence, with intent to reside, is sufficient, it is clear that
respondent more than complied with the residential requirements of our statute.
The supreme court of Nevada has held that residence is a question of fact to be determined
by the jury or trial court. Confer v. District Court, 49 Nev. 26, 236 p. 1097; Blakeslee v.
Blakeslee, 41 Nev. 235, 168 P. 950; Miller v. Miller, 37 Nev. 257, 142 P. 218; Goldershaw v.
Goldershaw, 92 Atl. 484.
It has also been held, times without number, that the supreme court will not reverse the
trial court on a question of fact, where the evidence is conflicting, or where there is
substantial evidence to support the decision of the trial court.
The great weight of authority is to the effect that where in an action at law, or in any action
where either party is, as a matter of law, entitled to a trial by jury, the verdict of the jury is
conclusive on the facts, and it is not error on the part of the lower court to fail or to refuse to
prepare or file findings of facts. Driscoll v. Morriss, 275 S. W. 196; Froescher v. Tabbert, 187
N. W. 962; Abilene St. Ry. Co. v. Stevens, 185 S. W. 390; Padgett v. Hines, 192 S. W. 1122.
Moreover, the supreme court of Nevada has already decided this particular point, in Effinger
v. Effinger, 48 Nev. 205, 239 P. 801.
We submit that appellant's objection that the court erred in instruction No. 11 in stating
certain dates as representing the dates fixing the respondent's physical residence is without
merit, since such dates were uncontroverted facts which could have been entirely taken from
the consideration of the jury; and that that part relative to the necessity for the duration of
respondent's intent was fully and completely covered.
The court did not err in refusing to give defendant's requested instruction as to the bona
fides of plaintiff's residence, since the same was fully covered in instructions given.
54 Nev. 267, 271 (1932) Davis v. Davis
requested instruction as to the bona fides of plaintiff's residence, since the same was fully
covered in instructions given. Thompson v. Thompson, 49 Nev. 375, 247 P. 545; Conig v. N.
C. O. R. R., 36 Nev. 181, 135 P. 141.
The great weight of authority clearly upholds the right of a Nevada court to grant a decree
of divorce regardless of legislation in other states, providing proper grounds for divorce under
Nevada laws be shown. Blakeslee v. Blakeslee, 41 Nev. 236, 168 P. 950, cited with approval
in Walker v. Walker, 198 P. 434, and in In Re Confer, 234 P. 689 and 236 P. 1098.
There is nothing in the Nevada statutes prohibiting the introduction of the deposition of
Nora Silva. In fact, the decisions of the supreme court of Nevada and the statutes in principle
authorize its introduction. Sec. 9019 N. C. L.; State v. Johnson, 12 Nev. 121.
The law is well settled that a witness may give his opinion or conclusions based on his own
observations as to a person's disposition or normal or abnormal mental condition. Jones on
Evidence, vol. 2, pp. 864, 870, 889; 22 C. J., secs. 572, 594, 601, 605, 657, 696; State v.
Salgado, 38 Nev. 64, at 75, 150 P. 764.
We submit that the finding of the jury that the respondent had provided or designated a
home suitable to the parties, and that the home designated by him was the home which had
for many years been the actual matrimonial domicile of the parties, is supported by
substantial evidence, and justifies the giving of instructions 13 and 14.
OPINION
Per Curiam:
This is a suit for divorce tried to a jury. The case is before us on an appeal from a
judgment in favor of the plaintiff and from an order denying a motion for a new trial.
The plaintiff alleges in his complaint that he is a bona fide resident of Washoe County,
Nevada; that the plaintiff and defendant are husband and wife.
54 Nev. 267, 272 (1932) Davis v. Davis
the plaintiff and defendant are husband and wife. He pleads two causes of action, desertion
and extreme cruelty.
The defendant admits the marriage, but denies that the plaintiff is a bona fide resident of
Washoe County. She also denies the allegations of desertion and extreme cruelty. She pleads
affirmatively that plaintiff's alleged cause of action is barred by the statute of limitation of
California (Civ. Code, sec. 124), in which state both parties resided until some time over
three months prior to the institution of this suit. She further alleges affirmatively that the
plaintiff deserted and abandoned her; that the plaintiff was guilty of extreme cruelty toward
her. By the prayer to her cross-complaint the defendant does not ask for a divorce, but does
ask for separate maintenance.
The jury brought in a general verdict in favor of the plaintiff, upon which the court entered
a general judgment without specific findings of facts.
The parties will be referred to herein as plaintiff and defendant.
The first alleged error urged upon our consideration is that the trial court never acquired
jurisdiction to enter a judgment or decree in favor of the plaintiff. This contention is based
upon two propositions, namely: (1) That the law of Nevada at the time plaintiff alleges he
became a resident of the state, and when this suit was instituted, provided that the plaintiff
must have resided in the state not less than three months, where the grounds for divorce do
not accrue within this state, prior to the filing of the suit, and that since the plaintiff had not
resided in Nevada three calendar months prior to the filing of the suit, he could not maintain
the same; (2) that the plaintiff was not a bona fide resident at the time the suit was filed even
if the first contention is without merit.
Counsel for defendant cite several authorities to the effect that the statute contemplates a
residence of three calendar months.
54 Nev. 267, 273 (1932) Davis v. Davis
1-3. The courts of this state have construed our divorce statutes contrary to the contention
made for nearly seventy years. To take any other view at this time would upset property rights
of long standing, bastardize hundreds of children, and entail disastrous consequences too
numerous to mention. These considerations justify us in rejecting the contention without
considering it upon its merits. State v. Glenn, 18 Nev. 34, 1 P. 186; Worthington v. Second
Jud. Dist. Ct., 37 Nev. 212, 142 P. 230, L. R. A. 1916a, 696, Ann. Cas. 1916e, 1097; Smith v.
S. P. Co., 50 Nev. 377, 262 P. 935. As to the second contention, we may say that although the
evidence is conflicting, there is substantial evidence to support the verdict of the jury, hence
we are precluded from weighing it. Thompson v. Thompson, 49 Nev. 375, 247 P. 545, 47 A.
L. R. 569.
4. It is next contended that the court erred in entering a general judgment, without making
findings and conclusions of law, in favor of the plaintiff. In view of the fact that the judgment
must be reversed, we do not deem it necessary to determine this point. However, we think it
the better practice and safer course for the court in divorce suits to make special findings as a
basis for a decree, for while a divorce suit is statutory (Effinger v. Effinger, 48 Nev. 209 and
217, 228 P. 615, 239 P. 801), it nevertheless partakes of the nature of an equitable proceeding
(Thompson v. Thompson, supra), and we feel safe in saying that it has been the general
practice in such suits to make findings of facts.
We are of the opinion that the court did not err in giving instruction No. 3. The second
paragraph of this instruction, of which complaint is made, was intended to and does instruct
the jury correctly as to the law embraced in the proviso of the statute relating to residence.
As to instruction No. 10, we need only to say that we have never before known such an
instruction to be given, and as it is not likely to be given upon a retrial of the case, we need
not comment upon it, except to say that we think such an instruction is likely to be
confusing to a jury.
54 Nev. 267, 274 (1932) Davis v. Davis
say that we think such an instruction is likely to be confusing to a jury.
5. Instruction No. 11 is a correct statement of the law based upon the assumption that the
jury finds the facts in accordance with the theory of the plaintiff. No error was thus
committed. Zelavin v. Tonopah Belmont Dev. Co., 39 Nev. 1, 149 p. 188.
6. The court did not err in refusing to give defendant's requested instruction relative to the
bona fide residence of plaintiff, as contended, since that question is covered by an instruction
given by the court.
7. We do not think the court erred in refusing to give defendant's requested instruction
relative to laches and the statute of limitations of California.
The causes of action sued upon arose under the statute of Nevada as to which no statute or
law of California would apply, nor has the rule declared in Wing v. Wiltsee, 47 Nev. 350, 223
P. 334, any application.
8-10. We are of the opinion that the court erred in admitting in evidence the deposition of
Nora Silva. The deposition in question was taken in an alleged previous suit pending between
the parties in California. The deposition was objected to upon several grounds, among them
that there is no evidence showing that there is a superior court in California in which the
deposition purports to have been taken; that there is no proof that the deposition is a part of
any record in any court in California; and that the trial court could not take judicial notice of
the existence of a superior court in California.
The courts of this state cannot take judicial notice of the existence of a superior court in
California. For this reason alone we must conclude that the court erred in admitting the
deposition. Furthermore, there is no showing that the deposition was made a part of the
record in a California suit, and until that is done it could not be certified to pursuant to the
requirement of the act of Congress (see 28 USCA, sec. 687.).
11. We think, too, that the court erred in overruling an objection to the following
question proposed to one of defendant's witnesses by her counsel: "Did you ever observe
whether Colonel Davis was or was not of a quarrelsome disposition?"
54 Nev. 267, 275 (1932) Davis v. Davis
an objection to the following question proposed to one of defendant's witnesses by her
counsel: Did you ever observe whether Colonel Davis was or was not of a quarrelsome
disposition? It is the well-established rule that traits of character can only be established by
showing one's general reputation as to such traits, and not by showing a specific act, or the
failure to observe a specific act. State v. Pearce, 15 Nev. 188; 22 C. J. p. 479, sec. 574.
12. We think the court erred in giving instruction No. 13. This instruction pertains to the
question of desertion and advises the jury that if the wife refuses to live in a suitable home
provided by the husband it constitutes desertion. There is no evidence upon which this
instruction could be based, since there is no testimony that the plaintiff provided such home.
The court erred in giving instruction No. 14 for the same reason.
Some other points are made by defendant, but as they are not likely to arise on a retrial, we
do not find it necessary to pass upon them.
The judgment and order appealed from are reversed, and a new trial is ordered.
On Petition for Rehearing
December 21, 1932.
Per Curiam:
Rehearing denied.
Coleman, C. J.: I dissent.
____________
54 Nev. 276, 276 (1932) Whitman v. Moran
WHITMAN v. MORAN, Judge of Second Judicial
District Court
No. 2987
August 30, 1932. 13 P.(2d) 1107.
1. Appearance.
Respondent, who, in moving to quash mandamus writ, contended that court's act was within judicial
discretion, thereby made general appearance.
2. Courts.
Court rules providing for procedure on motion have force and effect of statute (District Court Rules
X, XI).
3. Mandamus.
Striking out husband's affidavit filed on hearing of wife's application for suit money in divorce suit,
though erroneous, held within court's jurisdiction, and therefore not controllable by mandamus.
4. Pleading.
Statutory provision for striking out on motion sham and irrelevant answers held inapplicable to
affidavit filed at hearing on wife's application for suit money in divorce suit (Comp. Laws 1929, sec. 8623).
Original Proceeding by Clarence P. Whitman for writ of mandamus to be directed to Hon.
Thomas F. Moran, Judge of the Second Judicial District Court in and for Washoe County,
Department 1 thereof. Writ denied, and proceeding dismissed.
Clyde D. Souter, for Petitioner.
Thomas F. Ryan, for Respondent.
OPINION
By the Court, Coleman, C. J.:
This is an original proceeding in mandamus.
Upon the filing and reading of the verified petition, the court entered an order directing the
issuance of an alternative writ.
On the return day a motion to quash the writ was filed and argued.
54 Nev. 276, 277 (1932) Whitman v. Moran
The petition herein alleges that on February 26, 1932, the petitioner filed in the respondent
court a complaint in an action for a divorce from Elsie Vanderhoof Titchnor Whitman, and
that service of summons was had upon her in the State of New Jersey; that thereafter the
defendant in said suit filed a demurrer to the complaint, and also made application for suit
money and traveling expenses; that upon the hearing of said application an affidavit by the
defendant in said divorce suit in support thereof was filed and read; that thereafter an affidavit
made by the plaintiff was filed and read; and that on motion of counsel for the defendant the
court entered an order striking from the files said affidavit of the plaintiff.
This proceeding is to compel the respondent to vacate said order striking said affidavit,
and the order allowing suit money and traveling expenses, and to consider said affidavit in the
fixing of said allowances.
The motion to quash the writ is based upon three grounds, but as the first ground is
waived, we will consider the other two only.
The first ground to be considered is that no copy of the petition was served with the writ.
It is provided by section 9243, N. C. L., that the writ of mandamus shall be issued in all
cases where there is not a plain, speedy, and adequate remedy in the ordinary course of law. It
shall be issued upon affidavit, on the application of the party beneficially interested. And
section 9253 provides: The writ shall be served in the same manner as a summons in a civil
action. * * *
It is provided in section 9244, N. C. L., that the alternative writ shall state generally the
allegations against the party to whom it is directed, commanding such party to do the act
required to be performed, or to show cause why it has not been done.
Nowhere is it provided that a copy of the affidavit (the form of which is immaterial) shall
be served with the writ.
The practice in this particular varies in the different States {3S C. J. S62), some of them
requiring that a copy of the affidavit be served with the writ, others not.
54 Nev. 276, 278 (1932) Whitman v. Moran
States (38 C. J. 862), some of them requiring that a copy of the affidavit be served with the
writ, others not.
It was said in State ex rel. Curtis v. McCullough, 3 Nev. 202, that the affidavit is required
to be served with the writ. The question was again suggested in State v. Gracey, 11 Nev. 223,
but the court did not find it necessary to determine the question.
In State v. Jumbo Ext. M. Co., 30 Nev. 192, 94 P. 74, 75, 133 Am. St. Rep. 715, 16 Ann.
Cas. 896, it was said: While there is little difference in the way these issues are raised, we
think the better practice in the future to be pursued in similar cases is to raise any objections
to the petition by demurrer or answer.
This expression evidently contemplates that the verified petition (or affidavit) shall be
served with the writ.
1. We think it has been the usual practice in this jurisdiction to serve with the alternative
writ a copy of the affidavit, and we are disposed to encourage this practice; however, in view
of the conclusion which we have reached, we do not find it necessary to determine the effect
of the failure to serve a copy in this proceeding. This conclusion is based upon the fact that
the respondent not only appeared specially in moving to quash the writ, but generally, in that
it is contended that the petitioner seeks to have this court issue a peremptory writ ordering the
respondent to do an act concerning which he was entitled to and did exercise judicial
discretion, which cannot be controlled by such a writ.
2. It is provided by section 8909, N. C. L., that every direction of a court or judge made or
entered in writing, and not included in a judgment, is denominated an order, and that an
application for an order is a motion. Rule X of the district court provides that the notice of
motion shall state the papers to be used upon the hearing of the motion. Rule XI provides
that, upon the hearing of the motion, the opposing party shall read or state the contents of his
opposing papers.
Pursuant to these rules, which have the force and effect of statutes (State ex rel. Williams
v. District Court, 4S Nev. 459
54 Nev. 276, 279 (1932) Whitman v. Moran
Court, 48 Nev. 459, 233 P. 843), it has become the well-recognized practice in applications
for suit money in divorce proceedings to submit the matter upon the affidavits of the
respective parties, supplemented by such other evidence as may be deemed desirable. Such
practice was resorted to in the divorce suit referred to herein.
On motion, the respondent entered an order striking the plaintiff's affidavit filed in
response to the affidavit of the defendant in support of her motion for suit money and
traveling expenses. The court granted the motion upon the ground that a part of his said
affidavit was based upon information and belief, and upon the further ground that the poverty
of the plaintiff in the action could not be considered on such an application.
It is clear that the court erred in striking out the affidavit, for the reason that a portion of
the affidavit was made on the positive knowledge of the plaintiff. Furthermore, we think it is
the duty of the court to consider the poverty of the plaintiff in a suit for divorce in fixing the
allowance of suit money and traveling expenses. While we held in Wallman v. Wallman, 48
Nev. 239, 229 P. 1, 35 A. L. R. 1096, that an allowance of an attorney's fee was proper
notwithstanding the poverty of the plaintiff, we did not go so far as to say that the financial
standing of the parties and their station in life should not be considered in fixing the amount.
We think it should. Certainly a court would not allow as much to a poor man's wife for
traveling expenses, hotel bills, and the like, as to the wife of a rich man. The wealth of some
people enables them to travel in private cars, others enjoy only a Pullman berth, while many
can afford only a day coach. The financial standing and station in life of the parties are and
should be taken into consideration in making allowances to cover these items of expense. In
the Wallman Case counsel for plaintiff took the position that no amount should be allowed,
but that if any should be allowed, the amount asked for was reasonable. Such is not the
position of plaintiff in this case.
54 Nev. 276, 280 (1932) Whitman v. Moran
3, 4. But the question for our determination is one of jurisdiction only. Did the court have
jurisdiction to strike palintiff's affidavit?
The rule of the district court above referred to allows the plaintiff in a suit for divorce to
file a counter affidavit on motion for alimony and suit money. It is the duty of the court to
consider such an affidavit and to give it such weight as it may be entitled to, so long as it is a
part of the record.
In reply to the contention of counsel for the respondent to the effect that the court had the
authority to strike the affidavit, and, even if it erred, it erred in the exercise of jurisdiction,
and that mandamus does not lie to control the discretion of the court, it is said by counsel for
petitioner that section 8623 N. C. L., controls, and in this connection our attention is directed
to that portion of the section reading: Sham and irrelevant answers and replies and so much
of any pleading as may be irrelevant, redundant or immaterail, may be stricken out on motion,
and upon such terms as the court, in its discretion, may impose. * * *
It is also said that to enable one to invoke this section notice must be given, and that no
notice was given.
We cannot agree with this contention. The language quoted applies solely to pleading. The
affidavit in question is not a pleading; it is merely evidence. It is a common practice in this
jurisdiction for the court to strike out evidence which is irrelevant. Had the parties appeared
in person, instead of by affidavit, upon the hearing, there is no doubt but that the court would
have had jurisdiction to strike the evidence in whole or in part. The mere fact that the
evidence is presented in the form of an affidavit does not justify a different rule.
Having reached the conclusion that the court had jurisdiction to strike the affidavit, it is
ordered that the peremptory writ be denied, and that these proceedings be, and they are
hereby, dismissed.
____________
54 Nev. 281, 281 (1932) Aikins v. Nevada Placer, Inc.
AIKINS v. NEVADA PLACER, Inc., Et Al.
No. 2959
September 7, 1932. 13 P.(2d) 1103.
1. Quieting Title.
Plaintiff, in action to quiet title, need not be in possession of land (Comp. Laws 1929, sec. 9061).
2. Quieting Title.
Complaint, in action to quiet title alleging that plaintiff was owner of mining claims involved, held
sufficient, although it did not allege plaintiff had legal title.
3. Quieting Title.
Complaint, in action to quiet title, need not contain specification as to nature of defendant's adverse
claim.
4. Landlord and Tenant.
Notwithstanding statute prohibited leasing of realty for more than 20 years, lease of mining claim for
five years, and as long thereafter as lessee or his assigns operated property pursuant to lease, held valid
(Stats. 1923, c. 175).
Lease did not violate Stats. 1923, c. 175, since the duration of the lease was dependent on a
contingency, and it did not affirmatively appear from the lease that it would extend beyond the
statutory limitation of that such was the intention of the parties.
5. Statutes.
Statutory provision restricting right of free alienation of property should be strictly interpreted (Stats.
1923, c. 175).
6. Perpetuities.
Lease of mining claim for five years and as long thereafter as lessee or his assigns operated property
pursuant to lease held not to violate rule against perpetuities.
Appeal from Fifth Judicial District Court, Nye County; J. Emmett Walsh, Judge.
Action by John G. Kirchen against the Nevada Placer, Incorporated, and another. During
the pendency of the action, Bronte M. Aikins, executor of the estate of John G. Kirchen,
deceased, was substituted as the party plaintiff. From a judgment for plaintiff and from an
order denying motion for a new trial, defendants appeal. Reversed. (Sanders, J., dissenting.)
W. M. Kearney, for Appellant:
There must be something in a complaint to show the character of the claim made by the
defendants, so that The court may determine from the face of the complaint whether the
claim is a cloud on the title or whether it is merely a claim of no consequence.
54 Nev. 281, 282 (1932) Aikins v. Nevada Placer, Inc.
The court may determine from the face of the complaint whether the claim is a cloud on the
title or whether it is merely a claim of no consequence. McLeod v. Lloyd, 71 P. 598.
In a suit to remove a cloud on title, it must be shown in the bill that such a cloud exists
before relief can be given against it, and in such a case the bill must, in addition to specifying
the writing or matter which constitutes the alleged cloud state the facts which give it apparent
validity, as well as those which show its invalidity. Chaplain v. Holmes, 27 Ark. 414;
Hibernia Savings, etc. Society v. Ordway, 38 Cal. 679; Jenks v. Hathaway, 12 N. W. 691;
McDonald v. Early, 17 N. W. 257; Page v. Kennan, 38 Wis. 320.
An essential allegation not only in actions to quiet title but also in actions to determine
adverse claims to real property is the possession of the same. Sec. 5522, Rev. Laws 1912; Lee
v. Laughery, 175 P. 873; Sklowel v. Abbott, 47 P. 901.
There is nothing in the lease referred to in defendants' answer and cross-complaint which
specifically brings it within the statutory prohibition against leases for a greater period than
twenty years. The limitation of the lease depends upon a contingency which might happen
within the period of limitation, and consequently it cannot properly be contended that the
indefinite term would per se extend beyond the statutory period. Parish v. Rogers, 40 N. Y. S.
1014, 46 N. Y. S. 1058; Harter v. City of San Jose, 75 p. 344, at 377; Interurban Land
Company v. Crawford, 183 Fed. 631; Robertson v. Hays, 83 Ala. 290, 3 So. 674; Bush
Everett Co. v. Vivian Oil Co., 55 So. 564; Hart v. Hart, 22 Barb. (N. Y.) 606.
Cooke, Stoddard & Hatton, for Respondent:
The complaint states a cause of action. In a quiet title suit it is only necessary for plaintiff
to allege his own title and that defendant claims some estate or interest in the property
adverse to plaintiff, and plaintiff need not allege or set out the extent, character or nature
of such adverse claim.
54 Nev. 281, 283 (1932) Aikins v. Nevada Placer, Inc.
not allege or set out the extent, character or nature of such adverse claim. Sec. 9061, N. C. L.
Save for the requirement of possession by plaintiff, the statute now is the same as when the
case of Scorpion S. M. Co. v. Marsano, 10 Nev. 370, 379, 380, was decided. The decision of
this court in that case would seem conclusive. See, also, Golden Fleece Co. v. Cable Con.
Co., 12 Nev. 312, 320; Rose v. Richmond Mining Co., 17 Nev. 25, 52, 27 P. 1105, 1109;
Castro v. Barry (Cal.), 21 P. 946; Union Mill & Mining Co. v. Warren 82 Fed. 519;
California Oil & Gas Co. v. Miller, 96 Fed. 12; Tonopah Fraction Mining Co. v. Douglass,
123 Fed. 936.
The lease in question, by its terms, may be continued indefinitely at the option of the
lessee or his assigns, thus creating a perpetuity, and is therefore void. Morrison v. Rossignol,
5 Cal. 64; 35 C. J. 1016, 1017, secs. 143, 144; Brush v. Beecher (Mich.), 68 N. W. 420, 64
Am. St. Rep. 373; Tischner v. Rutlege (Wash.), 77 P. 388; In Re Walkerly (Cal.), 49 Am. St.
Rep. 97, 134, note; Stats. 1923, p. 314.
OPINION
By the Court, Ducker, J.:
This is an action brought by John G. Kirchen to quiet his title to certain mining claims.
Thereafter the executor of his estate was by order of the lower court substituted as the party
plaintiff. These claims, twelve in number, are situated in Manhattan mining district, Nye
County, Nevada, and known as Robust Extension, Robust, Central City, September,
September Fraction, Auction, Pedro Fraction, Pedro, Erwin Fraction, Sandusky, Boston and
Bedrock. The complaint alleges ownership thereof by plaintiff; that the defendant, Nevada
Placer, Incorporated, is a corporation organized and existing under the laws of the State of
Colorado, and doing business in the State of Nevada; that the defendants claim an estate and
interest in and to the lands and premises described adverse to plaintiff; that the said claim
of defendants is without any right whatever; and that the said defendants have not any
estate, title, or interest, nor has either of them any estate, right, title, or interest
whatever in said land or premises, or any part thereof.
54 Nev. 281, 284 (1932) Aikins v. Nevada Placer, Inc.
lands and premises described adverse to plaintiff; that the said claim of defendants is without
any right whatever; and that the said defendants have not any estate, title, or interest, nor has
either of them any estate, right, title, or interest whatever in said land or premises, or any part
thereof. Defendants answered. Their answer denies the allegations of ownership in the
complaint. The answer admits that defendant corporation claims an estate or interest in and to
said mining claims adverse to plaintiff. It denies that its claim is without right, and admits
that defendant Walker has not any estate, right, title, or interest to said mining claims. For
further answer and by way of further defense and counterclaim the defendants allege that on
November 28, 1927, one L. F. Clar, now deceased, was the owner of and in possession of ten
of the twelve mining claims set up in the complaint; that on that date said Clar leased said ten
claims to defendant Walker; and that as to the term thereof said lease provided: That the
same shall be effective for a period of five years unless default be made prior thereto and as
long thereafter as the second party or his assigns may see fit to operate said property pursuant
to the terms and conditions of said lease. The answer alleges that on December 9, 1927, the
defendant Walker assigned said lease to the defendant corporation.
Plaintiff filed a demurrer to the answer on April 2, 1930. Thereafter, on October 4, 1930,
he filed an amended demurrer stating the ground that the alleged further defense and
counterclaim does not state facts sufficient to constitute a defense or counterclaim. The
particular point of the demurrer as amended is that the lease set up by defendants which
purported to be for five years, and as long thereafter as the lessee or his assigns might see fit
to operate the property, is void because in contravention of the statute of 1923, c. 175, p. 314.
The amended demurrer was heard in the trial court, Judge Dunn presiding, and was
sustained in a written opinion.
54 Nev. 281, 285 (1932) Aikins v. Nevada Placer, Inc.
Defendants did not amend their answer, and the case was tried by the court, Judge Walsh
presiding, resulting in a judgment for plaintiff. Two appeals were taken by defendants, one
from the judgment and one from the order denying the motion for a new trial. We will
continue to refer to the parties as plaintiff and defendants.
Defendants did not demur to the complaint on any ground, but contend now that it does
not state facts sufficient to constitute a cause of action. This contention is based upon the
failure of the complaint to allege possession and legal title to the mining claims involved in
plaintiff, and the nature of defendants' adverse claims. The points are elaborately discussed in
defendants' briefs. No mention of them was made, however, by defendants' counsel in the oral
argument, probably because the objections are untenable. The complaint is governed by
section 9061 N. C. L., which reads: An action may be brought by any person against another
who claims an estate or interest in real property, adverse to him, for the purpose of
determining such adverse claim.
1, 2. The section was amended into its present form by statute in 1907, c. 83, p. 185. Prior
thereto and from its enactment it limited the right of action to a party in possession. It is
obvious that it was designed by the amendment to remove this limitation and give the right of
action to a party whether in possession or out of possession. As stated in 51 C. J. p. 186: It is
generally held that plaintiff need not be in possession where the statute, omitting any
reference to possession, authorizes the action to be brought by any person' against another
who claims an adverse estate or interest.
Besides authorities cited in note 65 supporting the foregoing statement, see Landregan v.
Peppin, 94 Cal. 465, 29 P. 771. The complaint is therefore not defective because it does not
allege that plaintiff is in possession of the lands. It is not defective either because it does not
allege that plaintiff has legal title to the mining claims. The complaint alleges that plaintiff is
the owner of the mining claims involved.
54 Nev. 281, 286 (1932) Aikins v. Nevada Placer, Inc.
of the mining claims involved. This is the usual allegation in this regard, and is sufficient. 51
C. J. sec. 158, p. 218; Knight v. Boring, 38 Colo. 153, 87 P. 1078; California-Michigan Land
& Water Co. v. Fletcher et al., 206 Cal. 392, 274 P. 527; Ihly v. John Deere Plow Co. et al.,
35 Idaho, 651, 208 P. 838.
3. The contention that the complaint is fatally defective because it does not allege the
nature of defendants' adverse claim is also without merit. Such specification is unnecessary in
an action to quiet title. Scorpion S. M. Co. v. Marsano, 10 Nev. 370; California-Michigan
Land & Water Co. v. Fletcher et al., 206 Cal. 392, 274 P. 527; Clark v. Darlington, 7 S. D.
148, 63 N. W. 771, 58 Am. St. Rep., 835; Ely v. New Mexico, etc. R. R. Co., 129 U. S. 291,
9 S. Ct. 293, 32 L. Ed. 688.
This court in Scorpion S. M. Co. v. Marsano, supra, construing said section 9061 prior to
its amendment in 1907, said: It is our opinion that, under a proper construction of this
statute, it is not necessary for the plaintiff to set out specifically the character of the adverse
claim, and that the burden is upon the defendant, if he admits plaintiff's possession, or does
not disclaim, to plead and prove a good title in himself. (Pages 379-380 of 10 Nev.).
As possession is no longer a requirement of the statute, that part of the conclusion of the
court has no application to this case.
In the first count of the complaint in California-Michigan Land & Water Co. v. Fletcher et
al., supra, it was alleged: That plaintiff is the owner of certain described land * * * situate in
the Michillinda tract in the county of Los Angeles, that defendants claim an estate or interest
in said property adverse to plaintiff, and that the claim of defendants is without any right
whatever, and they have no estate, right, title, or interest whatever in said land or premises or
any part thereof. The court said: Beyond question the first count of the complaint states a
cause of action to quiet title. * * * That is all the law requires. The complaint in this case
shows that.
54 Nev. 281, 287 (1932) Aikins v. Nevada Placer, Inc.
4,5. The next point is as to the validity of the lease pleaded by defendants in their further
defense and counterclaim to which the amended demurrer was sustained by Judge Dunn. As
previously stated, defendants did not amend. On the trial of the case, the lease was admitted
in evidence over the objections of plaintiff under the denials of the answer. Plaintiff contends
that the admission of the lease in evidence was error. We need not determine this point.
Defendants concede and we agree, that the crux of this case is whether the lease is valid or
void. We believe that it is valid. Stats. 1923, c. 175, p. 314, which was in force when the
lease was executed, read: No lands, town or city lots, or other real property, within this state,
shall hereafter be conveyed by lease or otherwise, except in fee and perpetual succession, for
a longer period than twenty years. All leases hereafter made contrary to the provisions of this
act shall be void.
The statute was clearly designed to prevent long-term leases of real property.
As heretofore pointed out, the lease in question contains this provision: That the same
shall be effective for a period of five years unless default be made prior thereto, and as long
thereafter as the second party or his assigns may see fit to operate said property pursuant to
the terms and conditions of said lease. It will be seen that the duration of this lease is
dependent upon a contingency which may or may not happen within twenty years. We have
found no case directly in point on the facts, but the case of Parish v. Rogers (Sup.), 40 N.Y.S.
1014, 1015, is strictly analogous. When the lease dealt with in that case was executed, an
article of the constitution of New York in force at the time (Const. 1894, art. 1, sec. 13)
prevailed: No lease or grant of agricultural land, for a longer period than twelve years,
hereafter made, in which shall be reserved any rent or service of any kind, shall be valid.
The lease claimed in that case to encounter this prohibition of the constitution was for a
farm at a stipulated yearly rent reserve of $300 for and during the term of the natural life of
the party of the first part and his wife.
54 Nev. 281, 288 (1932) Aikins v. Nevada Placer, Inc.
of the natural life of the party of the first part and his wife. The rent reserved was to be paid to
the lessor during his lifetime, and, after his death, to his widow, if she survived him. It was
held that the lease did not violate the constitution. In the course of the opinion, the court said:
The instrument itself does not, in express terms, come within the prohibition of the
constitution. The term may extend beyond the restricted period. It may expire before that
time. The constitutional provision curtails the rights of owners of estates. It places a
restriction upon the disposition of their property. And, in order to make this curtailmentthis
restrictioneffective, it is but right that the instrument itself should clearly come within the
pale of the inhibition. We should not by conjecture deprive a man of the right of disposing of
his own as he listeth. * * * In cases somewhat analogous, interpreting the limitations
embodied in the statute of frauds, it has been held that it must appear affirmatively and
explicitly that the instrument is within the restraints of the statute. [Citing cases.] The court
cannot hold, as matter of law, that this instrument will extend for a longer period than 12
years. Its termination depends upon providential interposition, and not upon the volition of
the parties. So there was no attempt to violate the constitutional interdict, as in some of the
cases.
This ruling was upheld on appeal, 20 App. Div. 279, 46 N.Y.S. 1058, 1060, and the life
estate declared to have effect and operation until the expiration of the time limited by the
constitution, viz., twelve years. Effect was given to the principle of strict interpretation of a
constitutional or statutory provision restricting the right of free alienation of property. In
respect to this rule the court said: The right of alienation being a fundamental right, it is
subject only to such restrictions and limitations in its exercise as the constitution may
prescribe, either in express terms or by clear and necessary implication; or to such restrictions
as the legislature, acting within its constitutional powers, may deem proper to impose for the
public good.
54 Nev. 281, 289 (1932) Aikins v. Nevada Placer, Inc.
proper to impose for the public good. A particular prohibition upon the free alienation of
property cannot be extended or enlarged beyond the terms in which the restriction is
expressed by the application of any rule of liberal interpretation. On the contrary, the
provision must be made to bear a restrictive interpretation, and be limited in its operation and
effect by the language employed.
Pursuant to this rule and in respect to whether the grant was void upon its face, the court
construed the words longer period as meaning a definite period and as not applicable to an
estate whose duration is wholly indefinite and uncertain. We are impressed with the reasoning
of the court in that case. The constitutional provision construed is practically the same as the
statutory provision before us, and the lease in question is no different in principle than the one
under consideration in Parish v. Rogers. The latter was to terminate upon the death of the
lessor's wife, if she survived him, and the lease here upon the lessees ceasing to operate the
leased property. Both are uncertain events. The difference in the nature of these events affords
no room for a distinction, particularly in view of the fact that it is not apparent from the lease
before us that there is any purpose to defeat the statute. As it does not appear affirmatively
from the lease that it will extend beyond the statutory limitation, we cannot, in view of the
applicable rule of strict interpretation, declare it void. The statute does not prohibit the leasing
of real property for an uncertain period, but only condemns leases of such property for a
longer period than twenty years. Interurban Land Co. v. Crawford (C. C.) 183 F. 630-632.
There is nothing in the list of cases collected by respondents to persuade a different view. The
case of Clark v. Barnes, 76 N. Y. 301, 32 Am. Rep. 306, stressed by respondents, is not at all
in point. Uncertainty of duration was no feature of the leases in that case. The two leases of
the same property, one for eight years and one for twelve years, were executed at the same
time and were clearly designed, as stated by the court, to evade the constitutional
provision.
54 Nev. 281, 290 (1932) Aikins v. Nevada Placer, Inc.
were clearly designed, as stated by the court, to evade the constitutional provision. They were
consequently construed together and declared void as a whole.
Plaintiff contends that the amendment in 1929 (Stats. 1929, c. 199) to the statute under
consideration is a legislative interpretation of the old law to the effect that a lease for a longer
period than specified by the statute was void in toto, as held in Clark v. Barnes, supra. The
contention is grounded on the clause wherein it is declared that all leases heretofore made
contrary to its provisions shall be void as to any periods of time in excess of those
enumerated. This argument is academic, for the reason that it does not appear from the lease
in question that it will last longer than twenty years, or that such was the intention of the
parties. We cannot find such to be facts upon mere conjecture.
6. Nothing to the contrary appearing from the lease, we may presume that the parties
intended a lease which would terminate within the statutory period. As the giving of
long-term leases is the practice sought to be suppressed by the statute, it is not seen how such
policy can be violated by giving effect and operation to the lease in question until the
expiration of the statutory period, or until it may be sooner terminated by forfeiture. It is also
clear that the lease does not violate the rule against perpetuities as plaintiff contends.
The judgment and order denying a new trial are reversed.
Coleman, C. J.: I concur.
Sanders, J., dissenting:
This opinion will be confined to the consideration of the question: Does the lease at bar
encounter the prohibition of section 78 of an act concerning conveyances, as amended in
1923 (Stats. 1923, c. 175), which reads as follows: No lands, town or city lots, or other real
property, within this state, shall hereafter be conveyed by lease or otherwise, except in fee and
perpetual succession, for a longer period than twenty years. All leases hereafter made
contrary to the provisions of this act shall be void?'"
54 Nev. 281, 291 (1932) Aikins v. Nevada Placer, Inc.
leases hereafter made contrary to the provisions of this act shall be void?'
The clauses in the conveyance deemed pertinent to the question presented for
consideration are as follows:
First party being desirous of having said property exploited and worked for the purpose of
recovering the metal values therein; therefore, for the consideration of One Dollar in hand
paid by the second party to the first party, the receipt of which is hereby acknowledged and
other good and valuable considerations hereinafter set out; first party hereby agrees to lease to
second party or his assigns said property as above described for a term of years sufficient to
enable the second party to work the property and recover the values therein and to receive as
royalty one-tenth of all the gold and other metals recovered therefrom.
This agreement is to continue in effect; provided, the covenant in the above has been kept
by the second party for a period of five (5) years, and as long thereafter as the second party or
his assign sees fit to operate said property on the terms and conditions as above set forth.
The conveyance is considered by the parties and their attorneys to be a lease in praesenti
for a term of years. If this be true, then the only point to be decided is whether, under the
statute, the lease is void. The lessee is granted the right to occupy and have possession of the
premises for a term of years sufficient to enable him to work the property and recover the
values therein. The lease further provides that it is to continue in effect for that purpose,
provided the covenants be kept for a period of five years and as long thereafter as the lessee
or his assign sees fit to operate the property on the terms and conditions of the lease. It thus
appears that, interpreted as a whole, the period granted the lessee to operate the property is for
a term of years sufficient to enable him to work the property and recover the values therein,
which may extend for a period longer or shorter than twenty years. Undoubtedly such a lease
is within the inhibition of the statute.
54 Nev. 281, 292 (1932) Aikins v. Nevada Placer, Inc.
Otherwise a person may tie his property up by lease for a longer period than twenty years by
the mere wording of his contract and thus defeat the policy of the law so clearly expressed in
the statute.
I do not consider the case of Parish v. Rogers, 20 App. Div. 279, 46 N. Y. S. 1058, quoted
from so extensively in the opinion of my esteemed associate, to be analogous to this case in
fact or in principle. If it be deemed necessary to resort to New York decisions to determine
the legal effect and operation of our statute, the case of Clark v. Barnes, 76 N. Y. 301, 32 Am.
Rep. 306, decided before Parish v. Rogers, and which, so far as I have been able to discover,
stands unreversed, is nearer in point. The case holds that under the constitution, art. I, sec. 14,
a lease of agricultural land for a longer period than twelve years is void in toto. In Parish v.
Rogers, it was held that the same constitutional provision applied only to a lease in which
shall be reserved any rent or service of any kind. In Nevada a conveyance by lease of lands
for a longer period than twenty years is void without reference to whether rent is reserved.
Furthermore, in Parish v. Rogers, the lease there under review was held not to be ab initio
invalid, but void only as to the excess period. I also note that the lease under review in Parish
v. Rogers created an estate dependent for its duration upon the payment of rent during the life
of the lessora providential interposition and not upon the volition of the parties. The lease
at bar depends for its duration upon no such providential contingency, nor any contingency
other than the uncertainty of the extent and value of the minerals in the ground. It is for a term
of years sufficient to enable the lessee to work the property and recover the values therein.
In view of the policy of the law so plainly expressed in the statute, the lease at bar must be
construed to extend for a longer period than twenty years. Being contrary to the provisions of
the statute, the lease is void ab initio.
The judgment should be affirmed.
____________
54 Nev. 293, 293 (1932) Schmaling v. Johnston
SCHMALING v. JOHNSTON, Et Al.
No. 2950
September 14, 1932 13 P.(2d) 1111.
1. Appeal and Error.
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.
2. Witnesses.
Question asking mortgagor to state circumstances under which list of cattle was delivered to
mortgagee held proper cross-examination, where testimony concerning list had been given by other
witnesses, including deceased mortgagee.
3. Appeal and Error.
Error, if any, in permitting mortgagor to testify relative to certain mortgage not in evidence, held not
prejudicial where mortgage was later admitted.
4. Chattel Mortgages.
In chattel mortgage foreclosure suit, chattel mortgages to defendant and another held properly
admitted where defendant denied plaintiff's allegation of holding prior lien.
That such evidence be admissible, defendant did not have to plead an affirmative defense nor
execution of mortgages, for all that was necessary for it to do was to disprove plaintiff's allegation
of holding lien prior to that of defendant.
5. Chattel mortgages.
Mortgagor could testify as to whether certain cattle and their increase were those covered by
plaintiff's or defendant's mortgage.
6. Payment.
Note, in absence of agreement to contrary, does not constitute payment of debt.
7. Appeal and Error.
Where no appeal was taken from order denying motion for new trial, plaintiff is not entitled to have
evidence reviewed by supreme court.
8. Appeal and Error.
That there was substantial evidence in support of judgment for defendant warrants supreme court in
affirming judgment.
9. Chattel MortgagesCosts.
Chattel mortgage foreclosure suit is an equitable action, not special proceeding, and plaintiff's
cost bill was properly disallowed where judgment was for defendant (Comp. Laws 1929, sec. 9048).
10. Actions.
Any proceeding which was not under common-law and equity practice either an action at law or suit
in chancery is a special proceeding.
54 Nev. 293, 294 (1932) Schmaling v. Johnston
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Suit by Lizzie Schmaling, as administratrix of the estate of F. W. Schmaling, deceased,
substituted as plaintiff for F. W. Schmaling, against J. H. Johnston, sometimes known as
Joseph H. Johnston, and another. Judgment was entered in favor of plaintiff against named
defendant. From a judgment for defendant Churchill County Bank, plaintiff appeals.
Affirmed.
W. M. Kearney and Geo. J. Kenny, for Appellant:
It is a well-established rule that conversation with a deceased person is not admissible in
evidence. Sec. 8966 N. C. L.; Reinhart v. Echave, 43 Nev. 323, 185 P. 1070; Vesey v.
Benton, 13 Nev. 284; Forsyth v. Heward, 41 Nev. 305, 170 P. 21; Jones on Evidence, p.
1221, par. 787.
The trial court erred in admitting the testimony of witness Johnston on cross-examination
relative to the mortgage to the bank. It was not cross-examination, and there was no evidence
of any mortgage to the Churchill County Bank. 38 R. C. L., p. 607, par. 195; Underhill on
Criminal Evidence, p. 220; State v. Carter, 21 N. M. 166, 153 P. 271; Chicago R. I. & P. Ry.
Co. v. Beatty, 118 P. 367, at 370; Brace v. Northern Pac. Ry. Co., 115 P. 841.
The trial court erred in admitting in evidence the chattel mortgage executed by J. H.
Johnston to the Churchill County Bank, and the chattel mortgage executed by Eugene Raker
and Adeline Raker to Churchill County Bank. There was no issue raised and no affirmative
claim made by the Churchill County Bank wherein any title or lien of any kind was claimed
to the cattle which it seized. 21 R. C. L. p. 534; Schudel v. Helbing, 26 Cal. App. 410, 147 P.
89; Dow v. City of Oroville, 124 P. 197; Mott v. Minor, 106 p. 244; Borghart v. City of
Cedar Rapids, 101 N. W. 1120; Robinson v. American Fish & Oyster Co., 119 P. 388, at 391.
54 Nev. 293, 295 (1932) Schmaling v. Johnston
The testimony of Mr. Johnston as to whether certain cattle were those covered by the
bank's mortgage or the Schmaling mortgage was strictly opinion and conclusion testimony,
and should not have been admitted by the court. 22 Cal. Jur. 485; Kline v. Van Sickle, 47
Nev. 139, 217 P. 585; Burns v. Loftus, 32 Nev. 55, 104 P. 246; Kiesel v. Sun Insurance Co.,
88 Fed. 243.
Instruction No. 8 was erroneous and unnecessary and took away from the jury the right to
judge a question of fact which is strictly within their province. It defined the word increase
and did not allow the jury the right to determine what cattle and what increase was included
in the chattel mortgage from Johnston to Schmaling. 14 C. J., p. 729; Cumberland Pipe Line
v. Stanbaugh, 137 Ky. 526, 126 S. W. 106.
Instructions 9 and 12 are contrary to the law in advising the jury that the acceptance of a
promissory note for the purchase price of property sold does not constitute payment and,
further, that it is not applicable and has no bearing on the case. The two instructions are
inconsistent. 14 R. C. L. p. 777.
This proceeding can be properly classified as a special proceeding, and under sec. 9048 N.
C. L., the plaintiff in this action, being the prevailing party, is entitled to have judgment for
costs under sec. 8924, par. 4, N. C. L. Hyman v. Kelly, 1 Nev. 180.
The evidence as a whole does not support the verdict.
A. L. Haight, for Respondent Churchill County Bank:
When the plaintiff used the witness Walker to show what Mr. Schmaling's testimony had
been at the previous hearing, Mr. Johnston, as the other party to the transaction, was thereby
rendered competent to testify as to the matters to which the evidence so produced related.
Sec. 8966 N. C. L.; 40 Cyc. 2341.
While it is true that up to the time the witness Johnston answered the question: Did they
take all of the cattle which were included in the mortgage to the Churchill County Bank? the
chattel mortgages to the Churchill County Bank had not been received in evidence, the
transaction of the witness with the Churchill County Bank and the bank's ownership or
interest in certain of the cattle on the witness' ranch had been brought out in the
testimony, and we fail to see how the plaintiff's case was prejudiced, particularly in view
of the testimony which was later properly admitted concerning the bank's interest in the
cattle in question.
54 Nev. 293, 296 (1932) Schmaling v. Johnston
to the Churchill County Bank had not been received in evidence, the transaction of the
witness with the Churchill County Bank and the bank's ownership or interest in certain of the
cattle on the witness' ranch had been brought out in the testimony, and we fail to see how the
plaintiff's case was prejudiced, particularly in view of the testimony which was later properly
admitted concerning the bank's interest in the cattle in question.
Under the pleadings in this case any evidence which tended to disprove the allegations of
the complaint that the cattle in question were mortgaged to the plaintiff was admissible and
was competent and material evidence. 49 C. J. p. 799.
Certainly there was no opinion evidence involved in the testimony of Johnston that none
of the cattle described in the mortgage from Raker to the bank could have been the offspring
of cattle which Johnston sold to Raker. The witness answered from his absolute knowledge of
the facts. Even if it were an expression of opinion, the witness was certainly qualified to
testify concerning the matter.
We feel that it was incumbent upon the court to charge the jury as to the legal effect of the
word increase in the Schmaling mortgages, as this was purely and simply a question of law.
This was done in instruction No. 8.
The situation which instructions 9 and 12 were intended to cover was presented by
undisputed evidence, and the legal principle laid down in instruction No. 9 is supported by
sec. 6790 N. C. L. Likewise, instruction No. 12 is in accord with the practically unanimous
rule stated in 30 Cyc. 1194.
The trial court, in the exercise of its sound discretion, under the authority of sec. 8927 N.
C. L., denied the costs of the plaintiff sought to be taxed against defendant bank and awarded
the bank costs against the plaintiff.
We submit that the verdict is wholly supported by the evidence.
54 Nev. 293, 297 (1932) Schmaling v. Johnston
OPINION
By the Court, Sanders, J.:
This action was commenced in the name of F. W. Schmaling. He having died, the
administratrix of the estate of deceased was substituted as plaintiff. Appellant, who was
plaintiff in the trial court, brought this suit against J. H. Johnston to foreclose a chattel
mortgage upon certain cattle and their increase. After the suit was filed the Churchill County
Bank, which had a chattel mortgage, executed by Johnston, upon some cattle upon his ranch,
took possession of the cattle it claimed to have a mortgage upon. Thereafter the plaintiff
amended her complaint so as to make said bank a party defendant, wherein it is alleged on
information and belief that said bank claimed to have an interest in or lien upon a portion of
the property alleged to have been mortgaged to the plaintiff; that said claim, interest, or lien,
if any it has, is subject to the lien of plaintiff. Plaintiff demanded judgment for over $3,000
and costs, and for a foreclosure of its mortgage.
The defendant Johnston did not appear in the case, and in due time a judgment was entered
against him as prayed.
The defendant bank appeared by answer and denied so much of the amended complaint as
alleges that plaintiff had a prior mortgage and lien to that of the bank upon the cattle of which
possession was taken by it.
The case was tried to a jury and a verdict was returned in favor of the bank. Thereafter the
court made findings of facts and entered a decree in favor of the bank.
We have not undertaken to particularize the facts of the case, but simply to state enough to
enable us to dispose of the errors assigned.
The plaintiff has appealed from the judgment only.
Plaintiff has assigned three errors: (1) That the court erred in overruling objections of the
plaintiff to certain testimony; (2) that the court erred in the giving and refusing of instructions
to the jury; and (3) that the court erred in disallowing plaintiff's cost bill and in allowing
defendant's cost bill.
54 Nev. 293, 298 (1932) Schmaling v. Johnston
that the court erred in disallowing plaintiff's cost bill and in allowing defendant's cost bill.
The first alleged error discussed by the plaintiff goes to the ruling of the court on an
objection to plaintiff's exhibit E. The defendant Johnston was called as a witness on behalf of
plaintiff and testified to a list of cattle which he made and handed Mr. Schmaling. On
cross-examination by counsel for the bank, the witness was asked: Q. Do you remember the
circumstances under which that (exhibit E) was delivered? The witness having answered the
question in the affirmative, he was asked to state what they were.
1, 2. To this question it was objected that the inquiry was not cross-examination, and,
further, Schmaling being dead, the other party to the transaction could not testify. The
objections were overruled and the witness gave his testimony. No exception was taken to the
ruling of the court. No exception having been taken, plaintiff is not entitled to have the point
considered here. Wigmore on Ev. (2d ed.) sec. 20; 9 Ency. of Ev. 134. However, we will
briefly dispose of it. Exhibit E was a list of certain cattle on Johnston's ranch made by him
and concerning which testimony had been given by two other witnesses, one of them being
Schmaling, who testified before his death. In State v. Boyle, 49 Nev. 386, 248 p. 48, we
stated what we consider the correct rule as to cross-examination generally. The court certainly
did not abuse its discretion in holding that the matter testified to was proper for
cross-examination. Schmaling's testimony given before his death having been admitted, it
was entirely proper for Johnston to give his testimony. 40 Cyc. 2341.
3. The next point made under the first assignment of error, and designated b, pertains to
a question asked witness Johnston on cross-examination relative to the mortgage to the bank.
It is contended that the court erred in admitting the testimony for the reason that the testimony
is not cross-examination, and, secondly, that there was no evidence in the record of a
mortgage having been given to the bank by Johnston.
54 Nev. 293, 299 (1932) Schmaling v. Johnston
mortgage having been given to the bank by Johnston. We think the witness had testified to
the existence of the mortgage himself, and, furthermore, no exception was taken to the ruling
of the court. It is true that the mortgage was not in evidence at the time, but was later properly
admitted in evidence, and if the court erred in its ruling it was without prejudice.
It is next contended that the court erred in admitting in evidence the chattel mortgage to
the bank, defendant's exhibit 2, and in admitting in evidence defendant's exhibits 1 and 3;
exhibit 1 being a chattel mortgage from Johnston to A. L. Baker, and exhibit 3 being a chattel
mortgage from Eugene Raker and wife to the bank.
There was no exception to the ruling of the court admitting these mortgages; however, we
will dispose of the contention made, which is that the bank did not plead the execution of the
mortgages in question, or in any manner attempt to set up an affirmative defense.
4. We do not think the court erred in its ruling. The plaintiff alleged holding a lien prior to
that of the bank. The bank denied that allegation. It did not have to plead an affirmative
defense. All that was necessary for it to do was to disprove plaintiff's allegation. 21 Cal. Jur.
sec. 97; Bliss on Code Pleading (3d ed.) sec. 327; 49 C. J. 799.
It is next contended that the court erred in admitting testimony of Johnston. No exception
was taken to the ruling of the court. For an understanding of this line of testimony it is
necessary to state that when Johnston started his dairy along about 1918, he purchased some
cows from Churchill Creamery, Inc., upon which and their increase he later gave a mortgage
to Schmaling. He purchased other cattle from others, upon which and their increase the bank
claims a mortgage. The real question for the jury to decide was that of identifying the
respective bunches of cattle, and their increase.
5. The line of inquiry to which the last objection goes is as to whether certain cattle were
those covered by the bank's mortgage or the Schmaling mortgage.
54 Nev. 293, 300 (1932) Schmaling v. Johnston
bank's mortgage or the Schmaling mortgage. The court did not err in its ruling. If there were
anyone who could testify to the genealogy of the cattle, if we may use that word, it was
Johnston.
What we have said as to the last point applies to point c.
There is no merit in the errors assigned to the giving of instructions 8, 9, 10, 11, and 12.
Instruction 8 defines increase and applies it to the offspring of the cattle mortgaged to
Schmaling by Johnston.
Instruction 10 pertains to testimony to the effect that Schmaling gave Johnston permission
to sell certain cattle covered by his mortgage, and the rights of purchasers thereunder. There
was no error in this instruction.
Instruction 11 relates to rights of the respective parties to the cattle removed by the bank
from the Johnston ranch. The law is clear and simple on this point, and the court did not err.
6. Instructions 9 and 12 are discussed together. They pertain to the proposition that a
promissory note does not constitute payment, and to the rights of the respective parties. It is
the well-settled general rule, as stated in the instructions, that a note, in the absence of an
agreement to the contrary, does not constitute payment of the debt. 48 C. J. 610.
7, 8. No appeal having been taken from the order denying the motion for a new trial, the
plaintiff is not entitled to have the evidence reviewed by us; however, we have considered the
evidence, and though it is conflicting, there is substantial evidence in support of the
judgment. This is enough to warrant us in affirming the judgment. Butzbach v. Siri, 53 Nev.
453, 5 P.(2d) 533.
The last error assigned pertains to the ruling on the cost bills filed by the respective parties
in the trial court. It is contended by plaintiff that the foreclosure suit is a special proceeding
under section 9048 N. C. L., and hence he is entitled to his costs.
9, 10. We cannot agree with the contention that it is a special proceeding.
54 Nev. 293, 301 (1932) Schmaling v. Johnston
a special proceeding. It is an equitable action. Story on Bailments (8th ed.), sec. 310. We
think the correct view is stated in Re Central Irr. Dist., 117 Cal. 382, 49 P. 354, 356, where it
is said: It may be said generally that any proceeding in a court which was not under the
common-law and equity practice, either an action at law or a suit in chancery, is a special
proceeding. Citing 1 Ency. Pl. and Prac., p. 112.
Perceiving no error, the judgment is affirmed.
On Petition for Rehearing
March 15, 1933.
Per Curiam:
Rehearing granted.
____________
54 Nev. 301, 301 (1932) Sullivan v. Nevada Industrial Comm'n
SULLIVAN v. NEVADA INDUSTRIAL COMMISSION
No. 2988
September 23, 1932. 11 P.(2d) 262.
1. Appeal and Error.
Motion to dismiss appeal must be determined without reference to merits or questions involving
merits (Comp. Laws 1929, sec. 9401).
2. Appeal and Error.
Tardy filing of transcript gives respondent right to have appeal dismissed, unless appellant's affidavits
present facts constituting legal excuse for delay (supreme court rule 2).
Supreme court rule 2 provides that 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.
3. Appeal and Error.
Absent showing that neglect was excusable, appellant cannot escape consequences of tardy filing of
transcript by attributing neglect to his attorneys (supreme court rule 2).
4. Appeal and Error.
Appellant's affidavits alleging disappearance and disbarment of appellant's attorney, but not showing
that attorney was not in good standing when appeal was perfected or during time for filing held not to excuse
late filing of transcript (supreme court rule 2).
54 Nev. 301, 302 (1932) Sullivan v. Nevada Industrial Comm'n
5. Appeal and Error.
Appellant's affidavits alleging that respondent promised appellant it would press appeal, but not
showing that late filing of transcript was attributable to respondent, held not to excuse delay (supreme court
rule 2).
6. Courts.
Supreme court rule limiting time for filing transcript held not of character requiring its suspension or
waiver to promote justice (supreme court rule 2).
7. Courts.
Mandatory court rule, not unreasonable or conflicting with statute, has force of statute.
Appeal from First Judicial District Court, Ormsby County; G. A. Ballard, Judge.
Proceeding under the Industrial Insurance Act by Thomas Sullivan, claimant, opposed by
the Comstock Pumping Association, employer. To review the award, claimant brought an
action against the Nevada Industrial Commission. The action was dismissed, and claimant
appeals. Appeal dismissed.
George L. Sanford, for Respondent:
Where there has been a failure to comply with the provisions of rule 2 a motion to dismiss,
supported by proper certificate of the clerk, would ordinarily be granted as a matter of course.
Skaggs v. Bridgman, 39 Nev. 310, 154 P. 77; Bottini v. Mongolo, 45 Nev. 245, 197 P. 702.
When the application for a dismissal is made upon notice, no such certificate of the clerk
is required, but the order of dismissal may be made upon good cause shown, no matter in
what manner the good cause is made to appear. American Sodium Co. v. Shelley, 50 Nev.
416, 264 P. 980.
It has been repeatedly held that a rule of the court is binding unless in conflict with some
statute. Haley v. Eureka, 20 Nev. 410, 22 P. 1098; American Sodium Co. v. Shelley, 51 Nev.
26, 267 P. 497.
Due diligence toward filing and serving transcript must be shown. Grand View State Bank
v. Thams {Ida.),
54 Nev. 301, 303 (1932) Sullivan v. Nevada Industrial Comm'n
(Ida.), 263 P. 1000; Stout v. Cunningham et al. (Ida.), 162 P. 928; Wolter v. Church et al.
(Ida), 165 P. 521; Swetin v. Magelby (Ut.), 180 P. 177; Benson v. Olender (Cal.), 240 P. 61;
Hale v. Belgrade (Mont.), 240 P. 371.
Plaintiff's delay and neglect in this case are inexcusable. Sec. 8640 N. C. L.; Guardia v.
Guardia, 48 Nev. 230, 229 p. 386; U. S. v. Duesdieker, 5 P. (2d) 916; 14 Cal. Juris. 1042.
William S. Boyle, for Appellant:
Although a transcript has not been filed, or has not been filed within the time prescribed,
yet if a good and satisfactory excuse is shown for the failure the appeal will not be
dismissed. 2 Sutherland's Code Pleadings, pp. 1256-58-59-62, sec. 1881; In Re Burton's
Estate (Cal.), 29 P. 224; Hubbock v. Ross, 21 P. 965; Benn v. Chehalis County (Wash.), 38 P.
1039.
It is very obvious that appellant did not dismiss his appeal, nor did he abandon it. He relied
upon the statements of the industrial insurance commission to the effect that it would pursue
the appeal and pay the costs thereof. And his original attorneys were relieved of their trust
and the matter was turned over to other attorneys.
The word may used in section 1 of rule III does not make it mandatory that the action be
dismissed. Fowler v. Pirkins, 77 Ill. 271; McClain v. Williams, 10 S. D. 332, 73 N. W. 72, 43
L. R. A. 287; Webb v. Robbins, 77 Ala. 176.
The fact that the transcript on appeal had not been filed within thirty days after the
perfecting of the appeal is not a jurisdictional matter. Warren v. Wilson, 46 Nev. 272.
The controlling statute on dismissal of appeals is sec. 8905 N. C. L., which states that appeals
shall not be dismissed for any irregularity not affecting the jurisdiction of the court or not
affecting the substantial rights of the parties. It will be found by reference to the affidavit
presented to resist the motion to dismiss that the essential or substantial rights of the
respondent are in nowise affected.
54 Nev. 301, 304 (1932) Sullivan v. Nevada Industrial Comm'n
that the essential or substantial rights of the respondent are in nowise affected.
OPINION
By the Court, Sanders, J.:
The Nevada industrial commission awarded Thomas Sullivan $972 as full compensation
for an accidental injury to his left foot sustained on July 15, 1926, while in the employ of the
Comstock Pumping Association as blacksmith. Being dissatisfied with the amount, Sullivan
on, to wit, April 24, 1929, filed a complaint in the court below against the commission,
claiming that under the facts he was justly and legally entitled to receive from the commission
as compensation for his injury the sum of $2,972, and demanded judgment for that amount.
The commission demurred to the complaint upon several grounds. The trial court, Hon. G. A.
Ballard, judge presiding, without passing upon any of the grounds of demurrer, of his own
motion held that under the Nevada Industrial Insurance Act, where the commission acts, an
injured employee cannot initiate or maintain an action at law against the commission to
recover compensation for his injury. Wherefore it was adjudged and ordered that plaintiff's
action be dismissed.
The decision was rendered on October 24, 1929, and filed on October 26, 1929.
On April 24, 1930, Thomas Sullivan perfected his appeal to this court from the decision.
On June 11, 1932, the transcript of the record on appeal, labeled Judgment Roll, was
filed with the clerk of this court.
On June 17, 1932, the respondent filed with the clerk of this court its notice of motion and
motion to dismiss the appeal upon two grounds: (1) That the appellant failed to file the
transcript of the record on appeal within thirty days after the appeal was perfected, as required
by supreme court rule II; (2) that appellant failed to exercise or show proper diligence in
prosecuting his appeal.
54 Nev. 301, 305 (1932) Sullivan v. Nevada Industrial Comm'n
failed to exercise or show proper diligence in prosecuting his appeal.
1. Important as the decision appealed may be to all persons coming within the provisions
of the Nevada industrial insurance act, the motion to dismiss must be determined without
reference to the merits of the appeal or questions involving its merits. 4 C. J. 602. In fact, our
statute provides that, upon the filing of any motion to dismiss an appeal, the hearing of the
case on its merits shall be stayed until the determination of the motion. N. C. L. sec. 9401.
2, 3. The motion to dismiss came on for hearing upon four affidavits: One, that of Homer
Mooney in support of the motion; two affidavits of Thomas Sullivan in opposition to the
motion; the affidavit of D. J. Sullivan as chairman of the Nevada industrial commission,
labeled Affidavit in Rebuttal.
Supreme court rule II provides as follows: 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.
Without quoting at length from the affidavits, we may say that it is admitted that the record
of the transcript on appeal was filed in this court on June 11, 1932, two years after the appeal
was perfected, viz, April 24, 1930. If appellant's affidavits fail to present sufficient facts to
constitute a legal excuse for the long delay in filing the transcript of the record on appeal,
respondent's right under rule II to have the appeal dismissed becomes fixed. The excuses
presented in appellant's affidavits are stated narratively, thus leaving it to the court to draw its
own conclusions as to whether the motion to dismiss should prevail or be denied. The first
excuse presented is that appellant intrusted the proceedings on appeal to his attorneys, and
that the failure to file the transcript within time is attributable to their negligence. In the
absence of any facts to show that such negligence was excusable neglect, the appellant cannot
escape the consequences of his failure to file the transcript by saying that the neglect was that
of his attorneys. 4 C. J. 461.
54 Nev. 301, 306 (1932) Sullivan v. Nevada Industrial Comm'n
4. The second excuse presented is that the delay should be attributed to the representatives
of organized labor in Nevada, who, upon the rendition of Judge Ballard's decision, requested
appellant to permit its attorney to handle the case on appeal; that appellant was led to believe,
and did believe, that the attorney appointed by organized labor, one Arthur Jacobs, would
perfect and press the appeal, as required by law and rule of court. It appears that the appeal
was not perfected until six months, lacking a few days, after the time for appeal began to run.
Appellant states that Arthur Jacobs kept the papers for a long time; that Jacobs suddenly
disappeared from the State of Nevada, and was subsequently disbarred from practicing law in
the courts of this state; that appellant appealed to attorneys who succeeded Arthur Jacobs for
information as to why the appeal had not been pressed; that he was advised that the supreme
court had lost jurisdiction over the appeal, when in fact and in law the court had not lost
jurisdiction. Appellant avers in his affidavit that he had no knowledge that the transcript of
the record was not filed in this court until he had employed his present attorney of record to
investigate the proceedings on appeal. The record shows that the notice of appeal was signed
on April 24, 1930, by Arthur Jacobs, and L. B. Fowler, who was appellant's original attorney.
There is nothing in the affidavits of appellant to show that Arthur Jacobs was not in good
standing as an attorney in this court when the appeal was perfected or during the time within
which the transcript of the record on appeal should have been filed in this court. This being
true, the failure to file the transcript should no more be attributed to the negligence of Arthur
Jacobs than to the neglect of appellant's own attorney, L. B. Fowler.
5. The third excuse presented is that upon the rendition of the decision of Judge Ballard
the Nevada Industrial Commission promised appellant that it would press the appeal and pay
the costs on appeal, and, having relied upon this promise, the respondent cannot be successful
in this motion to dismiss.
54 Nev. 301, 307 (1932) Sullivan v. Nevada Industrial Comm'n
in this motion to dismiss. Appellant states that D. J. Sullivan, as chairman of the commission,
denied that the commission, its attorney or agents, ever made any such promise, but, not
content with the denial, appellant, to affirm his statement that he was led to believe and did
believe that the commission would prosecute the appeal, and that it should be held
responsible for the delay, quotes in one of his affidavits excerpts of news items and an
editorial appearing in the Nevada State Journal, to show the interest being taken by the
Nevada industrial commission in having the decision of Judge Ballard reviewed on appeal.
We are not advised on what principle this court could determine this motion to dismiss for
failure to comply with a court rule from publications appearing in a newspaper. Conceding
that respondent was interested in having the decision of Judge Ballard reviewed, there is
nothing to show that the delay in filing the transcript was in anyway attributable to the
commission or its chairman, D. J. Sullivan.
The remaining excuses presented for the delay are argumentative. It is argued that no
inconvenience or injury would result from the denial of the motion to dismiss. A delay of two
years in the transmission of the record on appeal is flagrantly unreasonable. It cannot be
affirmed that the respondent was not prejudiced by the delay.
6, 7. It is argued that rule II is not jurisdictional, and may be suspended in a particular case
if the ends of justice require it. It is argued with much earnestness that, under the facts and
circumstances as disclosed by appellant's affidavits, this court, in fairness to appellant and in
furtherance of justice, should deny the motion to dismiss. Supreme court rule II, like other
court rules, is not of the character, nor is it of the peculiarity, that would require it to be
suspended or waived in order to promote justice. Beco v. Tonopah Extension Min. Co., 37
Nev. 199, 141 P. 453. This court, in numerous cases, has had occasion to hold that a
mandatory rule of court not unreasonable or in conflict with statute, has the same force and
effect as a statute and is binding; that its observance is obligatory on the court and should
be regarded as binding and obligatory upon litigants as any other rule of civil conduct.
54 Nev. 301, 308 (1932) Sullivan v. Nevada Industrial Comm'n
is binding; that its observance is obligatory on the court and should be regarded as binding
and obligatory upon litigants as any other rule of civil conduct. American Sodium Co. v.
Shelley, 51 Nev. 26, 267 P. 497; State v. Second Judicial Dist. Court, 48 Nev. 459, 233 P.
843; Beco v. Tonopah Extension Min. Co., supra; Lightle v. Ivancovich, 10 Nev. 41. To relax
the rule out of favor to too credulous and misguided litigants would amount to the
nullification of the rule. No legal excuse is presented for the failure to have the transcript
presented in this court within the time required by supreme court rule II. Therefore the motion
to dismiss must prevail.
Appeal dismissed.
____________
54 Nev. 308, 308 (1932) State v. Tecope
STATE v. TECOPE
No. 2973
November 1, 1932. 15 P.(2d) 677.
1. Homicide.
Evidence held sufficient to support conviction of first degree murder.
2. Criminal Law.
Proof of motive is not essential to conviction of crime.
3. Criminal Law.
Whether state witness' testimony, not inherently improbable, self-contradictory, or contradicted by
other testimony or physical facts, should be believed, was for jury.
4. Criminal Law.
Supreme court will not disturb jury's verdict, supported by substantial evidence.
5. Homicide.
Instruction as to how unintentional killing, of which there was no evidence, becomes first degree
murder, held not prejudicial to defendant.
6. Homicide.
Instruction that involuntary killing in commission of unlawful act, naturally tending to destroy human
life, is murder, held not prejudicial error, though there was no evidence that defendant was committing
unlawful act.
7. Homicide.
Instruction as to manslaughter, of which there was no evidence, held not prejudicial to defendant in
murder trial (Comp. Laws 1929, sec. 11266).
54 Nev. 308, 309 (1932) State v. Tecope
8. Criminal Law.
District attorney's exhibition before jury of rifle and cartridges not offered in evidence held not
misconduct prejudicial to defendant in murder trial, especially where court instructed jury to disregard all
evidence excluded or stricken.
9. Criminal Law.
District Attorney's argument to jury in murder trial, Give him the gas or turn him loose that he may
take his gun back * * * and do some more shooting, held not misconduct as referring to rifle not admitted in
evidence, in view of evidence that defendant had gun.
10. Criminal Law.
Court's statement, on objection to district attorney's argument, that jury must remember that
arguments are not evidence, held sufficient censure.
11. Criminal Law.
District attorney's statements in opening argument to jury that defense did not deny shooting nor fact
that defendant shot deceased held not improper.
There was no evidence refuting fact that deceased was shot or that anyone except defendant
fired shot; only evidence introduced by defendant being physician's testimony that deceased died
of pneumonia, which was not direct result of wound.
12. Criminal Law.
District attorney's remarks in opening argument to jury that defense did not deny shooting nor fact
that defendant shot deceased held not misconduct as direct or indirect reference to defendant's failure to
testify.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Steve Tecope was convicted of first degree murder, and he appeals. Affirmed.
Noland & Noland, for Appellant:
The district attorney was guilty of misconduct in exhibiting before the jury and attempting
to get in evidence a rifle and cartridges which he knew could not be identified and would not
be competent evidence. Watson v. State (Okla.), 124 P. 1101; McKinley v. State (Tex.), 106
S. W. 342.
The court erred in giving to the jury instruction No. 14, for the reason that there was no
evidence of any involuntary killing nor of any unlawful act on the part of the defendant
that could have resulted in an involuntary killing, and this instruction only tends to
confuse the jury.
54 Nev. 308, 310 (1932) State v. Tecope
any involuntary killing nor of any unlawful act on the part of the defendant that could have
resulted in an involuntary killing, and this instruction only tends to confuse the jury.
The court erred in giving to the jury instruction No. 25, for the reason that there was no
evidence of any assault upon the defendant by the deceased nor of any provocation or motive
for any assault, and the instruction is confusing. Instruction No. 26 was inconsistent and
confusing.
The court erred in giving to the jury instructions Nos. 21, 22, 23 and 24, for the reason that
there is no evidence in this case to warrant any instruction as to manslaughter. State v. Ah
Loi, 5 Nev. 99; 16 C. J. 1043, n. 37, 38.
The district attorney was guilty of gross misconduct in making the statement in argument
to the jury: The defense does not deny the fact of the shooting. They don't deny the fact that
this defendant shot the deceased. It is not only a misstatement of the legal effect of the plea
of not guilty, amounting to a false statement contrary to the evidence, but is also an indirect
reference to the fact that the defendant did not take the stand in his own defense. Sec. 11253
N. C. L.
The district attorney was guilty of gross misconduct in argument to the jury when he
stated: Give him the gas or turn him loose that he may take his gun back to the Colorado
River and do some more shooting, for the reason that there was no evidence before the jury
that the defendant had a gun which the jury could give back to him. The court's admonition in
this respect could hardly be called even a mild rebuke of the prosecuting attorney, and the
jury would be prompt to forget it and think that the argument of counsel was supported by
evidence.
The verdict is contrary to the evidence, and the evidence is insufficient to support the
verdict.
Gray Mashburn, Attorney-General; W. T. Mathews, Deputy Attorney-General; Harley
Harmon, District Attorney; and Roger Foley, Deputy District Attorney, for the State:
54 Nev. 308, 311 (1932) State v. Tecope
Attorney; and Roger Foley, Deputy District Attorney, for the State:
We contend that the case of State v. Clancy, 38 Nev. 181, 147 P. 549, covers the situation
presented in this case relative to the gun and cartridges, and that if there were anything
improper in the district attorney's conduct in attempting to have them introduced and
identified (which we do not concede), such misconduct was not prejudicial and was entirely
cured by the court's ruling and instructions to the jury. 16 C. J., p. 894, sec. 2236b.
We submit that the last sentence of instruction No. 14, to which counsel objects, only
analyzes instruction No. 26, which is clearly the statute (sec. 10072 N. C. L.) defining an
involuntary killing.
Instructions 25 and 26 are merely restatements of the sections of the statute. No. 25 is
identical with sec. 10071 N. C. L., and No. 26 is to be found in sec. 10072 N. C. L.
The testimony of K. Ishibe is to the effect that he saw defendant shoot deceased; this
testimony is undenied and the witness unimpeached and uncontradicted, and the statement of
the district attorney that the defense does not deny the fact of the shooting; they do not deny
the fact that this defendant shoot the deceased, merely amounts to a declaration that Ishibe's
testimony was undenied. State v. Clark, 48 Nev. 134, 228 P. 582; State v. Williams, 35 Nev.
276, 129 P. 317; People v. Wadman (Cal.), 175 P. 791.
The remark made by the district attorney: Give him the gas or turn him loose that he may
take his gun back to the Colorado River and do some more shooting is within the scope of
legitimate argument. It was not error to infer that if the defendant were turned loose he might
commit another murder. People v. Frost, 174 P. 106, at 108. Neither is the remark erroneous
for the reason that it might be considered as an unwarranted appeal to the jury for the
infliction of the death penalty. State v. Mirocovich, 35 Nev. 485, at 491, 130 P. 765.
54 Nev. 308, 312 (1932) State v. Tecope
The evidence conclusively shows that the defendant is guilty of murder of the first degree.
OPINION
By the Court, Ducker, J.:
Appellant was convicted of murder of the first degree in the Eighth judicial district court
in and for Clark County. The jury fixed his punishment at imprisonment for life. He was
sentenced accordingly. From the judgment and from the order denying his motion for a new
trial he has prosecuted this appeal.
The crime for which appellant was convicted was alleged to have been committed by
shooting one Fred Haganuma on the 27th day of July, 1931. The shooting occurred at the
place where the latter resided near the little town of Searchlight in the southern part of Clark
County, in this state. The deceased was a Japanese. The accused is an Indian. Shortly after the
shooting, Haganuma was taken to Searchlight and placed under the care of a physician. He
died at that place on July 30, 1931. The attending physician testified that the cause of his
death was septic pneumonia induced by a gunshot wound in the chest.
1, 2. Appellant contends that the evidence is insufficient to support the verdict and
judgment. The circumstances surrounding the shooting as proved by the state are not
abundant. Only one witness, a Japanese named K. Ishibe, was produced by the state to
establish appellant's connection with the shooting. He testified through an interpreter in
substance as follows: I knew Fred Haganuma during his lifetime, in Clark County, Nevada,
about the 27th of July, 1931. I knew Steve Tecope, the defendant on the 27th of July, 1931. I
knew where Fred was about seven 7 o'clock on the evening of July 27th, 1931. He was at the
house below Searchlight, Nevada. Mrs. Haganuma and Tommykawa were present at that
time. I was there, too. At the time Fred Haganuma and I were setting down at the table
eating supper.
54 Nev. 308, 313 (1932) State v. Tecope
and I were setting down at the table eating supper. I saw Tecope, the defendant, at that time.
When I first saw Steve Tecope he entered in the gate. The truck was there. There was just a
three foot opening at that place. Steve came in with a gun. When I first saw Steve Tecope he
was just bending down. He had a gun in his hand. When I saw the gun Haganuma was talking
with me. One minute after I saw Steve Tecope with the gun the shot was fired. When the shot
was fired Fred Haganuma was sitting down. After the shot was fired the defendant just went
home. Haganuma had no gun or firearms in his hand at the time. Nothing was said by the
defendant Tecope or Haganuma before the shot was fired. Just one shot was fired. The
defendant had a gun in his hand when the shot was fired. After the shot was fired Fred
Haganuma put his hand in his chest and rolled down on the ground.
On cross-examination the witness testified: When I first saw Tecope he was coming
through a little narrow gate about twenty feet from the table I mentioned. That gate was the
entrance to the shade made of brush. That entrance was about ten feet wide. The truck was in
the entrance which left about a three foot opening at that time. The truck was in the driveway.
When I first saw Tecope he was bending over like this (indicating a crouching position). I
don't know exactly how big that shade was we were sitting under. I think it was about twenty
or thirty feet. The driveway where the truck was is about ten feet wide. Across the driveway
to the west there is a shed about fifty feet wide. Just west of this is the kitchen house. Just at
the west side of the kitchen are some more houses. The truck was in the driveway in the
entrance to the shade. The front side of the truck was in a straight line with the table. I have
told the court here all the conversation that took place that night. The other Japanese people
there that night were Tommykawa, Mrs. Haganuma and I. I know this man Tommykawa. He
was working for Haganuma.
54 Nev. 308, 314 (1932) State v. Tecope
Haganuma. He is in Texas now. I received a letter from him. Mrs. Haganuma is in Pasadena,
California. I am sure she hasn't gone to Texas too. Tommykawa was giving the hay to the
horse that night. I could not see Tommykawa from where I was sitting.
Ishibe was the only witness on the part of the state to testify as to what occurred at the time
of the shooting. There was no other testimony tending to connect the appellant with the
shooting. The appellant did not testify, and produced but one witness, a physician who
testified that a wound such as the deceased received could cause death, but was not
necessarily fatal. This witness testified also that in his opinion it was not possible without a
slide examination, and merely from the pulse, respiration, and temperature, to tell whether or
not a case of pneumonia is septic or otherwise, but that, if a doctor, a graduate of a medical
school, testified that he had in his charge for over a period of three days an individual who
had received such a wound and had died from septic pneumonia caused by the wound, that
could be possible.
We think the testimony on the part of the state is sufficient to sustain the verdict. It is true,
no previous relations between appellant and deceased were established, and nothing adduced
to show motive on the part of the accused. But motive is not essential to a conviction. People
v. Durrant, 116 Cal. 179, 48 P. 75.
The reason is well stated in People v. Tom Woo, 181 Cal. 315, 184 P. 389, 394. The court
said: Appellants contend that the evidence is insufficient, particularly because of the absence
of proof of motive. It is true the prosecution did not offer such proof. But, as has been
declared in many cases, it is not necessary to establish a motive for the perpetration of an
offense. A presumption of innocence arises in favor of a person accused of crime. This
presumption is disputable, and may be overcome by other evidence. The presence of a motive
is evidence tending to prove guilt, for the reason that its tendency is to rebut the presumption
of innocence.
54 Nev. 308, 315 (1932) State v. Tecope
But the presence or absence of motive is essentially a question of fact, and, like any other
fact, is not necessary to be proved, if the crime can otherwise be established by sufficient
competent evidence. So, in this case, the absence of proof of motive is a fact to be reckoned
on the side of innocence; but, if the proof of guilt is nevertheless sufficient to overthrow the
presumption of innocence, the appellants must stand convicted, notwithstanding no motive
has been shown.
3, 4. Appellant in the case before us stresses as a fatal weakness in the evidence the fact
that Ishibe did not testify that he saw the appellant fire the shot; and that the district attorney
did not ask him to do this. It is contended, therefore, that the evidence discloses nothing more
than a mere opportunity on the part of appellant to commit the crime, which is not sufficient.
We, of course, cannot tell why the witness did not so testify or why the district attorney did
not question him in this respect. However, it may be that the witness did not actually see the
shot fired and that the district attorney was aware of this fact. But, be that as it may, the
evidence is no weaker than if the district attorney had asked the question and the witness had
answered No. Nevertheless, the evidence tends to prove something more than mere
opportunity to do the shooting. It tends to prove that appellant actually fired the shot.
According to the testimony of the witness, he saw the appellant approaching through the
doorway in a crouching manner, armed with a gun, about twenty feet from the deceased. In a
minute after the shot was fired. Appellant had a gun in his hand when the shot was fired.
After the shot was fired, Haganuma put his hand to his chest and rolled down on the ground.
The appellant then left the place. There appears nothing inherently improbable in the
testimony. It is not self-contradictory in any respect, and it is not contradicted by other
testimony or any physical fact. Whether this testimony is to be believed was for the jury to
determine. If believed, it was clearly enough in connection with the testimony of the
attending physician to warrant the jury in finding that appellant killed Haganuma under
circumstances amounting to murder of the first degree.
54 Nev. 308, 316 (1932) State v. Tecope
with the testimony of the attending physician to warrant the jury in finding that appellant
killed Haganuma under circumstances amounting to murder of the first degree. This court
will not disturb a verdict when there is substantial evidence to support it.
5. Misdirection of the jury is also assigned as error. In this respect it is contended that the
court erred in giving instruction No. 14. The part objected to is wherein it is stated how an
unintentional killing becomes murder of the first degree. It is insisted that, as there is no
evidence of involuntary killing, the statement only tends to confuse the jury. We are unable to
perceive how this statement could in anywise prejudice the appellant. The same may be
observed as to instructions numbered 25 and 26, objected to for the same reason.
6. Under the same head appellant objects to four instructions given by the court. In one of
these the part objected to is wherein it is stated when an involuntary, that is to say, an
unintentional killing happens in the commission of an unlawful act, which in its
consequences naturally tends to destroy the life of a human being, the evil or unlawful
purpose, motive or design, with which such unlawful act is done, constitutes malice
aforethought, and makes even such unlawful killing murder. It is insisted that the instruction
is inapplicable, in that there is no evidence that the appellant was doing an unlawful act, and
prejudicial, in that the jury might have been led to believe that the court thought that appellant
was committing an unlawful act. We perceive no such tendency in the instruction and think,
even if appellant's contention that the instruction was inapplicable is correct, it is harmless.
7. The other instructions objected to, instructions numbered 21, 22, 23, and 24, pertain to
the crime of manslaughter. It is contended that there is no evidence of manslaughter, and the
instructions are therefore inapplicable, confusing, and prejudicial. We agree with appellant
that there is no evidence in the case tending to show manslaughter, but we see no basis for
a conclusion of prejudice caused appellant by the giving of these instructions.
54 Nev. 308, 317 (1932) State v. Tecope
tending to show manslaughter, but we see no basis for a conclusion of prejudice caused
appellant by the giving of these instructions. His counsel seek to furnish this by suggesting
that, because of these instructions, the jury might have derived the impression that the court
considered appellant guilty of something, and, since there was no evidence of manslaughter,
the only verdict they could return would be guilty as charged. The suggestion is without any
force. Since no ground appears for concluding that appellant was prejudiced by these
instructions, our consideration of this assignment is governed by section 11266 N. C. L., and
will therefore be disregarded.
We find none of the cases cited by counsel to be in point. The following cases are adverse
to appellant on this point: People v. Cipolla, 155 Cal. 224, 100 p. 252; Baker v. State, 154
Ga. 716, 115 S. E. 119; Janeway v. State, 23 Okl. Cr. 343, 214 P. 933.
8, 9. Misconduct of the district attorney is also assigned as error. Under this assignment
appellant alleges that the district attorney was guilty of misconduct in exhibiting before the
jury, and attempting to introduce in evidence, a rifle and cartridges which he knew could not
be identified and would not be competent evidence. We are not impressed with the
contention. It is true these articles were not offered in evidence after having been marked for
identification. There is nothing to indicate that the district attorney was acting in bad faith.
The evidence disclosed that the wound which caused the death of Haganuma was made by a
large bullet and that appellant was present at the shooting armed with a gun. The most we can
infer from the circumstances is absence of bad faith and that the district attorney merely failed
to connect the appellant with these exhibits sufficiently to justify their offer as evidence in the
case. No prejudice could have occurred, especially in view of the court's instruction to the
jury to disregard all evidence offered that had been excluded, all evidence stricken out, and all
questions to which objections had been sustained.
54 Nev. 308, 318 (1932) State v. Tecope
questions to which objections had been sustained.
Appellant assigns as misconduct the following statement made to the jury by the district
attorney in his argument to the jury: Give him the gas or turn him loose that he may take his
gun back to the Colorado River and do some more shooting. This statement is objected to as
having reference to the rifle not admitted in evidence and calculated to inflame the minds of
the jury. We do not think that either conclusion follows. As previously stated, the evidence
discloses that appellant had a gun. Why may not the district attorney have been referring to
the gun seen in his hands? The plea in this respect is not to be commended as legitimate
argument, but it does not amount to misconduct.
10, 11. Upon the assignment of error being made, the court promptly stated to the jury:
The jury are to remember that the arguments are not evidence in this case and that they will
please keep that in mind. The record will show an assignment of misconduct. This was all
that was necessary in the way of censure from the court. Appellant assigns as gross
misconduct the following statements of the district attorney in his opening argument: The
defense does not deny the fact of the shooting. They don't deny the fact that this defendant
shot the deceased. These statements do not exceed the bounds of legitimate argument under
the facts of the case. There is nothing in the evidence that tends to refute that Haganuma was
shot or that tends to show either from the evidence of the prosecution or defense that anyone
other than appellant fired the shot. The only evidence or testimony introduced by appellant
was the testimony of a physician by which it was sought to show that the deceased died of
pneumonia which was not the direct result of the wound. Certainly under such circumstances
the district attorney could argue that the shooting of the deceased and the evidence tending to
show that he was shot by appellant was undenied.
12. There is nothing on the face of the remarks to indicate that the district attorney was
trying to prejudice the appellant by the fact that he had not testified in his own behalf.
54 Nev. 308, 319 (1932) State v. Tecope
indicate that the district attorney was trying to prejudice the appellant by the fact that he had
not testified in his own behalf. They cannot be said to constitute directly or indirectly a
reference to appellant's failure to testify, and are not misconduct. State v. Williams, 28 Nev.
395, 82 P. 353; State v. Clarke, 48 Nev. 134, 228 P. 582.
The only other error assigned is the fact that the court erred in allowing the state to amend
the information, but, as this has been waived, it requires no discussion.
The judgment and order appealed from are affirmed.
____________
54 Nev. 319, 319 (1932) Doolittle v. Eighth Judicial District Court
DOOLITTLE v. EIGHTH JUDICIAL DISTRICT
COURT Et Al.
No. 2979
November 1, 1932. 15 P.(2d) 684.
1. Constitutional Law.
Court will not inquire into constitutionality of act on application of one not affected by it.
2. Master and Servant.
Statute respecting penalty for employer's failure to pay employee wages when due applies to any one
employed by hour, day, or week and applies to casual odd jobs, or emergency employment (Comp. Laws
1929, sec. 2785).
3. Constitutional Law.
Whether statute works hardship is for consideration of legislature, not for courts.
4. Certiorari.
In certiorari proceeding, reviewing court could not pass on point which was not made.
Proceeding in certiorari by Theresa Doolittle against the Eighth Judicial District Court of
the State of Nevada and another to review a judgment of respondent court. Proceedings
dismissed.
J. R. Lewis, for Petitioner.
54 Nev. 319, 320 (1932) Doolittle v. Eighth Judicial
OPINION
By the Court, Coleman, C. J.:
This is a proceeding in certiorari to review a judgment of the respondent court.
The petitioner alleges that she is now and for the greater part of her life has been a cook;
that she is the owner of an unfinished three-room house in the city of Las Vegas, Nevada; that
one Pat Burns, on or before April 1, 1931, was indebted to her in the sum of $200; that he
was and is a carpenter and plasterer; and that the petitioner on or about May 1, 1931, entered
into a contract with said Burns to perform the necessary work by day's labor to complete said
house and to credit the amount of his indebtedness on the debt owing petitioner.
The petition further alleges that on the 5th day of June, 1931, the said Burns, without the
knowledge or consent of the petitioner, employed one F. M. Gaylord to assist him in doing
the carpenter work on the house, and that he worked thereon 63 1/2 hours. The petition
further shows that the petitioner had no knowledge that said Gaylord was doing work upon
said house until after he had ceased his labor and demanded payment therefor. The petition
further alleges that said Gaylord brought suit in the justices' court to recover an amount
alleged to be due him, setting up two causes of action, one for the value of the work
performed; and the other for the amount due under section 2, the penal section of the act,
chapter 71, Stats. 1919, p. 121, sec. 2776 N. C. L., and acts amendatory thereof, as alleged in
the complaint.
The petition further alleges that the justice of the peace rendered judgment in favor of the
plaintiff, from which an appeal was taken to the district court, where the judgment was
affirmed except as to attorney's fees.
The record in the respondent court was certified up, but no attorney has appeared in behalf
of respondent.
We have three acts relative to the payment of laborers: The one above referred to, which
provides or semimonthly pay days; the act of March, 1911, N. C. L., sec.
54 Nev. 319, 321 (1932) Doolittle v. Eighth Judicial
sec. 2783, requiring payment by check or other writing, payable in cash and without discount;
and the act of March, 1925, sec. 2785 N. C. L.
While the complaint in the action alleges that it was filed pursuant to the first-named act,
and acts amendatory thereof, it is clear that he sought to recover pursuant to the
last-mentioned act, section 1 of which reads: Whenever an employer of labor shall hereafter
discharge or lay off his or its employees without first paying them the amount of any wages or
salary then due them, in cash, lawful money of the United States, or its equivalent, or shall
fail, or refuse on demand, to pay them in like money, or its equivalent, the amount of any
wages or salary at the time the same becomes due and owing to them under their contract of
employment, whether employed by the hour, day, week or month, each of his or its
employees may charge and collect wages in the sum agreed upon in the contract of
employment for each day his employer is in default, until he is paid in full, without rendering
any service therefor; provided, however, he shall cease to draw such wages or salary thirty
days after such default.
1. Counsel attacks the constitutionality of the last-mentioned act. First, he seeks to make
some point of the word equivalent. We do not deem it necessary to dispose of this question,
for the reason that the petitioner never offered to pay in money or anything deemed or
contended to be its equivalent. This court, as has every other court, has held in too many
instances to enumerate that a court will not inquire into the constitutionality of an act upon
the application of one not affected by it. State v. Beck, 25 Nev. 68, 56 P. 1008; State v.
Curler, 26 Nev. 347, 67 P. 1075; Ex Parte Goddard, 44 Nev. 128, 190 P. 916. Hence we will
not consider the point.
2. Counsel makes one other point. We will state it by quoting from his brief: A casual
reading of the statutes in question must convince one that it was not the intention of the
legislature to have said Act apply to casual, odd job, or emergency employment, but that it
should apply only to that class of employers, composed of corporations, partnerships, or
individuals, who carry on and conduct their regular business, enterprise, trade, or
profession by means of hired help."
54 Nev. 319, 322 (1932) Doolittle v. Eighth Judicial
to casual, odd job, or emergency employment, but that it should apply only to that class of
employers, composed of corporations, partnerships, or individuals, who carry on and conduct
their regular business, enterprise, trade, or profession by means of hired help.
There is no merit in the contention. The language of the statute is clear, plain, and simple
and not open to construction. It provides that the provision shall apply to one employed by
the hour, day or week. Nothing could be clearer.
The 1925 act does not purport to be amendatory of the other acts or to repeal any portion
of them. It is clearly an independent act intended to meet an entirely different situation than
that contemplated by the act of 1919.
3. Counsel urges that the act of 1925 works great hardships. We cannot see that it does.
When a person employs another, if he is honest, he expects to pay for the service, and should
be ready to do so upon the completion of the work, or have an understanding to the contrary
before the employment is entered into. The statute itself contemplates payment when the
same becomes due under the contract of employment. But if the act does work a hardship,
that is something to be considered by the legislature and not by the courts.
4. It is probable that Pat Burns had no authority to employ Gaylord so as to make
petitioner liable for the claim in question. But judging from the briefs filed in the lower court,
which were sent up with the record, that point was not made, and we cannot pass upon the
point in this kind of a proceeding.
For the reasons given these proceedings must be dismissed.
It is so ordered.
____________
54 Nev. 323, 323 (1932) Herrick v. Herrick
HERRICK v. HERRICK
No. 2993
November 1, 1932. 15 P.(2d) 681.
1. Divorce.
Supreme court has authority, in divorce case where wife is defeated party, to order husband to pay her
attorney fee to prosecute appeal.
2. Divorce.
Poverty of husband should be taken into consideration in fixing attorney fee applied for by wife to
prosecute appeal in divorce action.
3. Divorce.
$250 held, under facts in divorce case, reasonable allowance from husband for attorney fee to enable
wife, defeated party, to prosecute appeal.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit for divorce by Lester Herrick against Eleanor Miller Herrick. A decree of divorce was
rendered, and defendant files a motion for an order requiring plaintiff to pay her an attorney
fee to enable her to prosecute her appeal. Order in accordance with opinion.
Cantwell & Springmeyer, for Appellant.
Thatcher & Woodburn, for Respondent.
OPINION
By the Court, Ducker, J.:
Respondent, Lester Herrick, instituted this suit for a divorce in the district court of Washoe
County. Appellant answered, and upon a trial a decree of divorce was rendered and entered
granting him a divorce.
The matter now under consideration by this court is a motion by appellant for an order
requiring respondent to pay appellant an attorney fee of $500 to enable her to prosecute her
appeal. In support of her motion appellant filed and presented on the hearing her affidavit in
which it is alleged, among other matters, that she has good and substantial grounds for a
reversal of the decree of divorce; that the sum of $500 is a proper, reasonable, and
necessary attorney fee for such services and is commensurate with the station in life and
financial worth of the respondent; that she is informed and believes that he has 172
shares of stock in the accountancy firm of Herrick & Herrick of San Francisco, the exact
nature of which is unknown to her; that the total value of his property is in excess of
$20,000, and that his income is in excess of $1,000 per month; that since the entry of said
judgment respondent, notwithstanding his knowledge of the pendency of appellant's
motion for a new trial and her announced intention to appeal in the event a new trial was
denied, has remarried; that appellant has no ability to borrow money for the payment of
her attorney's fees herein and has no means or funds and no property except an interest
in the community property of appellant's and respondent's, including the stock
hereinbefore referred to and the sum of approximately $1,200 on deposit with the clerk of
said district court, no part of which she is advised should she accept during the pendency
of her appeal herein; and that her sole and only means of support herein is under and by
virtue of an order for allowance to her made by the said district court.
54 Nev. 323, 324 (1932) Herrick v. Herrick
good and substantial grounds for a reversal of the decree of divorce; that the sum of $500 is a
proper, reasonable, and necessary attorney fee for such services and is commensurate with the
station in life and financial worth of the respondent; that she is informed and believes that he
has 172 shares of stock in the accountancy firm of Herrick & Herrick of San Francisco, the
exact nature of which is unknown to her; that the total value of his property is in excess of
$20,000, and that his income is in excess of $1,000 per month; that since the entry of said
judgment respondent, notwithstanding his knowledge of the pendency of appellant's motion
for a new trial and her announced intention to appeal in the event a new trial was denied, has
remarried; that appellant has no ability to borrow money for the payment of her attorney's fees
herein and has no means or funds and no property except an interest in the community
property of appellant's and respondent's, including the stock hereinbefore referred to and the
sum of approximately $1,200 on deposit with the clerk of said district court, no part of which
she is advised should she accept during the pendency of her appeal herein; and that her sole
and only means of support herein is under and by virtue of an order for allowance to her made
by the said district court.
Respondent filed and presented his opposing affidavit in which it is denied that he has
property in excess of $20,000 or in any other sum or amount whatever, and alleged that he is
entirely without income of any kind whatsoever and has been so without income since
January 1, 1927, with the single exception of an earning of $2,500 in the year 1928. It is
admitted that he has an equity in 170 shares of the capital stock of Herrick Development
Company, a California corporation, whose sole and only property is the ownership of all the
assets and business carried on by a copartnership acting as agent for said Herrick
Development Company, which said copartnership is engaged in the business of public
accountancy; that such shares of stock are pledged as collateral security for a debt of
respondent to the pledgees in the sum in excess of $47,000; that the book value of said
shares is of little or no value; that according to a statement issued by said corporation on
December 31, 1931, said stock value was $49,S66.09; that affiant has recently inquired
as to the present status of said corporation and has been informed by the president
thereof that in the tragic financial situation which exists at the present time, a certainty
of the value of accounts receivable and much of the investment in work done for clients
cannot be determined short of actual collection; that the book value of $49,S66.09 is
computed upon the basis of all accounts being collectible 100 cents on the dollar; that the
said stock has no market value and is not negotiable except with the written consent and
approval of the other stockholders in said corporation.
54 Nev. 323, 325 (1932) Herrick v. Herrick
as collateral security for a debt of respondent to the pledgees in the sum in excess of $47,000;
that the book value of said shares is of little or no value; that according to a statement issued
by said corporation on December 31, 1931, said stock value was $49,866.09; that affiant has
recently inquired as to the present status of said corporation and has been informed by the
president thereof that in the tragic financial situation which exists at the present time, a
certainty of the value of accounts receivable and much of the investment in work done for
clients cannot be determined short of actual collection; that the book value of $49,866.09 is
computed upon the basis of all accounts being collectible 100 cents on the dollar; that the said
stock has no market value and is not negotiable except with the written consent and approval
of the other stockholders in said corporation. It is admitted in respondent's affidavit that he
remarried at the city of Reno, State of Nevada, on May 18, 1932, and alleged that his present
wife has been for many years and is now employed as a teacher in the San Francisco public
schools and since said marriage has been and now is self-supporting; that prior to his
remarriage his present wife had full knowledge of his financial position and of his inability to
secure employment or income from any source, and has contributed all of her earned income
since said marriage, as well as moneys borrowed by her, for the joint support of herself and
respondent, and for the purpose of making the monthly payments required by him to appellant
upon the order of allowance to her on appeal entered in said district court on May 19, 1932. It
is alleged that the only source available to respondent of obtaining money for his needs or for
his support or for the support of appellant, or for the payment of any expenses in connection
with the litigation, was upon said 170 shares of stock, and upon the security of his pledge of
said stock, and that said source has by reason of the depleted equity in said stock long since
ceased to exist. It is alleged that he fully and fairly stated all of the facts of this suit to his
attorney William Woodburn, and has been informed by said attorney that appellant has
not good and substantial grounds for the reversal of said judgment.
54 Nev. 323, 326 (1932) Herrick v. Herrick
of this suit to his attorney William Woodburn, and has been informed by said attorney that
appellant has not good and substantial grounds for the reversal of said judgment. It is further
alleged that the said contemplated appeal will not be prosecuted in good faith, but if taken
will be solely for the purpose of carrying out a vexatious course of conduct which appellant
has persisted in for the past nine years.
1. The power of this court to order a respondent in a divorce case to pay an allowance as
an attorney's fee for the wife for her defense on the appeal has been established. Lake v. Lake,
16 Nev. 363; Id., 17 Nev. 230, 30 P. 878; Buehler v. Buehler, 38 Nev. 500, 151 P. 44. It
follows therefore that this court has authority in a divorce case to order such payment from
the husband when the wife is the defeated party, for the prosecution of her appeal. As said in
Lake v. Lake, 16 Nev. 368: The object of the law is, to afford a wife without means the
funds necessary to prosecute or defend suits of this nature. This object would be frustrated, if,
after a decree of divorce were rendered, courts should withhold from her the means necessary
for a reasonable review of the proceedings.
The only question then is: What is a reasonable attorney fee under the facts disclosed?
2, 3. Respondent avers, as previously stated, that he is without funds or property, or at the
most he has only an equity in the shares of stock described in his affidavit, which are of little
or no value and are pledged as collateral security for his debt of $47,000 owing to the
pledgees; and that he has no income whatever. But it has been held by this court that the
poverty of the husband is no reason for exempting him from the payment of an attorney fee
for the wife in a divorce action. Wallman v. Wallman, 48 Nev. 239, 229 P. 1, 35 A. L. R.
1096. We said in a case recently decided that it was the duty of a court to consider the poverty
of the husband in a suit for divorce in fixing the allowance of suit money and traveling
expenses. Clarence P. Whitman v. Hon. Thomas F. Moran as Judge of the Second Judicial
District Court of the State of Nevada, in and for the County of Washoe, Department No.
54 Nev. 323, 327 (1932) Herrick v. Herrick
of the Second Judicial District Court of the State of Nevada, in and for the County of
Washoe, Department No. 1 thereof, 54 Nev. 276, 13 P.(2d) 1107. We now hold that the
poverty of the respondent as shown by his affidavit should be taken into consideration by this
court in fixing the amount of the attorney fee applied for. In consideration thereof and of the
other facts stated, we conclude that the amount of $250 is a reasonable allowance for such
fee. In view of the fact that counsel for appellant stated on the oral argument in this case that
they were willing to accept an assignment of respondent's equity in the said 170 shares of
stock and relinquish all claim to an attorney fee, we make the following order:
It is ordered that respondent pay to appellant or her counsel within 30 days from this date
the sum of $250 as an attorney fee for the prosecution of her appeal, or in lieu thereof execute
to her within the same time an assignment of his equity to the 170 shares of the capital stock
of Herrick Development Company, a California corporation, mentioned in his affidavit.
____________
54 Nev. 328, 328 (1932) State Ex Rel. Slafsky v. District Court
STATE Ex Rel. SLAFSKY v. SECOND JUDICIAL
DISTRICT COURT, in and for Washoe
County, Et Al.
No. 2997
November 1, 1932. 15 P.(2d) 682.
1. Costs.
Defendant not moving to dismiss action did not waive demand that nonresident plaintiff furnish
security for costs, where at every step of proceedings he insisted on security for costs.
2. Estoppel.
Intention to waive right is essential to waiver.
3. Prohibition.
Writ of prohibition should issue to prohibit court from trying case where nonresident plaintiff had not
furnished security for costs as demanded by defendant.
Original Proceeding in prohibition by the State, on the relation of Samuel Slafsky, against
the Second Judicial District Court, in and for Washoe County, and another. Writ issued.
R. K. Wittenberg, for Petitioner:
Petitioner submits that under the particular circumstances he has done nothing inconsistent
with his demand for security for his costs and charges, and therefore it should be held that no
waiver exists. Kissler v. Budge, 24 Ida. 246, 133 P. 125 (syl.); Goodenough v. Burton
(Mich.), 109 N. W. 52.
Where demand for security for costs has been made, and the respondent court is about to
proceed with the trial without requiring such security to be filed, prohibition will lie to stay
further proceedings in said court. Gadette v. Recorders Ct. (Cal. App.), 199 P. 817; Carter v.
Superior Ct. (Cal.) 169 P. 667.
Manifestly an appeal would not give the protection intended by sec. 8936 N. C. L.
G. A. Ballard, for Respondent:
By answering to the merits after his right to move for a dismissal had ripened, and by not
moving to dismiss before or at the setting of the case for trial, defendant waived his right to
security if he ever had it.
54 Nev. 328, 329 (1932) State Ex Rel. Slafsky v. District Court
waived his right to security if he ever had it. 15 C. J., secs. 533 and 534, p. 218.
Even if the court erred in holding a waiver it would seem that it was an error not involving
its jurisdiction. But even if it did involve its jurisdiction, defendant cannot ask for a writ of
prohibition without showing that he has exhausted his remedies in the court below and that
court has not moved on a motion to dismiss. 50 C. J., p. 688, n. 43; Yolo County Water Co. v.
Lake County Sup. Ct., 185 P. 195; Carter v. Superior Ct. of Kern County, 169 P. 667.
OPINION
By the Court, Coleman, C. J.:
This is an original proceeding in prohibition. The petition, which is verified, alleges that
on May 28, 1932, an action on a money demand was commenced in the respondent court by
one Luth against Samuel Slafsky; that petitioner is informed and believes, and therefore
alleges the fact to be, that the said Luth, at the time of the commencement of said action, was
a nonresident, residing in the State of Wisconsin; that on June 15, 1932, petitioner (Slafsky)
served upon Luth, the plaintiff in said action, a demand that he give security for costs in said
action; that Luth has entirely failed to give such security, and on or about July 25, 1932, Luth
moved said court, in said action, to set the same for trial, to which this petitioner objected on
the ground that further proceedings in said action had been stayed by reason of the failure of
said Luth to give such security; that over said objection the respondent set said action for trial
for August 11, 1932; that respondent will proceed to try the said action and to render a
judgment therein without requiring said security for costs, unless a writ of prohibition issue
herein. It is further alleged that petitioner has no speedy or adequate remedy by appeal, or
otherwise than in this proceeding. To said petition respondent demurred and also filed an
answer.
54 Nev. 328, 330 (1932) State Ex Rel. Slafsky v. District Court
The demurrer is upon the ground that the petition does not allege facts sufficient to entitle
petitioner to the writ, and upon the further ground that there is no allegation to the effect that
petitioner made a motion to dismiss the action.
Upon the oral argument, counsel for respondent stipulated that certain portions of the
answer as filed might be stricken out. The answer, with the stricken matter eliminated, sets
forth that the respondent on June 30, 1932, reciting good cause therefor, entered an order
extending the defendant's time in which to answer in said action to five days after the plaintiff
had filed security for costs in compliance with defendant's demand and of receipt of written
notice thereof; that thereafter and on July 1, 1932, Luth made a motion to vacate and set aside
said order of June 30, 1932, upon the hearing of which the attorney for Luth objected to any
extension of time for the defendant to answer; that there was nothing in the record and no
evidence before the court tending to prove that plaintiff was or was not a resident. The answer
to the petition concludes as follows:
Believing that the serving of said demands for security for costs automatically stayed
further proceedings in said action I refused to hear any evidence on said matter and on said
2nd day of July, 1932, in Open Court, did cause to be entered in the minutes of the Court the
following Order:
The plaintiff's Motion to vacate the Order of Court coming on regularly for hearing, the
plaintiff, by G. A. Ballard, Esq., and the defendant, by his attorney R. K. Wittenberg, Esq.,
being present in Court:
After argument by the respective parties it was Ordered that the motion to vacate be
granted and the defendant be given 15 days in which to answer.'
That plaintiff's time for giving such security expired on the 15th day of July, 1932; on the
17th day of July, 1932, defendant filed his answer in said cause.
That on the 25th day of July, 1932, at the call of the trial calendar plaintiff's attorney
requested that said cause be set down for trial.
54 Nev. 328, 331 (1932) State Ex Rel. Slafsky v. District Court
trial calendar plaintiff's attorney requested that said cause be set down for trial. Defendant's
attorney objected to said cause being set for trial on the ground that no security for costs had
been given by plaintiff.
Being of the opinion that defendant should have moved to dismiss said action and his not
having done so, or upon said application so moving, I ruled that he had waived his right to
demand further time in proceeding with said action, and I thereupon set said cause for trial on
August 11th, 1932.
That no further proceedings have been taken in said cause.
There is nothing in the answer of the respondent court to indicate whether Luth was not a
nonresident, other than the order of June 30, which recites that the order was made for good
cause, which indicates that the court was satisfied he was a nonresident, and the further
statement in the answer of respondent to the effect that the petitioner waived his right based
upon the demand for security for costs.
1. In this situation we think the only question for us to determine is whether or not the
petitioner had in fact waived his demand.
We do not think it should be held that the defendant waived his demand for security for
costs. At every step of the proceeding he was insisting on security for costs and that the
matter be stayed until such security be given. Even on the very day the case was set for trial,
and after he had filed his answer, he insisted that no such setting be made until security for
costs was given, showing clearly that he did not intend to waive his right to security for costs
by filing such answer.
2. Intention to waive a right is essential to waiver. 27 R. C. L. 908, 909, note 8; 40 Cyc.
261; Santino v. Great Am. Ins. Co., 54 Nev. 127, 9 P.(2d) 1000.
In Goodenough v. Burton et al., 146 Mich. 50, 109 N. W. 52, in a similar matter, the court
held that it was commendable to accompany a demand for security for costs with an answer
to the merits.
54 Nev. 328, 332 (1932) State Ex Rel. Slafsky v. District Court
3. In view of the situation presented, it is clear that the writ should issue as prayed. The
petitioner has no plain, speedy, and adequate remedy by appeal or otherwise. Carter v.
Superior Court, 176 Cal. 752, 169 P. 667; Gadette v. Recorder's Court, 53 Cal. App. 72, 199
P. 817.
It is ordered that the writ issue as prayed.
____________
54 Nev. 332, 332 (1932) Johnson v. Local Union No. 971
JOHNSON v. THE INTERNATIONAL OF THE UNITED BROTHERHOOD OF
CARPENTERS AND JOINERS OF AMERICA, LOCAL UNION No. 971, Et Al.
No. 2969
December 5, 1932. 16 P.(2d) 658.
1. Trade Unions.
Member wrongfully expelled from labor union was entitled to recover as damages fair recompense for
loss of what he would otherwise have earned in his calling.
2. Trade Unions.
Evidence sustained judgment awarding $4,000 damages to member of carpenters' union because of
deceased earnings resulting from wrongful expulsion from union.
3. Appeal and Error.
Findings, judgment, and order denying motion for new trial, sustained by substantial evidence, must
be affirmed.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Daniel E. Johnson against The International of the United Brotherhood of
Carpenters and Joiners of America and others. Judgment for plaintiff, and defendants appeal.
Affirmed. (Sanders, J., dissenting.)
Thatcher & Woodburn and John Donovan, for Appellants:
There is not a scintilla of evidence to show what Johnson actually earned as a journeyman
carpenter during the year preceding his election as a business agent, upon which to base
judgment for damages.
54 Nev. 332, 333 (1932) Johnson v. Local Union No. 971
during the year preceding his election as a business agent, upon which to base judgment for
damages. And this court can determine whether or not there is any evidence to support the
judgment. Sweet v. Sweet, 49 Nev. 254, 243 P. 817; Beck v. Thompson, 22 Nev. 109, 36 P.
562.
It seems to us that the two phrases, Johnson would probably make and assuming that he
made, indicate beyond a shadow of a doubt the method by which the trail court reached its
decision, namely, by speculation, conjecture and assumption. Richards v. Vermilyea, 42 Nev.
294, 175 P. 188.
Frame & Raffetto, for Respondent:
Inasmuch as the conclusion of the trial court rests upon competent and substantial
evidence establishing every contention of respondent, there is no basis for appellants'
contention that the judgment was erroneous. It is only where the evidence is undisputed and
where the court can, as a matter of law, say that there is no substantial evidence to support the
judgment that this court can interfere with the findings and judgment of the trial court upon
questions of fact.
OPINION
By the Court, Coleman, C. J.:
This is the second appeal in this case; the opinion on the former appeal disposes of the
question of the liability of the appearing defendants (52 Nev. 400, 288 P. 170), and the only
question involved on this appeal is, as stated in appellants' opening brief, and on the oral
argument, whether plaintiff was damaged and if so to what extent.
The learned trial judge filed a written opinion in this case which we think clearly and fully
disposes of the question involved, and we hereby adopt the following portion thereof, as a
portion of the opinion of this court: "The law of this case is settled by the opinion of the
Supreme Court of the State and, under that decision, the plaintiff is entitled to the
judgment and decree of this court directing and compelling the defendants to reinstate
the plaintiff as a member of the Brotherhood and of Local No.
54 Nev. 332, 334 (1932) Johnson v. Local Union No. 971
The law of this case is settled by the opinion of the Supreme Court of the State and, under
that decision, the plaintiff is entitled to the judgment and decree of this court directing and
compelling the defendants to reinstate the plaintiff as a member of the Brotherhood and of
Local No. 971.
The question to be determined by this Court at the present time is the amount of damages
that should be allowed the plaintiff by reason of the wrongful act of the defendants in
expelling him from the Union. I think it is a matter of congratulation to all right thinking men
that Reno is a union town. It seems to me that even with the advantage of the Union the
laboring men have sufficient difficulty in obtaining a livelihood even in a place like Reno.
If we are to accept the testimony of the witnesses for the defendants, the average wages
earned in Reno, which is considered to be a ninety per cent. union town, by members of the
Carpenters' Union is only $1200 a year. The testimony of the plaintiff and the plaintiff's
witnesses is to the effect that $2000 is the amount that they were able to earn and the amount
that the plaintiff claims he would have been able to have earned had it not been for his
expulsion from the Union.
It is the opinion of the Court that the estimate made by the witnesses for the defendants is
too small, but the Court is also of the opinion that the estimate made by the plaintiff and his
witnesses is too large. According to the evidence there are only 234 working days in the year
under union rules, and we are dealing with the proposition that has to do wholly with the
Union. At the rate of $10 a day, which is the Union wage rate, a carpenter employed every
day simply as a journeyman could make only $2,340. When we take into consideration the
number of months in the winter time when work is hard to find, the Court is of the opinion
that the estimate made by the plaintiff and his witnesses is rather large.
There was a line of testimony upon which the Court can base its decision and take the
decision outside of the realm of mere speculation, and that testimony was the testimony
given by certain of the witnesses as to the number of carpenters who worked practically
all the time, the number that worked eighty-five per cent. of the time, the number that
worked seventy per cent. of the time, the number that worked sixty per cent. of the time,
the number that worked forty per cent. of the time, and the number that worked
twenty-five per cent. of the time.
54 Nev. 332, 335 (1932) Johnson v. Local Union No. 971
can base its decision and take the decision outside of the realm of mere speculation, and that
testimony was the testimony given by certain of the witnesses as to the number of carpenters
who worked practically all the time, the number that worked eighty-five per cent. of the time,
the number that worked seventy per cent. of the time, the number that worked sixty per cent.
of the time, the number that worked forty per cent. of the time, and the number that worked
twenty-five per cent. of the time. Striking an average on that the Court is of the opinion that a
person such as the evidence shows Mr. Johnson to have been, a man with a family and
anxious to work and seeking employment, would probably make in the neighbor hood of
$1600 a year during the years that he was expelled from the Union. Then, commencing with
the first of January, the forepart of January, 1927, his evidence shows that he made between
$500 and $600 that year; in 1928, between $400 and $500. In 1929 the evidence shows he
had some contract work and made about $1,000, and in 1930 between $400 and $500.
Assuming that he made $1600 a year, and taking the amount that he made at his largest figure
in the four years and two months covered by the time in the complaint and supplemental
complaint that he was laboring under the disability of having been expelled from the Union
he lost, according to the Court's figures $4000.
Counsel for appellant insists that there was no evidence which enabled the court to fix
$4,000 as the measure of damages sustained by the plaintiff; that it arrived at the amount by
guess, which this court condemned in Richards v. Vermilyea, 42 Nev. 294, 175 P. 188, 180 P.
121. In that case there was absolutely no basis for the conclusion reached by the court in
fixing the amount of damages; it was purely guesswork. Such is not the fact in the instant
case.
1. In the majority of damage suits there is no way of showing the exact damages a party
has sustained, but there must be a basis for the fixing of the amount.
54 Nev. 332, 336 (1932) Johnson v. Local Union No. 971
In a case like this we think the same rule should apply as in a personal injury case, a fair
recompense for the loss of what plaintiff would otherwise have earned in his calling, and has
been deprived of earning by the wrongful act complained of. We approve the statement in 17
C. J. 844, as follows: It is obvious that in many cases the amount of damages is not
susceptible of exact, pecuniary admeasurement, but must rest largely in the discretion of the
jury, and the jury are entitled to consider the evidence in connection with their own
knowledge, observation and experience.
2, 3. We think there is substantial evidence in the record to sustain the findings and
judgment, and the order denying the motion for a new trial; hence, pursuant to a long line of
authorities, the judgment must be affirmed. Butzbach v. Siri et al., 53 Nev. 453, 5 P.(2d) 533.
Judgment affirmed.
Ducker, J.: I concur.
Sanders, J., dissenting:
The law of this case was settled on the former appeal. The opinion and decision of the trial
court adheres closely to the law and seems to have been prepared with assiduous care to
award plaintiff only such damages as were the direct and proximate result of his unlawful
expulsion as a member of the defendant Local Union No. 971.
After repeated examinations of the record, I cannot affirm the judgment deducible from the
trial court's decision. No intelligent opinion can be had of the judgment without first
reviewing the facts out of which the case arose. It appears that the plaintiff became a member
of Local Union No. 971, hereinafter referred to as the Local, in March, 1923. In July, 1924,
the plaintiff was elected as the business agent and delegate to represent the Local in the
Builders' and Trades Council of Washoe County, an organization composed of affiliated
union crafts in that locality.
54 Nev. 332, 337 (1932) Johnson v. Local Union No. 971
union crafts in that locality. On that date, to wit, July 1, 1924, the plaintiff was elected to the
important office of business agent of said Builders' and Trades Council. In June, 1926, the
plaintiff was defeated as a delegate to represent the Local in the Builders' and Trades Council.
At a regular meeting of the Local held on September 13, 1926, the plaintiff, in the presence of
two members present, gave utterance to certain intemperate and bitter language to show his
attitude and disposition toward the Local, its officers and members. The language was as
follows: Why in hell don't they change the name of the S of a B of an organization from
the United Brotherhood of Carpenters and Joiners of America to the Contractors and Petty
Politicians Associations?
In consequence of the plaintiff's utterance a motion in the form of a resolution was made at
this meeting for plaintiff's expulsion as a member of the Local for trying to create dissention
and working against the harmony of the Brotherhood. The plaintiff openly admitted that a
part of the language attributed to him was true, but then and there openly demanded that he be
charged and tried in the mode and manner as provided in section 54 of the constitution of the
Local for the expulsion of members. In response to his demand, the chairman of the meeting
ruled that the member having admitted that a part of the charge preferred against him was
true, a trial was unnecessary under the constitution of the Local. Whereupon the motion was
put to a rising vote of the members present, who numbered 42 or 45, of a scattered
membership of about 130. The motion carried by a vote of 36 for and 5 against expulsion.
Notwithstanding the vote of expulsion, the plaintiff continued to hold the office of business
agent of the Builders' and Trades Council up to January 25, 1927, showing that his standing
as a union man was not affected by his expulsion. On January 25, 1927, the plaintiff
voluntarily declined to stand for reelection to the office, giving as his reasons therefor that
under the circumstances it would be for the best interests of the labor movement in that
locality that he should not continue to hold the office of business agent of the several
crafts affiliated with the council.
54 Nev. 332, 338 (1932) Johnson v. Local Union No. 971
for the best interests of the labor movement in that locality that he should not continue to hold
the office of business agent of the several crafts affiliated with the council. In August, 1927,
the plaintiff filed a complaint in the court below, and in September, 1927, filed a lengthy
amended complaint, against the several defendants, demanding as damages for his alleged
wrongful, willful, malicious, and unlawful expulsion from the Local the sum of $100,000
actual damages and in addition the sum of $100,000 punitive damages. It was ordered,
adjudged, and decreed that the plaintiff have and recover from the defendants the sum of
$4,000 actual damages.
The appeal is divided into two parts; one, the appeal from the joint judgment for $4,000,
and the other from an order denying the appealing defendants' motion for a new trial. I note
that the defendant International Brotherhood of Carpenters and Joiners of America is not a
party to the appeal, presumably for the reason that it does not appear that it was ever served
with summons or appeared in the action. The defendant Local and the individual defendants,
in their appeal from the judgment, insist that the evidence is insufficient to support the
decision of the trial court and its judgment is against law. I am of opinion that the judgment is
against law for several reasons; one, the defendant Local is a voluntary unincorporated
association, sued in its common or local name. The general rule of the common law that a
voluntary unincorporated association cannot be sued in its common name is recognized in
Branson v. Industrial Workers of the World, 30 Nev. 270, 95 P. 354. In that case an
injunction against the individual members of the organization was affirmed upon the theory
that they were sued as representatives of the entire membership of the organization, which
was numerous and scattered, but not so in the case at bar. The individual defendants are not
sued as representatives of the entire membership of the local, but in their capacity as
individual members of the Local. Therefore, a judgment could not be rendered against the
Local merely by name.
54 Nev. 332, 339 (1932) Johnson v. Local Union No. 971
a judgment could not be rendered against the Local merely by name. The judgment as to the
Local is obviously coram non judice, and should be vacated as such. Maclay Co. v. Meads, 14
Cal. App. 363, 112 P. 195, 113 P. 364.
Whether the judgment against the individuals named as defendants is valid and legal
presents a different question. The complaint is only sufficient against them as members sued
individually. The complaint charges that the individual defendants as members of the Local
participated in the plaintiff's expulsion, which was contrary to common right, a high-handed,
arbitrary proceeding equivalent to mob law, and contrary to due course of procedure provided
in the constitution and laws of the Local. The trial court's decision and findings refute the
charge. The court considered that the plaintiff was largely responsible for his expulsion
because of the vituperate attack made by him on the Local and its officers. While the court
considered that the members present acted hastily in voting the expulsion of the plaintiff,
nevertheless his expulsion was contrary to and in violation of the procedure provided in the
constitution and laws of the Local for the expulsion of a member and that the plaintiff was
entitled to recover such damages as were the direct and proximate result of his unlawful
expulsion. It does not, however, necessarily follow that the court was authorized to render a
judgment against the sixteen individual members for the damages occasioned by the act of the
majority present in voting for the resolution of expulsion of the plaintiff. Why the sixteen
individual defendants, as members of the local, should have been selected and singled out by
the plaintiff in his complaint as being responsible for his expulsion, is a matter of inference
and conjecture. No reason appears why the particular individual members should be held
liable for the plaintiff's damage any more than the other members constituting the majority
who voted for the plaintiff's expulsion. There is no evidence in the record to show that the
individual defendants as members of the Local acted in bad faith.
54 Nev. 332, 340 (1932) Johnson v. Local Union No. 971
that the individual defendants as members of the Local acted in bad faith. On the contrary, in
the absence of proof to show that they did so act, the presumption is that the expulsion of the
plaintiff was an error of judgment merely or the misinterpretation of the law provided in the
constitution of the Local for the expulsion of a member. Furthermore, the judgment in form
makes the five voting against the resolution equally liable with the sixteen who joined with
the majority in voting the expulsion for the damage occasioned by the plaintiff's unlawful
expulsion, as well as the entire membership of the Local.
The result of my consideration of the entire record is that there was no evidence submitted
to the court upon which it could possibly and properly find and adjudge that the legal wrong
done the plaintiff was the direct and proximate result of the sixteen individual defendants'
participation in the expulsion of the plaintiff as a member of the Local. In a case arising, as
this, from internal disputes and discords in a labor organization, it is of far higher importance
that this court should preserve inviolate the fundamental limitations in respect to jurisdiction,
even though it be considered that an expelled member had a cause of action for damages and
reinstatement as a member.
Entertaining these views, I decline to affirm the judgment.
On Petition For Rehearing
January 31, 1933. 18 P.(2d) 448.
1. Appeal and Error.
Statement in rehearing petition that while damages constituted main issue, one
element was whether proximate cause of petitioner's expulsion from union was result of
acts of individual defendants, to which much attention was not devoted in briefs or
argument, particularly because of court's ruling in former case, held conclusive admission
that former opinion correctly stated damages was only question involved.
2. Appeal and Error.
Point first urged on petition for rehearing will not be considered.
54 Nev. 332, 341 (1932) Johnson v. Local Union No. 971
On petition for rehearing. Rehearing denied. (Sanders, C. J., dissenting.)
OPINION
By the Court, Coleman, J.:
Appellants have filed a petition for a rehearing, in which they contend that we reached the
wrong conclusion on the question of damages, and now urge for the first time other points.
1. In the petition for a rehearing they state:
On page 14 of appellant's opening brief appears the following:
An examination of the Assignments of Error will reveal that the case resolves itself into
the following issue:
I. Did plaintiff allege and prove such actual damages because of his expulsion from the
Union as to entitle him to a judgment for Four Thousand Dollars ($4,000.00)?'
While it is true that this was the main issue presented to the Court, there were certain
elements making up this issue, one of which was the following:
Was the plaintiff's expulsion from the Union the direct and proximate result of the acts of
the sixteen individual defendants?
We did not devote much attention to this fact either in our opening brief, reply brief or
upon the oral argument, particularly because of the Court's ruling in the former case.
We think this is a conclusive admission that we correctly stated in the former opinion that
the only question involved was one of damages.
We have further considered that question and are of the opinion that our former conclusion
must stand.
2. We have repeatedly held that a point urged for the first time on petition for rehearing
will not be considered. Nelson v. Smith, 42 Nev. 302, 176 P. 261, 178 P.
54 Nev. 332, 342 (1932) Johnson v. Local Union No. 971
P. 625; In Re Forney's Estate, 43 Nev. 227, 184 P. 206, 186 P. 678, 24 A. L. R. 553; In Re
Pedroli's Estate, 47 Nev. 313, 221 P. 241, 224 P. 807, 31 A. L. R. 841; In Re Howard's Estate,
48 Nev. 106, 232 P. 783; Carroll v. Carroll, 51 Nev. 188, 272 P. 3; Blankenship v.
Blankenship, 52 Nev. 48, 280 P. 97, 63 A. L. R. 1127.
The petition for rehearing is denied.
Ducker, J.: I concur.
Sanders, C. J.: I dissent.
____________
54 Nev. 342, 342 (1932) Tardy Et Al. v. Tarbell Et Al.
TARDY Et Al. v. TARBELL Et Al.
No. 2995
December 7, 1932. 16 P.(2d) 656.
1. Appeal and Error.
Order refusing motion to quash and recall execution in case wherein movant was not party held not
appealable by movant and her attorney (Comp. Laws 1929, sec. 8885).
2. Appeal and Error.
Within statute providing for appeal from any special order made after final judgment, special order
must be order affecting rights of party growing out of judgment previously entered, and affecting rights
incorporated in judgment (Comp. Laws 1929, sec.8885).
3. Courts.
Case is only authority upon what it actually decides.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Action by E. R. Tarbell against the Black Canyon Holding Company. From an order
refusing to quash and recall execution, Ella B. Tardy and another move for an appeal. On
motion to dismiss appeal. Appeal dismissed.
Noland & Noland, for Respondent E. R. Tarbell:
We submit that the order appealed from is not such a special order made after final
judgment as is contemplated by sec. 8885 N. C. L. Nor does it fall within the provisions of
sec.
54 Nev. 342, 343 (1932) Tardy Et Al. v. Tarbell Et Al.
the provisions of sec. 8375 N. C. L., or any other section that we have been able to find.
Bancroft Pr., vol. 8, sec. 6286, p. 8351.
The appellants herein were not parties to the original action in which the order appealed
from was made. The judgment in that case did not affect nor incorporate any rights of either
of the appellants.
A. A. Hinman, for Appellants:
The statute expressly provides for an appeal from any special order made after final
judgment. Sec. 8885 N. C. L.
Under the statute the order must be one which affects the judgment, or bears some relation
to it, either by way of enforcing it or staying its operation, but it need not follow the judgment
in the same line of proceeding. 3 C. J. 519, n. 62, 63; Calderwood v. Peyser, 42 Cal. 110;
Clark v. Crane, 57 Cal. 629.
The rule is that any order subsequent in point of time to the entry of judgment is
appealable. 2 Hayne New Trial and Appeal, pp. 1001-1005; Comstock M. & M. Co. v. Allen,
21 Nev. 325, 31 P. 434; Floyd v. District Court, 36 Nev. 349, 125 P. 922; Saval v. Blume, 41
Nev. 212, 168 P. 909.
OPINION
By the Court, Ducker, J.:
This is a motion to dismiss the appeal. The appeal was taken from an order of the Eighth
judicial district court refusing to quash and recall the execution in the case of E. R. Tarbell,
Plaintiff, v. Black Canyon Holding Company, a Corporation, Defendant, No. 3107.
Application for the order was made by the plaintiff in another action in said court, to wit, the
case of Ella B. Tardy, Plaintiff, v. E. R. Tarbell et al., Defendants, No. 3495. The appeal from
said order was taken by said Ella B. Tardy and her attorney in said last-named case, A. A.
Hinman, who was also her attorney on application for said order. Prior to the making of the
application for the order, a writ of attachment was issued out of case No.
54 Nev. 342, 344 (1932) Tardy Et Al. v. Tarbell Et Al.
the order, a writ of attachment was issued out of case No. 3495 levied upon the indebtedness
evidenced by the judgment in case No. 3107. Thereafter, to wit, on February 4, 1932,
judgment was rendered and entered in case No. 3495 in favor of the plaintiff and against the
defendant, E. R. Tarbell, for the sum of $3,635, which said judgment remains unpaid and
unsatisfied in whole or in part. On the 24th day of February, 1932, execution was issued in
case No. 3107 and levied upon certain real property belonging to the defendant therein, and
notice of sale under said execution given for the 20th day of April, 1932. On the 9th of April,
1932 Ella B. Tardy, plaintiff in case No. 3495, served upon Noland & Noland, attorneys for
plaintiff in case No. 3107, notice of her motion to recall and quash said execution. Notice of
said motion was not served upon plaintiff in that action.
On the 16th day of April, 1932, said E. R. Tarbell, appearing specially, objected to the
hearing of the said motion upon the ground that he had not been served with notice of said
motion, and that the court was without jurisdiction to hear the same. The objection was heard
and the order made, which has been appealed from as previously stated.
1. We think the order refusing to quash and recall said execution is not appealable. Section
8885 N. C. L., provides in part that an appeal may be taken from any special order made
after final judgment. Appellant contends that this provision is without any limitation or
restriction. But if this were true, then a party to the litigation or one not a party might
continue the litigation to an unreasonable extent. As stated in Weed v. Weed, 55 Mont. 599,
179 P. 827, 828, there would never be an end to litigation if either party sought to harass or
annoy the other.
In the above case the court approved the construction of a provision of the Montana Code,
which is the same as the provision under consideration, made by the supreme court of
Montana in the case of Chicago, M. & St. P. Ry. Co. v. White, 36 Mont.
54 Nev. 342, 345 (1932) Tardy Et Al. v. Tarbell Et Al.
St. P. Ry. Co. v. White, 36 Mont. 437, 93 P. 350, 351. It was stated that the earlier decision
had the support of the authorities generally, citing Griess v. State Inv. & Ins. Co., 93 Cal. 411,
28 P. 1041; Kaltschmidt v. Weber, 136 Cal. 675, 69 P. 497; 3 C. J. 519.
2. In construing the statute, the court in Chicago, M. & St. P. Ry. Co. v. White, supra, said:
The special order, made after final judgment, from which an appeal lies, must be an order
affecting the rights of some party to the action, growing out of the judgment previously
entered. It must be an order affecting rights incorporated in the judgment.'
This is an expression of the correct principle. The order appealed from does not fall within
its scope. Neither of the appellants against whom the order was made is a party to the action
in which the judgment was entered, nor does the order affect any right included therein.
Appellants rely upon the case of Comstock M. & M. Co. v. Allen, 21 Nev. 325, 31 P. 434,
435, in which it was said: The statute provides for an appeal from any special order made
after judgment.' The right is given without limitation or restriction.
3. This language is broad enough to support their contention, but the court in that case was
not considering a question like the one presented here. The appeal in that case was from an
order retaxing costs, and was taken by a party to the action. It was clearly an order
contemplated by the statute as a special order after final judgment. That the court in its
opinion used language broad enough to include any order made after final judgment, however
frivolous the application for it may have been, or if made by a stranger to the action, is of no
consequence as an authority.
It was stated by the court in Jensen v. Pradere, 39 Nev. 466, 159 P. 54, 55: A case is only
an authority of what it actually decides.
The cases of Saval v. Blume, 41 Nev. 212, 168 P. 909, and Floyd v. District Court, 36
Nev. 349, 135 P. 922, 4 A. L. R. 646, are not in point.
54 Nev. 342, 346 (1932) Tardy Et Al. v. Tarbell Et Al.
The appellants, not being parties to the action, have no right to be heard, or to appeal from
said order. Hence the appeal must be dismissed.
It is so ordered.
____________
54 Nev. 346, 346 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

SCHEELINE BANKING & TRUST CO. v. STOCK-GROWERS &
RANCHERS BANK OF RENO, Et Al.
No. 2998
December 5, 1932. 16 P.(2d) 368.
1. Appeal and Error.
Appeal held to be from order denying motion to vacate judgment and quash execution, where notice
of appeal so stated.
It was argued that appeal involved was not taken from an order denying a motion to set aside a
judgment, but was from a special order denying a motion to quash an execution erroneously issued
on an interlocutory judgment. Notice of appeal stated, however, that appellants appealed from
certain order denying their motion to vacate and set aside a judgment and quash an execution.
2. Judgment.
In absence of statutory authority, court held unauthorized to vacate judgment on motion made more
than six months after rendition of judgment (Comp. Laws 1929, sec. 8640; District Court Rule 45).
3. Judgment.
Court on its own motion may vacate void judgment.
4. Judgment.
Where court had jurisdiction of subject matter and parties, excessiveness of judgment, or existence of
other error, could not be complained of on motion to vacate judgment; court having erred, if at all, only in
exercise of jurisdiction.
Appeal from Second Judicial District Court, Washoe County; Clark J. Guild, Judge.
Two separate suits by the Scheeline Banking & Trust Company against the Stockgrowers
& Ranchers Bank of Reno, John Poco, and others, wherein cross-complaints were filed by
defendants, except the first-named defendant, against the last-named defendant. Motion by
defendants, except the last-named defendant, to set aside a judgment and to quash an
execution.
54 Nev. 346, 347 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

judgment and to quash an execution. From an order denying the motion, defendants, except
the last-named defendant, appeal. Affirmed.
Walter Rowson, Fernand de Journel and Harold W. Haviland, for Appellants:
This appeal is not taken from an order denying a motion to set aside a judgment. It is taken
under section 8885, subsection 2, N. C. L. (among other grounds), from a special order
denying a motion to quash an execution erroneously issued upon an interlocutory judgment,
and to vacate from the records a misleading paper.
In State ex rel. Smith v. District Court, 16 Nev. 371, Judge Hawley's opinion holds that the
procedure for vacating a judgment in this state is regulated by statute, to which we naturally
agree. The statute upon which we proceed and rely is the one above cited, applicable for relief
from a special order made after a final judgment, according to the construction placed by the
respondent on the document of July 10.
The court had no jurisdiction, power or authority to render any judgment, interlocutory or
final, for principal or interest, or for both, which would exceed, on the day of judgment, the
bond's limit of $40,000.
Thatcher & Woodburn, for Respondent:
The appeal in this case is taken from an order denying a motion to set aside a judgment.
Such motion was two years and six months too late. Previous to the making of rule 45 of the
district court, it was held in this state that a motion to set aside a judgment must be made
within the term of the court or the court loses jurisdiction to make such an order. Daniels v.
Daniels, 12 Nev. 118; Lang Syne Mining Co. v. Ross, 20 Nev. 127, 18 P. 358.
Since the abolishment of terms of court said rule 45 was made in order to accomplish the
same purpose. Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638.
This court has held repeatedly that motions of the character here attempted to be made by
appellant are not authorized by our statutes.
54 Nev. 346, 348 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

not authorized by our statutes. State ex rel. Smith v. District Court, 16 Nev. 371; Luke v.
Coffee, 31 Nev. 165, 101 P. 555.
The weight of authority does not support the contention of appellant that in no case can the
judgment on a bond exceed the amount of the bond. 9 C. J., p. 132, Bonds; American
Surety Co. v. Pacific Surety Co., 70 Atl. 584; 19 L. R. A. (N. S.) 84 (note).
OPINION
By the Court, Coleman, C. J.:
This is an appeal by Stockgrowers & Ranchers Bank of Reno, T. O. Ward, and J. D.
Cameron from an order denying a motion to vacate and set aside a judgment and to quash an
execution.
On December 31, 1923, the banks entered into a written agreement for the sale by
defendant bank to plaintiff bank of all of its assets. Simultaneously with the execution of that
agreement, the defendant bank, as principal, and T. O. Ward, J. D. Cameron, and John Poco,
as sureties, made, executed, and delivered to plaintiff bank an undertaking in the sum of
$40,000 to protect the plaintiff bank against shrinkage of certain assets sold by defendant
bank to the plaintiff.
On December 28, 1928, the plaintiff brought suit to recover upon the undertaking
mentioned in the sum of $34,946.62, and on February 25, 1929, it brought a second suit to
recover $34,946.62. Both suits were against the defendant bank and all of the sureties. To the
complaints in the actions mentioned the defendant bank and Poco filed separate answers, and
the defendants Ward and Cameron filed a joint answer and cross-complaint against Poco.
After the answers were all filed the plaintiff made a motion to consolidate the two actions.
The motion was heard on July 9, 1929, the appellants appearing by their respective counsel,
and no objection being made, the court entered the order of consolidation.
54 Nev. 346, 349 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

court entered the order of consolidation. On the same day and immediately after the entry of
the order of consolidation, counsel for plaintiff, pursuant to notice theretofore given, made a
motion for judgment on the pleadings against defendants bank, Ward, and Cameron. No
objection having been made by counsel for the respective parties mentioned, the court
ordered that judgment be entered against the defendants bank, Ward, and Cameron, together
with interest thereon from December 31, 1923, until paid, and reserved jurisdiction as to the
cross-complaint against John Poco. On the following day, July 10, 1929, the court signed a
formal judgment against the parties mentioned, in accordance with the order of the previous
day, but made no reference therein to the cross-complaint, nor reservation of jurisdiction to
proceed thereon. Written notice of the entry of the formal judgment was served upon counsel
for the defendants bank, Ward, and Cameron on July 26, 1929.
On June 18, 1932, an execution was issued upon said judgment, and on July 6, 1932, the
appellants, bank, Ward, and Cameron, who will hereafter be referred to as appellants, since
they are the only ones of the defendants, who are interested in this action, filed in the lower
court a motion for an order vacating the judgment of July 10, 1929, and to quash the
execution of June 18, 1932.
Respondent contends that the motion to vacate the judgment and recall the execution came
too late. In support of this point counsel rely upon district court rule 45, which provides that:
No judgment, order or other judicial act or proceeding * * * shall be vacated unless the
movant shall give notice of the motion within six months after such judgment was entered or
proceeding had. In support of their contention our attention is called to the following
authorities: Daniels v. Daniels, 12 Nev. 118; Lang Syne Gold Mining Co. v. Ross, 20 Nev.
127, 136, 18 P. 358, 19 Am. St. Rep. 337; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638.
54 Nev. 346, 350 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

It is further contended that the motion to vacate was not authorized by section 8640 N. C.
L., or any other legislative enactment, in support of which we are directed to a consideration
of State ex rel. Smith v. Fourth District Court, 16 Nev. 371; Luke v. Coffee, 31 Nev. 165, 101
P. 555; State v. Cent. Pac. Co., 21 Nev. 172, 26 P. 225, 1109.
As remarkable as it may seem, counsel for appellants, in their reply brief, relative to the
point made by respondent, say: Both the preliminary statement, and the statement of facts of
respondent are confusing, because they misconstrue the appellants' proceedings and evade the
real issues. This appeal is not taken from an order denying a motion to set aside a judgment.
This appeal is taken under section 8885, subsection 2, N. C. L. (among other grounds), from a
special order denying a motion to quash an execution erroneously issued upon an
interlocutory judgment, and to vacate from the records a misleading paper.
The motion, upon which the order appealed from was made, reads: Now come the
defendants, Stockgrowers and Ranchers Bank of Reno, a corporation, T. O. Ward and J. D.
Cameron, and move the Court for an order setting aside and vacating the alleged judgment
herein, dated July 10th, 1929, and quashing an execution issued against the said defendants in
the above case on the 18th day of June, 1932, upon the following grounds: * * *
The notice of appeal is to the effect that the appellants do hereby appeal to the Supreme
Court of the State of Nevada from that certain Order made and entered by the above entitled
Court in the above entitled causes and proceedings, on the 7th day of July, 1932, denying said
defendants' Motion to Vacate and Set Aside Judgment and Quash Execution in said causes
and proceedings.
Counsel further say in their reply brief: The contention of the appellants is not, as
respondent insists, that they are trying to set aside a final judgment two and a half years after
its rendition; their contention is that they are trying to set aside the erroneous construction
made for the first time on June 1Sth, 1932, by Judge Guild, of that certain paper writing
of July 10th, 1929, theretofore considered to be a bona fide form of the judgement of July
9th, 1929, and the motion of the appellants was made to that court, and denied by it, and
now presented in this appeal, was for an order quashing and vacating the execution and
setting aside the previous order of June 1Sth, 1932, misconstruing the paper of July 10th,
as a final judgment and authorizing the issue of the execution; and the grounds {among
others) are that never before June 1Sth, 1932, was such an erroneous construction made
on said so-called final judgment of July 10th; that the actions of plaintiff and defendants,
and the proceedings, show that fact; and that the authority for such a motion rests on
section SSS5, subsection 2 of N. C. L."
54 Nev. 346, 351 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

is that they are trying to set aside the erroneous construction made for the first time on June
18th, 1932, by Judge Guild, of that certain paper writing of July 10th, 1929, theretofore
considered to be a bona fide form of the judgement of July 9th, 1929, and the motion of the
appellants was made to that court, and denied by it, and now presented in this appeal, was for
an order quashing and vacating the execution and setting aside the previous order of June
18th, 1932, misconstruing the paper of July 10th, as a final judgment and authorizing the
issue of the execution; and the grounds (among others) are that never before June 18th, 1932,
was such an erroneous construction made on said so-called final judgment of July 10th; that
the actions of plaintiff and defendants, and the proceedings, show that fact; and that the
authority for such a motion rests on section 8885, subsection 2 of N. C. L.
1. Notwithstanding the shifting of positions by counsel for appellants, the fact is the appeal
is from the order denying a motion to vacate the judgment and to quash the execution,
because the notice of appeal which we have quoted so states.
2. Respondent does not say that appellants did not take their appeal within the time
allowed by law, provided the court had jurisdiction to entertain the motion on which the order
is based, but contend that the court had no authority to consider the motion made by
appellants.
If this contention be true, it matters not how many errors the court may have made, if it can
be said that a court can err in entertaining jurisdiction where it had none; hence we must
determine if the court had authority to entertain the motion to vacate the judgment and quash
the execution.
It is conceded that the motion to vacate was not made within six months of entry of the
judgment in question. The only section of the civil practice act authorizing the vacating of a
judgment is 8640 N. C. L., which provides that: When, from any cause, the summons, and a
copy of the complaint in an action have not been personally served on the defendant, the
court may allow, on such terms as may be just, such defendant or his legal
representatives, at any time within six months after the rendition of any judgment in such
action, to answer to the merits of the original action."
54 Nev. 346, 352 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

of the complaint in an action have not been personally served on the defendant, the court may
allow, on such terms as may be just, such defendant or his legal representatives, at any time
within six months after the rendition of any judgment in such action, to answer to the merits
of the original action.
It is not contended that there was no service of summons upon the appellants. If such were
the fact, the application to vacate was not made within six months from after the rendition of
the judgment, as provided by the section mentioned.
Counsel for appellants say: In State ex rel. Smith v. Fourth District Court, 16 Nev. 371,
Judge Hawley's opinion holds that the procedure for vacating a judgment in this State is
regulated by statute, to which we naturally agree. The statue upon which we proceed and rely
is the one already cited, applicable for relief from a special order made after a final judgment,
according to the construction placed by the respondent on the document of July 10th.
Thus counsel concede that they have no remedy for vacating the judgment in question
unless given by statute, but call our attention to no statute giving appellants such a remedy,
directing our attention to section 8885 N. C. L., concerning appeals only.
They would certainly have the right of appeal if the court had the authority to vacate the
judgment; but since counsel admit that the court had no authority to vacate the judgment
unless given by statute, and then call our attention to no statute giving them such authority
after the six months' period has elapsed, and we knowing of none, it must follow that no other
order can be entered herein than to affirm the order appealed from.
3. We do not wish to be understood as holding that a void judgment might not be vacated
at any time. The court might vacate a void judgment on its own motion. Persing v. Reno
Stock B. Co., 30 Nev. 342, 349, 96 P. 1054.
4. It is not contended that the court did not have jurisdiction of the subject matter or of
the parties, and if the judgment is excessive, as contended, or other error was made, the
court only erred in the exercise of jurisdiction, and the error cannot be complained of on
the motion made.
54 Nev. 346, 353 (1932) Scheeline Banking & Trust Co. v. Stockgrowers & Ranchers Bank

jurisdiction of the subject matter or of the parties, and if the judgment is excessive, as
contended, or other error was made, the court only erred in the exercise of jurisdiction, and
the error cannot be complained of on the motion made. Douglas M. & P. Co. v. Rickey, 47
Nev. 148, 217 P. 590; Walcott v. Wells, 21 Nev. 47, 24 P. 367, 9 L. R. A. 59, 37 Am. St.
Rep. 478; Floyd v. District Court, 36 Nev. 349, 135 P. 922, 4 A. L. R. 646.
It is ordered that the order appealed from be affirmed.
____________
54 Nev. 353, 353 (1933) Al Colyer v. Lahontan Mines Co.
AL COLYER, Respondent, v. LAHONTAN MINES COMPANY,
A Corporation, Appellant
No. 2968
January 5, 1933. 17 P.(2d) 697.
1. Mines and Minerals.
Four-year contract for sale of mining property, price being payable by royalty, created option.
Person entering into contract with mining company for sale of mining property for specified price to
be paid by fixed royalty on gross yield, it being agreed that contract should expire after about four years,
did not thereby bind himself to pay for property, but he obtained merely privilege of becoming purchaser,
or, in legal effect, an option.
2. Brokers.
Broker obtaining person who, under contract with landowner, acquired mere unexercised option to
purchase, could not recover commission either on quantum meruit or under contract because allegedly
obtaining purchaser.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Suit by Al Colyer against Lahontan Mines Company. From a judgment granting plaintiff
partial relief, both parties appeal. Reversed, with direction.
Thatcher & Woodburn, for Defendant:
The plaintiff was not entitled to recover, because it appears from the findings and the
evidence that he never performed the contract as alleged in his complaint, in that he did
not, as a broker or otherwise, find a buyer for defendant's mining property.
54 Nev. 353, 354 (1933) Al Colyer v. Lahontan Mines Co.
performed the contract as alleged in his complaint, in that he did not, as a broker or
otherwise, find a buyer for defendant's mining property. No firm or binding agreement was
made by Reinmiller that he would purchase and pay for the property. Hunter v. Sutton, 45
Nev. 430, 205 P. 785.
W. M. Kearney, for Plaintiff.
The plaintiff did all he was employed to do under his agreement, and there was nothing
else to be done. The record shows that the purchaser was placed in possession and had
expended $100,000 in the development of the property, besides the moneys paid in escrow to
the bank. If there were anything wrong with the sale, it was because of the form of contract
prepared by the defendant, and not the fault of the plaintiff. Ward v. Morrow, 15 Fed.(2d)
660; McLaughlin v. Wheeler, 47 N. W. 817; Scott v. Clark, 54 N. W. 538; Hunteman v.
Arent, 93 N. W. 653.
OPINION
By the Court, Coleman, J.:
On December 23, 1926, Al Colyer brought suit against Lahontan Mines Company, a
corporation, to recover upon two causes of action. In the first cause of action it is alleged that
on December 6, 1923, the defendant, as party of the first part, entered into a written contract
with the plaintiff and Alex McIntyre, as parties of the second part, whereby said second
parties were granted an option and right to sell certain mining property owned by the first
party, which said agreement provided that said second parties would endeavor to secure a
buyer for said property upon terms of sale to be fixed by special agreement between the
buyers and the company; that it was further agreed that in the event of a sale the company
would pay to second parties a commission of 10 per cent of the purchase price of the
property.
The complaint further alleges that McIntyre sold all of his right and interest in said
agreement to Colyer; that on the 25th day of November, 1924, the plaintiff found a
purchaser for said property and that the defendant sold said property to one John
Reinmiller for the sum of $60,000, under a special agreement with the defendant; that
the said Reinmiller took and maintained possession of said property; that the plaintiff
performed each, every, and all of the terms of said agreement; and that there is due and
owing the plaintiff $6,000.
54 Nev. 353, 355 (1933) Al Colyer v. Lahontan Mines Co.
of his right and interest in said agreement to Colyer; that on the 25th day of November, 1924,
the plaintiff found a purchaser for said property and that the defendant sold said property to
one John Reinmiller for the sum of $60,000, under a special agreement with the defendant;
that the said Reinmiller took and maintained possession of said property; that the plaintiff
performed each, every, and all of the terms of said agreement; and that there is due and owing
the plaintiff $6,000.
The second cause of action is to recover $6,000 on the quantum meruit for services
rendered in selling the property mentioned.
The defendant by its answer denied, among other things, that it sold the property as
alleged, but that it entered into an agreement of option with Reinmiller whereby he obtained
the right to purchase the property for $60,000; that no part of said sum had been paid; and
that no part thereof was due.
The defendant also denied the material allegation of the second cause of action.
The plaintiff filed a reply denying the affirmative matter in the answer.
The case was tried to the court, and a judgment was rendered in favor of the defendant on
the first cause of action and in favor of the plaintiff upon the second cause of action in the
sum of $3,500. Both parties have appealed.
We will first consider the appeal of the defendant company.
The uncontradicted evidence shows that on December 6, 1923, the defendant company
entered into a written agreement with the plaintiff and Alex McIntyre, whereby the defendant
granted to the parties named an option to sell all of the property of the company subject to a
special agreement between the buyer and defendant; that in the event of such a sale the
second parties are to receive a commission of 10 per cent of the purchase price; and that
thereafter McIntyre assigned his interest to this plaintiff.
Shortly after the execution of the said agreement the plaintiff undertook to interest John
Reinmiller in the defendant's property, and on the 25th day of November, 1924, as a
result of his efforts, a written agreement for the sale of certain property was entered into
between the defendant company and Reinmiller for the sum of $60,000, "to be paid by a
flat royalty of 20 % upon the gross yield" of the working of the property; that all ore
extracted from said property by said Reinmiller shall be shipped through the Reno
National Bank; and that said bank shall deduct from the gross yield thereof 20 per cent
and place the same to the order of the defendant company until a total sum of $60,000
has been paid to it.
54 Nev. 353, 356 (1933) Al Colyer v. Lahontan Mines Co.
plaintiff undertook to interest John Reinmiller in the defendant's property, and on the 25th
day of November, 1924, as a result of his efforts, a written agreement for the sale of certain
property was entered into between the defendant company and Reinmiller for the sum of
$60,000, to be paid by a flat royalty of 20 % upon the gross yield of the working of the
property; that all ore extracted from said property by said Reinmiller shall be shipped through
the Reno National Bank; and that said bank shall deduct from the gross yield thereof 20 per
cent and place the same to the order of the defendant company until a total sum of $60,000
has been paid to it. The agreement further provides that it shall expire at midnight of
November 30, 1928.
This suit was instituted on December 23, 1926, and was tried during 1927, and a judgment
rendered on November 26, 1927. The trial court made findings of facts, and among them it
found the agreement entered into between the defendant and Reinmiller (exhibit A) was not a
binding contract of sale, but that it is an option merely. The court also found: That the
plaintiff did perform services of the value of $3500.00 under an express contract to find a
purchaser for the property mentioned in the complaint. The plaintiff did not secure a
purchaser for the defendant but was instrumental in securing one John Reinmiller to enter
into a contract of option to purchase the said property from the defendant. That said contract
of option of purchase is marked Exhibit A.' Upon these findings the court based its
judgment that the plaintiff is not entitled to recover on the first cause of action, but is entitled
to recover on the second cause of action. The trial court made no finding as to whether or not
Reinmiller had exercised his option, but the evidence clearly shows that he did not. In fact,
there is no contention that he did. The plaintiff sued to recover for services rendered in selling
the property mentioned, and not for services rendered in obtaining one to enter into an option
to purchase.
1, 2. In this case Reinmiller did not bind himself to pay for the property.
54 Nev. 353, 357 (1933) Al Colyer v. Lahontan Mines Co.
pay for the property. All that he obtained was the privilege of becoming the purchaserin
legal effect an optionand the option not having been exercised, the plaintiff has not
complied with the contract sued upon; hence he cannot recover. Had he alleged the granting
of the option, he would be in no better position. Christensen v. Duborg, 38 Nev. 404, 150 P.
306.
What we have said applies to the second as well as to the first cause of action, since it was,
like the first cause of action, to recover for services alleged to have been rendered in selling
the property in question.
Counsel for the plaintiff has filed a lengthy brief citing and quoting from many cases
relative to the right of a broker to recover commission for services rendered in procuring a
purchaser of real property. We do not find so much fault with the rules of law enunciated in
those cases as with their lack of application.
For the reason given the judgment and order appealed from are reversed, and the trial court
is directed to enter judgment dismissing the action at the cost of plaintiff.
____________
54 Nev. 357, 357 (1933) Al Colyer v. Lahontan Mines Co.
AL COLYER, Appellant, v. LAHONTAN MINES
COMPANY, A Corporation, Respondent
No. 2965
January 5, 1933. 17 P.(2d) 699.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Affirmed.
W. M. Kearney, for Appellant.
By the Court, Coleman, J.:
The facts affecting this appeal are stated in the opinion this day filed in the case entitled Al
Colyer, Plaintiff and Respondent, v. Lahontan Mines Company, a Corporation, Defendant
and Appellant (No. 2968) 17 P.(2d) 697.
54 Nev. 357, 358 (1933) Al Colyer v. Lahontan Mines Co.
697. This is the appeal by the plaintiff below from the judgment against him upon his first
cause of action.
The law of the case is established by the opinion in case No. 2968, supra, and upon the
authority of that opinion the judgment appealed from must be affirmed.
It is so ordered.
____________
54 Nev. 358, 358 (1933) Al Colyer v. Lahontan Mines Co.
COLYER v. LAHONTAN MINES COMPANY
Nos. 2965, 2968
On Petition for Rehearing
April 5, 1933. 20 P.(2d) 654.
1. Work and Labor.
Where one employs another to render services, without agreement as to compensation, the law
implies a promise that employer will pay as much as services rendered are worth, and an action to recover for
such services is known as an action on quantum meruit.
2. Brokers.
Provision of memorandum for broker's services that terms of sale should be subject to special
agreement held not to render owner of property liable for commissions, where owner's terms were not agreed
to, and no payment was ever made.
Appeal from Second Judicial District Court, Washoe County; Thomas F. Moran, Judge.
Rehearing denied.
W. M. Kearney, for Al Colyer.
Thatcher & Woodburn, for Lahontan Mines Co.
OPINION
By the Court, Coleman, J.:
In his petition for a rehearing plaintiff asserts that we misconstrued the legal effect as well
as the express wording of the second cause of action alleged in the complaint in this case, and
that we entirely overlooked the admission in the answer of the defendant to the effect that it
expressly admits the services alleged in said cause of action to have been rendered to be
worth the sum of $2,500.
54 Nev. 358, 359 (1933) Al Colyer v. Lahontan Mines Co.
said cause of action to have been rendered to be worth the sum of $2,500.
If such be the fact we are utterly incapable of construing pleadings. The second cause of
action reads:
I
That at the special instance and request of defendant the plaintiff performed services for
the defendant as a broker in finding a buyer for the said defendant's mining property situate in
the Ramsey Mining District, Lyon County, Nevada, described as follows:
All the mines and mining claims, mill and mill sites, water and water rights and pumping
plants and personal property of every kind within, upon or contiguous to any of said mines,
mill sites, water rights and pumping plants on the 6th day of December, 1923, owned by the
said defendant in the Ramsey Mining District, County of Lyon, State of Nevada.
That the plaintiff found a purchaser for the said above described mining property for the
defendant and the said property was sold to one John Reinmiller through the efforts of
plaintiff for the sum of Sixty Thousand Dollars ($60,000.00); that the reasonable value of
said service was and is the sum of Six Thousand Dollars ($6,000.00), no part of which has
been paid and all of which is still due, owing and unpaid from the defendant to the plaintiff
herein notwithstanding demand has been made upon the defendant to pay the same.
II
That according to information and belief at all times herein mentioned the defendant was
and now is a corporation organized and existing under and by virtue of the laws of the State
of Nevada having its principal place of business at Reno, Washoe County, Nevada.
The answer to the second cause of action reads:
Answering Paragraph I of said second cause of action, defendant specifically denies each
and every allegation therein contained.
Answering Paragraph II of said second cause of action, defendant admits the
allegations therein contained."
54 Nev. 358, 360 (1933) Al Colyer v. Lahontan Mines Co.
action, defendant admits the allegations therein contained.
Thus it appears that the allegation of the value of the service, contained in paragraph one
of the second cause of action, is denied in paragraph one of the answer to the said cause of
action.
The petition reads:
In the opinion of the Court * * * the Court say:
The second cause of action is to recover $6,000 on the quantum meruit for the services
rendered in selling the property mentioned.'
That is not the allegation of the complaint in the second cause of action. The allegation is
that:
At the special instance and request of defendant the plaintiff performed services for the
defendant as a broker in finding a buyer for the said defendant's mining property.'