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62 Nev.

1, 1 (1943)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
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VOLUME 62
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62 Nev. 1, 1 (1943) West v. Edwards
FRED D. WEST, An Individual, Doing Business Under the Name and Style of A-1 Service,
Appellant, v. MABEL EDWARDS, Respondent.
No. 3376
March 12, 1943. 134 P.(2d) 932.
1. Landlord and Tenant.
Where lease by which landlord agreed to furnish to tenant free electrical power up to 4,000 watts
stipulated that power service then available and used on premises did not exceed 4,000 watts, it was
intended to limit free service to energy that tenant would use through installations existing when lease was
executed or their equivalent, and not to assure tenant constant flow of free energy equal to 4,000 watts.
2. Landlord and Tenant.
The amount of electrical energy in kilowatt hours to which tenant was entitled free of charge under lease
whereby landlord agreed to furnish power used in existing or equivalent installations up to 4,000 watts
should be computed by multiplying the kilowatt hours consumed by 4,000 over the connected load during
the period measured in watts.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Action by Fred D. West, an individual doing business under the name and styled of A-1
Service, against Mabel Edwards to recover for electrical power furnished defendant in
excess of 4,000 watts, which under terms of lease plaintiff agreed to furnish free of
charge.
62 Nev. 1, 2 (1943) West v. Edwards
Edwards to recover for electrical power furnished defendant in excess of 4,000 watts, which
under terms of lease plaintiff agreed to furnish free of charge. From an adverse judgment,
plaintiff appeals. Judgment reversed with direction to enter judgment for plaintiff in
accordance with opinion.
Milton B. Badt, of Elko, for Appellant.
Gray & Horton, of Ely, for Respondent.
OPINION
By the Court, Orr, C. J.:
This appeal requires a construction of the following provision of a lease entered into by
Fred D. West and one E. Edwards, formerly the husband of the respondent but now deceased,
to wit: It is understood and agreed that the lessor will furnish to said lessee * * * all
necessary light and power up to a maximum of 4,000 watts; it being understood that the
lighting and power service now available and used upon said leased premises does not exceed
4,000 watts, and in the event the lessee makes changes in his present light and power service
that will utilize in excess of 4,000 watts, the lessee will pay to the lessor for such excess
seven and one-half cents (7 1/2) per kilowatt hour; * * *.
Respondent succeeded to the interest of said E. Edwards in said lease, by reason of a
decree of court distributing all the property of said deceased to said respondent as the
surviving wife.
Respondent asserts that the question to be answered in arriving at a proper interpretation of
said lease is: How much electrical energy is the lessee entitled to receiver from the lessor free
of charge before respondent becomes liable to appellant, the lessor, for excess at the rate of
seven and one-half cents per kilowatt hour? This question respondent answers by asserting
that the free power she is entitled to is an amount equal to 4,000 watts flowing through
the wires for every minute of every hour of every day of the month.
62 Nev. 1, 3 (1943) West v. Edwards
question respondent answers by asserting that the free power she is entitled to is an amount
equal to 4,000 watts flowing through the wires for every minute of every hour of every day of
the month. The trial court considered such to be the proper solution, and stated its position in
the following language: That the statements made (referring to the paragraph of the lease
quoted supra) mean that the lessee may use all the electricity she may want, but should the
lessee use electricity in excess of a steady flow of electricity amounting to more than 4,000
watts she would be required to pay for the same at the rate of seven and one-half cents per
kilowatt hour.
In order to properly appraise what the parties had in mind when the term 4,000 watts
used in the paragraph quoted supra was incorporated therein, a consideration of the situation
of the parties as it existed at the time is necessary. The leased premises are situated at West
Wendover, Elko County, Nevada and the electricity used in the business, which prior to the
execution of the lease had been conducted by appellant, was generated upon the premises. No
meters were installed at the time. From a reading of the record it appears that no knowledge
of the actual amount of energy consumed, that is as measured in kilowatt hours, was had by
the parties. However, it is apparent that appellant and respondent were aware of the then
existing installations which consumed electrical energy; also they were aware of the amount
of power, as defined in watts, which was connected up. In view of the stipulation in the
paragraph of the lease quoted supra, namely: It being understood that the lighting and power
service now available and used upon said leased premises does not exceed 4,000 watts, it
would seem unreasonable to suppose that the parties were referring to a use of the available
power for every minute of every hour of every day in the month; that necessarily would have
been the situation if the parties had in mind the construction which respondent gives the
lease, because they speak of the available power being used.
62 Nev. 1, 4 (1943) West v. Edwards
which respondent gives the lease, because they speak of the available power being used. We
cannot reasonably assume that the electric energy was flowing into the consuming fixtures in
such a constant and uniform manner. This appeals to us as being a rather convincing
circumstance in favor of the construction that the parties were dealing with connected power
or installations rather than energy which was being used. It is a fair deduction from the
evidence that the parties, by agreeing to the phrase 4,000 watts as used in the lease, took the
amount of watts represented by each installation and totaled them; for example, let us say
they found a globe of 100 watts installed, another one of 50 watts, and a kitchen range of
several hundred watts, etc., the grand total of which equaled 4,000 watts connected up to the
wires which ran from the dynamo to the different rooms and places where lights and energy
were used. The lessor, as well as the lessee, knew or were in a position to know the
approximate amount of time the different installations were in use; that certain lights would
only be used for a certain period of time, and that energy connected up to machinery would be
in operation for a limited period during any twenty-four hours. No way existed of determining
how much electrical energy, as measured in kilowatt hours, was ordinarily used during a
twenty-four-hour period. But having in mind the power connected up and how it would
ordinarily be used during each day, the lessor expressed a willingness to furnish the electricity
that would take care of the then existing installations, and agreed to keep available an amount
of power necessary to operate those installations and fixtures for the time that they would
ordinarily and reasonably be used, and to do so without cost. The parties unquestionably
understood that the business conducted by the lessee would increase, and being so advised,
they further understood that an increase in business would require more lighting facilities or
other power-consuming instrumentalities, and consequently the amount of energy needed
would be greater.
62 Nev. 1, 5 (1943) West v. Edwards
would be greater. The appellant sought to protect himself in furnishing an anticipated greater
consumption, by providing that such an increase would be charged for at seven and one-half
cents per kilowatt hour.
1. In arriving at an answer to the question as to the amount of electricity respondent was to
be allowed to use free of charge, we are convinced the intention of the parties was to limit it
to the electrical energy which the respondent would use through the installations existing at
the time the lease was executed, or their equivalent, and that the charge of seven and one-half
cents per kilowatt hour would be for the energy used in installations in excess thereof. The
installations existing at the time of the execution of the lease represented the connected load
at that time.
As anticipated by the parties, the business expanded, and new installations were required
and made, which increased the connected load from 4,000 to 17,473 watts, an increase of
13,473 watts. Mr. Lundergreen, an expert witness, testified that the load factor would be
constant.
The greatest difficulty we have encountered in considering this appeal is the correct
manner of arriving at the ration of electrical energy used in the installations representing
4,000 watts and that used by the increased connected load of 13,473 watts. In the final
analysis we find in the record on this point the testimony only of witnesses produced by
appellant. Respondent's theory of the case being entirely different, no attempt was made by
her to offer proof on this question.
2. Meters were installed, and for the period involved in this suit 30,154 kilowatt hours of
energy were used. In arriving at the amount of free power in kilowatt
4,000
hours the lessee was entitled to without charge,
______

17,473
of 30,154 is the formula deduced from the testimony given by appellant's witnesses; from this
the figure of 6,902 kilowatt hours is obtained as the amount of free power;
62 Nev. 1, 6 (1943) West v. Edwards
power; deducting this from the 30,154 kilowatt hours actually consumed leaves a balance of
23,252 kilowatt hours to be paid for at the rate of seven and one-half cents per kilowatt hour,
which establishes an indebtedness due from respondent for excess power of $1,743.90;
deducting from this the slot machine balance of $777.65 shown in the findings, and also
credit by check of $130, leaves a balance of $836.25 due from respondent to appellant.
The judgment of the lower court is reversed and it is directed to enter a judgment in favor
of appellant in accordance with the views herein expressed.
On Petition for Rehearing
April 21, 1943.
Per Curiam:
Upon petition of respondent, and good cause appearing therefor, it is hereby ordered that
the petition for rehearing in the above-entitled cause be, and the same is hereby granted; the
time for such rehearing is hereby set for Saturday the 15th day of May 1943 at the hour of 10
o'clock a. m. The rehearing will be confined to the question of the jurisdiction of this court to
hear and determine the appeal from the judgment entered in said cause, and in the event it is
found that this court was without such jurisdiction, then, in such an event, whether the order
of this court should have been limited to ordering a new trial.
On Rehearing
July 12, 1943. 130 P.(2d) 1022.
1. Appeal and Error.
An exception was made to the general rule against granting rehearings on points raised
for the first time in petition for rehearing, where such petition questioned jurisdiction of
supreme court to entertain the appeal.
2. Landlord and Tenant.
Defendant in action of unlawful detainer may file a cross-complaint demanding a
money judgment in order that entire controversy between the parties may be determined
in one action.
62 Nev. 1, 7 (1943) West v. Edwards
3 Landlord and Tenant.
Appeal from money judgment rendered on cross-complaint filed in action of unlawful
detainer was governed by provisions of civil practice act allowing six months to appeal
from a judgment and not by provisions of unlawful detainer statute. Comp. Laws, secs.
9132-9152, 9135, subd. 5, 9148.
4. Landlord and Tenant.
Appeal from money judgment rendered on cross-complaint filed in action of unlawful
detainer, which appeal was taken 74 days after filing of district court's decision and 21
days after signing and filing of formal judgment of district court, was taken in time.
Comp. Laws, secs. 9132-9152.
5. Landlord and Tenant.
Where amount of money judgment to which landlord was entitled depended on
construction of lease provision whereby landlord agreed to furnish electric power not to
exceed 4,000 watts free of charge to tenant, supreme court without ordering a new trial
could dispose of landlord's appeal from judgment awarding an amount less than that
demanded by directing entry of judgment for amount found due upon construction of
lease.
Former opinion affirmed.
Milton B. Badt, of Elko, for Appellant.
Gray & Horton, of Ely, for Respondent.
OPINION
By the Court, Orr, C. J.:
In granting a rehearing in this case we limited it to a consideration of the question of
whether or not this court had jurisdiction to determine the appeal from the judgment entered
in the trial court, and in the event we determined that we had, then whether the order made in
the original opinion should have been limited to ordering a new trial.
1. In the petition for rehearing respondent for the first time questioned the jurisdiction of
this court to entertain the attempted appeal from the judgment entered in the trial court.
Respondent was permitted to do this as an exception to the well-established rule against
granting rehearings on points then raised for the first time, because of the raising of a
jurisdictional point.
62 Nev. 1, 8 (1943) West v. Edwards
against granting rehearings on points then raised for the first time, because of the raising of a
jurisdictional point. The contention of lack of jurisdiction is based upon the ground that the
action was one of unlawful detainer under paragraph 5 of section 9135 N. C. L. 1929, and
such being the case, the time for taking an appeal from the judgment is governed by section
9148 N. C. L. 1929, the same being section 659 of the civil practice act, which provides, in
part: Either party may, within ten days, appeal from the judgment rendered. * * *
The appeal in this case was taken seventy-four days after the filing of the decision
rendered by the district court, and twenty-one days after the signing and filing of the formal
judgment of the district court.
The original complaint establishes the action, at first instituted, to be one of unlawful
detainer, and it is governed by chapter 65 of the civil practice act, Comp. Laws, secs.
9132-9152, wherein its provisions are inconsistent with the other provisions of the civil
practice act. Roberts v. District Court, 43 Nev. 332, 185 p. 1067.
2. Respondent filed a cross-complaint demanding a money judgment. Such practice is
permitted in this state in order that an entire controversy between the parties may be
determined in one action. Yori v. Phenix, 38 Nev. 277, 149 P. 180.
The trial court rendered judgment in favor of respondent on his cross-complaint, in the
sum of $732.41, and also ordered that appellant take nothing.
3, 4. Appellant urges that the appeal from the money judgment rendered is not governed by
the provisions of the unlawful detainer statutes, but is governed by the provisions of the civil
practice act allowing six months to appeal from a judgment. In this contention we think
appellant is correct. By failing to perfect his appeal within ten days appellant waived the right
to have the judgment, insofar as it denies relief in restitution of the property and related
subjects, reviewed. In an appeal from a money judgment we find none of the reasons
requiring haste and summary action,
62 Nev. 1, 9 (1943) West v. Edwards
reasons requiring haste and summary action, which are so important in unlawful detainer
proceedings. The mere fact that such a judgment is given in an action where unlawful
detainer is also involved does not change its character or statutory classification, insofar as
time given in which to appeal is concerned. The appeal from the money judgment was in
time.
5. This case can and should be disposed of without ordering a new trial.
The order of this court, entered in the original opinion, reversing the judgment of the trial
court awarding respondent a money judgment will stand, and the trial court is directed to
enter a judgment in favor of appellant in the sum of $836.25. This amount is for excess power
furnished by appellant to respondent under the terms of the contract referred to and construed
in the original opinion of this court.
In all other respects the appeal from the judgment is dismissed.
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62 Nev. 10, 10 (1943) In Re Powell's Estate
In the Matter of the Estate of HARRY F. POWELL, Sometimes Known as and Called H. F.
POWELL, Deceased.
JANIE McALLISTER, as Administratrix with the Will Annexed of the Estate of Florena J.
Powell, Deceased, Appellant, v. GEORGE A. MONTROSE, as Administrator of the
Estate of Harry F. Powell, Sometimes Known as and Called H. F. Powell, Deceased,
Respondent.
No. 3387
April 1, 1943. 135 P.(2d) 435.
1. Appeal and Error.
Where appellant served and filed a proposed bill of exceptions but was unable to obtain any settlement
thereof by court, there was no bill of exceptions before supreme court on appeal, and certified copy of
proposed bill of exceptions attached as exhibit to transcript on appeal constituted no part of the judgment
roll. Comp. Laws, secs. 9385.81, 9385.82, 9385.86.
2. Appeal and Error.
Where lower court unlawfully refuses to settle a proposed bill of exceptions, the appellant has his remedy
in the supreme court and his time for filing transcript on appeal may be extended for purpose of enabling
him to pursue such remedy.
3. Appeal and Error.
Even if respondent failed to file objections to appellant's proposed bill of exceptions, the proposed bill of
exceptions did not ipso facto become a bill of exceptions for purpose of appeal where the proposed bill had
not been settled and allowed as required by statute. Comp. Laws, secs. 9385.81, 9385.82, 9385.86.
4. Appeal and Error.
Failure of trial judge of his own motion to settle a bill of exceptions, where there is a failure of
respondent to file objections to the proposed bill, does not of itself operate to make the proposed bill one
which can properly constitute a part of the record on appeal, but appellant's remedy is in the supreme court
to compel the trial judge to act. Comp. Laws, secs. 9385.81, 9385.82, 9385.86.
5. Executors and Administrators.
An appeal may be taken on judgment roll from an order directing or authorizing the sale or conveyance
or confirming sale of property by an administrator, notwithstanding the absence of a bill of
exceptions.
62 Nev. 10, 11 (1943) In Re Powell's Estate
absence of a bill of exceptions. Comp. Laws, secs. 9882.293, 9882.294.
6. Executors and Administrators.
On hearing of petition by administrator for sale of estate property, the burden is on administrator to show
necessity for sale, and, where allegations of petition regarding necessity are denied, it is incumbent on
administrator to establish them by evidence. Comp. Laws, secs. 9882.290, 9882.293, 9882.294.
7. Executors and Administrators.
Where administrator's petition for sale of estate property was not supported by evidence, action of court
in granting petition and making order for sale was not merely erroneous but was void, and therefore the
district court had jurisdiction to vacate the order of sale after, as well as before, appeal had been taken from
the order. Comp. Laws, secs. 9882.290, 9882.293, 9882.294.
8. Executors and Administrators.
Where order granting administrator's petition for sale of estate property was not supported by evidence,
but, where the order had been regularly vacated after appeal had been taken therefrom, the appeal was
required to be dismissed since there was no longer anything on which the appeal could operate. Comp.
Laws, secs. 9882.290, 9882.293, 9882.294.
Appeal from First Judicial District Court, Lyon County; Clark J. Guild, Judge.
Proceedings in the matter of the estate of Harry F. Powell, sometimes known as and called
H. F. Powell, deceased, wherein George A. Montrose, as administrator of the estate of Harry
F. Powell, filed a petition for an order of sale of property to which Janie McAllister, as
administratrix with will annexed of the estate of Florena J. Powell, deceased, filed opposition.
From an order granting the petition, the opponent appeals. On motion to strike the bill of
exceptions from the record on appeal and on motion to dismiss the appeal. Proposed bill of
exceptions ordered stricken from the record on appeal, and appeal dismissed.
John V. Copren, of San Francisco, Calif., and Arthur A. Platz, of Reno, for Appellant.
John R. Ross and George L. Sanford, both of Carson City, for Respondent.
62 Nev. 10, 12 (1943) In Re Powell's Estate
OPINION
By the Court, Taber, J.:
Respondent is administrator of the estate of Harry F. Powell, who died intestate in
February 1936, being, at the time of his death, a resident of Lyon County. His sole heir was
his widow, Florena J. powell. She died some time after the death of her said husband, and
appellant was appointed administratrix with the will annexed of her estate.
On October 14, 1942, said administrator filed in the First judicial district court, Lyon
County, his petition for an order of sale of real and personal property belonging to the estate
of said Harry F. Powell. On November 10, 1942, written opposition to the granting of said
petition was filed in said district court by appellant. Upon hearing the petition the district
court, on November 10, 1942, written opposition to the granting of said petition was filed in
said district court by appellant. Upon hearing the petition the district court, on November 10,
1942, overruled the objections to the granting of the petition and ordered the property sold as
prayed therein. Notices of the proposed sale were posted on said 10th day of November.
On November 27, 1942, appellant filed and served her notice of appeal from said order of
sale and order overruling her objections to said petition, and on the same date filed her
undertaking on appeal. On December 22, 1942, this court made an order extending appellant's
time to serve and file transcript and record on appeal to and including January 2, 1943. Said
order extending time contains the following provision: The above order is made over the
objection of attorneys for respondent and with the express understanding that respondent
waives no right he may have to move the dismissal of said appeal. The transcript on appeal
was filed on said 2d day of January 1943.
On January 7, 1943, in this court, respondent noticed two motions, one to strike the bill of
exceptions from the record on appeal, and the other to dismiss the appeal.
62 Nev. 10, 13 (1943) In Re Powell's Estate
appeal. It is these motions which are now before this court for its determination.
The transcript or record on appeal, except for the caption and index, consists of the
following papers only: (1) Said petition for order of sale; (2) order to show cause; (3)
opposition of administratrix to the granting of said petition; (4) order of sale; (5) district court
minutes of November 10, 1942; (6) notice of sale, with affidavit of posting attached; (7)
notice of appeal, with proof of service of same; (8) undertaking for costs on appeal; (9)
district court clerk's certificate to transcript on appeal; (10) exhibit A, being certified copy
of letters of administration with the will annexed in the matter of the estate of Florena J.
Powell, deceased; (11) exhibit B, being certified copy of proposed bill of exceptions; (12)
proof of service of transcript on appeal and exhibits.
Respondent's motion to strike the bill of exceptions is based upon the ground that the bill
has not been prepared, approved, settled, allowed, and filed as required by law, and in
particular by sec. 31 of the 1937 new trials and appeals act (Stats. of Nevada 1937, chap. 32,
p. 53, at pp. 63-65, sec. 9385.81, 1931-1941 Supplement to N. C. L. 1929). Appellant
contends: (a) That she served and filed a proper proposed bill of exceptions but was unable to
obtain any settlement thereof by the court, and as her time for filing the transcript on appeal
was about to expire, she attached thereto as an exhibit a certified copy of the proposed bill of
exceptions which had been served and filed; (b) that if the proposed bill of exceptions did not
correctly set forth a true statement of the facts and matters involved, respondent, under the
provisions of sec. 32 of said act (secs. 9385.82, 1931-1941 Supplement to N. C. L. 1929),
was required to file objections to the proposed bill, and having failed to do so waived his
right to make such objections, under the express provisions of sec. 36 of said act, being sec.
9385.86 of the 1931-1941 Supplement to N. C. l. 1929;
62 Nev. 10, 14 (1943) In Re Powell's Estate
(c) that by reason of respondent's failure to file such objections, the district court had the
power and it was its duty to settle the bill of exceptions on its own initiative.
1. We think it clear, from our statutes and previous decisions of this court, that there is no
bill of exceptions before us on this appeal, and it is equally clear that the certified copy of
proposed bill of exceptions attached as an exhibit to the transcript on appeal constitutes no
part of the judgment roll.
2. Appellant's alleged inability to obtain settlement of the bill of exceptions by the lower
court does not appear in any of the papers making up the judgment roll. But even if the lower
court had unlawfully refused to settle the bill, appellant would have had his remedy in this
court, and his time for filing the transcript on appeal would have been extended for the
purpose of enabling him to pursue such remedy.
3. It does not appear from the judgment roll that respondent failed to file objections to the
proposed bill of exceptions. But if respondent did so fail, the proposed bill did not ipso facto
become a bill of exceptions for purposes of the appeal; it was still necessary that the bill be
settled and allowed as required by statute.
4. There is no statutory provision, nor has appellant cited any authority to sustain her
contention that it was the duty of the trial judge to settle the bill of exceptions on his own
initiative. Furthermore, there is no bill of exceptions and nothing in the judgment roll upon
which to base the presentation of such a contention. Again, even if it were the law that the
trial judge must of his own motion settle a bill of exceptions where there is a failure to file
objections to the proposed bill, there is no statute, nor has any authority been cited, to show
that his failure to do so would of itself operate to make the proposed bill one which could
properly constitute a part of the record on appeal. Appellant's remedy would be in this court,
to compel the trial judge to act.
62 Nev. 10, 15 (1943) In Re Powell's Estate
5. Notwithstanding the absence of a bill of exceptions, an appeal may be taken on the
judgment roll from an order directing or authorizing the sale or conveyance or confirming the
sale of property. 1941 Estate of Deceased Persons Act, secs. 293, 294, being secs. 9882.293
and 9882.294 of the 1931-1941 Supplement to N. C. L. 1929. But respondent contends that
the appeal herein should be dismissed because all matters in controversy in the district court
proceeding and on this appeal have become abstract or moot; and for the further reasons that
the appeal is frivolous in that the district court order of November 10, 1942, was vacated by
that court on December 16 of the same year; that said order of December 16 vacating the
previous order of sale was granted upon petition filed, notice given to all interested parties,
and a hearing in open court, and that there is no such order in effect or existence as that of
November 10, 1942, from which the appeal purports to have been taken.
In her written opposition to administrator's petition for order of sale, administratrix denied
that there was any necessity for the sale of estate's property, either real or personal, denied
that it was necessary or proper to make any immediate repairs on ditch or dam as alleged in
the petition, and denied that such repairs as might be necessary would be expensive. She
averred that the petition did not set forth facts showing the necessity for the sale of any of the
property, and that the administrator had in his possession sufficient money to pay all the bills
and expenses of administration.
The petition and the written opposition thereto raised issues of fact. Sec. 290 of the 1941
estates of deceased persons act (sec. 9882.290 of the 1931-1941 Supplement to N. C. L.
1929) provides that all issues of fact in matters of an estate shall be disposed of in the same
manner as is by law provided upon the trial of issues of fact in a common law action. It is
conceded by the respective parties that upon the hearing of the petition for order of sale no
testimony was offered or evidence given in support of either the petition or administratrix's
opposition thereto.
62 Nev. 10, 16 (1943) In Re Powell's Estate
given in support of either the petition or administratrix's opposition thereto.
Appellant contends that the action of the trial court in making the order of sale was
erroneous, but not void, and that therefore said court was without jurisdiction, in December
1942, to vacate said order, for the reason that her appeal taken in November 1942 divested
that court of any further jurisdiction with respect to the order of November 10.
6-8. At the hearing of the petition for order of sale testimony should have been offered, or
other evidence given, so that the court could be satisfied by proof that facts and circumstances
existed which required a sale of the property. Fridley v. Murphy, 25 Ill. 146. Upon the hearing
of a petition by an administrator for the sale of estate property, the burden is upon him to
show the necessity for such sale; and where, as here, the allegations of the petition as to such
necessity were denied, it was incumbent upon petitioner to establish them by evidence.
Without any testimony or other evidence whatsoever there was nothing to support an order of
sale, so the action of the court in granting the petition and making the order was not merely
erroneous, but void. Such being the case, the district court had jurisdiction to vacate said
order of sale after, as well as before, administratrix had taken her appeal. The order vacated
was the same as that from which administratrix has appealed, but as it was void and has been
regularly vacated, there is no longer anything upon which the appeal can operate.
The proposed bill of exceptions is ordered stricken from the record on appeal, and the
appeal is dismissed.
____________
62 Nev. 17, 17 (1943) State v. Loveless
THE STATE OF NEVADA, Respondent, v.
FLOYD LOVELESS, Appellant.
No. 3385
April 21, 1943. 136 P.(2d) 236.
1. Homicide.
The statute requiring a jury finding a person guilty of murder to designate degree of murder manifested
an intent to require the jury to designate the degree of the crime, and under the statute, a verdict failing to
designate the degree of murder of which jury found accused guilty is so fatally defective that no judgment
or sentence can be pronounced thereon. Comp. Laws, sec. 10068.
2. Homicide.
Where verdict that jury found accused guilty as charged in the information did not designate the degree of
murder found, and information was as good for murder of the second as for murder of the first degree,
reference to the information, if permissible, would not make the intention of the jury certain so that
judgment could be rendered upon verdict. Comp. Laws, sec. 10068.
3. Homicide.
Where verdict that jury found accused guilty as charged in the information did not make required
designation as to the degree of murder found, supreme court was not authorized to consider both the
verdict and the information to determine the degree of murder of which jury intended to find accused guilty
so that judgment could be entered upon verdict. Comp. Laws, sec. 10068.
4. Homicide.
Under statute requiring a jury finding an accused guilty of murder to designate whether it be murder of
the first or second degree, it is not permissible to consider the indictment or information, the instructions,
or the evidence in interpreting a verdict which does not unequivocally declare the degree of murder found.
Comp. Laws, sec. 10068.
5. Statutes.
The supreme court should not speculate beyond the reasonable import of the words of a statute.
6. Homicide.
Fault of verdict finding accused guilty of murder in that the degree of the crime found was not designated
could not be waived by accused. Comp. Laws, sec. 10068.
7. Homicide.
A verdict finding accused guilty of murder, but failing to contain required designation of the degree of
the crime found, was deemed excepted to and was reviewable by the supreme court. Comp. Laws, secs.
10068, 11027.
62 Nev. 17, 18 (1943) State v. Loveless
8. Criminal Law.
No duty rests upon an accused in a criminal action to have corrected a faulty verdict returned against him,
and he is not called upon to make certain that he is legally convicted.
9. Criminal Law.
It is the duty and province of the courts to keep strict watch over and to protect fundamental rights in all
matters that come before them.
10. Criminal Law.
While generally consideration of the appellate court will be confined to the errors assigned and argued,
where a jurisdictional or other fundamental error of law is apparent on the face of the record itself, such
error may be considered though it is not assigned.
11. HomicideJury.
Under statute requiring that a jury finding an accused guilty of murder to designate whether it be of the
first or second degree, a mere matter of procedure is not prescribed but the statute is a substantive law
commanding an unequivocal act of the jury as a part of the trial of one charged with murder, and if the
directed duty is not performed, accused has not had the benefit of a trial by jury which he cannot waive
as to an essential part. Comp. Laws, sec. 10068.
12. Jury.
The right to a jury trial cannot be waived in a felony case so long as accused has joined issue on the
charge.
13. Homicide.
Where jury finding an accused guilty of murder fails to designate the degree of the crime, the trial court
has no jurisdiction to pronounce sentence. Comp. Laws, sec. 10068.
14. Homicide.
Where verdict found accused guilty of murder but failed to make required designation of degree of crime
found, the verdict was void and accused's alleged consent to or waiver thereof could not restore vitality to
the verdict. Comp. Laws, sec. 10068.
15. Homicide.
The facts necessary to show guilt in a murder case as well as the degree of guilt must be judicially
ascertained in the mode prescribed by law before judgment can be rendered, and it is not within the power
of the accused or his counsel to consent to another mode.
16. Constitutional Law.
That which the law makes essential in proceedings involving the deprivation of life or liberty cannot be
dispensed with or affected by the consent of the accused.
17. Constitutional Law.
The rights guaranteed to one accused of crime in which the state as well as accused is interested cannot
be waived by accused,
62 Nev. 17, 19 (1943) State v. Loveless
accused, but those which are personal to accused and which are in the nature of personal privileges may be
waived by accused.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Floyd Loveless was convicted of murder, and he appeals. Reversed, verdict set aside,
and cause remanded for new trial.
Alan Bible, Attorney-General, W. T. Mathews and Geo. P. Annand, Deputy
Attorneys-General, George F. Wright, District Attorney of Elko County, and A. L. Puccinelli,
former District Attorney of Elko County, for Respondent.
Taylor H. Wines, of Elko, for Appellant.
OPINION
By the Court, Ducker, J.:
The defendant was informed against and tried in the district court of the Fourth judicial
district of Elko County, for the murder of A. H. Berning. The jury returned a verdict as
follows: We, the jury impaneled and sworn to try the above entitled case, do hereby find the
defendant, Floyd Loveless, guilty as charged in the Information.
Upon this verdict the court pronounced judgment of death against the defendant. He has
appealed from this judgment. After the appeal was argued and submitted in this court, the
question of the effect of the verdict upon the judgment was suggested by this court. The case
was reopened and reset for argument and briefs were called for from the respective parties on
the point, which briefs have been furnished and oral argument heard.
It will be observed that the verdict does not designate the degree of the crime found.
62 Nev. 17, 20 (1943) State v. Loveless
the degree of the crime found. By section 121 of an act concerning crimes and punishments
(section 10068 Nev. Comp. Laws 1929) it is provided: All murder which shall be
perpetrated by means of poison, or lying in wait, torture, or by any other kind of wilful,
deliberate and premeditated killing, or which shall be committed in the perpetration, or
attempt to perpetrate, any arson, rape, robbery, or burglary, * * * shall be deemed murder of
the first degree; and all other kinds of murder shall be deemed murder of the second degree;
and the jury before whom any person indicted (or informed against) for murder shall be tried,
shall, if they find such person guilty thereof, designate by their verdict whether it be murder
of the first or second degree; but, if such person shall be convicted on confession in open
court, the court shall proceed, by examination of witnesses, to determine the degree of the
crime, and give sentence accordingly.
1. By reason of this statute is the verdict so fatally defective that no judgment could be
rendered on it? We are of the opinion that it is. The statute leaves no room for doubt or
speculation as to its intent and purpose to require the jury to designate by their verdict the
degree of the crime. This duty imposed by statutory mandate of unequivocal meaning was
disregarded by the jury. They returned a verdict, which, even though we were permitted to go
to the information in an attempt to ascertain their intention, would still be equivocal. But the
question is not an open one in this jurisdiction. In State v. Rover, 10 Nev. 388, 21 Am. Rep.
745, it was decided that a judgment of death based on such a verdict was not warranted. The
facts in that case were the same as in the instant case. In that case the defendant was indicted
and tried for murder. The jury returned a general verdict as follows: We, the undersigned
jurors in the case of the State of Nevada against J. W. Rover, defendant, indicted for the
murder of I. N. Sharp, do find the said defendant guilty as charged.
62 Nev. 17, 21 (1943) State v. Loveless
The court, after quoting the above section, said: By this statute, murder is divided into
first and second degrees, depending upon the particular circumstances in which the crime is
committed, and whether it be of the first or second degree is a fact to be specially found from
the evidence adduced, without reference to any special facts which may be stated in the
indictment. In case of a trial, the jury before whom the trial is had, if they find the defendant
guilty, are required to find this fact, and to designate by their verdict whether the guilt be of
the first or second degree; and in case of a plea of confession, the court is required to
determine this question of fact by the examination of witnesses in open court. It is, therefore,
apparent, from the plain and positive provisions of the statute, that a verdict which fails to
designate the degree of murder of which the jury find the defendant guilty, is so fatally
defective that no judgment or sentence can be legally pronounced thereon.
This rule was followed in State v. Lindsey, 19 Nev. 47, 5 P. 822, 3 Am. St. Rep. 776, and
has not been overruled or modified. The court in State v. Rover, supra, declared that its
interpretation of the statute was not only in accord with its plain and positive language, but
was supported by a long train of decisions in other states having statutes the provisions of
which are similar to ours, quoting from some, and citing many.
In Bishop's New Criminal Procedure, vol. 3, 2d Ed., section 595, appears the following;
That the verdict is imperfect and void,when silent as to the degree, is the doctrine of the
great majority of the authorities, and probably the most in harmony with the reason of the
thing; namely, that the legislature intended this provision to be mandatory to make sure of the
jury's taking into their special consideration the distinguishing features of the degrees, and
passing thereon. Therefore, if the verdict fails to state on its face the degree, the court cannot
give judgment on it, but must award a second trial.
62 Nev. 17, 22 (1943) State v. Loveless
See note 77 at the bottom of the page for long list of citations in support of the text, among
which appears State v. Rover. As of the same effect are the following recent decisions: Jones
v. State (Ark.), 161 S. W. 2d 173; Wilson v. State, 129 Fla. 891, 176 So. 845; Kent v.
Lauthers, 95 W. Va., 245, 120 S. E. 598; Orner v. State, 65 Tex. Cr. R. 137, 143 S. E. 935.
In an earlier case the supreme court of California in conformity with its former decisions
held invalid a verdict which did not specify the degree of murder, and reversed the judgment
and order refusing a new trial. The Attorney-General confessed error. People v. O'Neil, 78
Cal. 388, 20 P. 705.
Counsel for the state insist that the information charges murder of the first degree, and
contend that as the verdict finds the defendant guilty as charged in the information, it is thus
made certain that the jury intended the first degree in their verdict. The information charges in
substance, that the defendant * * * did then and there, wilfully, unlawfully, feloniously, with
malice aforethought, and with intent then and there to kill one A. H. Berning, shoot, etc.
2. We will concede that the information is sufficient to support a verdict of murder of the
first degree, but it was as good for murder of the second degree as the first degree. So a
reference to it, if it were permissible, would not make the intention of the jury certain.
3. But intention is beside the question. A fact, by statute made essential to the efficacy of
the judgment, is missing from the verdict and cannot be imported into it by reference to the
information or by conjecture or anything of the kind. The contention that the court is
authorized in this case to take into view both the verdict and the information to determine the
degree of which the jury intended to find the defendant guilty, was denied in State v. Rover
supra, as contrary to the plain language and spirit of the act. On this point the court further
said: * * * in our opinion, the court is not authorized,
62 Nev. 17, 23 (1943) State v. Loveless
authorized, in any case, to refer to the indictment in order to determine the degree of murder
of which the jury find the accused guilty; but on the contrary, that the true intent and purpose
of the act were to impose upon the jury the duty of designating by their verdict, distinctly and
unequivocally, the degree of the crime, and not leave it to be inferred or conjectured
therefrom. It therefore follows that the verdict is fatally defective, and for that reason the
judgment of the district court should be reversed.
This is a sound ruling and states the law of the present case. We are aware that there are a
few cases which hold, on statutes similar to ours, that it is permissible to take into
consideration the indictment or information, the instructions, and even the evidence in
interpreting a verdict which does not unequivocally declare the degree found. We do not
agree with them.
4, 5. When an indictment or information is good for either murder of the first or second
degree, it furnishes no aid whatever in the interpretation of a verdict that does not designate
the degree, and a presumption against a defendant from such a source presumes against
human life instead of in favor of it. The instructions and evidence are equally fallible in this
respect. It is a fact that juries, out of charity for the faults and weaknesses of the human race,
sympathy for the prisoner, or other mistaken view of the law or facts, often lessen the offense
of murder of the first degree to second degree, and often a verdict is a compromise of
opinion, State v. Lindsey, supra,frequently instructions are disregarded. However, the plain
and positive language of our statute forbids such unprofitable speculation. We believe that it
means what it says, and decline to go afield searching for another meaning. As was said in
Los Angeles v. District Court, 58 Nev. 1, 67 P.2d 1019, we should not speculate beyond the
reasonable import of the words of a statute.
6-8. But the state's main contention is that the defect of the verdict was waived because
the defendant did not object to it,
62 Nev. 17, 24 (1943) State v. Loveless
defect of the verdict was waived because the defendant did not object to it, made no motion
in arrest of judgment, or for a new trial, and not assign it as error in this court. Hence, say
counsel for the state, the judgment must stand as pronounced, and execution done
accordingly. We are not persuaded to this view, and are of the opinion that the fault of the
verdict is of such a nature that it could not be waived. We may note in passing that it is not
correct to say that no objection was taken to the verdict. It was deemed excepted to. Section
11027 N. C. L. No duty rests upon a defendant in a criminal action to have corrected a faulty
verdict returned against him. He is not called upon to make certain that he is legally
convicted.
9. We raised the question of its validity of our own accord because of our opinion, which
is quite generally shared, that it is the duty and province of the courts to keep strict watch
over and protect fundamental rights in all matters that come before them. State v. Holt, 90 N.
C. 749, 47 Am. Rep. 544; Vogel v. State, 124 Fla. 409, 168 So. 539; Wells v. State, 193 Ark.
1092, 104 S. W. 2d 451, 452.
10. In Vogel v. State, supra, the judgment was reversed because of a defective verdict. No
advantage was sought to be taken of the verdict when it was returned, and no exception noted.
The court said: It is well settled in this jurisdiction that: While, generally speaking, the
consideration of the appellate court will be confined to the errors assigned and argued by the
plaintiff in error; yet, to this rule there are certain exceptions. Where a jurisdiction or other
fundamental error of law is apparent on the face of the record itself, such error may be
considered by the appellate court, though it is not assigned.'
A judgment of death was reversed in Wells v. State, supra, because on a plea of guilty the
court instructed the jury that it was to determine only defendant's punishment, so the jury
failed to find the degree of crime, as required by statute,
62 Nev. 17, 25 (1943) State v. Loveless
as required by statute, though error in instruction and defectiveness of verdict were not raised
by defendant, but by the court on its own motion. Referring to a former decision of the court
it was said: The judgment was reversed for the same reason, that the jury failed to find the
degree of the crime, without the question having been raised by counsel on appeal to this
court. It was reversed on the court's own motion and the fact that this opinion was not
officially reported shows how thoroughly the question is considered settled by this court.
Continuing, the court said: So in this case, the error in the instructions and the
defectiveness in the verdict have not been raised by appellant, but we do so of our own
motion, because the instructions given were erroneous and the verdict rendered so defective
that no valid judgment could be rendered thereon.
11-13. It is not a mere matter of procedure that the legislature has prescribed, but a
substantive law commanding an unequivocal act of the jury as a part of the trial of one
charged with murder. If this duty is not performed as directed the accused has not had the full
benefit of a jury trial. The fundamental right to a jury trial cannot be waived in a case
amounting to a felony so long as the accused has joined issue on the charge. If he cannot
waive it as a whole, does it not logically follow that he cannot waive an essential part of it?
And is not the designation of the degree of guilt in a murder trial as indispensable as a finding
of guilt in general? It is the same in quality though different in degree. The right accorded him
in such a case is the right to have the jury pass upon the whole issue. His right to have the
jury determine and designate the degree of guilt is highly important because the issue of life
or death is involved in it. The statute commands them to do so and to register their action in
their verdict in such a way that there can be no mistake about it. When this is done there is no
chance for a court to pronounce a judgment of death on a void verdict, as was done here.
62 Nev. 17, 26 (1943) State v. Loveless
judgment of death on a void verdict, as was done here. When it is not done the court has no
jurisdiction to pronounce sentence.
The court said, in State v. Lindsey, supra [19 Nev. 47, 5 P. 823, 3 Am. St. Rep. 776]: A
verdict finding the prisoner guilty of murder, without mentioning the degree, would be a
nullity.
14, 15. How consent or waiver can restore vitality to a verdict that has no legal effect, and
thereby transform it into a valid basis for a sentence of death, is not discernible. Nor has the
state's counsel suggested any theory to convince us that such a miracle can be worked. The
facts necessary to show guilt in a murder case, as well as the degree of guilt, must be
judicially ascertained in the mode prescribed by law before any judgment can be rendered. It
is not within the power of the accused, or his counsel, to consent to another mode.
16. On the authority of Balckstone, Mr. Justice Harlan, in his dissenting opinion in Schick
v. United States, 195 U. S. 65, 84, 24 S. Ct. 826, 833, 49 L. Ed. 99, 1 Ann. Cas. 585, stated
the principle applicable here.
The natural life, he said, cannot legally be disposed of or destroyed by any individual,
neither by the person himself, nor by any other of his fellow creatures, merely upon their own
authority. * * * The public has an interest in his life and liberty. Neither can be lawfully taken
except in the mode prescribed by law. That which the law makes essential in proceedings
involving the deprivation of life or liberty cannot be dispensed with or affected by the consent
of the accused, much less by his mere failure, when on trial and in custody, to object to
unauthorized methods.
In Bishop's New Criminal Procedure, the rule is thus stated: Though formalities ordained
for the ease and protection of the litigant may be waived, what is of the essence of a vital
judgment cannot be. Sec. 123, par. 3, 73, 4th ed.
And again: There can be no waiver of what leaves the record destitute of parts essential to
a judgment.
62 Nev. 17, 27 (1943) State v. Loveless
In 23 C. J. S., Criminal Law, sec. 1417, pages 1114, 1115, the text reads: On a trial
involving deprivation of life or liberty, accused cannot waive any essential matter, but must
be considered as standing on all his legal rights, and waiving nothing.
In People v. Titus, 85 Cal. App. 413, 259 P. 465, 467, the court said: But while the
defendant may waive formalities established for his protection, he cannot waive that which is
of the essence of valid judgment.'
To the same effect are: Stewart v. State, 41 Ohio App. 351, 181 N. E. 111; State v. Adair,
1 W. W. Har., Del., 558, 117 A. 20; State v. Oakes, 95 Me. 369, 50 A. 28; State v. Snider, 32
Wash. 299, 73 P. 355.
17. Counsel for the state cite in their briefs cases from this state and decisions and
authorities from other jurisdictions on the claim of waiver. We have examined them all with
care and find none which, in our opinion, is in point. For the most part they show a waiver of
some formality in the nature of a personal privilege accorded a defendant, and not an essential
matter. The rule in this respect is stated in State v. Vanella, 40 Mont. 326, 106 P. 364, 366, 2
Ann. Cas. 398, as follows: * * * The rights guaranteed to one accused of crime fall naturally
into two classes: (a) Those in which the state, as well as the accused, is interested; and (b)
those which are personal to the accused, which are in the nature of personal privileges. Those
of the first class cannot be waived; those of the second may be. Commonwealth v. Petrillo,
340 Pa. 33, 12 A. 2d 50; 8 R. C. L. sec. 23, 69; 14 Am. Jur., sec. 119, 848.
The cases cited by counsel fall generally into the second class. We will not comment on all
of them and thereby prolong this opinion. State v. Lewis, 59 Nev. 262, 263, 91 P. 820, was
stressed by counsel for the state in the oral argument. In that case it was held that the failure
of the court to give the statutory admonition to the jury embodied in sec. 10991 N. C. L., at
each adjournment of the court, was waived by failure of the defendant to move for a new trial
on that ground.
62 Nev. 17, 28 (1943) State v. Loveless
While the statute declares a duty that should be strictly complied with, as we held in that case,
clearly it is not an indispensable formality. Its omission would not necessarily prevent a fair
trial. If properly raised in the court below it might be cause for a reversal unless the state
could sustain the burden of showing that no prejudice resulted to the defendant therefrom.
This burden was sustained in the case of State v. Gray, 19 Nev. 212, 8 P. 456, and the
omission held not cause for a reversal. Clearly the giving of this admonition does not go to
the essence of a valid conviction.
In 23 C. J. S., Criminal Law, sec. 1417, p. 1115, it is regarded in the nature of a personal
privilege. State v. Lewis is cited therein in support of the following text: It has been held,
however, that accused may waive any constitutional * * * or statutory right which is in the
nature of a personal privilege, and which he can waive without affecting the rights of others
or the jurisdiction of the court as to the subject matter and without detriment to the public.
See section 1417, note 37, p. 1115 for said citation.
While it must be conceded that the admonition required by said sec. 10991 N. C. L. is for
the benefit of the state, also its omission in a given case would not necessarily result in
prejudice to the state. Whereas the failure of the jury to designate in their verdict the degree
of murder has in effect denied the defendant a trial by jury. People v. Hall, 199 Cal. 451, 249
P. 859-861.
The case of Frank v. State, 142 Ga. 741, 83 S. E. 645, L. R. A. 1915d, 817, is in the same
class. It was held that the absence of the accused at the reception of the verdict was a mere
incident of the trial and not having been raised in motion for a new trial, was waived, and that
his absence did not render the verdict a nullity. There is no analogy between that case and the
one at bar. Lastly, the case of State v. Grier, 11 Wash. 244, 39 P. 874, is urged upon us as
stating the true rule to be followed in this case on the question of waiver. It is sufficient to
say as to this contention,
62 Nev. 17, 29 (1943) State v. Loveless
sufficient to say as to this contention, that the verdict of murder in the second degree was not
void as in the instant case. The indictment in that case was for murder of the first degree by
the administration of poison, and the court held that the defendant could be convicted of
second degree. The same was held in State v. Lindsey, supra. If we should grant the
contention of counsel for the state that the accused by his silence waived the defect of the
verdict, what did he waive? He waived the right to urge the point. Could that validate the
verdict? No. It is still void. Will the court permit the defendant to go to his death on a void
verdict? Such a course would be against reason and the common dictates of humanity. The
judgment should be reversed.
In defendant's assignment of errors we find none that is well taken. At least there is none
that tended to his prejudice in respect to a substantial right.
The judgment is reversed, the verdict set aside, and the cause remanded for a new trial.
____________
62 Nev. 30, 30 (1943) Kent v. Smith
WILLIAM KENT, JR., Respondent, v. ALFRED MERRITT SMITH, As State Engineer of
the State of Nevada, Appellant, and PERSHING COUNTY WATER CONSERVATION
DISTRICT OF NEVADA, A Corporation, Intervenor and Appellant.
No. 3382
July 12, 1943. 140 P.(2d) 357.
1. Judgment.
A court may construe a prior judgment, but in so doing is limited to judgment and judgment roll and
cannot properly consider extrinsic evidence.
2. Waters and Water Courses.
In action against state engineer for wrongful administration rights of appropriators of waters of Humboldt
river determined under prior decree, evidence admitted to show changed conditions should have been
limited to conditions existing at time of entry of decree and subsequent thereto, and admission of evidence
of prior conditions was error.
3. Waters and Water Courses.
In action against state engineer for wrongful administration of rights of appropriators of waters of
Humboldt River determined under prior decree, applications made to state engineer for permission to
appropriate waters of river by plaintiff's predecessors in interest formed part of judgment roll of prior
action and were competent for purpose of determining point of derivation from river contemplated by prior
decree.
4. Waters and Water Courses.
Where water decreed to plaintiff's land in decree which did not specify place of diversion was insufficient
to overcome seepage in slough through which it was routed after water decreed to upstream owner was
retained in river following sale of water rights to downstream owner, and all water in river was
appropriated, plaintiff could not compel state engineer to divert additional water into slough to enable
amount appropriated to plaintiff to reach plaintiff's diversion works in view of rights of downstream owners
and rule that methods of diversion must be reasonable and economical.
5. Waters and Water Courses.
Reasonable and economical use of water applies as well to methods of diversion as it does to application
of water to land itself.
6. Waters and Water Courses.
Where action to secure relief from order of state engineer permitting change of place of use of water,
which change affected plaintiff's ability to get water, centered solely upon a construction of decree
appropriating water, and order was made long after entry of decree,
62 Nev. 30, 31 (1943) Kent v. Smith
made long after entry of decree, supreme court was without jurisdiction to determine validity of order
under statute prohibiting state engineer from changing place of use of water if change tends to impair value
of existing rights, and action was dismissed to permit plaintiff to bring new action. Comp. Laws, sec. 7948.
Appeal from Sixth Judicial District Court, Humboldt County; George E. Marshall,
Presiding Judge.
Action by William Kent, Jr., against Alfred Merritt Smith, as State Engineer of the State of
Nevada, for relief from a decision of defendant engineer relating to administration of
determined rights found in a previous decree determining relative rights of water users of
Humboldt River. The Pershing County Water Conservation District of Nevada intervened.
Decree for plaintiff, and defendant and intervenor appeal. Reversed with directions.
Alan H. Bible, Attorney-General, and W. T. Mathews and George P. Annand, Deputy
Attorneys-General, for Appellant.
Roy W. Stoddard, John S. Halley, and Wm. Cashill, all of Reno, for intervening Defendant
and Appellant.
Morley Griswold and George L. Vargas, both of Reno, for Respondent.
OPINION
By the Court, Orr, C. J.:
Respondent, feeling himself aggrieved by a decision of the state engineer of the State of
Nevada affecting his interests and relating to what the respondent alleged to be the
administration of determined rights found in the so-called Bartlett Decree, which said decree
is a final determination of the relative rights of the water users of the Humboldt River stream
system,
62 Nev. 30, 32 (1943) Kent v. Smith
of the Humboldt River stream system, instituted an action against the said state engineer, in
the district court of Humboldt County, under section 75 of the water law of the State of
Nevada, being section 7961 N. C. L. Later the Pershing County Water Conservation District
of Nevada, a corporation, was permitted to intervene. The cause went to trial and resulted in a
judgment being entered which directed the state engineer to divert or permit to be diverted
from the Humboldt River stream system for the use of respondent a sufficient amount of
water, at the time and in the amounts and according to priorities to comply with the terms of
the so-called Bartlett Decree, with measurements at his diversion works at or near his land.
The state engineer and intervening defendant have appealed.
Appellants and respondent are agreed that only such relief as is awarded by the said
so-called Bartlett Decree to the predecessors in interest of respondent can be enforced in this
action. Appellants assert that in determining the rights granted the predecessors of respondent
the trial court was limited to an inspection of the decree, and, also, in construing the same,
recourse to the judgment roll might be had. Appellants further contend that, such being the
case, the trial court erred in permitting to be introduced and considered evidence relating to
conditions which existed long prior to the entry of the said Bartlett Decree. Respondent
answers by stating that evidence of the conditions as they existed long prior to the entry of the
Bartlett Decree was not introduced for the purpose of altering the decree in any manner, but
merely to show changed conditions.
1. A court may construe a prior judgment, but in so doing is limited to the decree and the
judgment roll, and cannot properly consider extrinsic evidence. Pomona Land & Water Co. v.
San Antonio Water Co., 152 Cal. 618, 93 P. 881; Salt Lake City v. Telluride Power Co., 82
Utah 607, 17 P.2d 281 (rehearing denied, 82 Utah 622, 26 P.2d 822); Arthur Irrigation Co. v.
Strayer, 50 Colo. 371, 115 P. 724; Sharp v. McColm, 79 Kan. 772, 101 P.
62 Nev. 30, 33 (1943) Kent v. Smith
101 P. 659; Sharkey v. City of Butte, 52 Mont. 16, 155 P. 266; Carpenter v. District Court, 59
Nev. 42, 73 P.2d 1310, 84 P.2d 489; Reed v. National Grocery Co., 136 Wash. 7, 238 P. 990;
Adams et al. v. Perry et al., 168 Or. 132, 111 P.2d 838, 119 P.2d 581.
2. The showing of changed conditions, if that was the purpose of the introduction of the
evidence complained of, should have been limited to conditions existing at the time of the
entry of the Bartlett Decree and subsequent thereto, and it was error to admit evidence of
prior conditions.
Proceeding to examine said decree, we find the following, on pages 93 and 94 thereof,
relative to the Kent lands:
ClaimantA. E. Kent Co.
ServiceHumboldt River
DitchOutside Slough.
Then follows the description of the lands, which are given a priority right of 1886, and the
water right given said lands calls for 6.5 cubic feet per second March 15-April 28; 3.82 cubic
feet per second April 28-June 13; .60 cubic feet per second June 13September 15.
3. The above statement appearing on the face of the decree does not fix a point of
diversion from the Humboldt River, so we now turn to the judgment roll for assistance in
construing said decree and to try to ascertain whether or not information as to the granting of
a point of diversion to the predecessors in interest of respondent can be had. The applications
made to the state engineer for permission to appropriate the waters of the Humboldt River, by
the predecessors in interest of respondent, form part of the judgment roll and are competent to
be examined for the purpose mentioned.
The first application was made on the 20th day of March, 1921, by a Mr. Bain. Item 21 of
said application states: It is difficult to state the location of the original dam, ditches and
levies, the same having been changed and no trace of the original site left. The map sent to
your office shows the location of the present works."
62 Nev. 30, 34 (1943) Kent v. Smith
works. Here, again, we fail to find any statement of the point of diversion from the
Humboldt River.
The foregoing proof of appropriation was amended September 3, 1921. Item 29 thereof
reads: (2) The means of diversion employedcheck dams and slough. Under item 14 we
find: all the land has been irrigated from date of ownership on account of owners above
turning more than enough water down the slough; also get all waste water. No mention of a
point of diversion from the Humboldt River in those items.
The second amendment was filed December 27, 1921, item 22 of which reads:
Remarks: The above lands that are irrigated by the waters of the Humboldt River get their
water mostly from what is called the Outside Slough' canal, and from this canal or old river
channel as it seems to have been, dams have been built as far back as 1874 or 1873, and by
these dams the lands have been irrigated, either by backing the water up and overflowing the
lands or by canals and ditches leading off from the Outside Slough canal. There is a large
slough in the North part of sec. 28 and SW parts of sec. 21 that is used to irrigate the parts of
lands adjacent to this territory, though the lands it irrigates is mostly sage, greasewood and
grass, nevertheless the matter of irrigation has been carried out, such lands being irrigated by
flooding mostly. And here, as before, no statement as to point of diversion from the
Humboldt River.
In the original application the statement as to the owners above turning more than enough
water down the slough referred to the Ellison Ranching Company and John G. Taylor, who
owned large tracts of land immediately above and adjacent to the land owned by respondent.
So, without specific mention in the decree or the applications made by the predecessors in
interest of respondent as to a point of diversion from the Humboldt River, what was the
character of the right, if any, which the predecessors in interest of respondent were given by
said decree?
62 Nev. 30, 35 (1943) Kent v. Smith
given by said decree? Intervening defendant characterizes the right as secondary, being based
upon the use of waste water, which cannot or could not ripen into a vested right. Gallio v.
Ryan, 52 Nev. 330, 286 p. 963. However, it seems to us that the right claimed by the
predecessors in interest of respondent and which the said Bartlett Decree gave was more than
that. The right was predicated upon the amount of water permitted by users above to flow
down the Outside Slough, in addition to the waste water. The right accorded by the said
Bartlett Decree makes no mention of a secondary right or a waste water right; there is no
qualification whatever of the right granted. We feel the reasonable construction to be placed
on the Bartlett Decree is that the court found that the water users above the Kent land had
permitted the water to flow down the Outside Slough for a sufficient length of time and under
such terms and conditions as to invest the owner of the Kent land with a right thereto. Water
being permitted to run down the slough from above under such conditions as to vest the use
thereof in the predecessors in interest of respondent, it would naturally follow that that right
would extend to the diversionary works employed and used by the owners of the lands above,
for the court will be presumed to have considered the entire situation in granting the right and
to have decreed the use of the then existing instrumentalities which made that right effective.
If the set-up as it existed at the time of the entry of the so-called Bartlett Decree had
continued, a satisfactory distribution of the water as decreed to the predecessors in interest of
respondent could have been made by the state engineer without difficulty and without
infringement on the rights of any other water user. But a material change did occur. Along in
1934 and again in 1936 the Ellison Ranching Company and John G. Taylor sold some 28,000
acre feet of water to the Pershing County Water Conservation District of Nevada, a
corporation, and said last-named corporation made application to the state engineer to
change the place of use and point of diversion to a point many miles down the stream
system, which said application was granted.
62 Nev. 30, 36 (1943) Kent v. Smith
application to the state engineer to change the place of use and point of diversion to a point
many miles down the stream system, which said application was granted. This water was
taken from the lands of the said Ellison Ranching Company and John G. Taylor; this
necessitated the removal of the Wilcox dam which had been in the Humboldt River bed, the
placing of a dam across the mouth of the Wilcox Ditch and one across the mouth of the
slough just below the Wilcox ditch, and the removal of the Ames and Henderson dams,
which were farther down the stream but had been used to divert water upon lands above those
owned by respondent. The diversion of this water by the construction and removal of the
dams above mentioned left the lands of the respondent high and dry, so to speak. Pursuant to
the application for a change of place of use and point of diversion of the water sold by the
Ellison Ranching Company and John G. Taylor, the state engineer gave notice of the said
application as required by law. Respondent made no objection to the order of the state
engineer changing the point of diversion and the place of use.
Finding himself without water subsequent to the diversion down stream of the water
formerly used by the Ellison Ranching Company and John G. Taylor, respondent made
demand upon the state engineer to comply with the Bartlett Decree and furnish him water as
provided therein. In 1937, in order to make a test as to what could be done relative to
respondent's demand that he be furnished water in compliance with the Bartlett Decree, the
state engineer caused portions of the dams across the Wilcox ditch and the slough
immediately below said ditch to be taken out and water allowed to flow into the Outside
Slough; there was also removed a dam in the slough at a point near what is known as the
Nelson House. Fifty-seven cubic feet of water per second was turned into the Outside Slough
for a considerable length of time, and it required this in order to cause any appreciable
amount of water to appear at respondent' diversion works in the slough.
62 Nev. 30, 37 (1943) Kent v. Smith
Other measurements taken were forty cubic feet per second diverted from the Humboldt
River at the Wilcox Dam; after that much was allowed to run for some time, about four cubic
feet per second appeared in respondent's ditch. In 1941, due to flood conditions of the
Humboldt River, water flowed into the Outside Slough in the vicinity of the Wilcox dam;
tests were made of this flow of flood water, which was found to approximate a maximum of
thirty cubic feet per second, and the water never reached the stage where it would flow into
the Kent ditch. The experiments were discontinued, and respondent later renewed his demand
upon the state engineer that he distribute water to him. The state engineer refused, basing his
refusal on two grounds: first, that the Bartlett Decree fixed no point of diversion, and, second,
that to divert water from the Humboldt River into the outside Slough in the vicinity of the
Wilcox dam in sufficient quantity to serve the demand of respondent would result in an
unlawful and willful waste of water.
4, 5. Respondent says that his requests were reasonable, and all that was or is necessary for
the state engineer to do is to remove dams unlawfully placed in the slough at places which he
claims are a confluence of the Outside Slough and the Humboldt River, and, this being done,
the water would then be permitted to flow into and through a natural channel. We do not
agree with respondent that there is a natural channel leading from the point where the Wilcox
dam was constructed to the Outside Slough. That connection is by means of a man-made
ditch, and its construction would, of course, have been unnecessary if there had been a
sufficient confluence to permit sufficient water to flow into the Outside Slough to meet
existing demands. The question confronting the state engineer was not as simple as the mere
removal of the dams in question. To do that and thus permit waters of the Humboldt River to
run without restraint into the seemingly insatiable maw of the water-absorbing Outside
Slough and its adjacent arid and now unproductive land would inevitably result in the
violation of the vested rights of some water user or users farther down the stream
system.
62 Nev. 30, 38 (1943) Kent v. Smith
and now unproductive land would inevitably result in the violation of the vested rights of
some water user or users farther down the stream system. This would be so because there is
only a given amount of water in the river and this had all been appropriated. Every cubic foot
of water taken out of the river over and above that allotted to the respondent would diminish
the stream flow decreed to others, in just that amount, and some user or group of users would
be denied that much, because it must be remembered that the Outside Slough from the
beginning to the end of its tortuous course traverses thirty miles, and it is only under
exceptional conditions that any of the water which flows into it again reaches the stream
system. It is fifteen miles from the Wilcox dam to a point where the slough runs under the
railroad tracks at a point a short distance above the point where the diversion works used by
respondent are placed. The slough is five or six feet wide at the bottom and from twenty-four
to twenty-five feet wide at the top, and water placed therein wends its sluggish way through
thick clumps of willows, both living and dead. As long as water used on the Ellison Ranching
Company property and the John G. Taylor property ran through the Outside Slough, that
water assumed the major part of the burden of evaporation and seepage; when that water was
taken away, the evaporation and seepage burden became too great for the water which was
decreed to the respondent's land to bear. In the event the state engineer should supply out of
the Humboldt River the water necessary to bear the burden of seepage and evaporation, in
order to get the claimed water to respondent's land, manifestly there would result a great
waste of water and infringement upon the vested rights of others. This the state engineer has
no authority to do, and if he attempted to do so it is quite probable that he would be
immediately met with injunctive proceedings. This court cannot order him to do it, because
by so doing we would be passing upon the rights of parties who are not now before us,
62 Nev. 30, 39 (1943) Kent v. Smith
and acting in contravention of the announced policy of the state that reasonable and
economical use of water applies as well to methods of diversion as it does to the application
of the water to the land itself. Doherty v. Pratt, 34 Nev. 343, 124 P. 574, 576.
6. At this point respondent may reasonably ask: Am I to be deprived of a vested right
awarded me by a solemn decree of a competent court because the state engineer has seen fit
to permit water, which has maintained the water table in the vicinity of my land at a high
level and water which bore the greater portion of the burden of transmission loss by seepage
and evaporation, to be taken from the land above and the ditch which I had theretofore used
and to be sent down the river? The answer to that is that laws have been enacted in this state
for the protection of water users under such circumstances; section 7948 N. C. L. contains the
positive admonition that the state engineer shall not permit a change of place of use or
diversion if such proposed change tends to impair the value of existing rights or to be
otherwise detrimental to the public welfare. A serious question remains as to whether
respondent took necessary action to protect the rights given by said section.
It seems clear that it was the change of place of use of water which leaves respondent in
the position he now finds himself. Now this question is posed: is the order of the state
engineer permitting such change a legal and valid order? If it is, then it follows that
respondent would be under the necessity of seeking permission of the state engineer to
construct such diversion works as would allow the state engineer to apportion the water to
him as decreed in the Bartlett Decree without the intolerable waste incident to diverting water
at the Wilcox dam. If the order is invalid and made in violation of the terms of section 7948,
supra, that would mean a cancellation of the permit to change the point of diversion and place
of use of the water formerly used upon the Ellison Ranching Company and John G. Taylor
ranches,
62 Nev. 30, 40 (1943) Kent v. Smith
ranches, or perhaps the alternative of requiring the purchasers to substitute diversion works so
that water could be distributed to respondent in accordance with the usages and practices in
the district. Instructions to the state engineer to furnish water to respondent cannot be given
until after the validity of the order permitting a new point of diversion and place of use has
been determined.
We conclude that we are without jurisdiction to determine that question here. This action
centers solely upon a construction of the Bartlett Decree. The order changing the point of
diversion and place of use was made long subsequent to the entry of the decree, and bears no
relation to it. It is very probable that parties not now before the court have interests which
would be vitally affected by a judgment affirming or disaffirming the order; such parties can
only be given a chance to be heard in a new action, whose pleadings and proceedings present
that issue.
The judgment entered herein is reversed, and the trial court is directed to dismiss the
action.
____________
62 Nev. 41, 41 (1943) Edmonds v. Perry
JENNIE EDMONDS, Appellant, v. B. F. PERRY, In his Representative Capacity as
Administrator of the Estate of C. W. Perry, Deceased, Respondent.
No. 3344
July 19, 1943. 140 P.(2d) 566.
1. Money PaidWork and Labor.
A complaint for money expended and services performed should state that the money was expended and
services performed for use and benefit of defendant and at his instance and request.
2. Money Paid.
The essence of the right to recover money paid, in absence of express request to make it, is the
compulsion to make it.
3. Money Paid.
A voluntary payment for benefit of another cannot be recovered at law.
4. Appeal and Error.
Where no material issues arise directly from the pleadings, the findings of fact in the case are immaterial,
though both parties go to trial without objection.
5. Executors and Administrators.
In action to recover on claim against deceased's estate for money allegedly paid out by plaintiff for
funeral expenses of deceased, the burden was on plaintiff to establish the material allegations of complaint
by preponderance of evidence, to extent at least of making out a prima facie case. Comp. Laws, sec. 8637.
6. Trial.
Where evidence introduced in support of plaintiff's second cause of action was introduced without
reservation or limitation, it became subject for consideration as to all matters in the case, and plaintiff was
bound thereby as to all causes of action.
7. Evidence.
Where many deposits in and withdrawals from bank account had been made, presumption exists that
ordinary course of business had been followed, unless contradicted. Comp. Laws, sec. 9047.07, subd. 20.
8. Trial.
Generally, a finding which is in the identical language a negation of the allegation in complaint is
sufficient.
9. Trial.
Generally, findings are to be construed so as to support the judgment.
10. Executors and Administrators.
In action on claim against deceased's estate for money paid out for funeral expenses of deceased, where
money was paid out of bank account which had been opened in name of plaintiff by
deceased,
62 Nev. 41, 42 (1943) Edmonds v. Perry
out of bank account which had been opened in name of plaintiff by deceased, and which was subject to
withdrawal by deceased, record sustained finding that plaintiff had not paid out her money for funeral
expenses. Comp. Laws. sec. 9047.07, subd. 20.
11. Executors and Administrators.
In action on claim against deceased's estate on ground that deceased had withdrawn money from
plaintiff's bank account and deposited money in postal savings account in deceased's name, finding that
deceased carried bank account in name of plaintiff, and that money in account did not belong to plaintiff,
was supported by evidence.
12. Appeal and ErrorPleading.
Allowance or refusal of leave to amend pleadings in actions at law is discretionary with trial court,
exercise of which is not reviewable except in cases of gross abuse of discretion. Comp. Laws, secs. 8636,
8640.
13. Executors and Administrators.
In action on claim against decedent's estate, where plaintiff alleged that deceased had withdrawn money
from plaintiff's bank account and deposited money in postal savings account in deceased's name, the court
was justified in considering evidence of ownership of bank account on the general denial of administrator
without special plea or necessity of amendment. Comp. Laws, secs. 8636, 8640.
14. Appeal and Error.
Even if finding was in effect a conclusion of law, plaintiff could not complain where it was negative in
identical language of complaint.
15. Gifts.
Generally, the law presumes that a bank deposit belongs to person in whose name it is entered, but where
deceased who had opened bank account in plaintiff's name, had made all deposits thereto and all except
one withdrawal therefrom, during his lifetime and plaintiff made no claim to the account until after
deceased's death, presumption that plaintiff was owner of the bank account was rebutted.
16. Gifts.
The credit given on bank's books is only prima facie evidence of right of person to whom deposit was
credited, and generally money deposited to credit of one person may be shown by circumstances to belong
to another.
17. Evidence.
Where deceased had opened bank account in plaintiff's name but had not divested himself of control over
the fund, postscript stating that after all of taxes are paid the rest will show on your Bank Book so there
won't be any mistake about it they mite think the Property Belonged to me, was not conclusive that there
was a joint tenancy account with right of survivorship, and the intention was not clear enough to invoke the
parol evidence rule. Comp. Laws, sec. 743.
62 Nev. 41, 43 (1943) Edmonds v. Perry
18. Common Law.
The common law prevails in Nevada as to decisions unless modified or changed by legislation.
19. Joint Tenancy.
Where plaintiff claimed that Nevada bank account which deceased opened in plaintiff's name became a
joint tenancy account, with right of survivorship, evidence that deceased had years before opened a joint
tenancy account with right of survivorship in sister state did not create presumption that the Nevada
account was a joint tenancy account. Comp. Laws, sec. 743.
20. Joint Tenancy.
The fact that passbook is made out in joint names of two persons is evidence simply of depositor's intent
that deposit may be drawn out by either of the persons named.
21. Joint Tenancy.
Where deceased opened bank account in plaintiff's name subject to withdrawal by deceased,
determination that the account was not a joint tenancy account with right of survivorship was not improper.
Comp. Laws, secs. 743, 1513, 3710.
22. Gifts.
The facts from which intention to make a gift must be inferred should be clear and unequivocal,
especially where gift is claimed by a stranger after alleged donor's death.
23. Gifts.
To constitute a valid gift inter vivos intention to make it must be satisfactorily established, and
intention must have been executed by actual constructive or symbolical delivery of the thing proposed to be
given without power of revocation.
24. Gifts.
The validity of an attempted gift inter vivos by deposit of money in bank to credit of another depends on
intention of alleged donor, and if he intends to and does divest himself of control over fund, the deposit is
sufficient.
25. Gifts.
Where claim of gift is not asserted until after alleged donor died, clear and satisfactory evidence is
required on every element for sustaining such claim.
26. Gifts.
Where deceased opened bank account in plaintiff's name, subject to withdrawal by both plaintiff and
deceased, even if deceased intended that the sum remaining subsequent to his death should go to the
plaintiff, the deposit could not be the subject matter of a gift inter vivos since the gift was not complete,
absolute or irrevocable.
27. Appeal and Error.
Where plaintiff sought to recover from deceased's estate on theory that deceased had withdrawn funds
from plaintiff's bank account and deposited money in postal savings account, and evidence sustained
finding that bank account did not belong to plaintiff,
62 Nev. 41, 44 (1943) Edmonds v. Perry
belong to plaintiff, finding that the account belonged to deceased was not prejudicial, since the deletion
thereof would not affect final judgment, even though it was in effect a finding of fact not raised by
pleadings.
28. Pleading.
Ultimate facts, not conclusions, should be alleged.
29. Judgment.
Pleadings should be such that findings thereon will support a final judgment.
30. Trial.
In action for money had and received, where plaintiff alleged that deceased collected rent from property
belonging to plaintiff, the fact that finding that deceased did not collect rentals belonging to plaintiff,
attempted to correct a defect by finding with reference to a substantial right, not alleged, did not render the
finding objectionable.
31. Evidence.
A presumption must find support in fact and a court will not sustain a presumption on a presumption.
32. Executors and Administrators.
In action for money had and received based on theory that deceased had collected rents on property
belonging to plaintiff, issue of ownership of property was not controlling.
33. Appeal and Error.
Where findings are not made or requested, any findings necessary to support judgment are presumed.
34. Executors and AdministratorsTrial.
In action for money had and received, based on theory that deceased collected rents on property
belonging to plaintiff, finding that deceased did not collect rentals belonging to plaintiff was responsive to
pleading and was supported by evidence or failure thereof.
35. Appeal and Error.
If no prejudice to a substantial right is shown and judgment is right though decided on a wrong ground, it
will not be disturbed by the supreme court.
36. Appeal and Error.
Findings of an inferior court will not be set aside on appeal for errors which could not have prejudiced
appellant.
37. Appeal and Error.
Findings of trial court which are supported by substantial evidence will be sustained.
38. Witnesses.
Where question of waiver of incompetency of witness was not raised in trial court, the court was justified
in rejecting testimony of incompetent witness. Comp. Laws, secs. 8966, 8970.
39. Witnesses.
In action against administrator who introduced exhibit through a disinterested witness who
was not an agent of deceased,
62 Nev. 41, 45 (1943) Edmonds v. Perry
through a disinterested witness who was not an agent of deceased, and who did not testify as one claiming
to have been present at time of transaction, the fact that plaintiff, who was a party to the transaction,
identified her signature of the exhibit did not remove her incompetency. Comp. Laws, secs. 8966, 8970.
40. Witnesses.
In action against administrator, plaintiff who was party to transaction with deceased could have testified
she had conversation with deceased so long as she did not testify to nature of conversations, under dead
man rule. Comp. Laws, secs. 8966, 8970.
41. Witnesses.
In action by plaintiff, who was party to transaction with deceased, against deceased's administrator,
administrator's introduction of plaintiff's letter to deceased without objection did not constitute waiver of
plaintiff's incompetency opening door to testimony by plaintiff which only deceased could rebut. Comp.
Laws, secs. 8966, 8970.
42. Witnesses.
In action by plaintiff, who was party to transaction with deceased, against deceased's administrator, where
evidence had been received under a reserved ruling, the administrator could cross-examine plaintiff
regarding evidence received under reserved ruling without making a waiver of incompetency of plaintiff.
Comp. Laws, secs. 8966, 8970.
43. Attorney and Client.
In action on claim against deceased's estate based on theory that a deposit of deceased's money in name
of plaintiff subject to withdrawal by both during life of both, constituted a joint tenancy account, mention
by administrator's counsel in examination of witness of a joint account did not bind him to the theory of a
joint tenancy account.
44. Appeal and Error.
A case should not be tried on one theory and appealed on an entirely different one.
45. Appeal and Error.
One should not be allowed to appeal on one theory and be entitled to a rehearing on another.
46. Appeal and Error.
In action on claims against deceased's estate, wherein administrator filed a cross-complaint, expression in
opinion of trial court with reference to indebtedness of a sizable sum, was not prejudicial to plaintiff where
court denied recovery on administrator's cross-complaint.
47. Trial.
A court sitting without a jury should consider surrounding circumstances and may express opinion
regarding probative facts as reason for ultimate facts found.
62 Nev. 41, 46 (1943) Edmonds v. Perry
48. Appeal and Error.
Where evidence is in conflict and substantial evidence supports trial court's judgment, the judgment will
not be disturbed.
49. Appeal and Error.
Where the judgment appeared to be a correct one, every inference and presumption would be indulged in
favor of the regularity of all proceedings and sufficiency of findings to support judgment.
Appeal from Eighth Judicial District Court, Clark County; Roger Foley and George E.
Marshall, Judges.
Action by Jennie Edmonds against B. F. Perry, in his representative capacity as
administrator of the estate of C. W. Perry, deceased, to recover on three claims filed against
the estate, wherein the defendant filed a cross-complaint. From portions of judgment and
from an order denying plaintiff a new trial, the plaintiff appeals. Portions of judgment
appealed from affirmed, and order denying a new trial affirmed.
Harry H. Austin, of Las Vegas, Alfred H. McAdoo, of Yuma, Ariz., and Orion W. Locke,
of Canon City, Colo., for appellant.
Alfreda Noland and Dan V. Noland, both of Canoga Park, Calif. for Respondent.
OPINION
By the Court, Watson, District Judge:
This action was brought by one Jennie Edmonds, a sister of deceased C. W. Perry, against
the administrator of the latter's estate, B. F. Perry, another brother, seeking to recover on three
claims theretofore filed against the estate and having been rejected.
Plaintiff and cross-defendant appeals from the judgment of the lower court in favor of
defendant and cross-complainant, and from the order denying plaintiff and cross-defendant
a new trial,
62 Nev. 41, 47 (1943) Edmonds v. Perry
and cross-defendant a new trial, and makes ten assignments of error and specifications of
insufficiencies of evidence.
In the interest of brevity parties will here be designated as plaintiff and defendant,
respectively, as in the court below.
Briefly, the facts are that deceased, a long-time resident of Las Vegas, Nevada, died there
intestate on February 20, 1937. April 30, 1937, and while one Roland H. Wiley was
administrator, plaintiff filed claim against the estate for $3,522.18, consisting of three items
as hereafter appears, being disallowed and disapproved by B. F. Perry who had been
appointed administrator July 19, 1937. At the time of his death and since the acquisition of
the real property described in the pleadings, deceased had resided on part of it, and rented
other portions thereof to others, receiving and receipting for rents, paying taxes and otherwise
treating it as his own, at diverse times stating, Sister held it for him, Told me property
belonged to him, transferred to his sister to protect it, and Transferred for safe keeping in
trust is the way he said it to me, also, Had confidence in Jennie, transferred his property and
sent her money,better with her than in a bank, because he was afraid to get tangled up in
law suits in Las Vegas.
In December 1932, account number 6241 was opened in the First State Bank, later First
National Bank, of Las Vegas, Nevada, in the name of plaintiff Jennie L. Edmonds, signature
card being signed by her and providing, This a/c also subject to withdrawal by C. W. Perry,
for authority see letter 12/12/32. The deposit appears to have been made December 9 and the
signature card signed in Colorado December 16, or seven days later.
On the date of the deposit in this account, December 9, 1932, deceased's savings account
No. 5217 shows a withdrawal of an identical amount, $1,875.79. Plaintiff stated that she had
made no deposits to account No. 6241 either before or after death of deceased, that they had
had an account before when deceased was in Colorado,
62 Nev. 41, 48 (1943) Edmonds v. Perry
had had an account before when deceased was in Colorado, didn't remember when or how
much, that she made one withdrawal from No. 6241 in 1933 when he was sick, and from the
balance of $7,110.82 at the time of his demise, in this account, plaintiff drew $650 out of
which she paid the funeral expenses claimed, but states that it was her money. There were
numerous deposits and withdrawals made in this account preceding the death of deceased,
presumably by deceased.
Because each of plaintiff's three causes of action are distinct each from the other in some
respect, they will be treated in their order, and the opinion expressed or decision in each is
applicable to each of the others and to this proceeding as a whole.
We will first consider plaintiff's claimed error that finding No. II is not supported by the
evidence. This finding as follows: (That it is not true) that during the latter portion of
February, A. D. 1937, the plaintiff paid out and disbursed for funeral expenses of the said
deceased the total Sum of $636.53 [or any other sum or amount as alleged in her
complaint.]brackets oursis in the exact wording of the charging portion of plaintiff's
complaint, except for the bracketed portion. Otherwise plaintiff's first cause of action alleged
only, death of decedent, establishment of administration, that she was a sister, that she filed
her claim, received notice of rejection, and that no part had been paid.
Plaintiff's evidence in support of her first cause of action consisted of introduction of bills,
paid by her, in the amount alleged, without objection, except as to certain penciled notation
on one of the bills. And that she had not been repaid.
1-3. There is no allegation or evidence that the expenditures were made otherwise than as
a volunteer. A complaint for money expended and services performed should state the money
was expended and services performed for the use and benefit of defendant, and at his instance
and request, Huguet v. Owen, 1 Nev. 464. In McGlew v. McDade, 146 Cal. 553, 80 P. 695,
plaintiff paid a doctor bill of his deceased sister and brought suit against the estate to
recover,
62 Nev. 41, 49 (1943) Edmonds v. Perry
a doctor bill of his deceased sister and brought suit against the estate to recover, the same as
plaintiff has done here, and it was held that in such a case he had paid it without request and
as a mere volunteer, and could not recover, and that the state was not bound to accept him as
a creditor. Shumway v. Earley et ux., 56 Ariz. 124, 106 P.2d 194, 196, It is well settled law
that one who voluntarily pays the debt or obligation of another, when under no duty to do so,
may not recover his outlay. The essence of the right to recover money paid, in the absence of
an express request to make it, is the compulsion to make it; it is elementary that a voluntary
payment for the benefit of another cannot be recovered at law, 41 C. J. 14, sec. 3; Pendergrass
v. Axx, 111 Cal. App. 478, 295 P. 896; McGee v. City of San Jose, 68 Cal. 91, 8 P. 641;
Stanley v. Westover, 93 Cal. App. 97-111, 269 P. 468.
4. It is true this question of sufficiency of pleading was not raised in the court below and
would perhaps be considered as having been waived were it raised here for the first time,
under ordinary circumstances, but here there is an attack on a negative finding in the identical
language of the complaint, which otherwise shows no request or promise, no obligation, duty
or compulsion. It appears to the court that a finding in the affirmative with reference to this
allegation, without other findings as to request and promise to repay, or compulsion to pay,
would be in effect determining a moot question. The mere finding that plaintiff paid a certain
sum for funeral expenses could not, in the opinion of the court, sustain a favorable conclusion
of law in favor of plaintiff in relation to her first cause of action. The finding to the contrary,
therefore, would affect no substantial right of plaintiff, and at most would be objectionable as
a finding of fact, not material to the issues. For this reason the question as to whether a cause
of action is stated does become of importance in determining the error committed, if any.
Where no material issues arise directly from the pleadings, the findings of fact in the case
are also immaterial,
62 Nev. 41, 50 (1943) Edmonds v. Perry
findings of fact in the case are also immaterial, though both parties go to trial without
objection. Bulwer Con. Min. Co. v. Standard Con. Min. Co., 83 Cal. 589, 23 P. 1102.
There was likewise no evidence of request or promise, duty or obligation, to pay, adduced
at the trial, under which the court might, under section 8637 Nevada Compiled Laws 1929,
have made or directed findings of fact accordingly.
5, 6. Treating the allegation as stating a cause of action and therefore material to the issues
here, for the sake of argument, it being denied on information and belief, the burden was with
plaintiff to establish the material portions thereof by a weight or preponderance of the
evidence, to the extent at least of making out a prima facie case. The question then arises as
to whether the source and ownership of the money actually paid out for funeral expenses
became an issue, or material to the issues under plaintiff's first cause of action. We point out
that plaintiff introduced the evidence of account No. 6241 and signature card signed by her
subjecting account to withdrawals by deceased, being plaintiff's exhibits 8, 7, 9 and 10
respectively. This evidence was probably intended to support the allegation in plaintiff's
second cause of action, of a deposit in the First State Bank and withdrawal therefrom, but it
was introduced without reservation or limitation, and so became a subject for consideration as
to all matters in the case, the same as other testimony, the demeanor of the witnesses, et
cetera, and plaintiff would be bound thereby, as to all three causes. Plaintiff likewise testified
or admitted that she made no deposits and but one withdrawal during the lifetime of
deceased, that she didn't know exactly when the first deposit to this account was made and
that she signed the signature card in Colorado, and that the money allegedly expended for the
funeral expenses came from this account No. 6241.
7. Many deposits in and withdrawals from this account were made during the lifetime of
deceased,
62 Nev. 41, 51 (1943) Edmonds v. Perry
account were made during the lifetime of deceased, self-evidently by deceased, he being the
only person other than plaintiff and the bank connected with the account, it being presumed
that the ordinary course of business has been followed, unless contradicted. Stats. of Nevada,
1931, chap. 50, sec. 1, subsec. 558g, subd. 20, N. C. L. Supp. 1931-1941, vol. 2, p. 1227, sec.
9047.07, subd. 20.
The court feels as pointed out in defendant's appeal brief that the ownership of account No.
6241 was material to the issues, if any material issues were made, in plaintiff's first cause of
action. If the funeral expenses were paid from funds belonging to deceased, or from funds not
proven to belong to plaintiff, which the lower court seems to have found by finding No. III for
the purposes of this trial, most certainly plaintiff could not prevail on the evidence presented.
And judgment to that effect would find support in the evidence or the lack of it.
8, 9. Technically the plaintiff's evidence supports a physical payment of money by her but
fails to show the money used to have been hers. The facts are certainly opposed to any
conclusions or decisions in her favor. It was evidently the intention of the trial court in this
case to make a finding against the plaintiff in the identical language of the complaint. If it is
ambiguous or uncertain because of this, it may be stated that a finding, generally, which is in
the identical language a negation of the allegation in the complaint is sufficient, Turner v.
Turner, 187 Cal. 632, 203 P. 109, 111; Dan v. Zink, 112 Cal. 91, 44 P. 331; McCarthy v.
Brown, 113 Cal. 15, 45 P. 14; Hayne, New Trial and Appeal (Rev. Ed.) sec. 242. As a general
rule findings are to be construed so as to support the judgment, Turner v. Turner, supra. In
Brett v. Vanomar Producers, 45 Cal. App. 286, 187 P. 758, 760, it was said Plaintiff selected
his own terms by which to tender the material issue of fact as to what the contract really was,
and the question was submitted to the court in the language which the plaintiff employed.
62 Nev. 41, 52 (1943) Edmonds v. Perry
plaintiff employed. If the form of the statement was sufficient for the complaint, it should not
be held lacking for the purpose of the finding.
10. It appearing that this finding is responsive to the pleadings (though this point was not
argued or briefed) and being considered together with finding No. III, is sustained by
evidence, and that no substantial right of plaintiff is or was prejudiced thereby, finding No. II
should be sustained.
Plaintiff's second cause of action, paragraph III, alleges: [That prior to the demise of the
said C. W. Perry and on or about the 3d day of January, A. D. 1936, this plaintiff had on
deposit in the First State Bank of Las Vegas, Nevada, the sum of $2,392.15,] and that on or
about said last-mentioned date, the said C. W. Perry withdrew said sum from said bank and
deposited the said amount in a United States Postal Savings account in his own name.
Brackets ours. Otherwise her allegations are a repetition of those in her first cause of action.
Defendant's amended answer denies this paragraph on information and belief, and admits
paragraph IV, except denies on information and belief, That the said sum of $2392.15, or
any other sum of money was taken from the account of plaintiff in the First State Bank of Las
Vages, Nevada, and deposited by the said deceased, C. W. Perry, in United States Postal
Savings account in the name of said C. W. Perry, or otherwise or at all. The lower court's
third finding with reference to this cause of action found:
(A) That it is not true that prior to the demise of the said C. W. Perry and on or about the
3rd day of January, A. D. 1936, the plaintiff had on deposit in the First State Bank of Las
Vegas, Nevada, the sum of $2392.15, or any other amount.
(B) That it is true that on the 3rd day of January, 1936, and for a long time prior thereto,
and at the time of his death, the said C. W. Perry had on deposit a large sum of money in the
said First State Bank of Las Vegas,
62 Nev. 41, 53 (1943) Edmonds v. Perry
sum of money in the said First State Bank of Las Vegas, Nevada, in Account No. 6241, which
account the said C. W. Perry carried in the name of Jennie Edmonds, and when said C. W.
Perry died there was on deposit in said account the sum of $7,110.82, and the money in that
account at the time of the death of said C. W. Perry did not belong to Jennie Edmonds, but
was the property of C. W. Perry.
11-13. Plaintiff claims prejudicial error in this finding that: First, it is not supported by the
evidence. Second, it is not responsive to the issues in the case or the issues made by the
pleadings. Third, that no issue of ownership of this bank account was made by the pleadings
and any trial of such question constituted a surprise to plaintiff, forcing plaintiff to meet such
issue without opportunity to her counsel to prepare to meet the same. Fourth, the evidence is
insufficient to support this finding, even if any issue of the ownership of this bank account
had been pleaded or had been in the case. We point out that in this finding (A), the court
below found as a matter of fact that plaintiff did not have a deposit in the said sum in said
bank at the time as alleged and denied, it likewise being denied that the alleged or any sum
was taken from her account. It appeals to the court that this finding, if correct, is conclusive
of plaintiff's right of recovery. If she had no account as alleged, any money expended, if
expended, not being hers, how could she expect to prevail? It should have been no surprise to
plaintiff that it was incumbent upon her to establish ownership of this account. She
allegedThis plaintiff had on deposit, self-evidently a claim of ownership; unless she
had alleged an agency, a trust or other relationship, entitling her to recovery, which she did
not do. Had plaintiff's pleadings alleged that her referred to deposit was account No. 6241,
there might be some merit to plaintiff's contention that ownership in defendant should have
been pleaded speciallyit might or might not have become an affirmative defense which
must be specially pleaded,
62 Nev. 41, 54 (1943) Edmonds v. Perry
might not have become an affirmative defense which must be specially pleaded, depending
on whether defendant sought affirmative relief with reference to this account. It is not an
equitable defense nor does it amount to a confession and avoidance, or matter of prevention,
waiver or excuse for nonperformance of a contract, as in Richter v. Adams, 19 Cal. App. 2d
572, 66 P. 2d 226, cited by plaintiff. We point out that the defendant did not seek affirmative
relief with reference to this account, nor did the court grant any. We are constrained to
disagree with plaintiff's contention and citations; that answer was not the subject of
amendment to conform to the proof as materially changing the defense or nature thereof: No
variance between the allegations in a pleading and the proof is to be deemed material, unless
it has actually misled the adverse party to his prejudice in maintaining his action or defense
upon the merits. Whenever it appears that a party has been so misled, the court may order the
pleading to be amended, upon such terms as may be just, Nevada Complied Laws 1929, sec.
8636; also see sec. 8640. Allowance or refusal of leave to amend pleadings in actions at law
is discretionary with the trial court, the exercise of which is not reviewable except in cases of
gross abuse of discretion; Truckee River General Electric Co. v. Benner, 9 Cir., 211 F. 79, 81.
Out of the mouth of plaintiff on direct and cross-examination, and by her witnesses and
evidence, it was revealed that for the first time she referred to a withdrawal from account No.
6241 (January 2, 1936, her exhibit No. 10), which she claimed as her deposit. The court was
justified in considering evidence of the ownership of this deposit or account, on the general
denial of defendant, without special plea or necessity of amendment.
14. Plaintiff's right to, or ownership of, this deposit or account was a material issue here
made by the plaintiff. Assuming as heretofore that deceased initiated the account with his
money, made all deposits to, and all except one withdrawal therefrom,
62 Nev. 41, 55 (1943) Edmonds v. Perry
except one withdrawal therefrom, during his lifetime as appears mainly by plaintiff's own
evidence, and there being no evidence to the contrary, it seems there is sufficient evidence,
not at variance with the pleadings, to sustain a finding that plaintiff did or did not have the
alleged deposit, and that some finding in this regard was essential to sustain conclusions and
decisions, either for or against plaintiff. Again, if the finding is objectionable as being in
effect a conclusion of law, though this point is not raised here, it would seem that plaintiff
could not complain, it being in the negative in the identical language of the complaint, Turner
v. Turner, supra; on such a contention we must conclude that the complaint alleged
conclusions of law and not ultimate facts.
The main contention of plaintiff seems to be that the initial deposit in account No. 6241 in
her name; despite the signature card (her exhibit No. 7), signed only by her and subjecting it
to withdrawals by deceased; and despite the fact of deceased's almost exclusive control of the
account as shown by withdrawals and deposits by him; constituted her the owner of the
account. This on the theories, that it became a joint tenancy account, with right of
survivorship, or that on the facts claimed by defendant, it became a gift inter vivos, or that the
deposit in plaintiff's name made it her account or deposit.
15, 16. It is true as pointed out by plaintiff that the law presumes that a deposit belongs to
the person in whose name it is entered, generally. This by business and banking practice and
usages seems a reasonable legal conclusion based upon the well-known fact that most
deposits actually are made by a depositor in his own name, or in the name of another for the
latter's use and benefit, because the money actually is due, or belongs, to him. Where as here,
however, deceased did not divest himself of the dominion and control over the funds, there
was no showing that the money deposited belonged to plaintiff or was owing to her, but
rather evidence of the fact the money was actually deceased's, it was certainly a matter for
judicial determination; 7 C. J. 639, note S3 and sec.
62 Nev. 41, 56 (1943) Edmonds v. Perry
it was certainly a matter for judicial determination; 7 C. J. 639, note 83 and sec. 325 idem; 9
C. J. S., Banks and Banking, sec. 285, note 87, and sec. 287; where, as here, plaintiff laid no
claim to the account until after the death of deceased, and deceased could at any time during
his lifetime have withdrawn the whole of the account, the presumption seems to us to have
been rebutted. The credit given on the bank's books is only prima facie evidence of the rights
of the person to whom the deposit was credited; and, generally speaking, money deposited to
the credit of one person may be shown by circumstances to belong to another; 9 C. J. S.,
Banks and Banking, sec. 287. We find no authority to sustain such a presumption under the
facts here, all cases found or cited where it has been indulged to the extent contended for by
plaintiff, have been cases concerning the rights of depositors as against banks or depositories;
not as here where one in whose name money was deposited, seeks to recover after his death
money expended by deceased during his lifetime from the account on which he was
authorized to draw.
17, 18. We point out that plaintiff's exhibit No. 7, the signature card, contains an unsigned
joint tenancy agreement below and subsequent to the signature. It is apparently not contended
nor do we believe that this portion has any bearing on the deposit, and on the contrary, its
lack of execution and its being so readily available for signature of both parties might readily
be interpreted as an intent that joint tenancy theory should not apply to the account. Nor could
plaintiff's exhibit No. 18 postscript, After all of the taxes are paid the rest will show on your
Bank Book so there won't be any mistake about it they mite think the Property Belonged to
me, be conclusive that this was a joint tenancy account with right of survivorship as defined
by our statutes, sec. 743 N. C. L. 1929, as amended 1931, it might show in her bank account
for any number of reasons, as for instance, convenience, or for the purpose of avoiding
litigation against him, et cetera. Nor is the intention there made clear enough to invoke the
parol evidence rule.
62 Nev. 41, 57 (1943) Edmonds v. Perry
intention there made clear enough to invoke the parol evidence rule. In the case of Hill v.
Badeljy, 107 Cal. App. 598, 290 P. 637, 638, relied upon by plaintiff there was an executed
joint tenancy agreement providing among other things that all deposits regardless of previous
ownership, Are and shall become our property as joint tenants and not as tenants in common
and shall be payable to any of us during our lives or to the survivor or any of the survivors * *
*, the action was based upon fraud, undue influence, et cetera, which was not proven,
therefore held to be a joint tenancy. Henry v. Bank of America, 8 Cal. App. 2d 353, 47 P. 2d
1068, likewise involved a signed agreement of joint tenancy account with right of
survivorship with reference to money now deposited or which should at any time be
deposited, holding is not persuasive on any point involved here. Wallace v. Riley, 23 Cal.
App. 2d 654, 74 P.2d 807, involved conflicting claims of living depositors as joint tenants
under a written agreement substantially in the language of bank act, and is not decisive of any
point here. We have no quarrel either with California, holding contrary to New York under
the common law, that money withdrawn from such account during the joint lives of
depositors will retain joint tenancy character in property acquired thereby or in another
account to which it is traceable. We point out, however, that the common law prevails in our
state as to decisions unless modified or changed by legislation.
19. Plaintiff's exhibit No. 15, in part, Well Jen, sign these cards so that our account is
joint account and if there is anything happens to me, you can get it without any law and it is a
joint account and either can get it. Sign where the x is and send them back to the bank,
referred to an account concerning which plaintiff testified, folio 526 and 530, They had a
joint account before when he was in Colorado, * * * don't remember when or how much
money they had in that account. Folios 526 and 530 could be determinative of nothing in the
instant case. Deceased had been a long-time resident of Nevada,
62 Nev. 41, 58 (1943) Edmonds v. Perry
Nevada, his intention with reference to a joint tenancy account years before in Colorado could
create no presumption favorable or otherwise as to his intention relating to this account, it
might as readily be presumed to be reason for not creating a joint tenancy account.
20. Was this deposit made in the name of the depositor and another person as provided by
section 743 N. C. L. 1929, as amended 1931? It might be inferred that it was by subjecting it
to the withdrawals by deceased also. But was it deposited in a form to be paid to either or the
survivor? It seems the court below would be justified in holding that it was not, in the
absence of evidence, parol or otherwise to the contrary. The record is barren of evidence of
the intention of deceased otherwise, his conduct at the time of the first deposit, statements
made, questions asked, et cetera, at or near the time, from which a presumption of intent
might be gathered. The fact that a pass book is made out in the joint names of two persons is
evidence simply of the depositor's intent that the deposit may be drawn out by either of the
persons named, 7 C. J. sec. 908; 9 C. J. S., Banks and Banking, sec. 993; here the deposit was
not so made, but inferring that it became in substance a deposit in their joint names as above
for the sake of argument, the court would not be precluded from considering this as a form of
deposit for convenience, or subject to the withdrawal by either during their lifetime only,
instead of a joint tenancy deposit. Here plaintiff does not ask judgment for the delivery of the
savings bonds, or the money from any particular account, traceable as the result, or recipient
of, the funds here concerned.
21. Nor do we feel there is clear, unconflicting evidence of a joint tenancy, substantially
within the statute or at common law, to which the courts have held the right of survivorship is
incident, in some jurisdictions. Applying plaintiff's citation, 33 C. J. p. 903, sec. 4, Joint
tenancy and the incident of survivorship applies to personal property as well as to real estate,
to sec. 1513,
62 Nev. 41, 59 (1943) Edmonds v. Perry
N. C. L. 1929, Every interest in real estate granted or devised to two or more persons, other
than executors and trustees, as such, shall be a tenancy in common, unless expressly declared
in the grant or devise to be a joint tenancy, and to our sec. 3710 N. C. L. Supplement
19311941, * * * A joint tenancy in personal property may be created by a written transfer,
agreement, or instrument, it would seem we have limited rather than favored or extended the
application of the theory of joint tenancy. The court below was not legally bound to interpret
this as a joint tenancy account.
22. Plaintiff contends that on facts claimed by defendant, for example, the opening of the
account in the sole name of plaintiff, divested deceased of dominion and control and prima
facie constituted a completely executed gift inter vivos. As heretofore pointed out the record
is void of evidence as to circumstances surrounding the initial deposit in this account No.
6241 by deceased, as evidencing his intention at the time. It is the duty of the courts to
effectuate the intentions of one in the disposal of this property, when ascertained, if he
complies with the forms of law. But when they must be implied, the facts from which the
intention to make a gift must be inferred should be clear and unequivocal, Holman v. Deseret
Sav. Bank, 41 Utah 340, 124 P. 765, especially where the gift is claimed by a stranger after
the alleged donor's death. In the case of Boyle v. Dinsdale, 45 Utah 112, 143 P. 136, Ann.
Cas. 1917e, 363; cited by plaintiff, the above case is referred to and distinguished. That case
and others cited being authority for the proposition, that if one makes a deposit in a bank in
the name of another, or otherwise in such manner as to constitute the bank a trustee for the
donee, in such manner as to divest the depositor of all dominion and control over the fund, he
retaining no power of revocation, and such intent being clearly shown as in the cited cases,
and the donee, upon being informed of the deposit and its purposes, assenting thereto, makes
the transaction in law a completed irrevocable gift inter vivos.
62 Nev. 41, 60 (1943) Edmonds v. Perry
vivos. And this though the donor may retain some beneficial interest such as taking the
interest or income from the deposit, during his lifetime. There are cases which hold that
though the donor makes a formal deposit in trust for another and communicates the fact to
others, it is not enough, until it has been communicated to donee or some one acting for his
benefit and has been accepted by him; Ann. Cas. 1917e, 368. To make a valid gift of personal
property inter vivos, delivery must be completed in donor's lifetime, Azevedo v. Azevedo, 1
Cal. App. 2d 504, 36 P.2d 1078; delivery to the bank should be ample if properly declared as
a trust in writing, or orally if the intention is clear, the possession of the trustee being that of
the donee, provided that the gift is complete, irrevocable, and the deposit is placed under
donee's exclusive dominion and control. See Stockgrowers & Ranchers Bank v. Milisich, 52
Nev. 178, 283 P. 913. It must show such delivery as placed the moneys under donee's
exclusive dominion and control, an essential element of a gift inter vivos, Stockgrowers &
Ranchers Bank v. Milisich, 52 Nev. 178, 184, 283 P. 913; 28 C. J. p. 630 et seq.; Simpson v.
Harris, 21 Nev. 353, 31 P. 1009. Could plaintiff contend that the mere evidence of deposit on
December 9, 1932, was such a delivery in trust or otherwise as invested plaintiff with
exclusive dominion and control of the deposit, it might be of interest to know in whose
possession the pass book was, between then and the 16th of December, when plaintiff signed
the signature card authorizing withdrawals by deceased also, the court below might be
justified in considering the book as being in the possession of deceased, account No. 6241
shows a deposit January 3, 1933, presumptively we think by deceased, and he undoubtedly
had the pass book, unless there were duplicates which would not be presumed. The
possession of the pass book at any time during the account's existence seems to us of some
importance, as bearing on the question of dominion and control, and the intention of parties, a
presumption that it remained in deceased, plaintiff admitting no deposits
62 Nev. 41, 61 (1943) Edmonds v. Perry
plaintiff admitting no deposits and but one withdrawal and that when she was with deceased
and the book available to her, during his lifetime, would not we think be subject to criticism.
The letter dated December 12, 1932, referred to in the signature card plaintiff's exhibit No. 7,
might have been helpful also, four days before plaintiff appears to have had anything to do
with the account, might raise a presumption that it was written by deceased, and probably
evidenced his intention. This evidence or lack of it, rather than evidencing a loss of dominion,
control and right of revocation, seems persuasive of quite the opposite.
23-25. To constitute a valid gift inter vivos, the intention to make it must be satisfactorily
established and this intention must have been executed by actual, constructive or symbolical
delivery of the thing proposed to be given without power of revocation. In other words, there
is no gift until the intention of giving is fully consummated by the donor transferring all right
and dominion over the thing given to the donee, Tucker v. Tucker, 138 Iowa 344, 116 N. W.
119. If he intends to and does divest himself of dominion and control over the funds, the
deposit is sufficient. In re Hall's Estate, 154 Cal. 527, 532, 98 P. 269. The validity of an
attempted gift inter vivos by the deposit of money in a bank to the credit of another depends
on the intention of the alleged donor, Industrial Trust Co. v. Scanlon, 26 R. I. 228, 58 A. 786,
3 Ann. Cas. 863. Recent cases being in accord with this holding, Boyle v. Dinsdale, 45 Utah
112, 143 P. 136, Ann. Cas. 1917e, 367. The intention of the depositor in respect to gift of
money on deposit is controlling, McNabb v. Fisher, 38 Ariz. 288, 299 P. 679. We have no
writing sufficiently evidencing an intention to or not to create a gift inter vivos, an intention
therefore must be found from the facts and circumstance surrounding the transaction or
transactions; by parole evidence in the way of statements made perhaps if any, or by
presumption of intention, statutory or otherwise, from actual proven occurrences. We are
asked, on the meager evidence here,
62 Nev. 41, 62 (1943) Edmonds v. Perry
meager evidence here, in effect, to sustain plaintiff's contention that deceased intended to
completely divest himself of dominion and control of the fund, and immediately (not at any
future time) vest this in plaintiff, without right of revocation, of necessity like wise intending,
her acceptance, and that the deposit constituted delivery to her, without consideration; all of
which are essential to a gift inter vivos, and all of which deceased must have intended, to
sustain plaintiff's claim of gift. Such an intent is not apparent, neither is the intention to
constitute this a joint tenancy account with right of survivorship. When a claim of gift is not
asserted until after the alleged donor dies, clear and satisfactory evidence is required on every
element for the sustaining of such claim, Jones v. Bank of San Jose, 82 Cal. App. 696, 256 P.
247, 248; Su Lee v. Peck, 49 Nev. 124, 240 P. 435. The retention in the donor of the right to
withdraw the whole of the bank deposit is inconsistent with the idea of a gift, Jones v. Bank
of San Jose, above. It is likewise as to his possession of the pass book. Idem. The case of
Holman v. Deseret Savings Bank, supra, being decided on facts as ample, and comparable to
the facts in this case, except for the lack of relationship between parties there, we adopt as our
own the language there used in substance, as follows: In many cases it is held that where
money is placed on deposit in a saving bank by the owner thereof in the joint names of
himself and another, and he delivers the pass book (italics ours) to such other, such a
transaction in connection with other fact and circumstances showing the intention of the
owner to make a gift (italics ours) may constitute a gift inter vivos, and it may also make the
parties in whose names the deposit is made joint tenants, including the right of survivor to
take the whole, citing cases, N. Y., R. I., Mich., and Dennin v. Hilton, N. J. Ch., 50 A. 600
conceding that in all cases of joint deposits the controlling question always hinges upon
whether the owner of the money intended to make a gift, or whether the account was
entered in joint form for other purposes,
62 Nev. 41, 63 (1943) Edmonds v. Perry
the account was entered in joint form for other purposes, making clear that, unless the
intention to make a gift is expressed in writing or is clearly inferable from the acts or
declarations of the alleged donor, there may always be grave doubt whether such transaction
shall be considered a gift or a deposit for convenience.' * * * In all the cases cited above the
essential element, namely, the joint ownership or that a gift was actually intended and
executed for the purpose of creating a joint ownership, is either clearly established by the
evidence or found as a fact by the trial court. In the case at bar counsel, however, assumed
that the fact of joint ownership is established from the mere fact that the money in question
was deposited in the names of both Mrs. Eslinger, the owner thereof, and Mrs. Holman, so
that either could withdraw it either during the lifetime of both or upon the death of one by the
presentation of the pass book. (Italics ours.) While the foregoing fact may be considered as
affording some evidence of a gift and a joint ownership, yet standing alone, and especially
when such ownership is denied, it is insufficient to establish either a gift or joint ownership.
Naturally enough the cases are not in harmony as to what facts or circumstances are sufficient
to establish joint ownership of a fund, especially where a deposit is made, as here, by the
owner of the fund in the names of such owner and another. We have found no case, however,
where the facts to establish a gift or joint ownership were as meager as they are in the case at
bar where either a gift or joint ownership was held to have been established. There are a
number of cases, however, in which the facts and circumstances were much stronger in favor
of a gift and joint ownership than they are in this case, and yet the courts have held as a
matter of law that neither was established. Among the numerous cases we refer to the
following: Robinson v. Mutual Sav. Bank, 7 Cal. App. 642, 95 P. 533; Harris Banking Co. v.
Miller, 190 Mo. 640, 89 S. W. 629, 1 L. R. A., ,
62 Nev. 41, 64 (1943) Edmonds v. Perry
N. S., 790; Denigan v. Hibernia Savings & Loan Soc., 127 Cal. 137, 59 P. 389; Schneider v.
Schneider, 122 App. Div. 774, 107 N. Y. S. 792; Basket v. Hassell, 107 U. S. 602, 2 S. Ct.
415, 27 L. Ed. 500; Dodge v. Lunt, 181 Mass. 320, 63 N. E. 891; Murray v. Cannon, Adm'rx,
41 Md. 466; Norway Sav. Bank v. Merriam, 88 Me. 146, 33 A. 840; Whalen v. Milholland,
89 Md. 199, 43 A. 45, 44 L. R. A. 208; In re Hall's Estate, 154 Cal. 527, 98 P. 269.
26. Nor would the fund so deposited subject to the withdrawal of both, with the intention
that the sum remaining subsequent to the death of C. W. Perry go to plaintiff, be the subject
matter of a gift inter vivos, the gift was not complete, not absolute or irrevocable. It would but
constitute an attempted testamentary disposition of the fund, and invalid, the intention not
being executed in the manner provided by law. Jonte v. English, 171 Okl. 291, 40 P. 2d 646,
Turnbull v. Turnbull, 118 App. Div. 449, 103 N. Y. S. 499; Simpson v. Harris, 21 Nev. 353,
31 P. 1009.
We call attention to the decision of the lower court in the way of an inference or
presumption in the case, wherein the court said, The court cannot believe that the person
who wrote exhibit A' had on deposit $6,110.82 on December 31st, 1936. Exhibit A dated
January 5, 1936, but actually proven to have been written January 5, 1937, five days after the
date referred to by the court, being as follows:
Marion B. Earl Canon City Colo
June 181937 Jan 536
Dear Brother.
Received your letter always glad to hear from you, but am sorry I cant raise that money
right now. We are going to ship some steers as soon as they get them all gathered and we are
on a deal to sell that ranch we bought last year. we may get that thru soon and I will send it
just as soon as possible. We never did beat any one and have no intentions of beating you.
You told us to use it and if we needed more you had more in the bank and we didn't mean
to do any thing that wasn't all right.
62 Nev. 41, 65 (1943) Edmonds v. Perry
to use it and if we needed more you had more in the bank and we didn't mean to do any thing
that wasn't all right. We haven't spent any thing foolishly and will pay you back as fact as we
can of course the dry weather was hard on us not raising enough feed to take care of our
cattle. and the depression and all. but we will come out all right with them yet. last year we
could have got a government loan but this year they dont seem to be doing that: I guess they
are spending it all on relief & w.p.a. Well I guess this is all for this time but we will do the
best we can. We are having lots of flu around here and I see by the papers they have closed
the schools in Denver & lots of places. Well I guess this is all as ever
Jen.
27. We feel this to be a reasonable inference and deduction from the evidence and is
considered as an added basis and reason underlying and supporting the findings, conclusions
and decision. The first paragraph of finding No. III being responsive to the pleadings and the
issues made and being sufficiently supported by evidence or insufficiency of evidence to
support a finding to the contrary; the second paragraph thereof, though in effect being a
finding of a fact not directly raised by the pleadings, if it stood alone, seems to us a finding of
a probative fact following as a corollary, and supporting the ultimate fact found, that plaintiff
did not have the money on deposit, in the amount alleged, or any amount. It does find at least
some support, in evidence not at variance with the pleadings. The conclusions and decision
being sufficiently supported by the first paragraph of this finding and other findings the
deletion or inclusion of the second paragraph would not affect the final judgment. It could at
most be a finding of an immaterial fact, and be treated as immaterial, not affecting the
substantial rights of parties to this action. Having found the account did not belong to
plaintiff, it could do no substantial harm to find it did belong to deceased, in determining
only whether plaintiff was entitled to recover as prayed, here.
62 Nev. 41, 66 (1943) Edmonds v. Perry
determining only whether plaintiff was entitled to recover as prayed, here. We feel doubtful
of plaintiff's right of recovery under this cause of action in any event. Had the court found in
the affirmative on plaintiff's pleadings, on her theory of a joint tenancy account, how could
that sustain a judgment as prayed, for $2,392.15? She would of necessity be required to trace
the identical joint tenancy funds to a specific fund or into specific property, by her pleadings
and evidence, and her right of recovery would be limited to that property or moneys in that
fund; under the theory that joint tenancy funds retain that character even after demise of one
of the parties, in property acquired or traceable fund established. Under any other theory
plaintiff here could have sued on her theory for all sums withdrawn by deceased from account
No. 6241 with which we are here concerned.
Under plaintiff's third cause of action, finding No. IV, it is contended, is not supported by
the evidence and is not responsive to the pleadings. The allegations of this cause are the same
as the others except for paragraph 3, alleging in substance, that between March 23, 1936, and
February 17, 1937, inclusive, deceased collected rents on property belonging to plaintiff, in a
total sum of $493.50. The court found, it was not true that from on or about the 23d day of
March, A. D. 1936, to on or about the 17th day of February, A. D. 1937, both dates inclusive,
the said C. W. Perry collected rentals belonging to said plaintiff in the total sum of $493.50,
or any other sum, but that any money deposited by said C. W. Perry in his own name was his
own money. An analysis of the pleadings generally seems called for at this point, in relation
hereto. Defendant's denials and averments, generally on information and belief denied the
above. The answer and reply both as amended; alleged and denied, first, long-time ownership
in deceased; denied and alleged in plaintiff. Second, conveyance without consideration in
trust; denied, alleged purchased with plaintiff's money, not his. Third, up to death collected
money, paid taxes, treated as his own; admits but alleges him to be her agent and all
moneys hers.
62 Nev. 41, 67 (1943) Edmonds v. Perry
money, paid taxes, treated as his own; admits but alleges him to be her agent and all moneys
hers.
28-37. This is purely an action for money had and received, and we are asked to reverse
the case because the court failed to find for plaintiff in the exact language of paragraph 3,
That deceased collected rentals on property belonging to plaintiff, as per a requested
finding. Had the court found as requested, we doubt that it would sustain a decision in
plaintiff's favor. This is about as meager a statement of such a cause of action as we could
conceive, nor does the statement in the amended reply, C. W. Perry, was acting only as the
agent of and for this plaintiff, assist a great deal. We think that ultimate facts, not
conclusions, should be alleged, from which the court could determine whether or not there
was an agency, the nature of it, his commissions, whether collection was made for the use and
benefit of plaintiff, whether his only duty was to remit to plaintiff, and if not the whole, then
how much, and particularly that his only remaining duty was to remit the sum alleged. There
is no allegation of indebtedness directly or indirectly. Pleadings should be such that findings
thereon will support a final judgment in the affirmative or negative. The fact that the finding
here that deceased didn't collect rentals belonging to plaintiff, seems an attempt to correct this
defect by finding with reference to a substantial right, though not alleged, is not subject to
criticism. By the evidence and reasonable inferences therefrom it appears, deceased for a long
time and since 1926 when plaintiff claims she acquired the property involved, collected all
rentals, paid taxes, made no remittance to plaintiff. The collection of the sum alleged is
admitted by the pleadings and the only other evidence in this relation, seems to be a personal
savings account of C. W. Perry, No. 10275, defendant's exhibit J, the first and last dates of
deposit therein corresponding with the inclusive dates alleged in paragraph 3 of complaint.
There is no evidence of an agency as alleged, nor could the court be required to presume
agency from the mere fact of this deposit to deceased's personal account,
62 Nev. 41, 68 (1943) Edmonds v. Perry
fact of this deposit to deceased's personal account, and certainly could not on such a
presumption be required to presume an obligation to pay to plaintiff all moneys deposited, a
presumption must find support in fact whether it be statutory, conclusive or disputable, or
otherwise. A court will not sustain a presumption on a presumption. The mere deposit of this
money to a different account in no manner creates an inference that the money belonged to
plaintiff any more than did any other previous rental received. Plaintiff's right of recovery we
infer depended upon establishing that deceased had received or obtained possession of money
belonging to her, which he in equity and good conscience was obligated to return, Kondas v.
Washoe County Bank, 51 Nev. 134, 140, 271 P. 465. The issue of ownership of the property
would, we think, not be controlling of the issues raised, and failure to find as to it, would
affect no substantial right of plaintiff as to her third cause of action. The court by its decision
and conclusion later having held that conveyance to plaintiff was a conveyance in form
absolute, and not a conveyance in trust as alleged by defendant and adjudged that defendant
take nothing, would we think answer the objection that the court had failed to find as to a
material fact, no direct finding having been requested thereon. Under our practice, when
findings are not made or requested, any findings necessary to support the judgment are
presumed. Murray v. Osborne, 33 Nev. 267, 111 P. 31, 33. We think this finding responsive
to the pleadings or to what they should have been to create an issue, and are sufficiently
supported by evidence or failure thereof. If no prejudice to a substantial right be shown, and
the judgment is right, though decided on a wrong ground, it will not be disturbed by the
supreme court, Conley v. Chedic, 6 Nev. 222. The judgment of an inferior court will not be
set aside on appeal, for errors which could not have prejudiced the appellant, Mitchell v.
Bromberger, 2 Nev. 345, 90 Am. Dec. 550; Chiatovich v. Davis, 17 Nev. 133
62 Nev. 41, 69 (1943) Edmonds v. Perry
Davis, 17 Nev. 133, 28 P. 239; Brown v. Lillie, 6 Nev. 244; Schulz v. Sweeny, 19 Nev. 359,
11 P. 253, 3 Am. St. Rep. 888. Findings of the trial court which are supported by substantial
evidence will be sustained, Seavy v. I. X. L. Laundry Co., 60 Nev. 324, 108 P. 2d 853; Bralis
v. Flanges, 45 Nev. 178, 199 P. 475. The failure of plaintiff's evidence to support her
contentions would certainly sustain a negative finding, if within the pleadings as it is here.
The court reserved until the conclusion of the case, its ruling as to admissibility of certain
evidence by plaintiff as to transactions with the deceased during his lifetime, on objection by
defendant, under sections 8966 and 8970, 1929 N. C. L., commonly known as the dead man
rule. Plaintiff claims prejudicial error in the court's failure to consider evidence given under
the reserved ruling. As to the payment of $1600 on an additional obligation of $1800.00
during the lifetime of deceased, deceased having waived payment of the $200.00 balance, on
the ground that defendant had waived the dead man rule by introducing exhibit A above.
Second, that defendant's cross-examination of plaintiff, though with the understanding that he
did not waive his objections, constituted a waiver of the incompetency of the witness.
38-41. Exhibit A was introduced through Marion Earl, a disinterested witness, without
objection, plaintiff later identifying the signature thereto as hers. Under sections of our
statutes cited above in such cases, 8970, The following persons cannot be witnesses * * *, as
to any matter of fact occurring before the death of such deceased persons, 8966, No person
shall be allowed to testify * * * when the facts to be proven transpired before the death of
such deceased person; provided, that, when such deceased person was represented in the
transaction in question by an agent who is living, and who testifies as a witness in favor of the
representative of such deceased persons, or, when persons other than the parties to the
transaction,
62 Nev. 41, 70 (1943) Edmonds v. Perry
the parties to the transaction, claiming to have been present when the transaction took place,
testify as witnesses in favor of the representative of such deceased person, in such case the
other party may also testify in relation to such transaction, the question of waiver of
incompetency not having been raised in the court below, following Vesey v. Benton, 13 Nev.
284; it seems to us the court was justified in rejecting the evidence of plaintiff. Marion Earl
was not an agent of deceased nor did he testify as one claiming to have been present at the
time of the transaction. Plaintiff being a party to the transaction and merely identifying her
signature did not remove the incompetency, she could have identified the signature of
deceased we believe, and could have testified she had conversations with deceased so long as
she did not testify to the nature of the conversations. Nor would the introduction of exhibit
A without objection, we think, constitute a waiver of incompetency opening the door to
testimony by her, which only deceased could rebut. In Re Wilson's Estate, 56 Nev. 500, 56 P.
2d 1207, cited by plaintiff the court went no further than to hold that where appellant chose to
have her own testimony, subject to being stricken under section 8966, remain, and expressly
withdrew her objection to respondent's incompetency thereunder, she is not, therefore, in a
position to urge upon this court any objection to the competency of respondent as a witness in
the lower court. To extend the waiver as far as contended for by plaintiff here would be in
effect to say that upon the introduction of a note signed by the witness he would be entitled to
testify to lack or failure of consideration and payments made to deceased during his lifetime.
This we think is further than Nevada courts could go under our statutory provisions. Exhibit
A was and is not a narration of facts, as referred to in decisions cited by plaintiff,
warranting a presumption of waiver of incompetency as to such narrated facts.
42. The defendant having reserved his objections while cross-examining plaintiff as to
evidence received under a reserved ruling,
62 Nev. 41, 71 (1943) Edmonds v. Perry
under a reserved ruling, we think could in no manner constitute a waiver as contemplated in
the various decisions in Nevada. Defendant under the circumstances here should have been
entitled to cross-examine as to any material evidence admitted on direct, unless he developed
or delved into new matter concerning transactions with deceased, tending to aid his,
defendant's case.
43-45. We fail to agree that the mention by counsel, in his examination of witnesses, of a
joint account, binds him to the theory of a joint tenancy account. Throughout the trial and in
the supreme court the theory of defendant seems to have been consistent, and that account
No. 6241 was a deposit of deceased's money in the name of plaintiff, subject to the
withdrawal of both during the life of both, not a joint tenancy with right of survivorship. We
agree that a case should not be tried on one theory and appealed on an entirely different one.
And one should not be allowed to appeal on one theory, and be entitled to a rehearing here
on another, as pointed out in the cases cited by plaintiff. Neither do we think that a party
should be bound by the mere nomenclature used by his or her counsel.
46-48. As to the matter of the expression in the opinion of the court, with reference to an
indebtedness of a sizable sum, the court having denied recovery to defendant on his
cross-complaint for $11,000 not being able himself to determine the amount of the
indebtedness; no harm appears to have been done any substantial right of plaintiff. As has
been said heretofore, a court sitting without a jury should of right consider surrounding facts
and circumstances and could express opinion as to probative facts as reasons for and
supporting the ultimate facts found. There was testimony that Mr. Earl saw other letters, of
the same tenor as exhibit A referring to a sizable sum, as late as the day of the death of
deceased he referred to substantial amount or sizable sum by inference at least in discussing
chicken ranches and bonds. This seems to be a situation in which the evidence is in conflict
62 Nev. 41, 72 (1943) Edmonds v. Perry
which the evidence is in conflict and the court will go no further than to say there is
substantial evidence to support such an opinion, and the judgment should not, therefore, be
disturbed.
49. The judgment appearing to be a correct one, every inference and presumption should
be indulged in favor of the regularity of all proceedings and sufficiency of findings to support
the judgment.
The portions of the judgment appealed from, and the order denying a new trial, are
affirmed.
NoteOrr, C. J., being disqualified, the Governor designated Hon. Harry M. Watson,
Judge of the Seventh Judicial District, to sit in his stead.
____________
62 Nev. 72, 72 (1943) Clack v. Jones
G. S. CLACK, Appellant, v. C. H. JONES,
Respondent.
No. 3394
August 16, 1943. 140 P.(2d) 580.
1. Contempt.
A demurrer filed in supreme court to affidavit in lower court charging contempt was subject to motion to
strike as constituting no part of the record on appeal, though demurrer went to the sufficiency of facts in
affidavit and jurisdiction of the court. Comp. Laws, sec. 8601.
2. Appeal and Error.
The record on appeal is made up of papers from the court below and may not be supplemented by
papers filed to the transcript in the supreme court.
3. Appeal and Error.
The statutory provision that objections to sufficiency of facts stated in complaint or to jurisdiction of
court are not waived though not taken by demurrer or answer and may be raised in any court at any time
does not authorize the filing in appellate court of a demurrer to the complaint in the record. Comp. Laws,
sec. 8601.
4. Contempt.
Orders requiring judgment debtor to appear and show cause why he should not be adjudged guilty of
contempt, overruling his objections to the judge who ordered contempt proceeding presiding at such
proceeding, and denying his motion to set aside such order and permit him to answer before another
judge were not "final orders" from which an appeal would lie.
62 Nev. 72, 73 (1943) Clack v. Jones
another judge were not final orders from which an appeal would lie.
5. Contempt.
An appeal will not lie in contempt proceeding until an order is made that is determinative of the subject
matter of proceeding.
6. Contempt.
A judgment debtor ordered arrested and brought before court to show cause why he should not be
adjudged guilty of contempt could not appeal from judgment against surety on judgment debtor's
appearance bond, since judgment debtor was not a party to such judgment nor aggrieved thereby.
Appeal from Sixth Judicial District Court, Pershing County; Thomas J. D. Salter, Judge.
Action by C. H. Jones against G. S. Clack, wherein judgment was rendered against
defendant and he was ordered to appear to answer concerning his property. From orders
requiring defendant to appear and show cause why he should not be adjudged guilty of
contempt, overruling defendant's objections to judge presiding at contempt proceeding
ordered by such judge, and denying his motion to set aside such order and permit defendant to
file an answer to appear for trial before another judge and from judgment upon his appearance
bond, defendant appeals. Plaintiff moves to dismiss the appeal and to strike a demurrer filed
in supreme court to affidavit charging contempt. Demurrer stricken and appeal dismissed.
William S. Boyle, of Reno, for Appellant.
H. J. Murrish and John A. Jurgenson, both of Lovelock, for Respondent.
OPINION
By the Court, Ducker, J.:
In this action proceedings were had in the district court to require the appellant,
62 Nev. 72, 74 (1943) Clack v. Jones
court to require the appellant, judgment debtor, to appear before the judge of the court to
answer concerning his property, and to bring with him all books and records of the Cinnabar
City Mining Company. In the course of the proceedings appellant having failed to appear as
required, a warrant of arrest was issued for him in which it was ordered that he be brought
before the judge of the court to show cause why he should not be adjudged guilty of contempt
of court. It was further ordered that he be admitted to bail in the sum of $500. Thereafter
appellant filed in the proceedings his objection to Judge Thomas J. D. Salter presiding at any
contempt proceeding wherein an order of attachment was issued by said judge.
On April 13, 1943, it was ordered as follows:
This matter coming on regularly to be heard at 11:30 o'clock A. M. this 13th day of April,
the hour to which the same had been regularly continued, upon the Order made and entered
herein on February 23, 1943, and the defendant, G. S. Clack, having failed to appear either in
person or by attorney, now on motion of attorneys for the plaintiff herein it is ordered that the
Objection of Defendant to Judge of Court Presiding at Contempt Proceedings Ordered by
Same Judge' is overruled and the defendant held to answer forthwith as required by the said
Order of this Court dated February 23, 1943, and It Is Further Ordered: That the bonds in the
penal sum of $500.00 given for the appearance of the said G. S. Clack and filed in this court
is forfeited for the failure of the said G. S. Clack to appear at the time and place heretofore
fixed by this Court, and It Is Further Ordered Adjudged and Decreed that judgment be entered
herein against National Automobile Insurance Company, a California corporation, for the
sum of $500.00, lawful money of the United States which amount is the penalty of said bond
and that judgment and execution issue.
Be It Further Ordered that certified copies of this Order be served upon William S. Boyle,
attorney of record for the said defendant G. S. Clack,
62 Nev. 72, 75 (1943) Clack v. Jones
record for the said defendant G. S. Clack, and upon the defendant G. S. Clack, if he can be
found.
Thomas J. D. Salter
District Judge.
Dated, April 13, 1943.
A motion by appellant to set aside the foregoing order and to permit him to file an answer
to appear for trial before another judge was denied on April 27, 1943.
He has appealed from these orders and judgment.
Respondent has moved to dismiss the appeal and to strike a written demurrer to his
affidavit in the lower court charging contempt of court, which demurrer is entitled as of this
appeal and filed herein with the transcript of appeal.
1-3. The motion to strike the demurrer must be granted as it constitutes no part of the
record on appeal. The record is made up of papers from the court below as prescribed by
statute and may not be supplemented by papers filed to the transcript in this court. Counsel
for appellant insists strenuously that as the demurrer went to the sufficiency of facts in the
affidavit and to the jurisdiction of the court, it was properly filed, and refers us to sec. 8601
N. C. L. We have long been familiar with that section but have never interpreted it to
authorize the filing of a demurrer in a case on appeal. True, the objections mentioned in the
section are not deemed waived even though not taken by demurrer or answer, and may be
raised in any court at any time in any appropriate way, but the filing of a demurrer in the
appellate court, to the complaint in the record on those grounds, is not a proper way. Why?
Because there is no statute to authorize such procedure. We are referred to the case of
Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061, as authority for such procedure. No
demurrer to the complaint was filed in that case either on appeal or in the court below. But
counsel belatedly declared it was an oral demurrer on the hearing of the appeal. My memory
does not serve me in that regard, but if counsel raises the objection on appeal in some
appropriate way and chooses to call the mode adopted an oral demurrer,.
62 Nev. 72, 76 (1943) Clack v. Jones
on appeal in some appropriate way and chooses to call the mode adopted an oral demurrer,
there can be no objection to it. It is objectionable, however, as a rider to the record on appeal.
The demurrer is ordered stricken.
4-5. Now as to the motion to dismiss the appeal. The orders appealed from are not
appealable. They are merely orders in the course of procedure. Their merits might be inquired
into in the event an appeal is properly taken. It is not the law in a proceeding of this character
that it may be interrupted at any particular time in its progress by an appeal to determine
whether the court has committed error in ruling upon some proposition arising during the
course of the proceedings. Until an order is made that is determinative of the subject matter of
the proceeding, there is nothing to appeal from.
6. As to the judgment ordered entered against the National Automobile Insurance
Company, appellant is not a party to such a judgment, nor is he aggrieved thereby. He cannot
therefore appeal from that order or judgment. The court being without jurisdiction to entertain
the appeal it should be dismissed.
It is so ordered.
On Motion for Rehearing.
September 20, 1943. 141 P.(2d) 385.
1. Contempt.
Where appeal was premature, alleged insufficiency of affidavit by which contempt
proceedings were instituted was not determinable on appeal or on motion for rehearing.
2. Appeal and Error.
Under rule of supreme court pertaining to motions for rehearing, the filing of a paper
consisting of an argument in support of motion for rehearing is not permissible. Rules of
the Supreme Court, rule 15.
3. Appeal and Error.
Rule of supreme court authorizing the filing of a petition for rehearing and a reply
thereto and providing that no other argument shall be heard thereon is mandatory.
Rules of the Supreme Court, rule 15.
62 Nev. 72, 77 (1943) Clack v. Jones
Appeal from Sixth Judicial District Court, Pershing County; Thomas J. D. Salter, Judge.
Rehearing denied.
William S. Boyle, of Reno, for appellant.
H. J. Murrish and John A. Jurgenson, both of Lovelock, for Respondent.
OPINION
By the Court, Ducker, J.:
1-3. The motion for a hearing must be denied. It is based upon the alleged insufficiency of
the affidavit by which the contempt proceedings were initiated. This question was not
determinable on the appeal taken, nor can it be considered on this motion, because the appeal
was premature. A paper filed by appellant with the motion also needs attention. It was
entitled Opening Brief in support of Motion for Rehearing. After the filing, this designation
was amended by striking out the words Opening Brief. The paper is an argument in support
of the motion for rehearing. This is not permissible by reason of rule XV of the Rules of the
Supreme Court which, in that particular reads: The party moving for a rehearing shall within
the time for filing the petition, serve a copy of the petition upon opposing counsel, who,
within ten days thereafter, may file and serve a reply to the petition, and no other argument
shall be heard thereon. The rule in this respect is mandatory. Rickey v. Douglas M. & P. Co.,
45 Nev. 341, 204 P. 504, 205 P. 328.
It is ordered that the motion for a rehearing be and the same is hereby denied, and the
paper entitled, In Support of Motion for Rehearing, is hereby stricken.
____________
62 Nev. 78, 78 (1943) Lauer et al. v. District Court
THEODORE A. LAUER, RULOFF E. CUTTEN and CITY BANK FARMERS TRUST
COMPANY, as Executors of the Last Will and Testament of Edward E. B. Adams,
Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF
NEVADA, in and for the County of Clark, and THE HONORABLE GEORGE E.
MARSHALL, The Presiding Judge Thereof, Respondents.
No. 3388
September 9, 1943. 140 P.(2d) 953.
1. JudgmentMotions.
The district court rule fixing a period of six months within which a judgment, order, or other judicial act
might be modified or vacated was adopted to take place of former rule requiring motions to vacate
judgments to be noticed during terms at which they were rendered. District Court Rules, rule 45.
2. Judgment.
By virtue of district court rule, judgments, which formerly could not be set aside by a district court after
expiration of terms at which they were rendered, cannot now be set aside by motion noticed more than six
months after they are rendered. District Court Rules, rule 45.
3. Judgment.
District court rule fixing a period of six months within which a judgment, order, or other judicial act
might be modified or vacated does not apply to a judgment void on its face, nor does rule apply to separate
or independent suits brought to set aside judgments. District Court Rules, rule 45.
4. JudgmentMotions.
The district court rule fixing a period of six months within which a judgment, order, or other judicial act
might be modified or vacated applies only to motions in the original case to vacate, amend, modify, or
correct judgments, orders, or other judicial acts therein. District Court Rules, rule 45.
5. Judgment.
District courts have inherent power to set aside judgments procured by extrinsic fraud.
6. Courts.
Court rules when not inconsistent with constitution or laws of state, have effect of statutes.
7. Judgment.
An application cannot be made in district court to vacate a judgment upon ground that it was procured by
extrinsic fraud by motion in the original cause noticed more than six months from rendition of the
decree.
62 Nev. 78, 79 (1943) Lauer et al. v. District Court
months from rendition of the decree. District Court Rules, rule 45.
8. Divorce.
District court's action in vacating divorce decree on ground of extrinsic fraud, on plaintiff's motion made
more than six months after entry of decree, was void on ground that district court was without jurisdiction.
District Court Rules, rule 45.
9. Divorce.
Where district court was without jurisdiction to entertain plaintiff's motion to vacate divorce decree
because motion was made more than six months after entry of the decree, executors of estate of defendant,
since deceased, could not waive jurisdictional defect. District Court Rules, rule 45.
10. Divorce.
Even if jurisdictional objection to entertaining plaintiff's motion to vacate divorce decree based on district
court rule fixing a period of six months within which a judgment might be modified or vacated could be
waived, executors of estate of defendant, since deceased, did not waive the objection, where executors
made their objection at proper time and made it one of the grounds of their motion for a rehearing, and they
asked for no relief except what was proper in opposing plaintiff's motion. District Court Rules, rule 45.
Original proceeding in prohibition by Theodore A. Lauer and others, as executors of the
last will of Edward E. B. Adams, deceased, against the Eighth Judicial District Court of the
State of Nevada in and for the County of Clark, and the Honorable George E. Marshall, the
Presiding Judge thereof, to restrain respondents from taking any further proceedings in a
divorce action in which petitioners' decedent was defendant. Alternative writ made
absolute.
Thatcher & Woodburn and William J. Forman, all of Reno, and McNamee & McNamee, of
Las Vegas, for Petitioners.
Chas. Lee Horsey, of Las Vegas, and Austin Sherman, of Los Angeles, Calif., for
Respondents.
OPINION
By the Court, Taber, J.:
December 28, 1938, in the Eighth judicial district court, Clark County, Elizabeth C.
62 Nev. 78, 80 (1943) Lauer et al. v. District Court
court, Clark County, Elizabeth C. Adams commenced suit for divorce against Edward E. B.
Adams on the ground of extreme cruelty. On the same day an answer to the complaint was
filed on behalf of the defendant, and on the following day the case was tried and a decree of
divorce rendered and entered in favor of plaintiff.
August 23, 1941, defendant died testate in the State of New York, leaving a large estate
therein, and on September 9, 1941, petitioners herein were appointed and qualified as
executors of his will.
May 11, 1942, plaintiff noticed a motion for an order vacating said decree of divorce on
the ground that, not desiring a divorce, she had been fraudulently induced by threats of
scandal to obtain one, so that in the event of her husband's death she would not be entitled,
under the laws of the state of New York, to elect to take one half of his estate. See
McKinney's Consolidated Laws of New York, Annotated, Book 13, Decedent Estate Law,
sec. 18. In support of this motion she filed an affidavit setting forth alleged facts and
circumstances constituting, as she contends, extrinsic fraud. In her affidavit it is stated that
she first learned of the existence of said New York law in February 1942, when so advised by
her California and New York attorneys; and that her New Jersey and Nevada attorneys,
respectively, first learned of said law in February and March 1942.
July 1, 1942, the executors filed written objections to the assuming or exercising of any
jurisdiction by the district court with regard to and in respect to plaintiff notice of motion to
vacate judgment. One of the grounds of objection was that the district court had lost
jurisdiction in the divorce case by lapse of time after rendition and entry of judgment, since
more than six months had elapsed, and said court did not expressly or otherwise retain
jurisdiction; that the assuming or exercising by said court of any jurisdiction in reference to
said motion would be in violation of district court rule XLV.
July 10, 1942, executors' jurisdictional objections were argued, and by the court
overruled.
62 Nev. 78, 81 (1943) Lauer et al. v. District Court
argued, and by the court overruled. The court then proceeded to hear plaintiff's motion on the
merits, and documentary evidence was introduced in her behalf. The executors, who had been
substituted as parties defendant, did not offer any testimony or evidence. The motion was
argued, and on August 4, 1942, the court vacated the decree of divorce. August 13, 1942, the
executors served and filed notice of intention to move for a new trial.
August 14, 1942, the executors noticed a motion for an order granting a rehearing of
plaintiff's motion to vacate and set aside said decree. The grounds for this motion were, in
part, that defendant's executors, through mistake, inadvertence, surprise and excusable
neglect, were prevented from presenting a full and adequate defense on the merits to the said
motion, and upon the ground that defendant's executors have a full, complete and meritorious
defense to said motion on the merits thereof, and upon the further ground that the above
named Court was without jurisdiction to make and enter said order vacating the decree of
divorce in the above entitled action * * *. The supporting affidavits showed, among other
things, that one member of the Las Vegas firm which had been handling the executors' case in
conjunction with eastern attorneys, was suddenly called into the military service; that the only
other member of said firm was not familiar with the case, nor advised concerning the
correspondence which had taken place between his partner and the eastern attorneys; and that
by reason of the foregoing, and of other facts and circumstances not necessary to be detailed
here, the executors were prevented from presenting a full and adequate defense on the merits
to plaintiff's motion to vacate the decree of divorce. The executors also presented alleged
facts purporting to show that they had meritorious defense to said motion.
The motion for a new trial and the motion for rehearing came on to be heard August 28,
1942, and on October 2, 1942, the motion for a new trial was denied, but the motion for a
rehearing was granted.
62 Nev. 78, 82 (1943) Lauer et al. v. District Court
the motion for a rehearing was granted. In granting the rehearing the court did not expressly
rule again on the jurisdictional objections. In his written decision granting the rehearing the
district judge said, the Court is satisfied that the defendants could have introduced evidence
in opposition to the affidavit of Elizabeth C. Adams, and that the best interests of justice will
be subserved by permitting the substituted defendants to appear and present such evidence as
they may have going to the merits of the case.
On January 22, 1943, the executors, in the present proceeding, applied for a writ of
prohibition asking that the district court be forever restrained from taking any further
proceedings in said divorce action respecting the decree of December 29, 1942. Petitioners
base their application upon the ground that the district court has no jurisdiction over either the
subject matter mentioned in plaintiff's notice of motion to vacate the divorce decree, or of the
executors in that proceeding, for the following reasons: (1) Said notice of motion was not
given within six months after the time when said judgment and decree of divorce was
rendered in said action No. 8971, and said judgment and decree of divorce contained no
reservation of jurisdiction whatsoever, and that for said Eighth Judicial District Court of the
State of Nevada, in and for the County of Clark to assume jurisdiction over said proceeding
would be in violation of Rule XLV of Rules of the District Court of the State of Nevada; (2)
The facts set forth in affidavits served with said notice or any facts set forth in any affidavits
or proof made upon the motion for rehearing of said motion are wholly insufficient to
constitute a ground for setting aside said judgment and decree of divorce rendered in said
district court on the 29th day of December, 1938.
The main question in this proceeding is whether the lower court, in setting aside the
divorce decree, acted without or in excess of its jurisdiction. There are cases in which a
district court may set aside its judgment in a separate action commenced more than six
months after the judgment was rendered;
62 Nev. 78, 83 (1943) Lauer et al. v. District Court
a separate action commenced more than six months after the judgment was rendered; but the
question confronting us here is whether the lower court was within its jurisdiction in setting
aside the divorce decree on motion in the original action. The practice in proceedings and
actions to vacate judgments is in many respects so conflicting in the different states that few
rules can be laid down as universally applicable. Freeman on Judgments, 5th Ed., vol. 1, p.
376. It is important, therefore, that in this case we concern ourselves with the practice in our
own state.
In the early days of Nevada when there were terms of the district courts it was held, in
accordance with the universal rule, that during the term in which a judgment was rendered the
court had complete control of it, and upon a proper showing could unquestionably set it aside.
Ballard v. Purcell, 1 Nev. 342, 344. It was also held, with some exceptions, that a judgment
could not be set aside or substantially modified by such courts after the term at which it was
rendered. Daniels v. Daniels, 12 Nev. 118, at page 121; Sweeney v. Sweeney, 42 Nev. 431, at
page 438, 179 P. 638.
1. Terms of the district courts were abolished in 1885, but in 1887 district court rule XLV
was adopted, which, in its present form, reads: No judgment, order, or other judicial act or
proceeding, shall be vacated, amended, modified, or corrected by the court or judge
rendering, making, or ordering the same, unless the party desiring such vacation, amendment,
modification, or correction shall give notice to the adverse party of a motion therefor, within
six months after such judgment was rendered, order made, or action or proceeding taken.
This court rule was adopted to take the place of the former rule requiring motions to vacate
judgment to be noticed during the terms at which they were rendered. See In re Ralph's
Estate, 49 Ariz. 391, 67 P. 2d 230; and cf. Becker v. Loebs Ins. Agency Co., 304 Ill. App.
575, 26 N. E. 2d 653.
2. By virtue of district court rule XLV, judgments,
62 Nev. 78, 84 (1943) Lauer et al. v. District Court
which formerly could not be set aside by a district court after the expiration of the terms at
which they were rendered, cannot now be set aside by motion noticed more than six months
after they are rendered. The court rule fixes a definite time limit within which judgments may
be so vacated or substantially altered. Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A. L. R.
824; Crowell v. Second Judicial District Court, 54 Nev. 400, 19 P. 2d 635.
3, 4. Rule XLV does not apply to a judgment void on its face, but it is not contended that
such a judgment is under consideration here; the judgment roll is, in all respects, regular on
its face. Nor does said rule apply to separate or independent suits brought to set aside
judgments. It only applies to motions in the original or principal case to vacate, amend,
modify or correct judgments, orders, or other judicial acts or proceedings therein.
Under some circumstances and for some purposes, district courts may retain jurisdiction of
actions after the expiration of six months from rendition of judgment. State ex rel. Jones v.
Second Judicial District Court, 59 Nev. 460, 96 P.2d 1096, 98 P.2d 1096; Lewis v. Lewis, 53
Nev. 398, 2 P.2d 131. The instant case does not come within these or any other exceptions to
the six months' rule.
5. District courts have the inherent power to set aside judgments procured by extrinsic
fraud, and respondents contend that the time for exercising such jurisdiction by motion in the
original cause cannot be limited by a rule of court. They argue: (1) That the district court
could not oust itself of jurisdiction by merely adopting rules; (2) that rule XLV pertains to
discretion rather than absolute jurisdictional limitation; (3) that rule XLV does not attain the
dignity of statutory law or substantive law; and (4) that rule XLV is in conflict with the law
that the district court has the inherent power to set aside a decree rendered by it on the ground
of fraud.
62 Nev. 78, 85 (1943) Lauer et al. v. District Court
6. Court rules, when not inconsistent with the constitution or laws of the state, have the
effect of statutes. Lightle v. Ivancovich, 10 Nev. 41; Haley v. Eureka County Bank, 20 Nev.
410, 22 P. 1098; Brooks v. Nevada Nickel Syndicate, 24 Nev. 264, 52 P. 575; Id., 24 Nev.
311, 53 P. 597; Beco v. Tonopah Extension M. Co., 37 Nev. 199, 141 P. 453. As we interpret
said rule XLV, it does not purport to take away or lessen the jurisdiction of district courts to
set aside judgments procured by extrinsic fraud. It does not add, nor does it take away, any
grounds for vacating or setting aside judgments. Its effect, when applied to cases like that at
bar, is simply to require that such jurisdiction, when invoked more than six months after
rendition of judgment, must be exercised in a separate action, not by motion in the action
wherein the judgment was rendered. It is one of the rules of practice and procedure for the
government of the district courts, adopted pursuant to sec. 590 of the civil practice act of
1869, Stats. of Nevada, 1869, chap. CXII, pp. 196, 286. See sec. 8377, N. C. L. 1929, and 19
Nev. 21-23. Cf. Carmichael v. Schaefer Heights Land Co., 217 Mich. 420, 186 N. W. 481. In
Brooks v. Nevada Nickel Syndicate, supra [24 Nev. 264, 52 P. 576], it was said: There being
no statutory rule regulating the practice in these matters, this rule has the force and effect of a
statute. There being no statute in this state regulating the practice on motions to vacate
judgments on the ground of fraud, and in view of the Lang Syne and Stimson cases
hereinafter cited, we hold that it is within the province of a court rule to limit the time for
noticing such motions, and that said court rule applies to them.
7. The court is familiar with the rule laid down in McGuinness v. Superior Court, 196 Cal.
222, 237 P. 42, 40 A. L. R. 1110, and similar holdings in some other jurisdictions (see 27 C.
J. S., Divorce, sec. 169, p. 808, note 18); but a review of our own decisions convinces us that
under the law of this state, when an application is made in a district court to vacate a
judgment upon the ground that it was procured by extrinsic fraud,
62 Nev. 78, 86 (1943) Lauer et al. v. District Court
the ground that it was procured by extrinsic fraud, it cannot be made by motion in the original
cause noticed more than six months from the rendition of the decree.
We have already seen that when there were terms of the district courts in this state it was
held, with some exceptions not applicable here, that a judgment could not be set aside or
substantially modified by such courts after the term at which it was rendered. Similarly, since
the adoption of district court rule XLV, it has been uniformly held, with some exceptions not
applicable in this case, that a judgment cannot be vacated or substantially modified on motion
in the original cause noticed more than six months after its rendition. Crowell v. District
Court, 54 Nev. 400, 19 P. 2d 635; Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A. L. R. 824.
The decisions in these two cases were based upon said court rule. In neither of them,
however, was the judgment sought to be vacated on the ground of fraud, and the same is true
of the Daniels and Sweeney cases cited heretofore in this opinion. None of them, therefore,
constitutes a complete answer to respondents' contention. But there are at least two other
cases which show that the term of court rule and the six months rule, respectively, apply
also to cases wherein the judgment is attacked on the ground of fraud: Lang Syne Gold Min.
Co. v. Ross, 20 Nev. 127, 18 P. 358, 19 Am. St. Rep. 337, and Stimson v. Sixth Judicial
District Court, 47 Nev. 156, 217 P. 588, 223 P. 823.
The Lang Syne case was an action in equity to set aside, upon the ground of fraud, the
judgment, execution, certificate of sale, and deeds thereunder in another suit. Defendant Ross
demurred to the complaint, one of the grounds of demurrer being that the court had no
jurisdiction of the subject of the action, in that the complaint did not show that plaintiff used
or exhausted its legal remedies. One of the legal remedies suggested by defendant Ross was
that plaintiff could have moved to set aside the judgment taken against it through its mistake,
inadvertence or excusable neglect. This court said [20 Nev. 127
62 Nev. 78, 87 (1943) Lauer et al. v. District Court
said [20 Nev. 127, 18 P. 361, 19 Am. St. Rep. 337]: The remedy by motion, if any existed,
was not lost without any fault or negligence upon the part of plaintiff. The action, brought by
Gould, was commenced September 9, the default was entered September 21, and the
execution was issued October 16, 1882. The published notice of sale could not, therefore,
have been seen by the president of plaintiff, in New york, earlier than the 21st of October,
1882. The term of the district court at which the judgment was rendered, expired on the 9th of
October, 1882. Stats. 1879, 62. The statutory remedy by motion, in cases where there has
been a personal service of the summons, is only available during the term at which the
judgment is rendered. Daniels v. Daniels, 12 Nev. 118, and authorities there cited.
In the Stimson case [47 Nev. 156, 217 P. 589] the service of process was by publication.
At that time section 142 of the civil practice act provided in part: And 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. (Said section 142, as amended, may be
found at pp. 205, 206 of the 1939 Stats. of Nevada, chap. 154, and at p. 1192 of vol. 2 of the
1931-1941 Supp. to N. C. L.sec. 8640, N. C. L. It does not, nor does any part of it, apply to
the instant case.) About eleven years after rendition of a decree of divorce to the husband, the
wife noticed a motion to have it vacated. In her supporting affidavit she stated that the order
for publication of summons was obtained by fraud, in that at the time of making the affidavit
upon which the order of publication of summons was obtained and at the time said order was
obtained, plaintiff husband knew that she resided at Corvallis, in the State of Oregon, and that
her post-office address was at that place; and that plaintiff's affidavit was false and untrue,
62 Nev. 78, 88 (1943) Lauer et al. v. District Court
untrue, and was made for the purpose of concealing the pendency of the action, and obtaining
a decree of divorce without her knowledge, and to conceal from the court her whereabouts
and to prevent her from making a defense to the action. In their brief in the present
proceedings respondents say that the wife's affidavit in the Stimson case presents intrinsic,
not extrinsic fraud. We do not agree; her affidavit, in our opinion, presents a clear case of
extrinsic fraud not only as to the wife, but upon the court as well. The husband objected to the
court's hearing the motion, on the ground that it had no jurisdiction. His objection having
been overruled, he applied for a writ of prohibition. This court, in the course of its opinion,
said: But it is strenuously insisted and argued on behalf of the respondents that where it is
made to appear by motion that the judgment was obtained by the plaintiff's fraudulent and
wrongful conduct in obtaining service of process, and where it is made to appear from the
motion that the judgment is a fraud upon the defendant and upon the court, the court, in
furtherance of justice and the preservation of the integrity of its own process, has the right,
and it is its duty, to entertain the motion to vacate the judgment, independently of the statute.
It was held, however, that the district court had lost jurisdiction when the order to vacate was
made, that the wife's remedy by motion was gone, and that if she had any remedy it would be
by separate action in equity. (In the following Nevada cases attacks on judgments upon the
ground of fraud were made by separate action; Calvert v. Calvert, 61 Nev. 168, 122 P. 2d
426; Wade v. Wade, 41 Nev. 533, 173 P. 553; Nevada Consol. Min. & M. Co. v. Lewis, 34
Nev. 500, 126 P. 105; Lang Syne Gold M. Co. v. Ross, 20 Nev. 127, 18 P. 358, 19 Am St.
Rep. 337.)
8. In the present case the action of the district court in vacating the divorce decree was
without jurisdiction and void. Daniels v. Daniels, 12 Nev. 118, 120.
62 Nev. 78, 89 (1943) Lauer et al. v. District Court
In the foregoing discussion relating to jurisdiction, we have assumed that Mrs. Adams'
showing in the lower court presents the case of a decree which she was induced, by means of
extrinsic fraud, to procure. This assumption was for purposes of discussion only, and nothing
herein is to be understood as indicating any opinion on the part of the court as to whether she
has made out such a case.
9, 10. Respondents contend that petitioners have waived the benefits, if any, of district
court rule XLV by the appearances made and proceedings had in the district court. They cite
Raps v. Raps, 20 Cal. 2d 382, 125 P. 2d 826, wherein it was held that where the husband
moved to set aside a decree of divorce in favor of his deceased wife, the appearance in court
of the attorney in behalf of the executrix for the purpose of challenging the jurisdiction of the
court to entertain the motion on the ground that the court had no jurisdiction over the subject
matter constituted a general appearance by the executrix notwithstanding that the attorney
also interposed an objection to the jurisdiction of the person of the executrix. (In the instant
case, besides the alleged loss of jurisdiction by lapse of time, the executors objected to the
hearing of the motion to vacate upon the further ground that there had been no adequate,
effective or sufficient service of the notice of motion.) A reading of the Raps case discloses
that, under the California rule, the order vacating the decree of divorce was within the
jurisdiction of the trial court. In the present case the order vacating the decree was without the
trial court's jurisdiction, and void. In Stimson v. Sixth Judicial District Court, 47 Nev. 156,
217 P. 588, 589, 223 P. 823, this court said: Whether the petitioner by resisting the motion
appeared specially or generally is wholly immaterial, as we conclude that the respondent
court is without jurisdiction to entertain the motion. If, as a matter of law, the jurisdictional
objection based on the six months' rule could be waived under any circumstances,
62 Nev. 78, 90 (1943) Lauer et al. v. District Court
any circumstances, we think there would be no waiver in this case because (a) the executors
made their objection at the proper time, and also made it one of the grounds of their motion
for a rehearing; and (b) they asked for no relief except what was proper and necessary in
opposing plaintiff's motion.
In their return and answer, respondents say that petitioners are attempting to convert this
proceeding for prohibition into a proceeding in certiorari or an appeal. Certiorari would not
lie, because the executors could have appealed. But an appeal from the order vacating the
decree would not have been adequate, because the executors had been excusably prevented
from making a full and adequate showing on the merits of the motion. True, the executors
could proceed with the rehearing, and appeal in the event of an adverse decision. But if this
court should require that such a course be pursued, we would be directing the lower court to
proceed, at great expense to the parties, with a matter which it has no power to hear. That
court is as completely without jurisdiction to rehear the motion to vacate as it was to hear it in
the first place.
It is ordered and adjudged that the alternative writ be made absolute.
NoteOrr, C. J., being disqualified, the Governor designated Hon. Thomas J. D. Salter,
Judge of the Sixth Judicial District, to sit in his stead.
____________
62 Nev. 91, 91 (1943) Lemp v. Lemp
AGNES C. LEMP, Appellant, v. WILLIAM J.
LEMP, III, Respondent.
No. 3389
September 23, 1943. 141 P.(2d) 212.
1. Divorce.
On death of party to divorce suit pending appeal from divorce decree, appeal abates with respect to
marital status but not as to property interests involved.
2. Divorce.
A defendant in divorce action may have affirmative relief by way of cross-complaint, but only such as
practice of English ecclesiastical courts would have afforded him, in absence of express legislation on
matter.
3. Divorce.
In husband's divorce suit, wife has no right to seek by cross-complaint or counter-claim a straight money
judgment against husband for amount of unpaid loan or overdue separate maintenance awarded wife by
foreign state court's decree, nor a judgment for return of borrowed securities or their value. Comp. Laws,
secs. 8604, 8608, and sec. 8603, as amended by Stats. 1931, c. 148.
4. Divorce.
The practice of English ecclesiastical courts as to affirmative relief which defendants in divorce cases
may have is part of Nevada common law.
5. Divorce.
In husband's divorce suit, court erred in striking out allegations of facts in wife's affirmative defenses of
husband's indebtedness for overdue separate maintenance awarded wife by foreign state court's decree and
amount owing her on account of loan of securities and money to husband, as such facts might reasonably
be expected to influence court's discretion, regardless of their sufficiency as grounds for divorce.
6. Divorce.
A divorced wife's right to alimony is personal, not property right.
7. Divorce.
In husband's suit for divorce on ground that parties have lived separate and apart for three consecutive
years without cohabitation, wife's pleas in affirmative defenses of answer that husband is indebted to her
for amount of money and securities loaned him by her and overdue separate maintenance money awarded
her by foreign state court's decree do not give rise to controversy involving property rights, even if such
amounts are debts, which are not debtor's property, so that wife's appeal from decree granting husband
divorce abates on husband's death. Comp. Laws, sec. 9467.06, as amended by Stats. 1939, c. 23.
62 Nev. 91, 92 (1943) Lemp v. Lemp
8. Divorce.
In husband's divorce suit, plaintiff, by failing to bring any property rights before court for adjudication,
waived any claim or right in or to any property of defendant.
9. Divorce.
In husband's divorce suit on ground that parties have lived separate and apart for three successive years
without cohabitation, where defendant does not show or suggest by affidavits or other evidence, in
connection with motion to dismiss her appeal from decree granting husband divorce, that failure to reverse
decree would deprive defendant of, or prejudice her with respect to, any property rights, though motion is
based partly on contention that no such rights are involved, appeal should be dismissed. Comp. Laws, sec.
9467.06, as amended by Stats. 1939, c. 23.
10. Divorce.
In husband's suit for divorce on ground that parties have lived separate and apart for three consecutive
years without cohabitation, where no wrongdoing is imputed to defendant in trial court's findings or decree
granting husband divorce, defendant's appeal therefrom should be dismissed as against contention that she
will be in position of having violated her marital obligations unless decree is reversed, for trial court may
grant divorce on such ground to a plaintiff who has been at fault from a defendant entirely without fault, in
absence of abuse of discretion.
11. Divorce.
In divorce suit, an appellant wife having good ground for taking appeal will be awarded costs in supreme
court, though appeal is dismissed.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Suit for divorce by William J. Lemp, III, against Agnes C. Lemp, who filed
cross-complaints for sums due defendant under a decree awarding her separate support and
maintenance and because of her loan of bonds, stock and money to plaintiff. From a decree
granting plaintiff a divorce and an order sustaining his motion to strike out the defenses and
such cross-complaints in defendant's original answer, defendant appeals. Appeal dismissed.
William S. Boyle, of Reno, for Appellant.
Edward F. Lunsford and Bert Goldwater, both of Reno, Amici Curiae and Movants.
62 Nev. 91, 93 (1943) Lemp v. Lemp
OPINION
By the Court, Taber, J.:
Chapter 23 of the 1939 Statutes of Nevada provides that: Divorce from the bonds of
matrimony may be obtained, in addition to the causes now provided by law and subject to the
same procedure and requirements, for the following cause: When the husband and wife have
lived separate and apart for three consecutive years without cohabitation the court may, in its
discretion, grant an absolute decree of divorce at the suit of either party. Stats. of Nevada,
1939, chap. 23, pp. 16, 17, sec. 9467.06, N. C. L. 1931-1941 Supp., vol. 2, pp. 1280, 1281.
Upon this ground, in the First judicial district court, county of Ormsby, William J. Lemp, III,
in July 1942 brought suit for divorce against his wife Agnes C. Lemp. Besides the cause for
divorce, the complaint alleges residence on the part of plaintiff, the marriage in Chicago July
14, 1928, and the fact that there were no children. No mention was made of property of any
kind. Dissolution of the marriage was the only relief prayed for.
In her answer defendant (appellant) admitted that there were no children, and that the
parties had lived separate and apart without cohabitation for more than three years last
preceding the commencement of the suit. As a defense to plaintiff's cause of action, defendant
alleged that by reason of plaintiff's extreme cruelty she had been compelled to file an action
in Missouri for separate maintenance; that Mr. Lemp was personally served with summons in
said action in said state; that on February 8, 1937, the circuit court of St. Louis County
awarded her a decree adjudging that she have and recover of defendant as and for her separate
support and maintenance $125 per month, together with $250 attorney's fees, and costs; and
that by reason of the foregoing, defendant was not the cause of the separation alleged in
plaintiff's complaint as ground for divorce.
62 Nev. 91, 94 (1943) Lemp v. Lemp
As a second and separate defense defendant alleged that plaintiff had not paid said sum of
$125 per month, or any part thereof, and that as a result thereof there was due her at the time
of filing her answer the sum of $8,500, together with $510 interest and $250 attorney's fees
and $15.05 costs, making in the aggregate $9,275.05; also, that during the marriage plaintiff
borrowed from defendant bonds, stock and money aggregating $9,096.69, all of which he had
converted to his own use, by reason whereof there was due and owing defendant said sum of
$9,096.69, together with $510 interest, making in the aggregate $9,606.69.
Defendant's answer also contained two cross-complaints, the first for said sum of
$9,275.05 owing on account of the separate maintenance suit, and the second for said sum of
$9,606.69 owing on account of said loan of bonds, stock and money.
In the prayer of her said answer defendant asked that a decree of divorce be denied
plaintiff, that he be required to pay her said sum of $9,275.05, and that he be required further
to return to her said bonds, stocks and money, with interest, or the value thereof with interest,
amounting to $9,606.69.
Upon motion of plaintiff the trial court struck from defendant's answer both of said
defenses and both of said cross-complaints.
On November 18, 1942, defendant, with leave of court, filed her amended answer wherein
as a first defense she alleged extreme cruelty on the part of plaintiff, and as a second and
separate defense his neglect for the period of one year to provide her with the common
necessaries of life, said neglect not being the result of poverty on his part which he could not
have avoided by ordinary industry.
Said amended answer also contains two cross-complaints, the first based on extreme
cruelty as alleged in said first defense, and the second on neglect to provide defendant with
the common necessaries of life as alleged in said second defense.
62 Nev. 91, 95 (1943) Lemp v. Lemp
In the amended answer defendant prays that plaintiff be denied a decree of divorce, and
that she be awarded permanent alimony in the sum of $200 a month.
In due time plaintiff filed his reply to said amended answer, and after a trial without jury
on December 17, 1942, the district court awarded plaintiff a decree of divorce in which no
mention was made of alimony or any kind of property. In the findings of fact the trial court
mention the Missouri decree of separate maintenance which had been granted Mrs. Lemp
upon the ground of her husband's cruelty. Referring to said decree the court said: That in the
awarding of the decree herein as hereinafter set forth, this Court does not undertake to
adjudicate any rights of the parties under the said decree of separate maintenance, the Court
being of the opinion that the said decree of separate maintenance is outside of the issues in
this case, and that the Court is without jurisdiction to make any order herein which would
affect, supersede or set aside any rights which the defendant herein may have under and by
virtue of the said decree of separate maintenance.
Defendant appealed from the decree of divorce and from the trial court's intermediate
order sustaining plaintiff's motion to strike the two defenses and the two cross-complaints set
forth in defendant's original answer. No motion for new trial was made, and the record does
not contain any transcript or statement of evidence.
The husband died eleven days after the filing of appellant's opening brief. On April 7,
1943, and before anything further was done with reference to the appeal, counsel who had
theretofore been the husband's attorneys appeared herein as officers of the court and filed
their written suggestion and motion that the appeal be dismissed upon the following grounds:
First: It is an action relating to a purely personal status, and the death of one of the parties
abates the action. Second: From an inspection of the Record on Appeal, it will be found that
no property rights are involved in this action.
62 Nev. 91, 96 (1943) Lemp v. Lemp
an inspection of the Record on Appeal, it will be found that no property rights are involved in
this action. Third: The proposed affirmative answers and cross-complaints, the striking of
which by the lower court is assigned as error on this Appeal, do not constitute defenses to the
Complaint and are improper pleadings. Fourth: The questions raised on the Appeal have now
become moot, and it is futile to pursue the Appeal further. Fifth: Due to the death of the
Respondent, there is no party Respondent to this Appeal and further litigation will not be
binding upon any person or persons, and the Court will have no jurisdiction to act, even in the
event a new trial be ordered. On April 9, 1943 appellant filed her answer to said suggestion
and motion, opposing each and every ground upon which they are made, but not denying the
fact of the husband's death.
1. Where a party to a divorce suit dies pending an appeal from a decree of divorce the
appeal, according to the great weight of authority, abates with respect to the marital status,
but not so far as property interests are involved. Annotation, 30 A. L. R. 1469-1471; 1 Am.
Jr. 102, n. 20; 1 C. J. S., Abatement and Revival, sec. 128, p. 176, notes 15-17; 27 C. J. S.,
Divorce, sec. 188, p. 848, notes 93, 94; Nelson on Divorce and Separation, vol. II, sec. 729a,
pp. 671, 672; U. of Cin. Law Rev., vol. IX, pp. 304-305 (May, 1935); Annotation, 125 Am.
St. Rep. 243-245; Columbia Law Rev., vol. 27, p. 1002 (Dec. 1927). The court has examined
the cases cited in the forgoing secondary authorities; also the cases on this subject decided
within the last few years, including: McPherson v. McPherson, 200 Wash. 365, 93 P.2d 428;
Cox v. Dodd, 242 Ala. 37, 4 So. 2d 736; Stoup v. Stoup, 109 Ind. App. 618, 35 N. E. 2d 112;
North v. Ringling, 149 Fla. 739, 752, 7 So. 2d 476.
If the trial court was correct in its ruling on plaintiff's motion to strike, no controversy
concerning property rights is involved in this case; but appellant contends that the striking of
her affirmative defenses and cross-complaints constituted reversible error, and that therefore
this court in determining whether property rights are involved,
62 Nev. 91, 97 (1943) Lemp v. Lemp
that therefore this court in determining whether property rights are involved, should consider
the question as if plaintiff's motion to strike had been denied.
We think the district court's action in granting plaintiff's motion to strike defendant's
cross-complaints was correct. In support of her contention that the cross-complaints were
proper, appellant relies upon the sections of our civil practice act relating to counterclaims
and cross-complaints, and upon Mott v. Mott, 82 Cal. 413, 22 P. 1140, 1142. The
counterclaim section is sec. 8603 N. C. L. 1929, which was amended in 1931, Stats. of Nev.
1931, chap. 148, p. 239, and as amended may be found at page 1188 of vol. 2 of the
1931-1941 Supplement to N. C. L. The cross-complaint section is sec. 8608, N. C. L. 1929.
Appellant also relies on sec. 8604, N. C. L. 1929, it being her contention that she would have
been foreclosed from setting up the matters contained in her cross-complaints had she not
pleaded them therein. In this connection she cites the last sentence in sec. 272 of Divorce
and Separation, 9 R. C. L. 461 (17 Am. Jur. 401).
2. In this state a defendant in a divorce action may have affirmative relief by way of
cross-complaint. State v. Moran, 37 Nev. 404, 142 P. 534; Hilton v. Second Judicial District
Court, 43 Nev. 128, 183 P. 317. But in the absence of express legislation upon the matter in
divorce cases the relief defendant may have is such as the practice of the English
ecclesiastical courts would have afforded him. Wuest v. Wuest, 17 Nev. 217, 30 P. 886; State
v. Moran, supra, 37 Nev. at page 408, 142 P. at page 535; State v. Moore, 46 Nev. 65, at page
80, 207 P. 75, 22 A. L. R. 1101; 19 C. J. 117, n. 44; 27 C. J. S., Divorce, sec. 11; 7 Encyc. of
Pl. & Pr. 96, 97, n. 1; 14 Cyc. 672, 673, n. 45; Nelson on Divorce and Separation, vol. II, p.
694, n. 5, p. 698, nn. 2, 3. Appellant's arguments based on statutory provisions in our civil
practice act and on Mott v. Mott, supra, are therefore without merit. In the Mott case it was
decided that the cross-complaint section of the code of civil procedure applies to divorce
cases.
62 Nev. 91, 98 (1943) Lemp v. Lemp
procedure applies to divorce cases. It may further be observed, with reference to that case that
the affirmative relief asked by defendant wife, unlike that in the original answer in the instant
case, was that plaintiff be required to pay her permanent alimony and support, and provide
funds for her counsel fees and costs of suit.
3, 4. Counsel has cited no cases in which the defendant in a divorce action has been
permitted by cross-complaint to seek a straight money judgment against plaintiff for an
unpaid loan or for the amount of overdue separate maintenance money decreed in a previous
suit, or a judgment for the return of borrowed securities or their value. With one exception
(Cooper v. Cooper, 120 Fla. 607, 163 So. 35) the court has been unable to find such a case,
either under statutes or under the practice of the English ecclesiastical courts which, insofar
as it relates to the affirmative relief defendants may have in divorce cases, has been adopted
as a part of our common law. Wuest v. Wuest, supra. Nor have we seen such a case cited in
any of the various treaties and texts examined by the court, among them being the following:
Halsbury's Laws of England, vol. 16, pp. 515, 516, secs. 1046, 1047; Browning's Laws of
Marriage and Divorce (London 1872) pp. 13, 177; 27 C. J. S., Divorce, secs. 11, 115; 17 Am.
Jur., Divorce, sec. 329; 19 C. J., Divorce, sec. 303, n. 44, sec. 305; Nelson on Divorce and
Separation, vol. II, secs. 744, 745, nn. 2, 3; Bishop on Marriage and Divorce, 6th Ed., vol.2,
sec. 316; Bancroft's Code Pleading, vol. 3, sec. 1361; 7 Standard Encyc. of Proc. 780, 781; 14
Cyc. 672-674; 7 Encyc. of Pl. & Pr. 96-99. Wuest v. Wuest, supra, is cited in at least six of
the foregoing tests. Cooper v. Cooper, supra, was a divorce case in which the marriage
ceremony was conceived and perpetrated through fraud on the part of plaintiff wife, who used
it as a means by which to defraud her husband, the defendant, of certain stocks. It was held
that defendant, by counterclaim, could properly demand that the trial court command
plaintiff to transfer the stocks to defendant, or in default thereof pay him their value.
62 Nev. 91, 99 (1943) Lemp v. Lemp
court command plaintiff to transfer the stocks to defendant, or in default thereof pay him their
value. Florida is one of the states where defendants in divorce cases may have affirmative
relief under the provisions of the counterclaim statutes, and the decision in the Cooper case
was based on those statutory provisions.
As the alleged unpaid loan and overdue separate maintenance money are not, in Nevada,
proper subjects of cross-complaint or counterclaim, it is unnecessary to discuss appellant's
argument based on sec. 8604 N. C. L. 1929, and on 9 R. C. L. 461, n. 15.
5. In the opinion of the court it was error for the trial court to strike the allegations of fact
in defendant's affirmative defenses. Whether or not the matters therein alleged were sufficient
of themselves to constitute grounds for divorce, they were such as might reasonably be
expected to influence that court's discretion. Jeffers v. Jeffers, 55 Nev. 201, 29 P. 2d 351.
6-8. We have now to determine whether property rights are involved in this case. The
court will consider that question as if defendant's affirmative defenses had not been stricken.
Appellant's contention that property rights are involved is based chiefly upon the debt owing
her for the bonds and money. She says that she is entitled to the payment of the money and
bonds due her from respondenttherefore the property rights survive. * * * Respondent
owed appellant the bonds and money. A debt existed and it is a property right. Counsel has
cited a number of cases holding that a debt of this kind is property, but no authority has been
cited to the effect that when such a debt is pleaded as a defense in this kind of divorce action,
it gives rise to a controversy involving property rights.
The purpose of the allegations in the affirmative defenses of defendant's original answer
was to set forth facts which if proved might influence the trial court in the exercise of the
discretion conferred upon it by statute to grant or deny a divorce where husband and wife
have lived separate and apart for three consecutive years without cohabitation.
62 Nev. 91, 100 (1943) Lemp v. Lemp
wife have lived separate and apart for three consecutive years without cohabitation. The
unpaid loan and overdue separate maintenance money might also be considered by that court
in connection with questions relating to support money, alimony and other allowances; but
the right to receive alimony is a personal, not a property right. Foy v. Smith's Estate, 58 Nev.
371, 81 P. 2d 1065. Whether or not an issue involving property rights would be raised if
either the unpaid loan or overdue separate maintenance money were a proper subject of
cross-complaint in this state, it seems clear that when such matters are pleaded in affirmative
defenses to a complaint for divorce on the ground above mentioned, such plea does not give
rise to a controversy involving property rights. If it be conceded that the unpaid loan is a debt,
and if it be assumed, for purposes of discussion, that the overdue separate maintenance
money is also a debt, neither one was the property of plaintiff, for, as stated in Dibert v.
D'Arcy, 248 Mo. 617, 154 S. W. 1116, at page 1129, debts are far from being the property'
of the debtor. Whether the plaintiff in fact owned any property the court does not know; but
nowhere in the record does it appear that he owned or had an interest in any kind of property
whatsoever. The record is all we have to go by, and it shows that if either of the parties had
any property, it was the defendant. Plaintiff did not bring any property rights before the court
for adjudication, and so waived any claim or right in or to any property of defendant.
Ambrose v. Moore, 46 Wash. 463, 90 P. 588, 11 L. R. A., N. S., 103. The only property, if
any, brought by defendant before the court for adjudication was her own. Under these
circumstances, even if defendant's affirmative defenses had not been stricken, the court is of
opinion that no controversy involving property rights would have been presented in this case.
9. If property rights were involved, the court would not dismiss the appeal. No property
rights being involved,
62 Nev. 91, 101 (1943) Lemp v. Lemp
involved, should we nevertheless deny the motion to dismiss, proceed with the appeal and,
without ordering a new trial, simply reverse the judgment, thus placing appellant in the
position of having been plaintiff's wife until he died, and, as counsel says, his widow for all
purposes since that time?
By the weight of authority the appeal should be dismissed, and no authority is cited to the
effect that it should not. The court, however, has considered this question and will now
briefly discuss it.
Though there is no controversy as to property rights in this case, it could be argued that
there may be property rights in fact, and that appellant might be denied her right of
inheritance or other property rights unless the judgment awarding plaintiff a divorce be
reversed. But if any facts or circumstances exist by reason of which, under any law, appellant
will be prejudiced with respect to her property rights unless there be a reversal, such could
have been shown by the presentation of affidavits or other evidence in connection with the
present motion. Chatterton v. Chatterton, 231 Ill. 449, 83 N. E. 161, 121 Am. St. Rep. 339.
Appellant had notice of the contention that no property rights are involved, as that was one of
the grounds upon which the suggestion and motion for dismissal was based; but except for
the unpaid loan and overdue separate maintenance money, she has not shown or suggested
that a failure to reverse the judgment would operate to deprive her of, or prejudice her with
respect to, any property right.
10. It could also be argued that unless there be a reversal, appellant will be in the position
of having violated her marital obligations, and that it would therefore be unfair to her to let
the decree of the trial court stand unreversed. The answer to such a contention is that in a
divorce case brought on the ground that the parties have lived separate and apart for three
consecutive years without cohabitation, the trial court may, provided its discretion be not
abused, grant a divorce to a plaintiff who has been at fault,
62 Nev. 91, 102 (1943) Lemp v. Lemp
plaintiff who has been at fault, from a defendant who has been entirely without fault. George
v. George, 56 Nev. 12, 41 P. 2d 1059, 97 A. L. R. 983. In the instant case no wrongdoing of
any kind was imputed to appellant, either in the court's findings or in the decree. In the
findings the court does point out that appellant had previously been awarded a separate
maintenance decree on the ground of plaintiff's cruelty. Certainly this is not a reflection on
appellant's character or conduct.
11. As appellant had good ground for taking an appeal, she will be awarded her costs in
this court.
Appeal dismissed, with costs to appellant.
____________
62 Nev. 102, 102 (1943) Stearns v. District Court
DAVE STEARNS, Et Al., Petitioners, v. EIGHTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, In and For the County of Clark, Et al., Respondents.
No. 3400
October 6, 1943. 142 P.(2d) 206.
1. Prohibition.
Prohibition will not lie unless the lower tribunal is without or has acted in excess of jurisdiction.
2. Courts.
A Nevada district court had jurisdiction of suit to restrain telegraph company from furnishing wire and
news service pertaining to horse racing to others than plaintiff in Clark County, Nevada, notwithstanding
that interstate commerce was involved.
3. Commerce.
Where Congress regulates commerce by enacting a statute, within its competency, that covers the same
subject matter as, or is in direct conflict with, a state statute, the exercised power of Congress is supreme
and exclusive, superseding the state law and excluding additional or further regulation covering the same
subject by the state legislature.
4. Pleading.
Where words or expressions exclusive or exclusive privilege did not appear in telegraph company's
contract relating to one single Morse lease and contract did not appear to give in express terms an
exclusive privilege, allegation that exclusive right to horse-racing wire service was given to
telegraph company's lessee was not an allegation of facts admitted by demurrer.
62 Nev. 102, 103 (1943) Stearns v. District Court
exclusive right to horse-racing wire service was given to telegraph company's lessee was not an allegation
of facts admitted by demurrer.
5. Evidence.
As respects telegraph wire service, the supreme court has no judicial knowledge as to what is meant by
one single Morse lease, nor can it take judicial notice of the modus operandi under such lease.
6. Prohibition.
The writ of prohibition should issue only where the absence or excess of jurisdiction is clear, and
ordinarily it will not be issued in doubtful cases.
7. Prohibition.
Where there was insufficient basis of fact to enable supreme court to decide whether district court had
exceeded its jurisdiction in issuing injunction restraining telegraph company from furnishing wire and news
service pertaining to horse racing to others than plaintiff in Clark County, petition for prohibition on
ground that telegraph company's contract for one single Morse lease created an unlawful preference and
discrimination was denied. Communications Act of 1934, sec. 202 (a,c), 47 U. S. C. A. sec. 202 (a,c).
Original proceeding in prohibition by Dave Stearns and another, doing business under the
fictitious firm name and style of Turf Club and Bar, against Eighth Judicial Court of the State
of Nevada, in and for the County of Clark, and Honorable George E. Marshall, as Presiding
Judge of such court, to restrain respondents from hearing any further matters or making any
further orders in a district court action, wherein M. M. Sedway, doing business under the
fictitious firm name and style of Soneva News Service, and M. M. Sedway individually, was
plaintiff and the Western Union Telegraph Company was defendant, and petitioners were
interveners. Alternative writ vacated and proceeding dismissed.
Roger Foley and Louis Wiener, Jr., both of Las Vegas, and M. A. Diskin, of Reno, for
Petitioners.
Thruston & McNamee, of Las Vegas, and Thatcher & Woodburn, of Reno, for
Respondent.
Lewis & Hawkins, of Las Vegas, Amici Curiae.
62 Nev. 102, 104 (1943) Stearns v. District Court
OPINION
By the Court, Taber, J.:
In February 1941 The Western Union Telegraph Company entered into the following
contract with Washoe Publishing Company:
Applicant: Washoe Publishing Co.
Address: 1109 Luhrs Tower Building,
Minimum period, One month,
Feb. 101941. Phoenix, Arizona.
The Western Union Telegraph Company
General Offices, 60 Hudson Street,
New York, N. Y.
Application for Special Contract Service
Service, Regular.
Monthly Charge: Approximately $7,000.00.
Payable monthly in advance.
Installation Charge:
Facilities, Station Locations and Periods of Service:
One single Morse lease connecting Washoe Pub. Co., Phoenix, Arizona with Missouri
Pub. Co., St. Louis, Mo., Harmony pub. Co., Kansas City, Kans., Las Vegas Daily Press, Las
Vegas, Nev., Tacoma Daily Enterprise, Tacoma, Wash., Northwest News Co., Seattle, Wash.,
E. M. White News Co., Vancouver, B. C., Metro News Co., Spokane, Wash., Helena News
Agency, Helena, Mont., A B C News Co., Butte, Mont., Billings News Agency, Billings,
Mont., Yuma Allied Press, Yuma, Ariz., and Tia Juana News Co., at Agua Caliente Race
Track, Tia Juana, Baja Calif.
The undersigned requests The Western Union Telegraph Company to furnish, subject to
and in accordance with its lawful rates and regulations, the service described (including such
modifications therein as may be ordered from time to time), for the established minimum
period and thereafter until terminated by written notice from the undersigned, unless earlier
terminated by the Company pursuant to its regulations, and agrees to pay for such service
according to the Company's established billing practices.
62 Nev. 102, 105 (1943) Stearns v. District Court
to pay for such service according to the Company's established billing practices. The
undersigned agrees that the facilities furnished under this tariff shall not be used for any
purpose or in any manner directly or indirectly in violation of any federal law or the laws of
any of the states where the equipment is located, and that the company may discontinue the
service to any drop or connection or to all drops and connections when it receives notice from
federal or state law enforcing agencies that the service is being supplied contrary to law. This
application shall become binding on both parties when accepted by the Company, such
acceptance to be evidenced by the signature of one of its officers hereon, or by the
establishment of the service.
(Signed) Washoe Publishing Co.

_____________________

Applicant
By (Sgd) A. Corica; Prop.

_____________________

Title
2/5/41

_____________________

Date
Accepted by the Company
(sgd) B. D. Barnett

_____________________

Assistant Vice President
Feb. 13, '41

_____________________

Date
In June, 1942, said Washoe Publishing Company entered into the following contract with M.
M. Sedway:
Complete General and Sport-News
Washoe Publishing Company
P. O. Box 3855
Phone 31607
Phoenix, Arizona
June 24, 1942
Mr. M. M. Sedway
Las Vegas
Nevada
Dear Sir:
Confirming our conversation of this date Washoe Publishing Company agrees to deliver
to you at Las Vegas,
62 Nev. 102, 106 (1943) Stearns v. District Court
Publishing Company agrees to deliver to you at Las Vegas, Nevada, news service with
exclusive privilege to you to control and distribute this news service in Las Vegas, Nevada,
and Clark County, Nevada, for a period of five years, starting July 13, 1942.
You will pay Washoe Publishing Company for this service the minimum of $900.00 per
week, payable weekly in advance. Any adjustments in the price of this service will be
mutually agreed upon between you and Washoe Publishing Company.
This news service will be transmitted and distributed to you at Las Vegas, Nevada, by the
Washoe Publishing Company over the facilities of the Western Union Telegraph Company
under a written contract which Washoe Publishing Company has made with Western Union
Telegraph Company.
Should an arrangement be made by Washoe Publishing Company for the use of other
facilities for the transmission and distribution of this news, Washoe Publishing Company
reserves the right to transmit and distribute service to you over such facilities.
Yours very truly,
Washoe Publishing Company,
By A. Corica,
Proprietor
AC:emh
On August 6, 1943, Sedway (Soneva News Service) commenced suit for an injunction
against the telegraph company. The verified complaint, after alleging the execution of the two
contracts above mentioned, went on to allege that defendant Western Union, in violation of
its said agreement with Washoe Publishing Company, was furnishing wire service and news
service pertaining to horse racing to others in Clark County than plaintiff, and in particular to
Dave Stearns and Sam Stearns, doing business at Las Vegas as the Turf Club and Bar. The
district court, on said verified complaint, issued an exparte injunction pendente lite
restraining the telegraph company from furnishing such service to any other than plaintiff
in Clark County.
62 Nev. 102, 107 (1943) Stearns v. District Court
telegraph company from furnishing such service to any other than plaintiff in Clark County.
On August 7, by leave of court, Dave Stearns and Sam Stearns, doing business as Turf
Club and Bar, intervened in said action. In their complaint in intervention they alleged that
Western Union had advised them that it would not continue furnishing them turf or racing
wire service until said injunction was dissolved; that they were entitled by contract to receive
such service from defendant telegraph company; and that they would be irreparably damaged
if the injunction were allowed to continue in effect.
On August 11 intervenors noticed a motion to dissolve the injunction. On the following
day they filed and served an amended complaint in intervention which contained also an
answer to plaintiff's complaint and a demurrer thereto, the demurrer being based on the
ground that the court had no jurisdiction of the subject matter of the action, and on the further
ground that the facts alleged in the complaint were insufficient to constitute a cause of action
against the intervenors. On the same day they also filed and served a separate demurrer to
said complaint on the same grounds.
On August 12 plaintiff noticed a motion to strike all papers theretofore filed by
intervenors. On that day the district court heard the motion to dissolve the injunction and the
motion to strike. At the conclusion of the consolidated hearing of these two motions, the trial
judge announced from the bench that he would take the matters presented under submission,
carry the original file to Los Angeles, where he was going that evening, for the purpose of
studying the matters submitted, and would within a few days file a written decision thereon.
The record does not disclose whether such decision has been filed.
On August 16 defendant demurred to plaintiff's complaint, upon the grounds, among
others, that the court had no jurisdiction of the subject matter of the action for the reason that
the subject matter involved was a matter of interstate commerce,
62 Nev. 102, 108 (1943) Stearns v. District Court
matter of interstate commerce, and that said complaint did not state facts sufficient to
constitute a cause of action. On the same day defendant noticed a motion to make said
complaint more definite and certain, and a motion to dissolve the injunction, the latter based
on the same two grounds, among others, as its demurrer, and upon the further ground that
plaintiff's complaint on its face showed that the contract entered into between plaintiff and
defendant, if any was so entered into, purports to grant exclusive service to one person by a
common carrier, which is prohibited by and contrary to law.
On August 17, upon petition of said Dave and Sam Stearns, an alternative writ of
prohibition issued out of this court restraining respondents from hearing any further matters
or making any further orders in said district court action until further order of this court.
On September 1 plaintiff filed, as of course, an amended complaint in said action. In this
complaint the contract between defendant and Washoe Publishing Company, and that
between the latter and plaintiff, were set forth in haec verba; such was not the case in his
original complaint. In said original complaint plaintiff alleged, not only that Washoe
Publishing Company had given him the exclusive right, within Clark County, to all wire
service pertaining to horse racing information and turf service, but also that defendant had
previously given Washoe Publishing Company the exclusive right to such service, which
right the latter company had assigned to plaintiff.
In his amended complaint plaintiff alleged, inter alia, that Washoe Publishing Company,
by virtue of its contract with defendant, had the right to receive exclusively such news service
as it was able to obtain from various sources pertaining to horse racing, racing service, turf
information, racing news, racing results, odds on races, and horses in races from various
tracks where horse races are run in the United States. It was further alleged that defendant, in
violation of its said agreement with Washoe Publishing Company,
62 Nev. 102, 109 (1943) Stearns v. District Court
agreement with Washoe Publishing Company, and of plaintiff's right under his contract with
the latter company, had installed or permitted the installation of a wire or loop from its
facilities, so that said wire service was being diverted to the petitioners (Turf Club and Bar) in
the city of Las Vegas, without the consent and over the protests of plaintiff.
On September 2, 1943, respondents filed herein their response and answer to the petition,
and on the same day the petition and the answer and response thereto were heard by this
court. Testimony was given by Dave Stearns for the purpose of showing that petitioners are
beneficially interested.
In the petition it is alleged that the Turf Club and Bar had been receiving said wire service
over the facilities of defendant for a long time, and until the injunction was served; that
petitioners have been greatly damaged as a result of the discontinuance of the service; that
such service is interstate commerce; that defendant is a common carrier engaged in such
commerce; that respondents are without jurisdiction in said action; that the proceedings and
injunction in said action were and are in excess of their jurisdiction; and that plaintiffs have
no plain, speedy and adequate remedy in the ordinary course of law.
Respondents contend that the district court has jurisdiction of the subject matter in the
action in that court; that Washoe Publishing Company had the right to sell to plaintiff the
exclusive right to distribute said news and information relative to horse racing; that the
contract sued on by plaintiff is valid; that petitioners have a plain, speedy and adequate
remedy in the ordinary course of law, and that they are estopped to raise the question of
jurisdiction.
Messrs. Lewis & Hawkins, as friends of the court, take the position that the contract sued
on by plaintiff is void in that it creates an unlawful preference and discrimination and is
contrary to public policy; that the trial court is without jurisdiction to proceed in the action,
62 Nev. 102, 110 (1943) Stearns v. District Court
action, whether the news service is interstate or intrastate; and that petitioners have no plain,
speedy or adequate remedy in the ordinary course of law.
1-3. Prohibition will not lie unless the lower tribunal is without or has acted in excess of
its jurisdiction. The court does not agree with the contention that the district court is without
jurisdiction of the subject matter of the action because interstate commerce is involved. It is
true, as stated in 15 C. J. S., Commerce, sec. 15, p. 273, that: Where congress regulates
commerce by enacting a statute, within its competency, that covers the same subject matter
as, or is in direct conflict with, a state statute, the exercised power of congress is not only
supreme and paramount but also exclusive, superseding the state law and excluding
additional or further regulation covering the same subject by the state legislature. See also 15
C. J. S., Commerce, sec. 81, and 11 Am. Jur., Commerce, secs. 10, 82. It is likewise true that
in many matters involving interstate commerce the jurisdiction of the federal courts is
exclusive. 11 Am. Jur., Commerce, sec. 157; 21 C. J. S., Courts, sec. 525, p. 795. But in the
case at bar we are satisfied that the district court has jurisdiction of the subject matter. Grabb
v. Public Utilities Comm., 281 U. S. 470, 50 S. Ct. 374, 74 L. Ed. 972; Detroit, M. & T. S. L.
Ry. v. City of Monroe, D. C., 262 F. 177; State of Missouri ex rel. St Louis, B. & M. R. Co.
v. Taylor, 266 U. S. 200, 45 S. Ct. 47, 69 L. Ed. 247, 42 A. L. R. 1232; 21 C. J. S., Courts,
sec. 526, pp. 803, 804; 11 Am. Jr. 129-131.
Notwithstanding the district court has jurisdiction of the subject matter of the action, the
further contention is made that in issuing the injunction pendente lite that court acted in
excess of its jurisdiction. In support of this contention it is asserted that the contract between
Western Union and Washoe Publishing Company gives rise to unlawful preference and
discrimination, and violates certain provisions of the communications act of 1934; 47 U. S.
C. A. sec. 202. Subsections (a) and (c) read, respectively: (a) It shall be unlawful for any
common carrier to make any unjust or unreasonable discrimination in charges,
62 Nev. 102, 111 (1943) Stearns v. District Court
common carrier to make any unjust or unreasonable discrimination in charges, practices,
classifications, regulations, facilities, or services for or in connection with like
communication service, directly or indirectly, by any means or device, or to make or give any
undue or unreasonable preference or advantage to any particular person, class of persons, or
locality, or to subject any particular person, class of persons, or locality to any undue or
unreasonable prejudice or disadvantage. (c) Any carrier who knowingly violates the
provisions of this section shall forfeit to the United States the sum of $500 for each such
offense and $25 for each and every day of the continuance of such offense.
If the contract last above mentioned violates said sec. 202, it is void. 12 Am. Jur.,
Contacts, sec. 161; Restatement of the Law of Contracts, vol. 2, sec. 580.
4. Plaintiff alleges in both his complaints that the contract between Western Union and
Washoe Publishing Company gave the latter the exclusive right to the horse racing wire
service, and that this exclusive right was in turn given plaintiff by the contract of June 1942
between him and Washoe Publishing Company. In the latter contract Washoe Publishing
Company agrees to deliver to plaintiff news service with exclusive privilege to him to
control and distribute this news service in Las Vegas, and Clark County, Nevada. But neither
the word exclusive nor the expression exclusive privilege occurs in the contract between
Western Union and Washoe Publishing Company; nor does any exclusive privilege appear to
be given in express terms by that contract. The allegations in plaintiff's complaints that
exclusive right to the service in question was given Washoe Publishing Company may
represent his interpretation of the contract with respect to that particular matter, but cannot be
regarded as allegations of fact.
5. This court has no judicial knowledge as to what is meant by one single Morse lease,
nor can it take judicial notice of the modus operandi under such a lease.
62 Nev. 102, 112 (1943) Stearns v. District Court
There is not sufficient factual information in the petition, the response and answer thereto, or
the testimony of Dave Stearns to enable the court to determine whether, without breaching
said contract, Western Union could, for a proper consideration, grant to others than Washoe
Publishing Company the same service as was given it by that contract. Without a full
knowledge of the meaning of the contract, the court is in no position to decide whether it
creates an unlawful preference in favor of Washoe Publishing Company and unlawfully
discriminates against others who might apply for the same service. It frequently happens that
in order to show the illegality of a contract, resort must be had to evidence aliunde. 12 Am.
Jur., Contracts, sec. 224; 17 C. J. S., Contracts, sec. 596. Whether such evidence is
admissible on the hearing of the return to an alternative writ of prohibition need not be
determined, for the reason that no such evidence was offered at the hearing in this proceeding.
6, 7. The writ of prohibition should issue only where the absence or excess of jurisdiction
is clear, and ordinarily it will not be issued in doubtful cases. 50 C. J. 657, 658, nn. 83, 84; 42
Am. Jur. 142, n. 5. As there is an insufficient basis of fact to enable the court to decide
whether the district court exceeded its jurisdiction in issuing the injunction, the petition must
be denied.
Alternative writ vacated, and proceeding dismissed.
____________
62 Nev. 113, 113 (1943) Standard Slag Co. v. District Court
STATE OF NEVADA, Ex Rel. THE STANDARD SLAG COMPANY, A Corporation,
Relator, v. THE FIFTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA,
In and For the County of Nye, HON. WILLIAM D. HATTON, Judge Thereof, and
BASIC REFRACTORIES INCORPORATED, A Corporation, Respondents.
No. 3402
December 3, 1943. 143 P.(2d) 467.
1. Eminent Domain.
Mining, being a paramount industry, is a public use, and power of eminent domain can be exercised in
the furtherance of the development of mines and extraction and reduction of ores contained therein.
2. Eminent Domain.
A reasonable, fair, just, broad, and liberal view should be taken by court in interpreting provisions of law
authorizing the exercise of the power of eminent domain for mining purposes. Comp. Laws, sec. 9153,
subd. 6.
3. Eminent Domain.
The phrase all mining purposes, as used in statute authorizing exercise of powers of eminent domain in
mining operation, enlarged scope of meaning of statute beyond specific purposes mentioned and was broad
enough to include mining activities prosecuted by open-pit method, although such method was unknown at
time statute was enacted. Comp. Laws, sec. 9163, subd. 6.
4. Eminent Domain.
Authority to condemn in order to facilitate and expedite extraction of ore by means of the open-pit
method is within statute authorizing exercise of the power of eminent domain for all mining purposes.
Comp. Laws, sec. 9153, subd. 6.
5. Eminent Domain.
District court had jurisdiction in proper case to determine whether ground belonging to one mine owner
should be subjected to mining operations carried on by another mine owner under the open-pit method.
Comp. Laws, sec. 9153, subd. 6.
6. Constitutional Law.
Contention that there was a denial of due process because of shortness of time given to prepare for
hearing of motion for immediate possession in proceeding to condemn mining property for operations
carried on by another mine owner under open-pit method was without merit, where procedure adopted was
authorized by statute and application for continuance could have been made if shortening of time prevented
making proper preparation. Comp. Laws, sec. 9153.
62 Nev. 113, 114 (1943) Standard Slag Co. v. District Court
7. Eminent Domain.
Reviewing court will indulge presumption that lower court in determining right to condemn property for
mining purposes would do its duty and allow such time as would be reasonably necessary to prepare for
hearing on motion for immediate possession. Comp. Laws, sec. 9153, subd. 6.
Original proceeding by the State, on the relation of the Standard Slag Company, for a writ
of prohibition against the Fifth Judicial District Court of the State of Nevada in and for the
County of Nye, and others. Order denying the writ.
Charles M. Merrill, John E. Robinson, and Walter Rowson, all of Reno, for Relator.
H. R. Cooke, M. A. Diskin, and Thatcher & Woodburn, all of Reno, for Respondents.
OPINION
By the Court, Orr, C. J.:
1. On October 2, 1943, relator petitioned this court for a writ of prohibition, and on
October 9, 1943, the matter was argued and submitted to the court for decision. Prior to its
submission counsel for the respective parties stipulated that the matter be heard before two of
the justices of this court. It was further stipulated that upon a decision being reached an order
be entered, and a written opinion filed later. On the 13th day of October 1943 this court made
its order denying the writ.
The petition presents for consideration a new situation insofar as the exercise of eminent
domain as it relates to the mining industry is concerned. It is well established in this state that
mining, being a paramount industry, is a public use, and the power of eminent domain can be
exercised in the furtherance of the development of mines and the extraction and reduction of
ores contained therein.
62 Nev. 113, 115 (1943) Standard Slag Co. v. District Court
of ores contained therein. We need not now be concerned with the constitutionality of the
statutes relating thereto and the intent and purpose thereof. This purpose and the liberality
with which the statutes should be construed have been defined and established in the
following cases: Dayton Gold & Silver Min. Co. v. Seawell, 11 Nev. 394; Overman S. M.
Co. v. Corcoran, 15 Nev. 147; Goldfield Consol. v. Old Sandstorm Annex, 38 Nev. 426, 150
P. 313; Schrader v. Third Judicial Dist. Court, 58 Nev. 188, 73 P. 2d 493; Douglas v. Byrnes,
C. C., 59 F. 29; Nevada Consol. Copper Co. v. Consolidated Coppermines Co., D. C., 44 F.
2d 192, at page 197.
The law of this state granting the right to exercise the right of eminent domain in mining
operations being well settled, determined and construed in most respects, as evidenced by the
holdings in the cases cited supra, had the application of respondent corporation in the district
court asked for condemnation for the purpose of building a road, erecting a tramway or
running a tunnel in order to facilitate the working of its mines, the action would have been
clearly within the jurisdiction of that court to determine. However, as is quite often the case,
new situations require new constructions, and it is the new method of open-pit mining
which now engages our attention.
In order that an idea may be had as to the privilege desired by respondent corporation and
which it seeks to enforce by eminent domain, it is deemed advisable to give a brief summary
of the allegations of the complaint. The complaint alleges that the plaintiff in the trial court,
respondent here, is presently engaged and has since the 14th day of December 1936 been
engaged in the mining and development of mining claims known as the Gloria group, situated
in Nye County, Nevada, and in the course of its mining operations has developed a large body
of brucite ore upon three of the claims. That for a number of years brucite ores have been
mined from this area by means of what is commonly known as "open-pit" mining,
62 Nev. 113, 116 (1943) Standard Slag Co. v. District Court
open-pit mining, and that method of mining is alleged to be the most economical and
expeditious means of mining the character of ore contained in said claims. That in such
operations it is necessary to remove large amounts of overburden and waste material which
over-lie the valuable brucite deposits; that such operation is commonly known as stripping.
That in the open-pit operation as the pit is deepened it is necessary that it be widened and its
exterior perimeter extended by carrying outward and back the benches, spirals and
switchbacks, so as to maintain proper slopes of the banks within the pit. That in said method
the ore is blasted and the ore, as well as waste material, loaded on trucks with power shovels
and moved by means of said trucks over the roads which are maintained upon benches within
the pit. That the benches are sometimes called levels, and are designated in numerical order
from the upper perimeter of the pit down to its bottom. That the plaintiff and respondent has
worked three benches, which are designated as No. 5790, No. 5730 and No. 5690, these
numbers referring to the elevation of the benches above sea level. That each of the benches
extends in a semicircular shape, and when completed will be almost circular. That underlying
the area embraced within the said pit plan from elevation 5850 down to sea level elevation
5500 are approximately 200,000 tons of valuable brucite ore which will be mined under that
plan of operations when the same has been constructed and completed down to said sea level
elevation 5500. That the Bluestone lode mining claim owned by the relator is adjacent to the
mining claims being mined by respondent, and respondent alleges that in order to mine said
brucite within said claims by the open-pit mining it is necessary that the respondent extend
the perimeter of its pit and its proposed benches into, to and across a certain part and portion
of said Bluestone claim, and that the extension of said pit across said Bluestone claim would
require the removal from said Bluestone claim of approximately eighty thousand tons of
material.
62 Nev. 113, 117 (1943) Standard Slag Co. v. District Court
thousand tons of material. That said operations across the Bluestone claim will increase the
recoverable brucite ore contained in the claims belonging to respondent by approximately
42,000 tons. That mining by such crossing of said Bluestone claim will be more practical,
economical and expeditious and prevent unnecessary delays in the extraction of the ore
bodies, and further result in the saving of some ninety-seven cents per ton, or approximately
$105,900.
2. We now have this question: may the right of eminent domain be exercised for the uses
alleged in the complaint? We think that right, if given at all, must be found in paragraph 6 of
section 9153 N. C. L. Relator insists that we give the provisions of that section a strict
construction in accordance with what is claimed to be the general rule. The rule in this state is
otherwise and is as stated in Douglass v. Byrnes, supra, wherein the court, in referring to the
construction to be placed on the statute then in existence, said [59 F. 32]: A reasonable, fair,
just, broad, and liberal view should be taken by the court in interpreting its provisions. Judge
Norcross, in the case of Nevada Consolidated Copper Co. v. Consolidated Coppermines Co.,
supra, approves such a construction. And it may be safely asserted that such is the holding of
each of the Nevada cases passing upon that question. The supreme court of Utah has also
favored the liberal construction of the Utah statutes relative to the exercise of eminent domain
in relation to the mining industry. In the case of Monetaire Mining Co. v. Columbus Rexall
Consol. Mines Co., 53 Utah 413, 174 P. 172, at page 175, the court said: We think it is
generally agreed that where the right of eminent domain is granted for a particular purpose,
then the statute must be given a liberal construction in furtherance of such purpose. See,
also, Utah Copper Co. v. Stephen Hayes Estate, 83 Utah 545, 31 P. 2d 624, at page 627.
Proceeding to a construction of the provisions of paragraph 6 of said section 9153 N. C.
L., with the idea in mind that it should be given a broad and liberal construction so that its
evident purpose and the reason for its enactment may be given full effect,
62 Nev. 113, 118 (1943) Standard Slag Co. v. District Court
mind that it should be given a broad and liberal construction so that its evident purpose and
the reason for its enactment may be given full effect, it seems evident that to confine the
exercise of the right of eminent domain to the specific purposes mentioned in said section
would be contrary to the clear purpose of the legislature in enacting it. The over-all purpose
of the legislature in furthering the mining industry of the state was to provide ample
opportunity for the economical and expeditious extraction of the ores contained in the mining
claims located therein. It cannot reasonably be said that in attempting to effectuate such
purpose the opportunity and necessity for the extraction of ore in the operation of mines
should be restricted to a few enumerated instances in which the right to exercise eminent
domain could be invoked. It seems more reasonable to believe that the legislature, having a
broader purpose in mind and having enumerated certain instances, realized that other
conditions very probably could and would arise, and in order to take care of conditions which
could not at the time be foreseen, the general clause for all mining purposes contained in
the section was inserted. No other reason is apparent for the inclusion of such a clause; the
language permitting the exercise of eminent domain for the specific purposes mentioned was
sufficient without that statement.
Relator contends that open-pit mining, being of comparatively recent origin, the
legislature at the time of the enactment of section 9153 N. C. L., could not have had that
method of mining in contemplation; that the law-making power has not, in this respect,
bridged the time lag between new developments and resultant needed legislation. In 1937 an
amendment was added to section 9153, being section 9153, vol. 2, 1931-1941 N. C. L.
Supplement, p. 1232. It is significant that although open-pit mining was then quite
universally understood, no change was made in paragraph 6 of said section 9153. We take
this to be evidence of the fact that the legislature considered the provisions of the eminent
domain statute sufficiently broad to cover such a situation.
62 Nev. 113, 119 (1943) Standard Slag Co. v. District Court
eminent domain statute sufficiently broad to cover such a situation.
3-5. We conclude that the phrase all mining purposes enlarges the meaning of the statute
beyond the specific purposes therein mentioned, and is broad enough to cover mining
activities prosecuted by the open-pit method. Such being the case, authority to condemn in
order to facilitate and expedite extraction of ore by means of the open-pit method is within
the purview and purpose of the statute and, further, falls within the announced public policy
of the state. The district court has jurisdiction in a proper case to determine the question of
whether or not ground belonging to one mine owner should be subjected to mining operations
carried on by another mine owner under the open-pit method. The placing of such a
construction upon the provisions of paragraph 6 of section 9153 N. C. L. forces the
conclusion that the writ in this case should be denied.
Other reasons advanced by petitioner for the issuance of the writ, such as whether or not
the ground now owned by relator is being put to the same use as that to which respondent
seeks to subject it; whether or not if permission is given respondent to go upon the Bluestone
claim and construct the benches and laterals as desired it will ruin that portion of the claim
and prevent future mining thereof by the relator; whether or not by so doing ores belonging to
the owner will be removed therefrom by respondent and stock-piled and will deteriorate in
value by reason of oxidization; and like matters presented in the petition, are all for the
consideration and determination of the trial court, acting within its jurisdiction.
6, 7. The contention that relator has been denied due process of law because of the
shortness of time given it to prepare for a hearing of the motion for immediate possession is
without merit. The procedure adopted by the respondent court in this matter is authorized by
statute and the statutory provisions have been complied with. If the shortening of time would
prevent relator from making proper preparation,
62 Nev. 113, 120 (1943) Standard Slag Co. v. District Court
from making proper preparation, then an application to the court for a continuance should
have been made. This court will indulge the presumption that the lower court would do its
duty and allow such time as would be reasonably necessary. At least, if such a motion had
been made and denied, relator would be in a better position to urge the point here. In this
connection we should further say, in order to explain relator's position, that it is asserted by
relator that no appeal lies from the order shortening time, and that on the motion for
immediate possession it would be necessary to try the entire case, because if the motion were
granted, respondent, with the machinery and organization that it has, could complete the work
of enlarging the perimeter and building its levels and roads within a period of two weeks. But
this is anticipating the action of the trial court. This court's position must be that ample
opportunity would be afforded relator to be heard, and the trial court, contrary to relator's
fears, will not condemn before it hears.
The order heretofore entered denying the writ of prohibition will stand, and it is hereby
affirmed.
Taber, J., concurs.
Ducker, J., did not participate.
____________
62 Nev. 121, 121 (1943) In Re Powell's Estate
In the Matter of the Estate of HARRY F. POWELL, Sometimes Known as and Called H. F.
POWELL, Deceased.
JANIE McALLISTER, as Administratrix With the Will Annexed of the Estate of Florena J.
Powell, Deceased, Appellant v. GEORGE A. MONTROSE, As Administrator of the
Estate of Harry F. Powell, Sometimes Known as and Called H. F. Powell, Deceased,
Respondent.
No. 3392
On the Merits
August 30, 1943. 140 P.(2d) 948.
1. Executors and Administrators.
An administrator asking power to sell realty must show good cause therefor, and his mere desire is not
enough. Comp. Laws, sec. 9729.
2. Executors and Administrators.
On appeal from order granting administrator's petition to sell his intestate's realty, question of necessity of
repairing dam and ditches so that the realty could be irrigated in the 1943 season was moot. Comp. Laws,
sec. 9729.
3. Evidence.
The supreme court is authorized to take judicial notice that the 1943 irrigation season was about over on
August 30, 1943, and that there were other irrigating seasons to come.
4. Executors and Administrators.
An administrator's petition for sale of his intestate's property insofar as it was based upon unliquidated
claims, was premature. Comp. Laws, sec. 9729.
5. Executors and Administrators.
Administrator's petition failing to state amount of intestate's personalty coming into hands of
administrator and how much, if any, remained undisposed of, intestate's outstanding debts insofar as they
could be ascertained or estimated, the debts, expenses, and charges of administration, and an estimate of
what would or might accrue during administration, and a general description of the realty of which intestate
died seized, and the condition and value thereof, was insufficient to authorize sale of intestate's property.
Comp. Laws, sec. 9729.
6. Executors and Administrators.
Where an order of sale has been relied upon to cure defects in the petition to sell a decedent's property,
such order must recite the general facts. Comp. Laws, sec. 9729.
62 Nev. 121, 122 (1943) In Re Powell's Estate
7. Executors and Administrators.
Where order of sale of intestate's property did not recite the general facts relative to deficiencies of
administrator's petition for sale, the order did not correct the petition or validate the sale. Comp. Laws, sec.
9729.
8. Executors and Administrators.
On appeal on the judgment roll alone from order granting an insufficient petition for sale of intestate's
property, the supreme court could not sustain the order by presuming the evidence to have been insufficient
to justify its entry, since introduction of testimony, to cure defects in the petition, must be followed by a
statement of the general facts in the decree. Comp. Laws, sec. 9729.
Appeal from First judicial District Court, Lyon County; Clark J. Guild, Judge.
Proceedings in the matter of the estate of Harry F. Powell, sometimes known as and called
H. F. Powell, deceased, wherein George A. Montrose, as administrator, filed a petition for an
order of sale of property, to which Janie McAllister, as administratrix with the will annexed
of the estate of Florena J. Powell, deceased, filed objections. From an order granting the
petition, opponent appeals. Reversed.
See, also, 62 Nev. 10, 135 P.(2d) 435.
John V. Copren, of San Francisco, Calif., and Arthur A. Platz, of Reno, for Appellant.
John R. Ross and George L. Sanford, both of Carson City, for Respondent.
OPINION
By the Court, Orr, C. J.:
On the 14th day of October 1942 George A. Montrose, administrator of the estate of Harry
F. Powell, sometimes known as H. F. Powell, deceased, filed a petition in the district court
of Lyon County,
62 Nev. 121, 123 (1943) In Re Powell's Estate
in the district court of Lyon County, Nevada, praying for an order of sale of real and personal
property. The said petition, insofar as it is material here, is as follows:
That the assets in said estate consists of real and personal property in Lyon County,
Nevada, as hereinafter described. That the principal asset is what is known as the New
Jerusalem ranch near Dayton, Nevada, which ranch is irrigated by water from the Carson
River by a long ditch and diverting dam, owned by the Estate. That the said diverting dam
will have to be rebuilt immediately and the said ditch line, which is approximately___miles in
length, will have to be cleaned and much work done upon it before any water can be secured
for the 1943 irrigation season upon the ranch. That it will require a large expenditure of
money to accomplish this work and the estate cannot afford the expenditures and petitioner
avers that it is for the benefit, advantage and best interests of the estate to sell and dispose of
the said real estate as hereinafter prayed for. That there are outstanding unliquidated claims
against the estate which cannot be definitely ascertained or estimated as petitioner has
rejected the same and the time for filing suit has not expired. That the charges for
administration already accrued and hereafter to accrue have not been paid in full and that it
will be necessary to reduce the assets of the estate to cash in order to meet the outstanding
obligations and also pay the accrued and hereafter accruing costs and expenses of the said
administration. That petitioner has advised with his attorneys and after a careful consideration
of all the facts respectfully represents that it is for the advantage, benefit and best interests of
the estate and those interested therein that the estate be reduced to cash as hereinafter
requested and not incur the large expenditure for reconstruction of the said dam and ditch as
herein referred to.
That there are two parcels of real estate in said estate, one known as the New Jerusalem'
ranch near Dayton,
62 Nev. 121, 124 (1943) In Re Powell's Estate
Dayton, together with the water rights and Taylor grazing rights and petitioner proposes to
sell as a part of said ranch or tract seventy (70) tons of hay bailed and now upon the ranch.
The second tract is known as the Hot Springs' property, located in Smith Valley, Lyon
County, Nevada, together with any personal property belonging to the estate located thereon.
That in each instance taxes are to be pro rated as of the date of the delivery of the deed and
the estate to convey its title.
That the heirs at law of the estate is Florena J. Powell, deceased, and that she is the only
person interested in the estate.
That the said estate is solvent and that the amount realized from said sale will be more
than sufficient to pay and discharge any known claims against the said estate.
Notice to show cause was issued, as required by law, and on the 10th day of November
1942 objections to the order of sale were filed by Janie McAllister, as administratrix with the
will annexed of the estate of Florena J. Powell, deceased. There also appears in the record a
paper termed Supplemental objections to the sale of real and person property, filed by the
said Janie McAllister as said administratrix. The objections filed challenge the sufficiency of
the petition, as well as raising the question of the necessity of the sale of the real and personal
property belonging to the estate.
A hearing was had, at the conclusion of which the objections were overruled and an order
entered directing the administrator to sell the real and personal property, as prayed. The
matter is here on appeal from said order.
The appeal is before us on the judgment roll alone; the testimony taken at the hearing is
not here.
We first direct our attention to an analysis of the petition and a comparison of the recitals
therein with the statutory requirement.
Section 9729 N. C. L. provides the manner in which an order of sale may be obtained.
62 Nev. 121, 125 (1943) In Re Powell's Estate
an order of sale may be obtained. Said section requires the presentation of a verified petition
to the court or judge, which said petition shall set forth:
1. The amount of personal estate that has come into the hands of the administrator and
how much thereof, if any, remains undisposed of.
2. The debts outstanding against the decedent, so far as can be ascertained or estimated.
3. The amount due upon the family allowance or that will be due after the same has been
in force for one year.
4. The sum, if any, due for the last sickness and funeral of decedent.
5. The debts, expenses and charges of administration already accrued.
6. An estimate of what will or may accrue during the administration.
7. A general description of the real property of which the decedent died seized or in which
he had any interest or in which the estate had acquired any interest.
8. The condition and value thereof.
9. Whether the same be community or separate property.
10. The names of the legatees and devisees, if any.
11. The heirs of the deceased so far as known to the petitioner.
12. In what way an advantage or benefit would accrue to the estate and those interested
therein by such sale.
The petition under consideration here complies with certain provisions of the statute and
omits others, as follows:
It is verified. No statement as to personal property. No statement as to debts outstanding;
there being, however, a statement that the amount of the debts could not be ascertained until
the time for bringing action thereon had expired, the administrator having disallowed them. It
may be assumed from a reading of the petition that there is no family allowance and no sum
due for the last sickness and funeral of decedent; this assumption may be reasonably drawn
from the fact that the estate has been in process of administration for some six years.
62 Nev. 121, 126 (1943) In Re Powell's Estate
this assumption may be reasonably drawn from the fact that the estate has been in process of
administration for some six years. No statement of debts, expenses or charges of
administration already accrued. No estimate of what will or may accrue during
administration. There is a general description of the real estate which was held by the estate at
the time of filing the petition, but nothing in the petition which would indicate that it is all the
land of which the decedent died seized. No statement as to its condition and value or as to
whether it is community or separate property. There is a statement as to the advantage or
benefit which would accrue to the estate of those interested therein by such sale; however, it
appears that such advantage could apply only to a sale of the New Jerusalem ranch, and
would have no application to the Hot Springs property.
Hence, this question is posed: Do the omissions in the petition, viz, omission of a
statement of the amount of personal estate that has come into the hands of the administrator
and how much thereof, if any, remains undisposed of; second, omission of a statement of the
debts outstanding against the decedent as far as can be ascertained or estimated; third,
omission of a statement of the amount of debts, expenses and charges of administration
already accrued or an estimate of what debts, expenses and charges of administration will or
may accrue during the administration; fourth, omission of a general description of the real
property of which the decedent died seized or in which he had any interest or in which the
estate has acquired an interest and the condition and value thereof and whether the same is
community or separate property, render the said petition fatally defective?
1. Several states have statutes identical with that of Nevada relative to the required recitals
in a petition for an order to sell real estate. Such a statute was in force and effect in the State
of California for several years, and during such time a number of decisions construing the
sufficiency of petitions were rendered. The decisions make a distinction between direct
appeals from an order and collateral attacks.
62 Nev. 121, 127 (1943) In Re Powell's Estate
decisions make a distinction between direct appeals from an order and collateral attacks.
From the decision in the Estate of Smith, 51 Cal. 563, rendered in the year 1875, to and
including the decision in In re Rawitzer's Estate, 175 Cal. 585, 166 P. 581, rendered on June
28, 1917, we find several cases dealing with direct appeals from orders of sale. In these
decisions we find a gradual lessening of the severity with which each requirement of the
statute was insisted upon. In the Estate of Smith, supra, the petition was held insufficient
because it did not describe the condition of the land to be sold. Estate of Boland, 55 Cal. 310,
follows the Smith case in requiring the description of the property sought to be sold. In re
Byrne's Estate, 112 Cal. 176, 44 P. 467, holds the sufficiency of the petition is the basis of the
order of sale and if, upon a direct appeal from the order, the petition is lacking in any of these
statutory requirements it is fatal to the validity of the order. Next we have the case of In re
Heydenfeldt's Estate, 127 Cal. 456, 59 P. 839, at 840; this was a direct appeal. It is stated in
the decision that a substantial compliance with the statute is sufficient, and in support of that
statement cites four cases. An examination of the cases cited discloses them to be collateral
attacks. In In re Cook's Estate, 137 Cal. 184, 69 P. 968, it was decided that in an appeal from
the order of sale any substantial departure from the statutory requirements compels a reversal.
The distinction being that upon collateral attack the proceedings will be sustained and the
purchaser's title held good unless it appears that the court did not acquire jurisdiction to order
the sale, while upon direct attack by appeal from the order a departure from the statutory
requirements may be reversible error, though the court had jurisdiction. There the petition
was held defective because it did not state the value of the property. In In re Levy's Estate,
141 Cal. 639, 75 P. 317, it was claimed that there was no sufficient statement of the condition
and value of the real estate of deceased and no statement of the names of the heirs or
family allowance.
62 Nev. 121, 128 (1943) In Re Powell's Estate
no statement of the names of the heirs or family allowance. The court held that a substantial
compliance with the provisions of the statute was sufficient for the validity of the order, upon
direct appeal; and, also, the statement is made that if objection has been made, stricter
compliance would be required, but in the absence of objection a substantial compliance was
sufficient. In the case of In re Rawitzer's Estate, 175 Cal. 585, 166 P. 581, 585, the petition
alleges the indebtedness for taxes and expenses of administration; thereafter the trust
company offered to deposit in court a sufficient amount to pay the expenses. It was held that
this rendered the sale unnecessary. The court said: The administrator who asks power to sell
real property, and thereby take it permanently from the control and management of the heirs,
or devisees, must show good cause therefor. His mere desire is not enough.
The case of In re Walker's Estate, 111 Mont. 66, 106 P.2d 341, deals with a petition which
asked the court to sell, on the ground that it be for the best interests of the estate and those
interested therein, and the allegations were held insufficient.
As we have stated, the decisions draw a distinction between direct appeals and collateral
attacks, but even in the latter it is held that there must be a substantial compliance with the
requirements of the statute. In the following cases collateral attacks were made upon the order
of sale, and we cite them to demonstrate that in each a closer compliance with the statute was
had than in the case at bar: Kertechen v. George, 78 Cal. 597, 21 P. 372; Richardson et al. v.
Butler et al., 82 Cal. 174, 23 P. 9, 16 Am. St. Rep. 101; Burris v. Kennedy, 108 Cal. 331, 41
P. 458; In re Devincenzi's Estate, 119 Cal. 498, 51 P. 845; Blackman et al. v. Mulhall et al.,
19 S. D. 534, 104 N. W. 250, at 252; In re Davis' Estate, 151 Cal. 318, 86 P. 183, at 185, 121
Am. St. Rep. 105; Kretsinger v. Brown et al., 8 Cir., 165 F. 612; Plains Land & Development
Co. et al. v. Lynch et al., 38 Mont.
62 Nev. 121, 129 (1943) In Re Powell's Estate
271, 99 P. 847, at 849, 129 Am. St. Rep. 645; Dane et al. v. Layne et al., 10 Cal. App. 366,
101 P. 1067; Kavanagh v. Hamilton, 53 Colo. 157, 125 P. 512, at 518, Ann. Cas. 1914b, 76;
Pinnacle Gold Mining Co. v. Popst et al., 54 Colo. 451, 131 P. 413.
In the case of Plains Land & Development Co. v. Lynch et al., supra, a Montana case,
there is a very interesting analysis of the California decisions, and also a discussion of the
inconsistency with which the rule relative to compliance with the requirements of the statute,
as announced in Re Estate of Smith, supra, has been applied.
2-4. A number of statements appear in the cases cited supra that requirements for
compliance with the statute are much stricter in direct appeals than where collateral attacks
are concerned. In examining the cases cited we failed to find any instance where the absence
of a statement of the amount of personal property that came into the hands of the
administrator, how much, if any, remains undisposed of; a failure to set out the debts
outstanding against decedent so far as can be ascertained or estimated; the failure to set out
the debts, expenses and charges of administration already accrued and an estimate of what
will or may accrue during the administration; and a general description of the real property of
which the decedent died seized and the condition and value thereof, has been held to
substantially comply with the requirements of the statute. The omission of the statement as to
the condition and value of the real property, in itself, has been held not to defeat a substantial
compliance, but the other matters omitted are essential. The petition, responsive to the
requirement of the statute that it shall state in what way a sale would be for the best interests
of the estate and those interested therein, recites that it would require a large sum of money to
repair the dam and ditches used in the irrigation of the New Jerusalem ranch. This reason, of
course, can at the most only apply to the said New Jerusalem ranch,
62 Nev. 121, 130 (1943) In Re Powell's Estate
at the most only apply to the said New Jerusalem ranch, and not to the Hot Springs property.
So as to the Hot Springs property there is no reason given why it would be to the advantage of
the estate to sell it. As to the New Jerusalem ranch, the petition refers to the necessity of
repairing the dam and ditches so that irrigation in the 1943 season can be had. Insofar as that
question is concerned it has now become moot. We may take judicial notice that the 1943
irrigation season is about over, and repair of the dam and ditches must have already taken
place if the lands were irrigated this year. We will also take judicial notice of the fact that
there are other irrigation seasons to come and if the dam and ditches have not been repaired
the requirements in that respect would be just as pressing in the future. That situation can be
met when it arises; and in the meantime the validity of the unliquidated claims may be
determined. We cannot ascertain from the petition whether claims other than the unliquidated
claims mentioned therein have been presented to the administrator for allowance, and as to
the unliquidated claims, the petition for sale insofar as it is based thereon is premature.
5. The petition, because of the omissions pointed out, is insufficient when tested on direct
appeal; and this is so even though the lower court had jurisdiction, a question we do not
decide. Such being the case, we must then consider whether the defects were corrected in the
order of sale, as provided in the so-called curative portion of said section 9729 N. C. L. We
may say here, as was said in In re Walker's Estate, supra [111 Mont. 66, 106 P.2d 342]: The
transcript on appeal does not disclose what facts were presented at the hearing; nor does the
order contain a general statement of facts showing such necessity sufficient to cure the defect
in the petition, if it is defective. The only recitation in the order is that from the proof it
appears to the satisfaction of the court that it is to the best interest of the estate and those
interested therein that the real estate be sold.'
62 Nev. 121, 131 (1943) In Re Powell's Estate
be sold.' We then must look to the allegations in the petition to determine the facts upon
which the order was based, for under section 10211, in order for the proofs to supply
deficiencies in the petition as to the necessity for a sale, the order must recite the facts
showing such necessity.
6, 7. The statements considered in In re Walker's Estate are very similar to the statements
contained in the order in this case. It is true, as argued by respondent, that no attack was made
upon the order, and in a case where the petition was sufficient an order such as we have here
would be sufficient; but if the order be relied upon to cure defects in the petition, then such
order is required to carry a greater load, and must recite the general facts, those required in
this case being: The amount of personal estate, estimate of expenses to be paid and those
already paid, and general facts relative to other deficiencies hereinbefore pointed out. The
order in this case does not cure the defects in the petition.
8. This being an appeal on the judgment roll alone, we do not have a transcript of the
evidence introduced in the trial court before us. However, unlike some proceedings, we
cannot sustain the validity of the order by presuming the evidence to have been sufficient to
justify its entry. The introduction of testimony to cure defects in a petition is not enough; it
must be followed by a statement of general facts in the decree. The statute provides: If any
of the matters herein enumerated cannot be ascertained, it must be so stated in the petition;
but a failure to set forth facts hereinbefore enumerated will not invalidate the subsequent
proceedings, if the defects be supplied by the proofs at the hearing and the general facts
showing that such sale is necessary, or that such sale is for the advantage, benefit, and best
interests of the estate, and those interested therein, be stated in the decree. (Italics supplied.)
The order appealed from is reversed.
62 Nev. 121, 132 (1943) In Re Powell's Estate
On Motion to Substitute Attorneys
November 10, 1943. 142 P.(2d) 893.
1. Attorney and Client.
Where appeal was pending in supreme court, the supreme court was proper place for
appellant to ask for a substitution of attorneys, but the substitution would affect the
appeal only, and if substitution was desired in other matters it would be necessary for
appellant to seek such substitution in court where such matters were pending. Comp.
Laws, sec. 601, subd. 2.
Motion granted.
W. E. Baldy, of Carson City, for Movant.
OPINION
By the Court, Orr, C. J.:
This is a motion to substitute W. E. Baldy in the place and stead of John V. Copren and
Arthur A. Platz as attorney for appellant.
The administratrix has filed an affidavit making certain charges against the present
attorneys, and Mr. Copren has filed herein an affidavit denying the said charges. We are not
called upon in this proceeding to pass upon the merits or demerits of said controversy,
because we believe that under the provisions of the second paragraph of section 601 N. C. L.
appellant is given the right to change her attorneys at any stage in the action.
As the appeal is now pending in this court, this is the proper place to ask for a substitution.
Jacobus v. Jacobus, 208 Cal. 562, 282 P. 796; In re Cazaurang's Estate, 1 Cal. 2d 712, 36 P.
2d 1069; People v. Price, 262 N. Y. 410, 187 N. E. 298, at page 300.
The substitution will affect this appeal only, and if substitution is desired in other matters
it will be necessary for the appellant to seek such substitution in the court where such matters
are pending.
62 Nev. 121, 133 (1943) In Re Powell's Estate
It is ordered that W. E. Baldy be substituted as attorney of record in this court for
appellant, in the place and stead of John V. Copren and Arthur A. Platz.
On Petition for Rehearing
January 20, 1944. 144 P.(2d) 996.
1. Appeal and Error.
A transcript of the evidence is not a part of the judgment roll, and hence such
transcript cannot be considered where appeal is on the judgment roll.
2. Appeal and Error.
Under rule of supreme court pertaining to motions for rehearing, the filing of a paper
consisting of an argument in support of motion for rehearing is not permissible. Rules of
Supreme Court, rule 15.
3. Appeal and Error.
Rule of supreme court authorizing the filing of a petition for rehearing and a reply
thereto providing that no other argument shall be heard thereon is mandatory. Rules of
Supreme Court, rule 15.
Petition denied and transcript of evidence and paper entitled Supplemental
authorities on respondent's petition for rehearing filed in support thereof, stricken.
W. E. Baldy, of Carson City, for Appellant.
John R. Ross and George L. Sanford, both of Carson City, for Respondent.
OPINION
Per Curiam:
In the petition for rehearing respondent strenuously insists that this court erred in its
determination that the petition for the order of sale from which the appeal was taken is
insufficient to sustain the said order.
While the points involved in the appeal have been more elaborately argued, we remain
convinced that the appeal was correctly determined.
1. A transcript of the evidence taken before the trial court has been filed with the clerk of
this court,
62 Nev. 121, 134 (1943) In Re Powell's Estate
court has been filed with the clerk of this court, and we are of the opinion that under the
appeal as presented we are not in a position to consider it. Some contention is made that this
court has inherent power to order up a record where the same is incomplete, but be that as it
may, such a contention has no application in a case of this kind. The appeal is on the
judgment roll, and this court has no power to enlarge upon the statutory designation of what
shall constitute the judgment roll. And certainly a transcript of the evidence is not a part of
the judgment roll.
2, 3. Further, counsel have filed herein what is termed Supplemental Authorities on
Respondent's Petition for Rehearing, and, as was said in the case of Clack v. Jones, 62 Nev.
72, 141 P. 2d 385: The paper is an argument in support of the motion for rehearing. This is
not permissible by reason of rule XV of the Rules of the Supreme Court which, in that
particular reads: The party moving for a rehearing shall, within the time for filing the
petition, serve a copy of the petition upon opposing counsel, who, within ten days thereafter,
may file and serve a reply to the petition, and no other argument shall be heard thereon.' The
rule in this respect is mandatory.
It is ordered that the petition for rehearing be and the same is hereby denied, and the
transcript of the evidence and the paper entitled Supplemental Authorities on Respondent's
Petition for Rehearing are hereby stricken.
____________
62 Nev. 135, 135 (1944) Friendly v. Larsen
EDWARD FRIENDLY, Et Al., Appellants, v. A. L. LARSEN, Et Al., Etc. Respondents.
No. 3386
January 12, 1944. 144 P.2d 747.
1. Appeal and Error.
The findings of the trial court will be sustained if supported by substantial evidence.
2. Mechanics' Liens.
In action to foreclose mechanic's lien for amount due under construction contract on a cost plus basis,
evidence sustained finding that contractor's computation of amount due gave owners the benefit of all
discounts given to contractor on prices of materials used.
3. Mechanics' Liens.
In action to foreclose mechanic's lien for amount due under construction contract, evidence sustained
findings allowing contractor certain items for additions and changes and disallowing others.
4. Mechanics' Liens.
In action to foreclose mechanic's lien for amount due under building contract, evidence sustained finding
for contractors relative to the use of owner's own tools in performance of extra work.
5. Mechanics' Liens.
The complaint, in action to foreclose mechanic's lien, and the lien which was made a part of the
complaint should be read together.
6. Mechanics' Liens.
Where the lien attached to complaint in mechanic's lien foreclosure action specifically described a quarter
section of land upon which buildings were constructed, and from the lien and the complaint it could be
understood that the quarter section only and not the entire ranch property was claimed for the convenient
use and occupation of buildings, the description of the land upon which claim was sought was sufficiently
alleged.
7. Mechanics' Liens.
In action to foreclose mechanic's lien for amount due under contract for construction of buildings on
ranch property, where the property had been surveyed and a map presented in evidence showing relation of
buildings constructed and the land upon which they were situated, together with courses and distances, the
court had sufficient evidence upon which to make finding as to what land was necessary and convenient for
use of the property against which lien should be entered.
62 Nev. 135, 136 (1944) Friendly v. Larsen
8. Mechanics' Liens.
In mechanic's lien for foreclosure action, evidence sustained findings relative to the value of labor and
materials furnished.
9. Mechanics' Liens.
In action to foreclosure mechanic's lien, where a judgment of over $2,900 was recovered and a great
amount of work was performed by counsel for plaintiff, a $750 attorney's fee was approved as reasonable.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Action by A. L. Larsen and others against Edward Friendly and others to foreclose a
mechanic's lien. From a judgment for plaintiffs, defendants appeal. Affirmed.
Milton B. Badt, of Elko, for Appellants.
McNamara & Robbins and A. L. Puccinelli, all of Elko, for Respondents.
OPINION
By the Court, Orr, C. J.:
Respondents were engaged by appellants to reconstruct a dwelling house, construct new
buildings, and repair others, all situate upon what is known as the Sam McMullen ranch, in
Elko County, Nevada. After the completion of the work a disagreement arose between the
parties as to the amount due from appellants to respondents. Respondents filed a mechanic's
lien against the said property, and later brought suit to foreclose it. The district court rendered
judgment in favor of the respondents in the sum of $2,910.69, together with costs of suit and
an attorney's fee in the sum of $750, which said judgment was declared to be a lien upon
certain premises described therein.
1. This appeal presents, almost exclusively, questions of fact which have been resolved in
favor of respondents by the trial court,
62 Nev. 135, 137 (1944) Friendly v. Larsen
respondents by the trial court, and, of course, the findings of the trial court will be sustained if
there is any substantial evidence in the record supporting them. Round Mountain Min. Co. v.
Round Mountain Sphinx Co., 35 Nev. 392, 129 P. 308; Murray v. Osborne, 33 Nev. 267, at
page 277, 111 P. 31; Botsford v. Van Riper, 33 Nev. 156, 110 P. 705; Indiana N. M. Co. v.
Gold Hills Co., 35 Nev. 158, 126 P. 965; McStay Supply Co. v. Stoddard, 35 Nev. 284, 132
P. 545; Girton v. Daniels, 35 Nev. 438, 129 P. 555; Rawhide Balloon F. M. Co. v. Rawhide
Coalition M. Co., 33 Nev. 307, 111 P. 30; Jensen v. Wilslef, 36 Nev. 37, 132 P. 16, Ann.
Cas. 1914d, 1220; Round Mountain Min. Co. v. Round Mountain Sphinx Co., 36 Nev. 543,
138 P. 71; Rehling v. Brainard, 38 Nev. 16, 144 P. 167, Ann. Cas. 1917c, 656; Gaston v.
Avansino, 39 Nev. 128, 154 P. 85; Carey v. Clark, 40 Nev. 151, 161 P. 713; Clark Co. v.
Francovich, 42 Nev. 321, 176 P. 259; McNee v. McNee, 49 Nev. 90, 237 P. 534, 537;
O'Banion v. Simpson, 44 Nev. 188, 191 P. 1083.
Appellants recognize this rule, but insist that a study of the record will disclose that as to
the questions presented the findings of the trial court have no substantial support therein.
We have decided not to quote the voluminous extracts from the evidence to which we
have been referred by respective counsel, believing that to do so would be of little value.
2. The first point made by appellants is that the evidence establishes that respondents
received a discount on the material furnished, and that said discount was not passed on to
appellants. The appellants and respondents agree that the contract for the dwelling house was
for the specified sum of $10,303 or for cost plus seven percent, whichever might be the
lower. Respondents contend that the appellants were not charged one cent in excess of
$10,303 for the work done under the original contract for the reconstruction, repair and
improvement of the dwelling house under the Vahy plans and specifications,
62 Nev. 135, 138 (1944) Friendly v. Larsen
under the Vahy plans and specifications, and their contention finds substantial support in the
evidence. However, certain specified work and construction is conceded to have been
performed on a cost plus basis, and as to this construction it is urged the respondents
obtained, and retained for their sole benefit, discounts; that as a matter of law such an
advantage cannot legally be taken by a contractor as against the principal. Green v. Post, 135
Wash. 209, 237 P. 307. That such is the law is conceded by respondents, and such is the view
held by the trial court. However, appellants complain that said court failed to apply that rule.
We have read the record and particularly the portions cited by counsel, and we are convinced
that substantial evidence exists to sustain the finding of the trial court that appellants received
the benefit of all discounts given the respondents on the prices of materials used in the
construction and repair of the buildings, and hence the finding of the trial court is sustained.
3. The next assignment of error relied on deals with two written change orders. The first
written change order contains sixteen changes, and the second eighteen changes. All of the
additions in these changes were allowed by the court, and a few subtractions were allowed.
However, subtractions aggregating $391.16 were disallowed. Respondents discuss these
items in detail, with many references to the record and quoting of testimony in support of
their contention that substantial evidence exists to sustain the findings of the trial court. We
find such to be the fact, and the finding of the trial court is sustained. As to other items not
involved in written change orders, appellants frankly concede that most of these items were
the subject of conflicting testimony, but claim that the evidence indicates clearly gross and
unwarranted padding of items of labor and material. Some of the items were disallowed by
the trial court. We think the trial court gave careful consideration to the evidence relative to
the items in question,
62 Nev. 135, 139 (1944) Friendly v. Larsen
the items in question, and that the claims of the appellants were disallowed only in such
instances as the evidence on the part of the respondents substantially justified and sustained a
finding in their favor.
The next proposition deals with extras which appellants claim the respondents were bound
to supply under the terms of the contract. Certain claimed deductions were asked by
appellants of the trial court; some were allowed and others disallowed. We think the court
took the proper view of the law and the facts in making a determination of this claim.
4. The fourth contention relates to a claim as extras in relation to what appellants insist is
the use of respondents' own tools. We will dispose of this matter by stating that the evidence
in respect thereto was sufficient to justify the court in making the finding that it did.
The fifth contention made by appellants is that the court adopted its own lines, courses,
distances and extent in determining, without allegations in the pleadings and without
evidence, the necessary ground for the convenient use and occupancy of the buildings, and
included them in the lien foreclosure decree. In support of this contention appellants state, in
substance, that the complaint describes the entire ranch property, and, further, that the
complaint did not describe the premises upon which the lien is claimed with reasonable
certainty or sufficiently for identification. Paragraph IV of the complaint reads:
That between the 1st day of May, 1941, and the 10th day of September, 1941, in Elko
County, Nevada, said plaintiff entered into certain contracts with said defendants, Edward
Friendly and his said wife, for the construction, erection, repair, reconditioning and
improving of those certain buildings, structures, houses, barns, chicken houses, cess pools,
etc., hereinafter described and referred to, and to furnish the materials, supplies and work and
labor therefor to be used in the building and construction of said premises,
62 Nev. 135, 140 (1944) Friendly v. Larsen
and construction of said premises, for the use and benefit of said defendants, all of which are
situate, so plaintiff is informed and believes, and therefore, alleges the fact to be, on the
NE1/4 of the SW1/4 of Section 24, Township 36 North, Range 59 East, M. D. B. & M., and
which said premises are embraced in the following lands and premises in the County of Elko,
State of Nevada, commonly known as and called the S. P. McMullen Ranch, to-wit:
Those certain premises mentioned and referred to in that certain notice of completion of
work dated October 16, 1941, and filed of record in the office of the County Recorder of the
County of Elko, State of Nevada, at Elko, Nevada, on October 16, 1941, and recorded in
Book 12 of Miscellaneous Records at page 142, which said notice is signed by Edward
Friendly on behalf of Margaret Elliott Burch Friendly, and which was filed by said Edward
Friendly, which said premises are generally known and in said notice referred to as the S. P.
McMullen Ranch Properties in Star Valley, said County and State, and which are embraced in
the following described lands, to-wit:
Immediately following these allegations, the S. P. McMullen ranch referred to therein is
described by legal subdivisions.
And the statement in the lien claim, which is made a part of the complaint, reads as
follows: That said contractor, therefore, holds and claims a lien against a reasonable portion
of said real estate upon which said buildings and improvements are situate, and also said
buildings and improvements, and each of them, for the unpaid portion of said contract prices
in the sum of $3,156.29, * * *.
5, 6. The lien was made a part of the complaint, and said lien and the complaint should be
read together. These allegations establish the fact that the buildings in question were situate
upon a certain quarter section of ranching property which was in the possession and
ownership of the appellants, which said quarter section was particularly described.
62 Nev. 135, 141 (1944) Friendly v. Larsen
was particularly described. Such a description is sufficient for identification. Appellants
understood that a quarter section only, and not the entire ranch property, was claimed for the
convenient use and occupation of the buildings, for it is stated in appellants' opening brief
that their answer filed in the trial court denied that the entire 40 acre tract referred to in the
complaint was necessary for the convenient use and occupation of the building.
7. It is strenuously insisted by appellants that there is not one scintilla of evidence in the
record upon which the court could base its conclusion as to the amount of land necessary for
the convenient use of the buildings. The court marked out upon a map which had been
admitted in evidence the portions of the premises which it deemed necessary for this purpose.
While it is true that we do not find in the record any direct statement from any witness that a
specifically described portion of the property is or was necessary for the convenient use of the
buildings, yet the witness Settelmeyer testified that he had made a survey of the premises and
had prepared a map, which is in evidence, showing the relation of the different buildings and
the land upon which they were situate, together with the courses and distances. This enabled
the court to have exact knowledge of the situation as it exists upon the land, and from which
the trial court could draw its conclusion as to what land was necessary and convenient for the
use of the property. We not only think that the evidence presented in this respect was ample,
but that it was of the highest order and much more satisfactory upon which to base a finding
than had a witness merely testified as to his or her opinion that certain portions of the land
were necessary or sufficient for the use of the property.
8. As to point No. 6, relative to the value of labor and materials, in our opinion the finding
on this proposition also is supported by substantial evidence in the record, and is sustained.
62 Nev. 135, 142 (1944) Friendly v. Larsen
9. We think that under the circumstances the attorney's fees of $750 allowed by the court is
reasonable. The record sustains the view that a great amount of work was performed by
counsel for respondents in the preparation and trial of the case.
Judgment affirmed.
____________
62 Nev. 142, 142 (1944) Mortimer v. Pacific States Savings & Loan Co.
FRANK C. MORTIMER, As Building and Loan Commissioner of the State of California,
Plaintiff, v. PACIFIC STATES SAVINGS & LOAN COMPANY, A Corporation, Doing
Business in the State of Nevada Under the Fictitious Name and Style of Allied Land &
Livestock Company, Defendant.
In Re Appeal of MILTON B. BADT.
No. 3395
October 1, 1943. 141 P.(2d) 552.
On Motion For an Order Dismissing the Appeal,
or Affirming the Orders Appealed From
1. Appeal and Error.
Where motion to dismiss appeal or affirm orders appealed from was filed nineteen days after appeal was
set for oral argument, and movant had obtained stipulations extending time to file briefs on the merits and
movant's counsel assumed an indifferent attitude as to how the motion should be decided, the right to move
to dismiss the appeal would be disregarded.
2. Appeal and Error.
Where attorney for defendant's receiver appealed from adverse orders with respect to attorney's fees,
there was an estoppel against plaintiff for moving to dismiss the appeal or affirm the orders on ground
that attorney was not a party aggrieved by the orders, where there was a change of position to attorney's
prejudice.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Action by Frank C. Mortimer, as Building and Loan Commissioner of the State of
California, against Pacific States Saving & Loan Company, a corporation, doing business in
the State of Nevada under the fictitious name and style of Allied Land & Livestock
Company.
62 Nev. 142, 143 (1944) Mortimer v. Pacific States Savings & Loan Co.
business in the State of Nevada under the fictitious name and style of Allied Land &
Livestock Company. From adverse orders, Milton B. Badt appeals, and plaintiff moves to
dismiss the appeal or to affirm the orders. Motion denied.
Robert W. Kenny, Attorney-General of California, and I. M. Peckham, Lenore D.
Underwood, and Perry H. Taft, Deputy Attorneys-General of California, for Plaintiff.
Milton B. Badt, of Elko, pro. per.
OPINION
By the Court, Ducker, J.:
This is a motion for an order dismissing the appeal, or affirming the orders appealed from,
made by plaintiff. Some explanatory statements are advisable.
From May 9, 1940, to October 15, 1942, George Russell, Jr., was receiver of the Pacific
States Savings & Loan Company, a corporation, doing business in the State of Nevada under
the fictitious name of Allied Land & Livestock Co., and appellant was attorney for the
receiver during that period. The receiver died on October 15, 1942. Prior to his death
appellant had been paid under orders of the court in allowances to the receiver for
compensation to appellant for his services to the receiver, the sum of $5,000. On the 28th of
October 1942 the court entered an order appointing E. A. Clawson as receiver in the place
and stead of George Russell, Jr., who qualified as such on October 30, 1942; and thereafter,
and on the 4th day of November 1942 upon request of Clawson, the court appointed Milton J.
Reinhart attorney for the receiver, and in its order, the order appointing appellant as such
attorney was terminated. Thereafter the judge of the court, feeling that appellant was
entitled to further compensation, suggested that if he would prepare an order the court
would fix it.
62 Nev. 142, 144 (1944) Mortimer v. Pacific States Savings & Loan Co.
that appellant was entitled to further compensation, suggested that if he would prepare an
order the court would fix it. Appellant stated that it was the duty of the receiver to petition the
court to fix his compensation and give him an opportunity to be heard on it. The judge spoke
to Clawson, who replied: I don't feel it is any of my affair because I had nothing to do with
employing Mr. Badt and know nothing of his services or what he has been paid and don't feel
inclined to do it.
The court, on December 11, 1942, entered an order which, among other things, contained
the following: Therefore, upon the court's own motion, it is Hereby Ordered, Adjudged and
Decreed as follows, to-wit: 1. That E. A. Clawson, the receiver herein, be and he is hereby
authorized, empowered and directed to pay to Milton B. Badt for the firm of Milton B. Badt
and Orville R. Wilson, the sum of Two Thousand Five Hundred Dollars ($2,500.00) as their
full and entire compensation for services rendered herein. * * *
The receiver sent appellant a check for $2,500, which he refused to accept, returning it to
Clawson. The appellant then noticed a motion to vacate the order, contending that it was
inadvertently made without hearing and without notice and without opportunity to any of the
parties to be heard in connection therewith, and that the amount allowed was inadequate to
compensate him for his services. At the time noticed for the hearing of the motion the
appellant appeared in propria persona, and the receiver and defendant appeared by attorneys.
The court entered an order denying the motion and made a further order that the 29th day of
January 1943, at 10 a. m. be fixed as the time for the hearing of the determination of
reasonable attorneys fees in the premises, at which time appellant could present proof to show
that the attorney fee heretofore fixed and allowed was unjust and unreasonable. It was also
ordered that notice of the above order be given by mailing a copy thereof by the clerk to all
interested parties.
62 Nev. 142, 145 (1944) Mortimer v. Pacific States Savings & Loan Co.
At that time an extensive hearing was had at which the receiver, the plaintiff and defendant
were represented by attorneys, and appellant by himself. Appellant testified in great detail as
to the services rendered by him to the former receiver and also testified as to the inadequacy
of the fee of $2,500 allowed him by the court. He was cross-examined at length by the
attorney for plaintiff. He was also cross-examined at some length by the court. Three
prominent attorneys of the state testified in behalf of appellant and in turn were
cross-examined by the attorney for the plaintiff. No evidence was introduced by the plaintiff
or the receiver. One witness was called and examined by the court and cross-examined by
appellant. The motion was submitted and taken under advisement. A written opinion was
rendered by the court and filed February 27, 1943, in which the following order was made:
For the reasons given, it is hereby ordered that the said order entered by this court on
December 11, 1942, will stand as entered.
Appellant's appeal is from that part of the order of the district court made and filed
December 11, 1942, which orders the payment to Milton B. Badt of the sum of $2,500 as full
and entire unpaid compensation for services rendered; from the order of said court made and
filed February 27, 1943, denying appellant's motion to vacate said portion of said order of
December 11, 1942, and denying appellant's application for the allowance of further attorneys
fees.
The motion to dismiss or affirm is on the ground that appellant is not a party aggrieved by
the rulings of the court. In addition to contesting the motion on this ground appellant
contends that the plaintiff's right to move to dismiss has been waived. As to this latter
contention, it has long been the practice in this court to have such motions heard and disposed
of in advance of setting the case for hearing on the merits. Here the appeal was perfected May
3, 1943. Appellant's opening brief on the merits was filed on June 11, 1943.
62 Nev. 142, 146 (1944) Mortimer v. Pacific States Savings & Loan Co.
brief on the merits was filed on June 11, 1943. The plaintiff's brief was filed August 4, 1943,
and appellant's closing brief was filed August 16, 1943. The case being thus at issue, the court
on that date set the hearing for oral argument for September 21, 1943. Nineteen days after we
made that setting, to-wit, on September 4, 1943, this motion to dismiss or affirm noticed for
hearing on the same day set for oral argument on the merits, was filed. We heard both the
argument on the motion and on the merits at that time in order to accommodate counsel by
not postponing the latter argument. It is to be observed that both the plaintiff and receiver
obtained stipulations extending time to file briefs on the merits. See Orleans M. Co. v. Le
Champ M. Co., 52 Nev. 85-91, 280 P. 887. It is also to be observed that the receiver has not
joined in the motion to dismiss or affirm. At the hearing on September 21, 1943, counsel for
plaintiff assumed a rather indifferent attitude as to how the motion should be decided, stating
that the office of the attorney-general of California wanted a decision on the point on account
of similar cases then pending in that state.
1, 2. We think the right to move to dismiss an appeal so belatedly and unilaterally made,
and perfunctorily presented, ought to be disregarded. Moreover, the element of estoppel is
involved. As we view it, there has been a change of position to appellant's prejudice. The
order of the lower court allowed the fee of $2,500 to appellant. Appellant moved to vacate it
on the grounds of lack of notice and inadequacy of the compensation. Plaintiff resisted the
motion and defended the order of the court. No objection or suggestion was made that the
appellant had not right to make the motion in his own behalf to vacate the order, and that it
should have been made in behalf of the receiver. It was recognized by court and counsel that
he was within his rights in proceeding as he did. It is now claimed on this motion that the
appellant has no right of appeal because he is not a party; that the receiver is such a party; that
the award of counsel fees is an award made to the receiver and not to the attorney.
62 Nev. 142, 147 (1944) Mortimer v. Pacific States Savings & Loan Co.
award of counsel fees is an award made to the receiver and not to the attorney. Had this
position been taken below, the court might have vacated its order pursuant to appellant's
motion and allowed the sum to the receiver. Appellant could then, if the receiver refused to
appeal, have applied to the court for permission to proceed in his own right and in his own
name for additional compensation out of the fund in the court, and in that case the appellant
could have appealed, if unsuccessful.
In this situation the plaintiff ought not to be heard to ask a dismissal or affirmance.
For the reasons given, the motion to dismiss the appeal or affirm the orders is denied.
On the Merits.
February 3, 1944. 145 P.(2d) 733.
1. Courts.
A formal written order signed by a district judge superseded a minute order entered by a
clerk and was the best evidence of the court's decision, notwithstanding that formal order
was prepared by applicant.
2. Courts.
The practice of preparing entries for the court to sign and enter of record is proper.
3. Judgment.
Where there is conflict between a minute order and a judgment, the latter prevails.
4. JudgmentReceivers.
A formal written order allowing fees to a receiver's attorney and reserving to trial court
the right to consider any additional allowance was not ambiguous so as to be governed by
minute order allowing fees for the calendar year and reserving to trial court the right to
fix future fees for future services.
5. Receivers.
An order allowing fees to a receiver's attorney and reserving to trial court the right to
consider any additional allowance was not final so as to preclude an allowance of fees for
services rendered prior to date of order.
6. Receivers.
In fixing fees of a receiver's attorney, skill and faithfulness of the attorney are
considered.
7. Receivers.
In fixing fees in receivership proceedings, the controlling considerations are value of
property,
62 Nev. 142, 148 (1944) Mortimer v. Pacific States Savings & Loan Co.
considerations are value of property, practical benefits derived from receiver's efforts and
attention, time, labor, and skill needed or expended in proper performance of duties
imposed and their value measured by common business standards, and the activity,
integrity, and dispatch with which the work of the receivership was conducted.
8. Receivers.
The measures to be weighed in fixing attorney's fees in receivership proceedings are to
a large extent the same that are considered in fixing receiver's fees and in fixing the
allowances to either, the governing principle is that compensation so allowed should be
measured by reasonable value of services rendered.
9. Receivers.
Generally, fixing compensation of receivers and their counsel is ordinarily within trial
court's discretion, and such allowances are presumptively correct, but the matter is
discretionary only in the sense that there are no fixed rules for determining the proper
amount and not in the sense that the court may award more or less than fair
compensation.
10. Receivers.
Where order upon trial court's own motion allowing full compensation to a receiver's
attorney was made without notice or opportunity to any of the parties to be heard, order
was invalid.
11. Receivers.
An allowance to a receiver by way of compensation for his services is not subject to the
arbitrary determination of the court but should be made upon a hearing at which the
parties interested have an opportunity of contesting the claim, and the same rule applies
as to a receiver's attorney.
12. Receivers.
In proceeding to fix fees for receiver's attorney, trial court was not bound by testimony
of attorney's witnesses, but was bound to consider such testimony, and if its intrinsic
force outweighed court's own estimate of the worth of the services, to accord probative
value to the testimony.
13. Appeal and Error.
Where uncontradicted testimony of receiver's attorney presented such a clear picture of
his services that supreme court was as able as trial court to judge what compensation was
just for the attorney, supreme court was not bound by trial court's opinion with regard to
testimony of attorney's experts, but would accord weight to such testimony.
14. Appeal and Error.
Where trial court allowed an insufficient fee to receiver's attorney for a specified
calendar year, reserving the right to consider an additional allowance, and attorney
appealed from subsequent void order allowing full compensation, and no useful purpose
would be accomplished by sending case back to fix additional compensation for the
calendar year,
62 Nev. 142, 149 (1944) Mortimer v. Pacific States Savings & Loan Co.
to fix additional compensation for the calendar year, the supreme court was able to fix
such compensation for that year, but was not authorized to do so for services for which
compensation was allowed by void order, but matter was for trial court in the first
instance.
15. Appeal and Error.
An order directing that void order allowing full compensation to receiver's attorney
stand as entered was not a valid final order fixing compensation, so as to authorize
supreme court to decide whether trial court abused its discretion in not fixing a higher
amount for services for which compensation was intended to be allowed by void order.
16. Appeal and Error.
That receiver's attorney by trial court's permission introduced testimony in face of void
order allowing full compensation to attorney did not validate order so as to authorize
supreme court to decide whether trial court abused its discretion in not fixing higher
amount for services for which allowance was intended to be made by void order.
17. Motions.
A void order cannot be enlivened by waiver or any other method to suit the
convenience of a party, but in legal contemplation is without effect.
18. Receivers.
An attorney for receiver of a corporation engaged in the land and livestock business
with assets of some $2,500,000 was entitled as compensation for 12 months' services to
an allowance of $3,000 in addition to a previously made allowance of $3,000.
Appeal from Fourth Judicial District Court, Elko County, James Dysart, Judge.
Action by Frank C. Mortimer, as Building and Loan Commissioner of the State of
California, against Pacific States Savings & Loan Company, a corporation, doing business in
the State of Nevada under the fictitious name and style of Allied Land & Livestock Company.
The District Court on its own motion ordered defendant's successor receiver to pay to Milton
B. Badt, for the firm of Milton B. Badt and Orville R. Wilson $2,500 as compensation for
services rendered as attorneys for a predecessor receiver, and denied Milton B. Badt's motion
to vacate the prior order and his application for an allowance of further fees, and he appealed.
Orders reversed, with direction. (Taber, J., dissenting.)
62 Nev. 142, 150 (1944) Mortimer v. Pacific States Savings & Loan Co.
Robert W. Kenny, Attorney-General of California, and I. M. Peckham, Lenore D.
Underwood, and Perry H. Taft, Deputy Attorneys-General of California, for Plaintiff.
Morley Griswold, of Reno, and Milton J. Reinhart, of Elko, for receiver E. A. Clawson.
Milton B. Badt, of Elko, in pro. per.
OPINION
By the Court, Ducker, J.:
This is an appeal taken by an attorney for a receiver from an order allowing fees to the
attorney, and from an order denying his motion to vacate same. See Mortimer v. Pacific
States Savings & Loan Co., Nev., 141 P. 2d 552.
On May 9, 1940, George B. Russell, Jr., was appointed receiver of the property of the
defendant land and livestock company in this state. On the day following, appellant, at the
request of the receiver, was appointed his attorney and continued to act in that capacity until
the receiver died on October 15, 1942. On October 28, 1942, E. A. Clawson was appointed
receiver of the defendant, and at his request an attorney, other than appellant, was appointed
for the new receiver. The court, on December 5, 1940, by its written order, allowed appellant
the sum of $2,000 in full for his services to the receiver from the date of his appointment to
and including that month, which was paid by the receiver to appellant. On December 9, 1941,
pursuant to an application by the receiver for increased compensation to himself and for
payment of attorney fees, the court entered a minute order denying receiver's application for
increased compensation. As to the payment of attorney fees, the following minute order was
entered:
62 Nev. 142, 151 (1944) Mortimer v. Pacific States Savings & Loan Co.
It is hereby ordered that the receiver pay Messrs. Badt & Wilson, attorneys representing the
receiver, the sum of $3000, out of the funds now in his hands, for the calendar year of 1941,
and the court reserves the right to fix any future fees for services performed in the future.
On the following day a formal written order was filed, which recited: Now, therefore, the
court being fully advised as to the law and the facts in the premises, and good cause
appearing therefor, it is hereby ordered: That there is hereby allowed and said receiver is
hereby ordered to pay out of the funds in his hands, to Messrs. Milton B. Badt and Orville R.
Wilson, as compensation for their services as attorneys for the receiver, for the calendar year
1941, the sum of $3000 subject to the right hereby reserved by said court, to consider the
matter of any additional allowance at the close of the receivership, or when proper occasion
should arise.
Appellant's employment having terminated with the death of Receiver Russell, the judge
suggested to appellant that if he would prepare an order the court would fix his compensation
in full. Appellant stated that it was the duty of the receiver to petition the court to fix his
compensation and give him (appellant) an opportunity to be heard on it. The judge
endeavored to get the receiver to do this but he declined to do so. Whereupon the court, on
December 11, 1942, entered an order which, among other things, contained the following:
Therefore, upon the Court's own motion, it is Hereby Ordered, Adjudged and Decreed, as
follows, to-wit:
1. That E. A. Clawson, the receiver herein, be and he is hereby authorized, empowered
and directed to pay to Milton B. Badt for the firm of Milton B. Badt and Orville R. Wilson,
the sum of Two Thousand Five Hundred Dollars ($2500.00) as their full and entire unpaid
compensation for services rendered herein.
The receiver sent appellant a check for the amount, which he refused to accept, returning it
to sender. The appellant then noticed a motion to vacate the order on the ground that it was
inadvertently made,
62 Nev. 142, 152 (1944) Mortimer v. Pacific States Savings & Loan Co.
the ground that it was inadvertently made, in that it was made without hearing, and without
notice and without opportunity to any of the parties to be heard in connection therewith, and
that the amount allowed was inadequate to compensate him for his services. A hearing was
had and the court entered an order denying the motion. It made a further order that the 29th
day of January 1943 at 10 a. m. be fixed as the time for the hearing of the determination of
reasonable attorney fees in the premises, at which time appellant could offer proof to show
that the attorney fee heretofore fixed and allowed was unjust and unreasonable. The hearing
which followed was quite extensive. Appellant testified in considerable detail as to the
services rendered by him to the former receiver, and also testified as to the inadequacy of the
compensation allowed him by the court. Three prominent attorneys of the state appeared as
witnesses for appellant and testified as to the value of his services. No testimony was
introduced by the plaintiff or receiver. One witness was called and examined by the court.
The motion was submitted and taken under advisement. A written opinion was rendered and
filed by the court, wherein it was ordered: For the reasons given, it is hereby ordered that the
said order entered by this court on December 11, 1942, will stand as entered.
The appeal is from that part of the order of December 11, 1942, which orders the sum of
$2,500 to be paid to appellant as full and entire unpaid compensation for services rendered,
and from the order of February 27, 1943, denying appellant's motion to vacate said portion of
said order of December 11, 1942, and denying appellant's application for an allowance of
further attorney fees.
The main question is the adequacy of appellant's compensation. There is a dispute between
him and opposing counsel as to the period for which the former may claim for services
rendered. Appellant conceded that the first payment he received of $2,000 was in full for his
employment from the date of his appointment to and including December 1940,
62 Nev. 142, 153 (1944) Mortimer v. Pacific States Savings & Loan Co.
payment he received of $2,000 was in full for his employment from the date of his
appointment to and including December 1940, but contends that his compensation, unpaid,
should be allowed for the year 1941 and to and including October 15, 1942, the date of the
receiver's death. Opposing counsel contend that the record shows that appellant received
compensation in full for 1941. This is predicated upon the claim that the minute order of
December 9, 1941, is controlling as against the formal written order of the following day, and
that appellant, having failed to take an appeal from said minute order, is concluded by it.
1-3. The formal written order signed by the court, must, we think, supersede the minute
ordered entered by the clerk. State v. Bell, 34 Wash. 185, 75 P. 641; Hanley v. Most, 9 Wash.
2d 429, 115 P.2d 951, 118 P.2d 946; 34 C. J. 506, n. 64; 21 C. J. S., Courts, sec. 237, p. 445.
It must be taken as the best evidence of the court's decision. The fact that it was prepared by
appellant is of no consequence. A court is presumed to read and know what it signs. The
practice of preparing entries for the court to sign and enter of record, is proper. 21 C. J. S.,
Courts, sec. 226, p. 421. By the same principle, where there is a conflict between a minute
order and a judgment, the latter will prevail. Gould v. Austin, 52 Wash. 457, 100 P. 1029,
1030. In the above case the court said: The rule in this state is that, where there is a conflict
between the clerk's minute entry of the court's proceedings and the formal written judgment
signed by the judge, the latter will control, and be deemed the actual judgment of the court.
This was held by us in the case of State ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641, where
we prohibited the trial judge from enforcing an order as recorded in the clerk's minutes
instead of the order as recorded in the formal written entry signed by him; the orders as
recorded being conflicting.
Citing the above case, and holding to the same effect, is McFadden v. McFadden, 22 Ariz.
62 Nev. 142, 154 (1944) Mortimer v. Pacific States Savings & Loan Co.
is McFadden v. McFadden, 22 Ariz. 246, 196 P. 452-453, wherein the court said: Moreover,
we think, in conformity with the rule in at least one jurisdiction, that where this is a conflict
between the entry made by the clerk in the minutes and the solemn judgment of the court, the
terms of the latter should be given force and effect, rather than of the former.
4. It has been urged that the formal written order of December 10, 1941, is ambiguous; that
therefore the minute order should govern, and that the appellant, having taken no appeal from
it, is concluded by it. The formal order is not ambiguous. It states in unequivocal language:
The right reserved * * * by said court to consider the matter of any additional allowance at
the close of the receivership, or when proper occasion should arise. The language refers to
the past as well as the future. If the trial court did not consider it so, why did it permit
appellant to offer proof as to the whole period of his employment? Why did it not restrict his
proof to 1942? If it did not wish to make a change in the minute order why did it sign the
latter order at all? Courts are not given to making idle orders.
5. Neither the attorney for the plaintiff nor the attorney for the receiver took the position
that the later order is ambiguous. They placed their contention squarely on the proposition
that the minute order was controlling. The formal written order stands unimpeached. We hold
that it is not a final order and that it prevails over the minute order.
We now come to the question of the adequacy of the amount allowed by the court for the
appellant's services to the receiver. Counsel for the plaintiff or receiver introduced no
evidence or testimony in rebuttal of appellant's case established at the hearing. They stand
upon the declaration that the compensation allowed was strictly within the discretion or the
trial court and cannot be disturbed by this court unless it is found there was an abuse of
discretion. They assert that there was no such abuse. The defendant, as its name implies, was
engaged in the land and livestock business when its property was made the subject of a
receivership.
62 Nev. 142, 155 (1944) Mortimer v. Pacific States Savings & Loan Co.
engaged in the land and livestock business when its property was made the subject of a
receivership. Its business had been conducted on an extensive scale in this state prior to the
receivership. The value of its assets and business is indicated by the fact that the receiver was
required to furnish a bond in the sum of $200,000. The extent and value of the estate
administered, as appears from appellant's testimony, which is undisputed, appears as follows:
On January 21, 1942, Mr. Russell, as Receiver, had a local independent livestock
appraiser make an appraisal of the stock on hand, and this showed the following valuations
based on the prices given to the individual classifications:
8850 cattle $491,150.00
32693 sheep 307,654.00
832 horses 41,600.00

___________

Total, cattle, sheep and horses $840,414.00
To the above prices should be added the following:
Classification of 2744 cows valued at $55.00 per head
should be raised to $65.00 per head, or an addition of
27,440.00
Classification of 869 2-year-old heifers valued at $55.00
per head, should likewise be increased to $65.00 per
head, making an addition of
8,690.00
Increase of cattle herd from 8850 head to 9100 head, a
difference of 250 head, at $50.00 per head
12,500.00
Hay on hand October 28, 1943, being 10,685.73 tons at
$7.50 per ton
80,142.97
Cash in bank September 30, 1942
263,109.04

___________

Total of cash and quick assets of personal property
1,232,296.01
The above can be said, without a great variation, to be the immediate cash value of the
personal property in the hands of Geo. Russell, Jr., Receiver, at the time of his death,
62 Nev. 142, 156 (1944) Mortimer v. Pacific States Savings & Loan Co.
his death, held by him under his $200,000.00 surety bond. Other personal property, running
into many thousands of dollars, would consist of machinery, ranch equipment, commissaries,
and supplies on hand, etc., and also including hogs and poultry which have not been included
here. It would probably not be out of the way to figure the land as of the approximate value as
the livestock, which would run the total valuation close to two and a half million dollars.
During appellant's employment from May 10, 1940, to and including October 15, 1942,
the receivership continued in an extremely active status. Business was carried on by the
receiver in all its branches. The receivership was so well administered that on September 30,
1942, there was cash in bank in the sum of $263,109.04, whereas prior to that time, it had
been necessary to borrow money on receiver's certificates, and for the receiver to advance his
own money to carry on the business.
6. As heretofore stated, appellant was a witness in his own behalf. He is known to this
court as an attorney of ability and integrity in the profession. His testimony shows that he has
been engaged in the practice of law continuously since 1909, a period of over 32 years, of
which approximately 27 years had been spent continuously in Nevada. His practice has been
extensive in fields involving lands and livestock holdings, banks, receiverships, which should
qualify him to give expert services to a receiver in a case of this kind. We mention the above
because the skill and faithfulness of an attorney are elements to be considered in fixing the
fees of an attorney for a receiver. Appellant's testimony was presented at the hearing in the
form of a written statement from which he testified, and covered in detail his activities during
the entire course of his employment. To enumerate them in full would serve no useful
purpose and unreasonably extend this opinion. His office files were presented and examined.
Suffice it to say, that his work consisted of what would reasonably be expected to engage
the attention of an attorney for a receiver in a receivership of that magnitude and
character,
62 Nev. 142, 157 (1944) Mortimer v. Pacific States Savings & Loan Co.
be expected to engage the attention of an attorney for a receiver in a receivership of that
magnitude and character, in a business, which, in this state, experience has shown to be of a
nature requiring great skill and care for successful management. The management was so
thorough and businesslike in this case as to elicit from one of the witnesses, Mr. M. A.
Diskin, a former attorney-general of this state, when he was undergoing cross-examination by
the court, the following: If the Court please, if you'll permit me to make a remark: I have
examined a great number of receiverships and never yet have I examined a proceeding where
it has been so expeditiously carried on, everything on time and so methodically, as the records
in this case disclose that this receivership was carried on. I appreciate a great deal of that
credit is given to the Court, but we must give some credit to the attorney and the receiver.
And again this witness, while still on cross-examination by the court, commenting on the
responsibility involved, testified: Whenever you take assets worth a million and a half or
two million dollars and dump them into the lap of the Court, and a receiver, and the receiver's
attorney, you have got a responsibility that doesn't end when the day's over. That attorney and
the Court takes it to bed with them, you couldn't say, when the day's over, but when the
work's through.
The three expert witnesses called by appellant, Mr. Samuel Platt, Mr. Lester D.
Summerfield, and Mr. M. A. Diskin, are among the outstanding attorneys of this state, and
each has had a wide experience in receivership and similar matters. After listening to
appellant's testimony they testified respectively, as follows: Mr. Platt stated in his opinion,
$20,000 for appellant's entire professional services for the receiver, would be a reasonable,
proper amount to be paid. Mr. Summerfield testified that in his opinion the fee should be in
the minimum of $15,000 to a maximum of $25,000. I leave a leeway, he said, through
lack of a complete familiarity with all the minute details in the case and services rendered."
62 Nev. 142, 158 (1944) Mortimer v. Pacific States Savings & Loan Co.
rendered. Mr. Diskin testified that in his opinion the reasonable value of such services
should be: A minimum of $15,000 and a maximum of $22,500, or a minimum based at the
rate of five hundred per month, and a maximum based at the rate of seven hundred fifty a
month.
7, 8. The foregoing is a fair summarization of the evidence and testimony which the trial
court had before it when it finally ordered that the allowance of $2,500 should stand as
compensation in full for appellant's services. In finding the reasonable value of a receiver's or
his attorney's fees, the elements to be considered as controlling are fairly well stated in United
States v. Admiral Refining Co., Tex. Civ. App., 146 S. W. 2d 830, 831, cited by plaintiff:
The considerations that should be controlling with the court in fixing compensation are the
value of the property in controversy; the practical benefits derived from the receiver's efforts
and attention; time, labor and skill needed or expended in the proper performance of the
duties imposed, and their value measured by the common business standards; and the degree
of activity, integrity, and dispatch with which the work of the receivership is conducted.'* * *
The measures to be weighed in fixing attorney's fees in receivership proceedings are, to a
large extent, the same which are considered in fixing the receiver's fees. In fixing the
allowances to either, the governing principle is that the compensation so allowed should be
measured by the reasonable value of their services rendered.
9. Applying this to the evidence and testimony in this case we think that appellant's
services are reasonably worth more than was allowed by the trial court. We have in mind, and
agree with the general rule, that the fixing of compensation of receivers or their counsel is
ordinarily a matter within the discretion of the trial court and will not be interfered with on
appeal, except in cases where it has been abused. Such allowances are presumptively correct.
Citation of authority is unnecessary to attest this well-settled rule.
62 Nev. 142, 159 (1944) Mortimer v. Pacific States Savings & Loan Co.
unnecessary to attest this well-settled rule. However, it is held that the matter is discretionary
only in the sense that there are no fixed rules for determining the proper amount and not in
the sense that the court is at liberty to award more than fair and reasonable compensation, 53
C. J. 378, nor less than such compensation, for the same reason.
10, 11. One consideration, we think, which contributed to the cause of the trial court's
failure to exercise a proper discretion in the premises, stems from the order of December 11,
1942. That order was invalid because made without notice and without opportunity to any of
the parties to be heard. As was said in Weber v. Empire Holding Corporation, 149 Or. 503,
41 P.2d 1084, 1087, quoting from Ruggles v. Patton, 6 Cir., 143, F. 312, 314: Nothing is
better settled than that an allowance to a receiver by way of compensation for his services is
not subject to the arbitrary determination of the court, but should be made upon a hearing at
which the parties interested have an opportunity of contesting the claim. Colkett v.
Hammond, 101 Wash. 416, 172 P. 548; Heater v. Boston-Montana Corporation, 75 Mont.
532, 244 P. 501.
The same rule applies as to an attorney for a receiver. No objection to the order being set
aside pursuant to appellant's motion was made by any attorney in the case. The court refused
to set it aside and kept it in force and effect during the hearings. The result was that, while the
court permitted appellant to introduce testimony as to what would constitute fair and
reasonable compensation, he was compelled to present all his testimony in the face of that
arbitrary and invalid order. This procedure placed him somewhat in the unhappy predicament
of one introducing evidence on an issue after a decision had been rendered. The error of the
court in not setting aside the order and receiving the testimony on an open issue was
fundamental, and, in our opinion, was prejudicial to appellant throughout the hearing. The
order contained a finding of the court that appellant had not been compensated for his
services from January 1, 1942, to October 31, 1942.
62 Nev. 142, 160 (1944) Mortimer v. Pacific States Savings & Loan Co.
that appellant had not been compensated for his services from January 1, 1942, to October 31,
1942. This, by plain implication, finds that he had been fully compensated for all former
services, whereas we have decided that he was not concluded by the formal written order of
December 10, 1941 for additional compensation for the year 1941. We think it is a fair
presumption to indulge from the record that the court was influenced, unconsciously perhaps,
by this order. This is indicated by the record before us. The court, throughout the hearing,
strove energetically to defend the order. Notwithstanding the plaintiff was represented by the
deputy attorney-general of California, who conducted a very thorough cross-examination of
appellant, which elicited from Mr. Robbins, attorney for the defendant (who declined to
cross-examine), the observation that Mr. Peckham seems to have covered the entire field of
cross-examination, the court, at this juncture, subjected appellant to a rigid
cross-examination endeavoring to show that many of the conferences which appellant had
listed with the receiver's bookkeeper, Mr. Zuber, as services performed by appellant were of
no consequence; also that all of the credit for the receiver's accounts to the court was due to
the bookkeeper. The same procedure was maintained as to the accounts when Mr. Diskin was
undergoing cross-examination by the court. He was questioned at length in an effort to show
that appellant was seeking to claim for services which it was the duty of the receiver to
perform without the aid of counsel. Again, when movant and plaintiff had closed, the court,
on its own motion, called Mr. Zuber, bookkeeper and accountant for receiver Russell, and had
him sworn as a witness, and examined him at length, endeavoring to show that most of some
thirty-three conferences which appellant had listed as having had with him prior to Russell's
death, were unnecessary and of no consequence. However, on cross-examination by
appellant, Mr. Zuber did not deny that any of the conferences claimed were had.
62 Nev. 142, 161 (1944) Mortimer v. Pacific States Savings & Loan Co.
conferences claimed were had. We think the opinion of this witness that the conferences were
of no consequence is not of a quality to conflict with the testimony of appellant in this
respect.
Another circumstance which we think was unfavorable to appellant was the court's idea
that the defendant was at all times during the receivership a going concern. This conviction
was repeatedly stressed by the court in its written opinion of December 5, 1940, in which
appellant was allowed $2,000 for his services for that year. Again the same belief is indicated
by the court in its cross-examination of Mr. Diskin when it propounded the following
question: And where it is simply like in this instance, a going concern, where the receiver
simply managed a going concern, that should make some difference, shouldn't it? This was
an erroneous view, and of course lessened the value of appellant's services in the mind of the
trial court. It is not unreasonable to presume that this view induced the trial court to allow
appellant's compensation on the theory of a retainer. In its written opinion of December 5,
1940, it was stated: In short, the attorney's employment so far at least, should be considered
more in the nature of a retainer. The court, as we have seen, allowed appellant's
compensation at the rate of $250 per month during that year and continued it throughout his
employment at that rate.
If defendant was a going concern, it was only so towards the end of receiver Russell's
administration, and made so by his able management, to which it must be allowed appellant's
services contributed to some extent.
12. Appellant contends that the trial court ignored the testimony of his three witnesses. We
concede that the court was not bound by such testimony. Such is the clear weight of authority.
It was bound, however, to consider this testimony, and if its intrinsic force and probability
outweighed its own estimate of the worth of appellant's services, to accord probative value
to it.
62 Nev. 142, 162 (1944) Mortimer v. Pacific States Savings & Loan Co.
worth of appellant's services, to accord probative value to it. Whether the trial court did
consider their testimony in this manner, we have no means of knowing. It is certain however,
that it was not influenced by it.
However, by reason of the condition of the record before us we are not bound by the trial
court's opinion in regard to the testimony of the expert witnesses, and we, on the contrary,
accord weight to it.
13. The rule heretofore adverted to that fixing the compensation of receivers and their
counsel is ordinarily for the trial court and will not be interfered with on appeal, unless there
is an abuse of discretion, is based upon the consideration that usually that court has better
means of knowing what compensation is just and reasonable than the appellate court. But this
consideration is of no force in this case because appellant's testimony, which is not
contradicted in any respect, has presented such a clear picture of all that transpired in the
lower court, concerning which he rendered service during his employment, that we are able to
judge the matter as well as the trial court.
14, 15. For the foregoing reasons, we see no useful purpose to be accomplished in sending
the case back for a new trial for the purpose of an additional allowance for the year 1941. We
are able to fix additional compensation for appellant for that year. We are not authorized to
do so for the ten months of his service in 1942 for the reason that the order appealed from
making an allowance of $2,500 was void, and it follows that no compensation has been
legally allowed for that period. It is incumbent on the trial court in the first instance to fix a
reasonable fee for those months.
It is said that the order of February 27, 1943, should be regarded as a valid, final order
fixing the amount of appellant's compensation for his services performed in 1942, and that he
is entitled to have this court decide whether the trial court abused its discretion in not fixing a
higher amount than $2,500 for the services performed in 1942. These statements are made on
the theory that there is a valid order fixing such amount, whereas there is no such order.
62 Nev. 142, 163 (1944) Mortimer v. Pacific States Savings & Loan Co.
theory that there is a valid order fixing such amount, whereas there is no such order. The
order of February 27, 1943, made no allowance for attorney fees. It read: For the reasons
given, it is hereby ordered that the said order entered by this court on December 11, 1942,
will stand as entered.
16, 17. How then could the order of February 27, 1943, be regarded as a valid order, or any
order fixing compensation? The order of December 11, 1942, fixing appellant's compensation
for 1942 at $2,500, as we have held, is void. No act of appellant in introducing testimony in
the face of it, by permission of the trial court, could render it valid. A void order cannot be
enlivened by waiver or any other method to suit the convenience of a party. In legal
contemplation it is without force or effect. Being void, no compensation was fixed by it, and
it is still the duty of the trial court in the first instance to fix a reasonable fee for the ten
months in 1942. For this court to proceed now to decide whether the trial court abused its
discretion in not fixing a higher amount than $2,500 for the services performed in 1942,
would be exercising original rather than appellate jurisdiction.
What we have said of the actions and statements of the trial court must not be taken as
censure. Our purpose in that respect has been merely to cite causes, which in our opinion,
induced the court to underestimate the amount and value of appellant's services. No reflection
is intended.
The court's desire to protect the estate submitted to its jurisdiction from unnecessary
expense is commendable. As has been justly said, a court should not be liberal with other
people's money. On the other hand, the laborer is worthy of his hire. The practice of frugality
and conservatism in the administration of receiverships should not be advanced to the extent
of outweighing considerations of skill and worth.
18. The orders appealed from are reversed and the lower court is directed to set them aside
and to enter an order allowing appellant a fee of $3,000 as additional compensation for his
services for the year 1941.
62 Nev. 142, 164 (1944) Mortimer v. Pacific States Savings & Loan Co.
an order allowing appellant a fee of $3,000 as additional compensation for his services for the
year 1941. Such order, when entered, will stand affirmed.
Orr, J., concurring.
I concur in the opinion of Justice Ducker and in the order.
I am convinced the rule announced in that opinion to the effect that the written order
should prevail over the minute entry is correct. This because of the fact that such rule
conforms to the practice followed for many years and accorded recognition by the courts and
the bar, that is to say: the solemn decree of a court, bearing the signature of the judge thereof,
is recognized as the judgment of the court until changed by appropriate proceedings instituted
therefor. I find nothing in the Nevada cases inconsistent with such a practice. There is no
question but what the pronouncement by the court from the bench of a judgment is the
rendition of the judgment by the court. But in this case we are not concerned with the
question of when the judgment was rendered; we are concerned with what shall be accepted
by this court as evidence of what judgment was rendered. As pointed out by Justice Ducker,
the cases of Gould v. Austin, 52 Wash. 457, 100 P. 1029, and McFadden v. McFadden, 22
Ariz. 246, 196 P. 452, hold that the written order or decree should control over the minute
order. The case at bar is distinguishable from the case of Silva v. Second Judicial District
Court, 57 Nev. 468, 66 P.2d 422, just as Gould v. Austin and McFadden v. McFadden are
distinguishable therefrom. The instant case and McFadden v. McFadden and Gould v. Austin
are in one class, the Silva case in another. In the first the question of whether the written order
or the minute order should be accepted in determining what the decision of the court was, and
the second a proceeding seeking to make the decree speak the truth. There is nothing in the
Silva case to the effect that the decree entered therein was not binding until such time as
corrected.
62 Nev. 142, 165 (1944) Mortimer v. Pacific States Savings & Loan Co.
binding until such time as corrected. Suppose in the Silva case, without any effort having
been made to have the decree corrected, the parties, basing their request upon the minute
order, the recollection of the judge and the notes of the reporter, had asked the trial court to
enter an order changing the custody of the children and the court had refused to do so upon
the ground that it had lost jurisdiction; that thereafter an appeal had been taken to this court
and the contention made that the court retained jurisdiction, but the decree being silent
thereon the appellant had offered to prove that such was the case, by the reporter's transcript,
the recollection of the judge and the minute order. I apprehend that this court would have
been compelled to rely upon the recitals of the decree, and that the proposals of the appellant
would have been rejected. It seems manifest that the situation in the Silva case was so
understood by the parties, who recognized that before the recollection of the judge as to his
intention, the minute order and the reporter's notes could be given force and effect, a proper
proceeding by motion in the trial court must be instituted to have the decree speak the truth in
that respect. It is not to be understood that a statement in a decree or order if different from
the actual pronouncement of the court must stand for all time, but it should do so until
corrected by an appropriate proceeding, either upon motion of one of the parties or by the trial
court upon its own motion. This latter procedure was sanctioned in the case of Gottwals v.
Rencher, 60 Nev. 35, 47, 92 P.2d 1000, 98 P. 2d 481, 126 A. L. R. 1262. Until so corrected it
is binding upon the parties. This is the rule laid down in Forker v. Hopkins, 64 Colo. 325, 171
P. 361, at page 362, and Bates v. Hall, 44 Colo. 360, 98 P. 3, 6. The fact that the Colorado
cases were brought under a special statute relating to irrigation law does not, to my mind,
detract from their value as authority. Decrees in water cases are no more solemn and binding
than decrees in other proceedings. I think the reasoning employed in said Colorado cases is
sound and may be applied to all decrees and judgments.
62 Nev. 142, 166 (1944) Mortimer v. Pacific States Savings & Loan Co.
Colorado cases is sound and may be applied to all decrees and judgments. See Bancroft's
Code Pleading and Remedies, vol. 3, page 2235, notes 3, 4, 5 and 6. It seems plain that failure
to follow the rule that the written order is binding until changed would lead to much
confusion. I agree with the statement in the case of Gould v. Austin, supra [52 Wash. 457,
100 P. 1030]: there should be some standard in the record, to which reference may be made
as the conclusive evidence of what has been actually decided. * * * That, when the court
signs a written order, it shall be considered the evidence of its real and final act touching the
subject immediately under consideration. The practice of filing written orders and written
decrees signed by the judge, though not specifically required by statute, is a good one and
should be encouraged. The best way to encourage such practice is to accord to such decrees
and orders the recognition long practice has established.
I am further convinced that the remanding of the case to the trial court to fix a fee for the
year 1942 is absolutely necessary. The order entered by the trial court attempting to fix such a
fee being void there is nothing which transpired at the hearing on February 27 which we can
legally consider as constituting such an order. The fixing of a fee lies with the trial court in
the first instance, and until it has actually made a valid order this court has nothing on which
to base a determination as to whether or not the trial court has abused it discretion.
Taber, J., dissenting.
There is no controversy concerning the $2,000 allowed appellant for his services
performed in the year 1940. The order making that allowance was final, and in full for
appellant's services from the date of his appointment May 10, 1940, to and including
December of the same year.
There is a difference of opinion regarding the order allowing appellant $3,000 for his
services performed in 1941.
62 Nev. 142, 167 (1944) Mortimer v. Pacific States Savings & Loan Co.
allowing appellant $3,000 for his services performed in 1941. Plaintiff and the present
receiver contend that the trial court was right in holding that said order, like that of 1940, was
final, and that said allowance was in full for the year 1941. This contention is based chiefly
upon an order made in open court December 9, 1941, and entered in the court minutes of that
date in the following language: It is hereby ordered that the Receiver pay Messrs. Badt &
Wilson, attorneys representing the Receiver the sum of $3,000.00 out of the funds now in his
hands for the calendar year of 1941, and the Court reserves the right to fix any future fees for
services performed in the future.
It is appellant's contention that said order was not final, and that said allowance was not
necessarily in full for his 1941 services. This contention is based upon a formal order
prepared by appellant, dated December 10, 1941, and signed by the trial judge and filed on
that date. This order, omitting preliminary recitals and the signature and official title of the
judge, reads as follows:
That there is hereby allowed and said Receiver is ordered to pay out of the funds in his
hands to Messrs. Milton B. Badt and Orville R. Wilson as compensation for their services as
attorneys for the Receiver, for the calendar year of 1941, the sum of $3,000.00, subject to the
right hereby Reserved by said Court to consider the matter of any additional allowance at the
close of the Receivership, or when the proper occasion should arise.
Dated this 10th day of December, 1941, per minute order of December 9, 1941.
In view of certain decisions of this court, I think the position taken by plaintiff and the
present receiver is the correct one. Silva v. Second Judicial District Court, 57 Nev. 468, 66 P.
2d 422; California State Tel. Co. v. Patterson, 1 Nev. 150; First Nat. Bank in Reno v. Fallon,
55 Nev. 102, 26 P.2d 232; Gottwals v. Rencher, 60 Nev. 35, 47, 92 P.2d 1000, 98 P. 2d 481,
126 A. L. R. 1262; Coleman v. Moore & McIntosh, 49 Nev. 139, 241 P.
62 Nev. 142, 168 (1944) Mortimer v. Pacific States Savings & Loan Co.
P. 217; Central T. Co. v. Holmes M. Co., 30 Nev. 437, 97 P. 390; Kehoe v. Blethen, 10 Nev.
445. See also the following texts, all of which cite one or more Nevada cases: 3 Bancroft's
Code Pr. and Rem., p. 2232, nn. 7, 8, 9, p. 2234, n. 16, p. 2249, nn. 18, 19; 1 Freeman on
Judgments, 5th Ed., p. 75 n. 1, pp. 80-81, nn. 1, 2, 3, 4, p. 109, n. 5, p. 110, n. 8; 34 C. J.
44-45; 14 Standard Proc. p. 971, n. 31, p. 988; 23 Cyc. 835, 836; 18 Encyc. of Pl. and Pr. pp.
429, 430, 438, n. 2; 17 Am. and Eng. Encyc. of Law 768, n. 5. While the foregoing
authorities relate to judgments and decrees, they are applicable to orders.
In Silva v. Second Judicial District Court, supra, the trial court, in rendering judgment
from the bench, reserved jurisdiction to modify a divorce decree with respect to custody and
support of minor children. Said reservation was omitted from the formal written decree. This
court held, in mandamus proceedings, that said omission was a clerical error, and that the trial
court had the power and it was its duty to amend the decree to conform to the judgment
actually rendered in open court. The court said in part [57 Nev. 468, 66 P. 2d 425]: There
can be no question as to the omission of the reservation in this case being clerical and not the
result of judicial error. * * * Nor can there be any question that the pronouncement from the
bench is the final decree. California State Tel. Co. v. Patterson, 1 Nev. 150; First National
Bank in Reno v. Fallon, 55 Nev. 102, 26 P. 2d 232, with which the decree signed by the judge
and entered should correspond.
In the Silva case, two cases relied on by appellant in the case at bar were distinguished by
this court as follows: The rulings in state ex rel. Jensen v. Bell, 34 Wash. 185, 75 P. 641,
and McFadden v. McFadden, 22 Ariz. 246, 196 P. 452, relied on by respondents are
distinguishable from the question presented here. In each of those instances the court held
that the formal judgment signed by the judge should be accorded greater weight than the
minute entry of the clerk,
62 Nev. 142, 169 (1944) Mortimer v. Pacific States Savings & Loan Co.
weight than the minute entry of the clerk, and the former was deemed conclusive of what was
actually adjudicated. But the case before us is not one of conflicting evidence in which every
intendment should be drawn in favor of a formal decree. The minute entry in this case is
corroborated by the court reporter's transcription of the proceedings, and confirmed by the
recollection of the trial judge.
In Gottwals v. Rencher, supra, a minute entry was uncertain in its terms and did not truly
and correctly state the oral decision actually rendered by the trial court. That court ordered
said entry to be amended so as to conform to the decision actually rendered from the bench.
This court on appeal [60 Nev. 35, 98 P. 2d 486, 126 A. L. R. 1262], upheld said action of the
trial court, saying that the latter merely corrected the record so as to make it speak the truth
as to what was actually decided. In the same case the court further said: The court's
statement that the minute entry was uncertain in its terms and not the true or correct statement
of what occurred, must be taken as true. Moreover, it is corroborated by testimony of the
clerk that the said transcript contained only a partial statement of what the court had said and
that she did not remember what else he had said. In any event, a trial court in rendering its
oral decision is not bound by what the clerk or stenographer has taken down, but may rely on
its own memory as to what was actually decided. It may, in the exercise of its discretion,
refresh its memory in this respect from any source it deems reliable.
In Linville v. Scheeline, 30 Nev. 106, 93 P. 225, 227, this court, after saying it had
repeatedly been held in Nevada that the decision of the court is the announcement by the
court of its judgment, and is distinct from the findings went on to say: Were this question a
new one, it might be open to serious question, as many authorities, under similar statutes, take
a contrary view. The practice in this state, however, of regarding the oral announcement by
the court of its judgment as the decision,
62 Nev. 142, 170 (1944) Mortimer v. Pacific States Savings & Loan Co.
oral announcement by the court of its judgment as the decision, has been so thoroughly
recognized by the bench and bar that it would not now be proper to announce a different
rule.
Without quoting from California State Tel. Co. v. Patterson, 1 Nev. 150, attention is
directed to pages 155, 156 and 159 of the opinion.
The minute order of December 9, 1941, is clear and certain in its language, and free from
all ambiguity. It correctly records the order actually made in open court on that date. We have
the statement of the trial judge to that effect, made while he was questioning appellant at the
hearing on January 29, 1943. It appears in the following excerpt from the record:
By the Court:
Q. Mr. Badt, I understand you are petitioning now for a readjustment or reallowance of
these fees over this whole period? A. I am asking particularly for, your Honor, two periods,
two phases, the period of 1941 and of 1942 to Mr. Russell's death is particularly involved by
reason of the fact that the allowance last year in December 1941 was without prejudice to
additional allowance at the time of the closing of the receivership or if proper occasion should
arise.
Q. I think, Mr. Badt, you don't have a very clear understanding. I made a minute order
from the bench fixing your fees for 1941 in the sum of $3,000.00. A. Yes, your Honor.
Q. Two-hundred fifty dollars a month for twelve months, and the only reservation that I
made in that was that I reserved the right to fix any fees for future services, having in mind
that in the event there was litigation, or something out of the ordinary, that would justify, in
my opinion, a much larger fee. * * *
This statement of the trial judge, expressly corroborating the minute order of December 9,
is entitled to the same weight as the statement of the trial judge in Gottwals v. Rencher, supra,
and the recollection of the trial judge in the Silva case. If the minute order had not correctly
recorded the order actually made from the bench,
62 Nev. 142, 171 (1944) Mortimer v. Pacific States Savings & Loan Co.
had not correctly recorded the order actually made from the bench, it may be presumed that
the trial judge would not have confirmed and approved it by making said statement. The fact
that the minute order has been corroborated by the trial judge, and the further fact that no
attempt has been made to show that it failed in any respect to correctly record the order made
in open court, afford convincing proof that said minute entry correctly records that order.
What has just been said is not to be taken as meaning that in construing an order or
judgment made by the trial court this court can consider that court's opinion as to the meaning
of such order or judgment. We cannot, for example, in construing the written order of
December 10, take into consideration the fact that the trial court in its ruling of February 27,
1943, held that the order allowing appellant $3,000 for his 1941 services was a definite and
final order. Cook v. Smith, Tex. Civ. App., 96 S. W. 2d 318; Taylor v. City of Guelph, 39
Dom. Law Rep. 416, 419; 42 C. J. 556, n. 27(b). But the statement made by the court at the
hearing on January 29, 1943, was not an expression of opinion. It was a statement of fact
made in open court during a hearing at which one of the questions under consideration was
whether the order allowing compensation for 1941 services was or was not a final order. And
it will be observed that in making the statement the court did not merely say that the minute
order read thus and so; what it did say was, I made a minute order from the bench * * *.
Here we have a statement emanating from the memory and recollection of the trial judge. It is
contained in the bill of exceptions which constitutes a part of the record on appeal, and relates
directly to the matter under consideration. It is not an expression of opinion as to what the
minute order means, or as to how it should be construed. That order calls for no construction,
as it is clear, certain and complete in all particulars.
If, in this case, the order actually made in open court on December 9 had included a
reservation of the right to make additional allowances in the future for services performed
in 1941,
62 Nev. 142, 172 (1944) Mortimer v. Pacific States Savings & Loan Co.
to make additional allowances in the future for services performed in 1941, but such
reservation had been omitted in the formal order of December 10, there would have been, as
in the Silva case, a clerical error which could and should have been corrected by the trial
court. But there was no such reservation in the order actually made on December 9; on the
contrary, the reservation relates exclusively to allowances for services to be performed in the
future.
Suppose in the present case the court on December 9, 1941, had made an order from the
bench allowing appellant $3,000 for his services performed in that year, expressly reserving
the right, however, to make additional allowances in the future for such 1941 services.
Suppose further that the minute order of that date clearly and correctly recorded said order
actually made in open court. If the court on the following day had prepared, signed and filed a
formal written order, per minute order of December 9, 1941, allowing $3,000 to appellant
in full for his 1941 services and reserving the right to make additional allowances in the
future, but only for services to be performed in the future, the latter reservation, under
previous decisions of this court, would not control or supersede the one actually made in open
court on the preceding day. To hold otherwise would simply mean that after a clear and
certain order had been made in open court and correctly recorded in the court minutes, such
order could later be substantially changed by the trial judge, notwithstanding district court
rule XLV, without a hearing and without notice to anybody, by the mere signing and filing of
a formal written order. An order made in open court is of as much force and effect as one
made by written memorandum. Carter v. J. W. Silver Trucking Co., 4 Cal. 2d 198, 47 P. 2d
733. And while in some states orders must be signed by the judge, such is not the law in
Nevada. What was actually decided on December 9 is the important thing, and the order made
from the bench on that day could not later be substantially changed,
62 Nev. 142, 173 (1944) Mortimer v. Pacific States Savings & Loan Co.
that day could not later be substantially changed, without notice or hearing, by the mere
signing of a written decision howsoever formal. If the written order of December 10 should
be construed to mean that the trial court reserved the right to make additional allowances in
the future for services performed in 1941, such reservation would constitute a substantial
change in the order actually made the preceding daya change which the trial court would be
without power or jurisdiction to make. Rico Consol. Min. Co. v. Rico Exploration Co., 23
Ariz. 389, 204 P. 138.
A written order will not always prevail over a minute order. Where there is conflicting
evidence as to what was actually ordered there is some reason for saying that a written order
will prevail over a minute order, provided the former is itself clear in its language and free
from ambiguity, and provided further that there be no other evidence of more cogent force
than the written order. After all, the written order as well as the minute order are simply
evidence as to what was actually decided. Where all the evidence shows clearly that the
minute order correctly records what was actually ordered, the written order will not prevail. It
is not at all necessary that there be formal orders in cases of this kind. Very often formal
orders are not filed, and while it is commendable practice to follow the minute entry with a
formal order signed by the judge, such practice is not required by any statute or court rule in
this state. In a number of western states the judgment of the court is not, as in Nevada, the
pronouncement from the bench. In Washington, for example, the supreme court says that the
formal judgment as entered is the judgment of the court irrespective of memorandum
opinions or minute entries. Landry v. Seattle, P. A. & W. R. Co., 100 Wash. 453, 171 P.
231, 232. Two of the cases cited in support of this proposition are Jensen v. Bell and Gould v.
Austin, relied on by appellant in this case. Thus the Washington cases are not only
distinguishable for the reason stated in the Nevada case of Silva v. Second Judicial
District Court,
62 Nev. 142, 174 (1944) Mortimer v. Pacific States Savings & Loan Co.
are not only distinguishable for the reason stated in the Nevada case of Silva v. Second
Judicial District Court, but also because of the rule announced in Landry v. Seattle, P. A. &
W. R. Co., supra. It is noteworthy also that in the case of McFadden v. McFadden, 22 Ariz.
246, 196 P. 452, the supreme court of Arizona, in laying down the rule that where there is
conflict between the entry made by the clerk in the minutes and the solemn judgment of the
court, the terms of the latter should be given force and effect, rather than of the former, cites
only Washington cases which, for reasons stated herein, are not applicable in this jurisdiction.
In speaking of the minute entry of December 9 and the formal order of December 10, it is
not to be understood that the court made two final orders relating to compensation for 1941
services. There could not be two such final orders any more than there can be two final
judgments in the same action. Nevada First Nat. Bank v. Lamb, 51 Nev. 162, 271 P. 691;
Low v. Crown Point Min. Co., 2 Nev. 75. The actual adjudication now under consideration
became final when the order was announced in court on December 9. If the written order of
December 10 does not, to use the language of the Silva case, correspond with the
pronouncement from the bench on December 9, then insofar as it substantially changes the
latter, it is void.
In Colorado the rule has been enunciated that the formal record entry of a judgment is
binding, until corrected, though different from the judgment actually pronounced or
inconsistent with a memorandum opinion or minute entry. Forker v. Hopkins, 64 Colo. 325,
171 P. 361; Bates v. Hall, 44 Colo. 360, 98 P. 3. These cases were both decided under a
special statute, the Colorado irrigation act, which provides that the district court shall cause
to be entered a decree determining and establishing the several priorities of right, by
appropriation of water. * * *. 3 Colorado Statutes, Annotated (1911), sec. 3284; 4 Kinney on
Irrigation and Water Rights, Second Ed., secs. 1791, 1792. To apply such a rule in the case
at bar
62 Nev. 142, 175 (1944) Mortimer v. Pacific States Savings & Loan Co.
such a rule in the case at bar would be giving the written order of December 10 a status which
it does not have under the decisions of this court, or under any statute or court rule in this
state. Such a holding would in effect make the written order, rather than the pronouncement
from the bench, the final order of the court. Suppose, in this case, the hearing on December 9
had been reported by the official reporter of the district court, and his or her notes showed
that the order actually rendered by the court on December 9 was in all respects correctly
recorded in the minute entry of that date; if the rule in the Colorado irrigation cases were to
be applied in such a situation, the order of December 10 would be conclusive evidence of
what was actually decided by the court on the previous day, notwithstanding the other
evidence showed conclusively, as a matter of fact, that the actual order was as recorded in the
minute entry.
The formal order of December 10 was not corrected in the lower court, and because of this
it is said that this court is without power to correct it. The question before us, however, is not
whether this court can correct the order of December 10 or direct the lower court to do so; the
real question is, what order was actually made on December 9? In order to determine the
latter question this court, in my opinion, has the power to construe the written order,
regardless of whether it can correct that order or direct the trial court to do so. More than
one-third of the reply brief is devoted to the proposition that the written order should prevail
over the minute order; yet appellant, whose ability is unquestioned, does not advance the
argument that the written order must be accepted as final because neither plaintiff nor the
present receiver asked the lower court to correct it. And why was it incumbent on either of
them to do so? Plaintiff naturally would not ask to have it corrected, because he maintains
that it means the same as the minute order; and the present receiver relies upon the rule laid
down in a long line of Nevada cases, that the judgment as pronounced from the bench is
the final judgment,
62 Nev. 142, 176 (1944) Mortimer v. Pacific States Savings & Loan Co.
that the judgment as pronounced from the bench is the final judgment, not the formal
judgment as entered, as held in Washington and some other states. It may be noted here that
although appellant was in court when the order of December 9 was made, he has never made
any attempt to have the minute order of that date corrected. It would have saved considerable
trouble if these matters had been straightened out in the trial court, but the fact that they were
not should not prevent this court from placing a proper construction on the written order of
December 10; and in any event there is no more, if as much, reason why plaintiff or the
present receiver should have asked for a correction of the written order than appellant for a
correction of the minute order. The order actually made in open court and correctly recorded
in the minutes was the final order in this matter, not the written order of December 10. Again,
if appellant's construction of the written order is correct, then, as has been pointed out, that
portion of said order which makes a substantial change in the order of December 9 is void,
and this court should not therefore be bound by it whether corrected or not.
Much of what has been said is based upon the assumption, made for purposes of
discussion only, that the order of December 10 is free from ambiguity and that appellant is
correct in his construction of that order. It is clear that if the written order is ambiguous,
neither the rule that where there is a conflict between a minute order and a written order the
latter will prevail, nor the other rule that if a written order is not corrected in the lower court it
will be binding on this court, is applicable here.
The writer does not agree with appellant's contention that the formal order of December
10, 1941, should be construed as reserving in the trial court the right to make additional
allowances in the future for services performed in 1941. The more natural meaning of this
order is that the reservation relates to allowances to be made for services to be performed in
the future.
62 Nev. 142, 177 (1944) Mortimer v. Pacific States Savings & Loan Co.
made for services to be performed in the future. Conceding, however, that said order may also
bear the construction placed upon it by appellant, we then have a manifestly ambiguous order,
though it could very easily have been worded so as to be plain and clear in its meaning, one
way or the other. On the one hand, by reason of the words for the calendar year 1941 and
the expression when the proper occasion should arise, the reservation in the order can
reasonably and naturally be read as relating only to allowances for services to be performed in
the future. On the other hand, by reason of the words subject to the right reserved by said
Court to consider the matter of any additional allowance, it is possible to construe said
reservation as relating to further allowances for services performed in 1941.
Where an order or judgment is ambiguous in its terms, the whole record may be examined
to remove the doubt. This is the rule in Nevada, as well as in most other jurisdictions.
Aseltine v. Second Judicial District Court, 57 Nev. 269, 273, 62 P.2d 701; Roraback v.
Roraback, 38 Cal. App. 2d 592, 101 P.2d 772; Vasiljevich v. Radanovich, 138 Cal. App. 97,
31 P.2d 802; Watson v. Lawson, 166 Cal. 235, 135 P. 961; Atlantic, Gulf & Pac. Co. v.
Wright, 11 Cal. App. 179, 104 P. 460; 14 Cal. Jur. 959; George v. Jenks, 197 Wash. 551, 85
P.2d 1083; Evans v. City of American Falls, 52 Idaho 7, 11 P.2d 363; Quigley v. McIntosh,
110 Mont. 495, 103 P.2d 1067; Hale v. Independent Powder Co., 46 Okl. 135, 148 P. 715;
Reaves v. Turner, 20 Oky. 492, 94 P. 543; In re Kehl's Estate, 215 Wis. 353, 254 N. W. 639;
Upton v. Merriman, 122 Minn. 158, 142 N. W. 150; Whaley v. Matthews, 136 Neb. 767, 287
N. W. 205; Sutton v. Schnack, 224 Iowa 251, 275 N. W. 870; State ex rel. Booth v. Beck
Jewelry Enterprises, 220 Ind. 276, 41 N. E. 2d 622, 141 A. L. R. 876; Hofer v. Hofer, Ohio
App., 42 N. E. 2d 165; Freeman on Judgments, Fifth Ed., secs. 76, 77; Black on Judgments,
Second Ed., sec.
62 Nev. 142, 178 (1944) Mortimer v. Pacific States Savings & Loan Co.
123; 15 Standard Encyc. of Proc. 93, n. 27; 3 Bancroft's Code Pr. and Rem. 2273, 2274, n.
12.
It may be said that the words subject to the right hereby reserved imply that the
reservation relates to further allowances for the year 1941, because why should the court do a
vain thing by reserving a right which it unquestionably has without the making of such a
reservation? But it will be observed that the same type of expression was used in the minute
order, which beyond all doubt relates to allowances for future services only. It is evident that
the trial court reserved the right to do things which it had the power to do in any event, as
well as things which it might not have power to do without the making of such reservations.
If, after the word allowance, the words for services to be performed in the future or the
words for said year or for said year 1941 had been inserted, the formal order would have
been plain and unambiguous, notwithstanding its meaning would have been entirely different
depending on which words were inserted. In either event there would have been no room for
construction.
In the State of Washington where, under some circumstances, a minute order is superseded
by a later written order (State v. Bell, supra), it is equally well settled that where a judgment
is ambiguous, resort may be had to the entire record to remove the ambiguity (George v.
Jenks, supra). What we have in the case at bar is a minute order, entirely free from ambiguity
and correctly recording the order made in open court, followed by an ambiguous formal order
which, if no reference be made to other parts of the record, can be interpreted as having
precisely the same meaning as the minute order, but may also admit of other and different
interpretations. In such a situation I am satisfied that the written order should be construed to
harmonize with the plain and certain meaning of the minute order. As indicated in the Silva
case, it should correspond with the pronouncement from the bench.
62 Nev. 142, 179 (1944) Mortimer v. Pacific States Savings & Loan Co.
Where there is ambiguity, as in the formal order of December 10, the court should
endeavor to ascertain the real intention of the author of the order. As said in Aseltine v.
Second Judicial District Court, supra [57 Nev. 269, 62 P.2d 702], In other words, was it the
intention that the judgment and decree might be modified in accordance with the provision
relative to a reduction of the allowance to the plaintiff? That the court's real intention
should be inquired into is recognized in State v. Bell, heretofore mentioned in this opinion.
And in Cundy v. Weber, S. D., 300 N. W. 17, 21, the Supreme Court of South Dakota said:
The function of the process of construction is to determine the intention and meaning of the
author of a judgment or other instrument. In the present case the real intention of the written
order cannot possibly be determined without reference to other parts of the record; but when
such reference is made, the intention becomes clear.
It is true that the question of ambiguity in the order of December 10 has not been raised by
counsel on this appeal, unless by implication when counsel for plaintiff stated that the minute
order is unequivocal. That the question was not directly raised is quite understandable.
Plaintiff naturally would not raise it because, as we have seen, it contends that the order
means the same as the minute order. That the present receiver has not raised the question may
be accounted for by the fact that in support of his contention that the order allowing
compensation for 1941 services was a final order, he relies upon the Nevada decisions
hereinbefore mentioned.
The contention that the order of December 1941 was a final one is supported by a further
consideration appearing in the record. In support of the application made in the fall of 1941
for an order allowing attorney's fees, appellant was permitted to and did make a very full
showing. His direct testimony alone fills twenty-seven pages of the record. He does not
contend that he overlooked anything in giving that testimony, which was first carefully
reduced to writing before being read in court.
62 Nev. 142, 180 (1944) Mortimer v. Pacific States Savings & Loan Co.
first carefully reduced to writing before being read in court. The trial court thus had before it
all the evidence that appellant desired to offer. On that showing the court allowed $3,000 for
appellant's services for the calendar year of 1941. Under these circumstances what occasion
would be likely to arise in the future calling for the making of any additional allowances for
services performed in 1941? The implication seems clear, from the use of the words when
the proper occasion should arise, that possible litigation or other matters requiring
extraordinary services was intended by the expression proper occasion.
At the hearing on January 29, 1943, the trial court allowed testimony relating to appellant's
services before, as well as during the year 1942. Does this show that the court placed the
same construction on the signed order of December 10 as that contended for by appellant? I
think not, for at least two reasons. First, testimony covering 1940 was permitted, as well as
1941 and 1942; yet no one contends that the trial court or any one else ever considered the
order for 1940 services other than final, or that the allowance for those services was not in
full. Second, one of the grounds of appellant's motion to vacate was based on the proviso in
the written order of December 10, 1941. It was the court's duty to consider this as well as the
other grounds upon which the motion was based. It was natural, therefore, to permit
testimony covering the 1941 services because, if appellant could convince the court that the
1941 order was not final, then the court would want to consider the testimony relating to the
services performed during that year as well as in 1942.
It is not necessary, of course, that orders such as that under consideration be made orally in
court. Such orders, as well as judgments, may be made or rendered in writing, signed by the
judge and filed with the clerk. Had the order fixing the 1941 allowance been made in this
way, it would have been of the same force and effect as one pronounced from the bench and
correctly recorded in the minutes;
62 Nev. 142, 181 (1944) Mortimer v. Pacific States Savings & Loan Co.
in the minutes; but the court, without notice or hearing, could not have legally made any
substantial change in such formal order, either by an amended written order or by oral
pronouncement in open court.
For the reasons given it is my opinion that the formal order of December 10, 1941, as well
as the order of December 5, 1940, was a final order, and that the allowance made therein was
in full for appellant's services performed during the calendar year 1941. No appeal having
been taken by him from either of said orders within the time prescribed by law, he is, in my
opinion, concluded by them. 53 C. J. 379, n. 39.
There remains for consideration the question whether the trial court abused its discretion
in not allowing appellant more than $2,500 for his services performed during the first ten
months of 1942. The order making this allowance was made by the court of its own motion
on December 11, 1942. The reasons given by the judge for making the order at that time
without first having a hearing after due notice are sufficient, in my opinion, to show that the
court did not take such action through any intentional arbitrariness. Nevertheless I think the
order was erroneous at least, if not void. State v. Wildes, 37 Nev. 55, at page 69, 139 P. 505,
142 P. 627; Heater v. Boston Montana Corporation, 75 Mont. 532, 244 P. 501; In re Magner,
173 Iowa 299, 155 N. W. 317; Merchants' Bank v. Crysler, 8 Cir., 67 F. 388; Ritter v.
Arizona Cattle Co., 34 Ariz. 278, 271 P. 25; First Nat. Bank v. Stewart Fruit Co., D. C., 17 F.
2d 621; Colkett v. Hammond, 101 Wash. 416, 172 P. 548; Ruggles v. Patton, 6 Cir., 143 F.
312; 1 Clark on Receivers, Second Ed., sec. 642(i); High on Receivers, Fourth Ed., p. 959, n.
75.
In his notice of motion to vacate the order of December 11, Appellant stated that he
desired to submit evidence as to the value of his services and as to a reasonable fee to be
fixed and allowed therefor. In the same document he gave notice that at the time of presenting
said motion to vacate he would also move the court
62 Nev. 142, 182 (1944) Mortimer v. Pacific States Savings & Loan Co.
court for an order fixing a day certain for the hearing of the matter of the determination of a
reasonable fee to movant for his services, as aforesaid. At the hearing on January 5, 1943,
appellant informed the court that if the motion to vacate should be granted, he would like to
have the hearing of his application for increased compensation fixed for January 29, 1943. At
said hearing on January 5, 1943, the court erroneously declined to set aside the order of
December 11, 1942, but at the same time said: However, as I say, Mr. Badt, if you feel that
you have been treated unfairly or unjustly in this matter, I am willing to give you full
opportunity to present any proof that you have that would justify an increase in the attorney
fee but I do not feel on the showing made at this time that this order should be vacated in
view of the fact that there are very respectable authorities who hold that the court is not
required to take any testimony. So it will be the order that the order will stand at this time
fixing the attorney fee, but it will be further ordered that a day will be set fixing a time when
Mr. Badt will be given an opportunity to present proof to show that the attorney fee is unjust
or unreasonable.
The court proceeded to set January 28, 1943, as the day for this hearing, and then, upon
appellant's application, changed the date to January 29, 1943. On January 8, 1943, the court
signed and filed a written order made pursuant to the minute order of January 5. Omitting the
preliminary recitals, the first two paragraphs of this order read: 1. That, pending the further
order of this court, the motion to vacate said order of December 11, 1942, so far as the same
pertains to the fixing of attorney fees, be and the same hereby is denied. 2. That the motion to
fix a day certain for the hearing of the determination of reasonable attorney fees in the
premises be and the same hereby is granted, and that Friday, the 29th day of January 1943 at
ten o'clock A. M. (following the hearing of the Receiver's next account, also to be set for said
date) is hereby fixed as the time and place at which the movent,
62 Nev. 142, 183 (1944) Mortimer v. Pacific States Savings & Loan Co.
the time and place at which the movent, Milton B. Badt, may present proof to show that the
attorney fee heretofore fixed and allowed was unjust or unreasonable, or that any additional
allowance should be made. Pursuant to the court's direction, appellant served notice of said
hearing on all parties concerned, and when the matter came on for hearing on January 29,
1943, appellant, addressing the court, said, May it please the Court, this was the time set for
the hearing of my own application for allowance of additional attorney fees. * * * At this
time, with the Court's permission, I shall testify from my typewritten pages if I may be
sworn. Appellant then proceeded to testify at length, and called three outstanding attorneys
as experts who also testified in his behalf. At the conclusion of the January 29 hearing the
court took appellant's motion under submission, and on February 27, 1943, after first stating
its reasons, ordered that the said order entered by this Court on December 11, 1942, will
stand as entered.
If appellant had appealed from the order refusing to set aside the order of December 11,
1942, and had declined to take advantage of the opportunity given him to be heard on January
29, 1943, I would agree that there should be a reversal and the case sent back so that the trial
court, after due notice and hearing, could fix a reasonable amount in compensation for the
services rendered by appellant in 1942. Such was the action taken by the Supreme Court of
Washington in Colkett v. Hammond, supra. But instead of following that course, appellant
accepted the opportunity given him by the court to make a full showing, and not only testified
at length himself but called three outstanding attorneys as experts who testified in his behalf.
And he has asked this court, not to send the case back so the lower court can make a valid
order in lieu of that of December 11, 1942, but to grant him, on this appeal, an increase in the
amount of his compensation. Under these circumstances, while it may be that the order of
December 11, 1942,
62 Nev. 142, 184 (1944) Mortimer v. Pacific States Savings & Loan Co.
1942, should not be regarded as having been validated by the subsequent proceedings, the
form of the order of February 27, 1943, should, in my opinion, be disregarded insofar as it
purports to provide that the order of December 11 stand. The hearing on January 29, 1943,
was had after due notice given to all parties concerned, and was referred to by appellant
himself as the hearing of my own application for allowance of additional attorney fees. The
order made on February 27, 1943, should therefore, I think, be regarded as a valid, final order,
fixing the amount of appellant's compensation for his services performed in 1942. As I view
the matter, appellant is entitled to have the court, on this appeal, determine whether the trial
court abused its discretion in not fixing a higher amount than $2,500 for those services.
____________
62 Nev. 184, 184 (1944) Peterson v. Wiesner
MIKE PETERSON, Appellant, v. CHARLES M.
WIESNER, Respondent.
No. 3398
March 4, 1944. 146 P.(2d) 789.
1. Pleading.
The failure to separately state several causes of action is not a ground of demurrer.
2. Pleading.
The failure to separately state several causes of action must be corrected by motion.
3. Malicious Prosecution.
The demand of a bond from a person causing attachment of automobile and trailer or release of
automobile and trailer on verified claim of owner was not a condition precedent to owner's right of action
for maliciously and without probable cause attaching plaintiff's automobile and trailer in an attempt to
compel payment of third person's indebtedness. Comp. Laws, sec. 8708.01.
4. Malicious Prostitution.
In action for maliciously and without probable cause attaching plaintiff's automobile in an attempt to
compel payment of third person's indebtedness, complaint showing that sheriff held possession of
automobile from June 6, 1942, until commencing of action on August 3, 1942, was good as against general
demurrer.
62 Nev. 184, 185 (1944) Peterson v. Wiesner
5. Trial.
In action for maliciously and without probable cause attaching plaintiff's automobile and trailer in an
attempt to compel payment of third person's indebtedness, where trial court rendered judgment for plaintiff,
trial court's failure to find the defendant had acted maliciously or without probable cause was tantamount to
a finding that defendant did not act maliciously or without probable cause.
6. Attachment.
Where owner of automobile and trailer attached was not a party to action in which attachment was issued,
owner was entitled to maintain action for wrongful deprivation of use of automobile and trailer without
proof of malice or want of probable cause.
7. Attachment.
In action for wrongful attachment, evidence showed that defendant caused plaintiff's automobile and
trailer to be attached in defendant's action against third persons.
8. Attachment.
That defendant thought that automobile wrongfully attached belonged to persons defendant was suing
would not relieve defendant of liability to true owner.
9. Husband and Wife.
A wife's interest in community property was not subject to attachment in action against wife on her
alleged guaranty.
10. Sheriffs and Constables.
A sheriff of one county cannot ordinarily levy an attachment in another county, but he may pursue
property removed from his county without his consent after attachment.
11. Attachment.
Where after wrongful attachment automobile and trailer were found by owner and driven to another
county, sheriff's repossession of automobile and trailer with knowledge of person causing wrongful
attachment was the natural and probable consequence of such person's wrongful acts and such person was
responsible for sheriff's repossession of such property.
12. Attachment.
That attachment proceedings were void did not relieve one instituting them from liability for wrongful
attachment.
13. Husband and Wife.
The husband has the right without joining the wife as a party plaintiff to prosecute an action for wrongful
dispossession of community property. Comp. Laws, sec. 3360.
14. Attachment.
Where attachment proceedings were void, owner did not waive wrongful attachment by driving attached
automobile and trailer away when he found them.
15. Attachment.
Where attachment of automobile and trailer wrongful and void and owner drove them away when he
found them, but sheriff retook them,
62 Nev. 184, 186 (1944) Peterson v. Wiesner
but sheriff retook them, and person causing attachment did not repudiate sheriff's retaking, such person was
liable therefor.
16. Attachment.
In action for wrongful attachment, evidence showed that attached automobile was held by virtue of the
attachment irrespective of whether it was also held under criminal proceeding against owner.
17. Appeal and Error.
Where trial court made no finding that would support an allowance of exemplary damages, only
plaintiff's right to compensatory damages was involved on defendant's appeal.
18. Attachment.
Where owner drove away automobile and trailer that had been wrongfully attached and sheriff not only
reseized them but swore to a complaint charging owner with grand larceny, the person wrongfully attaching
automobile and trailer was not liable for any damages growing out of the criminal proceedings.
19. Damages.
The amount of compensatory damages whether general or special must be proved.
20. Attachment.
In action for wrongful attachment, where it appeared that automobile attached was kept by sheriff from
June 6 to December 5, but there were no further facts from which the damages could be arrived at, only
nominal damages could be allowed.
21. Attachment.
In action for wrongful attachment, special damages for interference with plaintiff's going to Arizona
could not be allowed, where there was a complete failure of proof as to amount of damage sustained.
22. Attachment.
In action for wrongful attachment, where damages for lost time were claimed, plaintiff's testimony that he
had spent an awful lot of time and an awful lot of money running around trying to get straightened out did
not afford a sufficient basis to form any conclusion as to what plaintiff's lost time was worth.
23. Attachment.
Recovery may be had for expenses incident to wrongful attachment including attorney's fees, provided
they were the natural and proximate consequence of the wrong complained of, and were necessarily
incurred in good faith and in reasonable amount.
24. Attachment.
In action for wrongful attachment where sheriff filed complaint charging owner with grand larceny
because he had driven away attached automobile and trailer,
62 Nev. 184, 187 (1944) Peterson v. Wiesner
driven away attached automobile and trailer, no damages could be allowed for attorney's fees for services
performed in the criminal proceeding.
25. Attachment.
In action for wrongful attachment, where evidence failed to show how much of $500 fee was paid or was
to be paid for services in having the attachment released and how much for other services for which
defendant in wrongful attachment was not liable, no attorney's fees were recoverable.
26. Attachment.
Where owner of automobile and trailer wrongfully attached drove them away and sheriff filed a
complaint charging owner with grand larceny, no recovery could be had in action for wrongful attachment
on account of loss of reputation resulting from criminal proceedings, nor for any loss of reuputation
resulting from attachment proceedings, where there was no evidence upon which any estimate of the
damages could be made.
27. Attachment.
Where property of a third person has been wrongfully attached in an action against another, no damages
can be recovered for loss of business credit.
28. Attachment.
In action for wrongful attachment, where plaintiff testified that he believed his actual damages amounted
to $12,000, but was unable to give any reason why, evidence was insufficient to form basis for any finding
on amount of actual damages.
29. Attachment.
Plaintiff seeking a money judgment for wrongful attachment must prove the amount as well as the fact of
damage with such reasonable certainty as the available evidence permits.
30. Attachment.
In action for wrongful attachment, there must be substantial evidence of the amount of damage, otherwise
it can be arrived at only by conjecture which the law does not permit.
31. Attachment.
In action for wrongful attachment where plaintiff proved that his automobile and trailer had been
wrongfully seized but failed to prove amount of damages sustained, only nominal damages for loss of use
of property could be recovered as general damages, and nothing at all as special damages.
32. Appeal and Error.
In action for wrongful attachment, remarks by trial court for purpose of encouraging parties to settle their
involved difficulties out of court did not show that the excessive damages awarded were awarded under
influence of passion or prejudice.
62 Nev. 184, 188 (1944) Peterson v. Wiesner
Appeal from Fifth Judicial District Court, Mineral County; Clark J. Guild, Judge.
Action by Charles M. Wiesner against Frank Peterson for maliciously and without
probable cause attaching plaintiff's automobile in an attempt to compel payment of third
person's indebtedness. From a judgment for plaintiff for $750 and costs and disbursements,
and an order denying defendant's motion for a new trial, and an order overruling defendant's
demurrer to plaintiff's complaint, the defendant appeals. Judgment and order denying
motion for a new trial reversed, and order overruling defendant's demurrer to
plaintiff's complaint affirmed, and cause remanded for a new trial.
William S. Boyle, of Reno, for Appellant.
John R. Ross, of Carson City, for Respondent.
OPINION
By the Court, Taber, J.:
On the 5th day of June 1942 appellant Peterson commenced an action in the justice's court
of Hawthorne Township, Mineral County, against respondent's daughter, Mrs. Worthy, and
his wife. The complaint alleged that Mrs. Worthy had bought, but failed to pay for,
merchandise of the value of $25.59, and that Mrs. Wiesner, prior to the granting of any credit
to Mrs. Worthy, guaranteed to Mr. Peterson that she would be personally responsible for said
account, but had refused payment after the indebtedness had been incurred. Neither Mr.
Worthy nor Mr. Wiesner was made a party defendant.
Peterson caused a writ of attachment to be issued in said case, and caused the sheriff of
Mineral County to attach a certain automobile and trailer. Neither of the Worthys had any
interest in the car or trailer,
62 Nev. 184, 189 (1944) Peterson v. Wiesner
Worthys had any interest in the car or trailer, which were the community property of Mr. and
Mrs. Wiesnerthe title being in his name. Several hours after the levy, Wiesner drove the
property away from the driveway at the rear of the courthouse where Deputy Sheriff
Richardson had left it parked after levying the attachment. Shortly afterward Wiesner drove
the car and trailer to Tonopah, county seat of Nye County. On June 6 Sheriff Wilson swore to
a complaint at Hawthorne charging Wiesner with grand larceny. On that day he followed the
latter to Tonopah, and there repossessed the car and trailer. After arresting Wiesner at
Tonopah, Sheriff Wilson, on June 7, returned with him to Hawthorne, where bail was
furnished.
A few days later Peterson and his attorney, Mr. Evansen, were notified that Wiesner
claimed ownership of the car and trailer. Peterson directed Mr. Evansen to look into the title.
He did so and learned that the title was in the name of Wiesner. Commencing a short time
after the property was taken from Wiesner's possession, demands were made upon Peterson,
his attorney, and the sheriff for its release. Peterson and his attorney conferred many times,
but took no action looking to the release of the car, and it was not ordered released until the
5th day of December 1942. The justice court action was dismissed as to Mrs. Wiesner on
November 28, 1942. Possession of the trailer and its contents was restored to Wiesner July 5,
1942. Possession of the car was not restored to Wiesner until March 29, 1943. After the order
for the release of the attachment was made, the sheriff continued in possession of the car,
holding it as evidence in the criminal proceedings. On March 25, 1943, Sheriff Wilson swore
to another criminal complaint against Wiesner, charging him with having taken from the
sheriff's custody personal property which was under process of law.
On the third day of August 1942 Wiesner commenced an action for damages against
Peterson in the Fifth judicial district court, Mineral County.
62 Nev. 184, 190 (1944) Peterson v. Wiesner
judicial district court, Mineral County. The complaint alleges that Peterson, in procuring the
issuance of the attachment and directing the sheriff to levy upon the automobile and trailer,
acted maliciously and without probable cause in an attempt to compel Wiesner to pay an
indebtedness incurred by a third party. It is further alleged that it was the intention of
Peterson, in instituting said attachment proceedings, to injure Wiesner's character, reputation,
and standing in Mineral County. Paragraph VI of the complaint reads as follows:
That by reason of the actions and conduct on the part of the defendant, as herein alleged,
and by reason of the said attachment this plaintiff was damaged in the following particulars,
to-wit: (1) That plaintiff had departed from the town of Hawthorne, Mineral County, Nevada,
and was on his way to the State of Arizona, at which place he was to enter upon certain
employment, when the Sheriff of Mineral County, Nevada, attached and took possession of
plaintiff's automobile and trailer and contents. (2) That plaintiff was compelled to return to
Hawthorne, Mineral County, Nevada, where he now must remain until his automobile is
released to him by said sheriff; (3) That plaintiff lost the employment to which he was going
in the State of Arizona; (4) That he was unemployed in the town of Hawthorne for a period of
approximately thirty days; (5) That he was compelled to rent a house, purchase household
equipment and clothes for himself and family in the town of Hawthorne by reason of all of his
belongings being loaded on the trailer attached and taken by the sheriff; (6) That he has been
compelled to employ counsel to protect his legal rights and to advise him in the premises, and
that he has paid counsel one hundred and fifty dollars ($150.00) and has agreed to pay said
counsel the additional sum of three hundred fifty ($350.00) dollars; (7) That the sheriff of
Mineral County, as a part of and as an incident to said attachment, placed the plaintiff under
arrest at Tonopah, Nye County,
62 Nev. 184, 191 (1944) Peterson v. Wiesner
County, Nevada, and that by reason of said arrest which was unlawful and without authority,
plaintiff was caused much humiliation and suffering; (8) That plaintiff's reputation was
destroyed in the community of Mineral County and elsewhere; (9) That by reason of the acts
and conduct of the defendant as herein alleged plaintiff's credit rating has been destroyed.
The prayer of the complaint asks judgment for $12,000 actual damages and $5,000
exemplary damages.
Peterson demurred to Wiesner's complaint upon two grounds, first, that several causes of
action are set forth in the said complaint, but that the said causes of action are not separately
stated * * *; second, that the facts alleged in said complaint are insufficient to constitute a
cause of action against this defendant. The demurrer was overruled and time given to
answer.
Peterson filed his answer September 14, 1942. It admits that he caused the writ to issue
and caused the sheriff to levy it upon the property in question, but denies that said property
was held in Tonopah by virtue of the attachment, and denies further that the sheriff of
Mineral County levied said attachment at Tonopah. The answer also denies most of the other
material allegations of the complaint.
The case was tried before the court without a jury on March 29, 1943. On August 10th
following, judgment was entered that the plaintiff have and recover from the defendant in
this action, the sum of Seven Hundred Fifty Dollars ($750.00) damages and his costs and
disbursements in this suit incurred. The present appeal is from that judgment, from an order
denying Peterson's motion for a new trial, and from the order overruling his demurrer to the
complaint.
1, 2. We shall consider first whether the lower court erred in overruling the demurrer to the
complaint. With reference to the alleged failure to state separately several causes of action, it
is sufficient to say that this is not a ground of demurrer; such a fault, where it exists, should
be corrected by motion.
62 Nev. 184, 192 (1944) Peterson v. Wiesner
should be corrected by motion. Gardner v. Gardner, 23 Nev. 207, 45 P. 139.
3. In support of his contention that the complaint does not state facts sufficient to
constitute a cause of action against him, appellant first points out that it fails to allege the
demand of a bond from Peterson or the release of the car on a verified claim of Wiesner, as
provided in chap. 76, Stats. of Nevada, 1933, pp. 88, 89, N. C. L. Supp. 1931-1941, sec.
8708.01. It is the court's opinion that compliance with this statute was not a condition
precedent to the owner's right of action. Montgomery v. Kirksey, 27 Ariz. 356, 233 P. 588;
Bradley v. Miller, 100 Iowa 169, 69 N. W. 426; Annotation 85 A. L. R. p. 672 (b).
4. Appellant also contends that there are other reasons why the complaint fails to state
facts sufficient to constitute a cause of action. He claims that the alleged items of damages are
special, but are not specially pleaded. And he argues further that in alleging damages plaintiff
(respondent) pleaded no facts, but only conclusions. A reading of paragraph VI of the
complaint discloses that at least some of the alleged items of special damages are specially
pleaded, and that in alleging them facts, not mere conclusions, are stated. There is a conflict
of authority as to whether the amount claimed for each item of special damages must be
specifically averred. 15 Am. Jur. 751, n. 16; 25 C. J. S., Damages, sec. 131, p. 756, note 38.
However, item (6) of said paragraph VI does specifically allege the amount claimed for
counsel fees. It may also be observed that, besides the items of special damages, there is one
averment sufficient to support a claim for general damages, namely, the allegation that the
sheriff had held possession of the automobile ever since June 6, 1942. Hale on damages (2d
ed.), p. 336, n. 25. As against the general demurrer, therefore, the court is of the opinion that
the complaint is good. Whether its allegations have been sufficiently proved to justify the trial
court's decision will be taken up later.
62 Nev. 184, 193 (1944) Peterson v. Wiesner
5, 6. Appellant contends not only that the amount of damages awarded by the trial court is
not supported by the evidence, but that respondent was not entitled to recover at all. One
reason advanced for this position is that the evidence fails to show that Peterson acted
maliciously or without probable cause. There is no finding by said court that appellant did so
act; in effect this constitutes a finding that appellant did not act maliciously or without
probable cause. Burlington T. Co. v. Wilson, 61 Nev. 22, 24, 110 P.2d 211, 114 P.2d 1094. If
Wiesner's right to recover depended upon his alleging and proving malice and want of
probable cause, he would not be entitled to recover. But Wiesner was not a defendant in the
justice court action. He was a third party, claiming that he had been deprived of the
possession and use of his property. It was not necessary, therefore, to entitle him to recover
actual damages, that he plead or prove malice or want of probable cause. 7 C. J. S.,
Attachment, sec. 402, p. 599, note 57; 6 C. J. 418, n. 35; 4 Cyc. 766, n. 61. If the evidence
justified it, he was entitled to recover actual damages for wrongful seizure and dispossession.
7 C. J. S., Attachment, sec. 533, p. 667, note 7; 6 C. J. 502, n. 43.
7-9. Appellant further contends that he should not have been held liable for any damages
to Wiesner because he expressly instructed Mr. Evansen, who was his attorney at the time,
not to make Wiesner a party to the justice court action nor cause any of his property to be
attached. But appellant himself testified that he authorized Mr. Evansen to instruct the sheriff
to attach anything belonging to the Worthys or to Mrs. Wiesner. Appellant thought the car the
trailer belonged to the Worthys. His attorney knew nothing about either the Worthys or the
Wiesners. He relied upon what appellant told him regarding the ownership of the property.
The testimony leaves no doubt that it was appellant who caused the car and trailer to be
attached, and his answer, as we have seen, admits that he caused the writ of attachment to
issue and to be levied on said property.
62 Nev. 184, 194 (1944) Peterson v. Wiesner
attachment to issue and to be levied on said property. If appellant thought the property
belonged to the Worthys, that would not relieve him of liability for causing it to be attached.
It seems to have been the opinion of appellant's attorney that if the car and trailer belong to
the Wiesners, Mrs. Wiesner's interest could be attached, but the law is otherwise. Svetinich v.
Sheehan, 124 Cal. 216, 56 P. 1028, 71 Am. St. Rep. 50; 17 R. C. L. 169, n. 5; 31 C. J. 115,
nn. 44, 49.
10, 11. The pleadings and evidence clearly show that appellant was responsible for the
issuance of the attachment writ and its levy on the car and trailer; but counsel maintains that
he should not be held responsible for the action of Sheriff Wilson in taking the property into
his possession at Tonopah. It is pointed out that the sheriff of Mineral County has no
authority to levy any attachment at Tonopah, which is in another county; also that the proviso
in sec. 9298, N. C. L. 1929, was not complied with. The writ was levied at Hawthorne, in
Mineral County, not at Tonopah. Sheriff Wilson testified that his purpose in going to
Tonopah and taking the property into his possession was to make good on the attachment
after Wiesner had driven the car and trailer away from the courthouse at Hawthorne. While a
sheriff of one county cannot ordinarily levy an attachment in another (Sadler v. Tatti, 17 Nev.
429, 30 P. 1082), he may pursue the property when removed from his county without his
consent after attachment. 1 Wade on Attachment, sec. 176, p. 321. Appellant knew about the
attachment proceedings from the first, and that the sheriff had repossessed the property at
Tonopah. Repeated demands were made by Wiesner upon Peterson, his attorney, and the
sheriff for the release of the attached property, and Peterson learned through his attorney
shortly after the first demand was made that the attached property belonged to the Wiesners,
not to the Worthys. But, though the trailer and its contents were released from the attachment
July 5, 1942, plaintiff took no action whatever toward releasing the car until December 5,
1942.
62 Nev. 184, 195 (1944) Peterson v. Wiesner
December 5, 1942. The court is satisfied that the repossession of the attached property by the
sheriff at Tonopah and his continued keeping of the same in his possession were the natural
and probable consequences of appellant's wrongful acts and omissions. 25 C. J. S., Damages,
sec. 25, p. 487, notes 64, 65, 66; Id. p. 488, notes 72, 73; 15 Am. Jur. 474, 475, nn. 9, 10; Id.,
477, n. 2. In repossessing the attached property at Tonopah, Sheriff Wilson was endeavoring
to perform his duty with respect to the attachment which Peterson had wrongfully caused to
be issued and levied in the justice court action at Hawthorne.
Appellant insists that the whole attachment proceeding was void, and there is much to be
said in support of this contention. In the first place, Wiesner was not made a party defendant
in the justice court action, though the statute makes the husband a necessary party in such
cases. Sec. 8546 N. C. L. 1929, as amended, Stats. of Nevada, 1937, chap 15, p. 29; N. C. L.
1931-1941 Supp., sec. 8546, vol. 2, p. 1177. Secondly, even if the guaranty alleged to have
been made by Mrs. Wiesner was not within the statute of frauds, her community interest in
the car and trailer could not lawfully be attached in said action. Svetinich v. Sheehan, supra.
Again, no return on the writ of attachment was ever made. When Deputy Sheriff Richardson
levied the attachment at Hawthorne June 5, 1942, he drove the car and trailer to the
courthouse, and after entering that building informed Sheriff Wilson that he had just attached
said property, at the same time requesting him to keep an eye on it, as he had some work to
attend to over in town. While the sheriff was engaged in the performance of other official
duties, the car and trailer were driven away by Wiesner. As the car and trailer were left parked
at the courthouse so that anyone could drive them away, appellant maintains that they were
not kept in the custody of the attaching officers as required by law. Green v. Hooper, 41 Nev.
12, 167 P. 23. We have already seen that the property could not lawfully be attached in Nye
County by the sheriff of Mineral County,
62 Nev. 184, 196 (1944) Peterson v. Wiesner
could not lawfully be attached in Nye County by the sheriff of Mineral County, and that the
justice court action was dismissed as to Mrs. Wiesner on November 28, 1942.
12, 13. Granting, however, that the attachment proceedings were void, this does not avail
appellant. Though void, they were in fact instituted by appellant who, through them, caused
the Wiesners to be dispossessed of their property. Wiesner's right of action is based upon
Peterson's unlawful and wrongful conduct in causing the writ of attachment to be levied upon
the property of the Wiesners, and thereafter ratifying the sheriff's act in retaining it in his
possession. Frick-Reid Supply Co. v. Hunter, 47 Okl. 151, 148 P. 83; Western Bond &
Mortgage Co. v. Chester, 145 Wash. 81, 259 P. 13; Annotation, 91 A. L. R. 922-936; 5 Am.
Jur. 196, n. 18; 7 C. J. S., Attachment, sec. 393, p. 594, note 96; Id., sec. 396, p. 596, note 22;
3 Bancroft's Code Pr. & Rem. p. 3278, n. 12. That the attachment proceedings were void in
nowise lessens the responsibility of Peterson for causing the Wiesners to be deprived of the
use of their community property. The husband has the entire management and control of such
property, sec. 3360 N. C. L. 1929, and also has the right, without joining the wife as a party
plaintiff, to prosecute an action for being wrongfully dispossessed of it.
14, 15. Appellant contends that Wiesner is estopped from claiming that his property was
attached, for the reason that he drove it away from the courthouse following the levy. By
taking the car, says counsel, Wiesner admitted there was no attachment and levy and he
waived his right to a suit for damages against Peterson. Wiesner testified that when he drove
the car and trailer away from the courthouse he did not know they had been attached.
Regardless of this, however, appellant maintains that the attachment proceedings were void,
and that Wiesner was within his rights in driving the car and trailer away. If this contention is
sound, then certainly he did not waive his right of action for the unlawful and wrongful
seizure and dispossession.
62 Nev. 184, 197 (1944) Peterson v. Wiesner
action for the unlawful and wrongful seizure and dispossession. If the attachment proceedings
were void, it is clear that the seizure and dispossession were unlawful and wrongful. Wiesner
could not be estopped from asserting his right to hold Peterson responsible simply because
the former drove the property away from the courthousean act which appellant admits he
had the right to do. The injury to Wiesner's rights resulted from the seizure of his property
and its retention by the sheriff. If the property had not been driven away by Wiesner, it would
have remained in the sheriff's possession at Hawthorne. Whether Wiesner was deprived of the
possession and use of the property at Hawthorne or Tonopah, or both, the invasion of his
rights and the extent of the damage were the same. The seizure and dispossession were
brought about in the first place by appellant. They were the natural and probable
consequences of his conduct, and in addition to causing the wrongful seizure and
dispossession, appellant also ratified the sheriff's acts by not making known his
disapprobation after receiving knowledge that the property belong to the Wiesners. As the
attachment proceedings were void, it is clear that the seizure and dispossession were without
authority of law. As they were the natural and probable consequences of Peterson's conduct,
and in view of the further fact that he ratified the wrongful seizure and dispossession, he must
be held responsible.
16. After the attachment was ordered released on December 5, 1942, the sheriff continued
to hold possession of the car as evidence in the criminal proceeding. Appellant claims that
from the time Wiesner was arrested at Tonopah the property was held in the sheriff's
possession under the criminal proceeding alone, and not at all by virtue of the attachment. It
is perfectly clear, however, not only from the testimony of the sheriff and of Mr. Evansen, but
from Peterson's own testimony, that until December 5, 1942, the car was held by virtue of the
attachment, regardless of whether it was also held under the criminal proceeding.
62 Nev. 184, 198 (1944) Peterson v. Wiesner
whether it was also held under the criminal proceeding.
As a further reason why Wiesner should not recover at all in this action, appellant points to
the former's failure to comply with the provisions of chap. 76, Stats. of Nevada 1933, pp. 88,
89, N. C. L. Supp. 1931-1941, sec. 8708.01. But as we have already seen, compliance with
this statutory provision is not a condition precedent to a third party owner's right of action in a
case of this kind.
17, 18. There remains for consideration the question whether the decision of the trial court
awarding Wiesner $750 damages is supported by the evidence. In this connection two
observations may be made here. First, we are concerned only with compensatory damages, as
the trial court made no findings which would support an allowance of exemplary damages.
Second, the trial court held, and we think correctly, that appellant should not be held liable
for any damages growing out of criminal proceedings against Wiesner. The latter's arrest was
not the natural and probable consequence of Peterson's conduct.
Following is a summary of the testimony relating to the various items of damage listed in
paragraph VI of Wiesner's complaint:
Item (1). Wiesner testified that the occasion of his being in Tonopah was that he had quit
his job at Hawthorne and was leaving there to go to Arizona; that he had with him in the car
and trailer his household belongings, furniture, and equipment; that after returning to
Hawthorne he had to drop his plans to go to Arizona because his car was attached and he was
held on a criminal charge. Asked whether he had employment in Arizona he replied, It was
equivalent to that.
Q. You were going to a job? A. Yes.
On Cross-examination: Q. You stated that you had a job in Arizona. What was the nature
of the job? A. I said the equivalent.
Wiesner further testified that he was going to Arizona to benefit his health; that he was
sick; that he was detained at Hawthorne because of the warrant of arrest and the
attachment;
62 Nev. 184, 199 (1944) Peterson v. Wiesner
detained at Hawthorne because of the warrant of arrest and the attachment; that his illness,
which had been going on for some years, had become worse in the last few months; that it
was heart trouble; respiratory troubledust and alkali. Peterson testified that in conversation
with Mrs. Worthy relating to the contemplated trip of her husband, herself, and the Wiesners
to Arizona she said, We don't want to get frozen on the job here in Nevada. We want to go
to Arizona to live.
Item (2). Wiesner testified that he had been in Hawthorne continuously since being
brought back there from Tonopah; that he thought it was necessary for him to stay there
because of the attachment.
Q. As a matter of fact you stayed here (at Hawthorne) because the sheriff had arrested
you, wasn't that it, and put you under bond? A. I don't know.
Wiesner further testified that he thought he was detained at Hawthorne as the result of the
warrant of arrest and the attachment, but that he could not differentiate and say which was the
more important to him and which detained himthe arrest or the attachment; that he had
saved up some money before leaving for Arizona, but after being brought back to Hawthorne
felt that he had to stay and see the case through.
Item (3). He testified that because of being returned to Hawthorne he lost the employment
to which he was going in Arizona; that he had the equivalent of a job in Arizona.
Item (4). He testified that since returning to Hawthorne he had been reemployed, working
at his usual trade of carpentry; that he had been unemployed there approximately two or three
weeks; that he could have acquired a job at Hawthorne right away, but had to arrange for
counsel and to defend himself; that he made many trips (to Carson City) to see counsel.
Q. You meant relative to the criminal case? A. I meant relative to all the cases.
He testified that he had lost much time since going back to work;
62 Nev. 184, 200 (1944) Peterson v. Wiesner
back to work; that he could not estimate how much time was lost in connection with the
criminal case and how much on the attachment; that with respect to the time he lost in
employment since he was brought back to Hawthorne, he could not say how many dollars
but I have spent an awful lot of time and an awful lot of money. * * * I guess I have lost
twenty-five per cent of the working days. * * *
Q. Was it through sickness or through this case? A. Mostly running around trying to get
straightened out on this matter.
Item (5). He testified that by reason of his household goods being attached it became
necessary for him to replace some of them by purchasing others.
Item (6). He testified that by reason of the attachment and his efforts to have the same
released it was necessary for him to employ an attorney; that he employed Mr. Ross; that the
value of the attorney's services rendered in connection with these matters was $500, of which
he had paid $150, leaving him indebted to Mr. Ross in the sum of $350.
Q. Not in this instant case but for services performed in relation to having these
attachments released? A. That's right.
On cross-examination he testified that he made many trips to arrange for counsel and to
defend himself.
Q. You meant relative to the criminal case? A. I meant relative to all the cases. * * *
Q. You promised to pay Mr. Ross the $500.00, was that it, on the matter of the criminal
cases and the attachment? A. I don't know how he enters it.
Q. He was representing you in all criminal and civil matters? A. I believe so.
Q. Do you know how many there were? A. I don't know.
Item (7). It is not necessary to summarize the testimony relating to this item, which
concerns the criminal proceedings only.
62 Nev. 184, 201 (1944) Peterson v. Wiesner
Items (8) and (9). Wiesner testified that his reputation and credit in the community were
damaged badly, and that the damage done to them was further enhanced by his repeated
arrests on the charges arising out of this case; that he had been married twenty years, had
never been convicted of a felony and had never been in any trouble; that he presumed his
credit was ruined in the manner that it is always the case that way. * * * I don't feel like
asking for the credit I previously did.
Q. You don't know. It is just an assumption on your part. Is that not so? A. I am unable to
answer that question.
Q. Then you are likewise unable to compute this damage that you have lost; that you have
suffered? A. I don't think damage of that kind can be figured in dollars and cents.
With reference to the value of the car, Wiesner testified that he valued it highly; that he
originally bought it at a cost of $35 and spent, he would say, somewhere in the neighborhood
of $200 repairing it; that he had acquired another automobile approximately four or five
months after the attachment.
As to the amount of actual damages claimed, he testified:
Q. By reason of your having been arrested and returned to Mineral County, by virtue of
your being forced to remain in Mineral County pending all of these matters and these matters
now pending, all arising out of the attachment; the employment that you could not take in
Arizona; the household equipment that was necessary for you to purchase by reason of your
belongings being attached; the money that you have become indebted to myself as your
counsel and the embarrassments and humiliation that you have alleged; loss of reputation,
you have alleged to be twelve thousand dollars. Is that correct? A. I believe that is right.
Asked to explain how he was damaged in the sum of $12,000,
62 Nev. 184, 202 (1944) Peterson v. Wiesner
of $12,000, or any sum at all, he testified that he was a layman in figuring this, and did not
know definitely. In this connection he further testified that he felt he had been damaged in the
amount of $17,000 (including $5,000 claimed for exemplary damages); that his health alone
was far in excess of $17,000; that he had been examined by a doctor but did not have the
doctor's report.
In fixing the amount of damages, the trial court said:
The matter of fixing damages in this action is very hard to determine. First: Because it is
hard to say just when the liability commenced and ended as to depriving the plaintiff here of
the use of his automobile. Second: How much time he actually lost on account of the Justice
Court action and the attaching of his automobile in the Justice Court civil action. Third: How
much expense he was actually put to by reason of the attachment of his car the holding of the
same in the Justice Court civil action or in the criminal action. It is safe to assume that he has
been damaged.
There are many other items that may be taken into consideration as further loss of time,
annoyance, the purchase of furniture, the specific amounts or items of cost which are not in
the record.
Taking all of these matters into consideration and analyzing the plaintiff's testimony to
the fullest extent with reference to damages, I am thoroughly convinced that a reasonable
amount to be awarded to the plaintiff for damages in this action is the sum of Seven Hundred
Fifty Dollars ($750.00).
19. Such facts as were found by the trial court, and its conclusions of law, are incorporated
in the written decision. No separate formal findings of fact or conclusions of law appear in
the record. The damages awarded are in the aggregate, no specific amounts for any of the
various items being found by the court. Aside from the amounts claimed in the prayer of the
complaint ($12,000 actual and $5,000 exemplary damages), the only specific amounts
mentioned in the complaint
62 Nev. 184, 203 (1944) Peterson v. Wiesner
or in the transcript of testimony are in connection with attorney's fees, the purchase price of
the car and the amount of repairs which had been made on it. All damages alleged in the nine
items of paragraph VI of the complaint are special. Deprivation of the use of the car is the
only allegation of general damages. The amount of compensatory damages, whether general
or special, must be proved. Hale on Damages (2d ed.), pp. 333, 334.
20. Before taking up the nine items of alleged special damages, the court will consider the
one item of general damages. It clearly appears that the sheriff kept possession of the car,
under the attachment, from June 6 to December 5, 1942; but there are no further facts from
which the quantum of damages can be arrived at. We do not say there was no damage; but in
the absence of any substantial evidence showing its approximate amount only nominal
damages could be allowed.
21. We shall now consider the items of special damages. Item (1). Interference with
Wiesner's going to Arizona, for which Peterson was responsible, may well have damaged the
former; but here again there is a complete failure of proof as to the amount of the damage.
Respondent seems to have expected that the trial court would be able to fix the amount of this
and other items of special damage, notwithstanding he neither made an estimate of them
himself nor offered facts from which the could do so.
Wiesner testified that he was going to Arizona on account of his health, but his complaint
makes no mention of illness, and no application was made to amend it in this respect. The
only mention of his physical condition made in the case in chief was his testimony that when,
at Tonopah, Sheriff Wilson asked him to connect the trailer to the car, he declined. He asked
me why, and I told him that I didn't feel well enough. I was physically unable * * *. At no
time during the trial did Wiesner's counsel ask him any question relating to his health,
62 Nev. 184, 204 (1944) Peterson v. Wiesner
relating to his health, the only questioning on that subject being on cross-examination and one
question by the court. Nor does the trial court's decision make any finding regarding illness or
injury to health. Peterson claims that the Wiesners and Worthys were going to Arizona
because they did not want to be frozen on the job at Hawthorne. The record indicates that
the illness of Wiesner was brought into the case for the purpose of refuting this contention,
not with the idea of basing a claim for damages for injury to health.
With reference to items (2) and (3), we are again confronted with an entire failure of proof
regarding the amount of the alleged damage.
22. Item (4). Here Wiesner testified to a number of material facts relating to
unemployment and loss of time after returning to Hawthorne, but he gave no estimate of the
amount he had been damaged thereby; he did not even tell the court what, or approximately
what, wages he would have received had he been employed during the time he lost mostly
running around trying to get straightened out on this matter. His testimony that he had spent
an awful lot of time and an awful lot of money does not afford a sufficient basis to form
any conclusion as to what his lost time was worth. Panhandle & S. F. R. Co. v. Reed, Tex.
Civ. App., 273 S. W. 611.
Item (5). Here the failure of proof as to the amount of damages is so clear as not to require
any discussion.
23-25. Item (6). On direct examination Wiesner testified that the $500 was for his
attorney's services in having the attachment released. On cross-examination he said he made
many trips to arrange for counsel to defend him relative to all the cases. The trial court
made no finding regarding attorney's fees, nor did it mention the subject at all in its decision.
Weighing the testimony in the light of the allegations of the complaint relating to this item,
we think the statement made by Wiesner on cross-examination should be accepted. The court
is of opinion that in an action of this kind,
62 Nev. 184, 205 (1944) Peterson v. Wiesner
court is of opinion that in an action of this kind, recovery may be had for expenses incident to
the wrongful levy, including attorney's fees, provided of course they were the natural and
proximate consequence of the injury complained of, and were incurred necessarily, in good
faith, and in reasonable amount. 7 C. J. S., Attachment, sec. 405, p. 604, note 34; 25 C. J. S.,
Damages, sec. 50, pp. 534-535, nn. 64-67. In the case at bar no recovery could be had for
attorney's fees for services performed in the criminal proceedings. The evidence fails to show
how much of the $500 was paid or to be paid for services in having the attachment released,
and how much for other services, including those in the criminal case. In the absence of such
evidence, Wiesner could not recover any damages under this item.
Item (7). No recovery could be had under this item, which concerns the criminal case only.
26. Item (8). The testimony relates to alleged loss of reputation resulting from the criminal
proceedings as well as the attachment. Peterson is not liable for any loss of reputation
resulting from the criminal proceedings. Even if the testimony had given any estimate of the
amount of damage under this item, which it did not, there would be nothing to show what
proportion of the damage resulted from the wrongful seizure and dispossession.
27. Item (9). Loss of business credit may be a proper element of damage, but not where the
action is prosecuted by a third party owner of personal property which has been attached in an
action against another. Cunningham v. Sugar, 9 N. M. 105, 9 P. 910; 7 C. J. S., Attachment,
sec. 405, p. 604, note 37. Even if the law were otherwise, there is also a failure of proof as to
the amount of damage alleged to have resulted because of the loss of credit.
28. Wiesner testified that he believed his actual damages amounted to $12,000. If he could
give such an estimate of his total damage, he should also be able to estimate the various
items of damage alleged in his complaint.
62 Nev. 184, 206 (1944) Peterson v. Wiesner
estimate the various items of damage alleged in his complaint. When asked to explain how he
was damaged in the sum of $12,000 or any sum at all, he said he didn't know definitely.
Later, when asked again to explain how he had been damaged and give some specific
amounts, he mentioned but one item, his health; my health alone is far in excess of
$17,000.00. But, as we have seen, there was no claim for damages based on injury to health,
nor did the trial court make any finding or any mention of the subject in its decision.
Respondent confessed his inability to break down the $12,000 into items. Aside from his
testimony as to the aggregate amount, which was evidently not accepted by the court, there
was nothing on which the court could base any findings as to the amount of the damage. See
Doman v. Baltimore & O. R. Co., W. Va., 22 S. E. 2d 703.
29-31. Respondent seeks a money judgment, to justify which he must prove the amount, as
well as the fact, of damage. 1 Sedgwick on Damages, sec. 107a. This must be shown by
evidence, not necessarily with absolute or mathematical certainty, but with such reasonable
certainty as the available evidence permits. There must be substantial evidence as to the
amount of the damage; otherwise it can only be arrived at by conjecture, which the law does
not permit. 27 C. J. S., Damages, secs. 26, 28; Hale on damages (2d ed.), sec. 31. There are
many cases of tort in which compensation cannot be awarded by any precise pecuniary
standard. Sutherland on Damages (4th ed.), sec. 2, p. 3. But in cases such as the present one
compensatory damages are susceptible of proof, though only with approximate accuracy;
consequently the evidence must furnish some data from which the extent of the damages may
be computed. Wiesner has stated a good cause of action in his complaint, and at the trial he
proved that appellant wrongful seized his personal property and dispossessed him of it. But
though he proved his right to damages, he failed to prove their amount. The result is that
without further proof he is entitled to recover only nominal damages for the loss of use of
the car,
62 Nev. 184, 207 (1944) Peterson v. Wiesner
is that without further proof he is entitled to recover only nominal damages for the loss of use
of the car, which is general damages, and nothing at all in the way of special damages. Hale
on damages (2d ed.), pp. 333, 334.
In view of the conclusion reached by the court, it is not necessary to discuss the rule of
avoidable consequences or the duty to minimize damages.
32. Appellant's contention that certain remarks made by the court at the conclusion of the
trial show that excessive damages were given under the influence of passion or prejudice, is
without merit. The remarks were made simply for the purpose of encouraging the parties to
settle their involved difficulties out of court, and do not, in the court's opinion, show passion
or prejudice.
The order overruling defendant's demurrer to plaintiff's complaint is affirmed; the
judgment, and the order denying the motion for a new trial, are reversed, and the cause
remanded to the district court for a new trial.
____________
62 Nev. 208, 208 (1944) Styris v. Folk
ELI STYRIS, Appellant, v. OTIS B. FOLK,
Respondent.
No. 3393
July 13, 1943. 130 P. (2d) 614.
On Motion to Dismiss Appeal
1. Appeal and Error.
Where appellant failed to file transcript within thirty days after the appeal was perfected and the bill of
exceptions settled and allowed as required by court rule, but motion to dismiss appeal was not made until
after filing of transcript, motion to dismiss would be denied. Supreme Court Rules, rule 2.
2. Appeal and Error.
By failing to move to dismiss appeal before the default had been cured by the filing of transcript on
appeal, respondent waived his right to take advantage of failure to file transcript within 30 days after the
appeal has been perfected and the bill of exceptions settled and allowed. Supreme Court Rules, rule 2.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Action between Eli Styris and Otis B. Folk. From an adverse judgment, Eli Styris appeals.
On respondent's motion to dismiss appeal. Motion denied.
Morley Griswold and George L. Vargas, both of Reno, for appellant.
Lloyd V. Smith, of Reno, for Respondent.
OPINION
By the Court, Orr, C. J.:
The appeal in this case was perfected on the 19th day of October 1942. By stipulation the
bill of exceptions was settled and allowed January 13, 1943. The transcript on appeal was
filed in this court on May 26, 1943,
62 Nev. 208, 209 (1944) Styris v. Folk
26, 1943, thus there was a failure to comply with the requirements of rule II of this court,
which requires the transcript to be filed within thirty days after the appeal has been perfected
and the bill of exceptions settled and allowed.
Because of such failure of appellant to file the transcript within the time provided by rule
II, respondent has moved to dismiss.
1, 2. The transcript on appeal was filed before the motion to dismiss was noticed or made.
By his failure to move to dismiss before the default had been cured by the filing of the
transcript on appeal, respondent waived his right to take advantage of the provisions of said
rule II. Squires v. Merganthaler Linotype Co., 60 Nev. 62, 99 P. 2d 20.
We think the decision in the above cited case is sound and should be adhered to.
The motion to dismiss is denied.
On the Merits
March 6, 1944. 146 P. (2d) 782.
1. Negligence.
Actual knowledge of injured person's perilous predicament by person causing injury is
unnecessary to bring last clear chance doctrine into operation, but it is enough if person
causing injury would have discovered injured person's imminent peril in time to avert
accident by exercise of ordinary care.
2. Automobiles.
Where pedestrian, struck and injured by automobile, continuously violated ordinance,
designed to prevent such character or class of injury, until very moment of impact, and
injury would not have occurred except for such violation, it must be held proximate
cause of injury, as matter of law, in absence of facts bringing case within last clear
chance doctrine.
3. Negligence.
When all elements of last clear chance doctrine are present, injured person's continuing
contributory negligence becomes remote, rather than proximate, in causation, but if any
one of elements of such doctrine is absent, such negligence remains proximate cause of
injury and bars recovery of damages therefor.
62 Nev. 208, 210 (1944) Styris v. Folk
4. Negligence.
An injured person's antecedent negligence does not of itself preclude his recovery of
damages from one whose negligence caused injury.
5. Negligence.
Whether negligence arising from violation of ordinance or ordinary negligence is
remote or proximate cause of accident is fact question.
6. Automobiles.
In action for injuries to pedestrian crossing street near middle of block, in violation of
city ordinance, when struck by automobile driven by defendant, evidence warranted
instruction on last clear chance doctrine.
7. Automobiles.
In action for injuries to pedestrian, crossing street near middle of block, in violation of
city ordinance, when struck by automobile driven by defendant on dark night, evidence
was sufficient to take to jury question whether there was fairly good light at place and in
vicinity of accident.
8. Negligence.
A person of normal faculties is presumed to have heard and seen that which was within
sight and range of his vision.
9. Automobiles.
In action for injuries to pedestrian, crossing street near middle of block, in violation of
city ordinance, when struck by automobile driven by defendant, whether plaintiff's
contributory negligence or defendant's negligence in driving at excessive speed after dark
in well-traveled thoroughfare was proximate cause of accident was for jury.
10. Automobiles.
In action for injuries to pedestrian crossing street near middle of block when struck by
automobile driven by defendant, whether plaintiff was guilty of continuing negligence in
failing to look again after first seeing lights of automobile was question for jury.
11. Automobiles.
A pedestrian, using his eyes and thinking that he could cross street safely near middle
of block, had right to assume that oncoming automobile would be handled with due care.
12. Automobiles.
Whether pedestrian, using his eyes and thinking that he could cross street safely near
middle of block, was guilty of continuing negligence in going forward after observing
approaching automobile, which struck him when he reached point about 10 feet from
opposite curb, was question for jury.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
62 Nev. 208, 211 (1944) Styris v. Folk
Action by Otis B. Folk against Eli Styris for personal injuries sustained by plaintiff when
struck by an automobile driven by defendant. From a judgment for plaintiff on a jury's verdict
and an order denying defendant's motion for a new trial, defendant appeals. Affirmed.
Morley Griswold and George L. Vargas, both of Reno, for Appellant.
Lloyd V. Smith, of Reno, for respondent.
OPINION
By the Court, Ducker, J.:
Respondent, plaintiff in the court below, recovered damages in this action for personal
injuries sustained by him when struck by an automobile driven by appellant. The trial court
entered final judgment on the verdict and denied appellant's motion for a new trial.
The accident happened on Granite street in the city of Reno, between its intersection with
West Liberty street on the north, and California avenue, a block beyond on the south. At the
time of the accident respondent and a man named Campbell had left the sidewalk on the east
side of Granite street near the middle of the block, and were crossing the street. When they
reached a point about ten feet from the west curb of Granite street, respondent was struck on
the left leg by the right end of the bumper of the automobile, and thrown back towards the
middle of the street.
When the accident happened there was a city ordinance of the city of Reno in force and
effect which prohibited pedestrians from crossing streets at any point other than regular street
or alley crossings at intersections. This ordinance also provided that every person driving an
automobile upon any of the streets shall drive the same in a careful manner and with due
regard to the safety and convenience of pedestrians,
62 Nev. 208, 212 (1944) Styris v. Folk
drive the same in a careful manner and with due regard to the safety and convenience of
pedestrians, and not so driving shall be deemed guilty of reckless driving. By the provisions
of the ordinance the place where the accident happened was within a zone in the city where
driving an automobile at a rate of speed greater than twenty-five miles per hour was
prohibited, and the sounding of a horn on the automobile was required as a warning of
danger.
It is contended by appellant that by violation of this ordinance respondent was guilty of
contributory negligence, which negligence continuing actively up to the moment of the
impact, became, as a matter of law or in fact, the proximate cause of the accident.
The trial court concluded that the doctrine of last clear chance was involved, and instructed
the jury accordingly. The instructions given on this phase of the case are as follows:
There has grown up in our law a certain reasoning process that we sometimes call to our
aid in analyzing the facts of an accident case, and which is known as the Doctrine of Last
Clear Chance. It is permissible to use the doctrine only after we first find, and you may not
use it unless and until you first shall have found, that the events leading up to the accident in
question, both the Plaintiff and Defendant were negligent.
The Doctrine of Last Clear Chance may be invoked if, and only if, you find from the
evidence that these six facts existed:
First: That Plaintiff, by his own negligence, got himself into a position of danger.
Second: That thereupon, either it was physically impossible for him through the exercise
of ordinary care to escape from the danger, or he was totally unaware of impending danger in
his position.
Third: That the Defendant saw, or by the exercise of ordinary care could have seen,
Plaintiff in his position of danger.
Fourth: That it appeared to the Defendant, or would have appeared to him in the
exercise of ordinary care,
62 Nev. 208, 213 (1944) Styris v. Folk
would have appeared to him in the exercise of ordinary care, that Plaintiff either was unaware
of the danger impending in the situation or was unable to escape therefrom through the
exercise of ordinary care.
Fifth: That if Defendant saw Plaintiff, or could have seen Plaintiff by the exercise of
ordinary care, that he had or would have had a clear opportunity to avoid the accident and
could have done so by exercising ordinary care.
Sixth: That the Defendant did not use ordinary care to avoid the accident, but by
negligent conduct proximately caused the accident.
If all the conditions just mentioned are found by you to have existed with respect to the
accident in question, then you must find against the defense of contributory negligence,
because under such conditions the law holds the defendant liable for any injury suffered by
the plaintiff and proximately resulting from the accident, despite the negligence of the
Plaintiff.
14. In considering the Doctrine of Last Clear Chance, you should keep in mind that it was
not intended, and should not be permitted, to violate the basic principle that liability must be
founded on both negligence and proximate cause; also that it may not by permitted to set
aside the law of contributory negligence.
A person might negligently get himself into a dangerous position, and while that fact
might be an element in a chain or setting of circumstances from which injury thereafter
comes, yet it might not be a proximate cause of that injury, because some other efficient agent
might intervene to proximately produce the accident. On the other hand, such a person's
negligence, or its results, bight continue in unbroken effectiveness to the point of producing
or aiding to produce the injury. The Doctrine of Last Clear Chance rests on this distinction,
and its prime value is to aid us in detecting which of the two conditions existed.
Thus the Doctrine is invoked to defeat the defense of contributory negligence only in a
case when,
62 Nev. 208, 214 (1944) Styris v. Folk
of contributory negligence only in a case when, after Plaintiff's negligence has put him into a
position of danger, its work as an efficient agent of causation ceases, and it does not play a
part in proximately causing the accident. When, on the other hand, a person's negligence not
only places him in a position of danger, but thereafter it or its effect continues, and as a
proximately causing factor, brings about, or helps to bring about, the accident, then the law of
contributory negligence applies, and such person may not recover.
1. Appellant's counsel did not object to these instructions, nor except to the ruling of the
court in giving them. He has not assigned the ruling of the court as error. He contends,
however, that the doctrine of last clear chance is not applicable in any case unless the
defendant had actual knowledge of the injured person's perilous predicament in time, by the
exercise of ordinary care, to avert the accident; and that in the case here there is no evidence
tending to show such actual knowledge on the part of appellant, but that the evidence is to the
contrary. We do not agree with this view. It is established by the weight of well-considered
authority that actual knowledge in a given case is unnecessary to bring this doctrine into
operation. It is enough if the defendant, by the exercise of ordinary care, would have
discovered the imminent peril of another in time to avert the accident. Failing in this duty, he
is liable under the doctrine. Deiss v. Southern Pacific Co. et al., 56 Nev. 151, 47 P.2d 928, 53
P.2d 332; Yellow Cab Corporation v. Henderson, 178 Va. 207, 16 S. E. 2d 389; Ramsey v.
Sharpley, 294 Ky. 286, 171 S. W. 2d 427; Leinbach v. Pickwick-Greyhound Lines, 138 Kan.
50, 23 P.2d 449, 92 A. L. R. 1; Bogan v. Carolina Cent. R. Co., 129 N. C. 154, 39 S. E. 808,
55 L. R. A. 418; W. B. Bassett Co. v. Wood, 146 Va. 654, 132 S. E. 700; Kansas City
Southern R. Co. v. Ellzey, 275 U. S. 236, 48 S. Ct. 80, 72 L. Ed. 259; 45 C. J. 991, note 17.
As was said in Deiss v. Southern Pac. Co., supra
62 Nev. 208, 215 (1944) Styris v. Folk
[56 Nev. 151, 47 P.2d 931]: This * * * is * * * the better rule. Indeed the so-called
humanitarian doctrine would lose much of its efficacy if a party could escape the
consequences of his negligence simply by not seeing where he was going, particularly with a
dangerous instrumentality.
Appellant has made an effort to construe the latter case into line with his contention that
actual knowledge of the imminent danger of another in a helpless situation, is necessary to
bring the doctrine of last clear chance into play. The effort has not been crowned with
success. The court said in that case: We are fully aware of the numerous decisions of courts
of high standing supporting the rule that actual perception by a defendant of plaintiff's peril is
necessary to bring a case within the humanitarian doctrine. This court, however, is clearly
satisfied that the better rule makes actual perception unnecessary, and that if the defendant
would have discovered plaintiff's situation and thus had reason to realize the plaintiff's
helpless peril had he exercised the vigilance which it was his duty to the plaintiff to exercise.'
(Restatement of the Law, Torts, vol. 2, sec. 479), the case comes within the aforesaid
doctrine.
There is no confusion of thought needing construction in that language. We here confirm
it. Moreover, it was the law of this state before the decision in Deiss v. Southern Pac. Co. See
Weck v. Reno Traction Co., 38 Nev. 285, 149 P. 65.
Appellant assigns as error the refusal of the court to give the following instruction: The
plaintiff has not proved facts sufficient to justify you to give a judgment for any moneys
against the defendant, and your judgment must be for defendant.
The instruction was refused by the court on the ground that it was clearly against the
evidence.
2. Appellant contends that the refusal of this instruction was reversible error because
respondent's negligence was established as the proximate cause of the accident as a matter
of law.
62 Nev. 208, 216 (1944) Styris v. Folk
accident as a matter of law. This tenders the question whether under the facts the court was
warranted in submitting the case to the jury by the instructions based on the theory of the last
clear chance. Appellant has been unsparing in the citation and discussion of cases in support
of his contention, but they afford him little help. They are mostly cases in which the doctrine
of last clear chance was either not considered, or if considered, was held inapplicable. An
example of the former is Koeppel v. Daluiso, 118 Cal. App. 442, 5 P.2d 457, in which an
ordinance was violated by a pedestrian. An example of the latter class of cases is Meincke v.
Oakland Garage, Inc., 11 Cal. 2d 255, 79 P.2d 91, 92. As stated by counsel for respondent,
this case is authority for the position that the violation of an ordinance does not bar a recovery
where the facts of the case are such as to bring it within the last clear chance doctrine. The
true rule is thus stated in the opinion: These facts are clear: (1) That plaintiff was violating
an ordinance designed to prevent the very character or type of injury which plaintiff received;
(2) that the violation of this ordinance continued to the very moment of impact; and (3) that
the injury would not have occurred if plaintiff had not been violating the ordinance. Under
such circumstances there is no room for reasonable minds to differ and plaintiff's violation of
the ordinance becomes a proximate cause of his injury as a matter of law (citing cases) unless
there are facts which bring the case within the last clear chance doctrine. Girdner v. Union
Oil Co., 216 Cal. 197, 13 P.2d 915. (The italics are ours.)
3. To illustrate the rule adopted by the court in Meincke v. Oakland Garage, Inc., supra, is
quoted at length from Girdner v. Union oil Co., supra, as follows:
Whether or not, therefore, negligence is the proximate or remote cause is, as above
stated, a question of fact in each particular case. The doctrine of continuing negligence has no
application unless the negligence is the proximate cause of the injury. On the other hand, if all
the elements of the last clear chance doctrine are present and plaintiff's negligence
becomes remote in causation, then this doctrine applies.
62 Nev. 208, 217 (1944) Styris v. Folk
if all the elements of the last clear chance doctrine are present and plaintiff's negligence
becomes remote in causation, then this doctrine applies. If any one of the elements of the last
clear chance doctrine is absent, then plaintiff's negligence remains the proximate cause and
bars recovery. But the continuous negligence rule does not apply to a situation in which the
last clear chance rule, by the presence of its own elements, is brought into operation. Where
these necessary elements are lacking, courts have declared, and rightfully so, that plaintiff's
negligence being continuous and contributory with that of defendant bars a recovery. * * *
The element of continual negligence is present in all last-chance cases. If defendant is
not able to avoid injuring plaintiff in the exercise of ordinary care, the plaintiff's original
negligence continues to be the proximate cause of his own injury, which bars recovery. If, on
the other hand, defendant is able to avoid injuring the negligent plaintiff, and negligently fails
to do so, plaintiff's original though continuing negligence only remotely contributes to the
injury and is not the proximate cause thereof, and hence the applied doctrine, by its own
principles, establishes the right of plaintiff to recover notwithstanding the fact that his
original negligence would, by its continuing nature, bar a recovery if the doctrine were not
applicable. * * *
The real question to be determined in considering cases of the character of the one here
involved is whether or not the so-called continuing negligence is the proximate or remote
cause of the injury, which question is determined by the application of the principles of the
doctrine of the last clear chance itself. * * * When the doctrine applies, plaintiff's negligence
becomes remote rather than proximate in causation. If it does not apply, his negligence
remains proximate in its causation and will bar his recovery.'
This is a clear exposition of the correct rule.
In Center v. Yellow Cab Co., 216 Cal. 205, 13 P.2d 918, 920, the plaintiff, a pedestrian
who was crossing the street, was struck by an automobile.
62 Nev. 208, 218 (1944) Styris v. Folk
the street, was struck by an automobile. A nonsuit was granted. The defendant, the Cab
Company, and the driver contended and the trial court held that, as the evidence showed that
the plaintiff's negligence continued up to the moment of the injury and proximately
contributed thereto, the last clear chance doctrine invoked by him could not apply. The
judgment was reversed by the supreme court. In its opinion the higher court said: This
doctrine (the continual negligence doctrine) is not necessarily controlling in the instant case.
The real issue in cases of this character is not whose negligence came first or last, but rather
whose negligence, however it came, was the proximate cause of the injury. Whether or not,
therefore, negligence is the proximate or remote cause, depends upon the facts of the
particular case. The doctrine of continuing negligence has no application unless the
negligence is the proximate cause of the injury. If all of the elements of the doctrine of the
last clear chance are present and plaintiff's negligence becomes remote in causation, then the
doctrine applies. If, on the other hand, any of the elements of the doctrine are lacking, courts
have declared, and rightfully so, that plaintiff's negligence being continuous and contributory
with that of defendant bars a recovery. But a defendant is never relieved of liability if he has
it in his power to prevent injuring another, and this is so whether one is unaware of his peril
by reason of his negligence or not. The rule of the last clear chance means just what the words
imply, namely, if one has the opportunity of avoiding the injury, he must at his peril exercise
it.
To the same effect are W. B. Bassett & Co. v. Wood, supra; Yellow Cab Corporation v.
Henderson, supra; Ramsey v. Sharpley, supra.
4. Appellant's contention that the continual negligence rule should apply because of the
violation of the ordinance, cannot be allowed. That rule, like the rule requiring actual
knowledge of peril, is too harsh to be consonant with justice.
62 Nev. 208, 219 (1944) Styris v. Folk
consonant with justice. As stated in Yellow Cab Corporation v. Henderson, supra [178 Va.
207, 16 S. E. 2d 393]: The antecedent negligence of a plaintiff does not of itself preclude his
recovery. Starkly stated, the reason for the rule is this: One cannot kill another merely
because he is negligent.'
In other words, a drunken or speedy motorist may not run down a careless pedestrian with
impunity.
5. There is no difference in principle as to the effect of negligence whether arising by
violation of an ordinance, or by ordinary negligence. In either instance, whether it is the
remote or proximate cause of an accident, is a question of fact in each particular case. Girdner
v. Union Oil Co., supra. Although, as to the former, the negligence is presumed as a matter of
law, yet whether it is the proximate cause of an accident is always a matter of fact. Smith v.
Zone Cabs, 135 Ohio St. 415, 21 N. E. 2d 336, 338. In that case, in which the violation of an
ordinance was involved, the court said: However, the negligence which the law attributes to
appellant is not, in and of itself, sufficient to preclude his recovery. To operate as a bar, his
negligence must be shown as a matter of fact to have had a causal relation to and connection
with his injuries. In other words, the negligence which the law here attributes to appellant
must be shown to have been the proximate cause of his injuries. Negligence per se and
proximate cause are two separate and distinct issues. While one is presumed as a matter of
law, the other must, nevertheless, be proved as a matter of fact. Although appellant crossed
the street between intersections, in violation of an ordinance, he cannot be held as a matter of
law to have reasonably apprehended that in so doing injury would result. Even to a
pedestrian, thus crossing, a motorist owes the duty of exercising ordinary care. It is true that
such ordinance gives to a motorist the right of way between intersections. However, that right
is not absolute but preferential only,
62 Nev. 208, 220 (1944) Styris v. Folk
only, and the motorist is not absolved from his duty of exercising ordinary care for the safety
of pedestrians, rightfully or wrongfully on the highway between such intersections. Whether
the cab driver in the instant case exercised such care was a question of fact for the jury.
6. If the instructions as to the last clear chance were applicable to the facts of this case the
court's refusal to give appellant's requested instruction directing a judgment for him was
proper. We think they were applicable.
7, 8. The accident happened on February 1, 1941, at about 6:45 in the evening. The night
was very dark and the evidence as to the light conditions at the scene of the accident is
conflicting. Appellant testified that the lights were not sufficient to light up the street; that at
the place of the accident the pavement was dark, the background was dark and the men wore
dark clothing and hats; that all he saw was a dark object loom up in front of him and felt a
thud, and swung around and came to an easy stop about 30 feet from the place of impact; that
he was travelling 20 or 25 miles an hour. On the other hand, as to the light at the place and
vicinity, there were lights in the center of each intersection, lights on a store near the point
where respondent and his companion left the sidewalk to cross the street, evidence of a light
in front of the dwelling house on the west side of the street directly opposite the place of the
accident. Both respondent and Campbell testified that there was good light in the immediate
vicinity of the accident. The latter testified that he was there able to and did write down on an
envelope the name and address of appellant and the license number of his car. Besides the
lights on appellant's automobile were in good condition and bright. The evidence, therefore,
will bear a reasonable inference that there was fairly good light at the place and in the vicinity
of the accident, a conclusion which, of course, was for the jury. Moreover, against appellant's
testimony and contention as to the dark background which obscured the scene,
62 Nev. 208, 221 (1944) Styris v. Folk
lant's testimony and contention as to the dark background which obscured the scene, is the
fact that respondent and his companion were within the radius of his vision and lights while
crossing from the east side of the street to the point where the accident occurred. A person of
normal faculties * * * is presumed to have heard and seen that which was within the sight and
range of vision. Los Angeles & S. L. R. Co. v. Umbaugh, 61 Nev. 214, 123 P.2d 224, 234.
9. Respondent testified that when he started to cross the street he saw the headlights of
appellant's automobile, which was coming from the north at a distance of about 350 or 400
feet, and believed that he had plenty of time to cross the street, that he was struck by the auto
when he had reached a point about a step from a car that was parked parallel to the west curb
of the street; that just before he was struck his companion, Campbell, who was on his right
side cried, Jump, and jumped in between two of the parked cars; that he started to jump but
the car hit him before he could do so. This testimony was substantially corroborated by
Campbell. Campbell also testified that when he called to respondent to jump, and jumped
himself, he saw the lights of the automobile and saw it after it passed; that it was travelling 50
miles an hour or faster at the time; that as soon as he placed respondent on the sidewalk he
ran after the car and came up to it where it had stopped and appellant was alighting from it,
which was about 65 steps, or around 180 to 200 feet from where the crash occurred.
Both respondent and Campbell testified after seeing the lights of appellant's car as they
started across the street, they did not look again.
Under this evidence we think the question of whose negligence was the proximate cause of
the accident was for the jury under the instructions as to the last clear chance. It was within
their province to find that appellant was negligent in violating the zone ordinance and driving
at excessive speed after dark in a well-travelled thoroughfare of the city,
62 Nev. 208, 222 (1944) Styris v. Folk
thoroughfare of the city, and but for such speed would have been able to discover respondent
in his position of peril in time to avert the accident, and that respondent was unaware of the
danger impending in the situation until too late to escape therefrom.
10. If they believed Campbell's testimony they had a right to find that the appellant was
driving approximately 50 miles per hour when he struck appellant. There is corroboration to
Campbell's testimony in this regard, by circumstances. The street is only 37 feet wide from
curb to curb. According to both Campbell and respondent the place where the latter was hit
was about 10 feet from the west curb. They had travelled then 27 feet when he was hit. In the
meantime, appellant's car had travelled 350 or 400 feet, which was the distance as estimated
by respondent when the lights were first seen as they started across the street. Campbell
estimated the distance to be at least as far. Stress is placed by appellant on the fact that
respondent never looked again after first seeing the lights of appellant's automobile, as proof
of his continuing negligence. We think this was for the jury.
In Smith v. Zone Cab Co., supra, appellant attempted to cross the street without again
looking in the direction from which the cab which struck him was approaching after having
once looked and observed the approach of the cab at a distance of approximately 285 feet
away. Held, whether his failure to look again was, under the circumstances then and there
present, contributory negligence as a matter of fact, is a question for the jury and not for the
court.
In Fuentes v. Ling, 21 Cal. 2d 59, 130 P.2d 121, 122, a case almost parallel in facts to the
instant case, the question of plaintiff's negligence contributing to his injury was held for the
jury. True the statute in that case only required a pedestrian to yield the right of way to a
vehicle when he was crossing a roadway at any point other than within a marked crosswalk,
or within an unmarked crosswalk at an intersection.
62 Nev. 208, 223 (1944) Styris v. Folk
within an unmarked crosswalk at an intersection. Consequently it was held that the statute
was not violated, but it was also held that plaintiff was not guilty of contributory negligence
proximately contributing to his injury. The court said: It cannot be said as a matter of law a
pedestrian who crosses a well lighted business street in the middle of the block is guilty of
violating the statute or of negligence proximately contributing to his injury when he proceeds
on his way after having observed an automobile approaching from a distance of 200 feet, with
nothing to obstruct his view or that of the driver.
In that case the plaintiff testified that he observed that the car was coming at a fast speed
but thought he could cross in safety. In the instant case, as in that case, there was nothing to
obstruct the driver's view of the man crossing the street, and admittedly, the lights of his
automobile were bright. In the case, supra, the court further said: The ability of defendant to
stop his automobile within five feet after the collision suggests the improbability of excessive
speed, but even if the court accepted the defendant's version in that regard it might have
concluded that the defendant was negligent in not observing plaintiff on a well lighted street.
We say the jury could have so concluded in this case.
11. The respondent did not walk blindly into danger. He used his eyes and thought he
could cross the street in safety. He had a right to assume that the oncoming car would be
handled with due care. As was said in Los Angeles & S. L. R. Co. v. Umbaugh, supra: The
law will never hold it imprudent in any one to act upon the presumption that another, in his
conduct, will act in accordance with the rights and duties of both.
12. The event proved that respondent misjudged the danger, but it does not necessarily
prove that he was guilty of continuing negligence in going forward after observing the
approaching car. In other words, he cannot be held as a matter of law to have reasonably
apprehended that in so doing injury would result.
62 Nev. 208, 224 (1944) Styris v. Folk
he cannot be held as a matter of law to have reasonably apprehended that in so doing injury
would result. As stated in Knapp v. Barrett, 216 N. Y. 226, 110 N. E. 428, 429: If he has
used his eyes, and has miscalculated the danger, he may still be free from fault. The question
was for the jury.
As the verdict and judgment find support in the evidence, the refusal of the court to give
the instruction directing a judgment for appellant was proper. This disposes of the central
point in the case. There was no error in the refusal of other instructions offered by appellant,
or in other respects claimed by him.
The judgment and order denying a new trial are affirmed.
____________
62 Nev. 224, 224 (1944) Woodstock v. Whitaker
GEORGE WOODSTOCK, Administrator of Estate of Addie M. Williams, Deceased,
Appellant, v. W. W. WHITAKER, Respondent.
No. 3391
March 10, 1944. 146 P.(2d) 779.
1. Process.
The word issuance, as used in statute respecting issuance of summons, means not only the acts of
signing summons and placing seal thereon, but delivery thereof to sheriff or other person qualified to serve
it, with intent that it be served in due course; issuance being defined as act of sending out, to put into
circulation. Comp. Laws, sec. 8573.
2. Limitation of Actions.
A summons, signed, sealed, and delivered to plaintiff by district court clerk on date of filing of complaint,
but never delivered to sheriff or other person for service until nearly three months after statute of
limitations had run against action, was not issued in time. Comp. Laws, secs. 8523, 8573.
3. Process.
The statute requiring that summons be placed in hands of sheriff or some other person authorized to serve
it for service was merely declaratory of common law, so that later statute eliminating such requirement did
not repeal common-law rule, but left it more clearly in force. Comp. Laws, sec. 8573.
62 Nev. 224, 225 (1944) Woodstock v. Whitaker
4. Courts.
Decisions of courts of sister states may be looked to in ascertaining the common law.
5. Pleading.
A plaintiff, not requesting court for permission to amend reply to defendant's answer, elected to stand on
reply as originally filed.
6. AppearanceLimitation of Actions.
Where facts that summons was not delivered by plaintiff to qualified person for service and served within
statutory time did not appear on face of complaint, defense that action was barred by statute of limitations
could not be raised by demurrer to complaint, but was required to be raised by answer, so that defendant,
by filing answer setting up such defense, did not waive statutory requirement of such delivery of summons.
Comp. Laws, secs. 8523, 8573.
7. Estoppel.
A defendant, by filing answer joining plea of statute of limitations and other defenses, did not waive
plaintiff's failure to place summons in sheriff's hands for service until after expiration of limitation period,
as code contemplates only one answer, which must embrace all defenses which defendant elects to make.
Comp. Laws, secs. 8523, 8573.
Appeal from First Judicial District Court, Churchill County; Clark J. Guild, Judge.
Action by George Woodstock, as administrator of the estate of Addie M. Williams,
deceased, against W. W. Whitaker. From an order dismissing the action, plaintiff appeals.
Affirmed.
Carl F. Dodge, Jr., of Fallon, and Springmeyer & Thompson, of Reno, for Appellant.
H. R. Cooke, Sidney W. Robinson, and Roy W. Stoddard, all of Reno, for Respondent.
OPINION
By the Court, Orr, C. J.:
This appeal requires a determination of what constitutes the issuance of summons as that
term is used in section S57S N. C. L.
62 Nev. 224, 226 (1944) Woodstock v. Whitaker
in section 8578 N. C. L. 1929. It is asserted that the signing and sealing of a summons by the
clerk of the court and the placing of the same in the hands of the attorney for the plaintiff
constitutes an issuance of the summons. On the other hand it is argued that something more
must be done, namely, that the summons be placed in the hands of some person qualified to
serve process, or that it pass out of the hands of the party signing and sealing it, with the
intent that it be placed in the hands of some one qualified to serve it in due course.
The following facts appear:
One Warren W. Williams died testate in Churchill County, Nevada, on or about January
27, 1914, leaving surviving him his wife, Addie M. Williams. Said Addie M. Williams died
in Churchill County, Nevada, on or about March 3, 1940. At the time of the death of said
Warren W. Williams and at all times to and including the date of her death Addie M.
Williams was an insane person. All of the property owned by said Warren W. Williams at the
time of his death was community property belonging to him and his said wife, and upon his
death an undivided one-half interest in and to said property immediately vested in said Addie
M. Williams, and remained in her at the time of her death. Pursuant to certain proceedings
had in the district court of Churchill County the said Addie M. Williams was adjudged and
declared an incompetent person and incapable of managing and handling her property and
affairs. Two of her daughters were appointed guardians, one of whom died on or about
January 9, 1934, and the other remained the duly appointed and acting guardian of Addie M.
Williams until the death of the said Addie M. Williams on March 3, 1940. On or about April
29, 1941, George Woodstock was appointed administrator of the estate of Addie M.
Williams, and on February 27, 1942, said George Woodstock, on behalf of the estate of said
Addie M. Williams, deceased, filed a complaint with the clerk of the First judicial district
court of the State of Nevada, in and for the county of Churchill.
62 Nev. 224, 227 (1944) Woodstock v. Whitaker
the county of Churchill. On February 27, 1942, the clerk of said court signed and sealed a
summons and delivered it to appellant. Said summons remained in the possession of said
appellant and was never delivered to the sheriff or other person to serve until on or about May
21, 1942.
The parties are agreed that the time for the commencement of the action in the district
court is governed by the provisions of section 8523 of the Nevada Compiled Laws 1929. The
said action, in order to toll the statute of limitations, must have been commenced prior to
March 1, 1942.
On or about June 1, 1942, respondent W. W. Whitaker filed his separate answer to the
complaint, and on July 10, 1942, appellant filed his reply to said separate answer. On June 24,
1942, respondent Whitaker filed a motion for an order dismissing said complaint and action,
and after hearing had and on September 15, 1942, the court granted said motion and ordered
that the case be dismissed as to the respondent W. W. Whitaker.
The respondent contends that the said action was barred by the provisions of section 8523
N. C. L., on March 3, 1942, because prior to said date the appellant had failed to perform all
of the acts necessary for the commencement of an action, in that the summons had not been
put out for service.
1. We conclude that the word issuance as used in section 8573 N. C. L., means not only
the act of signing the summons and the placing of the seal thereon, but also delivery to the
sheriff or other person qualified to serve same, with the intent that said summons be served in
due course. Issuance is defined as the act of sending out, to put into circulation. Webster,
Unabridged. The following authorities support the conclusion we have reached: 37 C. J.
1055, par. 481; Snell v. Knowles, Tex. Civ. App., 87 S. W. 2d 871; Ferguson v. Estes &
Alexander, Tex. Civ. App., 214 S. W. 465; Creasy v. United States, D. C., 20 F. Supp. 280;
Wilkins v. Worthen, 62 Ark. 401, 36 S. W. 21;
62 Nev. 224, 228 (1944) Woodstock v. Whitaker
S. W. 21; State v. Cook, 84 Mont. 478, 276 P. 958; Smith v. Cashie & Chowan R. & L. Co.,
142 N. C. 26, 54 S. E. 788, 5 L. R. A., N. S., 439; Burton v. Deleplain, 25 Mo. App. 376;
West v. Engel, 101 Ala. 509, 14 So. 333; McIntosh v. Standard Oil Co., 121 Neb. 92, 236 N.
W. 152; Southern R. Co. v. Dickens, 163 Ala. 114, 50 So. 109; Peck v. German Fire
Insurance Co., 102 Mich. 52, 60 N. W. 453; Dedenbach v. Detroit, 146 Mich. 710, 110 N. W.
60; Marshall v. Matson, 171 Ind. 238, 86 N. E. 339; McMaster v. Ruby, 80 Or. 476, 157 P.
782; Sims v. Miller, 151 Ark. 377, 236 S. W. 828.
2. The cases cited supra may be divided into two classes; those requiring the summons to
be placed in the hands of one qualified to serve it in order to complete issuance, and those
wherein the delivery is made to a party with the intent that summons be by him delivered to
one authorized to serve it. In either event the summons was not issued in time in this case.
While the reply filed by appellant denies that the summons was not placed in the hands of the
plaintiff with the intent that it be by him delivered to a person qualified to serve it, yet the fact
that said summons was held by plaintiff until after the statute of limitations had run against
the action and for an unreasonable time thereafter negatives the idea that such an intent
existed as would be material here.
3, 4. In 1911 the statute of Nevada was amended so as to require the delivery of the
summons to the sheriff or other authorized person for the proper commencement of a civil
action. By the act approved March 24, 1915, the specific requirement of placing the summons
in the hands of the sheriff or other person authorized to serve it was eliminated. Appellant
considers this elimination a clear indication that the legislature intended, by striking the
requirement of placing the summons out for service, that the issuance of a summons would be
complete when signed and sealed by the clerk of the court or by the attorney for plaintiff, as is
provided for by law.
62 Nev. 224, 229 (1944) Woodstock v. Whitaker
It is our opinion that the requirement for the placing of the summons in the hands of the
sheriff or some other person authorized to serve the same, for service, as contained in the
1911 act was merely declaratory of the common law. This is evidenced by the numerous
cases from sister states cited, supra. Decisions from sister states may be looked to in
ascertaining the common law. 15 C. J. S., Common Law, p. 634, sec. 21; Lux v. Haggin, 69
Cal. 255, 10 P. 674, at page 747; Ingram v. Fred, Tex. Civ. App., 210 S. W. 298; Van Dyke v.
Superior Court, 24 Ariz. 508, 211 P. 576.
The repeal of that portion of the statute of 1911 by the act approved March 24, 1915,
which said portion was, as we have said, merely declaratory of the common law, did not
repeal the common-law rule, but left it more clearly in force. 12 C. J. p. 188, sec. 16; 15 C. J.
S., Common Laws, sec. 12; Reeves & Co. v. Russell, 28 N. D. 265, 148 N. W. 654, L. R. A.
1915d, 1149; In re Sloan's Estate, 7 Cal. App. 2d 319, 46 P.2d 1007; Harper v. Middle States
Loan, etc., 55 W. Va. 149, 46 S. E. 817, 2 Ann. Cas. 42; 1 Lewis' Southerland Statutory
Construction, 2d ed., p. 573, sec. 294, at note 9, and cases cited.
It seems that from 1861 to 1915 the Nevada law expressly required the delivery of the
summons to a sheriff or some other person authorized to serve it, in order to stop the running
of the statute of limitations; from 1861 to 1911 the law as it now exists in section 8573 N. C.
L. 1929, which defines commencement of an action, was a part of the statutes in
substantially the same form; and from 1911 until 1915 the requirements for the
commencement of an action were incorporated in one act. However, the fact that two statutes
relative to the commencement of an action were in force and effect prior to 1911 does not
indicate a different construction should be given section 8573; on the contrary, the similar
statute, referred to supra, in force from 1861 to 1911, admits of the same construction we
have given said section 8573.
62 Nev. 224, 230 (1944) Woodstock v. Whitaker
5. Appellant complains that the court failed to grant him leave to amend his reply to the
separate answer of the respondent. We fail to find in the record any request on the part of the
appellant to the trial court to permit him to amend, and not having requested the court for
permission to amend, the appellant will be deemed to have elected to stand on his reply as
originally filed. Fishburne v. Merchants' Bank, etc., 42 Wash. 473, 85 P. 38, 7 Ann. Cas. 848;
Kelley v. Kriess, 68 Cal. 210, 9 P. 129; Karlik v. Peters, 106 Cal. App. 126, 288 P. 863; I
Bancroft Code Pleading, p. 919, sec. 630, note 17.
6. Appellant next argues that assuming that under section 8573 N. C. L., it is necessary
that a summons be delivered to a qualified person for service before an action is
commenced, then this requirement was waived by respondent when he appeared generally
in the action in the district court by filing an answer to the complaint filed therein. This
contention is based upon that provision of section 8573 N. C. L., which reads: * * *
provided, that after the filing of the complaint a defendant in the action may appear by
answer, demurrer, or notice of motion filed in the cause, excepting motions to quash service,
or denying the sufficiency of process or the jurisdiction of the court over the subject-matter or
the person, whether the summons has been issued or not, and such appearance shall be
deemed a waiver of summons.
Two Nevada cases dealing with this question have been cited: Rose v. Richmond M. Co.,
17 Nev. 25, 27 P. 1105, and Harris v. Helena M. Co., 29 Nev. 506, 92 P. 1. We do not think
those cases are controlling here. In the instant case the facts relative to the summons being
withheld from delivery and service did not appear upon the face of the complaint, therefore
the defense that the action was not commenced within the time provided therefor by sections
8523 and 8573 could not be raised by demurrer. Nevada-Douglas Consolidated Copper Co. v.
Berryhill, 58 Nev. 261, 75 P. 2d 992.
62 Nev. 224, 231 (1944) Woodstock v. Whitaker
Under the circumstances the respondent pursued the course required by law, namely, that the
defense of the statute of limitations must be raised by answer. 37 C. J. p. 1215, par. 718; 34
Am. Jur. p. 337, par. 428. To hold that by answering respondent pegged the time of the
commencement of the action as of the time the complaint was filed would be to deprive
respondent of such a defense. Such a construction cannot reasonably be said to have been
intended by the legislature. In the Rose v. Richmond M. Co. case and the Harris v. Helena M.
Co. case, supra, this court pointed out that the defendant had first appeared without raising a
jurisdictional question; in the Rose v. Richmond M. Co. case [17 Nev. 25, 27 p. 1107] there
was no move to dismiss the action or file a plea in abatement; and in the Harris v. Helena
M. Co. case [29 Nev. 506, 92 P. 2] it is said: the defendant appeared in said action and filed
a general demurrer * * * without making any reservations whatever relative to the jurisdiction
of the court. In the instant case the respondent raised the question of the statute of limitations
at the first opportunity and, as has been said, in the only manner in which he was permitted to
do so under the law. This difference, to our minds, clearly distinguishes the cases of Rose v.
Richmond M. Co. and Harris v. Helena M. Co. from the case at bar.
7. Appellant, in his reply brief, argues that respondent in the filing of his answer pleading
the statute of limitations and setting up other defenses, is invoking the jurisdiction of the
court to decide the case in his favor on the bases of those defenses, and at the same time
saying to the court that no action has been commenced and there is no action pending before
the court. Such is not the case. This action was commenced May 21, 1942, because that was
the date the summons was placed in the hands of the sheriff for service; commenced
belatedly, insofar as tolling the statute of limitations in concerned, but prior to the time of
filing of the answer of June 1, 1942.
62 Nev. 224, 232 (1944) Woodstock v. Whitaker
The fact that respondent, in the district court, joined in his answer other defenses with that
of the statute of limitations is said by appellant to strengthen the contention that respondent
waived summons and thus made an appearance as of the date of filing the complaint. We
cannot ascribe such an effect to the joining of the several defenses; only one answer is
contemplated by the code, and all the defenses a party elects to make must be embraced
within it. We know of no other method by which a defendant could get the benefit of existing
defenses. Louisville Home Telephone Co. v. Beeler's Adm'r, 125 Ky. 366, 101 S. W. 397, at
page 399.
The order appealed from is affirmed.
____________
62 Nev. 232, 232 (1944) Buaas v. Buaas
LEILA ANNE BUAAS, Appellant, v. WALTER F. BUAAS,
Respondent.
No. 3408
March 20, 1944. 147 P.(2d) 495.
1. Appeal and Error.
In considering whether relief granted is conformable to case made, supreme court must look to issues
joined by pleadings, and not to allegations of complaint alone.
2. Divorce.
Where husband's divorce complaint alleged that there was community property belonging to him and wife
and answer admitted such allegation, and cross-complaint prayed that property be assigned to wife, and
reply filed by husband prayed that community property be divided, decree dividing community property
conformed to case made, and, under prayer in complaint for general relief, court was empowered to pass on
property rights. Comp. Laws, sec. 9463, as amended by Stats. 1943, p. 117.
3. Judgment.
The relief under general prayer must be such as follows legitimately and logically from pleadings and
proof, and it must not be of such character as to take defendant by surprise.
62 Nev. 232, 233 (1944) Buaas v. Buaas
4. Divorce.
Under statute authorizing court in divorce actions to make such disposition of community property of
parties as shall appear just and equitable, trial court has authority to inquire into the existence of property
of either spouse and to make an investigation thereof with view of such disposition, without any prayer to
such effect. Comp. Laws, sec. 9463, as amended by Stats. 1943, p. 117.
5. JudgmentPleading.
The prayer for relief in complaint is not part of statement of cause of action, and, when answer is filed
and a trial is had, judgment will be awarded in accordance with facts pleaded and proven.
6. Divorce.
Nevada court had power in divorce action where husband and wife were within jurisdiction of court, in
adjudicating their property rights to pass indirectly upon title to land situated in California.
7. Equity.
A court of equity having authority to act upon the person may indirectly act upon real estate in another
state, through instrumentality of his authority over the person.
8. Divorce.
Allegation in husband's complaint that wife had treated husband since marriage with extreme cruelty, and
that acts of extreme cruelty were without provocation and caused husband mental pain, were sufficient to
charge extreme cruelty. Comp. Laws, secs. 9460, 9467.04.
9. Divorce.
If party in divorce action elects not to plead cause of action in language of statute and pleads facts upon
which alleged cause of action is based, facts pleaded must be such as will sustain cause of action. Comp.
Laws, secs. 9460, 9467.04.
10. Divorce.
A party will not be permitted to allege extreme cruelty in language of statute and then proceed to set out
facts which fall far short of constituting such conduct, and thus failing to then rely on general allegations,
for by special facts so pleaded it is demonstrated upon face of complaint, that general allegations are
untrue. Comp. Laws, secs. 9460, 9467.07.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action for divorce by Walter R. Buaas against Leila Anne Buaas, wherein defendant filed
a cross-complaint.
62 Nev. 232, 234 (1944) Buaas v. Buaas
From a decree granting plaintiff an absolute divorce and providing for a division of the
property rights of the parties, defendant appeals. Affirmed.
Donnell Richards, of Reno, for Appellant.
Alan Bible, of Carson City, for Respondent.
OPINION
By the Court, Orr, C. J.:
Respondent, as plaintiff and cross-defendant in the trial court, was granted an absolute
divorce from appellant, as defendant and cross-complainant, on the ground of extreme
cruelty. The decree also made provision for a division of the property rights of the parties.
In her appeal appellant has presented two questions for determination. First, she contends
that the provisions relative to the real property awards contained in the decree are not
conformable to the case made by the complaint, in this: The trial court was without
jurisdiction to adjudicate property rights in realty situate in a foreign state, and, further, that
no settlement of the property rights could properly be made under the prayer for general relief
which the complaint contained.
1-3. In considering the question of whether or not the relief granted was conformable to
the case made, we must look to the issues joined by the pleadings, and not to the allegations
of the complaint alone. The complaint alleges, in paragraph IV: that there is community
property belonging to the plaintiff and defendant situated in Nevada and California, the exact
value of which is unknown. The answer admits the allegations of said paragraph IV of the
complaint, and in the cross-complaint filed by appellant it is prayed that certain property
situate in California be assigned and
62 Nev. 232, 235 (1944) Buaas v. Buaas
decreed to her. The reply filed by respondent also prays that the community property be
divided between the parties.
Considering the issues made by the complaint, answer and reply, we are convinced that the
provisions of the decree dividing the community property do conform to the case made, and
under the prayer for general relief the court was empowered to pass upon the property rights.
The relief under the general prayer must be such as follows legitimately and logically
from the pleadings and the proof; and it must not be of such character as to take the defendant
by surprise. If the bill prays for general relief only, the plaintiff will be entitled to such relief
as is conformable to the case established by him. 10 R. C. L. p. 557.
4, 5. The courts of this state are authorized by section 9463, N. C. L. 1929, as amended by
Statutes 1943, p. 117, to make such disposition of the community property of the parties as
shall appear just and equitable. Under section 9463, N. C. L. 1929, the trial court has
authority to inquire into the existence of property of either spouse and to make an
investigation thereof with the view of making such adjustment as will attain right and justice
between the parties under all the circumstances which may attend the particular case. Walker
v. Walker, 41 Nev. 4, at page 10, 164 P. 653, 169 P. 459. The prayer for relief is no part of
the statement of the cause of action, and when an answer is filed and a trial is had, judgment
will be awarded in accordance with the facts pleaded and proven. Keyes v. Nevada Gas Co.,
Ltd., 55 Nev. 431, 38 P. 2d 661. Had there been no prayer whatever for general relief, under
the pleadings as formed, the court would have had authority to make a division of the
community property. See Sugarman Iron & Metal Co. v. Morse Bros., 50 Nev. 191, 255 P.
1010, 257 P. 1; First Nat. Bank of Winnemucca v. Abel, 56 Nev. 489, 56 P. 2d 148.
62 Nev. 232, 236 (1944) Buaas v. Buaas
6, 7. Appellant further contends that the relief granted under the prayer for general relief is
not conformable to the case made by the complaint insofar as it relates to the California
property, such property being beyond the jurisdiction of the court, and that the Nevada court
can only adjudicate upon and determine the status of the land and immovable property
within its borders. It is true that the Nevada court could not render a judgment in rem
passing directly upon the title to the California realty, but both parties being within the
jurisdiction of the court, it did have power to pass indirectly upon the title to land situate in
another state.
A court of equity having authority to act upon the person may indirectly act upon real
estate in another state, through the instrumentality of this authority over the person. Whatever
it may do through the party it may do to give effect to its decree respecting property, * * *.
Fall v. Eastin, 215 U. S. 1, 30 S. Ct. 3, 54 L. Ed. 65, 23 L. R. A. (N. S.), 924, 17 Ann. Cas.
853.
See also: 17 Am. Jur. p. 369, sec. 449; 27 C. J. S., Divorce, p. 1287, sec. 330; 51 A. L. R.
p. 1085.
The appellant having submitted to the jurisdiction of the trial court, the decree adjudicating
the property rights falls within the extraterritorial effect of a judgment and decree when
operating in personam.
We now consider the contention of appellant that the allegations of the complaint are
insufficient to permit the proving of extreme cruelty and the granting of a decree of divorce
upon that ground. The complaint alleges:
That since the marriage, the defendant has treated the plaintiff with extreme cruelty.
That all of the acts of extreme cruelty on the part of the defendant were without cause or
provocation and caused said plaintiff intense mental pain, anguish and suffering, and
seriously interfered with and impaired his health.
62 Nev. 232, 237 (1944) Buaas v. Buaas
8. The allegations of the complaint are amply sufficient to meet the provisions of section
9467.04, 1941 Supplement, Nevada Complied Laws 1929, wherein it is provided: In actions
for divorce the complaint of the plaintiff * * * may state the cause or causes for divorce upon
which the party or parties rely, in the words of the statute * * *.
Section 9460, N. C. L. 1929, provides that a divorce from the bonds of matrimony may be
obtained by complaint under oath for the following causes: * * * Sixth, extreme cruelty in
either party. The allegation of the complaint that since the marriage, the defendant has
treated the plaintiff with extreme cruelty impresses us as being as nearly an allegation in the
language of the statute as could be devised to convey the required meaning. The further
allegation of the complaint alleging the result of the cruelty practiced is an amplification of
the language of the statute, and to our minds adds to, rather than detracts from, the sufficiency
of the allegations to state a cause of action.
9, 10. Appellant cites the case of Nielsen v. Nielsen, 55 Nev. 425, 38 P. 2d 663, and urges
that said case is authority for her contention that the allegations as to extreme cruelty
contained in the complaint in this case are insufficient. We do not think that case has any
application here. Under the express authority of section 9467.04, N. C. L., 1941 Supplement,
a pleader may state a cause of action in the language of the statute. If he elects not to do this
and pleads the facts upon which the alleged cause of action is based, the facts pleaded must
be such as will sustain the cause of action. A party will not be permitted to allege extreme
cruelty in the language of the statute and then proceed to set out facts which fall far short of
constituting such conduct, and thus failing to then rely on the general allegation, for by the
special facts so pleaded it is demonstrated, upon the face of the complaint, that the general
allegations are untrue. Such is the holding in
62 Nev 232, 238 (1944) Buaas v. Buaas
The case of Nielsen v. Nielsen, supra, and said case does not attempt to decide that an
allegation in the language of the statute when relied on without further amplification is
insufficient. See also: Heiny v. Heiny, 72 Colo. 367, 211 P. 103; Seibel v. Seibel, 30 Ohio
App. 198, 164 N. E. 648; Coffman v. Coffman, Tex. Civ. App., 83 S. W. 2d 416; Etheridge v.
Etheridge, 120 Md. 11, 87 A. 497; Renfro v. Renfro, Tex. Civ. App., 80 S. W. 2d 348;
McCullough v. McCullough, 120 Tex. 209, 36 S. W. 2d 459.
The permission given by section 9467.04 N. C. L. 1941 Supplement, to plead the cause of
action in the language of the statute works no hardship, for the reason that provision is made
in the same statute for a bill of particulars to be furnished upon demand, stating in detail the
facts, dates, times and occasions upon which the plaintiff or the defendant relies for cause of
action.
The judgment and order appealed from are affirmed.
____________
62 Nev. 239, 239 (1944) Penrose v. Whitacre
HERBERT PENROSE Et Al., for Their Own Use and Benefit and for the Use and Benefit of
All Others Similarly Situate, Respondents, v. WALTER WHITACRE, As Treasurer and
Ex Officio Tax Receiver in and for the County of Lyon, State of Nevada, and WALKER
RIVER IRRIGATION DISTRICT, Appellants.
No. 3367
On Petition for Rehearing
October 29, 1943.
Petition for rehearing granted.
W. M. Kearney and Robert T. Adams, both of Reno, for Appellant, Walker River Irrigation
District.
Franklin H. Koehler, of Yerington, for Appellant Walter Whitacre.
John R. Ross, of Carson City, for Respondent.
Per Curiam:
Good cause appearing therefor, it is hereby ordered that appellants' petition for rehearing
heretofore filed in the above-entitled cause be, and the same is hereby, granted. The time for
the oral argument on such rehearing is hereby set for Wednesday, the 8th day of December
1943, at the hour of ten o'clock a. m.
On Rehearing
April 12, 1944. 147 P.(2d) 887.
1. Statutes.
Where statute adopts such provisions of prior statute as are applicable, the court, in determining what
provisions thereof are applicable, must construe into adopting statute only such appropriate provisions of
prior statute as will give force and effect to later statute, which adopts nothing of prior statute beyond
purposes of new statute.
2. Statutes.
When legislature undertakes to legislate specifically on a subject, it cannot be deemed to have
incorporated into law parts of a former law, unless language employed indicates such
legislative intention with reasonable certainty.
62 Nev. 239, 240 (1944) Penrose v. Whitacre
parts of a former law, unless language employed indicates such legislative intention with reasonable
certainty.
3. Waters and Water Courses.
The provision of irrigation district act that all provisions thereof shall apply to improvement districts,
where applicable, does not give irrigation district board of directors all powers concerning improvement
districts that board has concerning irrigation district. Comp. Laws, sec. 8066.
4. Waters and Water Courses.
The proviso of Irrigation District Act that district board of directors may incur indebtedness, not
exceeding $30,000 or $1 per acre, and levy assessments of not exceeding $1 per acre on all lands in district
for payment of organization expenses, is inapplicable to improvement districts in irrigation district. Comp.
Laws, sec. 8025.
5. Waters and Water Courses.
Owners of lands in improvement district within irrigation district are entitled to invoke aid of equity to
enjoin collection of assessments, levied on such lands by irrigation district board of directors, as illegal and
void, without first applying for relief to board of correction, which has no power under statute to decide
whether assessment is void. Comp. Laws, sec. 8037.
6. TaxationWaters and Water Courses.
It must appear that enforcement of tax or irrigation district assessment would lead to multiplicity of suits,
produce irreparable injury or throw cloud on title to realty, or fraud must be alleged, before equity court's
aid can be invoked to enjoin collection of tax or assessment. Comp. Laws, sec. 8066.
7. Waters and Water Courses.
Injunction will lie to prevent collection of illegal irrigation district assessments on lands in improvement
district, in absence of adequate remedy at law, though cloud on titles to such lands would not justify
injunctive relief. Comp. Laws, sec. 8066.
8. Waters and Water Courses.
An item, operation and maintenance: rate: $0.18 per acre, in official budget of irrigation district and
local improvement district therein, did not establish that irrigation district board's assessment on lands in
improvement district was operation and maintenance assessment, which such board had power to levy, in
view of contrary testimony and resolutions of district board and state board of irrigation district bond
commissioners. Comp. Laws, sec. 8066.
9. Waters and Water Courses.
An irrigation district board of directors could not legally assess lands in only one of improvement
districts within irrigation district for purpose of raising money to repay amount advanced by irrigation
district for construction of drainage canal in such improvement district under agreement
with federal reclamation bureau or to cover cost of completing such canal,
62 Nev. 239, 241 (1944) Penrose v. Whitacre
drainage canal in such improvement district under agreement with federal reclamation bureau or to cover
cost of completing such canal, without approval of such assessment by vote of two-thirds of electors in
improvement district at special election. Comp. Laws, secs. 8025, 8066.
10. Municipal Corporations.
Generally, statutes providing for special or local assessments must be strictly construed and applied in
favor of owners of property assessed and against assessing authorities.
11. Waters and Water Courses.
The power of irrigation district to incur debt or liability is not unlimited, but restricted to revenue
sufficient to meet obligations voluntarily assumed by land owners within district, as voiced by their votes at
elections held for such purpose. Comp. Laws, secs. 8025, 8066.
12. Constitutional Law.
Whether irrigation district board of directors should be given larger powers concerning improvement
districts than those conferred by statutes and power to remedy injurious conditions, such as waterlogging of
lands in such district, are matters for legislative department, not courts', consideration. Comp. Laws, secs.
8025, 8066.
Appeal from First Judicial District Court, Lyon County; L. O. Hawkins, Presiding Judge.
On rehearing. Former decision adhered to, and judgment and order appealed from
affirmed.
For former opinion, see 61 Nev. 440, 132 P. 2d 609.
W. M. Kearney, of Reno, for Appellant Walker River Irrigation District.
Franklin H. Koehler, of Yerington, for Appellant Walter Whitacre.
John R. Ross, of Carson City, for Respondents.
OPINION
By the Court, Taber, J.:
1, 2. The last sentence of sec. 49 1/2 of the irrigation district act, sec. 8066 N. C. L. 1929,
reads: All the provisions of this act where applicable shall apply to such improvement
districts."
62 Nev. 239, 242 (1944) Penrose v. Whitacre
provisions of this act where applicable shall apply to such improvement districts. It is the
contention of appellants that this provision makes each improvement district a complete
irrigation district in itself, with each, every and all of the powers vested in the board to do
each, every and all the acts which the main district is authorized to do. Whether this position
is correct depends largely upon the meaning of the words where applicable. In endeavoring
to ascertain the true intent of the legislature, courts look to established rules of statutory
construction. One of these is that where one statute adopts such provisions of another as are
applicable, the court, in determining what provisions are applicable, must construe into the
adopting statute only such appropriate provisions of the prior act as will give force and effect
to the later act; also that the latter adopts nothing of the statute referred to beyond the
purposes of the new act. In re Garrett Transfer & Storage Co., 53 Idaho 200, 23 P. 2d 739; In
re Womelsdorf Alley, 8 Pa. Co. Ct. R. 207; State v. Board of Com'rs, 83 Kan. 199, 110 P. 92;
Gadd v. McGuire, 69 Cal. App. 347, 231 p. 754; State v. Wendt, 225 Wis. 10, 273 N. W. 72;
II Lewis' Sutherland on Statutory Construction, 2d ed., sec. 405, pp. 787-789; Crawford's
Statutory Construction, sec. 234, p. 440; 59 C. J., Statutes, sec. 624, pp. 1059, 1060, note 23;
25 R. C. L., Statutes, sec. 160, p. 908, note 11. It is reasonable to suppose that when the
legislature undertakes to legislate specifically on a subject, it does so fully, and cannot be
deemed to have incorporated into the law parts of a former law unless the language employed
is such as to indicate with a reasonable degree of certainty that such was the legislative
intention. State v. Wendt, 225 Wis. 10, 273 N. W. 72; State v. Frear, 144 Wis. 79, 128 N. W.
1068, 140 Am. St. Rep. 992; 59 C. J. Statutes, sec. 624, p. 1060, note 24; 25 R. C. L.,
Statutes, sec. 160, p. 908, note 10.
3. Had the legislature intended that the board of directors should have all the powers
concerning improvement districts that it has concerning the irrigation district,
62 Nev. 239, 243 (1944) Penrose v. Whitacre
directors should have all the powers concerning improvement districts that it has concerning
the irrigation district, it would have been a simple matter so to provide. This was done in the
California irrigation district improvement act of 1927, Deering's General Laws of California
1937, Volume One, Act 3877A, sec. 10 of which reads in part as follows: Said board of
directors and all other officers of said irrigation district shall have all the rights, powers and
privileges concerning said improvement district, and lands thereof and the proceedings herein
provided for, as such board may have concerning the irrigation district, of which it is a part
* * *. There is no such statutory provision in this state; and while it is possible that the
legislature may have intended that the last sentence of sec. 49 1/2, sec. 8066 N. C. L. 1929,
should have the same meaning as sec. 10 of said California act, the language used in the
former provision does not indicate with reasonable certainty that such was the intent.
4. A further reason why the court does not think that the proviso in sec. 14, sec. 8025 N. C.
L. 1929, is applicable to improvement districts is the amount of the aggregate debt limit
prescribed therein for irrigation districts. It seems unreasonable to think that the legislature
would prescribe as high an aggregate debt limit for each improvement district as that
prescribed for the whole irrigation district. It may be contended, however, that there is no
reason why the dollar per acre debt limit should not apply to each improvement district as
well as to the irrigation district; but there is at least one reason why the court does not
consider this argument sound. If it were sound, the board of directors could always put an
assessment of $1 per acre on lands in an improvement district containing less than thirty
thousand acres, but could not make an assessment in that amount on the lands of an irrigation
district containing more than thirty thousand acres. In other words, in an improvement district
containing 15,000 acres the board of directors could,
62 Nev. 239, 244 (1944) Penrose v. Whitacre
15,000 acres the board of directors could, without a special election, assess as high as
$15,000, while in an irrigation district containing 60,000 acres the highest legal assessment,
without such election, would be $30,000. In one case the assessment could be as high as $1
per acre, while in the other it could not be higher than 50 cents per acre. Such a construction
would mean that the statute in this respect gives the board of directors of an irrigation district
not only as much, but more power concerning improvement districts than concerning the
irrigation district as a whole.
5. Appellants insist that this court arrived at an erroneous conclusion in holding that
plaintiffs were entitled to invoke the aid of equity without first applying for relief to board of
correction. This matter was fully briefed and orally argued, and correctly disposed of in the
original opinion, where the pertinent section of the act is quoted in full. Section 8037 N. C. L.
1929. From the provisions of that section it will be noted that the board of correction is
authorized to correct assessments so as to conform with the benefits apportioned as herein
provided for to pay obligations incurred or make up deficiencies arising from any source, and
also to apportion and distribute benefits and assessments by reason of additional land in the
district becoming subject thereto * * *. Said section further authorizes the board to make
such changes in the assessment book as may be necessary to have it conform to the facts.
The statute does not give the board of correction power to decide whether an assessment is
void. Payette-Oregon Slope Irr. Dist. v. Coughanour, 162 Or. 458, 91 P.2d 526; 48 Am. Jur.,
Special or Local Assessments, sec. 296, p. 783; 67 C. J., Waters, sec. 960, note 81.
6, 7. Reasserting their contention that injunction is not a proper remedy in the present case,
appellants say that the following statement in Wells, Fargo & Co. v. Dayton, 11 Nev. 161, at
page 166, is merely dictum insofar as it refers to cloud on title: It must, in the language of
the authorities,
62 Nev. 239, 245 (1944) Penrose v. Whitacre
language of the authorities, appear that the enforcement of the tax would lead to a multiplicity
of suits, or produce irreparable injury; or, if the property is real estate, throw a cloud upon the
title of the complainant, or there must be some allegation of fraud, before the aid of a court of
equity can be invoked. Whether dictum or not, it is sound law and supported by the
authorities. Yocum v. First Nat. Bank, 144 Ind. 272, 43 N. E. 231 (citing Wells, Fargo & Co.
v. Dayton, supra); Laycock v. Lake Chelan Reclamation District, 124 Wash. 544, 214 P.
1054; Annotation, 22 L. R. A. 699, at page 705 (citing Wells, Fargo & Co. v. Dayton, supra).
If plaintiffs had an adequate remedy at law, cloud on title would not justify injunctive relief,
but as they have no adequate remedy at law, injunction will lie if the assessment is illegal. 61
C. J., Taxation, sec. 1437.
8. In the official 1939-40 budget of the irrigation district and the four local improvement
districts under the heading Local Improvement District No. 2 we find this item: Operation
& Maintenance: Rate: $0.18 per acre. Appellants contend that the assessment complained of
by plaintiffs was thus established as an operation and maintenace assessment which the board
of directors of the improvement district had the right and power to levy. This court, they say,
has entirely overlooked the officially established purpose of the 18-cent assessment.
Said contention, though not discussed in the original opinion, was not overlooked. If the
purpose of the assessment was not for operating and maintenance expense, the wording of an
item in the official budget would not make it so. In the resolution of August 5, 1938,
mentioned in the original opinion, we find the words particularly for the purpose of the
payment of the expenses and costs in the construction of a drainage canal in Local
Improvement District No. 2 * * *. The same words occur in the resolution adopted by the
state board of irrigation district bond commissioners on August 31, 193S.
62 Nev. 239, 246 (1944) Penrose v. Whitacre
state board of irrigation district bond commissioners on August 31, 1938. The testimony of
Mr. Bernard, Mr. Parker and Mr. Wichman shows beyond a doubt that while some of the
money to be raised by the assessment was to be used in operating and maintaining the
drainage canal, its chief purposes were (1) to raise money with which to repay to the
irrigation district the $3,681.30 advanced pursuant to its agreement with the U. S. reclamation
bureau and (2) to raise money to be used in completing the canal.
9-12. This court does not question the soundness of the rules laid down in the Nampa case.
Nampa & Meridian Irr. Dist. v. Bond, D. C., 283 F. 569; Id., 9 Cir., 288 F. 541; Id., 268 U. S.
50, 45 S. Ct. 383, 69 L. Ed. 843. But the courts in that case were not dealing with such
statutory provisions as secs. 49 1/2 and 14 of our irrigation district act. Besides this, in the
Nampa case the construction work on the reclamation project had been completed and the
project in operation for a considerable length of time. In the case at bar the construction work
on the canal was not completed, and was done under a contract of the irrigation district with
the reclamation bureau, without its ever having been authorized by a vote of two-thirds of the
electors in the improvement district as required by sec. 49 1/2. Conceding that if the injurious
condition in improvement district No. 2 existed in the irrigation district as a whole the board
of directors could, by virtue of the proviso in sec. 14 and other statutory provisions relied
upon by appellants, legally incur the expense required to relieve such condition without a
special election, it is the opinion of the court that, without such election as provided in sec. 49
1/2, the board of directors could not legally assess the lands in the improvement district alone
for the purpose of raising money to repay the $3,681.30 advanced by the irrigation district, or
to cover the cost of completing the drainage canal. As a general rule, statutes providing for
special or local assessments are to be strictly construed and strictly applied in favor of the
owners of the property assessed, and against the assessing authority.
62 Nev. 239, 247 (1944) Penrose v. Whitacre
applied in favor of the owners of the property assessed, and against the assessing authority. 48
Am. Jur., Special or Local Assessments, sec. 4, notes 2, 3. It being the opinion of the court
that sec. 14 of the irrigation district act does not apply to improvement districts, we think that
what was said by this court in Re Walker River Irr. Dist., 44 Nev. 321, 195 P. 327, 330, is
applicable here: The power to incur any debt or liability is not unlimited, but is expressly
restricted to revenue sufficient to meet the obligations voluntarily assumed by the landowners
within the district, as voiced by their votes at elections held for that purpose. Whether
further legislation should be enacted conferring upon the board of directors larger powers
concerning improvement districts and, as in some other states, specially providing for the
remedying of injurious conditions such as and similar to those in the instant case, is a matter
for the consideration of the legislative department.
All the trouble in this case might have been avoided if a special election under sec. 49 1/2
had been called when it was first learned that the help of the reclamation bureau was
available. There was some apprehension that unless the offer of that bureau were immediately
taken advantage of, its assistance might be lost. There is no evidence that Mr. Foster, or
anyone else authorized to speak for the reclamation bureau, stated that it would not wait until
a special election had been held. Even if the bureau had refused to wait for such an election,
the board of directors of the irrigation district could at least have caused one to be held as
soon as the necessary statutory proceedings would permit. But instead of following this
procedure, the board of directors of the irrigation district entered into the contract with the
reclamation bureau, and the work proceeded, without any steps being initiated until the
summer of 1937 to secure the approval of two-thirds of the qualified electors of the
improvement district. The election was not held until February 1938, about the time the
reclamation bureau ran out of funds.
62 Nev. 239, 248 (1944) Penrose v. Whitacre
time the reclamation bureau ran out of funds. Even then, the election fell only two votes short
of being carried by the required two-thirds majority.
In the Nampa case it appeared that the injurious condition was the direct result of the
operation of the whole irrigating system. It was therefore held that all the lands in plaintiff
irrigation district, as well as those in other parts of the project, should bear the expense of
remedying the situation. If in the present case the waterlogging has resulted from the general
system of irrigation in the irrigation district, then all its lands should be assessed to cover the
expense of what has been done, as well as the cost of completing the canal. If, in the
judgment of the board of directors, it was proper that the cost of constructing the drainage
canal should be borne entirely by the lands in improvement district No. 2, it was necessary
that two-thirds of the qualified electors give their approval through an election called and held
as provided in sec. 49 1/2 before a valid assessment could be levied on those lands only to
cover the cost of such construction. As the assessment complained of in this case was made
without holding such an election, it was void.
With reference to the question of estoppel the court, after further consideration, is still of
the opinion that this case falls within the general rule that landowners will not be estopped
from attacking a void assessment sought to be levied on their lands. In addition to the
authorities in support of this rule cited in the original opinion, reference is also made to 48
Am. Jur., Special or Local Assessments, sec. 296.
The court adheres to its former decision herein, and the judgment and order appealed from
are affirmed.
____________
62 Nev. 249, 249 (1944) Johnson v. Fong
ST. PATRICK JOHNSON, Appellant, v. HARRY LEE FONG, HARRY LEE, ROSE FONG,
JOE LA DUE, ABE KROLOFF, BOB KROLOFF, KROLOFF BROTHERS, a
Copartnership, LOUIS POISON SMITH, CLUB ALABAM, a Copartnership, CLUB
ALABAM, a Corporation, DOE ONE, DOE TWO, DOE THREE, DOE FOUR, DOE
FIVE, DOE & COMPANY, a Copartnership; and THE DOE COMPANY, a
Corporation, WEST SIDE CLUB, a Copartnership; WEST SIDE CLUB, a Corporation,
Respondents.
No. 3399
April 20, 1944. 147 P.(2d) 884.
1. Assault and Battery.
Complaint, alleging that certain defendants made an unlawful, etc., assault on plaintiff and recklessly
bruised and battered plaintiff, and that one of the named defendants was agent of other defendants and at
the time of committing the acts of violence was acting in scope of authority and course of employment,
stated a cause of action.
2. Assault and Battery.
In action for assault and battery, not only the actual assailant but also all others who aided, abetted, or
encouraged the wrongdoer are liable with him to an injured party, regardless of whether they were present
when the wrong was done.
3. Principal and Agent.
A principal is liable for a tort which an agent commits in the course of his employment even though the
principal is ignorant thereof.
4. Master and Servant.
A principal may be held liable to a third person where his agent, acting within scope of his real or
apparent authority, is guilty of an assault and battery.
5. Assault and Battery.
Where complaint for assault and battery alleged that one defendant was agent of other defendants and at
time of making alleged assault was acting within scope of his authority and in course of his employment,
plaintiff was entitled to relief for alleged injuries inflicted, from such defendants as he could show united or
cooperated in doing him the wrong.
6. Attachment.
Attachment proceedings are purely statutory and recourse to the statute must be had in ascertaining right
to writ of attachment. Comp. Laws, secs. 8703, 8704.
62 Nev. 249, 250 (1944) Johnson v. Fong
7. Attachment.
Statute authorizing issuance of writ of attachment where a defendant has criminally incurred obligation
for which suit has been commenced authorizes the issuance of writ of attachment in a suit for damages for
assault and battery. Comp. Laws, sec. 8703, subd. 9.
8. Attachment.
No particular language is required to be employed in setting out grounds for issuance of a writ of
attachment, but it is sufficient if the allegations substantially follow language of statute. Comp. Laws, secs.
8703, 8704.
9. Attachment.
In action for assault and battery, affidavit for attachment which closely followed language of statute was
sufficient. Comp. Laws, secs. 8703, 8704.
10. Attachment.
In action for assault and battery where writ of attachment was issued, affidavit of a defendant supporting
motion to dissolve attachment, and alleging that affiant was not connected with business or premises
involved when assault took place and that affiant purchased business and reopened place on certain date
after alleged assault, could not be considered as a third party claim and the issues could not be tried on
motion to dissolve attachment. Comp. Laws, secs. 8703, 8704.
Appeal from Eighth Judicial District Court, Clark County, George E. Marshall, Judge.
Action for assault and battery by St. Patrick Johnson against Harry Lee Fong and others.
From an order discharging writ of attachment, plaintiff appeals. Reversed.
Morse & Graves, of Las Vegas, for Appellant.
No appearance for Respondents.
OPINION
By the Court, Orr, C. J.:
On May 15, 1943, the appellant commenced an action in the district court of Clark
County, Nevada, asking damages of the defendants for an assault and battery alleged to have
been committed upon the person of appellant on April 30, 1943.
62 Nev. 249, 251 (1944) Johnson v. Fong
alleged to have been committed upon the person of appellant on April 30, 1943. On the same
date an affidavit of attachment and undertaking on attachment were filed in the office of the
county clerk of said county, and a writ of attachment issued. On said 15th day of May 1943
the said writ of attachment was executed by levying upon certain real and personal property
belonging to the defendants. On May 18, 1943, one of the defendants, Joe La Due, filed a
notice of motion, supported by his affidavit, giving notice of intention to move to discharge
the said attachment. Pursuant to said notice of motion a hearing was had and a motion to
dissolve the writ of attachment duly presented. The trial court at the time of the hearing of the
said motion had before it for consideration the complaint, affidavit in support of the issuance
of a writ of attachment, and the affidavit of Joe La Due heretofore referred to. On the 22d day
of May 1943 the trial court entered its order discharging said attachment, and this appeal is
from said order. Appellant filed an opening brief, but none has been filed on behalf of
respondents.
In the determination of this appeal we have the following questions to consider:
(1) Does the complaint filed in the district court state facts sufficiently to constitute a cause
of action against the defendants?; and (2) is the affidavit of appellant sufficient to warrant the
issuance of the writ of attachment?
The complaint, insofar as is material here, reads as follows:
III. That on the 30th day of April, 1943, defendants Harry Lee Fong, Harry Lee, Rose
Fong, Joe La Due, Abe Kroloff, Bob Kroloff, Kroloff Brothers, a copartnership, Club
Alabam, a copartnership, Club Alabam, a corporation, were the owners and operators of the
business known as the West Side Club, situated at or about the northeast corner of Jackson
and West Sixth Streets, in the City of Las Vegas, Clark County, State of Nevada, consisting
of a gaming casino, wherein there and then were conducted a crap game and other gaming
games and devices,
62 Nev. 249, 252 (1944) Johnson v. Fong
and then were conducted a crap game and other gaming games and devices, and that such
casino and games were open to the general public, and that said defendant also operated on
said premises, and in conjunction with said casino, a tavern for the sale of liquor and food to
the public.
IV. That on the 30th day of April, 1943, at about 9:30 o'clock P. M., of said day, at about
directly in front of the said West Side Club, situated at or about the northeast corner of
Jackson and West sixth Streets, in the City of Las Vegas, Clark County, Nevada, the
defendant Louis Poison Smith did make an unlawful, illegal, malicious, outrageous, wanton,
violent, unwarranted and oppressive assault upon this plaintiff and did recklessly, wantonly,
unlawfully, shamefully, oppressively, outrageously and maliciously beat, bruise and batter
plaintiff in a cruel, inhuman, outrageous and shameful manner, while plaintiff was peacefully
and lawfully going about his business.
V. That said Louis Poison Smith, one of the defendants above named, was then and there
the servant, agent and employee of said defendants, and each of them, and at the time of
committing said acts of violence, acting in his capacity as guard and bouncer for said West
Side Club, and the other defendants, herein, and that he was then and there acting under the
express, implied or incidental instructions and representing said defendants, and each of
them, and within the scope of his authority, within the course of his employment as such
guard and bouncer, and during the hours of employment. That said defendant, Louis Poison
Smith, is a strong and robust man, possessing great strength, and known to be a dangerous
and fighting man, and which was known to the defendants, and each of them, and that the
plaintiff was taken unawares by said violent attack and assault and battery, and unable to
prevent the same or defend himself.
VI. That the said unlawful, illegal, malicious, outrageous, wanton, violent, unwarranted
and oppressive assault upon this plaintiff,
62 Nev. 249, 253 (1944) Johnson v. Fong
assault upon this plaintiff, by defendant Louis Poison Smith, was incited, authorized,
procured and encouraged by the other defendants herein.
VII. That the said defendant, Louis Poison Smith, did grievously wound and injure
plaintiff, and did strike, beat, bruise, and batter plaintiff with a pistol held in his hands, and
with his hands, and did knock down and kick plaintiff, and did seriously injure the right eye
of plaintiff to an extent that it became necessary to remove said eye, and did otherwise
seriously injure and damage him and wilfully, unlawfully, wantonly, violently, oppressively
and maliciously bruise, batter and mistreat him, causing plaintiff to suffer great bodily pain,
injury and inconvenience, consisting of the following: The loss of his right eye, cuts and
bruises on his head, cut over his left eye about four inches long, and numerous lacerations all
over his body, so that plaintiff became totally incapacitsyed and was confined to a bed in a
hospital and at his home for six days subsequent to said assault and battery, and that plaintiff's
nervous system was thereby and therefrom shocked, shattered and impaired.
1-4. In our opinion the allegations of paragraphs V and VI are sufficient to state a cause of
action against the defendants. In an action of this character not only the actual assailant but
also all others who aided, abetted, or encouraged the wrongdoer are liable with him to an
injured party, whether they were present or not when the wrong was actually done. In the
complaint it is alleged that respondent Smith was the agent of the other named defendants and
at the time of making the alleged assault was acting within the scope of his authority and in
the course of his employment. As a matter of law, the principal is liable for a tort which an
agent commits in the course of his employment. This is so even though the principal be
ignorant thereof. And a principal may be held liable to a third person where his agent, acting
within the scope of his real or apparent authority, is guilty of an assault and battery. 2 Am.
62 Nev. 249, 254 (1944) Johnson v. Fong
Jur. p. 280, sec. 361, note 3; Ray v. Dyer, Tex. Civ. App., 20, S. W. 2d 328, at page 332;
Loeb v. Kimmerle, 215 Cal. 143, 9 P.2d 199, 203; Deevy v. Tassi, Cal. App., 122 P.2d 942;
Rand v. Butte Electric R. Co., 40 Mont. 398, 107 p. 87, 88, at page 91; Dornsife v. Ralston,
55 Or. 254, 106 P. 13, at page 15; Schafer v. Ostmann, 148 Mo. App. 644, 129 S. W. 63;
Shear v. Woodrick, 181 Wis. 30, 193 N. W. 968.
5. In this case the plaintiff is entitled to relief for the alleged injuries inflicted, from such
defendants as he can show united or cooperated in doing him the wrong. More v. Finger, 128
Cal. 313, 60 P. 933. In Herron v. Hughes, 25 Cal. 555, 560, it is said:
Where two or more are sued for a wrong done, it may be necessary to prove previous
combination in order to secure a joint recovery, but it is never necessary to allege it, and if
alleged it is not to be considered as the gist of the action. That lies in the wrongful and
damaging act done.
The above statement is quoted with approval in the cases of Bowman v. Wohlke, 166 Cal.
121, 135 P. 37, Ann. Cas. 1915b, 1011, and Loeb v. Kimmerle, 215 Cal. 143, 9 P.2d 199,
203. See, also, 2 C. J. p. 849, sec. 534, note 22; 3 C. J. S., Agency, sec. 255, note 31.
In the case of Kroger Grocery & Baking Co. v. Flora, 237 Ky. 191, 35 S. W. 2d 275, a
petition alleging no more than the complaint here was held sufficient.
The affidavit for attachment filed in the district court, in addition to certain formal parts,
reads as follows:
That the defendants are about to remove their property, beyond the jurisdiction of this
court, with the intent to defraud their creditors.
That the defendants are about to convert their property into money, with the intent to
place it beyond the reach of their creditors.
That the defendants are about to dispose of their property, or a part thereof, with the
intent to defraud their creditors.
62 Nev. 249, 255 (1944) Johnson v. Fong
That the defendants criminally incurred the obligation for which this suit has been
commenced.
The notice of motion filed by the respondents for the discharge of the attachment sets forth
the following grounds upon which they rely in support of the said motion:
That the Complaint in said action is a Complaint for damages for assault; that there is no
provision in the laws of the State of Nevada for the issuance of a Writ of Attachment based
upon damages for assault as set forth in the Complaint on file herein; That the Affidavit of
plaintiff in support of the issuance of the Writ of Attachment is insufficient to warrant the
issuance of said writ of attachment and that the said Writ of Attachment was improperly
issued;
That there is an insufficient allegation in the Affidavit for Attachment that the defendants
are about to remove their property, beyond the jurisdiction of this Court, with the intent to
defraud their creditors;
That there is an insufficient allegation in the Affidavit for Attachment that the defendants
are about to dispose of their property, or a part thereof, with the intent to defraud their
creditors;
That there is an insufficent allegation in the Affidavit for attachment that the defendants
criminally incurred the obligation for which this suit has been commenced.
6. Attachment proceedings are purely statutory, and recourse to the statutes must be had in
ascertaining the rights granted in this state. The procedure required in order to authorize
issuance of a writ of attachment is outlined in sections 8703 and 8704 N. C. L. 1929.
7. The main ground alleged in the notice of motion for the dissolution of the attachment is
that no provision exists in the laws of the State of Nevada for the issuance of a writ of
attachment in an action based upon damages for an assault. We do not agree. Subdivision 9 of
said section S703 provides, :
62 Nev. 249, 256 (1944) Johnson v. Fong
9 of said section 8703 provides, as one of the grounds for the issuance of a writ of
attachment, as follows:
Where a defendant has fraudulently or criminally contracted a debt or incurred the
obligation for which suit has been commenced.
This provision authorizes the issuance of a writ of attachment in a suit for damages for
assault and battery. 7 C. J. S., Attachment, p. 228, sec. 58, notes 46, 47 and 48; Creasser v.
Young, 31 Ohio St. 57; Kirk v. Whitaker, 22 Ohio St. 115; Sturdevant v. Tuttle, 22 Ohio St.
111.
It will be noted that the laws of the State of Ohio relative to the issuance of a writ of
attachment where the debt has been criminally contracted is the same as that of Nevada,
paragraph 10 of section 11819, General Code of Ohio, being identical with paragraph 9 of
section 8703 of Nevada Compiled Laws.
This court has held that in a suit for damages for forcible rape the issuance of an
attachment will lie under said subdivision 9. Kuehn v. Paroni, 20 Nev. 203, 19 P. 273. A
plaintiff is entitled to a writ of attachment where the ingredient of crime is present without
that of fraud. Montanari v. Haworth, 108 Ohio St. 8, 140 N. E. 319.
Here it appears that the plaintiff was injured as a result of a violation of the law and thus
arose alleged liability of the defendants. It follows, from the allegations of the complaint, that
the defendants criminally incurred the obligation.
8. No particular language is required to be employed in setting out grounds for issuance of
a writ; it is sufficient if the allegations substantially follow the language of the statute. 7 C. J.
S., Attachment, sec. 113, p. 278, note 56; Republic Truck Sales Corp. v. Peak, 194 Cal. 492,
229 P. 331; Wakefield & Co. v. Bell, 42 Wyo. 355, 294 P. 785. For instance, an allegation in
the affidavit that a claim is just satisfies the requirements of section 8704 N. C. L. 1929, in
that respect.
62 Nev. 249, 257 (1944) Johnson v. Fong
Millus v. Lowrey Bros., 63 Okl. 261, 164 P. 663, L. R. A. 1918b, 336.
9. An inspection of the allegations contained in the affidavit for attachment filed in this
case at once convinces that they closely follow the language of the statute.
10. In the affidavit of defendant Joe La Due supporting the motion to dissolve the
attachment, certain allegations appear to the effect that the said La Due was not connected
with the business or premises involved in said action when the assault took place, and that he
purchased the business and reopened the place on the 14th of May 1943 in partnership with
Bob Kroloff. However, the issues cannot be tried on a motion to dissolve the attachment, and
the affidavit of defendant La Due cannot be considered as a third party claim; the contents
thereof is defensive matter which should be set up in the main action.
From what has been said it follows that the writ of attachment was properly issued in this
case, and the order of the court dissolving it is reversed.
____________
62 Nev. 258, 258 (1944) State of Nevada v. Plunkett
THE STATE OF NEVADA, Respondent, v.
RAYMOND PLUNKETT, Appellant.
No. 3403
November 12, 1943. 142 P.(2d) 893.
On Motions
1. Criminal Law.
Where there is reasonable excuse for delay or failure in presenting bill of exceptions for settlement, court
should be liberal in securing to accused advantages given him by the law. Comp. Laws, secs. 11061, subd.
9, 11081, 11093, 11094.
2. Criminal Law.
Accused would be given opportunity to have bill of exceptions made part of record on appeal,
notwithstanding memorandum of errors and bill of exceptions were not filed within statutory time, where
accused was under sentence of death, was not responsible for delay, and had no funds, his attorney had
been ill and was unable to obtain stenographic help, and attorney who became associated with accused's
attorney lived some 300 miles away from place of trial. Comp. Laws, secs. 11061, subd. 9, 11081, 11093,
11094.
Appeal from Seventh Judicial District court, White Pine County; Harry N. Watson, Judge.
Raymond Plunkett was convicted of murder, and he appeals. On motion by the State of
Nevada for an order dismissing the appeal and vacating the order suspending execution of the
sentence, and on motion by defendant for an order granting him leave to file a memorandum
of errors and a bill of exceptions. State's motion denied, with directions.
C. A. Eddy, of Ely, and W. E. Baldy, of Carson City, for Appellant.
Alan Bible, Attorney-General, W. T. Mathews and Geo. P. Annand, Deputy
Attorneys-General, and John W. Bonner, District Attorney, of Ely, for Respondent.
OPINION
By the Court, Taber, J.:
On February 23, 1943, in the Seventh judicial district court, White Pine County, appellant
was convicted of first degree murder, and later sentenced to death.
62 Nev. 258, 259 (1944) State of Nevada v. Plunkett
of first degree murder, and later sentenced to death. His motion for a new trial was denied. On
April 10 he served and filed notice of appeal from the judgment and from the order denying a
new trial. On or about April 27 execution was suspended until the hearing and determination
of the appeal.
On October 5 respondent noticed a motion in this court for an order dismissing the appeal
and vacating the order suspending execution. On November 3 appellant moved this court for
an order granting him leave to file a memorandum of errors and a bill of exceptions.
Respondent's motion was based upon the ground of failure to prosecute the appeal, no
progress having been made in that respect since said 27th day of April. At the hearing of this
motion on November 2 respondent showed that appellant's attorney, Mr. C. A. Eddy, had
received, on or about May 1, a copy of the transcript of the proceedings and evidence had and
taken at the trial; that on September 1 the district court made an order giving appellant thirty
days in which to file a bill of exceptions and memorandum of errors; that no memorandum of
errors has been filed nor bill of exceptions filed or settled; and that on said 1st day of
September Mr. Eddy informed the trial court that attorney W. E. Baldy, of Carson City,
Nevada, was associated with him in this case.
Mr. Eddy testified in part at said hearing that he was appointed by the district court to
defend appellant, who was without funds; that he acted as his attorney at the trial, for which
he was paid, by order of court, one hundred dollars (the maximum amount allowed by the
statute); that for the last three years he had been afflicted with an illness which affects not
only certain digestive organs, but his eyes as well; that he had three or four attacks of this
illness during the trial, and has had four or five since May; that the only office help he was
able to procure since being appointed to defend this case was an inexperienced stenographer,
who after three months of training married and quit her employment;
62 Nev. 258, 260 (1944) State of Nevada v. Plunkett
her employment; that except as aforesaid he has been without help and has done everything
he could without funds; that since the trial he has received on $50, all of which he has used
for said stenographer, telephoning, and his trip to Carson City to resist this motion; that when
his attacks of illness come on, he is unable to attend to business for two or three days; that
when he first applied for a copy of the transcript he was refused because he had no funds; that
he asked the county commissioners to furnish money to pay for copies of the transcript, one
for himself, one for the attorney-general, and one for each of the supreme court justices; that
the chairman told him that they would give him nothingif they allowed anything it would
be to the district attorney; that thereafter he tried again to get a copy of the transcript, but
without avail; that shortly after the return of the district judge to Ely he made an order, about
September 1, that a copy be furnished defense counsel; that district judge Watson's statement
that witness had had a loan of a copy of the transcript long before September 1 is true, but it
was an uncertified copy which is now in Mr. Baldy's possession; that it is true that the
transcript was filed with the district court clerk some time prior to September 1; that during
the month of September witness had two attacks of illness which delayed him probably a
period of ten days; that he was unable to hire any help; that he had come to Carson City to
resist this motion without any compensation for his services.
On cross-examination Mr. Eddy testified that he had applied to the district judge for an
additional $100, but the application was not granted because that judge was of opinion that he
had no authority to do so; that in September witness asked leave to withdraw from the case so
he could go to Denver and consult a specialist about his eyes, but this request was later
withdrawn, witness stating to the trial judge that he would stay with the case and do the best
he could; that at this time Judge Watson told him that Mr. Baldy had asked for additional
time,
62 Nev. 258, 261 (1944) State of Nevada v. Plunkett
additional time, and also told him that if he insisted on withdrawing from the case he would
be permitted to do so; that he felt that if he insisted on withdrawing, he would probably be in
contempt of court; that he had never asked for any stipulation for additional time within
which to prepare and file a bill of exceptions; that from April 27 until September 1 no
progress was made for perfecting the appeal; that witness made no appearance in court about
October 1, and no bill of exceptions was submitted to the court for settlement until witness
offered a proposed bill on October 16; that the district judge in effect denied the offer and
suggested that the matter was now in the hands of the supreme court; that the bill was not
accepted at that time; that the official reporter may have filed the transcript with the clerk
about May 1, but she wanted $40 for a copy and witness didn't have the money to put up out
of his own pocket; that it wasn't until after he had appeared before the county commissioners,
thirty days or more after the transcript was completed, that the reporter lent him an unsigned
copy of the transcript; that he did not, at the time of offering the proposed bill of exceptions
to the district judge on October 16, represent to him that it was because of his illness that the
bill had not been offered; that Judge Watson knows witness' physical condition, as it was two
years ago that he had his first attack in court and Judge Watson sent him home, where he was
put under a doctor's care; that the district judge did not give witness an order for a transcript
until he returned to Ely from Carson City, where he had been holding court for Judge Guild.
In response to questions from members of the court, witness testified that he applied to
Judge Watson before September 1 for an order for a transcript, but the judge said at that time
that he couldn't do it; that the official reporter held off until September 1, when the court
made the order that the county pay the bill; that the reason for not making application about
October 1 for a further extension of time was witness's physical condition,
62 Nev. 258, 262 (1944) State of Nevada v. Plunkett
a further extension of time was witness's physical condition, and the further fact that Judge
Watson was away about that time and didn't come back until a little later; that witness has
never made any application to file the transcript out of time, but now moves the court for an
order permitting him to do so.
Mr. Baldy became associated with Mr. Eddy about one week before execution was stayed.
He presented the application for a stay and for a certificate of probable cause, which was
granted April 27. He states that he was employed by Mr. Plunkett; that he agreed with the
latter that if he would pay him $25 for the time being, he would appear and participate at the
time of the argument in the supreme court; that he knows Mr. Eddy has been handicapped at
different times by his illness.
Mr. Eddy's office is at Ely, where the trial was held. Mr. Baldy's office is at Carson City,
where this court sits. This distance between the two cities exceeds three hundred miles.
Section 11061 N. C. L. 1929 provides in part that when, in a district court criminal action,
judgment upon a conviction is rendered, the clerk shall enter the same in the minutes and
shall, within five days, annex together and file certain specified papers, which shall constitute
the record of the action. Subdivision 9 of said section provides that the bill of exceptions, if
any, when settled, shall be attached to such papers and become a part of the record.
Section 11081 N. C. L. 1929 relates to the settlement and certification of bills of
exceptions in criminal cases. It provides, among other things, that a proposed bill shall be
filed and served within ten days after the entry of the judgment. It also contains the following
provision: The time in this section mentioned for the performance of any act, upon
stipulation or good cause shown, may be shortened or extended.
When an appeal is taken in such an action, the clerk with whom the notice of appeal is
filed must,
62 Nev. 258, 263 (1944) State of Nevada v. Plunkett
with whom the notice of appeal is filed must, within ten days thereafter, transmit to the clerk
of the supreme court the notice of appeal and the record in the action. Sec. 11093 N. C. L.
1929.
Section 11094 N. C. L.1929 reads: If the appeal is irregular in any substantial particular,
but not otherwise, the appellate court may, on a day in term, on motion of the respondent,
upon five days' notice, with copies of the papers upon which the motion is founded, unless
the irregularity can be cured by amendment and is so cured, order the same to be dismissed.
This court may also, upon like motion, dismiss the appeal, if the return be not made as
provided in said sec. 11093, unless for good cause it shall enlarge the time for that purpose.
It was held in State v. Salge, 1 Nev. 455, that in criminal cases the time within which the
bill of exceptions is to be signed by the judge is merely directory. And in State v. Baker, 8
Nev. 141, it was held that the section then in effect requiring bills of exceptions in criminal
cases to be settled, signed, and filed within ten days after trial, unless further time be granted,
was directory.
Respondent contends that its motion should be granted because appellant has not complied
with the statutes relating to the perfecting of appeals in criminal cases; in brief, that there has
been unreasonable delay and laches on the part of the defendant and appellant in lodging his
appeal in this court. Appellant's contention is that the motion should be denied under the
extenuating circumstances.
1, 2. Where there is reasonable excuse for delay or failure in presenting a bill of exceptions
for settlement, the court should be liberal in securing to the accused the advantages given him
by the law. State v. Baker, supra, 8 Nev. at page 145. The showing made in behalf of
appellant in the instant case is not entirely satisfactory, and certainly counsel for the state are
not to be criticized for making the motion to dismiss;
62 Nev. 258, 264 (1944) State of Nevada v. Plunkett
criticized for making the motion to dismiss; on the contrary, they have shown at least as much
patience as could be reasonably expected of them. The trial court and its judge also appear to
have manifested an attitude of fairness and forbearance. On the other hand, we cannot be
unmindful of the fact that appellant is under sentence of death, and there is no suggestion that
any of the delay is attributable to him personally. We have also to consider appellant's lack of
funds, Mr. Eddy's illness, his inability to obtain stenographic help, and the fact that Mr. Baldy
would naturally look to Mr. Eddy to take care of such matters as required attention at Ely.
The court feels constrained, in view of all the circumstances, to afford appellant the
opportunity to have a bill of exceptions settled, signed, and filed and made a part of the
record on appeal.
Respondent's motion is denied, and the lower court is directed to allow appellant a
reasonably short time within which to file with the clerk of that court a proposed bill of
exceptions. When so filed, the district court is further directed, at its earliest convenience, to
settle the bill in accordance with the provisions of sec. 11081 N. C. L. 1929, and counsel for
appellant are directed to collaborate diligently with said court and with counsel for the state in
expediting such settlement, so that the bill of exceptions may be attached to the other papers
in the record of the action and filed in this court as a part of the record on appeal. In view of
the fact that there has already been too much delay, it is ordered that instead of the thirty days'
period allowed by rule II of this court for filing the transcript of the record on appeal, such
transcript shall, in this case, be filed within fifteen days after the bill of exceptions has been
settled. In the event that withdrawal of any papers in this case from the files of the clerk of
this court will facilitate the settlement of said bill of exceptions or the perfecting of the
appeal, application may be made to the court or one of its justices for an order permitting the
withdrawal of such papers.
62 Nev. 258, 265 (1944) State of Nevada v. Plunkett
On The Merits
May 9, 1944. 149 P.(2d) 101.
1. Constitutional Law.
A constitutional question will not be determined unless clearly involved and a decision
thereon is necessary.
2. Constitutional Law.
The statute authorizing magistrate to issue warrant of arrest on complaint setting forth
nature of charge and facts within knowledge, information, or belief of party making, it
sufficiently showing that offense triable within county has been committed, would be
presumed constitutional and not violative of constitutional provision that no warrant
shall issue but on probable cause supported by oath or affirmation, on theory that statute
authorizes complaint on information and belief, where complaint involved was sworn to
not only on information and belief but on knowledge, information and belief. Comp.
Laws, sec. 10728; Const. art 1, sec. 18.
3. Criminal Law.
The magistrate's jurisdiction to issue warrant of arrest in criminal proceeding initiated
by complaint before magistrate could not be questioned when accused failed by
appropriate proceeding to attack complaint prior to preliminary examination. Comp.
Laws, sec. 10728.
4. Criminal Law.
Constitutionality of statute authorizing magistrate to issue warrant of arrest on
complaint by proper affidavit setting forth nature of charge and facts within complaining
party's knowledge, information, or belief could have been drawn in question if complaint
initiating proceedings had been attacked prior to preliminary examination. Comp. Laws,
sec. 10728; Const. art. 1, sec. 18.
5. Criminal Law.
There is no provision in the Criminal Practice Act for a demurrer to a complaint filed
with a magistrate. Comp. Laws, sec. 10728.
6. Indictment and Information.
Where defendant was committed on charge of murder on evidence adduced at
preliminary examination, the information in district court was founded on such
commitment and not on complaint which initiated proceedings before magistrate, hence
any defects in such complaint became immaterial. Comp. Laws, sec. 10728.
7. Criminal Law.
Under statute providing that, if it appears from examination that public offense has
been committed and there is sufficient cause to believe defendant guilty thereof,
magistrate must order defendant held to answer thereto, and complaint initiating murder
case before magistrate which defendant claimed was fatally defective because sworn to
on information and belief,
62 Nev. 258, 266 (1944) State of Nevada v. Plunkett
claimed was fatally defective because sworn to on information and belief, court could
have held defendant to answer for any felony shown by evidence. Comp. Laws, secs.
10728, 10785.
8. Indictment and Information.
A preliminary examination having been held in accordance with statute and defendant
held to answer to charge of felony, any infirmity in complaint was of no consequence and
a proper foundation was made by the preliminary examination for filing of information in
district court. Comp. Laws, secs. 10728, 10785.
9. Criminal Law.
An objection that evidence taken at preliminary examination in murder case was
insufficient to show probable cause for committing defendant could not be raised by
motion or demurrer to information.
10. Homicide.
In prosecution against father for murder of five-months'-old child, evidence, including
testimony as to nature of wounds was sufficient to establish corpus delicti.
11. Homicide.
Physician's testimony as to nature of wounds on face of five-months'-old child found
dead, and evidence as to statements by child's father found with his wrist cut, and other
circumstances, were sufficient to sustain conviction of father for first degree murder.
12. Criminal Law.
Generally, physicians may give their opinions as to the cause, effect, and consequences
of wounds.
13. Criminal Law.
The corpus delicti, like fact of guilt, may be proved by circumstantial evidence.
14. Criminal Law.
In prosecution against father for murder of five-months'-old child, admitting testimony
tending to show that defendant attempted to commit suicide by cutting his wrist with a
razor was not error.
15. Criminal Law.
In prosecution against father for murder of infant, evidence that father was found near
body of dead child with wrist cut in apparent attempted suicide was admissible as part of
res gestae.
16. Homicide.
In prosecution against father for murder of five-months'-old child, testimony as to
father's indifference to child's welfare in leaving it alone for many hours at a time without
care and in sordid surroundings, father's manifestations of dislike for child, and physical
abuse thereof, was admissible on issue of malice and motive.
62 Nev. 258, 267 (1944) State of Nevada v. Plunkett
17. Homicide.
In prosecution against father for murder of five-months'-old child, voluntary statements,
oral and written, made by father not amounting to confessions, were admissible as
statements against interest without necessity of laying foundation required for
admission in evidence of a confession.
18. Homicide.
In prosecution against father for murder of five-months'-old child, statements made by
defendant when found, with wrists slashed with dead child were not inadmissible as
admissions against interest because of defendant's alleged mental weakness due to loss of
blood in view of physicians testimony that defendant was in complete command of
mental faculties when physician, who was among first to see defendant and who gave
him first aid, talked with him.
19. Criminal Law.
In prosecution for murder of five-months'-old child, refusal to grant defendant's motion
to strike testimony of witness who lived in apartment across hall from defendant that at
certain times she heard baby give three awful screams was not error, where no objection
was interposed to question eliciting such testimony and the motion was not made until
two more questions had been asked and answered and jury must have understood that
witness could not positively identify screams as coming from defendant's child.
20. Homicide.
In murder prosecution, excluding physicians testimony, tending to prove that the
injuries sustained by defendant in a previous accident might cause a recurrence or shock
leaving defendant in an irresponsible mental condition, was not error, since proposed
evidence would not prove that there was such a recurrence at time of homicide.
21. Homicide.
Any error in sustaining objection to permitting physician testifying for defendant in
murder case to testify as to probable effect of previous accidental injuries on defendant's
mental condition was made harmless by subsequent ruling by which witness was
permitted to answer question of substantially same tenor.
22. Homicide.
In murder prosecution involving defense that defendant was in a state of shock which
recurred from previous accidental injuries, refusal to permit physician, who treated
defendant for such injuries, to testify whether persons suffering such injuries and shock
were often left in condition in which that shock or other mental conditions recurred, was
not error where physician, who was one of first to see defendant after alleged homicide
and who talked with defendant at that time, testified that defendant appeared rational and
had complete command of his mental faculties.
62 Nev. 258, 268 (1944) State of Nevada v. Plunkett
23. Criminal Law.
In murder prosecution involving defense that at time of homicide defendant was in state
of mental shock, refusal to permit defendant's witness, who had met defendant only
twice, to testify whether defendant's appearance disclosed he had rational mental
capacity, was not error in absence of showing that her meetings with defendant were
other than casual.
24. Criminal Law.
In determining whether a witness is competent to testify as to a person's sanity because
of prior acquaintance, court must be satisfied that witness has had opportunity by
association and observation to form an opinion as to the sanity of such person, and the
extent and character of such evidence are within trial court's discretion.
25. Homicide.
In murder prosecution, in which court's instructions included statutory definitions of
manslaughter, voluntary and involuntary, refusal to instruct that under the law and
evidence jury was not justified in finding higher degree of offense than manslaughter was
not error, where there was no evidence tending to show manslaughter.
26. Criminal Law.
In murder prosecution, refusal of instruction that where evidence raises only mere
suspicion of guilt defendant should be acquitted was not error, where refused instruction
was sufficiently covered in statutory definition of reasonable doubt given to jury.
27. Homicide.
In prosecution against father for murder of five-months'-old child, evidence was
sufficient to take case to jury.
28. Homicide.
Instruction that, though express malice and passion may coexist and homicide be result
of both, express malice and irresistible passion, as defined by statute, cannot coexist, was
properly refused because there was no evidence of irresistible passion.
29. Homicide.
Instruction, in murder prosecution, that, where death is caused by accidental means and
without intent to kill in doing a lawful act, killing does not constitute a criminal offense
but is an excusable homicide, though stating correct abstract proposition of law, was
properly refused as not warranted by evidence.
30. Criminal Law.
Though absence of evidence of motive for commission of a crime is a circumstance in
favor of defendant, proof of motive is not essential where perpetration of crime has been
brought home to defendant.
62 Nev. 258, 269 (1944) State of Nevada v. Plunkett
Appeal from Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Raymond Plunkett was convicted of murder of the first degree and he appeals. Affirmed
with direction.
C. A. Eddy, of Ely, and W. E. Baldy, of Carson City, for Appellant.
Alan Bible, Attorney-General, W. T. Mathews and George P. Annand, Deputy
Attorneys-General, and John W. Bonner, District Attorney, of Ely, for Respondent.
OPINION
By the Court, Ducker, J.:
The defendant was convicted in the district court of White Pine County, of the crime of
murder of the first degree. The jury fixed the penalty at death. His appeal is from the
judgment and the order denying a new trial.
The criminal proceedings against him were initiated by a complaint filed in the justice
court of Ely Township No. 1, of said county, the formal part of which is as follows:
Before me this 14th day of December, A. D. 1942, personally appeared J. E. Orrock, in
the County of White Pine, State of Nevada, who being first duly sworn, complains and says:
That within his knowledge, information and belief, Raymond Plunkett * * * of Ely, White
Pine County, State of Nevada, on or about the 10th day of December, A. D. 1942, and before
the filing of this complaint, at Ely, in the County of White Pine, State of Nevada, did then and
there without authority of law, commit the crime of murder, in the following manner: * * *
On the complaint a warrant of arrest was issued on which the defendant was taken into
custody.
62 Nev. 258, 270 (1944) State of Nevada v. Plunkett
A demurrer to this complaint, for lack of jurisdiction of the defendant and of facts
sufficient to constitute a crime, was overruled, a preliminary examination was had, and the
defendant held to answer. Defendant moved, in the district court, to quash the information
filed against him upon the ground that the justice court did not have jurisdiction to hold him
to answer because the complaint therein was made on information and belief and not upon the
positive knowledge of the complainant, and also because the evidence adduced in the justice
court did not show a crime had been committed, or that there was probable cause to believe
the defendant guilty of a crime. A demurrer to the information was also filed on the same and
other grounds. The motion was denied and the demurrer overruled. Defendant now contends
on this appeal, that all proceedings in the district court were null and void by reason of this
claimed defect of the complaint, and because of insufficient evidence to hold the defendant to
answer.
1, 2. It will be seen that the complaint conforms to the requirement in sec. 10728 N. C. L.
that if a complaint by proper affidavit, setting forth the nature of the charge, and the facts
within the knowledge, information, or belief of the party making the same, is filed with the
magistrate, and it sufficiently appears therefrom that an offense has been committed by some
person known or unknown to the affiant, triable within the county, the magistrate may issue a
warrant of arrest.
The appellant contends that this statute, insofar as it authorizes a complaint on information
and belief, is unconstitutional, in that it runs counter to the search and seizure provision of the
state constitution, which provides that no warrant shall issue but on probable cause
supported by oath or affirmation * * *. Article I, section 18, of the Constitution of Nevada.
We do not think that a constitutional question is involved in this case. It is well settled that
a constitutional question will not be determined unless clearly involved,
62 Nev. 258, 271 (1944) State of Nevada v. Plunkett
involved, and a decision thereon is necessary to a determination of the case. State ex rel.
Adams v. Adams, 55 Nev. 346, 34 P. 2d 1074. Unless such necessity arises the statute
challenged will be presumed to be constitutional.
3-6. The complaint was not sworn to on information and belief merely, but on knowledge,
information, and belief. The crime of murder charged against defendant was set out therein by
positive and direct allegations of fact. However, if the complaint were deficient in the respect
claimed, it would now be immaterial. Jurisdiction of the magistrate to issue the warrant of
arrest was beyond question when the defendant failed by appropriate proceeding to attack the
complaint prior to the preliminary examination. Had a proceeding of this character been
pursued by defendant while held under the warrant of arrest, the constitutionality of said sec.
10728 could have been drawn in question. Ex parte Dimmig, 74 Cal. 164, 15 P. 619. His
demurrer to the complaint in the justice court was not such a proceeding. There is no
provision in the criminal practice act for a demurrer to a complaint filed with a magistrate.
The defendant was committed on the evidence adduced at the preliminary examination. The
information in the district court is founded on the commitment and not in any way on the
complaint.
In California the practice concerning preliminary examination is substantially the same as
ours, except that the proviso under which the complaint was filed in the justice court does not
appear in the California Statute. The supreme court of that state, in an early decision,
announced the principle which we believe is controlling here. People v. Velarde, 59 Cal. 457.
In that case the defendant moved the court below to set aside the information, because the
affidavit upon which the warrant of arrest was issued was not sufficient to give the court
issuing it jurisdiction. The higher court said:
The motion was properly denied. The object of the statute in providing for the issuance
of a warrant of arrest,
62 Nev. 258, 272 (1944) State of Nevada v. Plunkett
statute in providing for the issuance of a warrant of arrest, is, that the defendant may be
brought before the committing magistrate, and when he is once there, and an examination of
the case is had in pursuance of the terms of the statute, and the defendant is held to answer, a
foundation is laid for the filing of an information by the District Attorney. The regularity of
the proceeding by information did not therefore depend in any manner upon the affidavit on
which the warrant of arrest was issued, and had no connection with it.
See People v. Wheeler, 65 Cal. 77, 2 P. 892.
In a later case of People v. Staples, 91 Cal. 23, 27 P. 523, the court said:
But when a prisoner has been examined, and evidence adduced sufficient to justify the
magistrate in holding him to answer on a charge of felony, the information in the warrant of
arrest, if any there be, ceases to be of any consequence, since he is thereafter held under the
commitment, which of itself authorizes the filing of an information. The regularity of the
information does not depend on the complaint, but upon the order holding the defendant to
answer.
The court further said:
It is the duty of the magistrate to hold the defendant to answer for the offense proved,
whatever may have been the offense charged.
That this is so here, is obvious from the provisions of sec. 10785, which provides:
If, however, it appears from the examination that a public offense has been committed,
and there is sufficient cause to believe the defendant guilty thereof, the magistrate must make
or indorse on the depositions and statement, an order signed by him to the following effect: It
appearing to me by the within depositions and statement (if any), that the offense herein
named (or any other offense according to the fact, stating generally the nature thereof) has
been committed, and that there is sufficient cause to believe the within named A. B. guilty
thereof, I order that he be held to answer the same.'"
62 Nev. 258, 273 (1944) State of Nevada v. Plunkett
A. B. guilty thereof, I order that he be held to answer the same.'
7. Under this statute the complaint which defendant claims is so fatally defective as to
have deprived both the magistrate and the district court of jurisdiction by reason of its being
sworn to on information and belief, the court could have held defendant to answer for any
felony shown by the evidence. People v. Staples, supra; People v. Lee Look, 143 Cal. 216, 76
P. 1028; People v. Storke, 39 Cal. App. 633, 179 P. 527.
Defendant concedes that the California cases are authority for the principle we deem
applicable here, but he asserts that they have been overruled on the point in People v.
Howard, 111 Cal. 655, 44 P. 342. This is true, but People v. Howard, as well as People v.
Christian, 101 Cal. 471, 35 P. 1043, which the former case stressed as an authority of
persuasive quality, was in turn overruled by People v. Look, 143 Cal. 216, 76 P. 1028, which
held that the fact that a complaint before a magistrate fails to charge an offense, is of no
consequence and will not warrant setting aside the information, where the defendant has been
properly committed after a hearing at which evidence was introduced. The court cited to the
ruling a number of cases of the California Supreme Court, including People v. Velarde, supra;
People v. Wheeler, supra; People v. Staples, supra; People v. Dolan, 96 Cal. 315, 31 P. 107,
and People v. Cole, 127 Cal. 545, 59 P. 984.
Quoting from People v. Velarde, supra, as we have, the court said [143 Cal. 216, 76 P.
1029]:
If there be anything inconsistent with these views in the two department cases of People
v. Christian, 101 Cal. 471, 35 P. 1043, and People v. Howard, 111 Cal. 655, 44 P. 342, cited
by appellant, they must be considered, so far as they are thus inconsistent, as overruled by the
other cases above cited.
By the same token the case of the United States v. Collins, D. C., 79 F. 65, cited by
defendant, construing the California Code and following People v. Christian, supra, and
People v.
62 Nev. 258, 274 (1944) State of Nevada v. Plunkett
the California Code and following People v. Christian, supra, and People v. Howard, supra,
went by the board. See also People v. Storke, 39 Cal. App. 633, 179 P. 527, in line with
People v. Lee Look, supra.
8, 9. We have read all the other cases presented by defendant and find nothing in them that
causes us to doubt the correctness of the conclusion we have reached, that a preliminary
examination having been had in accordance with the terms of the statute, and the defendant
held to answer for a public offense, to-wit, a felony, any infirmity in the complaint, if there be
any, is of no consequence, and a proper foundation was laid for the filing of the information.
The objection that the evidence taken at the preliminary examination was not sufficient to
show probable cause for committing defendant, could not be raised by motion or demurrer to
the information. Both were properly disposed of by the ruling of the lower court.
10, 11. Other assignments of error require a statement of facts. The evidence discloses that
the deceased was a child of defendant and of the age of about five months. On December 10,
1942, the date of its death, and for some time prior thereto, defendant and his wife were
living in an apartment in what was known as the Renshaw Hotel in Ely, which they had under
lease. Across the hall from their apartment, in a room called No. 1 Apartment, lived a woman
by the name of Mrs. D. A. Prew. The building was a wooden structure with thin walls, and
sounds made in defendant's apartment could be clearly heard in Mrs. Prew's room. Defendant
was a miner and working in Kimberly, a small mining town in White Pine County, near Ely.
His wife worked in a laundry in Ely. Often when the parents were away the child was left in
their apartment alone. On several of these occasions Mrs. Prew, when she heard the child
crying, had gone in and taken care of its immediate wants. On the day of its death it had been
left alone, and the lady hearing it crying during the forenoon, went in and found it lying on a
cot. The child was wet and mussed and cold and hungry.
62 Nev. 258, 275 (1944) State of Nevada v. Plunkett
child was wet and mussed and cold and hungry. She ministered to its needs, and returning
around 12:30 p. m. saw it asleep. Hearing it crying again somewhere around 1:45 she
returned and cared for it as she had done earlier. About 2:35 she saw defendant come into the
building. He went into the apartment where the child was and shut the door. Two of the
roomers in the hotel saw him in his apartment about 3:30 p. m. and one of them talked with
him. Around 4 o'clock in the afternoon Mrs. Prew and a lady visiting her in her room heard a
baby scream three times in defendant's apartment. About 5 o'clock in the afternoon his wife
came from her work and went into the apartment. He opened the door and let her in. Near the
hour of 7 o'clock she was heard screaming in the hall. Shortly afterwards several persons,
including a doctor and the sheriff, entered the apartment. They came upon a gruesome scene
indicating a patricide and attempted suicide. The baby was found lying on a cot, dead. The
body was in a badly bruised condition. Defendant was lying on a bed with an incised wound
in his left wrist, bleeding excessively. He was conscious but extremely weak from loss of
blood, and near him was a black-handled razor. To one of the witnesses defendant asked what
had happened and said he didn't know, I must have been crazy, everything went black. No
one else had been in defendant's apartment from the time he arrived, other than himself, wife
and child, until the first of said witnesses entered.
At the hospital on the same evening in the presence of the district attorney (Mr. Bonner)
and the sheriff, defendant made the following statement, as testified to by the sheriff:
He said he thought he had been working too hard. That he had been drinking. That he had
had five or six drinks, and that he must have went kind of crazy. That everything had went
kind of blackhad blackened out. He said the next thing he met three boys who tried to rent
an apartment, and at that time everything went black on him and the next thing he saw was
his baby,
62 Nev. 258, 276 (1944) State of Nevada v. Plunkett
black on him and the next thing he saw was his baby, and he said, I must have went crazy.'
The baby was dead about 4 o'clock. He said he studied and figured how such a thing could
have happened. At approximately 5 o'clock his wife came home and he didn't tell her
anything. He said, I couldn't figure how it happened.' That is about all I can remember.
Q. Did he make any reference to the wound which he had inflicted on his wrist at that
time? A. Yes, he did, He said, That is why I figured I was not fit to live. If I did such a thing
I figured I was not fit to live.'
The defendant was taken into custody by the sheriff, removed to a hospital and thence to
the county jail. A few days later, in the county jail, in the presence of the district attorney and
a deputy sheriff, defendant made a statement which was reduced to writing, and signed by
him. The statement is rather long and somewhat rambling and therefore will not be set out.
Suffice it to say, it was of the same general tenor of the statement made in the hospital, except
it did not contain the expressions: That is why I figured I was not fit to live. If I did such a
thing I was not fit to live. It did, however, contain the following, which was not in the
former: I had no intention of doing it. I would cut off both arms right now if it would take it
back.
Dr. G. O. Bradley testified on the part of the state. He was shown to be a practicing
physician and surgeon. He was summoned to the apartment shortly after the death of the child
was discovered, reaching the scene about 7:30 p. m. He found the baby on a cot dead, and
made an examination of the body. He described to the jury the nature of the various bruises
and other injuries on the head, particularly on the face and neck, and gave it as his opinion
that the child had been dead between three and four hours. It was quite likely, he stated, that
the child expired around 3:30 in the afternoon. In the doctor's opinion the injuries caused the
death of the child and were inflicted by the hands of some one.
The foregoing statement of the evidence, while not exhaustive,
62 Nev. 258, 277 (1944) State of Nevada v. Plunkett
exhaustive, is sufficient to overthrow defendant's contention that the corpus delicti was not
proven, or his guilt of first degree murder established.
It is earnestly insisted that Dr. Bradley's testimony was not sufficient to prove the corpus
delicti. The following is a summary of his testimony on this point:
There were various bruises on the baby's neck and face and the lips were swollen and
edematous. The alae-nasi, the attachment of the nose to the face was lifted up and broken
loose from their attachments to the face. The right eye, the soft tissue surrounding the right
eye, was swollen and edematousblack and blue. There was a large bruise on the left side of
the face at the angle of the jaw extending up and down the cheek. There were bruises also on
the right side of the face corresponding to those on the left, and additional bruises extending
up on the forehead from the cheek up into the hair of the child's head. There were contusions
about the neck but no abrasions or lacerations or blood. The only blood that was observable
had come from the broken area of the nose where it is attached to the face, as well as from the
naresthat is from the nasal cavities. There had been no bleeding from the mouth or from the
ears. Nothing except from the nose. The baby was dead and cold. * * *
Q. From your testimony, which you have just given, and based upon reasonable medical
certainty, do you have an opinion as to what might have caused the death of the child? A.
From the examination and appearance of the child's face, it occurred to me that a large hand
could have been in that manner (indicating hand spread over face with fingers spread and
extended) been placed on the baby's face. * * * From a careful examination of the child's face
I cannot see how the injury could occur from an accidental injury, for instance, a fall. * * * It
was more or less apparent that there had been some force exerted on the baby's face in a
squeezing or vice-like mechanism that would produce sufficient violence on each side of
the face as well as on the top of the face,
62 Nev. 258, 278 (1944) State of Nevada v. Plunkett
produce sufficient violence on each side of the face as well as on the top of the face, and
extend the tissues backward and upward with sufficient force to cause these injuries which
would show so plainly in three or four, or three and a half hours after the child had received
the injuries, so that is my impression and opinion. * * *
Q. About how high was that cot? A. I imagine thirty inches.
Q. Basing your answer upon reasonable medical certainty, would it have been possible
for the baby to have sustained such injuries by falling out of the cot on to the floor? A. No.
On cross examination the witness was questioned, and answered as follows:
Q. How long, do you think, from your examination, the child lived after the injuries were
inflicted? A. Not very long.
Q. Possibly thirty minutes to an hour? A. No, it didn't live longer than thirty minutes. I
would say that was the limit.
12. The competency of the witness to testify as he did is not questioned, and we think from
his testimony, the jury could have reasonably concluded, as they evidently did, that the child's
death was the result of the injuries shown and were caused by the hands of some person.
True, the doctor gave only his opinion and thought as to the cause of death and the means
employed, but the thought expressed was clearly his judgment. People v. Durrant, 116 Cal.
179, 48 P. 75. As stated in State v. Buralli, 27 Nev. 41, 71 p. 532, 535:
It is generally held that physicians may give their opinion as to the cause, effect, and
consequences of wounds.
13. The corpus delicti, like the fact of guilt, may be proven by circumstantial evidence.
State v. Tranmer, 39 Nev. 142, 154 P. 80; State v. White, 52 Nev. 235, 285 P. 503.
62 Nev. 258, 279 (1944) State of Nevada v. Plunkett
The suggestion that the injuries may have resulted from a fall finds no support in the
testimony.
The evidence is clearly sufficient to sustain the determination that the child came to its
death on the afternoon of December 10th at the hands of defendant in a cruel and unnatural
manner. The three screams heard by the women denoted it mortal agony. One of them
described the screams as terrible and the other as awful. The nature of the injuries on the
body bear mute evidence of the torture to which the child was subjected by an unnatural
parent. As it clearly appears from the legal and substantial evidence set forth that the verdict
and judgment find support therein, we have deemed it of no profit here to summarize or
comment on the evidence introduced and relied on as a defense. Suffice it to say that it was
not of a character calculated to create a reasonable doubt in the minds of reasonable men as to
defendant's guilt.
We will now examine rulings made by the court as to the admission and rejection of
evidence claimed by the defendant to be erroneous, as well as the rulings refusing certain
instructions offered by him.
14. Objection to testimony which tended to show that defendant attempted to commit
suicide by cutting his wrist with a razor, was overruled by the court. There was no error in
this. The fact that an accused attempts to commit suicide, or evidence sufficient to justify
such an inference, is always proper for the jury to consider in connection with the other
evidence in the case. People v. Duncan, 261 Ill. 339, 103 N. E. 1043; State v. Jaggers, 71 N.
J. L. 281, 58 A. 1014, 108 Am. St. Rep. 746; State v. Painter, 329 Mo. 314, 44 S. W. 2d 79;
State v. Lawrence, 196 N. C. 562, 146 S. E. 395; People v. Barrett, 22 Cal. App. 780, 136 P.
520; State v. Blancett, 24 N. M. 433, 174 P. 207; 1 Wharton's Criminal Evidence, 11th ed.
412.
15. The authorities quite generally agree that attempt at suicide by an accused is akin to
flight, and admissible on the same principle.
62 Nev. 258, 280 (1944) State of Nevada v. Plunkett
admissible on the same principle. 20 Am. Jur. 272. True, in this case the defendant had not
been charged with the crime at the time of the attempt. The accusation, however, followed so
hard upon the act as to leave no room for refinement of principle on that account. Indeed the
act at self-destruction was so clearly connected with the killing of the child as to constitute it
a part of the res gestae, and admissible for that reason also. Murder and suicide, or attempted
suicide, are twin crimes of such frequent occurrence as to establish in the common mind a
connection of enormous guilt.
Defendant pins his reliance on State v. Coudotte, 7 N. D. 109, 72 N. W. 913, but this is a
lone case which is distinguishable from the generality of authority on the point of attempted
suicide by an accused being a circumstance in a homicide case proper to be considered by the
jury in connection with all the evidence. While we do not agree with all the reasoning of the
court in that case, we are not prepared to say that under its particular facts the conclusion
reached by the court that the attempt at suicide by the accused, a Sioux Indian, was
inadmissible, was wrong. There were no other facts or circumstances with which it could be
considered by the jury as tending to show guilt, and to be given such weight, or no weight, as
the jury might determine. It was sought to be proven as an isolated circumstance sufficient in
itself to furnish the corroboration of the testimony of an accomplice, required by the statute,
as to the guilt of an accused. The court held that it was not enough and reversed the case. As
pointed out in State v. Painter [329 Mo. 314, 44 S. W. 2d 82], in reviewing the Coudotte
case:
The court was not called upon to and did not decide whether or not, had there been
otherwise a submissible case made, the attempt to commit suicide might have been proved as
a circumstance for the consideration of the jury.
However, we think the ruling should not be extended beyond such or similar facts.
Moreover, also unlike the instant case,
62 Nev. 258, 281 (1944) State of Nevada v. Plunkett
instant case, there was evidence in the North Dakota case tending to show that the attempt
was unconnected with the killing, and due to a trait of the Sioux Indian nature, particularly of
that period (1897), which could not brook restraint. Commenting on the environment, the
court said [7 N. D. 109, 72 N. W. 916]:
This defendant, an Indian, finds himself torn from his tribal surroundings, and
incarcerated in a prison of those whom he regards as his hereditary enemies. He is charged
with the murder of a white man. He believes himself to be absolutely in the hands of those
who hate his race. He is ignorant of our laws and our court proceedings. * * * Seeing only the
blackness of darkness ahead of him and that irrespective of his innocence or guilt, would it be
strange that his nerve should fail him, and he seek to shut out the hated picture by severing
his hold upon life? Moreover, he comes of a race whose untamed natures cannot brook
confinement.
A witness in the case who had spent practically his entire life with the Sioux Indians, and
who spoke their language and understood every phase of their character, the court said,
testified: I have often known, if an Indian is put in the guard house for any little offense, I
have known them to cut themselves, and try to commit suicide in many different ways. That
seems to be a predisposition among them, in confinement. I have frequently known of Indians
attempting suicide because they were in confinement. I was present at a conversation with
Coudotte in the Emmons County jail. He spoke in my presence in relation to his attempt to
commit suicide. He said he could not stand to be confined, and he would just as soon be dead
as to * * * stay in there and stand the confinement.
We have commented on the Coudotte case at some length because it is the only case cited
by defendant on the point, and to make clear our opinion that it stands in a class by itself.
There was no error in the ruling of the lower court in the instant case in admitting the
evidence tending to show an attempt at suicide.
62 Nev. 258, 282 (1944) State of Nevada v. Plunkett
in the instant case in admitting the evidence tending to show an attempt at suicide.
16. Objections were taken to the testimony of several witnesses as to the conduct of the
defendant in regard to the child, namely, indifference to its welfare in leaving it alone for
hours at a time in the sordid surroundings shown by the evidence, manifestations of dislike
for it, not only by such neglect, but in preventing others from giving it attention, and in
slapping and spanking it on occasions. We think the feeling of the defendant for the child, as
this testimony on the whole tended to show, was proper for the jury to consider, as bearing in
some slight degree on malice and motive. State v. Larkin, 11 Nev. 314; People v. Barthleman,
120 Cal. 7, 8, 52 P. 112. Besides, much of the testimony of the above character was admitted
without objection.
17-19. There was no error in admitting in evidence the statements made by the defendant,
both oral and written. They did not amount to confessions, but were statements against
interest. Consequently the foundation required for the admission in evidence of a confession
was not necessary. State v. Behiter, 55 Nev. 236, 29 P. 2d 1000; People v. Weber, 149 Cal.
325, 86 P. 671. However, it appears that no inducements were made or duress applied to the
defendant. The statements were quite voluntary. In none of these statements did he admit the
killing, nor did he deny it. The idea sought to be imparted was that something went wrong
with his mind and he didn't remember what happened. There is no merit in the contention that
the statements were inadmissible on account of his mental weakness due to the loss of blood
from the wounds he inflicted on himself with the razor. Dr. Bradley, who was among the first
to see defendant thereafter, and who gave him first aid treatment, testified that he talked with
him and that he was completely in command of his mental faculties. The ruling of the court in
refusing to grant defendant's motion to strike the testimony of Mrs.
62 Nev. 258, 283 (1944) State of Nevada v. Plunkett
the testimony of Mrs. Prew, in which she stated, About four o'clocka quarter to fourI
heard the baby give three awful screams, the last one was not as loud as the first two, is
assigned as error. It was not an erroneous ruling: No objection was interposed to the question
that elicited this testimony, and the motion was belated as two more questions had been asked
and answered before it was made. Besides, as the baby was across the hall and in another
room, the jury must have understood that Mrs. Prew could not positively identify the screams
as coming from the Plunkett child. That was a matter of inference for the jury.
20-22. Defendant complains that the court committed error in sustaining the objection of
the district attorney to the following question asked of Dr. Bradley, a witness for defendant:
You will state whether or not people that have injuries and shock such as defendant had on
the 17th day of May 1942 are often left in a condition in which that shock or other mental
conditions recur as a result of that shock?
Before the question was propounded the doctor had testified that on May 17, 1942, he had
treated defendant for wounds received in an automobile accident, consisting of abrasions and
contusions about the chest, a wound on the bridge of the nose, and a fracture of the nasal
bone. The witness had also testified that the defendant was in some degree of shock but not a
deep degree; and that his treatment extended over a period of ten days, after which he was
released without permanent disability, except a scar on the right aspect of the bridge of the
nose.
It is contended that the evidence proposed to be elicited by this question would tend to
prove that the injuries sustained by defendant might cause a recurrence of shock which would
leave him in a mental condition wherein he would not be responsible for his acts. The
proposition is highly speculative and, conceding without deciding, that the witness had been
qualified as an expert on insanity, the proposed evidence would have no tendency to prove
that there was such a recurrence at the time of the killing.
62 Nev. 258, 284 (1944) State of Nevada v. Plunkett
no tendency to prove that there was such a recurrence at the time of the killing. No offer was
made to connect it up in this manner. Besides, if there had been error in the ruling, it was
rendered harmless by the subsequent ruling of the court by which the witness was permitted
to answer a question of substantially the same tenor. And for the further reason this witness,
who, as previously stated, was one of the first to see defendant on the evening of December
10, and talked with him at that time, testified concerning his mental condition, as follows:
Q. From that conversation did he appear to be rational? A. Rational.
Q. Would you say, in your opinion, whether he had lost his mental faculties at that time?
A. No, he was completely in command of his mental faculties, although the reactions of
mentality were retarded, and he made his replies with effort.
Q. Were his replies intelligent? A. Quite coherent.
23, 24. It is insisted that it was error to sustain the state's objection to the following
question asked of Mazie Chester, a witness for defendant: Q. I ask you to state, from your
acquaintance with him, as to his appearance of having rational mental capacity? There was
no improper exercise of discretion in this ruling. The witness has met defendant only twice
and there is nothing to show that the meetings were otherwise than casual, without
opportunity for such observation as would have enabled the witness to form any judgment of
value as to his mental condition. As said in State v. Lewis, 20 Nev. 333, 22 P. 241, 246: The
court must be satisfied that witness has had opportunity, by association and observation, to
form an opinion as to the sanity of the person in reference to whom he is to speak; but as to
the extent and character of the evidence, no better rule can be established than to leave it
within the discretion of the court.
Many exceptions have been noted in defendant's opening brief as to the rulings of the
court in the trial of the cause.
62 Nev. 258, 285 (1944) State of Nevada v. Plunkett
opening brief as to the rulings of the court in the trial of the cause. By particular mention and
discussion of some, it must not be thought that we have overlooked any. All have been
considered, as the gravity of the case has warranted.
25. In the ruling of the court upon the instructions, six errors are asserted. The first is as to
defendant's proposed instruction number 1. The court was requested to instruct the jury that
under the law and the evidence they would not be justified in finding a verdict for any higher
grade of offense than manslaughter. The instruction was properly overruled. The court gave
to the jury the statutory definitions of manslaughter, voluntary and involuntary, but there was
no evidence tending to show manslaughter. Defendant's statements by themselves refute the
suggestion.
26. The second is to his proposed instruction number 2, that where evidence raises only a
mere suspicion of guilt the defendant should be acquitted. There was no error in the ruling
refusing this instruction. It was sufficiently covered in the statutory definition of reasonable
doubt which the court gave the jury.
27. The third assertion of error is to defendant's proposed instruction number 3, as follows:
The court instructs the jury that there is no evidence on which to find the defendant guilty of
any crime and that by your verdict you must find the defendant not guilty. The refusal of the
court to give it was warranted by the evidence.
The fourth is to defendant's proposed instruction number 4 to the effect that any attempt to
commit suicide was not evidence tending to prove the guilt of defendant. What we have
heretofore said is the law in that respect and disposes of this contention.
28. The fifth claim of error goes to defendant's proposed instruction number 5, which is as
follows: The court instructs the jury that while express malice and passion may co-exist, and
a homicide be the result of both,
62 Nev. 258, 286 (1944) State of Nevada v. Plunkett
both, express malice and irresistible passion, as defined by statute, cannot co-exist;
premeditation and deliberation being in express malice and wanting in irresistible passion.
The instruction was properly refused, because there was no evidence of irresistible passion in
the case. The principle of the instruction, as recognized in the case of State v. Salgado, 38
Nev. 413, 150 P. 764, has no application here.
29. The sixth and last assertion of error is levelled at the court's ruling in refusing
defendant's proposed instruction number 6, which reads: The court instructs the jury that
where a death is caused by accidental means and without any intent so to do, in doing a
lawful act such killing does not constitute a criminal offense and is not punishable as a crime,
and constitutes an excusable homicide. As an abstract proposition of law the requested
instruction is correct, but there was no evidence in the case warranting such an instruction.
The motion for a new trial was properly denied.
30. No error, of any consequence, at least, appears. The defendant was given a fair and
impartial trial. The verdict of the jury expressed the only rational conclusion deducible from
the facts of the case. True, the evidence tending to show motive is very slight, but if there
were none at all it would be of no importance, under the proof. As said in People v. Durrant,
116 Cal. 179, 48 P. 75. 82:
Where the perpetration of a crime has been brought home to a defendant, the motive for
its commission becomes unimportant. Evidence of motive is sometimes of assistance in
removing doubt, and completing proof which might otherwise be unsatisfactory; and that
motive may either be shown by positive evidence, or gleaned from the facts and surroundings
of the act. The motive then becomes a circumstance, to be considered by the jury, and its
absence is equally a circumstance in favor of the accused, to be given such weight as it deems
proper. But proof of motive is never indispensable to a conviction. * * * The wellsprings of
human conduct are infinite, and infinitely obscure.
62 Nev. 258, 287 (1944) State of Nevada v. Plunkett
of human conduct are infinite, and infinitely obscure. An act may owe its performance to
complex and multitudinous promptings. Who
knows each chord its various tone,
Each string its various bias.'?
Or the deed may be due to a single dominant impulse.
It is not our province, therefore, to inquire as to the motive that prompted this enormous
crime.
The judgment and order appealed from are now 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.
____________
62 Nev. 287, 287 (1944) State v. Harvey
THE STATE OF NEVADA, Respondent, v. OLIVER
GEORGE HARVEY, Appellant.
No. 3404
May 9, 1944. 148 P. (2d) 820.
1. Criminal Law.
Objection to competency of a juror cannot be taken by accused for first time after verdict and relied upon
as ground of motion for new trial. Comp. Laws, sec. 10940, 11032.
2. Jury.
The constitution secures accused person the right to be tried by impartial jury, and legislature has no right
to deprive him of such right, but it can regulate its administration by determining and declaring in a
reasonable way when and how a juror's partiality shall be ascertained.
3. Criminal Law.
Where accused for first time in his motion for new trial challenged juror because of previous conviction
of felony, motion for new trial was properly denied, since challenge was not timely made, notwithstanding
that such fact was not known to accused until after verdict, where juror did not endeavor to conceal
disqualification. Comp. Laws secs. 10940, 11032.
4. Assault and Battery.
In prosecution for assault with intent to inflict bodily injury, special instruction specifying offense was
proper, notwithstanding it contained no description of deadly weapon mentioned in it,
62 Nev. 287, 288 (1944) State v. Harvey
mentioned in it, where weapon was described in the information, and other instructions properly informed
jury that it was for them to determine from character, size, and weight and manner of its use as shown by
evidence whether weapon was deadly.
5. Criminal Law.
An instruction that, to convict of assault with intent to inflict a bodily injury, jury must find beyond a
reasonable doubt that there was no considerable provocation for assault, or that the circumstances thereof
showed an abandoned and malignant heart, was not prejudicial to defendant because the alternative matter
was not alleged in the information, since both parts of the instruction were negative qualifications of the
offense and were not essential to the information or verdict.
6. Criminal Law.
If defendant desired instructions on matters complained of by him, he should have offered them.
7. Criminal Law.
In prosecution for assault with intent to inflict bodily injury, it was not misleading to give special
instruction of statutory definition of assault.
8. Criminal Law.
In prosecution for assault with intent to inflict bodily harm, instruction, that to find accused guilty jury
had to believe beyond reasonable doubt that size and weight of blackjack alleged to have been used were
such as would be likely to cause death or inflict serious bodily injury in manner of alleged use, was proper
and rendered harmless any error in another instruction which assured that there was a striking with a
blackjack.
9. Criminal Law.
Where no evidence was before supreme court, supreme court was required to assume that statement in
instruction which assumed that accused who was charged with assault with deadly weapon used a blackjack
was supported by evidence.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Oliver George Harvey was convicted of assault with intent to inflict upon the person of
another a bodily injury, and he appeals. Affirmed.
Morse & Graves and Louis Wiener, Jr. all of Las Vegas, for Appellant.
62 Nev. 287, 289 (1944) State v. Harvey
Alan Bible, Attorney-General, and V. Gray Gubler, District Attorney, of Las Vegas, for
Respondent.
OPINION
By the Court, Ducker, J.:
The appellant was convicted in the district court in Clark County of the crime of assault
with intent to inflict upon the person of another a bodily injury. He has appealed from the
judgment and order denying his motion for a new trial.
One of the jurors had been convicted of a felony in the district court of the United States
for the District of Oregon, on the 6th day of November 1929, and had been sentenced therefor
to two years and six months in a federal prison. This conviction was made to appear to the
court on appellant's motion for a new trial, by his affidavit and affidavits of his counsel, and
by an exemplified copy of the record of the juror's conviction. It was also averred in said
affidavits that the conviction of the juror was unknown to appellant and his counsel when the
jury was being impaneled, and was not known to them until after the verdict of the jury; that
appellant's attorneys were misled by the juror's answers in reference to his qualifications and
particularly wherein he stated in answer to a question that he knew of no reason why he could
not act as a fair and impartial juror in the case; that the juror was disqualified to act as such by
reason of said conviction, and had affiant known thereof he would have been challenged on
the part of defendant. By reason of these facts appellant contends that he did not receive a fair
and impartial trial, and therefore the court committed reversible error in denying his motion
for a new trial.
This point has been decided adversely to appellant's contention in State v. Marks, 15 Nev.
33
62 Nev. 287, 290 (1944) State v. Harvey
contention in State v. Marks, 15 Nev. 33. One of the jurors who tried the cause, had answered
on voir dire that he had not expressed an unqualified opinion as to the defendant's guilt or
innocence. No challenge was interposed to the juror. On the motion for a new trial on the
ground of the juror's misconduct, the defendant presented an affidavit to the effect that on the
day of the assault charged, the juror had said to the affiant that Marks, the defendant, ought
to be taken out and hung; that he did not care whether Gallagher died or not, Marks ought to
be hung, anyway. A new trial was denied and the order and judgment were affirmed by this
court. In its opinion it was declared that the statute in substance expressly forbids the granting
of a new trial upon the ground urged. The statute referred to was sec. 420 of the criminal
practice act. Stats. 1869, p. 67. It was pointed out that the ground was not among those cases
stated in said section, which declared that the court had power to grant a new trial upon
application of a defendant in the cases enumerated only. Referring also to sec. 334 of the
same statute, providing that a challenge to an individual juror must be taken when the juror
appears, and before he is sworn, but the court may, for good cause, permit it to be taken after
the juror is sworn and before the jury is completed, this court said:
The evident design of the legislature in enacting these statutes was to cut off the
exception now made, after verdict.
1, 2. The court expressed the opinion that the misconduct referred to in said sec. 420 is
only that which occurs after the jury has been impaneled and sworn to try the cause. We think
the ruling in State v. Marks is sound, and as the sections of the then criminal practice act have
their counterparts in secs. 11032 N. C. L. and 10940 N. C. L., the ruling must be deemed
controlling here. Under these sections objection to the competency of a juror cannot be taken
by an accused for the first time after verdict and relied upon as a ground of motion for a new
trial.
62 Nev. 287, 291 (1944) State v. Harvey
ground of motion for a new trial. It may be advanced that the rule announced in State v.
Marks is a harsh one, but it is not the province of this court to alleviate the harshness of a
statutory rule by strained construction. The statutes very clearly express the legislative intent,
and construction therefore would be out of order. Legislative action could furnish an
appropriate remedy. But the rule as applied to the instant case bears no implication of
harshness. Incompetency of a juror by reason of having formed or expressed an unqualified
opinion or belief that the prisoner is guilty or not guilty of the offense charged, is a statutory
provision designed to insure a party against an unfair trial. But incompetency on account of a
former conviction for felony is a mere arbitrary disqualification in the nature of a penalty
against an individual who might be otherwise qualified for jury service. While the moral
stigma may be thought in a measure to unfit such a person for serving on a jury, yet it does
not follow that if he is sworn and acts that he will act unfairly. A party is given the statutory
right to challenge such a person. However, the challenge must be exercised within the time
required by law. The statutes mentioned are susceptible of no other meaning. As said in State
v. Marks, supra:
The constitution secures to an accused person the right to be tried by an impartial jury,
and the legislature has no right or power to deprive him of such right; but it can regulate its
administration by determining and declaring, in a reasonable way, when and how a juror's
partiality shall be ascertained. It is not, and can not be, denied that the regulations prescribed
by the legislature for the impaneling of trial jurors in criminal cases are just to the accused,
and that they are well calculated to secure to him a trial by a fair and impartial jury.
3. We are satisfied that such purpose was accomplished in this case. There is no indication
of injustice having been done in the case by the presence on the jury of the juror now
objected to.
62 Nev. 287, 292 (1944) State v. Harvey
jury of the juror now objected to. His examination on voir dire is in the record and shows that
he endeavored in no way to conceal his disqualifications. He did not reveal it, but he was not
asked about it.
The examination most relied on by counsel for defendant as having misled him, is in the
following questions:
Q. Do you know of any reason, Mr.______, that would prevent you from acting as a fair
and impartial juror if chosen in the case? A. I do not.
Q. Do you know any fact or reason, Mr.______, why you cannot serve as a juror in this
matter? A. I do not.
The first answer is perfectly consistent with the truth and is an expression under oath that
he would act as a fair and impartial juror. We are not prepared to say that the second answer
shows any intentional deception. The conviction was fifteen years before the trial and it is
altogether improbable, even if the juror ever knew that it was a disqualification, that this
knowledge was then in his mind. The general presumption that every man is presumed to
know the law would be a very violent one to indulge under such circumstances.
4-6. The next specification of error which we need consider, is misdirection of the jury.
Under this head it is urged that instructions numbers 26, 27, 31 and 32, given by the court, are
erroneous. Instruction number 26 contains the statutory definition of the offense charged and
follows with a specification of the elements of the offense which the jury was instructed must
be proved beyond a reasonable doubt to warrant a conviction. The objection that it contains
no description of the deadly weapon mentioned, is without merit. The character of the
weapon used was described in the information, and other instructions properly informed the
jury that it was for them to determine from the character, size, and weight, and the manner of
its use as shown by the evidence, whether such weapon was deadly or not.
62 Nev. 287, 293 (1944) State v. Harvey
or not. On the whole the jury was correctly informed in this respect. They were told that in
applying an instruction to the facts of the case to ascertain whether one or more other
instructions have a bearing on the instruction under consideration, and that the law of the case
was not all embraced in any one instruction. Objection is also taken to the instruction as to
that part where the jury was told that in order to convict the defendant it must find beyond a
reasonable doubt (a) that there was no considerable provocation for said assault; or (b) that
the circumstances of the said assault show an abandoned and malignant heart. It is claimed
to be erroneous and prejudicial in including the alternative clause (b) that the circumstances
of the said assault show an abandoned and malignant heart, whereas this matter was not
alleged in the information, but only that the assault was without provocation. Both of these
parts of the statute defining the crime of assault with a deadly weapon with intent to inflict
upon the person of another a bodily injury are negative qualifications of the offense and are
not essential to either the indictment (or information) or verdict. They must be taken
advantage of in defense at the trial. State v. Robey, 8 Nev. 312. Consequently it was not
necessary for the state to prove either of them beyond a reasonable doubt or at all. The
appellant therefore cannot be heard to complain of an error in the instruction so favorable to
him. If he wished instructions on these matters he should have offered them. See State v. Ah
Chew, 16 Nev. 50, 40 Am. Rep. 488, and State v. Buckaroo Jack, 30 Nev. 325, 96 P. 497, for
an analogous principle to that involved in State v. Robey, supra.
7. Instruction number 27 states the statutory definition of an assault. It was not erroneous.
The instruction was proper to inform the jury as to what constituted one of the essential
elements of the offense charged. It was not misleading, as contended by appellant.
62 Nev. 287, 294 (1944) State v. Harvey
8. Instruction number 32 complained of reads:
You are instructed that unless you believe beyond a reasonable doubt, from competent
evidence introduced at this trial that the size and weight of the blackjack alleged to have been
used were such as would be likely to cause death or inflict serious bodily injury in the manner
of the use alleged to have been made of said black jack, you cannot find the defendant guilty
of assault with a deadly weapon with intent to inflict bodily injury.
This instruction is correct and, in our opinion, renders harmless any error in instruction
number 31, which assumes that there was a striking with the blackjack.
9. The evidence in the case is not before us, and we must assume that it was sufficient to
support that statement in instruction number 31, and render it nonprejudicial. The court did
not err in refusing to grant a new trial.
The judgment and order denying the motion for a new trial should be affirmed.
It is so ordered.
On Petition For Rehearing
July 5, 1944.
Per Curiam:
Rehearing denied.
____________
62 Nev. 295, 295 (1944) Cahow v. Michelas
FAE EVA CAHOW and RAYMOND CAHOW, Respondents, v. THEODORE MICHELAS,
Appellant.
No. 3396
May 31, 1944. 149 P.(2d.) 233.
1. Workmen's Compensation.
An employer who has not agreed to be governed by state industrial insurance act could not properly be
held liable for an injury sustained by employee in absence of any negligence attributable to him. Comp.
Laws, sec. 2680(b).
2. Workmen's Compensation.
Burden was upon employer who had not agreed to be governed by state industrial insurance act to rebut
statutory presumption of negligence causing employee's injury, and it was proper for trial court to consider
all the evidence in determining whether such presumptions had been overcome. Comp. Laws, sec. 2680(b).
3. Workmen's Compensation.
Evidence supported finding that injury to plaintiffs in course of her employment as a waitress in
restaurant belonging to defendant who had not agreed to be governed by state industrial insurance act,
when she allegedly fell on slippery spot on kitchen floor, was caused by defendant's negligence. Comp.
Laws, sec. 2680(b).
4. Appeal and Error.
Generally, where evidence is conflicting and there is substantial evidence to support trial court's findings,
they will not be disturbed on appeal.
5. Workmen's Compensation.
A waitress employed in restaurant belonging to one who had not agreed to be governed by state industrial
insurance act could not be held to have assumed the risk under her contract of employment that her
employer would negligently permit kitchen floor to become and remain slippery, so as to preclude recovery
for injuries allegedly sustained by waitress when she fell on slippery spot on kitchen floor. Comp. Laws,
sec. 2680(b)(1).
6. Evidence.
In personal injury action, testimony of chiropractor as to result of his examination of plaintiff was not
objectionable as too remote, where chiropractor's examination was made only a little more than five weeks
after alleged injury was sustained, and plaintiff had testified that her suffering and disabling effects of her
injuries extended over a greater period of time.
7. Witnesses.
In personal injury action, testimony of chiropractor, as result of his examination of plaintiff, disclosing
serious injury,
62 Nev. 295, 296 (1944) Cahow v. Michelas
was not objectionable as an attempt by plaintiff to impeach her own witness because she had previously
testified to reports made by other physicians which did not disclose a serious injury.
8. Damages.
Evidence failed to establish that damages awarded to plaintiff, in personal injury action for loss of time,
which allowed recovery up to time of trial, were excessive.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by Fae Eva Cahow and her husband, Raymond Cahow, against Theodore Michelas
for injuries alleged to have been sustained by plaintiff wife in the course of her employment
as a waitress in defendant's restaurant. From a judgment in favor of the plaintiffs and from an
order denying motion for a new trial, the defendant appeals. Affirmed.
Lewis & Hawkins, of Las Vegas, for Appellant.
Morse & Graves, of Las Vegas, for Respondents.
OPINION
By the Court, Taber, J.:
The Eighth judicial district court, Clark County, awarded plaintiffs $600 damages for
personal injuries alleged to have been sustained by Mrs. Cahow in the course of her
employment as a waitress in defendant's restaurant (the Nevada Cafe) at Las Vegas, and $429
for consequent loss of wages. Defendant has appealed from the judgment, and from an order
denying his motion for a new trial.
One of Mrs. Cahow's duties was to carry dirty dishes from the front part of the cafe back to
the kitchen, and place them on the drainboard of the sink. There was a swinging door near the
middle of the partition between the front part of the cafe and the kitchen, and the sink and
drainboard were in the kitchen corner immediately to the right of this door as one passed
through it going from the main room back into the kitchen.
62 Nev. 295, 297 (1944) Cahow v. Michelas
the sink and drainboard were in the kitchen corner immediately to the right of this door as one
passed through it going from the main room back into the kitchen. The floor in the front room
was covered with linoleum; the kitchen floor was of concrete, and was usually kept dry and
clean. There were some booths and a counter in the front part of the cafe, and most of the
cooking was done near the window in that room. The kitchen, or back room, was used for
such purposes as washing dishes, cutting meat, preparing vegetables, making ketchup, and
cooking soup stock.
According to Mrs. Cahow's testimony the accident which caused her injury happened
about 11:20 p. m. on January 31, 1942. She was carrying some dishes from the counter in the
front room of the cafe back to the drainboard and sink in the kitchen. Having passed through
the connecting doorway, and just before reaching the drainboard and sink, she slipped and fell
on the cement floor, dropping the dishes, some of which were broken. As she rose from the
floor she noticed that the place where she had slipped was wet and slick. When she was in
the kitchen about half an hour before the accident, she had seen some ketchup which had
been spilled at this place on the floor. There was quite a large puddle of ketchupalso pieces
of broken ketchup bottle. The floor was dry except where the ketchup was. Between the time
when she saw the ketchup and broken glass on the kitchen floor just in front of the drainboard
and sink, and the time of the accident, she had served four or five customers in the front part
of the cafe. At the time she fell the ketchup had been cleaned up, but the place where it had
been was wet with water and very slippery. With the exception of the place where the ketchup
had been mopped up, the kitchen floor was dry. After getting up off the floor where she had
fallen, Mrs. Cahow went into the front part of the cafe and remarked, Why didn't they put
salt on the floor? After serving a cup of coffee or two she returned to the kitchen and thinks
that she said to the cook, "Why didn't you put some salt on the floor?"
62 Nev. 295, 298 (1944) Cahow v. Michelas
that she said to the cook, Why didn't you put some salt on the floor? Then she picked up the
salt container and tried to put salt on the floor. The cook grabbed it out of her hand, put a sack
and apron on it and said, If you act like that you will have to take a walk. Then she walked
into the front room of the cafe.
Claud Wood, an employee of Sears Roebuck & Co. in Las Vegas, testified in behalf of
plaintiffs that he was in the cafe when the accident happened. He heard a noise, looked and
saw Mrs. Cahow pick herself up off the floor. He heard dishes drop, and looked over the
counter and she was getting up off the floor. He did not see her fall, but heard a noise, looked
around and saw her bracing herself on her hands to get up. After she got up and walked into
the front room of the cafe he heard her say, Why didn't they put salt on the floor?
Gus Kamilos, employed as cook at the time of the alleged accident, testified in behalf of
defendant that he had a can of water on the grill in the front room of the cafe to keep the
water warm in case he wanted to boil anything up. In taking this can of water back to the
kitchen he kicked the swinging door with his foot and the bottle goes back and I spilled
water on the floor. He then put something under the door to make it stay open, got a mop
and was cleaning the water up when Mrs. Cahow came through the door into the kitchen. I
said to her, Wait a minute.' She stood where she was and that minute I heard the dishes and
glasses fall right in front of me and I went on with the dust pan and picked all of those up to
dry it up and she says to me, she says, Put some salt on it.' She went up to work on the
counter again, and I finished the mopping. Then I go back to my work. The door was
standing open when Mrs. Cahow came back to the kitchen, and there was a plain view from
the front to the back. He was mopping up when she came into the kitchen. She dropped the
dishes and glasses, but did not fall. She picked up the dishes and glasses, except those that
were broken; then she returned to the front room of the cafe.
62 Nev. 295, 299 (1944) Cahow v. Michelas
except those that were broken; then she returned to the front room of the cafe. There wasn't
any ketchup spilled on the floor before he spilled the water and mopped it up. Claud Wood
had not been in the cafe any time during January while Kamilos was on shift. The floor was
not slippery where he cleaned it up. It was clean water. Mrs. Cahow walked with the ankle of
her right foot turned over to one side. He thinks she dropped the dishes and glasses because
she twisted her ankle. She did not fall, and was not sitting on the floor at any time. She did
not slip at all. She did say, Why didn't you put salt on the floor? and she went out to get the
salt herself, but he told her to pick up all those glasses and water from the floor. She had
dropped glasses and dishes, and there naturally was more water and glasses there. She did not
put salt on the floor. He did not grab any salt container out of her hand, and did not say any
such thing to her as, If you act like that you will have to take a walk.
Testimony given by and in behalf of plaintiffs was to the effect that the most serious injury
resulting from the alleged accident was that in the lumbar region of Mrs. Cahow's back.
Testimony given in behalf of defendant was to the effect that Mrs. Cahow, on a number of
occasions, had spoken of an automobile accident in which her back was injured; that she
habitually turned her right ankle while walking, and that before the alleged accident she had
been observed wearing a brace or a cloth, or something of the kind, around her right ankle
and on her right foot. Mrs. Cahow denied saying that she had been in an automobile accident,
and denied that she had worn a brace on her right ankle at any time while working the the
Nevada Cafe. Testimony regarding the nature and extent of Mrs. Cahow's injuries was given
by plaintiffs and by Drs. Swank and Wallace; in connection with the medical testimony,
X-rays showing back injuries were admitted in evidence, and are on file as part of the record
on this appeal.
62 Nev. 295, 300 (1944) Cahow v. Michelas
Plaintiffs' complaint alleged, among other things, negligence on the part of defendant, that
said negligence was the direct and proximate cause of Mrs. Cahow's injuries, and that
defendant had not accepted the terms of and agreed to be governed by the provisions of the
Nevada industrial insurance act of 1913, as amended. The latter allegation was not denied,
but defendant's answer specifically denied that Mrs. Cahow received any injuries while in his
employ, and further specifically denied that he was at any time careless, negligent or reckless
in his conduct or with respect to the condition of his place of business, as set forth in
plaintiffs' complaint, or at all.
The trial court found, in part, that defendant did carelessly, negligently, recklessly and
knowingly permit and allow the floor by the sink in the kitchen in said cafe to be wetted and
slippery; that it is a fact that at the said time and place and under said conditions hereinbefore
set forth, the said defendant, Theodore Michelas, did carelessly, negligently, recklessly, and
knowingly fail to take any precaution or to do any act to remedy the condition of said floor in
said kitchen; that it is a fact that the said defendant, Theodore Michelas, did carelessly,
negligently, recklessly and knowingly permit the condition on said floor to remain as
hereinbefore described for the use of the said plaintiff, Fae Eva Cahow, in her performance of
her said duties as hereinbefore set forth; that it is a fact that at said time and place and as
herein described and in the performance of her said duties as here in described, the said
plaintiff, Fae Eva Cahow, in removing dishes from said table in said cafe to said sink, slipped
on said wetted and slippery floor and fell on said floor with such force and violence as to
injure her back and to tear ligaments in her back and affect the use of her right arm and to
suffer severe and excruciating pains in her back and arm; that it is a fact that the said Fae Eva
Cahow was unable to work by reason of said injuries from January 31st, 1942 to June 8th,
1942;
62 Nev. 295, 301 (1944) Cahow v. Michelas
* * * that since the 31st day of January, 1942, the said plaintiff, Fae Eva Cahow has had to
have hospitalization, medical treatment and care for said injuries; that it is a fact that
immediately prior to and before receiving said injuries the said plaintiff, Fae Eva Cahow was
sound of mind and body, that it is a fact that the direct and approximate cause of said injuries
to the said Fae Eva Cahow, as hereinbefore described, were the carelessness, negligence,
recklessness and knowing acts of the defendant.
The Nevada industrial insurance act (Stats. of Nevada, 1913, chap. 111), as amended to
and including the year 1929, may be found in 2 n. c. l. 1929, beginning with sec. 2680.
Subsequent amendments, to and including the year 1941, are given in Vol. 1 of the
1931-1941 Supplement to N. C. L. 1929, beginning at page 310. The legislature of 1943
made some further amendments (Stats. of Nevada 1943, Chap. 136, pp. 186-195). The
provisions with which we are chiefly concerned in this case are those of section 1 (b) of the
act, as amended. Stats. of Nevada 1941, Chap. 159, p. 368, 1 N. C. L. Supp. 1931-1941, sec.
2680, p. 311. Said section 1 (b) as it appears in sec. 2680, N. C. L. 1929, is quoted in full in
Reeder v. Pincolini, 59 Nev. 396, 94 P. 2d 1097. As the only change made by the 1941
amendment was to substitute the words guilty of contributory negligence for the word
negligent in subdivision (3), it is deemed unnecessary to again quote section 1 (b) in full.
Defendant had the right, under the provisions of the industrial insurance act, to accept its
terms, conditions and provisions, but failed to do so. At the time of the alleged accidental
injury Mrs. Cahow was an employee of defendant, and her injury, if any, arose out of and in
the usual course of employment. If there was any negligence on the part of Mrs. Cahow, the
evidence does not show that it was willful and with intent to cause the injury, or the result of
intoxication on her part.
1, 2. Defendant could not properly be held liable in the absence of any negligence
attributable to him.
62 Nev. 295, 302 (1944) Cahow v. Michelas
the absence of any negligence attributable to him. Day v. Cloke, 47 Nev. 75, 215 P. 386. But
the burden of proof was on him to rebut the statutory presumptions. In determining whether
they had been overcome, it was proper for the trial court to take into consideration all the
evidence, that of defendant as well as that of plaintiff. Reeder v. Pincolini, supra; O'Brien v.
Las Vegas & T. R. Co., 9 Cir. 242 F. 850; 1 Schneider's Workmen's Compensation Text, sec.
129, pp. 341, 342.
When the taking of testimony was concluded, the following proceedings were had in the
trial court:
By the Court: Do you want to argue this case?
By Mr. Hawkins: Just as your Honor desires. I think it is a case that merits argument both
as to the facts and as to the law. I am not prepared at this time to cite the laws that we contend
are applicable.
By the Court: I am interested in your version of the application of the law here. I would
be frank to state that the Court's opinion now is that there is only one question involved here,
and for the sake of the argument and without conceding the facts to be such, that if the
plaintiff slipped and fell in the Nevada Cafe at the time and place alleged in the complaint,
there is only one defense available, that is the defenses enumerated in the statute which have
not been properly pleaded, and the Court is of the opinion that those defenses must be
specially pleaded, otherwise the defendant is practically forced off from all claim, except of
course, as to the weight of the proposition as to whether or not the accident did occur. That is
always an open defense.
By the Court: We will be in recess until 3:00 P. M.
At 3:00 P. M., February 4, 1943, the Court was called to order, both parties present with
their counsel. Argument of Counsel.
By the Court: The matter may stand submitted.
The foregoing remarks of the court do not correctly state the law because, as we have seen,
defendant could not properly be held liable for damages in the absence of any negligence
attributable to him. Day v. Cloke, supra.
62 Nev. 295, 303 (1944) Cahow v. Michelas
supra. Appellant contends that by reason of this misconstruction of the law the trial court
never considered, sifted and weighed the evidence to determine any points other than whether
the accident occurred, and the amount of damages to allow. Appellant says he was entitled to
have the question of negligence decided by a court properly advised as to the law governing
in cases of this nature, rather than to have the question of negligence eliminated from the
case.
3, 4. No evidence favoring or tending to favor defendant was excluded by reason of the
court's erroneous view of the law, and the remarks complained of were made before the case
was argued. Counsel for the defendant presumably included in his argument the contention
that there could be no liability without negligence. In the court's written decision, filed five
days after the case was argued, counsel for the plaintiffs were directed to prepare findings.
Thereafter proposed findings were filed, and defendant filed his objections and exceptions
thereto. The findings were settled and filed, and judgment entered, a little more than a month
after the filing of the decision. In said findings the court expressly states that defendant was
guilty of negligence, but appellant contends that this finding is not supported by and is
contrary to the evidence in the case. He urges that the evidence, particularly that adduced in
his behalf, rebutted the statutory presumption of negligence. These were questions for the trial
court. Peters v. California Building-Loan Ass'n, 116 Cal. App. 143, 2 P.2d 439; Mitchell v.
Phillips Mining Co., 181 Iowa 600, 165 N. W. 108. There was a sharp conflict in the
testimony as to whether Mrs. Cahow slipped and fell, whether the spot on the kitchen floor
where she is alleged to have slipped and fallen was slippery, whether, if slippery, defendant
negligently permitted it to remain so, and whether the injury, if any, was the proximate cause
of defendant's negligence. On these matters the trial court found in favor of plaintiffs. There
was substantial evidence, including the statutory presumptions to support its findings,
62 Nev. 295, 304 (1944) Cahow v. Michelas
the statutory presumptions to support its findings, and as it is not clear to this court that a
wrong conclusion was reached, we must follow the general rule that when the evidence is
conflicting and there is substantial evidence to support the trial court's findings, they will not
be disturbed on appeal. Consolazio v. Summerfield, 54 Nev. 176, 10 P. 2d 629; Valverde v.
Valverde, 55 Nev. 82, 26 P. 2d 233.
5. Appellant contends that section 1 (b)(1) of the industrial insurance act does not operate
to abolish the doctrine of contractual assumption of risk. Ordinarily, says appellant, where
one enters the service of another as an employee, he agrees to assume all the open and
obvious risks of the employment. Whether the doctrine of contractual assumption of risk
obtains in this state notwithstanding the statutory provision above mentioned need not be
determined in this case, because it is clear that under the contract of employment Mrs. Cahow
could not be held to have assumed the risk that her employer would negligently permit the
kitchen floor to become and remain slippery. Neiss v. Burwen, 287 Mass. 82, 191 N. E. 654;
Roberts v. Frank's Inc., 314 Mass. 42, 49 N. E. 2d 427; Benson Lumber Co. v. McCann, 9
Cir., 223 F. 1; Rivers v. Krasowski, 303 Mass. 409, 22 N. E. 2d 114; 35 Am. Jur., Master
and Servant, sec. 301, nn. 10-13.
Mrs. Cahow testified that on February 2, 1942, being the second day after the injury, she
consulted Dr. McCoy, the union doctor; that about the middle of the same month she
consulted Dr. Swank, who sent her to the county hospital where her back was X-rayed. On
cross-examination she testified that Dr. McCoy waited upon her about two weeks; that she
then changed to Dr. Swank because she was suffering so much that she wanted an X-ray
taken; that Dr. Swank treated her two or three weeks, binding her back with adhesive tape and
telling her not to do any work, to rest and take hot baths, and that eventually the injury would
heal but it would take a long time; that he said the X-ray did not show any vertebrae
misplaced,
62 Nev. 295, 305 (1944) Cahow v. Michelas
show any vertebrae misplaced, and that there was nothing the matter with her back; that later
she changed to Dr. Wallace, a chiropractor, who took another X-ray about March 9; that he
said there were several vertebrae out of joint and that this condition could be seen not only in
the X-ray he took, but also in the one taken earlier at the hospital; that in the latter the
misplaced vertebrae could be seen when held over the light, but not so plainly as in the
picture taken by him.
6. 7. When Dr. Wallace was asked on direct examination to state the result of his
examination of Mrs. Cahow made on March 9, counsel for defendant objected, the objection
being in part as follows: We object to this doctor testifying as to the result of any
examination which he made on the 9th of March, 1942, for the reason that it isunder the
record in this case as it now isincompetent, irrelevant, immaterial, too remote and is an
attempt on the part of this plaintiff to impeach her own witness. In explaining his objection
counsel stated that if the purpose of putting Dr. Wallace on the stand was to show that he
took an X-ray which showed different conditions, it would be an effort to show and to
contradict her statement as to what the condition of her body was shortly after this purported
accident, and it is too remote; it is immaterial. In view of the testimony previously given by
Mrs. Cahow regarding the reports made to her by Dr. Swank and Dr. Wallace the court is of
the opinion that counsel's objection was properly overruled. The testimony was clearly
competent, relevant, and material. It was not too remote, because Dr. Wallace's examination
was made only a little more than five weeks after the injury was sustained, and Mrs. Cahow
had testified that her suffering and the disabling effects of her injuries extended over a much
greater period of time. Nor was the objection well taken that the testimony proposed to be
given by Dr. Wallace would constitute an attempt on the part of plaintiffs to impeach their
own witness. 32 C. J. S., Evidence, sec. 1040, p.
62 Nev. 295, 306 (1944) Cahow v. Michelas
p. 1106, notes 3941; 70 C. J., Witnesses, sec. 1341, nn. 78, 80.
The last assignment of error relied upon by appellant is that the damages awarded for loss
of time are excessive. This assignment is predicated first upon the contention that none of Dr.
Wallace's testimony should have been admitted in evidence, and second upon the testimony
of Dr. Swank who, according to appellant, testified that Mrs. Cahow should have recovered
from the effects of the accident within a period of from two to four weeks after it occurred.
After the making of the X-ray pictures and Dr. Wallace's diagnosis based upon his
examination of Mrs. Cahow and his study of the pictures, she received no treatment until June
15, when she began taking treatments from Dr. Wallace. Appellant claims that the period of
Mrs. Cahow's disability was prolonged because of her failure to seek medical care from the
time Dr. Swank last treated her until she began to take treatments from Dr. Wallace, and that
if plaintiffs were entitled to recover any damages for loss of wages, such recovery should be
limited, at the outside, to the period from January 31, the date of the accident, to February 28.
There is substantial evidence that Mrs. Cahow's disability continued from January 31, 1942,
until at least the time this action was commenced. Plaintiffs are entitled to recover for loss of
wages during that period, unless recovery should be limited to the month of February 1942 by
reason of Mrs. Cahow's not having taken treatments from the end of that month until the
middle of June.
Dr. Swank testified in part as follows:
Q. What was your prognosis in this case at the time of your last treatment? A. I thought
the prognosis was very good for a complete recovery after a matter of a few weeks of rest and
a mobilization of her back and because my X-ray that I took did not show any bone injury.
However, I know that she could have a lot of quite serious back aches without having
anything that would show in the X-ray because nothing but bones show in the X-ray.
62 Nev. 295, 307 (1944) Cahow v. Michelas
anything that would show in the X-ray because nothing but bones show in the X-ray. * * *
Q. Assuming Mrs. Cahow was a lady passed 39 just reaching her 40th birthday, suffering
and sustaining the objective symptoms you observed when your first treated her on February
16, 1942, and as a result of your further two examinations that you took and your two further
treatments, how long in your judgment would Mrs. Cahow be incapacitated from performing
active duties as a waitress, if at all? A. It is very difficult to tell when an acute back
injuryhow long they are going to be disabled. The ordinary acute back injury pretty well
recovers in two to four weeks. However, very frequently, there are back injuries that show
nothing in X-ray and seem at first quite trivial, yet the only symptom that can be elicited is
the patient's claim of a painful back. I mean there is nothingthere is frequently nothing
objectively that you can use to prove how much pain a patient has with back injury in the
absence of fracture. * * *
Q. Have you seen the X-ray that Dr. Wallace testified he took of the backbone? A. No, I
haven't.
Q. Now, did you find anything to indicate injury to the backbone, Doctor? A. There was
none shown in my X-ray, no.
Q. Was there anything that you observed in examining her that would indicate such was
true? A. No.
Q. You would call that a muscular strain or ligament strain? A. I would say she had
injuries to both muscles and ligaments, commonly called soft tissues as compared to bone
which is hard tissue.
Q. Was there anything which would enable you to determine whether this was permanent
or not? A. At the time I examined her I assumed it was only an acute back injury. With those
few examinationsit wouldn't be humanly possible to know whether or not there would be
any permanent injury or permanent disability because I saw her only once in February and
twice in early March.
62 Nev. 295, 308 (1944) Cahow v. Michelas
It will be observed that the part of Dr. Swank's testimony relied on by appellant states his
opinion with reference to ordinary acute back injuries only; no opinion is given regarding the
length of time such a person as Mrs. Cahow would be incapacitated as the result of injuries
described by Dr. Wallace as contraction of the muscles of the lumbar region. Rotation of the
bodies of all lumbar vertebrae, spinous processes to the left, slipped fourth and fifth rib on the
left side inferiorly.
A few excerpts from Mrs. Cahow's testimony follow:
Q. How long were you treated by Dr. Swank? A. I couldn't exactly state. I was up to him
twice, two weeks at a time when I had the adhesive tape on. He said not to do anything, it
would just gradually have to take time to heal. * * *
Q. How many treatments did you have that you know of from Dr. Wallace? A. Well, I
couldn't state just the number, because sometimes I couldn't afford to take them. I did when I
possibly could. I tried sometimes two a week and sometimes one a week. I started in June,
clear through until this year. * * *
Q. When did you do any work after this accident you testified to? A. Sometime in
September, along about the middle; I tried about two weeks of waitress work; I wasn't exactly
a waitress, I worked about an hour in the front and worked in the kitchen making salads and
that's about all. It was very light work.
Q. How long did you work in September? A. Two weeks. * * *
Q. How many days or weeks have you worked since that time in September to the present
time? A. I didn't do any more work until December, and I just tried short jobs.
Q. What is your condition at the present time? A. Well, at the present time, my backif I
am on my feet more than two or three hours it is still sore. Every morning I am so stiff I can
hardly get out of bed. I can't lift any heavy packages and I have to wear a girdle all the
time.
62 Nev. 295, 309 (1944) Cahow v. Michelas
lift any heavy packages and I have to wear a girdle all the time. I have a Campus Girdle' on
continuously.
Q. That is what was prescribed for you by Dr. Wallace? A. Yes.
Q. And you wear that all the time? A. Yes, I do. * * *
Q. And why did you change doctors? (From Dr. McCoy to Dr. Swank) A. Because when
I would get off of a chair or from sitting on the edge of a bed, I would go to get up and my leg
would give out and go paralyzed, and my arm would do the same. I kept telling him
something was wrong. It hurt so bad I couldn't sleep; I couldn't lie down because the pain
would be so terrific tears would come to my eyes. I would fall on the floor and have to lie
there for half an hour, there was a chair by the bed and I would finally get enough strength to
pull myself up by the chair.
Q. Is that the reason you got Dr. Swank? A. That's right, I went down to have an X-ray
taken. * * *
Q. So afterwards you switched doctors again? A. Yes, I did, but waited sufficient time to
see if it would get better.
Q. And then you went to Dr. Wallace? A. Yes. Mr. Cahow testified in part:
Q. Following this time in question, you said January 31, 1942, has she been able to do her
own housework in and about the home? A. No, sir. * * *
Q. What is her physical condition in and about the home at the present time, if you know?
A. I do know of Eva leaving the work around the house. When I come home after work I am
very tired and I have to help her and get everything straightened around. * * *
Q. Have you personally, Mr. Cahow, given any treatments or ministrations at all to your
wife's back in the last year? A. Yes. * * *
Q. Just state what you have done. Do you understand the question? A. I have rubbed her
back with an oil treatment to relax the muscles in her back so she could rest at night."
62 Nev. 295, 310 (1944) Cahow v. Michelas
an oil treatment to relax the muscles in her back so she could rest at night.
We now quote from the testimony of Dr. Wallace:
Q. Doctor, did you treat the patient, Mrs. Cahow as a result of your diagnosis of the
objective symptoms and of the X-ray pictures? A. No, not at the time of the examination.
Q. When did you first treat her therefor? A. On the 15th of June, 1942.
Q. What was her condition on said date with reference to the same objective symptoms as
of the first date of your treatment? A. Well, the symptoms were not so acute. We stillthe
objective diagnosis still showed the rotation of the lumbar vertebrae, a tenderness over the
area of the fourth and fifth rib.
Q. And how many times thereafter Doctor, did you treat her? A. I got a date but I didn't
put it down; I think the dateabout 39 times.
Q. What was the date of your last professional treatment? A. The 1st day of February, this
year. * * *
Q. And what objective symptoms, if any did you find to exist at the date of your last
treatment? A. A very slight tenderness in certain areas, rotation of the lumbar vertebrae
waswell, I would say 75 percent eliminated. * * *
Q. Will you give us your prognosis at the present time? A. The prognosis depends on the
treatment given. I would say if the treatment is continued as directed the lumbar rotation
should be eliminated in another 90 days. These back cases however, with strain, the ultimate
prognosis would be another story. * * *
Q. Will you state as a result of your examination on March 9, 1942 and from the
objective symptoms then existing whether or not the plaintiff, your patient, Mrs. Cahow was
able to do duties as a waitress. A. She wasn't able, definitely not, with this back condition
which she had. * * *
62 Nev. 295, 311 (1944) Cahow v. Michelas
Q. You heretofore testified, Doctor, and that on to-wit, March 9, 1942, due to the
objective symptoms and the X-ray examination that your patient, the plaintiff in this action,
wasn't in physical condition to perform duties as a waitress. During your physical
examination, Doctor, did you form any opinion as to whether or not she was able at that time
or at the time of any of the examinations to perform duties as a waitress, yes or no. A. Yes.
Q. State when, Doctor. A. She has not been in a condition to handle heavy trays.
Q. For what period of time? A. Since the time I have known her until the present time.
Q. That continued until the present time? A. Right.
Q. Do you have an idea Doctor, how long that condition may continue? A. The patient, I
think, has not had treatments regularly enough and it will depend on whether she takes them
regularly hereafter. * * *
Q. Now you testified that you have examinedtreated this woman quite a number of
times, Doctor, what treatments did you give her? A. What we term chiropractic adjustments.
Q. What is that, Doctor? A. Manual manipulation of the spine, up and down the vertebrae
specifically.
Q. Did you do any massaging? A. Some.
Q. And this condition was being remedied, was it? A. Yes.
Q. As a result of your treatment? A. It was.
Q. And if she keeps up the treatments that you prescribe it will bein your judgment
what will be the result if she continues those treatments? A. The result in my opinion, will be
good. She will be able towill be reasonably normal.
8. It would serve no useful purpose to comment at length on the testimony set forth in this
opinion. After giving it careful consideration, along with all other evidence in the case
bearing on the question under discussion, the court does not feel it would be justified in
saying that the trial court was wrong in concluding that plaintiffs should be awarded
damages for loss of Mrs.
62 Nev. 295, 312 (1944) Cahow v. Michelas
that plaintiffs should be awarded damages for loss of Mrs. Cahow's wages from January 31,
1942, to the date this action was commenced in the district court.
As the record shows no prejudicial error, the judgment and the order appealed from are
affirmed.
____________
62 Nev. 312, 312 (1944) State v. Loveless
THE STATE OF NEVADA, Respondent, v. FLOYD
LOVELESS, Appellant.
No. 3410
August 16, 1944. 150 P. (2d) 1015.
1. Criminal Law.
Generally, an adjudication on the first appeal is the law of the case on all subsequent appeals in which
the facts are substantially the same.
2. Criminal Law.
Where testimony of witnesses at second trial after reversal of conviction was substantially the same as
given at first trial, and admission of such testimony had not been complained of on first appeal,
assignments directed at such testimony could not be urged for first time on subsequent appeal.
3. Criminal Law.
Where admission of testimony of two witnesses at first trial concerning defendant's statements was held
not error on a prior appeal, admission of substantially same testimony by two other witnesses at second trial
was not error under rule of the former decision.
4. Criminal Law.
Assignments seeking to raise questions which had been involved in former appeal, and decided, would be
stricken on ground that prior decision was law of the case, even though prior decision was only judicial
dictum.
5. Homicide.
Evidence justified finding that defendant's killing of officer was willful, deliberate, and premeditated, so
as to authorize conviction of murder of the first degree.
6. Homicide.
Fact that defendant's intent to shoot officer was formed during a struggle, if established, did not preclude
deliberation and premeditation necessary to support conviction of murder of the first degree.
7. Homicide.
The question of premeditation necessary to support conviction of murder of the first degree is one of fact
for jury.
62 Nev. 312, 313 (1944) State v. Loveless
8. Criminal Law.
Where it was shown that witness who had testified at defendant's first trial on same charge was beyond
jurisdiction of the court, trial court did not err in permitting state to read in evidence testimony of such
witness, stenographically reported by official reporter at first trial, upon a proper foundation being laid by
showing witness to be at the time in an institution in Colorado and by proving testimony to be correct in
accordance with terms of statute. Comp. Laws, sec. 11252.
9. Criminal Law.
Refusal to grant a continuance from Tuesday to the following Friday, when it appeared that witness who
had testified at defendant's first trial on same charge would be available at later date, was not error, where
defendant did not ask for a continuance.
10. Criminal Law.
Refusal of defendant's requested instruction that murder without deliberation and premeditation was
murder of the second degree did not constitute reversible error, where requested instruction was covered by
another instruction.
11. Homicide.
In murder prosecution, refusal of defendant's offered instruction containing statutory definition of
manslaughter was not prejudicial to defendant, where jury found defendant guilty of murder of the first
degree on evidence amply sufficient to justify the verdict.
12. Homicide.
In murder prosecution, refusal of defendant's offered instruction containing statutory definition of
manslaughter was not error, where there was no evidence tending to show that defendant was not actuated
by malice in shooting officer.
13. Criminal Law.
In murder prosecution, an instruction on shooting with malice was not erroneous on ground that it was
misleading because omitting elements of deliberation and premeditation, when considered in connection
with other instructions defining murder of first and second degrees.
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Floyd Loveless was convicted of murder and he appeals. Affirmed.
Taylor H. Wines, of Elko, and Oliver C. Custer, of Reno, for Appellant.
62 Nev. 312, 314 (1944) State v. Loveless
Alan Bible, Attorney-General, W. T. Mathews and Geo. P. Annand, Deputy
Attorney-General, and George F. Wright, District Attorney, of Elko, for Respondent.
OPINION
By the Court, Ducker, J.:
The defendant was convicted in the district court of the Fourth judicial district of Elko
County of murder of the first degree, for the killing of one A. H. Berning. The jury did not
exercise their discretion to fix the penalty in their verdict, and the court, after denying a
motion in arrest of judgment and a motion for a new trial, pronounced judgment of death
against the defendant. He has appealed from the judgment and order denying his motion for a
new trial.
This is the second appeal in the case. Upon the first appeal the judgment of death against
the defendant was reversed and the cause remanded for a new trial. State of Nevada v. Floyd
Loveless, 62 Nev. 17, 136 P. 2d 236. On the first appeal a number of errors were assigned
which were discussed in the respective briefs. These errors were all discussed also in the oral
argument on appeal. As to these, the court, in its decision, found as follows: In defendant's
assignment of errors we find none that is well taken. At least there is none that tended to his
prejudice in respect to a substantial right. But the court, on its own motion raised the
question of the validity of the judgment, and reversed it on the ground that it was void, and
set the verdict aside.
A motion by the state to strike from the records, files, bill of exceptions and defendant's
brief, certain assignments of error, was argued and submitted for decision at the time of the
oral argument on this appeal. The motion is leveled at assignments numbered 1, 3, 4, 5, 6, S,
12, 13, and 14,
62 Nev. 312, 315 (1944) State v. Loveless
8, 12, 13, and 14, and upon the ground that each was submitted to this court on the first
appeal and decided adversely to defendant, and cannot again be considered. It is the
contention of the state that the second conviction of defendant on the identical charge was
tried upon the same set of facts, circumstances, evidence, and testimony, and that the decision
of this court on the first appeal is the law of the case as to errors complained of in said
assignments and are therefore not reviewable on this appeal.
1. If the facts in this regard are as claimed, the contention is well taken, for it is a firmly
established general rule that an adjudication on the first appeal is the law of the case on all
subsequent appeals in which the facts are substantially the same. C. J. S., Appeal and Error,
p. 1267, sec. 1821a; 3 Am. Juris. 541-544, sec. 985; Wright v. Carson Water Co., 22 Nev.
304, 39 P. 872; Crosman v. Southern Pac. Co., 44 Nev. 286, 194 P. 839; Bottini v. Mongolo,
45 Nev. 252, 200 P. 451; Barrett v. Franke, 48 Nev. 175, 228 P. 306. The rule is the same in
criminal cases. 24 C. J. S., Criminal Law, p. 690, sec. 1840; 8 Cal. Jur. 568, sec. 567; People
v. Marshall, 209 Cal. 540, 289 P. 629; People v. Hatch, 163 Cal. 368, 125 P. 907; Johnson v.
Commonwealth, 225 Ky. 413, 9 S. W. 2d 53.
The first assignment of error made in defendant's opening brief herein, is to the order of
the court in the juvenile department dismissing the juvenile court proceeding against the
defendant, and permitting him to be proceeded against in accordance with the law of this state
governing the commission of crime. We may resort to the record in the first appeal to
ascertain if this point was determined. 3 Am. Juris. 544, sec. 985; Barrett v. Franke, 48 Nev.
175, 177, 228 P. 306. The examination reveals that the same assignment was made therein as
Exception No. 1, in appellant's opening brief, and discussed in his brief as well as in the
state's answering brief.
62 Nev. 312, 316 (1944) State v. Loveless
Assignments 5 and 6 deal with the alleged error in admitting the testimony of witnesses S.
O. Guidici and Frank Giocoechea concerning statements made by defendant in their presence
at the time of his apprehension after the killing of Berning. Both witnesses being dead, their
testimony was read from the transcript thereof at the first trial. It was therefore necessarily the
same on both trialsand assignments 5 and 6 correspond with exception Nos. 2 and 3 on the
first appeal, the claims of error being that the statements amounted to a confession and that no
proper foundation was laid for its admission. The exceptions were fully briefed in the opening
and answering briefs on the first appeal.
2, 3. Assignments 3 and 4 relate to the admission of testimony of witnesses H. B.
Alexander and Dino Aiazzi. They were witnesses also at the first trial. These men were in
company with witnesses Guidici and Giocoechea when defendant was apprehended and their
testimony was substantially the same as the testimony of the latter. The assignment and claim
of error are that the statements made by defendant in their presence amounted to a confession
and that a proper foundation for the admission thereof had not been laid. While Alexander
and Aiazzi were also witnesses at the first trial, the admission of their testimony now
complained of was not assigned as error on the first appeal. These assignments therefore
cannot be urged now. To be availed of they should have been made on the first appeal, as the
assignments concerning the testimony of Guidici and Giocoechea were made. They fall under
the rule recognized in State v. Summers, 9 Nev. 399, of which the court said: The error
claimed in the present record, if existent, arose before the former appeal, and could and
should have been therein considered, if so wished. It is too late to present it now; * * *. 5 C.
J. S., Appeal and Error, p. 1279, sec. 1825; 3 Am. Jur. 549, sec. 995. Moreover, if the
admission of the testimony of Guidici and Giocoechea concerning defendant's statements
was not error,
62 Nev. 312, 317 (1944) State v. Loveless
admission of the testimony of Guidici and Giocoechea concerning defendant's statements was
not error, it follows that the admission of substantially the same testimony by Alexander and
Aiazzi, was not error under the rule of the former decision.
Assignment of error number 8 on this appeal, corresponds in all respects with Exception
No. 5 of the first appeal. The error claimed in both instances goes to the admission of the
testimony of witness Sheriff Harper as insufficient foundation for the introduction of the
signed confession of the defendant. The testimony was the same on both trials, for the witness
not being within the state at the time of the second trial, his testimony was read into the
record from the transcript of the first trial. The assignment and exception were fully briefed
on both appeals.
Assignments of error Nos. 12, 13, and 14 concern instructions number 18, 19 and 20 given
on the second trial. They correspond to exceptions number 9, 10, and 12 of the first appeal, as
to error in giving instructions number 15, 16, and 18, given on the first trial. A comparison of
these instructions on both trials discloses that they are substantially the same. The
assignments of error and exceptions were fully briefed on both appeals. We are of the opinion
that the motion of the state to strike these assignments of error must, under the facts stated,
and the rule applicable, be allowed. We do not understand defendant as questioning the
general rule heretofore stated in this opinion, that after a case is remanded, the court on the
second appeal will not consider those questions adjudicated on the first appeal. Consequently
we will content ourselves with quoting from Wright v. Carson Water Co., supra, which states
the rule and the reason thereof. The court said [22 Nev. 304, 39 P. 873]:
The decision (on the first appeal) is the law of the case, not only binding on the parties
and their privies, but on the court below and on this court itself. A ruling of an appellate
court upon a point distinctly made upon a previous appeal is,
62 Nev. 312, 318 (1944) State v. Loveless
of an appellate court upon a point distinctly made upon a previous appeal is, in all subsequent
proceedings in the same case upon substantially the same facts, a final adjudication, from the
consequences of which the court cannot depart. The supreme court has no power to review its
own judgments in the same case, except upon petition for rehearing, in accordance with the
rules established for that purpose. Such are the decisions of more than two hundred cases,
decided in more than thirty states of the Union, besides a great number of the federal courts,
including the supreme court of the United States.
No rehearing was sought in the case of State v. Loveless, supra.
4. Defendant contends, however, that the finding of this court on the first appeal above set
out and relied on by the state as decisive of the questions, is not so for the reason that it was
unnecessary to the decision, and dictum.
There is no merit in this contention. The opinion expressed by this court on the former
appeal as to the questions arising in the case, was not obiter dictum. It did not go beyond the
case presented. The attention of the court was particularly called to them by defendant as
points warranting a reversal: Dictum, said this court in an early case, is defined to be an
opinion expressed by a Judge on a point not necessarily arising in a case. * * * The reason
assigned for their not being entitled to weight is that usually they (dicta) are upon some point
not discussed at barsomething to which the attention of the Court has not been particularly
calledand something on which the Judge uttering them may not have reflected a moment
before expressing his opinion. State of Nevada ex rel. Nourse v. Clarke, 3 Nev. 566. Such is
not the case here. As we have pointed out, the questions were involved in the former appeal,
briefs addressed to them by defendant and the state. They were orally argued and submitted to
the court for consideration and decision, and decided.
62 Nev. 312, 319 (1944) State v. Loveless
Addressing itself to the question of dictum, and citing State of Nevada ex rel. Nourse v.
Clarke, supra, the supreme court of Iowa said: But by no authority is the expression of the
views of the court on a question in the case regarded as dictum. State v. Brookhart, 113
Iowa, 250, 257, 84 N. W. 1064, 1066. It is a mistaken opinion, said the court in Brown v.
Chicago, etc., Ry., 102 Wis. 137, 154, 77 N. W. 748, 78 N. W. 771, 772, 44 L. R. A. 579,
that nothing is decided in a case except the result arrived at. All the propositions assumed by
the court to be within the case, and all the questions presented and considered, and
deliberately decided by the court, leading up to the final conclusion reached, are as effectually
passed upon as the ultimate questions solved. Trustees v. Stocker, 42 N. J. L. 115. The
judgment is authority upon all points assumed to be within the issues which the record shows
the court deliberately considered and decided in reaching it. Quackenbush v. Railroad Co., 71
Wis. 472, 37 N. W. 834; Pray v. Hegeman, 98 N. Y. 351. Nothing is obiter, strictly so called,
except matters not within the questions presented,mere statements or observations by the
judge who is writing the opinion, the result of turning aside for the time to some collateral
matter by way of illustration. Citing, among other cases, State ex rel. Nourse v. Clarke,
supra.
It was necessary to decide the questions arising on the first appeal, notwithstanding the
ruling of reversal was on a different ground. As pertinently remarked in Florida Central
Railroad Co. v. Schutte, 103 U. S. 118, at page 143, 26 L. Ed. 327: It cannot be said that a
case is not authority on one point because, although that point was properly presented and
decided in the regular course of the consideration of the cause, something else was found in
the end which disposed of the whole matter. True, it was not essential to the decision
reversing the judgment to decide these questions to dispose of the appeal, but it was necessary
to decide them to establish the law of the case on all points involved,
62 Nev. 312, 320 (1944) State v. Loveless
and for the guidance of the lower court on retrial as to the issues which could reasonably be
anticipated to be made thereon. This expectation became a reality on the second trial and the
evidence was substantially the same as on the first trial. It would have been manifestly
improper in this court not to have decided the questions presented to it, and to have dumped
them back into the lap of the lower court in a fluid state, with all the uncertainty such a
condition would cause.
The decision on the questions, we repeat, was decidedly not obiter, and at the least, was
judicial dictum, which counsel for defendant seems to concede. However strictly regarded as
judicial dictum, it was nevertheless binding as an authority on all questions decided. Brown v.
Chicago, etc., Ry. Co., supra; Chase v. American Cartage Co., 176 Wis. 235, 186 N. W. 598;
City of Detroit et al. v. Public Utilities Commission, 288 Mich. 267, 286 N. W. 368; Scovill
Mfg. Co. v. Cassidy, 275 Ill. 462, 114 N. E. 181, Ann. Cas. 1918e, 602; Martin v.
Commonwealth, 265 Ky. 292, 96 S. W. 2d 1011.
Whenever a question fairly arises in the course of a trial, said the court in Chase v.
American Cartage Co., supra [176 Wis. 235, 186 N. W. 599], quoting approvingly from
Union Pacific R. Co. v. Mason City, etc., R. Co., 199 U. S. 160, 166, 26 S. Ct. 19, 50 L. Ed.
134, and there is a distinct decision on that question, the ruling of the court in respect thereto
can, in no just sense, be called a mere dictum.
And further, the court said:
* * * When a court of last resort intentionally takes up, discusses, and decides a question
germane to, though not necessarily decisive of, the controversy, such decision is not a dictum,
but is a judicial act of the court which it will thereafter recognize as a binding decision.
The principle above declared was sanctioned in City of Detroit et al. v. Public Utilities
Commission, supra.
In Scoville Mfg. Co. v. Cassidy, supra, it was held that an expression of opinion upon a
point in a case deliberately passed upon by the court should be held as judicial dictum
rather than a mere obiter and binding as an authority.
62 Nev. 312, 321 (1944) State v. Loveless
that an expression of opinion upon a point in a case deliberately passed upon by the court
should be held as judicial dictum rather than a mere obiter and binding as an authority.
The court, in State ex rel. Nourse v. Clarke, supra, held judicial dictum to be an
authoritative decision. See Dooly v. Gates, 194 Ga. 787, 22 S. E. 2d 730; Sowders v.
Coleman et al., 223 Ky. 633, 4 S. W. 2d 731.
We are aware that it has been held that judicial dictum is not of equal binding force as an
authority, as the point on which the decision of the case turned. But we think this is a rule too
rigid to be recognized as the law of this jurisdiction.
According to the more rigid rule, says Bouvier, any expression of opinion however
deliberate upon a question however fully argued, if not essential to the disposition that was
made of the case, may be regarded as dictum; but it is, on the other hand, said that it is
difficult to see why, in a philosophical point of view, the opinion of the court is not so
persuasive on all the points which were so involved in the cause that it was the duty of
counsel to argue them, and which were deliberately passed over by the court, as if the
decision had hung upon but one point. 1 Bouvier's Law Dictionary, Rawle's Third Revision,
p. 863.
And Bouvier further declares:
So also it has been held, with respect to a court of last resort, that all that is needed to
render its decision authoritative is that there was an application of the judicial mind to the
precise question adjudged; and that the point was investigated with care and considered in its
fullest extent.
Assignments of error numbered 1, 3, 4, 5, 6, 8, 12, 13, and 14 are stricken in compliance
with the state's motion.
We now turn to those assignments of error that were undecided by our opinion on the
former appeal.
Assignment of error number 2 is that the verdict is contrary to the evidence and the law,
in that the evidence will not support a conviction of murder of the first degree.
62 Nev. 312, 322 (1944) State v. Loveless
contrary to the evidence and the law, in that the evidence will not support a conviction of
murder of the first degree. A statement of the case should be made before discussing this
assignment. On the 20th day of August, 1942, the defendant, a boy who was then between
fifteen and sixteen years of age, and a companion around that age, travelling westward in a
stolen car, arrived in Elko, Nevada, near the hour of 9:00 a. m. They had quarrelled along the
road and agreed to separate. About 9:15 a. m. on that day, defendant stole an automobile in
Elko and continued on his way westward along U. S. Highway 40 toward Carlin, in Elko
County. He was followed shortly afterwards by his former companion. The constable of
Carlin, A. H. Berning, who had been notified of the theft of the car in Elko intercepted the
defendant on the highway near the former place. He said to the defendant, I have got to take
you in, Buddy, and went around on the right of the car, got in and closed the door. After
Berning got into the car and told the defendant to drive him to Elko, the defendant shot him
twice with a revolver. The bullet from one shot penetrated the officer's neck, and the other
inflicted a slight wound on his side. Berning died from the effect of the wound in the neck a
few days later. After the shooting defendant drove westward with the officer in his wounded
condition some fifteen or twenty miles to a point on the highway where the road was under
construction, and there abandoned the car and the officer. Shortly afterwards the defendant
was apprehended on the highway by a posse about twenty-eight miles west of Carlin. One of
the posse took from him a thirty-eight Colt revolver. When asked if he had any trouble with
an officer up the road, he said: Yes, I shot him twice.
On August 21, 1942, in the sheriff's office in Elko County, in the presence of the sheriff
and district attorney and several others, the defendant made a confession which, on the next
day, was reduced to writing by a shorthand reporter who heard the questions and answers,
and was signed by the defendant and acknowledged before a notary public.
62 Nev. 312, 323 (1944) State v. Loveless
shorthand reporter who heard the questions and answers, and was signed by the defendant and
acknowledged before a notary public. In his confession the defendant stated that he was born
November 6, 1926. He detailed how he and his companion, Dale H. Cline, had escaped from
a reform school at Plainfield, Indiana, on August 15, 1942, to which he had been committed
for burglary, and made their way west, stealing a couple of cars and committing a series of
burglaries on the way, finally arriving in Elko on the day of the shooting, where he stole the
car he was driving when stopped by the constable. He admitted shooting the officer twice,
and his statements concerning the shooting, and his subsequent actions, are as follows:
Q. You say the constable stopped you? A. Yes, sir.
Q. Where? A. By Carlin.
Q. How did he stop you? A. I seen him out there on the road and I just stopped.
Q. What happened then? A. He said he would have to take me back for being in a car I
didn't belong in.
Q. After the officer, Mr. Berning, had told you that he had to take you back, what
happened then? A. He got in the car and I pulled out a gun and said I wouldn't go back with
him. He grabbed the gun and I shot him. The gun got jammed and we started fighting and
then I pulled the trigger again and it worked, and I drove off down the road. Stopped the car
and got into the Buick.
Q. How many times did you shoot Mr. Berning? A. Twice.
Q. Where did the bullet strike him? A. I don't know.
Q. Did you see any blood? A. Yes, sir.
Q. Where? A. Coming out of his mouth.
Q. Did Mr. Berning say anything after he was shot? A. He talked a little.
Q. What did he say? A. He said he couldn't stand the pain.
62 Nev. 312, 324 (1944) State v. Loveless
Q. Did you tell him what you were going to do with him? A. I was going to take him to a
doctor.
Q. Where did you last see Mr. Berning? A. Where they were working on a construction.
Q. Where was he? A. In the car.
Q. You left him in the car? A. Yes, sir.
Q. Then what did you do? A. Got in the Buick.
Q. When you got into the Buick did you have any conversation with Dale Cline? A. Yes,
sir.
Q. What was that conversation? A. I told him what had happened.
Q. What did he say? A. He didn't say anything until we got down the road a piece and
then Dale Cline said he saw a gun by a bush and I got out of the car to look for it and he
drove off. * * *
Q. Just where was Mr. Berning standing when you shot him the first time? A. He was
sitting in the car.
Q. How long had he been in the car? A. About a minute and a half.
Q. Did you have your gun out in your hand before that time? A. No, sir.
Q. Did Mr. Berning ever draw his gun? A. No, sir.
Q. How long was it between the time of the first shot until you fired the second shot? A.
Half a minute or minute.
Q. And during that period of time what happened or took place in the car? A. He was
trying to get the gun away from me.
Q. Was the car moving at that time? A. No, sir, it was sitting still.
Q. How long after the second shot was fired until you started west again? A. Quick as I
got the car started.
Dale H. Cline, who was a witness for the state, testified that he caught up with defendant
before he reached Carlin and stopped right behind him when defendant was stopped by the
officer; that the officer waved him around the defendant and told him to go on, and as he
drove away he looked through the back window of the car and saw
62 Nev. 312, 325 (1944) State v. Loveless
car and saw Floyd (the defendant) and the constable wrestling around in the car, fighting or
something; that he stopped at a filling station a little further on; that while he was there
defendant drove by and waved to him to follow; that he next saw defendant at a point where
some road work was going on; that his car was parked on the left side of the road; that
defendant waved him down; that he stopped and defendant got into Dale's car and they went
on; that he asked defendant what happened and the latter said he had to shoot the sheriff; that
when he was about one or two miles further on he told defendant that he saw a gun on the
side of the road and as defendant got out to look for it he drove away and left him.
The above statement contains all the evidence that has any bearing on the question.
On the oral argument counsel for defendant stated that said assignment number 2
presented their main point in the case. The killing of the constable is not denied, nor is it
denied that the offense proved was murder. But they contend that though it be murder, it is, at
the most, murder of the second degree, because there is no sufficient or any proof of that
deliberation and premeditation essential to the higher degree of murder.
5. We cannot lend our assent to this view. On the contrary, the circumstances of the case
are such that we feel no difficulty in determining that the jury were well justified in finding
that the killing of the officer was willful, deliberate, and premeditated. Putting aside the
evidence which discloses that the accused was a criminal character who, shortly prior to the
killing, had traversed the streets of Elko armed with a concealed and deadly weapon, looking
for an opportunity to commit a crime, and that he had committed it by stealing an automobile,
and was driving it away when accosted and stopped by the officer, the immediate
circumstances surrounding the shooting were in themselves sufficient to warrant a legitimate
inference that prior to the firing of the first shot defendant had formed the deliberate
design to kill the officer.
62 Nev. 312, 326 (1944) State v. Loveless
to the firing of the first shot defendant had formed the deliberate design to kill the officer. It
may have been a conditional design to be accomplished if the officer undertook to arrest him,
but even so, when carried into effect on the occurrence of the event it was sufficient
deliberation and premeditation to warrant the finding of the jury. The argument in support of
the contention that murder of the first degree was not proved, is based on the assumption that
the evidence shows without conflict, that the shooting was done during a struggle, and that
this precluded the formation of a deliberate design to kill. But the jury could have well
believed that there was no struggle, at least until the defendant undertook to shoot the officer
pursuant to his declared determination not to go back with him. From the time of his first
contact with the officer, when the latter told him he would have to bring him back for being
in an automobile he didn't belong in, the defendant had ample time to reflect upon his line of
action while the constable was walking around in front of the automobile and was entering
the car. Then the event proved the defendant was ready for action. He drew his gun to enforce
his resistance and the shooting followed.
6, 7. But conceding, for the purpose of discussion only, the contention of defendant that
the intent to shoot Berning was formed during a struggle, that does not preclude deliberation
and premeditation. It does not matter how short the time is before the premeditated design is
carried into effect. State v. Millain, 3 Nev. 409; State v. Ah Mook, 12 Nev. 369; State v.
Acosta, 49 Nev. 184, 242 P. 316. The question of premeditation is always one of fact for the
jury, and each case is governed by its own circumstances. The cases cited by counsel in
support of their contention that deliberation and premeditation could not be formed during a
struggle, are cases of mutual combat and are authority only under the particular circumstances
involved. They are not analogous with the facts here, which, under no theory,
62 Nev. 312, 327 (1944) State v. Loveless
theory, can be said to be a case of mutual combat, but instead, the case of an officer
apprehending a criminal with the fruits of his crime in his possession, and endeavoring to
make an arrest. The evidence is clear that defendant knew at the time that Berning was an
officer. He told Cline when the latter took him into his car: I had to shoot the sheriff. Why
did he feel he had to shoot the officer? Not in self-defense. This is not pretended. The
defendant said the officer did not draw his gun. Obviously he shot him to avoid arrest for the
commission of a felony. His intention was deadly. The character of the weapon used and the
manner of its use precludes any inference other than intent to kill.
8. Assignment number 7 presents the alleged error of the court in permitting the state to
read in evidence the testimony of Dale H. Cline, stenographically reported by the official
reporter at defendant's first trial. There was no error. This was permissible under section
11252, N. C. L., the witness then being beyond the jurisdiction of the court. A proper
foundation was laid showing the witness to be at the time in an institution in Inglewood,
Colorado, and by proving the testimony to be correct in accordance with the terms of the
statute.
9. The contention under this assignment that the court committed error in refusing to grant
a continuance from the then Tuesday to the following Friday, when it appeared that the
witness would be available at the latter date, is without merit, for the reason alone that the
defendant did not ask for a continuance.
10. Under assignment number 9 objection is taken to the ruling of the court in refusing
instruction number 1, offered by defendant, which is as follows:
If you find from the evidence beyond a reasonable doubt that the said A. H. Berning, the
deceased, was unlawfully, feloniously and unjustifiably shot and wounded by the defendant
and as a result thereof died thereafter as charged in the information,
62 Nev. 312, 328 (1944) State v. Loveless
thereafter as charged in the information, and that the killing was the result of malice suddenly
produced at the time the fatal shot was fired and was without premeditation and deliberation,
then it is your duty to find the defendant guilty of murder in the second degree.
The court's refusal was based upon the ground that the requested instruction was covered
by another instruction. The ruling was correct. The record shows that the jury was fully and
properly instructed by the court as to what constituted murder of the first degree. In these
instructions the point of the refused instruction that murder, without deliberation and
premeditation, is murder of the second degree, was as favorable for defendant as the
instruction refused. It has been held many times by this court that the refusal, under such
circumstances, of an instruction offered by defendant, is not error. State v. O'Connor, 11 Nev.
416; State v. Buralli, 27 Nev. 41, 74 P. 532, and Nevada decisions cited therein; State v.
Willberg, 45 Nev. 183, 200 P. 475. The refusal was not an error in this case.
11, 12. Assignment of error number 10 goes to the refusal of the court to give defendant's
offered instruction containing the statutory definition of manslaughter. It was refused upon
the ground that it was not applicable in view of the evidence. We might dispose of this
contention on the simple ground that the jury having found the defendant guilty of murder of
the first degree on evidence amply sufficient to justify the verdict, the defendant could not
have been prejudiced by the refusal of the court to give the instruction requested. However, in
manslaughter, there must be absence of malice, and there is no evidence in the case tending to
show in the slightest degree that the defendant was not actuated by malice in shooting the
officer. The contrary, we think, was clearly established. The defendant admitted that the
officer merely sought to effect an arrest. No unlawful act was attempted. If the officer
grabbed the gun, as defendant stated, it was an act of self-defense and done pursuant to his
authority to arrest the defendant.
62 Nev. 312, 329 (1944) State v. Loveless
an act of self-defense and done pursuant to his authority to arrest the defendant. The
circumstances of the killing are sufficient to bring into operation the rule of the statute, that
malice shall be implied when no considerable provocation appears, or when all the
circumstances of the killing show an abandoned and malignant heart. There was no error in
refusing the proposed instruction.
13. Instruction number 6, complained of in assignment of error number 11, was not
erroneous. It reads:
You are instructed that if you find, beyond a reasonable doubt, that the defendant, Floyd
Loveless, did or on about the 20th day of August, 1942, near the City of Carlin, County of
Elko, State of Nevada, with malice aforethought, and with intent then and there to kill one A.
H. Berning, shoot and critically wound and injure the said A. H. Berning with leaden shots
discharged from a revolver held in the hands of and fired by the said defendant, thereby
causing the death of the said A. H. Berning on August 22, 1942, you will find the said
defendant guilty.
It is claimed that the instruction is erroneous and misleading because, omitting the
elements of deliberation and premeditation, it could have lead the jury to believe though it did
not find these elements, it could convict the defendant of murder of the first degree. It is
asserted that the instruction was particularly susceptible to the fault because based on the
allegations of the information which, the court instructed, charged murder of the first degree.
We find no fault in the instruction. It did not tell the jury that if it found the facts stated it
could find the defendant guilty of murder of the first degree, but that it could find the
defendant guilty. This was technically correct. We do not think the instruction could have
been misleading when considered in connection with the other instructions defining murder
of the first and second degree, as the court instructed the jury to do. The distinction between
the two degrees was clearly drawn in the other instructions.
62 Nev. 312, 330 (1944) State v. Loveless
between the two degrees was clearly drawn in the other instructions.
This disposes of all the errors assigned that were not disposed of on the first appeal.
No prejudicial error appears in the record.
The judgment and order denying the motion for a new trial 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.
____________
62 Nev. 330, 330 (1944) Sellai v. Lemmon
JULIA SELLAI, as Administratrix of the Estate
of G. Sellai (also known as John Sellai),
Deceased, Appellant, v. ALFRED F. LEMMON,
Doing Business Under the Firm Name and
Style of Lemmon and Travers, Respondent.
No. 3407
August 17, 1944. 151 P.(2d) 95.
1. Sales.
Conditions of conditional sales contract whereby seller, on default of buyer, may repossess the subject
thereof, sell it at private sale and bring suit for deficiency, are not inconsistent with retention of title in
seller, nor restricted by law, nor are they contrary to public policy.
2. Executors and Administrators.
A suit cannot be maintained upon a claim required to be filed in probate unless it has been so filed within
time prescribed by statute.
3. Executors and Administrators.
A claim against estate of a decedent need not be detailed with same particularity required in pleading a
cause of action upon the claim.
4. Executors and Administrators.
Where claim against estate of a decedent for balance allegedly due on a conditional sales contract had
been duly filed and rejected, a subsequent cause of action for balance claimed to be due on the contract,
which was more particularized than the claim to meet requirements of a pleading, was not materially
different from the claim because there was a slight difference between balance sued for and balance of the
claim due to an error in calculation or because a subsequent cause of action sought
recovery of attorney's fees stipulated in the contract while no mention of it was made
in the claim.
62 Nev. 330, 331 (1944) Sellai v. Lemmon
claim due to an error in calculation or because a subsequent cause of action sought recovery of attorney's
fees stipulated in the contract while no mention of it was made in the claim.
5. Sales.
Evidence failed to establish that seller by repossessing bottle file and selling it in accordance with
provision in conditional sales contract thereby waived any claim against buyer for deficiency under original
contract.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Action by Alfred F. Lemmon, doing business under the firm name and style of Lemmon &
Travers, against Julia Sellai, as administratrix of the estate of G. Sellai, also known as John
Sellai, deceased, on a conditional sales contract. From a judgment for plaintiff and from an
order denying motion for new trial, the defendant appeals. Affirmed.
W. M. Kearney, of Reno, for Appellant.
Thatcher & Woodburn, of Reno, for Respondent.
OPINION
By the Court, Ducker, J.:
Action on a conditional sales contract. Judgment for plaintiff for the balance due thereon.
Appeal therefrom and from the order denying the motion for a new trial. Reference to the
parties will be continued as they were designated in the court below.
The amended complaint shows among the facts alleged, as follows: On the 24th day of
July 1941 G. Sellai, also known as John Sellai, died intestate and on the 11th day of August
1941 letters of administration were issued to the defendant by the second judicial district
court, who duly qualified and entered upon her duties as such administratrix; that on January
30, 1942,
62 Nev. 330, 332 (1944) Sellai v. Lemmon
1942, after leave of said court duly obtained, plaintiff filed a claim for payment of the
contract hereinafter described, which was rejected by defendant and notice thereof given to
plaintiff; that on or about the 22d day of May 1941 plaintiff and defendant's intestate made
and entered into a written contract of conditional sale, copy of which was attached to and
made a part of the amended complaint and marked Exhibit A, by the terms of which
plaintiff sold to defendant's intestate one 4DD Col-Temp Bottle File at the total price of
$1,138.50 payable in monthly installments of $47.44 beginning on the 1st day of July 1941,
and payable on the 1st day of each month thereafter until the whole of said sum should be
paid; that in accordance with the terms thereof plaintiff delivered to defendant's intestate said
4DD Col-Temp Bottle File and the same was installed in the premises of defendant's intestate
known as the Reno Bar in Reno; that defendant's intestate and defendant made the monthly
payments provided for in said contract in installments of $47.44 on July 1, 1941, and on the
first day of each month thereafter up to and including December 1, 1941, and informed
plaintiff that no further payments would be made upon said contract, and since then none has
been made; that title to said 4DD Col-Temp Bottle File was, under the terms of said contract,
Exhibit A attached hereto, retained by the seller until all sums due under the contract were
fully paid, and the seller was given the right under the contract, upon default in any payments
on the part of the buyer, to declare the full amount due upon said contract immediately due
and payable, and to repossess the said 4DD Col-Temp Bottle File and sell the same at public
or private sale and apply the proceeds to the payment of the indebtedness; that in accordance
therewith the plaintiff declared the whole of the balance of said contract price to be due and
payable, and repossessed the said 4DD Col-Temp Bottle File, and sold the same at a private
sale for $400, which sum plaintiff credited upon the balance remaining unpaid upon said
contract,
62 Nev. 330, 333 (1944) Sellai v. Lemmon
plaintiff credited upon the balance remaining unpaid upon said contract, to-wit, the sum of
$853.88, leaving a balance due, owing and unpaid from defendant's intestate to plaintiff, in
the sum of $453.88.
It shows that the contract provides that the purchaser agrees to pay seller a reasonable
attorney's fee incurred by seller in the repossession of said property, and that it has been
necessary for plaintiff to employ attorneys, and that the services of such are of the reasonable
value of $250. It further shows that on May 22, 1941, said contract was assigned by plaintiff
to First National Bank of Nevada, and prior to the institution of this action, was reassigned by
said bank to plaintiff.
The amended complaint prayed for judgment against defendant in the sum of $453.88,
attorney's fees in the sum of $250, for costs of suit, all to be payable out of said estate in the
due course of administration. A demurrer to the amended complaint on the ground that it does
not state facts sufficient to constitute a cause of action against defendant, was overruled.
Defendant's answer and amendment to her answer consists of admissions and denials. The
execution of the conditional sales contract by defendant's intestate was denied, and it was
denied that any installment payments were made by either.
As a separate defense defendant alleged that after Sellai's death she simply rented the
bottle file, but had surrendered possession to the plaintiff under an agreement that no claim
would be filed for the deficiency; that plaintiff entered into an agreement with defendant,
whereby, in consideration of the surrender of all rights in and to and possession of said
Col-Temp Bottle File to plaintiff, and a waiver of any claim of defendant for an equity therein
and permission of defendant to allow said Col-Temp Bottle File to remain in the said saloon
premises until the purchaser took possession, plaintiff would accept such surrender and
possession in satisfaction of any and all claims of plaintiff against said defendant as
administratrix;
62 Nev. 330, 334 (1944) Sellai v. Lemmon
in satisfaction of any and all claims of plaintiff against said defendant as administratrix; and
thereupon the possession of said Col-Temp Bottle File was surrendered to plaintiff. It was
further alleged in separate defense that the said Col-Temp Bottle File when surrendered,
could have been sold by defendant to the purchaser of the saloon business of the estate for the
sum of $400, and that the defendant had an offer of $600 for the same from the purchaser,
which plaintiff refused to accept, and that the reasonable market value of said Bottle File at
the time of said surrender was greater than the balance due on said alleged contract of sale.
These allegations of said separate defense were denied in the reply. The trial court found in
conformity with the allegations of the amended complaint and against the separate defense.
1. The conditions of the contract whereby plaintiff, on default of defendant repossessed the
subject thereof, sold it at private sale and brought suit for the deficiency, were terms which
could be validly imposed in the contract. They are not inconsistent with the retention of title
in the seller, nor restricted by law, nor are they contrary to public policy. Such terms have
been recognized as valid in this and other jurisdictions. Studebaker Bros. Co. v. Witcher, 44
Nev. 442, 195 P. 334; 37 A. L. R. p. 94; 83 A. L. R. p. 963.
2, 3. But defendant contends that the cause of action for the balance claimed to be due on
the contract, is different from the claim filed in the estate proceedings. A number of
authorities are presented in the brief in support of this contention. We have examined them
and have no quarrel with them. They simply do not fit the case at bar. They go to the
well-established rule that a suit cannot be maintained upon a claim required to be filed in
probate unless it has been so filed within the time prescribed by statute. But here there has
been a claim duly filed and rejected, and on which the action is brought. The contention that
there is a material difference between the claim and the cause of action set out in the
amended complaint,
62 Nev. 330, 335 (1944) Sellai v. Lemmon
material difference between the claim and the cause of action set out in the amended
complaint, is due to a mistaken notion that the former must be detailed with the same
particularity required in pleading a cause of action upon it. The law is based upon reason and
it would be unreasonable to require a claimant to seek the services of an attorney in preparing
a claim against an estate with the attendant inconvenience and expense, or take the risk of
losing a just claim. A claim need not stand the test of a pleading. Kirman v. Powning, 25 Nev.
378, 60 P. 834, 837, 61 P. 1090. In the above case the court said: * * * We are of the opinion
that if it was the manifest intention of the legislature that formal and technical pleading
should not be required in the presentation of claims; that the court should investigate these
claims in a summary manner without pleadings that required the skill and learning of an
attorney at law in their preparation; that by such procedure expense and delays to both
claimants and the estate should be avoided. * * * We are of the opinion that a claim, or
statement of a claim, properly verified, which shows the nature and character and amount of
same, and the liability of the estate of the decedent, and, if there is future litigation as to the
fact of presentment, it can be distinguished from all other similar claims, and is sufficient to
bar another proceeding upon it, is a sufficient compliance with the terms of these sections of
the statute when given the liberal construction of the statutory rule above quoted.
This decision was made under the probate act of 1897, but there is nothing in the probate
act of 1941 to indicate that the legislature intended a more technical presentation of claims
against the estate. The decision in Kirman v. Powning, supra, is in accord with the general
view. See the long list of cases in 74 A. L. R. beginning on page 369, and the text in Bancroft
Probate Practice, vol. 3, at pages 1538 and 1539.
4. Under the rule of the above authorities the claim filed in this case is quite readily
identified as the cause of action alleged in the amended complaint.
62 Nev. 330, 336 (1944) Sellai v. Lemmon
filed in this case is quite readily identified as the cause of action alleged in the amended
complaint. It is the same claim merely particularized to meet the requirements of a pleading.
The cause of action is for the balance due on the contract for the Col-Temp Bottle File after
installments and the amount of $400 received from the sale credited, to-wit, $453. The claim
filed and rejected shows that it was for balance due upon the sale of the Col-Temp Bottle File
in the sum of $440, and was sworn to by plaintiff. A statement attached shows the credits
allowed and the said balance due. The slight difference between the balance sued for and the
balance of the claim is due to an error. The fact that the conditional sales agreement contained
a stipulation for attorney fees, while the claim filed made no mention of this, is of no
importance as denoting a substantial difference between the latter and the cause of action.
The inclusion of this part of the agreement in the claim filed would have been useless. The
court allowed no attorney fee, and the fact that one was agreed upon is immaterial.
5. Defendant's contention that the cause of action is a different claim is without merit. Nor
is there any merit in the second point made by defendant, that in repossessing the bottle file
and selling it, the plaintiff waived any claim for a deficiency under the contract. This point is
based upon that part of the separate defense in which an agreement between plaintiff and
defendant to that effect is alleged. As previously stated, the trial court found against the
separate defense. Its findings as to the alleged agreement and waiver are as follows:
That it is not true that there was any agreement between plaintiff and defendant for the
release of defendant for liability for the purchase price of said Col-Temp Bottle File and the
payment of daily rental therefor.
That it is not true that plaintiff entered into an agreement with defendant whereby
defendant agreed to waive on behalf of the estate any equity in said bottle file,
62 Nev. 330, 337 (1944) Sellai v. Lemmon
agreement with defendant whereby defendant agreed to waive on behalf of the estate any
equity in said bottle file, and whereby plaintiff would accept surrender and possession of said
Col-Temp Bottle File in satisfaction of any or all claims of plaintiff against the estate of G.
Sellai and defendant as Administratrix of said estate.
The evidence supports these findings. Plaintiff's testimony, which was accepted by the trial
court, was sufficient as to this.
It is the claim of the defendant that the mere repossession and sale of the bottle file by
plaintiff operated as a waiver of his rights under the contract. As previously stated, those were
terms that could be validly imposed in a conditional sales contract, including the right to sue
for the balance due. Authorities cited, supra. See also Lindley & Co. v. Piggly Wiggly, 55
Nev. 458, 39 P. 2d 903. It is therefore not apparent how, by pursuing the procedure of
repossession and sale stipulated in the contract, plaintiff could have waived any of his rights
under it.
The dissenting opinion in Mariner v. Milisich, 45 Nev. 193, 200 P. 478, relied on by
defendant as authority for her position, is of no force. The views expressed therein were dicta
and contrary to the law of this case.
This disposes of the points made and discussed by defendant in the opening brief.
Judgment and order denying a new trial should be affirmed.
It is so ordered.
____________
62 Nev. 338, 338 (1944) Frohlich v. District Court
AUGUST C. FROHLICH, as Receiver of Pacific American Life Insurance Company, a
Corporation, Petitioner, v. THE DISTRICT COURT OF THE SECOND JUDICIAL
DISTRICT OF THE STATE OF NEVADA in and for the County of Washoe, and
HONORABLE EDGAR EATHER, Judge Thereof Presiding in Department No. 1,
Respondents.
No. 3414
August 17, 1944. 150 P. (2d) 1013.
1. Prohibition.
Where petitioner has a plain, speedy and adequate remedy at law, writ of prohibition will not issue.
2. Prohibition.
A receiver of an insolvent life insurer was not entitled to prohibition to prevent district court from further
proceeding on a beneficiary's petition directing the receiver to endorse a check issued by a reinsurer to the
receiver for the face value of the beneficiary's benefits under a life policy, where in event of an adverse
judgment the receiver would have an adequate remedy by appeal and where the reinsurer had stopped
payment on the check and had stated that it would permit the matter of remain in status quo until a
determination was had as to who was entitled to the money.
Original proceedings by August C. Frohlich, as receiver of Pacific American Life
Insurance Company, a corporation, against the District Court of the Second judicial District
of the State of Nevada in and for the County of Washoe, and Honorable Edgar Eather, Judge
thereof presiding in Department No. 1, for a writ of prohibition. Application denied and
petition dismissed.
W. M. Kearney, of Reno, for Petitioner.
M. A. Diskin, of Reno, for Respondent.
OPINION
By the Court, Orr, C. J.:
Petitioner has made application for a writ of prohibition. We have decided not to issue the
writ, for the reason that the petitioner has a plain, speedy and adequate remedy at law, by
appeal.
62 Nev. 338, 339 (1944) Frohlich v. District Court
reason that the petitioner has a plain, speedy and adequate remedy at law, by appeal.
The following facts appear:
On or about the 7th day of October, 1940, the Pacific American Life Insurance Company,
a corporation, operating in the State of Nevada, issued a policy of insurance to one Edward I.
Blomquist. The said Pacific American Life Insurance Company thereafter entered into a
contract of reinsurance with the Lincoln National Life Insurance Company. On or about
December 27, 1940, the said Edward I. Blomquist died as a result of an automobile accident.
On the 1st day of February, 1941, August C. Frohlich was appointed receiver of the Pacific
American Life Insurance Company, the said Pacific American Life Insurance Company, a
corporation, having become insolvent. At the time of the appointment of the receiver said
Pacific American Life Insurance Company, a corporation, was engaged in the business of
writing life insurance, and numerous life insurance policies were in existence and outstanding
on the date of the appointment of said receiver. Rose Blomquist, the widow of Edward I.
Blomquist, hereinafter referred to as the widow, through her attorney made a claim for the
payment of the insurance policy written in favor of her deceased husband, and, with the
consent of the receiver, M. A. Diskin, the attorney for the widow, communicated with the
Lincoln National Life Insurance Company. In response to said communication, the Lincoln
National Life Insurance Company mailed a check in the sum of $1,259.27, drawn in the name
of the said receiver, addressed to the said receiver in care of the attorney for the widow. The
envelope containing the letter and check was delivered at the law office of M. A. Diskin,
placed on his desk, and by him inadvertently opened. M. A. Diskin, thus having the check in
his possession, took the check and the letter and exhibited them to the attorney for the
receiver, who inspected the letter and the check and returned them to said Diskin. Thereafter
the widow, through her attorney,
62 Nev. 338, 340 (1944) Frohlich v. District Court
her attorney, filed a petition in the Second judicial district court asking for an order directing
the receiver to endorse the check so that the said widow could realize the amount thereof as
the proceeds due her on the life insurance heretofore mentioned. The attorney for the receiver
appeared and filed a motion to strike and a demurrer. The motion to strike was denied and the
demurrer overruled. We issued an alternative writ, and the widow appeared by filing a motion
to strike, a demurrer, and an answer.
1. While several interesting questions are presented by the demurrer and the motion to
strike, we have concluded that it is unnecessary to decide them, as this matter can be
determined upon the one question of whether or not the petitioner has a plain, speedy and
adequate remedy at law. It is unnecessary to cite authority to sustain a holding that where
such a remedy exists the writ of prohibition will not issue.
The petitioner contends: first that he would not be in a position to appeal from an adverse
judgment; and, secondly, that in the event the trial court ordered the receiver to endorse the
check, then the widow would cash the same and there would be no way in which the estate
could be reimbursed in the event that the judgment of the lower court were reversed on
appeal.
The case of State v. State Bank & Trust Co., 36 Nev. 526, 137 P. 400, is urged by the
petitioner as authority for the proposition that the receiver would have no right to appeal. If
the money represented by the check could be considered as funds of the estate in the hands of
the receiver and there was an attempt being made by the widow to have said funds declared a
preferred claim and the trial court should so hold, in such an event no appeal would lie. But
here the situation is quite different; the amount of money represented by the check has never
come into the hands of the receiver, and it is the contention of the widow that it is not an asset
of the estate and the receiver has no right to exercise any control over it; that the policy of
insurance on the life of deceased,
62 Nev. 338, 341 (1944) Frohlich v. District Court
of deceased, Blomquist, having been reinsured by the Lincoln National Life Insurance
Company, the amount is due from said Lincoln National Life Insurance Company to the
widow direct, the same situation as would exist as to any other amount of money which the
receiver might lay claim to and attempt to take into his possession, such claim being disputed
and such action opposed by a third party.
2. The question to be determined in the lower court is whether the receiver has the right to
the possession of the money, to be distributed as an asset of the estate, or whether the widow
should retain possession of it as her property. Under these circumstances it seems clear that in
the event of a judgment adverse to him the receiver would have a right to appeal, because a
decision requiring the money represented by the check to be turned over to the widow would
affect the estate as a whole. Also, a question of the increase of the whole fund in the hands of
the receiver is involved, and such increase, if obtained, would inure to the benefit of all the
creditors. State v. State Bank & Trust Co., supra.
The second question presented is: Would the appeal in such a case be adequate? Reference
is made by the receiver in the case of Buckingham v. Fifth Judicial District Court, 60 Nev.
129, 102 P. 2d 632. That case can be distinguished from the case at bar. In the Buckingham
case it was conceded the trial court had jurisdiction, but prohibition was granted for the
reason that to allow the trial court to proceed with the hearing might result in irreparable
injury. Here the irreparable injury which the receiver claims will result is that should the
check be endorsed and the widow get the money, it could not be recovered. The answer filed
in this proceeding negatives that contention. Since the petition was filed by the widow in the
district court, the Lincoln National Life Insurance Company, the reinsurer, has, at the request
of the receiver, stopped payment on the check, and the said reinsurer, the said Lincoln
National Life Insurance Company, has stated it will allow the matter to remain in status quo
until a determination as to who is entitled to the money is had in the courts.
62 Nev. 338, 342 (1944) Frohlich v. District Court
will allow the matter to remain in status quo until a determination as to who is entitled to the
money is had in the courts. It affirmatively appears from the pleadings that in the event the
trial court made an order that the receiver endorse the said check, the widow could not realize
on it until such time as the legal proceedingsand this means an appeal from the said order
in the event the receiver elected to take that coursehad been terminated.
From what has been said, it follows that the receiver has a plain, speedy and adequate
remedy at law and the writ should not issue.
There is one more matter we feel should receive attention. Mr. Diskin feels that in the
application for a writ of prohibition the receiver has in effect charged him with the
commission of a crime, in that it is alleged that the attorney for the widow opened a letter
addressed to the receiver. The receiver attached to his application a copy of the letter
addressed to the receiver by the Lincoln National Life Insurance Company, and the address
on the letter is to the receiver in care of M. A. Diskin, attorney. However, in the body of the
application for the writ the statement is made that M. A. Diskin opened a letter addressed to
the receiver, omitting to state that the envelope in which the letter was contained was
addressed to the receiver in care of M. A. Diskin. The fact that the copy of the letter was
attached to the application did not supply the information, missing in the application, that the
envelope was addressed to the receiver in care of M. A. Diskin. The record clearly establishes
that in the opening of the envelope not the slightest improper motive or intent existed and the
act was one that might easily occur in any office under similar circumstances.
Application for writ denied and proceedings dismissed.
____________
62 Nev. 343, 343 (1944) Nichols v. Ora Tahoma Mining Co.
J. F. NICHOLS, MYRTLE B. SPOR, ESTELLE PACK, RAY V. MIKESELL, GLADYS
SMITH and BEATRICE POWELL, Appellants, v. ORA TAHOMA MINING
COMPANY (Sometimes known as Indianeen Mining Company, a Corporation), and
FRED G. BERTO, Trustee in Bankruptcy of Indianeen Mines, Inc., A Corporation
(Substituted for Indianeen Mines, Inc.), Respondents.
SAME, Appellants, v. A. F. W. CARLSON, JOHN DOE, RICHARD DOE, THE BLACK
COMPANY and THE WHITE COMPANY, Respondents.
No. 3390
August 30, 1944. 151 P. (2d) 615.
1. Mines and Minerals.
In amending a location the mining claim may be swung if no intervening rights of third parties are
infringed. Comp. Laws, sec. 4125.
2. Mines and Minerals.
Trial court's findings that plaintiffs' mining claims were swung by subsequent amendment as claimed by
defendants, would not be set aside when supported by substantial evidence. Comp. Laws, sec. 4125.
3. Mines and Minerals.
Where plaintiffs' mining claims as originally located were valid, properly monumented locations, the land
covered by them could not be relocated by others until some act or laches of the owners occurred by which
the title reverted to the government. Comp. Laws, sec. 4125.
4. Mines and Minerals.
Generally, when a location is once sufficiently marked on the surface so that its boundaries can be readily
traced, and all other acts of location are performed as required by law, the right of possession is fully
vested in the locator and he cannot be divested thereof by the removal or obliteration or destruction of the
monuments, stakes, marks, or notices, done without his fault, while he continues to perform the necessary
work upon the claim. Comp. Laws, sec. 4125.
5. Mines and Minerals.
Mine locators should use reasonable diligence in preserving and restoring their boundary monuments,
since no presumptions flowing from the antiquity of their mine location will be indulged in as to the
original marking, as against a hostile claimant.
62 Nev. 343, 344 (1944) Nichols v. Ora Tahoma Mining Co.
be indulged in as to the original marking, as against a hostile claimant. Comp. Laws, sec. 4125.
6. Evidence.
The law presumes that, once a man goes into possession as tenant, the relationship continues until the
contrary is made to appear.
7. Mines and Minerals.
Where defendants were in possession of plaintiffs' mining location as tenants at the time of locating
adjoining mining claims, as defendants' claims were invalid insofar as they conflicted with plaintiffs'
claims. Comp. Laws, sec. 4125.
8. Mines and Minerals.
Where it was not shown that plaintiffs, who first located mining claims, had any knowledge as to the
location of defendants' contiguous mining claims at time that plaintiffs amended their claims, plaintiffs
were not estopped to dispute defendants' claims. Comp. Laws, sec. 4125.
9. Mines and Minerals.
Where a mining claim had been duly monumented and amended certificate of location had been filed
before a contiguous claim was located, the later claim was void insofar as it conflicted with the earlier
claim. Comp. Laws, sec. 4125.
10. Mines and Minerals.
Where plaintiffs did not take in any ground by their amended locations which was not before included
within their mining claims, but they merely drew in the lines of the claim so that they would not occupy a
greater area then allowed by law, a contiguous claim subsequently located was void insofar as it conflicted
with plaintiffs' claim, notwithstanding that the certificate of relocation was not filed until after the later
claim was located. Comp. Laws, sec. 4125.
11. Evidence.
Evidence as to statements made by one of the owners of mining claims during his lifetime, with respect to
certain original monuments, was admissible on question of boundaries of adverse claims, when statements
were made at times when there was no motive to misrepresent. Comp. Laws, sec. 4125.
Appeal from Fifth Judicial District Court, Esmeralda County; Wm. D. Hatton, Judge.
Actions by J. F. Nichols and others against Ora Tahoma Mining Company and others, and
by the same plaintiffs against A. F. W. Carlson and others, to establish title to certain mining
claims. From the portion of the judgment adverse to plaintiffs and from order overruling
motion for new trial, plaintiffs appeal.
62 Nev. 343, 345 (1944) Nichols v. Ora Tahoma Mining Co.
order overruling motion for new trial, plaintiffs appeal. Reversed and remanded for new
trial.
Thatcher & Woodburn, of Reno, and William Crowell, of Tonopah, for Appellants.
Walter Rowson, of Reno, for Respondents.
OPINION
By the Court, Taber, J.:
In August, 1922, Nichols, Mikesell and Dennison located the Albert and Albert No. 1 lode
mining claims in the Oneota Mining District, Esmeralda County, Nevada. In September,
1923, in the same mining district and county, they located two additional lode mining claims,
the Albert No. 2 and Albert No. 3. The interest of Dennison in said four claims was
subsequently, and before November 27, 1934, acquired by Nichols and Mikesell who, on the
last-mentioned date, granted a lease and option on all the claims to one Zent. By this
instrument Zent was required to do certain work on the property, and the purchase price was
fixed at $30,000, to be paid within three years. On June 3, 1935, Zent assigned said lease and
option agreement to Ora Tahoma Mining Company.
In November, 1935, Fred G. Berto, then president of Ora Tahoma Mining Company, and
Otto Hanson, a representative and vice president thereof, located the Berto, Bennett, Edith
Hild and Otto Hanson lode mining claims in said mining district and county. Indianeen
Mines, Inc. has succeeded to all the rights of Berto and Hanson in these claims. For the
purposes of the present litigation the respective rights and obligations of Indianeen Mines,
Inc., and Ora Tahoma Mining Company are identical.
The company failed to comply with the provisions of the lease and option agreement of
November 27, 1934.
62 Nev. 343, 346 (1944) Nichols v. Ora Tahoma Mining Co.
of the lease and option agreement of November 27, 1934. After defaulting it entered into a
new agreement with Nichols and Mikesell, dated February 12, 1938. This agreement granted
a further lease and option upon said four claims in the Albert group and nine other claims.
The company was given until January 31, 1940, to purchase all said claims for $45,000. A
number of payments were made under this contract, but the company defaulted in the $3,000
payment due in September, 1939. On the 28th of November following, the company was
notified that the agreement would be canceled if the required payment was not made within
thirty days. The money was not paid within that time, and a further notice of default was
given January 8, 1940. Responding to this notice the president of the company, on January
12, 1940, wrote to Mr. Nichols in part as follows:
This is to acknowledge your formal notice of cancellation dated January 8, 1940. We are
sorry that we were unable to keep up this contract * * * if you do not immediately dispose of
your property it may be that we can get together a little later on * * * you have always been
most fair to us, we just were being a little too optimistic * * *.
Notwithstanding said notice of cancellation and the reply thereto, possession of the Albert
group has never been delivered to the owners.
On April 22, 1940, plaintiffs' attorney wrote a letter to the president of the company
advising that:
Your agents have not fully removed from the property but still remain on that part of the
property located as claim Albert No. 3, which Mr. Carlson is attempting to hold under some
claim of right.
Mr. Carlson was general superintendent for the company. Plaintiffs' attorney again wrote
the company's president on May 8th, 1940, saying:
Under date of April 22nd, 1940, I wrote you regarding certain claims in Queen Canyon in
Esmeralda and Mineral counties, Nevada.
62 Nev. 343, 347 (1944) Nichols v. Ora Tahoma Mining Co.
Mineral counties, Nevada. I have been advised that your company is continuing to work
thereon under claim of right and unless your company immediately withdraws therefrom it
will be necessary to take legal action to clear the ground.
To this letter Mr. Reed, president of the Indianeen company replied on May 8, 1940, as
follows:
Your letter of May 8th in which you refer to your letter of April 22nd received. To this
letter we replied direct to Mr. Nichols and since have heard nothing from him.
To us your letter does not quite make sense. Three days ago we received a letter from Mr.
Carlson, our superintendent at the time, in which he tells us that Mrs. Spor, eldest daughter of
the late of the late Mr. Mikesell, and Mr. Nichols were up to see him a few weeks ago. At that
time it was agreed between the three of them that in return for our doing their assessment
work, they would permit us to leave our cabins on their property and continue on as we have
been doing for a payment to them of $1.00 a year. In view of this agreement, and as we have
had no notice of its revocation, we feel that there must be some misunderstanding, as we
cannot reconcile your letter with the information we have from Mr. Carlson, and which he
sent us after we wrote and told him of receiving your letter of April 22nd.
Will you kindly contact Mr. Nichols and get this straightened out.
On June, 9, 1940, mine surveyor Liddell went upon the Albert claims and surveyed them
for plaintiffs, remaining on the ground until the evening of June 13. He informed plaintiffs
that the Albert claims were of greater length than permitted by law, and advised they be
amended. This course was decided upon, and before leaving the claims on June 13, Liddell
fixed the points for placing new posts to mark the boundaries of the claims as amended. New
boundary posts for the Albert No. 3 were erected before he left the property on June 13.
62 Nev. 343, 348 (1944) Nichols v. Ora Tahoma Mining Co.
13. The boundary posts for the other three claims were erected after he had left the ground,
and amended certificates of location for all four claims, dated June 13, 1940, were filed for
record July 29, 1940.
While engaged in making his survey, Mr. Liddell told respondent Carlson that he, Liddell,
was making a survey of the Albert claims. On June 14, the next day after the Liddell survey
was completed, Mr. Carlson located the Arthur lode mining claim, and on August 20
following, he also located the Arthur No. 1. When these two claims were located he was
general superintendent for the company, and it is stipulated that any rights he may have
acquired by said locations were held in trust for it. Much of the ground covered by the
amended Albert Claims is included in that covered by defendants' claims. Any interest there
may be in the Albert claims is now owned by appellants; any interest there may be in the
Berto, Bennett, Edith Hild, Otto Hanson, Arthur and Arthur No. 1 claims is now the property
of the respondents.
Two actions were commenced by plaintiffs in the Fifth judicial district court, county of
Esmeralda, one (No. 4109) against the company, and the other (No. 4113) against A. F. W.
Carlson et al. These actions were commenced, respectively, on June 18 and October 15, 1940.
In each action the plaintiffs prayed that they be adjudged the owners of the Albert claims, that
the defendants be adjudged to have no interest in said claims, or in any part thereof, and that
they be forever debarred from asserting any claim in or to said claims or any portion thereof
adverse to the plaintiffs. The answers denied most of the allegations of the complaints, and
prayed that plaintiffs' complaints be dismissed. In case No. 4109 defendant company alleged
that it owned certain mining claims in the Queen Canyon Mining District, Esmeralda County,
and that said claims were not being held adversely to plaintiffs. In case No. 4113 the
answering defendant Carlson alleged that he and his associates, and corporations
represented by him, claimed an interest in the Bennett, Arthur, Arthur No.
62 Nev. 343, 349 (1944) Nichols v. Ora Tahoma Mining Co.
alleged that he and his associates, and corporations represented by him, claimed an interest in
the Bennett, Arthur, Arthur No. 1, Berto, Edith Hild and Otto Hanson claims, and that said
interest was secured by mining locations duly made, completed and recorded; also that
plaintiffs had no right, title or interest in said claims. Besides asking that plaintiffs' complaint
be dismissed, Carlson further prayed judgment decreeing ownership of said six claims to be
in him and his associates, and that plaintiffs be forever debarred from asserting any interest in
said claims or any portion thereof adverse to him.
The two actions were consolidated for purposes of trial. A stipulation entered into by the
parties at the beginning of the trial included the following: That in making said several
locations of the defendants, to-wit: Berto, Bennett, Edith Hild, Otto Hanson, Arthur and
Arthur No. 1 lode mining claims and the said several locations of the plaintiffs, to-wit: the
Albert, the Albert No. 1, the Albert No. 2, and the Albert No, 3, the requirements of Federal
and State law were complied with by the respective locators in the following particulars: (1)
That notices of location were properly posted upon the ground. (2) That a discovery of
valuable mineral was made upon each of said locations. (3) That the requisite location
monuments and markings were placed upon the ground. (4) That the discovery or location
work upon each of said locations was properly done within the time required by law.
Some time after district court action No. 4109 was commenced, another party defendant
was added, and for convenience we shall from now on usually speak of the defendants,
rather than of the defendant.
The four Albert claims, as amended, occupy the same relative positions with respect to one
another as when they were originally located. The Albert No. 1 adjoins the Albert on the east,
while the Albert No. 2 adjoins the Albert on the west. The Albert No. 3 is contiguous to the
Albert on the south, but is not contiguous to either the Albert No.
62 Nev. 343, 350 (1944) Nichols v. Ora Tahoma Mining Co.
to the Albert on the south, but is not contiguous to either the Albert No. 1 or the Albert No. 2.
The southerly end center of the Albert is also the northerly end center of the Albert No. 3. The
northwesterly corner of the Albert No. 3 is also the southwesterly corner of the Albert and the
southeasterly corner of the Albert No. 2. The northeasterly corner of the Albert No. 3 is also
the southeasterly corner of the Albert, and the southwesterly corner of the Albert No. 1.
Two maps were received in evidence at the trial, one (Plaintiffs' Ex. No. 25) prepared by
surveyor Liddell, the other (Defendants' Ex. H) by surveyor Giles. The Liddell map purports
to show the Albert group as amended, together with the positions of a number of the original
monuments as established by the trial court in its findings. The Giles map shows (1) the
positions of respondents' six claims as claimed by defendants; (2) the Albert claims as
defendants contended they were originally located; (3) the Albert claims as respondents
contend they were attempted to be swung by the allegedly void amended locations.
In its findings the trial court definitely established the positions of a number of the original
monuments of the Albert group. These are shown on the Liddell map, and are as follows:
Northwest corner of Albert No. 2; northeast corner of Albert No. 2, which is also the
northwest corner of the Albert; northeast corner of Albert, which is also the northwest corner
of the Albert No. 1; north end center of Albert No. 1; northeast corner of Albert No. 1;
southeast corner of Albert No. 1; southwest corner of Albert No. 2, now obliterated; southeast
corner of Albert No. 3; south end center of Albert No. 3; north end center of Albert No. 3,
which is also the south end center of the Albert; and the location monument of the Albert No.
2.
The court further found: That the southwest corner of the Albert No. 3 was originally
located in the general vicinity indicated as the northwest corner of the Arthur No.
62 Nev. 343, 351 (1944) Nichols v. Ora Tahoma Mining Co.
No. 1 claim on defendant's Ex. H; that the original location monument of the Albert, now
obliterated, was located in the general vicinity as indicated on plaintiffs' Ex. 25; that the
original location monument of the Albert No. 1, now obliterated, was located in the general
vicinity as indicated on plaintiffs' Ex. 25; that the original location monument of the Albert
No. 3 was placed upon said claim at a point in the general vicinity of 100 feet northeast of a
place where an office building now stands upon said claim.
Finding XIX reads as follows: That the plaintiffs' alleged Albert, Albert No. 1, Albert No.
2 and Albert No. 3 mining claims, so amended on the ground, are within the exterior
boundaries of said claims as originally marked upon the ground.
In its conclusions of law the court found that the amended location of the Albert No. 2 was
valid, but that the amended locations of the Albert, Albert No. 1 and Albert No. 3 were void.
It further found that all of defendants' claims were valid, except the portions of the Bennett
and Berto which conflict with the Albert No. 2. It quieted plaintiffs' title to the Albert No. 2,
and defendants' title to the six locations claimed by them except insofar as the berto and
Bennett claims conflict with the Albert No. 2. By the decree defendants were debarred forever
from claiming any interest in the Albert No. 2, and plaintiffs from claiming any interest in the
six locations claimed by defendants, except such parts of the Berto and Bennett claims as are
in conflict with the Albert No. 2. This appeal is from the portion of the judgment adverse to
plaintiffs and from the order overruling their motion for a new trial.
Appellants contend that the Albert claims have been valid subsisting locations ever since
they were originally located, and that defendants' claims, having been located subsequently,
are therefore void insofar as they conflict with the Albert group. They further claim that
defendants are estopped to deny plaintiffs' title,
62 Nev. 343, 352 (1944) Nichols v. Ora Tahoma Mining Co.
defendants are estopped to deny plaintiffs' title, because of the rule that a tenant is estopped to
deny the title of his landlord.
One of the contentions urged by respondents is that plaintiffs, by means of their purported
amended locations, attempted to so swing the Albert claims as to embrace certain areas which
were not included within the original locations, but were within the boundaries of the claims
located by defendants on open public domain. They further contend that the evidence fails to
establish plaintiffs' title to the areas embraced in the Albert locations. They assert that
appellants have wholly failed to establish what areas were originally segregated from the
public domain by their location of the Albert group. They maintain that when defendants'
claims were located, it was impossible for any person to definitely ascertain the location of
plaintiffs' claims, either by competent documentary evidence or competent evidence of
physical indicia on the ground by way of monuments and markings. By reason of this alleged
lack of sufficient notices, records, markings or monuments, respondents contend that when
defendants located their claims the ground covered by the Albert locations had become open
public domain, subject to new locations. It is not contended that plaintiffs' forfeited their
claims because of any failure to perform annual labor.
1. In amending a location the claim may be swung if no intervening rights of third parties
are infringed. Duncan v. Fulton, 15 Colo. App. 140, 61 p. 244. But respondents, as we have
seen, contend that their rights had intervened before plaintiffs attempted to amend their
locations.
The lower court did not find, nor at any time express the view, that plaintiffs by their
amendments were attempting to swing the Albert claims. Its decision was based upon an
entirely different ground. But if the evidence shows that in amending their locations plaintiffs
did swing their claims as claimed by respondents,
62 Nev. 343, 353 (1944) Nichols v. Ora Tahoma Mining Co.
then the judgment, they say, should be affirmed notwithstanding it might actually have been
based upon another and erroneous concept or theory.
To support their contention with respect to the swinging of the Albert claims, respondents
rely chiefly on the testimony of their surveyor, E. S. Giles. Mr. Giles was the only witness
who testified at the trial in behalf of the defendants. Respondents explain this by saying that
between August 31, 1941, when plaintiffs rested their case, and March 3, 1942, when the trial
was resumed, the respective parties had been unsuccessfully negotiating for a compromise
settlement; that during this period the war commenced, and all defendants' witnesses who had
been in attendance in August, 1941, except Mr. Giles, went away, either to enter the service
or engage in industry essential to the war, and so were not available when the trial was
resumed. Regrettable as this may be, the court must determine the issues on the record as it
comes before us. Respondents of course realize this, but they insist nevertheless that the
judgment should be affirmed, not only on the basis of Mr. Giles's testimony, but also because
of the alleged failure of plaintiffs' own proof.
The Giles map shows each of respondents' claims, except the Arthur and Arthur No. 1, as
being contiguous to one or more of appellants' claims as the latter were originally located.
According to this map, none of respondents' claims conflicts with any of appellants' claims as
the latter were originally located; but it shows a conflict of every one of respondents' six
claims with a part or parts of one or more of the Albert group as amended.
All of appellants' claims, as respondents contend they were originally located, and all of
respondents' claims except the Otto Hanson, are shown on the Giles map as running northerly
and southerly; the Otto Hanson is shown as running easterly and westerly. In the original
location notices of the Albert claims each claim was described as running in a northerly and
southerly direction,
62 Nev. 343, 354 (1944) Nichols v. Ora Tahoma Mining Co.
direction, and the general course of the vein was given in each case as northerly and
southerly. In the amended certificates of location the survey descriptions show that the claims
run northeasterly and southwesterly, but they are described in the earlier parts of said
certificates as running northerly and southerly, and later therein the general course of the
lodes is also given as northerly and southerly. On the Liddell map the Albert, Albert No. 1
and Albert No. 2 claims run north 1948' east, while the course of the Albert No. 3 is north
2432' east. According to the Giles map the Albert locations, as defendants claimed they were
originally located, ran north 616' west. As amended, the Albert, Albert No. 1 and Albert No.
2 are shown on that map to run approximately north 2020' east, and the Albert No. 3 about
north 25 east. The Bennett, Berto and Edith Hild are shown on the same map as running
north 616' west; the Arthur and Arthur No. 1 north 640' west. Also, on the Giles map, six
veins are shown on amended Albert, Albert No. 2 and Albert No. 3 running about north 30
west. As shown, all these veins cross certain of the side lines of some of the amended Albert
claims; none of them is shown as crossing the end line of any of said amended claims.
Mr. Giles testified that when he made his survey in October, 1940, he found the original
location monument of the Albert No. 2; also a rock monument at the face of an open cut at a
point where the location monument of the Albert should be. He testified that by running his
lines from the northwest corner of the Albert and the northeast corner of the Albert No. 2, he
found the discovery monument of a claim called the Valley View which had been located by
plaintiff Nichols and his deceased partner, Mikesell, in 1925. In this discovery monument,
says Mr. Giles, there was a notice of location dated August 1, 1925. Nichols and Mikesell
were named as the locators. The notice described the Valley View claim as extending from
the discovery monument 600 feet in a southerly direction and S00 feet in a northerly
direction and 300 feet on each side of the middle of the vein
62 Nev. 343, 355 (1944) Nichols v. Ora Tahoma Mining Co.
600 feet in a southerly direction and 800 feet in a northerly direction and 300 feet on each
side of the middle of the vein bounded on the south end by the north end of the Albert
mining claim, with the general course of the vein or lode northerly and southerlythe size
of the claim being given as 1500 feet long and 600 feet wide. Mr. Giles further testified that
he scaled the distance from the north end of the Albert, as claimed by appellants under their
amended location, to the discovery monument on the Valley View, and found it to be 850
feet; also the scaled distance from the discovery monument of the Valley View to the north
end line of the Albert (as defendants claimed the latter was originally located) was 608 feet.
According to his testimony he also located the original south end center of the Albert No. 3.
In regard to the Valley View location and the monument I found on the south end marked
south end center of Valley View' I would say that it clearly defined the north end line of the
Albert. The distance was approximately correct to establish that line to where the posts are
now. In regard to the south end center of the Albert No. 3 it would indicate to me that the
claim originally is where approximately, where we show it on the map. Testifying
concerning a tunnel on the Albert No. 1, Mr. Giles said that if that claim was located
originally as claimed by the amended location shown on the Giles map, the portal of the
tunnel would be 50 feet outside the boundaries of the Albert No. 1. Q. And for what
difference would that tunnel or drift, the continuation of the tunnel be run outside the
boundaries of the Albert claim in its course to the northwest? A. Over 200 feet. The purport
of Mr. Giles's testimony, of which but a very small part has been mentioned, is that plaintiffs
in amending the Albert claims swung them about 26, and respondents intimate that the chief
purpose in doing so was to unlawfully bring within the boundaries of the Albert No. 3 certain
valuable improvements which had been placed upon the ground by defendants.
62 Nev. 343, 356 (1944) Nichols v. Ora Tahoma Mining Co.
Mr. Giles had never been on the ground in dispute before 1940, and in that year he went
upon the ground some time after Mr. Liddell had completed his survey. Some of the
monuments found by him were posts marked Survey 1935. These posts appear to have been
monuments of a survey made in 1935 by a Mr. Greenwood, of Bishop, California. Mr. Giles
testified that he had talked with Greenwood, but the latter was not called as a witness at the
trial nor was his deposition taken by the defendants. With reference to the Greenwood survey
the trial court, in its written decision, said: In 1935, a survey on the land was made by one
Greenwood, purporting to establish the boundary monuments of the Albert group as shown in
unbroken lines on said Exhibits H and L. There is no evidence to show that the Greenwood
survey was made at the instance of the owners of the Albert group or either of them or that it
was adopted by them. No proofs were presented to show what, if any, monuments of the
Albert claims were found upon the ground by the surveyor, Greenwood, as the basis of his
survey. No location certificates were filed based upon such survey. The survey, therefore,
affords no aid in solving the problems in this case.
In making his survey Mr. Giles depended considerably upon what was told him by Mr.
Carlson, one of the respondents. Defendants' exhibit H is an enlarged copy of their exhibit L.
In representing the position of the Albert No. 3 on Ex. L, Mr. Giles relied entirely on what
was told him by Mr. Carlson. Mr. Carlson himself gave no testimony in the case.
Plaintiffs' witnesses were Mr. Nichols, one of the original locators of the Albert group,
surveyor Liddell, and Messrs. Summerville, Sproule and Spor. The testimony of Mr. Liddell
was based upon his survey made in June, 1940. The other four witnesses testified from
alleged personal observation of marks and boundaries as they existed either at the time the
Albert claims were originally located, or at various times thereafter before they were
amended.
62 Nev. 343, 357 (1944) Nichols v. Ora Tahoma Mining Co.
originally located, or at various times thereafter before they were amended. Nichols is the
only one who testified from personal knowledge and recollection regarding the original
boundaries and the positions of the original marks and monuments.
With respect to the Albert No. 3, Mr. Nichols, on a pencil sketch, showed the positions of
a cabin, a spring, a graveyard and the discovery point of that claim. He testified also
concerning the location of the south end center, the southeast corner, the southwest corner,
and the north end center of said Albert No. 3.
Mr. Liddell testified as to the approximate positions of the discovery monuments of the
Albert and Albert No. 1 as pointed out to him by Mr. Summerville. He also testified how he
determined the positions of the discovery monuments of the Albert and Albert No. 1 from
that of the discovery on Albert No. 2. He testified further that he established the discovery
monument of the Albert No. 3 1,000 feet southerly from what was shown him as the north
end center of that claimsaid distance being that called for in the location notice. He
testified regarding the southwest corner and the north end center of the Albert No. 3.
Summerville testified that he became acquainted with the Albert group in 1928, and that
he pointed out to Mr. Liddell the approximate positions of the discovery monuments of the
Albert and Albert No. 1. He also testified that in 1932, while in the employ of Mikesell (now
deceased), he helped the latter straighten up some of the monuments on the Albert group
which had been knocked down by sheep.
Sproule testified that he also, during the lifetime of Mikesell, helped him to rebuild some
of the monuments on Albert No. 3 and the other claims; that he was on this ground in 1930,
1931 and 1932; that on one or more occasions he stayed with Mikesell, who at the time was
living in the cabin near the spring; that in the spring of 1935, to the best of his recollection he
helped build a cookhouse while working for defendants;
62 Nev. 343, 358 (1944) Nichols v. Ora Tahoma Mining Co.
build a cookhouse while working for defendants; that he worked in the tunnel across the
creek; that he knew two monuments on Albert No. 3, one south and one southeast of the
cabin, and that Mikesell told him they were monuments of his claim; that the south end center
of the Albert No. 3 now on the ground was there at that time, and that he pointed out this
monument and the southeast corner of that claim to Mr. Liddell.
Spor testified that he found some monuments on the Albert claims when he visited that
group for the first time in 1940.
2. It would unduly lengthen this opinion to further summarize the testimony of the various
witnesses. The record shows that the trial court followed the testimony closely. After
considering it and the documentary evidence, that court, as we have seen, established the
positions of a number of the original marks and boundaries on the Albert claims, and found as
a further fact that the amended Albert claims are within the exterior boundaries of said claims
as originally marked upon the ground. After examining the maps and carefully considering
said findings, it seems clear that if the latter are supported by the evidence there could not
have been any such swinging of plaintiffs' claims as asserted by respondents. The Giles map
(Ex. H.) shows the southwesterly end of the Albert No. 3 as having been swung more than
1,000 feet from its original position. This is inconsistent with the positions of the original
southeast corner, southwest corner, south end center and north end center of that claim, as
established by the findings. While there is a conflict in the evidence as to whether the Albert
claims were swung as claimed by respondents, there is substantial evidence to support said
findings, and not being clearly incorrect, they will not be set aside. It may be stated too that
said findings show it is not true that none of respondents' claims conflicts with any of
appellants' claims as the latter were originally located. We cannot of course say whether the
findings would have been different had defendants not lost most of their witnesses.
62 Nev. 343, 359 (1944) Nichols v. Ora Tahoma Mining Co.
of course say whether the findings would have been different had defendants not lost most of
their witnesses.
The trial court based its decision upon the ground that the areas covered by the original
Albert locations (excepting only the Albert No. 2) subsequently became open public domain,
subject to new locations, because of plaintiffs' failure to maintain sufficient monuments,
notices or records to enable any one to determine the boundaries with substantial or
reasonable certainty. The federal law, says the court, requires that the location shall be so
marked upon the ground that its boundaries may be readily traced. Therefore, while one or
more of the boundary monuments required under the state law may be obliterated without
destroying the validity of the claim, yet there must remain sufficient markings of the location,
upon the ground, by posted notice, reference to neighboring objects, or identifiable boundary
monuments, that the location of the claim may be readily traced. Again the court says: The
court is in the same position as is the prospector on the ground, seeking to determine the
position of a mining claim. The one is confronted with the physical facts, the other with the
proof of those facts, the question being, as already stated, to determine what land has been
segregated from the open, public domain. The court's decision was to the effect that when
four of respondents' six claims were located in 1935, the ground covered by each was open
public domain except those parts of the Bennett and Berto which are in conflict with the
Albert No. 2. The court took the view the plaintiffs' attempted amendments of the Albert
claims in 1940 were void, so that the ground covered by the Arthur claims was likewise open
for location when those two claims were located on June 14 and October 20 of that year.
Respondents contend that appellants wholly failed to establish what areas were originally
segregated from the public domain by their location of the Albert group.
62 Nev. 343, 360 (1944) Nichols v. Ora Tahoma Mining Co.
the public domain by their location of the Albert group. The burden, according to
respondents, was upon appellants to establish one or the other of the following two essential
premises: (a) If the calls and distances are not shown in posted notices or set out in their
recorded notices of location with sufficient clarity to identify the claims, then and in the
alternative, that the required statutory monuments, properly marked, were on the ground
when respondents' locations were made; or (b) That in the absence of such monuments and
appropriate markings, notices of location, or discovery notices, were actually posted and
maintained on the ground at the time of such subsequent locations by respondents containing
sufficient data by calls and distances to identify the segregated areas.
Respondents concede that the law does not require the perpetuation of monuments where
the courses and distances are shown in posted notices, or set out in the recorded certificates of
location with sufficient clarity to identify the claims; but they maintain that if the claims are
not so identified in the posted notices or in the records, the monuments must be maintained
on the ground, otherwise there would be no way to determine the boundaries of the claims.
It was the lower court's view, and respondents contend on this appeal, that the burden was
upon plaintiffs to show that when defendants located their claims there were sufficient
monuments, notices or records from which they could have determined the boundaries of the
Albert claims. In the opinion of the district court this was satisfactorily shown with respect to
the Albert No. 2, but not as to the other three Albert locations.
Appellants contend that the evidence afforded sufficient data to enable the trial court to
determine, with substantial accuracy, what ground had been monumented and segregated
from the public domain by the original Albert, Albert No. 1 and Albert No. 3 locations, as
well as by the Albert No. 2. Let us assume, however, in favor of respondents,
62 Nev. 343, 361 (1944) Nichols v. Ora Tahoma Mining Co.
in favor of respondents, that the trial court was right in holding that the data was insufficient
with respect to all except the Albert No. 2. On that assumption, what would be the legal
effect?
3, 4. It is to be borne in mind that all the Albert claims, as originally located, were (except
as to the excess areas) valid, properly monumented locations. The land covered by them
could not be relocated by others unless and until some act or laches of the owners occurred by
which the title reverted to the government. Slothower v. Hunter, 15 Wyo. 189, 88 P. 36, 39.
The general rule is that when a location is once sufficiently marked on the surface so that its
boundaries can be readily traced, and all other acts of location are performed as required by
law, the right of possession is fully vested in the locator, and he cannot be divested of this
right by the removal or obliteration or destruction of the monuments, stakes, marks, or notices
done without his fault, while he continues to perform the necessary work upon the claim.
Book v. Justice Mining Co., C. C., 58 F. 106, 107, 114; Steele v. Preble, 158 Or. 641, 77 P.
2d 418; Young v. Papst, 148 Or. 678, 37 P. 2d 359, 364; Gobert v. Butterfield, 23 Cal. App.
1, 136 P. 516, 518; Upton v. Santa Rita Min. Co., 14 N. M. 96, 89 P. 275, 286; Moore v.
Steelsmith, 1 Alaska 121, 129; Smith v. Newell, C. C., 86 F. 56, 57; Jupiter Min. Co. v.
Bodie Consol, Min. Co., C. C., 11 F. 666, 677, 678; 30 U. S. C. A. sec. 28, n. 134; 9 F. C. A.,
Title 30, sec. 28, n. 25; 2 Lindley on Mines, 3d Ed., sec. 375, pp. 889, 890, n. 68; 1 Snyder on
Mines, sec. 399; Shamel, Mining, Mineral and Geological Law, p. 118, n. 8; Ricketts,
American Mining Law, sec. 530; 36 Am. Jur Mines and Minerals, sec. 94, p. 346; 40 C. J.,
Mines and Minerals, sec. 212, p. 801, n. 64; 17 Cal. Jur. Mines and Minerals, sec. 40;
Annotation, 7 L. R. A., N. S., 864.
Book v. Justice Min. Co., supra, was a case in the U. S. Circuit (now District) Court,
District of Nevada.
62 Nev. 343, 362 (1944) Nichols v. Ora Tahoma Mining Co.
Nevada. The opinion was written by Judge Thomas P. Hawley, who had previously been a
justice and chief justice of this court, and concerning whom Mr. Lindley has written, one of
the most experienced and distinguished judges in the mining states. 1 Lindley on Mines, 3d
Ed., sec. 282, p. 635. The rule relating to the effect of removal or obliteration of stakes,
monuments, marks, or notices, approved by Judge Hawley in the Justice case, has not been
changed by any decision of the U. S. District Court of the District of Nevada, of the Ninth
Circuit Court of Appeals, of this court, or by Congress or the legislature of this state.
The court has not overlooked Pollard v. Shively, 5 Colo. 309, or Duncan v. Eagle Rock G.
M. & R. Co., 48 Colo. 569, 111 P. 588, 593, 139 Am. St. Rep. 288both cases favorably
commented upon by Lindley. 2 Lindley on Mines, 3d Ed., sec. 375, p. 890. And we have read
Thallman v. Thomas, 102 F. 935, decided in 1909 in the U. S. Circuit Court for the District of
Colorado; also the last paragraph on page 60 of the 16th edition of Morrison's Mining Rights,
27 Cyc. p. 570, n. 68, and the cases cited in 30 U. S. C. A., sec. 28, n. 169, and in 9 F. C. A.,
Title 30, sec. 28, n. 36. But these authorities do not change the court's opinion that the title to
the Albert locations had not reverted to the government when defendants' claims were
located.
5. A prudent locator should of course do what he reasonably can to preserve and maintain
his boundary monuments. As said by Lindley, A failure to so preserve them exposes the
owners to hazards incurred by death of locators and witnesses and other circumstances which
might prevent the fact of marking from being established. Owners should therefore use
reasonable diligence in preserving and restoring their boundary monuments. No presumptions
flowing from the antiquity of the location will be indulged in as to the original marking as
against a hostile claimant. But the law does not require monuments to be perpetuated." 2.
Lindley on Mines, 3d Ed., sec.
62 Nev. 343, 363 (1944) Nichols v. Ora Tahoma Mining Co.
does not require monuments to be perpetuated. 2. Lindley on Mines, 3d Ed., sec. 375, p.
889. And see 1 Snyder on Mines, sec. 399, p. 367. One consequence of lack of diligence in
maintaining monuments, notices and records is well illustrated in the instant casecostly and
troublesome litigation.
When the Albert claims were originally located, the requisite location monuments and
markings were placed upon the ground. Some of them were still there when defendants'
claims were located. The record does not show that defendants took any notice of these
monuments, made any inquiry of plaintiffs regarding the boundaries of the Albert claims, or
made any attempt to ascertain the lines of the senior locations. See Tonopah & Salt Lake Min.
Co. v. Tonopah Min. Co., C. C., 125 F. 408; Eilers v. Boatman, 3 Utah 159, 2 P. 66.
The question naturally arises whether, when respondents' claims were located, the Albert
claims, though not void, had nevertheless become subject to forfeiturea situation analogous
to that resulting from the failure of a locator to perform annual labor. There is some authority
supporting this view, but the court considers it unnecessary to decide the question in the
present case, for the reason that if it were to be conceded that such is the law it would not
benefit respondents. In stating the reasons which have led us to this conclusion, we shall first
take up the four claims located by Berto and Hanson in 1935, following which the two claims
located by Mr. Carlson in 1940 will be discussed.
Appellants contend, as they did in the court below, that when the Berto, Bennett, Edith
Hild and Otto Hanson claims were located, respondent mining company was the tenant of
plaintiffs, and so was estopped to set up its title to said four claims in opposition to that of its
landlords, the plaintiffs, to the Albert claims. It was held by the district court that the rule of
estoppel should not be applied in this case for two reasons: first, that the relation of landlord
and tenant is not definitely shown to have existed until February 12, 193S;
62 Nev. 343, 364 (1944) Nichols v. Ora Tahoma Mining Co.
definitely shown to have existed until February 12, 1938; second, that the rule estopping a
tenant from denying the validity of his landlord's title is not applicable to suits to quiet title.
Neither of these grounds has been urged by respondents on this appeal. Their position is
stated in their brief as follows: We have no quarrel with established law that a tenant is
estopped to attack his landlord's title. Appellants' legal premises in that regard are predicated
upon the theory that the Albert claims were actually located in such manner as to include all
of the areas embraced within respondents' subsequent locations, while respondents base title
to those areas on mining locations made by entry upon the unappropriated public domain.
Similarly, in the oral argument, counsel for respondents said: Here the respondents are not
attacking the title of appellants. They went on the unappropriated public domain and made
their locations, and are merely defending their own locations and not attacking the title of the
appellants. And although respondents' first locations were made some five years before the
attempted amended locations by appellants, and although it appears in the record that the
appellants well knew that those locations had been made * * * nothing was done, no attempt
was made, no questions raised as to the validity of the locations, until after the respondents
had ceased to make their payments on the options. It will be noted that these purported
amended locations were attempted to be made some eighteen years after the original
locations.
As respondents do not contend that the rule of estoppel now under consideration is
inapplicable to suits to quiet title to unpatented mining claims, we shall do no more than cite
two comparatively recent cases: Whealton v. Pine Grove Nevada Gold Mining Co., 9 Cir.,
104 F. 2d 675; Oliver v. Burg, 154 Or. 1, 58 P. 2d 245. If the question is squarely presented
to this court in the future,
62 Nev. 343, 365 (1944) Nichols v. Ora Tahoma Mining Co.
this court in the future, it may then properly receive further consideration.
6, 7. In arriving at the conclusion that the relation of landlord and tenant was not definitely
shown to have existed until February 12, 1938, the trial court stated that the date of the
assignment from Zent to Ora Tahoma company was not shown, so far as my notes reveal.
That statement was made before the trial transcript had been completed. The transcript shows
an express stipulation on the part of respondents that the assignment was made June 3, 1935.
It was only five months thereafter that the Berto, Bennett, Edith Hild and Otto Hanson claims
were located by the company's president and vice president. After taking the assignment of
the Zent lease, the company proceeded to take possession of the Albert claims, moved
buildings onto the No. 3 and performed work thereon. The law presumes that once a man
goes into possession as a tenant, the relationship continues until the contrary is made to
appear. Ashton v. Golden Gate Lumber Co., 6 Cal. Unrep. 307, 58 P. 1; Little v. Kendrick,
152 Fla. 720, 12 So. 2d 899; Holton v. Jackson, 184 Ky. 559, 212 S. W. 587. The evidence
does not disclose just when the four claims of the Berto group were acquired by the company,
but it was some time during the tenancy, which began before the claims were located and
continued until January 1940. The evidence shows, and the court below found, that
defendants never have surrendered possession of the Albert group, and in particular the No. 3,
to the plaintiffs. Those claims were in the permissive possession of the company as assignee
of the Zent lease when the Berto group was located in November, 1935; this is not disputed
by respondents on this appeal. It is the opinion of the court that the Berto, Bennett, Edith
Hild, and Otto Hanson claims should have been held invalid insofar as they conflict with any
of the Albert group. Byrnes v. Douglass,
62 Nev. 343, 366 (1944) Nichols v. Ora Tahoma Mining Co.
Douglass, 23 Nev. 83, 42 p. 798; 36 Am. Jur., Mines and minerals, sec. 47; 40 C. J., Mines
and Minerals, sec. 598, p. 1003; 32 Am. Jur., Landlord and Tenant, sec. 120.
8. The fact that plaintiffs did not amend their locations until 1940 has no bearing upon the
question of estoppel, and respondents' statement that appellants well knew that the Berto
group had been located is not borne out by the record, if it was intended by that statement to
say that appellants knew about said locations before 1940. We have carefully examined all
the parts of the record relied on by respondents as showing that appellants knew about the
location of the Berto group, but whether appellants had any such knowledge before 1940 does
not appear, and there is nothing in the evidence showing that appellants knew until the spring
of 1940 that respondents were asserting title to some of the Albert ground. The court
therefore is not required to decide whether it would have any effect on the applicability of the
rule of estoppel if it had been shown that plaintiffs knew, for some years before 1940, about
the location of the Berto group, and defendants' adverse claim of title.
We come now to the Arthur and Arthur No. 1 claims. These claims are in conflict with the
Albert No. 3 only. The Arthur was located before, and the Arthur No. 1 after, the filing of
plaintiffs' amended certificates of location of the Albert claims. The latter claims were
evidently amended under the provisions of sec. 4125, N. C. L. 1929, which reads: If at any
time the locator of any mining claim heretofore or hereafter located, or his assigns, shall
apprehend that his original certificate was defective, erroneous, or that the requirements of
the law had not been complied with before filing; or shall be desirous of changing his surface
boundaries or of taking in any part of an overlapping claim which has been abandoned; or in
case the original certificate was made prior to the passage of this law, and he shall be
desirous of securing the benefits of this act,
62 Nev. 343, 367 (1944) Nichols v. Ora Tahoma Mining Co.
desirous of securing the benefits of this act, such locator or his assigns may file an additional
certificate, subject to the provisions of this act; provided, that such relocation does not
interfere with the existing rights of others at the time of such relocation, and no such
relocation or the record thereof shall preclude the claimant or claimants from proving any
such titles as he or they may have held under previous location. This section is almost
verbatim with the Colorado statute. Morrison's Mining Rights, 16th Ed., p. 155.
9. The new monuments had been placed on the Albert No. 3 before either the Arthur or
Arthur No. 1. was located. The Arthur No. 1 is clearly void insofar as it conflicts with the
Albert No. 3, because, as we have seen, the latter claim had been newly monumented and the
amended certificate of location filed before the Arthur No. 1 was located.
10. With respect to the Arthur, the question arises whether that part of the Albert No. 3 in
conflict with it is void because the certificate of location of the Albert No. 3, was not filed till
after the Arthur was located. This question seems to be answered by the construction which
has been placed upon the first part of the proviso near the end of said sec. 4125. McEvoy v.
Hyman, C. C., 25 F. 596, 599; Frisholm v. Fitzgerald, 25 Colo. 290, 53 P. 1109, 1110. In the
former case Judge Hallett said: The better opinion appears to be that the proviso relates only
to the matter of taking into the claim new territory. In the Frisholm case the court said that
the proviso relating to existing rights is only applicable to a change of boundaries and
relocation that should take in territory not before included within the claim. In the instant
case there was no intention on the part of plaintiffs, and they did not in fact, take in any
ground by their amended locations which was not before included within their claims. What
was done and what was intended was to draw in the lines of the Albert claims so that they
would not occupy a greater area,
62 Nev. 343, 368 (1944) Nichols v. Ora Tahoma Mining Co.
greater area, particularly in length, than allowed by law. The court is therefore of the opinion
that the Arthur does not take priority over the Albert No. 3, and that the former, as well as the
Arthur No. 1, should have been held invalid insofar as it conflicts with said Albert No. 3.
Appellants contend that the rule of estoppel should apply with respect to the Arthur and
Arthur No. 1 as well as to the four claims located in 1935. They argue that although the
relation of landlord and tenant had terminated before these two claims were located, yet there
had been no redelivery or surrender of the Albert claims; and they cite sec. 8512, N. C. L.
1929. It is deemed unnecessary, however, to pass upon this contention in view of what has
been said concerning these two claims in the preceding paragraphs.
11. In connection with the question as to whether the ground covered by defendants'
claims was open public domain at the time they were located, objection was made by
defendants to testimony by witnesses Sproule and Summerville as to declarations made by
Mikesell during his lifetime with respect to certain original monuments on the Albert claims.
These declarations were testified to as having been made at times when Mikesell was one of
the owners in possession of the Albert group, while he and the witnesses were on the ground
straightening up or rebuilding some of the monuments, and at times when there was no
motive to misrepresent. The objection was argued at considerable length and carefully
considered by the trial court, which overruled defendants' objection. While such evidence is
of less weight than testimony which is free from the infirmities of hearsay, it is admissible by
the great weight of authority in this country. V. Wigmore on Evidence, 3d Ed., secs. 1564,
1566, 1567, 1568; 31 C. J. S., Evidence, sec. 236; 8 Am. Jur., Boundaries, secs. 96, 98;
Clark, Surveying and Boundaries, sec. 230, sec. 233, n. 23; Gillett, Indirect and Collateral
Evidence, sec.
62 Nev. 343, 369 (1944) Nichols v. Ora Tahoma Mining Co.
and Collateral Evidence, sec. 171. The weight to be given this testimony was for the trial
court, and it is not clear to this court that it was given more weight than was proper.
Respondents claim that the trial court's finding XIX is inconsistent with that court's
general findings I and II, with its special findings II, IV, V, VI, VII, and VIII, and with its
conclusions of law numbered 1, 2 and 3; and that said finding XIX is superseded and
controlled by the other findings and conclusions just mentioned. In the court's opinion this
contention is without merit, and requires no discussion.
Respondents direct attention to the well established rule that where there is sufficient
evidence in the record to support the findings of the trial court its judgment will not be
disturbed, and that findings made by the trial court upon conflicting testimony will not be
disturbed on appeal unless clearly erroneous. This rule does not operate to respondents'
advantage in this case, because we have followed the findings of fact made by the trial court
and have differed only on certain questions of law.
That part of the judgment appealed from, and the order denying plaintiffs' motion for a
new trial, are reversed, and the cause remanded for a new trial.
____________
62 Nev. 370, 370 (1944) Blaisdell v. Conklin
THE STATE OF NEVADA, on Relation of LEONARD E. BLAISDELL, Acting District
Attorney of Mineral County, Appellant, v. N. E. CONKLIN, Respondent.
No. 3419
September 11, 1944. 151 P.(2d) 626.
1. District and Prosecuting Attorneys.
A board of county commissioners acted within its statutory authority in appointing acting district attorney
of county for remainder of statutory leave of absence of elected district attorney entering military service
before expiration of his term though he had appointed, and delivered possession of office to, deputy district
attorney, Stats. 1943, c. 58, secs. 1 and 5, amending title and adding sec. 4b to Stats. 1941, c. 34; Comp.
Laws, secs. 4799, 4813, 4848.
2. Officers.
The statute providing that position of any elective officer entering military service shall be temporarily
filled, during leave of absence granted him by such statute, by appointment to be made by officer or board
authorized by law to fill vacancy caused by death or resignation of elective official ordered to such service,
is operative, though a deputy has been appointed by such officer. Stats. 1943, c. 58, secs. 1 and 5,
amending title and adding sec. 4b to Stats. 1941, c. 34.
3. Statutes.
A statute must be so construed as to give effect to whole statute and every part thereof, if possible.
4. District and Prosecuting Attorneys.
The statute requiring officer or board authorized to fill vacancy, caused by death or resignation of
elective official ordered to military service, to appoint a person to fill position of elective officer entering
such service during period of his statutory leave of absence, suspends district attorney's right to exercise
powers and duties of his office during his leave of absence for such reason and also his deputy's power to
transact official business appertaining to such office and confers such powers and duties during such period
on person appointed by board of county commissioners to fill position. Stats. 1943, c. 58, secs. 1 and 5,
amending title and adding sec. 4b to Stats. 1941, c. 34; Comp. Laws, secs. 4799, 4813, 4848.
Appeal from Fifth Judicial District Court, Esmeralda County; Thomas J. D. Salter, Judge.
Proceedings in quo warranto by the State, on the relation of Leonard E. Blaisdell, Acting
District Attorney of Mineral County, to oust N. E. Conklin from the office of District
Attorney of such county and install relator therein.
62 Nev. 370, 371 (1944) Blaisdell v. Conklin
office of District Attorney of such county and install relator therein. From a judgment for
defendant and an order denying relator's motion for a new trial, relator appeals. Reversed
and remanded with instructions.
L. E. Blaisdell, of Hawthorne, for Appellant.
N. E. Conklin, of Hawthorne, for Respondent.
OPINION
By the Court, Ducker, J.:
Relator brought this proceeding in quo warranto in the court below to oust N. E. Conklin
from the office of district attorney of Mineral County, and to install the relator therein. We
will refer to the parties as they are named in the pleadings.
In his complaint relator alleged the following facts: Martin G. Evansen, the elected district
attorney of said Mineral County, was inducted into the United States Army on January 3,
1944, and was granted an inactive status until February 23, 1944. He appointed N. E.
Conklin, the defendant, deputy district attorney of said county and delivered over to him
possession of said office, and left the county. Since February 23, 1944, Evansen has been and
is now in military service on active duty with the armed forces. On April 5, 1944, the board of
county commissioners of said county at a regular meeting duly appointed relator acting
district attorney of said county pursuant to chapter 58 of the Nevada session laws of 1943. He
qualified and made demand of defendant for the office, which demand was denied by the
latter, who claims to be the lawful acting district attorney of the county.
Defendant, answering, admitted most of these allegations. He denied that he claims to be
the acting district attorney of the county,
62 Nev. 370, 372 (1944) Blaisdell v. Conklin
district attorney of the county, and in this connection alleges that he is the deputy district
attorney of the county duly appointed by the district attorney, who is deemed to be under a
leave of absence. He controverts the validity of plaintiff's appointment by the board of county
commissioners, by which he claims to be the acting district attorney of the county. Plaintiff's
proofs correspond to the unchallenged allegations of his complaint. Defendant offered no
evidence at the trial. The court rendered judgment in his favor, that he is the regularly
appointed and acting deputy district attorney of mineral county, and that plaintiff is not the
acting district attorney of the county. The plaintiff has appealed from the judgment and the
order denying his motion for a new trial.
There is only one question to be determined, and that is the effect of chapter 58 of the
session laws of 1943, under the admitted facts. This chapter, pursuant to which the
appointment was made in its pertinent parts, reads:
Section 1. The title of the above-entitled act, being chapter 34 of the 1941 Statutes of
Nevada, is hereby amended to read as follows: An act providing for the reemployment of
persons who enlist or are inducted into the military service of the United States; providing a
method for filling the temporary vacancies created by elective officers; and providing the
method of enforcing the provisions hereof. * * *
Sec. 4b. Any elective officer who may hereafter enter the military service of the United
States shall be deemed to have been granted a leave of absence for such period of service;
provided, however, that no leave of absence provided for in this act shall operate to extend
the term for which the occupant of any elective position shall have been elected. During such
leave of absence the position of any elective officer shall be filled temporarily by an
appointment to be made by the officer, board, or other agency which is now authorized by
law to fill a vacancy caused by the death or resignation of the elective officials so ordered
to service.
62 Nev. 370, 373 (1944) Blaisdell v. Conklin
to fill a vacancy caused by the death or resignation of the elective officials so ordered to
service.
Any person so appointed during the time of his incumbency shall exercise all the powers
and duties of the office, and shall receive the regular compensation therefor. Nothing in this
act shall be construed to give any officer who is granted a leave of absence, as provided for
herein, any claim for salary or compensation during the continuance thereof, and no such
officer shall have any claim therefor.
By reference to section 4799, N. C. L., and section 4813, N. C. L. Supp., it will be seen
that the power to fill a vacancy caused by the death or resignation of a district attorney is
vested in the board of county commissioners of the county. The former section provides in
part:
Every office shall become vacant upon the occurring of either of the following events
before the expiration of the term of such office:
FirstThe death or resignation of the incumbent.
The latter section reads:
When any vacancy shall exist or occur in any county or township office, except the office
of district judge, the board of county commissioners shall appoint some suitable person to fill
such vacancy until the next ensuing biennial election.
1. The board of county commissioners of Mineral County therefore acted within its
authority and pursuant to the command of section 4b in this case. The facts are all present to
invoke the operation of the statute, namely, an elective officer, his entering the military
service of the United States, an unexpired term, and the appointment of relator by an
authorized board to fill the position of district attorney during the former's leave of absence
granted him by the statute. Section 4b is self-explanatory. Its terms plainly express the
legislative intent and consequently there is no occasion for construction. Brown v. Davis, 1
Nev. 409; In re Walters' Estate, 60 Nev. 172, 104 P.2d 968.
62 Nev. 370, 374 (1944) Blaisdell v. Conklin
2-4. The lower court, as appears from its written decision, found in the record, undertook
to construe section 4b and was of the opinion that it was operative only when no deputy had
been appointed by the principal. But the section does not say that, and contains no language
from which the thought may be reasonably inferred. The benevolent purpose of the statute
would be largely frustrated by such a construction. For if it were not for the saving grace of
the 1943 statute the district attorney's office which the statute seeks to save for him on his
return from service, would now be vacant under the express terms of section 4799, supra,
which provides that every office shall become vacant upon the ceasing of the incumbent to
discharge the duties of his office for a period of three months, except when prevented by
sickness, or absence from the state upon leave, as provided by law. Certainly in such a
situation defendant's deputyship would have long since lapsed. The district attorney of
Mineral County is not absent from the state by leave of the board of county commissioners as
provided in section 2047, N. C. L. He is absent only by the leave granted in section 4b. That
the thought of deputies functioning for principals who had entered military service was not in
the mind of the legislature in enacting the 1943 statute, is also apparent from the fact that
judicial officers who cannot appoint deputies are within the scope of the statute. The trial
court's construction and defendant's contention give no effect whatever to that part of section
4b, which provides: Any person so appointed during the time of his incumbency shall
exercise all the powers and duties of the office, and shall receive the regular compensation
therefor. The emphasis is ours. It is a cardinal rule of statutory construction that effect must
be given, if possible, to the whole statute and every part thereof. Garson v. Steamboat Canal
Co. 43 Nev. 298, 185 P. 801, 1119; 59 C. J. 995. The above provision negatives the trial
court's finding and conclusion of law that Evansen is now the acting district attorney of
Mineral County,
62 Nev. 370, 375 (1944) Blaisdell v. Conklin
is now the acting district attorney of Mineral County, and that defendant is now legally
entitled to the office. The authority of the district attorney to appoint defendant as his deputy
by virtue of section 4848 N. C. L. is not questioned, but under the facts of the case, the latter's
power as such is limited by section 4b. The effect of that section is to suspend the right of the
district attorney to exercise the powers and duties of his office during his leave of absence,
and the right to receive the regular compensation therefor, and to confer them during that
period upon the person appointed by said board. By the same token, the defendant's power to
transact the official business appertaining to said office by virtue of his appointment as
deputy, became suspended.
The claimed injustice of this view, which abridges the district attorney's right to have his
office function by deputy, is more than counterbalanced by the fact that he is relieved of all
responsibility for compensation of his deputy during his leave of absence, and all liability on
his official bond for all official malfeasance or nonfeasance of the deputy. Section 4849, N.
C. L.
Pursuant to these views, we conclude that the defendant should be ousted from the office
of district attorney of Mineral County; that relator is entitled to be installed in said office and
to exercise all the powers and duties thereof.
The judgment and order appealed from are reversed and the case is remanded with
instructions to the lower court to proceed in conformity with section 9214 N. C. L.
____________
62 Nev. 376, 376 (1944) In Re Benson's Estate
IN THE MATTER OF THE ESTATE OF LUCILE
BAUGH BENSON, Deceased.
ARLINE BAUGH NEWCOMB, Appellant, v. EMILY C. ROSS, Executrix of the Estate of
Lucile Baugh Benson, Deceased, Respondent.
No. 3416
September 27, 1944. 151 P.(2d) 762.
1. Appeal and Error.
In partial reenactment of new trials and appeals act, omission of statement that motion for new trial must
be made and determined before appeal is taken on ground of insufficiency of evidence did not manifest intent
to change former procedure which required motion for new trial before consideration of sufficiency of
evidence could be had in supreme court. Comp. Laws, sec. 9385.58.
2. Appeal and Error.
Where sufficiency of evidence cannot be considered by the supreme court because there was no motion
for new trial, supreme court can nevertheless determine whether there is any evidence to support the
judgment. Comp. Laws, sec. 9385.58.
3. Executors and Administrators.
Testimony of executrix, that testatrix disposed of all articles she directed in her will to be distributed to
her friends in accordance with oral instructions given to executrix, constituted some evidence to support trial
court's finding that there was no property to be distributed under such provision of will.
4. Executors and Administrators.
Where there was some evidence to support trial court's order determining that certain legacies were
adeemed by testatrix' disposition thereof during her lifetime and question of sufficiency of evidence was not
properly presented to trial court on motion for new trial, order could not be disturbed by supreme court.
Comp. Laws, sec. 9385.58.
5. Appeal and Error.
Questions presented for first time in appellant's closing brief could not be considered by supreme court.
6. Executors and Administrators.
Were testatrix disposed of all her property she left by will, trial court's order approving final account of
executrix and directing that any property not discovered and belonging to estate should be distributed in
accordance with will, instead of directing such property to go to persons who by law are entitled thereto,
could not be complained of by devisee to whom property not known or discovered would go by a provision
in will.
62 Nev. 376, 377 (1944) In Re Benson's Estate
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Proceedings on the application of Emily C. Ross, executrix of the estate of Lucile Baugh
Benson, deceased, opposed by Arline Baugh Newcomb, for approval of the final account and
distribution of the estate pursuant to the will. From an adverse order, defendant appeals.
Affirmed.
William S. Boyle, of Reno, for Appellant.
L. D. Summerfield, of Reno, for Respondent.
OPINION
By the Court, Taber, J.:
Lucile Baugh Benson, a resident of Washoe County, made her last will at Reno on
September 18, 1943, and died in that city October 21, 1943. The will contains the following
provisions:
3. I bequeath to my daughter, Mrs. Betty Benson Holsinger, the sum of $100.00 and all
my silver, except such silver which I inherited from my mother.
4. I bequeath to my sister, Mrs. Aline Baugh Newcomb, my property, both real and
personal, in Kelso, Washington, such said bequest to be subject to any mortgage or
indebtedness thereon. I further bequeath to my sister, Mrs. Arline Baugh Newcomb, all silver
which I inherited from my mother and any residue of my estate after bills are paid and other
bequests are satisfied.
5. I bequeath to my friend, Miss Ruth Runhke, my clothing, any weaving apparatus in my
possession, and my automobile.
6. I direct that certain personal possessions, such as oil paintings, pictures, and the like,
be distributed to my friends in keeping with instructions which I have verbally given to
Mrs.
62 Nev. 376, 378 (1944) In Re Benson's Estate
my friends in keeping with instructions which I have verbally given to Mrs. Emily C. Ross.
Respondent was nominated to be the executrix of the will, and was appointed and
qualified as such.
In due course of administration executrix filed her first and final account, report and
petition for distribution, praying that the account be approved and that the estate be
distributed pursuant to the will.
Appellant filed objections to said account, report and petition. A trial was had before the
district court, sitting without a jury, and that court approved executrix's account and report,
disallowed each and every objection interposed by appellant, and decreed distribution as
prayed in the petition. Appellant was directed to return to decedent's apartment or to executrix
certain personal property which had theretofore been taken from said apartment. The order
and decree contained these further provisions:
The court finds that there is no personal property to be distributed pursuant to Paragraph
6 of the Last Will and Testament of the deceased, the deceased having personally disposed of
her personal possessions contemplated by said paragraph by gift prior to her death, and that
there is and will be no personal possession of the deceased upon which said paragraph of said
Will shall operate;
That the executrix distribute to Mrs. Arline Baugh Newcomb, as residuary legatee, any
and all other property and effects of the deceased which may be in her possession;
It is further ordered, adjudged and decreed that any other property not known or
discovered which may belong to said estate or in which the said estate may have an interest
be distributed by the executrix in accordance with the provisions of the Last Will and
Testament of the deceased.
1. Appellant did not move for a new trial in the lower court, and it is respondent's
contention that she is therefore in no position to ask this court to consider whether the
evidence was sufficient to support the order and decree appealed from.
62 Nev. 376, 379 (1944) In Re Benson's Estate
is therefore in no position to ask this court to consider whether the evidence was sufficient to
support the order and decree appealed from. We are limited, says respondent, to the
consideration of alleged errors appearing in the judgment roll. Appellant concedes that
formerly, in certain cases, a motion for a new trial was a prerequisite to a request to have this
court pass upon the sufficiency of the evidence. But she contends that this is no longer the
law of this state, in view of sec. 8 of the 1937 new trials and appeals act, which reads: Any
party aggrieved may appeal from the final judgment rendered in any action, case or
proceeding prescribed in this act with or without first moving for a new trial. Stats. of Nev.
1937, chap. 32, p. 55, 2 N. C. L. Supp. 1931-1941, p. 1249, sec. 9385.58. This precise point
was decided adversely to appellant's contention in Snyder v. Garrett, 61 Nev. 85, 115 P.2d
769.
2, 3. It is stated in appellant's closing brief that on appeal from a judgment, even if the
sufficiency of the evidence cannot be considered where there has been no motion for a new
trial, this court can nevertheless determine whether there is any evidence to support the
judgment. It was so stated in Sweet v. Sweet, 49 Nev. 254, 258, 243 P. 817. This point was
not made the basis for any of appellant's objections in the lower court. It is raised for the first
time on this appeal. The contention is that a $500 oil painting was referred to in paragraph 6
of the will, and that there is no evidence in the record that it was disposed of by decedent
prior to her death. Mrs. Ross, executrix, who is the Emily C. Ross named in said paragraph 6,
testified as follows:
Mr. Summerfield: Q. In paragraph 6 of the will, it is provided: I direct that certain
personal possessions, such as oil paintings, pictures, and the like be distributed to my friends
in keeping with instructions which I have verbally given to Mrs. Emily C. Ross.' Is there any
property for that paragraph of the will to operate on? A. None at all, because Mrs. Benson,
before she died, gave them to the people she wanted to have them.
62 Nev. 376, 380 (1944) In Re Benson's Estate
before she died, gave them to the people she wanted to have them.
Q. This will was made September 18, 1943, and she dieddo you recall the date? A. I
think it was the 21st of October, 1943.
Q. At the time she made this will, she had told you the disposition she wanted made of
the various articles; is that correct? A. It is correct.
Q. Before her death she practically gave all of those articles away, did she not? A. She
did.
Q. And there is no property for that section of the will to operate on? A. None at all.
Certainly this is some evidence that the property mentioned in said paragraph 6 was given
away by Mrs. Benson in her lifetime. Co