Nevada Reports 1939-1940 (60 Nev.) PDF

60 Nev.
1, 1 (1939)
REPORTS OF CASES
DETERMINED IN
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
Volume 60
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60 Nev. 1, 1 (1939) Berrum v. Georgetta
CHRISTINE BERRUM and ANDERSON P. BERRUM,
Appellants, v. CLEL GEORGETTA, Respondent.
No. 3266
September 5, 1939. 93 P.(2d) 525.
1. Attorney and Client.
In action for fee earned by plaintiff as attorney for defendant in her divorce suit, allegations of complaint,
liberally construed, authorized recovery of value of services rendered independently of agreed price.
Comp. Laws, sec. 8621.
In action for reasonable value of services rendered by plaintiff as attorney for defendant in her divorce
action, statement of facts in complaint were not deficient in failing to allege what services were reasonably
worth or promise to pay such value, where facts raising such implied promise were stated.
A judgment against husband and wife for reasonable value of services rendered by plaintiff as wife's
attorney in her divorce suit should be sustained, even if action was to recover agreed price, as variance
between allegation of such price and proof of reasonable value should be disregarded, where defendants
were not misled, offered no testimony as to reasonable value, and interposed no objection to such
testimony on ground that such issue was not within pleadings. Comp. Laws, sec. 8636.
4. Evidence.
In action for fee earned by plaintiff as attorney for defendant in her divorce action against codefendant,
inclusion of sums, directed by judgment denying divorce, to be paid wife husband for use as she
wished, in hypothetical question to attorney, called by plaintiff as expert to testify as
to reasonable value of services, was not improper.
husband for use as she wished, in hypothetical question to attorney, called by plaintiff as expert to testify as
to reasonable value of services, was not improper.
5. Appeal and Error.
Contentions, not embraced in any assignment of error, as to illegality of judgment appealed from by
defendants because of insufficiency of respondents' complaint, will not be considered.
Appeal from Second Judicial District Court, Washoe County; B. F. Curler, Judge.
Action by Clel Georgetta against Christine Berrum and husband. From a judgment for
plaintiff and an order overruling defendants' motion for a new trial, defendants appeal.
Affirmed.
OPINION
By the Court, Ducker, J.:
This is an action to recover an attorney fee alleged to have been earned by respondent as
attorney for the appellant, Christine Berrum, in an action for divorce instituted by her. Her
husband was joined in the instant action. The court found that the reasonable value of the
legal services rendered by the attorney to said Christine Berrum was the sum of $1,500, and
awarded judgment accordingly against her and her codefendant. Both have appealed from the
judgment and order overruling their motion for a new trial. They will sometimes be referred
to as husband and wife.
The facts about which there is no dispute are as follows: Shortly before her action for
divorce came on for trial the wife employed respondent as associate counsel to her attorney in
that action. It was understood and agreed that he was to look to her individually for his
compensation and was to receive no part of any counsel fees that might be awarded by the
court in the action against her husband. From the time of his employment throughout the trial
and for several days after judgment was entered, respondent acted as her associate counsel in
the case.
counsel in the case. By that judgment a divorce was denied. Pursuant to the consent of the
husband it was adjudged therein that the husband return to the wife the sum of $6,450
principal and interest of certain moneys, the separate property of the wife; that he pay her
$2,000 to be used by her as she wished; that he pay to her the sum of $8,000 to be expended
in the construction of a modern home, said sum to be deposited to her credit in the First
National Bank in Reno, Nevada, or such other responsible bank as she might select on or
before the first day of July 1937; and that he pay to her the sum of $200 a month for the
months of March, April and May 1937, the sum of $150 a month for the twelve months
commencing with the first day of June, 1937, the sum of $175 a month for the twelve months
commencing with the first day of June 1938, the sum of $200 a month for the twelve months
commencing with the first day of June 1939, and a like sum monthly thereafter so long as she
shall live, or until there shall be a division of the community property, all of said monthly
sums being for support and maintenance. It was further adjudged that she have a life estate in
an improved parcel of land in Reno, the same to become her separate property if she should
elect to construct a new home on said parcel of land. She was awarded her costs.
At the final hearing in the foregoing action the court allowed her original counsel an
attorney fee and at that time respondent stated in the presence of the husband and his attorney
that he was to be paid by the wife personally and therefore it would not be proper for the
court to make any allowance of attorney fee in the action to him, but that any allowance of
attorney fee in the action should be made to compensate the original attorney, William M.
Kearney, who should receive all of the attorney fee so decreed. On the 3d day of May 1937
there was personally served upon the husband a written notice of attorney's lien for his
services to his client in the action. Previously, on the 23d day of March 1937 a similar
service of said notice of lien was made upon the husband's attorney in the action.
a similar service of said notice of lien was made upon the husband's attorney in the action. On
or about August 13, 1937, the husband paid to the clerk of the court, who in turn paid to one
James T. Boyd, who at that time represented the wife as her attorney, the sum of $8,450,
being the total of $6,450 and $2,000 heretofore mentioned. The wife having refused to pay
respondent the sum claimed by him for his services as her attorney in her action for divorce,
the instant action was instituted.
It is alleged in the complaint that on or about the 18th day of April 1936 he had been
employed by said Christine Berrum as additional counsel to represent her in her action for
divorce and for an equitable distribution of community and separate property; that on or about
the 10th day of March 1937 they agreed upon the amount to be paid by her to him as
compensation for his services; and at that time agreed that the amount due him from her was
$2,000. It was also alleged in his complaint that from that time forward (time of
employment), plaintiff (respondent here) spent many hours of time in consultation with said
Christine Berrum, with said William M. Kearney, her other attorney, in the cause, with
prospective witnesses, and in an examination of the law, culminating in the trial of the action,
which began on the twenty-eighth day of April 1936 and continued with the plaintiff's
appearance in court on behalf of said Christine Berrum for a period of approximately
twenty-four (24) days. Notice by the husband of respondent's lien for an attorney fee on the
wife's cause of action and the subsequent payment through the former's attorney to the clerk
of the court of the first two sums mentioned in the judgment amounting to $8,450 and the
payment thereof to an attorney who was then acting for the wife, are also alleged in the
complaint.
In her separate answer the wife admitted the employment alleged, and that respondent had
rendered services on such employment, but denied that they had agreed upon the sum of
$2,000 as the amount of compensation for his services.
for his services. It was alleged that the same was excessive, and the sum of $1,000 was
tendered in her answer, in full settlement of his claim and costs.
Appellants make the following assignments of error:
(1) The court erred in overruling their objection to the hypothetical question asked of the
witness Cantwell.
(2) The court erred in making the finding as to the reasonable value of the professional
services rendered by the respondent, said finding being outside the cause of action stated in
the complaint.
(3) The judgment for the reasonable value of respondent's services is outside of the issue
and is not supported by the pleadings.
1, 2. The second and third assignments may be considered together, as they involve the
same question. It is contended that as the cause of action in the complaint is predicated upon
an express promise to pay an agreed amount, the finding of the reasonable value of
respondent's services, and judgment based thereon, are outside the issue and void.
But the complaint is not so restricted. In our opinion its allegations as above set out, are
sufficient to enable the respondent to recover the value of the services rendered,
independently of an agreed price. The common law rule for construing pleadings has been
succeeded by a fairer rule of code practice. In the construction of a pleading for the purpose
of determining its effect, its allegations shall be liberally construed, with a view to substantial
justice between the parties. Section 8621 N. C. L. The statement of facts in the complaint is
not deficient in that it is not alleged what the services were reasonably worth, Maitia v. Allied
L. & L. Co., 49 Nev. 451, 248 P. 893; nor for the lack of an averment of a promise to pay
such value. The facts raising such an implied promise are stated and the legal inference was
properly omitted. The statement of an agreed price does not negative the statement of a
quantum meruit. As stated in Sussdorff v. Schmidt et al., 55 N. Y. 319: The complaint
contains sufficient averments to enable the plaintiff to recover the value of the services
rendered, without reference to the allegation of an agreed compensation."
plaintiff to recover the value of the services rendered, without reference to the allegation of an
agreed compensation.
In Livingston v. Wagner, 23 Nev. 53, 42 P. 290, 291, the action was to recover the value
of goods and merchandise, and there was an allegation in the complaint of an agreed price.
The court held that it was competent for the plaintiff to prove the value of the goods. The
court said: The complaint states a good cause of action to recover the reasonable value of
goods sold and delivered to the defendant, at his special instance and request, independently
of the allegation of an agreed price. This allegation cuts no figure in the case, except to
prevent a recovery for any greater sum than the price alleged.
3. However, if the action be regarded as one to recover an agreed price, the judgment
should nevertheless be sustained. Considered in that aspect the case presents only such a
variance as under our law should be disregarded. Section 8636 N. C. L. provides in part: 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.
It is not contended that appellants were misled, and it is apparent that they were not. From
the nature of the case, testimony as to reasonable value was readily procurable, but none was
offered by appellants. No objection was interposed to the testimony as to the reasonable value
of respondent's services on ground that such issue was not within the pleadings.
In Sussdorff v. Schmidt et al., supra, the contention that the complaint being upon a
contract for a specific sum, recovery could not be had upon a quantum meruit was made and
held untenable. The court cited code section 169 of the New York code, which corresponds
with section 8636 quoted above. The court said: At most it was only a variance between
pleading and proof, which might be disregarded unless it misled the defendants, which
was not pretended.
which might be disregarded unless it misled the defendants, which was not pretended. * * *
This objection was not taken at the trial. * * * The attention of the court should have been
called to the point, as, if valid, it might have been obviated by an amendment.
The case of Burgess v. Helm, 24 Nev. 242, 51 P. 1025, 1026, is in line with the ruling of
the New York court. The action in Burgess v. Helm, supra, was to recover compensation for
labor and services, and the plaintiff obtained a judgment which was affirmed. The court said:
If the claim on which this action was brought be regarded as a claim based on an express
agreement, and for an agreed rate of compensation for the services performed, a recovery by
the plaintiff upon proper proof of the services and of their value must be sustained. At most,
it would only be a variance between the pleading and proof, which might be disregarded
unless it misled the defendant to his prejudice, which is not pretended, but counsel for
defendant admitted in open court below that he was not misled.
In Abbott's Trial Ev. 367, the author says: Under an allegation of a contract to pay a
specific rate of compensation, plaintiff may prove a promise to pay what the services were
reasonably worth, or an implied promise to pay usual compensation. The variance is
immaterial if the defendant is not misled; especially where there are sufficient averments to
enable him to recover without reference to the allegation of an agreed compensation.
The finding of the reasonable value of respondent's services is within the cause of action
stated in the complaint and supports the judgment.
4. It is contended in the reply brief that the court erred in overruling appellant's objection
to the inclusion of certain items embraced in the hypothetical question propounded to Charles
A. Cantwell, an attorney at law called by respondent as an expert to testify to the reasonable
value of respondent's services. The objection went to all of the sums awarded to Christine
Berrum in the action for divorce, except the sum of $6,450 awarded her as her separate
property.
went to all of the sums awarded to Christine Berrum in the action for divorce, except the sum
of $6,450 awarded her as her separate property. The argument is that a divorce having been
denied the court had no jurisdiction to award the sums stated in the hypothetical question and
objected to; that these sums having been given by consent of the husband were gifts and not
obtained by reason of any legal services rendered Christine Berrum by respondent.
It would have been far more satisfactory to this court if the foregoing contention and
argument had been made in the opening brief. However, we are not prepared to say that the
items objected to were not properly in the hypothetical question. Counsel does not contend
that the $6,450 was not properly a part of the question and practically concedes that it was
subject to an attorney's lien. Regardless of the other items being by consent they were
proportionately as beneficial to the appellant wife as the former item, and we may not say
with any degree of certainty that they were not in some measure the result of respondent's
services.
5. The contentions that the judgment against Berrum is illegal because it is nowhere
alleged in the complaint that he promised or agreed to pay respondent an attorney fee and that
said complaint does not present an action to foreclose an attorney's lien, are not embraced in
any assignment of error and will not be considered. Sherman v. Shaw, 9 Nev. 148; Boynton v.
Longley, 19 Nev. 69, 6 P. 437, 3 Am. St. Rep. 781. Moreover, counsel for respondent stated,
and so far as we have been able to ascertain, these points were not made in the court below.
The judgment and order denying a new trial are affirmed.
On Petition for Rehearing
December 13, 1939.
Per Curiam:
It is ordered that a rehearing be granted herein limited to a consideration of the questions
raised by the contentions that the judgment against Anderson P.
contentions that the judgment against Anderson P. Berrum, appellant, is illegal because it is
nowhere alleged in the complaint that he promised to pay respondent an attorney fee, or that
respondent performed services for him, and that said complaint does not present an action to
foreclose an attorney's lien. The time for such rehearing is hereby set for Friday the 29th day
of December 1939.
Briefs filed and served at least two days before the rehearing would be appreciated.
On Rehearing
February 2, 1940. 93 P.(2d) 479.
Alleged errors which appeared from judgment roll could be considered and determined
even though they had not been assigned as errors.
The right of an attorney to enforce an attorney's lien against judgment debtor does not
rest on principle of any promise from or services performed for such debtor, but on
statute giving such lien and on the conduct of judgment debtor with reference thereto.
A statute creating an attorney's lien is remedial in character and should be liberally
construed in aid of the object sought by the legislature, which was to furnish security to
attorneys by giving them a lien on the subject of the action. Comp. Laws, sec. 8923.
An independent action may be maintained for the enforcement of an attorney's lien.
A complaint alleging that plaintiff had been employed by wife and had instituted
divorce action for her, that services were rendered, that wife obtained judgment against
husband, that wife agreed to pay attorney certain amount for his services but failed to do
so, and that husband had notice of attorneys lien but despite notice of lien husband paid
to clerk of court for the wife a certain sum of money, was sufficient to charge husband
with liability for amount of the attorney's lien. Comp. Laws, secs. 8923, 9048.
An attorney who has a charging lien for his services is, to the extent thereof, to be
regarded as an equitable assignee of the judgment. Comp. Laws, sec. 8923.
A judgment debtor who satisfies judgment without regard to attorney's lien does so at
his own risk and is liable to attorney. Comp. Laws, sec. 8923.
An action by judgment creditor's attorney to enforce attorney's lien could not be
maintained against judgment debtor alone, but judgment creditor was a necessary
party, since issues involved determination of judgment creditor's liability to the attorney
and the amount thereof. Comp. Laws, sec. 8923.
On rehearing. Judgment and order denying a new trial affirmed.
OPINION
A rehearing was granted to consider the following questions:
1. Is the judgment against Anderson P. Berrum illegal because:
a. It is nowhere alleged in the complaint that he promised to pay respondent an attorney
fee?
b. It is nowhere alleged in the complaint that respondent performed services for said
Anderson P. Berrum?
2. Does the complaint present an action to foreclose an attorney's lien?
1. We did not determine these points made by appellants in our original opinion because
they had not been assigned as errors, but as the errors alleged in this respect appear from the
judgment roll they should be considered and determined. We do so reluctantly because the
questions were not raised in the court below, but belatedly in the reply brief in this court.
The first two points are devoid of merit. Counsel for appellants did not give them a
passing glance in his brief on rehearing. They may be summarily dismissed. 2.
2. The right of an attorney to enforce an attorney's lien against the judgment debtor does
not rest upon the principle of any promise from or services performed for such debtor, but on
the statute giving such lien, and on the conduct of the judgment debtor with reference thereto.
Consequently, to say the least, such allegations would have been out of place in the
complaint.
We pass to the latter question, namely: Does the complaint present an action to foreclose
an attorney's lien? Counsel for appellants argues that the allegations of the complaint should
have been in accordance with the requirements of section 9048 N. C. L. The complaint is not
in that form, and we are of the opinion that it need not be.
In part the statute which governs reads: * * * From the commencement of an action, or
the service of an answer containing a counterclaim, the attorney who appears for a party has a
lien upon his client's cause of action or counterclaim which attaches to a verdict, report,
decision, or judgment in his client's favor and the proceeds thereof in whosesoever hands they
may come, and cannot be affected by any settlement between the parties before or after
judgment. * * * Section 8923.
By this statute an attorney is given a lien for his services, and while it does not outline the
procedure for its enforcement, we are of the opinion that it was not intended to leave the
attorney remediless. No other statute prescribes a remedy.
3-5. It had been truly said that this lien is peculiar and unlike any other lien known to the
law. In re H. C. Roberts Electric Supply Co., 131 Misc. 119, 226 N. Y. S. 211. It is quite
generally held that statutes creating such a lien are remedial in character and should be
liberally construed in aid of the object sought by the legislature, which was to furnish security
to attorneys by giving them a lien upon the subject of the action. 7. C. J. S., Attorney and
Client, sec. 208. In so construing the statute before us we are persuaded that an
independent action such as this is maintainable for the enforcement of the lien.
statute before us we are persuaded that an independent action such as this is maintainable for
the enforcement of the lien. 1 Bancroft's Code and Practice Remedies, p. 91 and note 11; 6 C.
J. 797, and cases cited in note 30; Walcutt v. Huling et al., 5 Ohio App. 326, affirmed 92
Ohio St. 518, 112 N. E. 1087; Lundy v. Cappuccio, 54 Utah, 420, 181 P. 165. Under this
view the complaint before us is sufficient to charge appellant Anderson P. Berrum with
liability. It alleges that plaintiff (respondent here) is an attorney at law; that Christine Berrum
employed him as her attorney in an action for divorce instituted by her against Anderson P.
Berrum, and that services were rendered; that she obtained a judgment against her husband,
and the terms thereof; that Christine Berrum agreed to pay plaintiff for his services, the
amount thereof, and failed to do so; that Anderson P. Berrum had notice of plaintiff's
attorney's lien, and the form and manner thereof; that despite the notice of lien Anderson P.
Berrum paid to the clerk of the court for Christine Berrum, $8,450.
The complaint contains a prayer for relief against Christine Berrum and Anderson P.
Berrum for the amount of the attorney's lien. The allegations of the complaint brought the
action within the purview of the statute giving the lien.
In fact, it has been held that when the statute creating the lien does not require notice, the
giving of notice is not essential to the statement of a cause of action; that the statute is itself
notice to the world of the lien. Walsh v. Hoskins, 53 Mont. 198, 162 P. 960; Peri v. New
York Cent. & H. R. R. Co., 152 N. Y. 521, 46 N. E. 849; In re Flower, Sup., 167 N. Y. S.
778; Whitwell v. City of Aurora, 139 Mo. App. 597, 123 S. W. 1045. As to this we do not
decide. Counsel for appellant concedes that the judgment was valid against Christine Berrum,
who employed respondent. It is equally valid against Anderson P. Berrum so far as the
statement of a cause of action is concerned. He had notice of respondent's lien against
Christine Berrum's cause of action and the money judgment she recovered, but
notwithstanding, deprived respondent of the security given by the statute by paying the
judgment to the clerk for her.
against Christine Berrum's cause of action and the money judgment she recovered, but
notwithstanding, deprived respondent of the security given by the statute by paying the
judgment to the clerk for her. The principle underlying the statute by which Anderson P.
Berrum will be held liable is stated in the case of Welsh v. Hole, 1 Dougl. K. B., 238, 99 Eng.
Reprint, 155 wherein Lord Mansfield said: An attorney has a lien on the money recovered by
his client for his bill of costs; if the money come to his hands, he may retain to the amount of
his bill. He may stop it in transitu if he can lay hold of it. If he apply to the court, they will
prevent its being paid over till his demand is satisfied. I am inclined to go still further, and to
hold that, if the attorney give notice to the defendant not to pay till his bill should be
discharged, a payment by the defendant after such notice would be in his own wrong, and like
paying a debt which has been assigned after notice.
6. This principle concerning costs of an attorney has been applied to attorney's
compensation in decisions and by statute, and justly. The laborer is worthy of his hire in the
field, in the forum of the law, and elsewhere, and security for it is altogether equitable. We
are in accord with the very considerable authority to the effect that an attorney who has a
charging lien for his services is, to the extent thereof, to be regarded as the equitable assignee
of the judgment. In re McCormick's Estate, 182 A. 485, 14 N.J. Misc. 73; Newbert v.
Cunningham, 50 Me. 231, 79 Am. Dec. 612; Epp v. Hinton, 102 Kan. 435, 170 P. 987;
Grimes Savings Bank v. McHarg, 217 Iowa 636, 251 N. W. 51; Stoddard v. Lord, 36 Or. 412,
59 P. 710; Jacobsen v. Miller, 50 N. D. 828, 198 N. W. 349, 34 A. L. R. 317; Williams v.
New England Securities Co., 170 Ark. 139, 278 S. W. 961; Anderson v. Star-Bair Oil Co., 34
Wyo. 332, 243 P. 394. Bancroft Code Practice & Remedies, part 1, chapter V, section 73; 6
C. J. 766, and cases cited in note 81, in support of the text.
7. A judgment debtor therefore who satisfies the judgment, as was done in this case,
without regard to the lien, is, as Lord Mansfield phrased it, in his own wrong and like paying
a debt which has been assigned after notice. He does so at his own risk and is liable. 6 C. J.
792 and cases cited in note 64.
A judgment creditor should not be enabled to run away with the fruits of the cause
without satisfying the legal demands of his attorney, by whose industry, and in many
instances at whose expense, those fruits are obtained. Anderson v. Star-Bair Oil Co., supra
[34 Wyo. 332, 243 P. 398], quoting from Read v. Dupper, 6 Term R. 366, 101 Eng. Rep. 595.
8. Respondent contends that an action could have been maintained against the judgment
debtor alone, but we are of the opinion that the judgment creditor was a necessary party here,
as the issues involved a determination of her liability to the attorney and the amount thereof.
____________
60 Nev. 14, 14 (1940) Nev.-Cal. Transp. Co. v. Tonopah & Goldfield R.R. Co.
NEVADA-CALIFORNIA TRANSPORTATION COMPANY, INC., a Corporation,
Appellant, v. TONOPAH & GOLDFIELD RAILROAD COMPANY, a Corporation, Et
Al., Respondents.
No. 3296
January 4, 1940. 97 P.(2d) 433.
1. Public Service Commission.
The statutory right of either party to action to set aside order of public service commission, to appeal
from judgment or order in such action, can only be exercised by a party aggrieved by the judgment or
order. Comp. Laws, sec. 6133(d).
2. Automobiles.
Where public service commission rescinded certificate of public convenience and necessity to transport
freight as common carrier over highways of Nevada, after evidence produced at trial of action to set aside
order was transmitted by trial court to the commission, the trial court could not determine
validity of rescission of certificate.
court to the commission, the trial court could not determine validity of rescission of certificate. Comp.
Laws, sec. 6133 (b-d).
An appeal from judgment dismissing action to set aside order of public service commission granting
certificate of public convenience and necessity to transport freight as common carrier over highways of
Nevada would be dismissed, where judgment was entered after trial court transmitted evidence produced at
trial to commission and commission rescinded the certificate. Comp. Laws, sec. 6133(b-d).
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action by the Tonopah & Goldfield Railroad Company and others against the
Nevada-California Transportation Company, Inc., the Public Service Commission of the State
of Nevada, and others, to vacate and set aside an order of the commission granting a
certificate of public convenience and necessity to the Nevada-California Transportation
Company, Inc., to transport freight as a common carrier over the highways of the State of
Nevada between Reno and Tonopah and certain intermediate points. From the judgment of
dismissal and denial of motion for new trial, the Nevada-California Transportation Company,
Inc., appeals, and the plaintiffs move to dismiss the appeals. Motion to dismiss the appeals
granted.
OPINION
By the Court, Orr, J.:
On the 28th day of February 1938, the public service commission of the State of Nevada
entered an order granting a certificate of public convenience and necessity to
Nevada-California Transportation Company, Inc., a corporation, appellant herein, to transport
freight as a common carrier over the highways of the State of Nevada between Reno and
Tonopah and certain intermediate points.
On the 5th of May 1938, Tonopah & Goldfield Railroad Company, a corporation, et al.,
respondents herein, commenced an action in the district court of Ormsby County against
appellant and respondent commission to vacate and set aside said order of February 2S,
193S.
Company, a corporation, et al., respondents herein, commenced an action in the district court
of Ormsby County against appellant and respondent commission to vacate and set aside said
order of February 28, 1938.
Appellant appeared in said action and answered. The cause went to trial on April 17, 1939.
On April 21, 1939, the trial court, responsive to the requirements of subsection (b) of section
6133 N. C. L. ordered a copy of the evidence adduced at the hearing transmitted to the
respondent commission. Respondent commission, because of the absence of one of its
members, was unable to reach an agreement, and ordered the copy of the evidence transmitted
to it returned to the trial court. The trial court on the 29th day of May, on motion of the
respondent commission, ordered the copy of the evidence returned to said commission for
further consideration. On the 13th of June 1939, said commission reported to the trial court
that it had rescinded its order of February 28, 1938. On the 27th day of July 1939, the trial
court, upon motion of respondents, entered an order dismissing the action. From the judgment
of dismissal and denial of its motion for a new trial, appellant has appealed.
Plaintiffs and respondents herein have moved this court to dismiss said appeals, upon the
grounds that appellant is not aggrieved by said judgment or by said order, and that the
questions presented by each of said appeals are moot.
Section 6133 N. C. L. provides for the bringing of an action by a party in interest if he be
dissatisfied with an order of the public service commission.
The trial court based its action on subsections (b) and (c) of said section, and inasmuch as
subsection (d) makes provision for an appeal, we will also quote it. Said subsections read as
follows:
(b) If, upon the trial of such action, evidence shall be introduced by the plaintiff which is
found by the court to be different from that offered upon the hearing before the commission,
or additional thereto, the court, before proceeding to render judgment, unless the parties
to such action stipulate in writing to the contrary, shall transmit a copy of such evidence
to the commission, and shall stay further proceedings in said action for fifteen {15) days
from the date of such transmission.
before the commission, or additional thereto, the court, before proceeding to render judgment,
unless the parties to such action stipulate in writing to the contrary, shall transmit a copy of
such evidence to the commission, and shall stay further proceedings in said action for fifteen
(15) days from the date of such transmission. Upon receipt of such evidence the commission
shall consider the same, and may alter, modify, amend, or rescind its orders relating to such
rate or rates, fares, charges, classifications, joint rate or rates, regulation, practice, or service
complained of in said action, and shall report its action thereon to said court within ten days
from the receipt of such evidence.
(c) If the commission shall rescind its order complained of, the action shall be dismissed;
if it shall alter, modify, or amend the same, such altered, modified, or amended order shall
take the place of the original order complained of, and judgment shall be rendered thereon, as
though made by the commission in the first instance. If the original order shall not be
rescinded or changed by the commission, judgment shall be rendered upon such original
order.
(d) Either party to said action, within sixty (60) days after the service of a copy of the
order or judgment of the court, may appeal or take the case up on error as in other civil
actions. Where an appeal is taken to the supreme court of Nevada, the cause shall, on the
return of the papers to the higher court, be immediately placed on the calendar of the then
pending term, and shall be assigned and brought to a hearing in the same manner as other
causes on the calendar.
It is evident the trial court followed the plain directions of the statutes.
1. Subsection (d) provides a right of appeal by either party, but such a right can only be
exercised by a party if aggrieved by the action of the trial court.
2, 3. It may well be that appellant has been aggrieved by the revocation of its certificate of
convenience and necessity but, if that be true, it was not the action of the trial court but
that of the public service commission which resulted in injury to appellant, an injury
which the trial court could not redress in the action then before it.
necessity but, if that be true, it was not the action of the trial court but that of the public
service commission which resulted in injury to appellant, an injury which the trial court could
not redress in the action then before it. Conditions changed during the course of the trial. The
relief for which plaintiff and respondent was striving was obtained from a separate tribunal.
In the trial court, the act of granting the certificate by the commission was attacked by
plaintiff and respondent; said act of said commission was therein supported by appellant. The
certificate being rescinded, plaintiff and respondent had nothing further to urge upon the trial
court, and appellant could not substitute the order of rescission for the order granting the
certificate, and have the case proceed to a determination by the trial court of the validity of
the act of the commission in rescinding the certificate. As to what remedies may have been
open to appellant, we express no opinion; we merely decide that the one chosen is not proper.
Appellant has cited cases wherein appellate courts have, where dismissals have occurred,
reviewed intermediate orders, but these have been orders made by the court, and not
independent tribunals.
To proceed with the hearing of the appeals would serve no purpose, no matter what action
this court might take relative to the dismissal of the action or in ordering a new trial; the
grievance of which appellant complains could not be reached; it would find itself in the same
position, so far as the commission's order of rescission is concerned, as that in which it now
stands.
The motion to dismiss the appeals is granted.
March 18, 1940.
Rehearing denied.
____________
60 Nev. 19, 19 (1940) Bond v. Thruston
J. R. BOND, Appellant, v. JULIAN THRUSTON and
MARYEMMA THRUSTON, Respondents
No. 2363
January 24, 1940. 98 P.(2d) 343.
1. Action.
As respects whether plaintiff has alleged more than one cause of action, if facts alleged show one primary
right of plaintiff and one wrong by defendant which involves such right, plaintiff has stated but a single
cause of action, irrespective of how many forms and kinds of relief he may claim to be entitled to and ask
to recover, since the relief sought is no part of cause of action.
2. Action.
A complaint, alleging that plaintiffs bought building material from defendant who represented that
material was suitable for plaintiffs' intended use and that as result of defectiveness of material plaintiffs
were damaged in an amount equal to cost of material, and alleging special damages by reason of breach of
warranty and that due to defendant's negligent misrepresentation that other material sold to plaintiffs was
first class, plaintiffs were disturbed in their occupation of building and damaged in a certain amount, stated
but a single cause of action.
3. Action.
Although one must plead facts showing character and extent of special damages sustained on breach of a
warranty before such special damages can be recovered as element of damages, if the special damages are
sustained, the facts showing character and extent thereof constitute part of same cause of action brought to
recover general damages for breach of warranty, and should be pleaded as part of same cause of action.
4. Action.
In action for damages allegedly sustained through purchase of defective building materials from
defendant, that plaintiffs set out the facts showing character and extent of special damages claimed to have
been sustained by defendant's wrong in a so-called second and further cause of action did not in fact
constitute pleading of a different cause of action.
Where certain findings were on matters outside issues made by pleadings, on appeal such findings would
be disregarded and so much of judgment as was based thereon held void.
In action for damages arising out of purchase of alleged defective building materials where it was alleged
in complaint and trial court found that there was an express warranty of quality and suitability of materials
by defendant, findings of facts from which an implied warranty of similar nature would arise did not
prejudice defendant, nor would disregard of such findings affect judgment for
plaintiffs.
arise did not prejudice defendant, nor would disregard of such findings affect judgment for plaintiffs.
In action for damages allegedly sustained through purchase of defective building materials where no part
of judgment for plaintiffs was dependent on such finding, a finding concerning skill possessed by workmen
and care exercised by them in construction plaintiffs' house did not prejudice defendant.
Where trial court's findings included findings on mere matters of evidence, but each of such findings
upon ultimate facts alleged in pleadings, with other ultimate facts found upon issues raised by pleadings,
supported judgment for plaintiffs, the inclusion of evidence in the findings did not prejudice defendant.
9. Trial.
Where pleadings in action for damages arising out of purchase of alleged defective building materials
merely alleged dates when purchases were made, findings that contract and representation by defendant
were made on a different date could not be successfully attacked as being outside the issues and not
supported by pleadings.
10. Sales.
In action for damages allegedly sustained through the purchase of defective building materials from
defendant, wherein plaintiffs relied upon breach of warranty, findings supported award of special damages.
Whether an allowance for special damages allegedly sustained by breach of warranty regarding building
materials purchased from defendant was excessive could not be determined where evidence introduced in
trial court was not before supreme court on appeal.
On appeal, every presumption would be indulged that showing before trial court warranted its finding on
measure of damages, where evidence introduced in trial court was not before reviewing court.
Appeal from Eighth Judicial District Court, Lincoln County; Edgar Eather, Presiding
Judge.
Action by Julian Thruston and another against J. R. Bond for damages allegedly sustained
by plaintiffs through the purchase of certain building materials from defendant. From a
judgment for plaintiffs and order denying defendant's motion for new trial, defendant appeals.
Affirmed.
OPINION
By the Court, Hawkins, District Judge:
Defendant appealed from a judgment rendered against him, and in favor of plaintiffs, by
the Eighth judicial district court of the State of Nevada, in and for the county of Lincoln, for
the sum of $846.60, with interest and costs of suit; and from the order of said court denying
his motion for a new trial.
The defendant and appellant relies upon four alleged errors of the trial court to entitle him
to a reversal of the judgment rendered against him; which are:
1. It was error for the trial court to overrule the general demurrer interposed by the
defendant to plaintiff's complaint;
2. It was error for the trial court not to sustain defendant's objection, made at the beginning
of the trial, to the introduction or reception of any evidence in support of plaintiff's complaint;
3. The judgment was erroneous in that the findings of fact and conclusions of law
constituting the decision of the court are unsupported by the pleadings; and,
4. The judgment is excessive in that the award of $690 therein as special damages is
unsupported by the findings.
The first two assignments of error may be considered and disposed of together, as the
general demurrer and the objection to the introduction or reception of any evidence in support
of the complaint were filed and interposed upon one and the same ground; that the complaint
did not state a cause of action.
The complaint, with the caption, entitlement and verification omitted, reads as follows:
1. That plaintiffs are husband and wife, residing in the town of Pioche, County of
Lincoln, State of Nevada, and that defendant is a resident of the town of Pioche, County of
Lincoln, State of Nevada.
2. That on to-wit; the 7th day of April, 1937, plaintiffs purchased from defendant 50
pieces of 16 foot 3 ply wood wall board and on to-wit the Sth day of April, 1937, plaintiffs
purchased from defendant 60 pieces of 4xS three-ply wall board, the cost price of which
was the sum of $15S.40; that defendant represented to plaintiffs that said material so
sold and delivered was first-class material and that the same was suitable material for
erecting wall and ceilings in a first-class dwelling house, and placing wall board thereon,
and that the same was thoroughly seasoned and plaintiffs, relying upon said
representation purchased said materials from defendant.
3 ply wood wall board and on to-wit the 8th day of April, 1937, plaintiffs purchased from
defendant 60 pieces of 4x8 three-ply wall board, the cost price of which was the sum of
$158.40; that defendant represented to plaintiffs that said material so sold and delivered was
first-class material and that the same was suitable material for erecting wall and ceilings in a
first-class dwelling house, and placing wall board thereon, and that the same was thoroughly
seasoned and plaintiffs, relying upon said representation purchased said materials from
defendant.
3. That said materials were used in the construction of a five-room dwelling house
erected by said plaintiffs upon Lot 6 Block 14 Town of Pioche, County of Lincoln, State of
Nevada, and that after the erection of said dwelling house and papering over said materials so
sold and delivered to plaintiffs, the papering became damaged, soiled, and rendered useless
for the reason that said materials, so sold and delivered were not as represented to plaintiffs
and contained pitch, which has destroyed the interior of said house by leaving unsightly pitch
stains in each and every room upon the ceilings and walls of each and every room and,
although demands has been made upon said defendant to replace said materials, defendant
has failed, neglected and refused to do so, and as a result of said failure so to do, plaintiffs
have been damaged in the sum of $158.40.
For a second and further cause of action plaintiffs allege:
1. Re-allege Paragraph 1 of plaintiff's first cause of action as though fully set forth herein
verbatim.
2. That due to the misrepresentations of defendant to plaintiffs it has become necessary
for plaintiffs to incur additional expenses to remedy and cure the defects resulting from
defendant's misrepresentation and in order to put the said dwelling house in first-class
condition the following sums are necessary to be expended, that is to say: Labor, tearing out
inside lining and putting back ply wood $100.00
Labor, tearing out inside lining and putting back ply wood............................ $100.00
Purchase of ply wood...................................................................................... 160.00
Sizing and Stuping.......................................................................................... 50.00
Paper and papering.......................................................................................... 130.00
Replacing kitchen cabinet................................................................................ 100.00
Living room cabinet........................................................................................ 50.00
Repairing bath room........................................................................................ 50.00
Replacing inside trim...................................................................................... 50.00
Repainting........................................................................................................ 150.00

_______

Total $840.00
Each and every item above set forth is necessary and rendered necessary solely through
the false representation of defendant to plaintiffs and as a result thereof plaintiffs have been
damaged in the sum of $840.00 and, although demand has been made upon said defendant to
pay the same defendant has failed, neglected and refused to pay the same or any part thereof
to the damage of plaintiffs in the sum of $840.00.
For a third and separate cause of action plaintiffs allege:
1. Re-allege Paragraph 1 of plaintiffs' first cause of action as though fully set forth herein
verbatim.
2. That on to-wit; the 7th and 8th days of April, 1937, defendant sold and delivered to
plaintiffs 110 sheets of three-ply lining that at said times mentioned defendant negligently,
carelessly and wilfully represented that said material was first-class building material in every
respect and said plaintiffs relying on said representation purchased same and thereafter used
the same in the construction of a modern five-room dwelling house; that thereafter and upon
completion of said dwelling house plaintiffs discovered that said material was not first-class
material, but to the contrary was uncured, pitch-laden, third-grade, inferior material and
further allege the fact to be that defendant well knew at the times said material was sold and
delivered that the same was of inferior grade and not as represented and further allege;
that said defendant well knew that said material was unfit for the use for which it was
sold and delivered that notwithstanding said knowledge on the part of said defendant
plaintiffs are informed and believe, and therefore allege that defendant negligently,
carelessly and wilfully and without disclosing the true character of said material allowed
plaintiffs to use the same well knowing that damage would result therefrom.
inferior grade and not as represented and further allege; that said defendant well knew that
said material was unfit for the use for which it was sold and delivered that notwithstanding
said knowledge on the part of said defendant plaintiffs are informed and believe, and
therefore allege that defendant negligently, carelessly and wilfully and without disclosing the
true character of said material allowed plaintiffs to use the same well knowing that damage
would result therefrom.
That due solely and only to defendant's negligent, careless and wilfull misrepresentation
plaintiffs have been disturbed in the peaceable use and occupation of said premises and have
been and now are damaged in the sum of $998.00, as is set forth in plaintiffs' first and second
causes of action to which reference is hereby made and although demand has been made upon
defendant to pay the same, defendant has failed, neglected and refused to pay the same or any
part thereof.
Wherefore: Plaintiffs pray judgment of this court as follows:
Upon their first cause of action $158.40; upon their second cause of action $840.00; upon
their third cause of action $998.40; for their costs of suit incurred, and for such other and
further relief as the Court may deem just and proper in the premises.
Section 12 of the uniform sales act, being section 6746 N. C. L. 1929, defines an express
warranty, and provides: Any affirmation of fact or any promise by the seller relating to the
goods is an express warranty if the natural tendency of such affirmation or promise is to
induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.
No affirmation of the value of the goods, nor any statement purporting to be a statement of
the seller's opinion only, shall be construed as a warranty.
In Pomeroy Code Remedies, 4th Edition, on page 460, in section 347, the author discusses
at length the elements constituting a cause of action, and concludes such paragraph with the
statement that: The cause of action, as it appears in the complaint when properly pleaded,
will therefore always be the facts from which the plaintiff's primary right and the
defendant's corresponding primary duty have arisen, together with the facts which
constitute the defendant's delict or act of wrong."
action, as it appears in the complaint when properly pleaded, will therefore always be the
facts from which the plaintiff's primary right and the defendant's corresponding primary duty
have arisen, together with the facts which constitute the defendant's delict or act of wrong.
1. And on page 465, in section 349, the same author says: If the facts alleged show one
primary right of the plaintiff, and one wrong done by the defendant which involves that right,
the plaintiff has stated but a single cause of action, no matter how many forms and kinds of
relief he may claim that he is entitled to, and may ask to recover; the relief is no part of the
cause of action.
To the same effect is the holding of the court in Hutchinson v. Ainsworth, 73 Cal. 452, 15
P. 82, 84, 2 Am. St. Rep. 823, where it is stated: The facts upon which the plaintiff's right to
sue is based, and upon which the defendant's duty has arisen, coupled with the facts which
constitute the latter's wrong, make up the cause of action. If these facts, taken together, give a
unity of right, they constitute but one cause of action.
2. Testing the complaint in this action by the rules laid down in the foregoing statute and
authorities it states a single cause of action, brought to recover both general and special
damages alleged to have been sustained by the plaintiffs, resulting from the breach of an
express warranty made them by defendant regarding the quality and suitability of certain
building materials purchased from him by the plaintiffs to be and which were used by them in
the construction of their new home.
3, 4. Although one must plead facts showing the character and extent of special damages
sustained on breach of a warranty, such as plead in this action, before such special damages
can be recovered as an element of damages, yet if such special damages are sustained the
facts showing the character and extent thereof constitute part of the same cause of action
brought to recover general damages for breach of such warranty, and should be plead as part
of the same cause of action.
should be plead as part of the same cause of action. The fact plaintiffs saw fit not to observe
that rule of pleading and set out the facts showing the character and extent of special damages
they claimed had been sustained by the wrong of defendant in a so-called second and further
cause of action, did not in fact constitute the pleading of a different cause of action; being
merely a separation of the two parts of the same cause of action.
As the complaint stated a cause of action against defendant and in favor of plaintiffs, the
trial court did not err when it overruled defendant's general demurrer; nor was it in error when
it overruled his objection to the introduction of any evidence to support the said complaint.
5. Another error relied upon by appellant is that the findings of fact and conclusions of
law are not supported by the pleadings. A comparison of the pleadings with the findings
discloses that certain of the findings are on matters outside the issues made by the pleadings;
such findings should be disregarded, and so much of the judgment as is based thereon held to
be void, as against law. Marshall v. Golden Fleece Gold & Silver Min. Co., 16 Nev. 156;
Scossa v. Church, 46 Nev. 254, 205 P. 518, 210 P. 563; Douglas Milling & Power Co. v.
Rickey, 47 Nev. 148, 217 P. 590; Bowers v. Charleston Hill National Mines, Inc., 50 Nev. 99,
104, 351 P. 721, 256 P. 1058.
6, 7. The only findings of ultimate facts outside the issues raised by the pleadings are
findings of the existence of a state of facts from which the law creates an implied warranty
that the building materials sold by defendant to plaintiffs were reasonably fit for the purpose
to which such materials were to be applied, and the finding that the builders of the home were
first-class workmen and they were free from negligence in the construction thereof. Since it
was alleged in the complaint, and the court found there was an express warranty of the quality
and suitability of the building materials, the finding of facts from which an implied
warranty of a similar nature would arise did not injure defendant, nor would the
disregarding of such findings affect the judgment rendered in the case.
materials, the finding of facts from which an implied warranty of a similar nature would arise
did not injure defendant, nor would the disregarding of such findings affect the judgment
rendered in the case. The same conclusion applies to the finding regarding the skill possessed
by the workmen and the care exercised by them in constructing the home; as no part of the
judgment is dependent on such finding.
8. Appellant also argued that many of the findings should be disregarded for the reason
they were findings of evidentiary and not of ultimate facts, and if such are disregarded those
remaining do not justify the judgment. It is true that in almost all the findings made by the
trial court there are findings on mere matters of evidence, which should not have been
included therein, but in each of such findings there are also findings upon the ultimate facts
alleged in the pleadings; which with the other ultimate facts found upon the issues raised by
the pleadings, support and justify the judgment rendered in the case. The inclusion in the
findings of evidence presented at the trial, to support the allegations of the complaint, did not
injuriously affect any substantial right of the defendant.
9. Appellant's contention that the findings are outside the issues and not supported by the
pleading for the reason it is alleged and admitted in the pleadings that the materials were
purchased April 7, 8, 1937, while the finding on that matter is that both contract and
representation were made December 20, 1936, is not well founded, since such finding is not
inconsistent with the pleadings; the pleadings merely alleging the dates when the purchases
were made, while the finding sets out not only the dates of purchases as alleged in the
pleading but the date whereon the executory contract was entered into which was concluded
and executed by the purchases on the dates alleged and found.
10-12. The last assignment relied on by appellant is that the judgment is excessive in that
the award of $690 therein as special damages is not supported by the findings.
therein as special damages is not supported by the findings. There is no merit in such
assignment. In its findings the trial court expressly found that plaintiffs had been damaged, by
reasons set out in said findings, on their second cause of action in the sum of $690, and by
reason of such finding concluded that plaintiffs were entitled to recover from defendant on
their second cause of action the sum of $690. That so-called second cause of action was
brought solely and only to recover special damages which plaintiffs alleged they had
sustained by reason of the breach of the warranty regarding the materials purchased by them
from defendant. In it they set forth an itemized statement of the special damages they had
sustained, amounting to $840, which was in excess of the amount found by the court, and
while such finding does not itemize the damages allowed on said so-called second cause of
action it is within the pleadings and sustains the judgment for special damages. Whether such
allowance for special damages was excessive, in fact, we cannot determine for the reason the
evidence introduced in the trial before the lower court is not before us. Every presumption
must be indulged that the showing before the trial court warranted its finding on the measure
of damages. Hobart Estate Co. v. Jones, 51 Nev. 315, 274 P. 921; Caldwell v. Wedekind
Mines Co., 51 Nev. 32, 267 P. 827.
Finding no error in the record affecting adversely any substantial right of the appellant, the
judgment is affirmed.
NoteOrr, J., being disqualified, the Governor designated Hon. L. O. Hawkins, Judge of
the Sixth Judicial District, to sit in his stead.
March 3, 1940. 100 P.(2d) 74.
Where points raised on petition for rehearing were submitted to and considered by
supreme court before rendering original opinion and no point or authority warranting
further consideration was presented by petitioner, petition would be denied.
original opinion and no point or authority warranting further consideration was presented
by petitioner, petition would be denied.
Rehearing denied.
Jo G. Martin, for Appellant.
Harold M. Morise, for Respondents.
OPINION
Appellant has petitioned for a rehearing on his appeal, and in support of the petition says:
The principal defect of the complaint complained of by the appellant in his first two
specifications of error in his appeal from the order refusing to grant a new trial is not dealt
with in the opinion, and apparently has not been considered by this Honorable Court.
He then stated what he considered such defect in the complaint to be, and proceeded to
make substantially the same argument and cited the same authorities as in his briefs filed on
the appeal.
We considered all the points and authorities submitted by appellant before rendering the
opinion affirming the judgment of the trial court, and gave to them the weight and importance
to which they were entitled.
We were satisfied the opinion clearly applied the law to the facts as shown by the record in
this case, and petitioner has not presented any point or submitted any authority in the petition
for rehearing which warrants further consideration of the case.
The petition, therefore, is denied.
____________
60 Nev. 30, 30 (1940) Ex Parte Bain
In the Matter of the Petition of DELBERT BAIN
for a Writ of Habeas Corpus
No. 3295
January 24, 1940. 98 P.(2d) 477.
1. Habeas Corpus.
Where conditions which contributed to paranoiac condition of person confined in hospital for mental
diseases disappeared and were not likely to recur and paranoiac condition with which such person was
allegedly afflicted was not likely to recur, person was released from the hospital in habeas corpus
proceeding. Comp. Laws, sec. 11015.
Paranoia is a psychosis in which a patient builds up a set of delusions, which in most cases
are delusions of persecution which can be classed as, first, a beginning, second, a delusion of
persecution, and, finally, delusions of grandeur, egotism and self-importance.
Habeas corpus proceeding by Delbert Bain to secure discharge from confinement in the
Nevada State Hospital for mental diseases. Petitioner released.
Gordon W. Rice, for Petitioner.
Gray Mashburn, Attorney-General; W. T. Mathews and Alan Bible, Deputy
Attorneys-General, for Respondent.
(Neither of respective counsel filed a brief on the question of fact as to the present sanity
or insanity of petitioner.)
OPINION
The petitioner herein, Delbert Bain, was tried in the Second judicial district court of the
State of Nevada, in and for Washoe County, on a charge of assault with intent to kill, and on
the 6th day of September 1939, the jury impaneled in said court and cause returned a verdict
finding the said Delbert Bain not guilty by reason of insanity. Thereafter the said district court
entered its order and judgment, pursuant to section 11015 N. C. L., that said Delbert Bain be
confined in the Nevada State Hospital for Mental Diseases until he be regularly discharged
therefrom in accordance with law, and pursuant thereto the said Delbert Bain was
confined in said hospital.
N. C. L., that said Delbert Bain be confined in the Nevada State Hospital for Mental Diseases
until he be regularly discharged therefrom in accordance with law, and pursuant thereto the
said Delbert Bain was confined in said hospital. On October 17, 1939, said Bain petitioned
this court for a writ of habeas corpus. The writ was issued and made returnable on the 17th
day of November 1939, and on said date the superintendent of said hospital for mental
diseases duly made his return to said writ, and said cause was orally argued and briefs
submitted by respective counsel.
One of the grounds alleged by petitioner in support of his said petition for release was that
he was, at the time of filing said petition and for some time theretofore had been, sane. Our
finding on this question renders unnecessary a determination of the other questions presented.
This court, in order to make a determination as to whether or not said petitioner was sane,
deemed it necessary that evidence relative thereto be submitted to it, and on the 20th day of
November 1939, appointed Charles W. Guthrie as referee before whom such evidence could
be taken. Pursuant thereto, there was produced before said referee certain witnesses, their
evidence taken, transcribed, and the record thereof filed in this court. There has also been
filed herein a transcript of the evidence taken at the trial of said Bain in said district court.
After the filing of said transcripts and the consideration thereof by this court, an order was
entered that said petitioner be released from said hospital for mental diseases, for the reason
that the court found from the evidence submitted that he was, at the date of the making of said
order, as well as at the time of the filing of said petition, sane. The order of release was
entered pursuant to stipulation of respective counsel that this court, upon reaching a
conclusion as to the mental condition of said Bain, make its order, and the written opinion be
filed later.
At the hearing held before the said referee six doctors were called and testified, and the
answers of each to direct questions as to their several opinions concerning the sanity of said
Bain were as follows:
Dr. Frederick M. Anderson testified that he made an examination of petitioner on the 9th
day of November 1939, and stated: I found no evidence of insanity at the time.
Dr. James Thom was asked as to his opinion, and answered:
A. I couldn't determine that he was insane.
Q. Then you do feel that he was sane at the time? A. Yes, sir.
The following questions were propounded to Dr. Edward Everett Hamer, and the
following answers given:
Q. From your examination of Mr. Bain * * * November 17th, were you able to form an
opinion as to his sanity or insanity at the time? A. I believed from my examination last Friday
that he was not insane. Today I am more firmly convinced that he is not. * * * I believed he
was not, and now I am thoroughly convinced he is not.
Dr. Arthur E. Landers testified that the last twelve and a half years he has been on the staff
at the Nevada state hospital for mental diseases; that he made mental examinations of
petitioner at different times. He was asked the following questions and gave the following
answers:
Q. From the examinations that you have made of the petitioner here, as you have detailed
in evidence, and based upon what you have observed in connection with the petitioner, the
questions you have propounded to him, the history of his trouble as learned from Mr. Bain,
would you state at this time, in your opinion, whether Mr. Bain is now perfectly sane? A. I
will say that Mr. Bain is not insane, but that he had a paranoiac tendency and still has that
tendency.
Dr. Albert R. DaCosta was examined as follows:
Q. * * * In your opinion is Mr. Bain at the present time a sane man? A. Mr. Bain in my
opinion is a paranoiac at the present time, but without being active at the present moment.
Q. * * * Can you say whether the paranoiac condition of Mr. Bain is submerged? A. My
answer is yes', that it is submerged at the present moment, * * * All medical authorities agree
that a paranoiac was never cured. That has been my experience. That sooner or later, upon the
proper conditions arising, it will recur.
Dr. James C. Ferrell, superintendent of the Nevada hospital for mental diseases, after
detailing the examinations of petitioner that he had made, and his investigations, summed up
his conclusions in the following statements:
Q. Did you determine that he (Bain) was a paranoiac? A. It was very suspicious, yes, of
his being a paranoiac.
Q. Are you of that opinion now? A. Yes, sir, or I wouldn't be here.
Other evidence was submitted as to the actions of the petitioner since his commitment to
the hospital for mental diseases, and the petitioner testified in his own behalf. The testimony
given by the petitioner was clear and concise, with every indication that he had full
possession of his mental faculties.
It will be noted that the strongest evidence as to the present insanity of petitioner is that he
is a paranoiac or has paranoiac tendencies. The definition of paranoia upon which the experts
seemed to agree is: a psychosis in which a patient builds up a set of delusions, which in most
cases are delusions of persecution. Some of the experts enlarged upon the definition, saying:
There is first a beginning, second a delusion of persecution, and finally delusions of
grandeur, egotism and self-importance.
The jury evidently believed that the petitioner was suffering from some such a mental
disorder at the time of the commission of the assault with which he was charged. But it is
evident that his mind had cleared at the time of the examination had before the referee. It
seems the only question in the minds of some of the doctors was that there may, under certain
conditions, be a recurrence of mental derangement. It became and is the duty of this court to
determine whether that doubt is of sufficient weight to justify the court in ordering the
retention of a sane man in a mental institution for a term which might extend throughout the
remainder of his natural life, because, in the opinion of some of the doctors, the disease with
which they say he suffers is incurable. The same contention could be made twenty years from
now with the same force as it is now urged, should petitioner live that long.
We think the rights of this individual and the remoteness of his ever again becoming a
menace to society strongly favor his release.
A reading of the transcript of the evidence at the trial discloses that petitioner and his wife
were divorced, and that the custody of the children of the parties was awarded to the wife,
with the exception of a sixteen-year-old girl who chose to remain with her father. Some of the
children were and are of tender age, and the environment in which they were living was
deplorable, a condition such as would tend to undermine the physical and mental health of
any man who entertained any love for his children, and a condition which petitioner
endeavored to correct, but met with little success. We do not think it would serve any good
purpose to detail that evidence here. Much of those conditions was known to the petitioner,
and, as we say, they were sufficient to create a mental state such as petitioner was found to be
suffering from. By the intervention of the courts, the children have been placed in suitable
surroundings, where they will have an opportunity to receive proper teaching and care and
be properly fed and clothed.
teaching and care and be properly fed and clothed. These changed conditions are known to
the petitioner, and have made a decided improvement in both his mental and physical
well-being. It is indeed improbable that he will ever again be called upon to undergo such
mental and physical torture as was his lot for some time prior to the alleged assault. This
improbability of his being again subjected to such conditions renders remote indeed the fear
that the paranoiac condition, which some of the experts say is present but submerged, will
ever again assert itself. We at least felt that such contingency was sufficiently remote to
justify us in ordering his release.
For the reasons given, the order heretofore made directing the release of petitioner from
the Nevada hospital for mental diseases will stand.
____________
60 Nev. 35, 35 (1940) Gottwals v. Rencher
F. H. GOTTWALS, Appellants, v. JOHN S. RENCHER
and VELMA RENCHER, Respondents.
No. 3276
On Motions
August 4, 1939. 92 P.(2d) 1000.
The supreme court, on appeal, has power to stay proceedings in the district court.
Where partnership property which court ordered to be sold was in the possession of a receiver and not in
the possession of appellant or any person subordinate to him, the statute providing that the execution of an
order directing sale of realty shall not be stayed unless written undertaking be executed on the part of the
appellant was not applicable. Stats. 1937, c. 32, sec. 21.
Where court ordered sale of partnership property in hands of receiver and gave personal judgment against
appellant for the amount of any deficiency, if property ordered sold was considered as realty, judgment for
deficiency would not bring case within the provision of the statute requiring written undertaking to be
executed on part of appellant before execution of order directing sale of realty will be stayed. Stats. 1937,
c. 32, sec. 21.
A stay bond in a case not provided for in statute should be required only when it is made to appear that
on principles of equity and justice such bond is necessary to protect an appellee against damages he may
sustain by reason of an unsuccessful appeal. Stats. 1937, c. 32, secs. 16, 17, 19-21, 24, 25.
Where judgment was rendered directing receiver to sell certain partnership property consisting mainly of
buildings and structures erected upon leased premises and appellant served notice of appeal and filed
undertaking on appeal, the supreme court granted motion for an order staying hearing on return and
account and petition of receiver for confirmation of sale, since such proceedings were stayed by perfecting
of appellant's appeal to supreme court. Stats. 1937, c. 32, secs. 16, 17, 19-21, 24, 25.
Appeal from Eighth Judicial District Court, Clark County; Wm. E. Orr, Judge.
Suit by F. H. Gottwals against John S. Rencher and Velma Rencher, wherein a receiver
was appointed and ordered to sell certain partnership property. From an adverse judgment and
an order denying new trial, plaintiff appeals. On motion for an order staying the hearing of
receiver's return and account of sale and petition for order confirming and approving sale and
for writ of supersedeas.
Motion for order staying hearing of return, account, and petition of receiver for
confirmation of sale and vacating order setting hearing granted, and motion for order
vacating sale denied.
OPINION
By the Court, Eather, District Judge:
Appellant, owner of an undivided half interest, and respondents, owners of the other
undivided half interest in certain property at Boulder City, became involved in partnership
difficulties, and the former, as plaintiff, brought suit against respondents (defendants) in the
Eighth judicial district court, Clark County.
Eighth judicial district court, Clark County. The property involved consists of buildings and
structures erected upon three city lots, a lease of said premises from the United States to
appellant, and certain furniture and fixtures. Pursuant to an agreement of copartnership, the
respective parties operated certain businesses in and upon said premises from November 1,
1935, until June 4, 1937. On the last-mentioned date a receiver was appointed by said district
court, who after qualifying took possession of said properties and business, and has ever since
operated, conducted and administered the same.
After trial, judgment was rendered and entered in January 1939, the last two paragraphs of
the judgment as entered, reading as follows:
That from the proceeds of such sale and from any other money belonging to the
partnership in the Receiver's hands, said Receiver pay: (a) the expenses of the receivership,
including compensation of the Receiver and of his attorney and other employees and the
expenses incurred in operating the business during the receivership; (b) the general creditors
of the business or partnership, charging to Plaintiff individually the item of Six Hundred
Forty-five Dollars ($645.00) unpaid on accounts incurred by him prior to October 25, 1935,
and also any other obligations incurred by Plaintiff prior to November 1, 1935; (c) to the
Defendants the sum of Three Thousand Six Hundred Sixty-four and 5l/100 Dollars
($3,664.51), plus a sum equal to all Plaintiff's withdrawals since the appointment of the
Receiver, less any withdrawals by Defendants since said appointment, and plus also a sum
equal to all obligations incurred by Plaintiff prior to November 1, 1935, and paid by the
Receiver, plus Defendants' costs incurred herein taken at One Hundred One and 35/100
Dollars ($101.35); and (d) the residue equally to Plaintiff and defendants; and that said
Receiver render unto the Court an account and report of his administration and of said sale;
and obtain the confirmation and approval of the Court before paying over the sums herein
mentioned.
of the Court before paying over the sums herein mentioned.
That in the event the funds in the hands of the Receiver from the sale of the properties
and from all other sources be insufficient to pay the Defendants in full all of the sums
mentioned in Subdivision (c) of Paragraph 8, after paying all sums mentioned in Subdivisions
(a) and (b) of said Paragraph, then and in that event the Defendants have personal judgment
against Plaintiff for the amount of such deficiency.
On February 25, 1939, the receiver noticed certain of said properties for sale on March 3,
1939. On March 2, 1939, the trial court denied plaintiff's motion for a new trial. On the same
day (March 2) plaintiff served and filed his notice of appeal from said judgment and from the
order denying his motion for new trial, and also filed his undertaking on said appeal. On said
2d day of March plaintiff served upon the attorneys for respondents and the attorneys for the
receiver a written notice that he had perfected said appeal; said notice contained a demand
that the respondents and the receiver desist and refrain from all further acts and proceedings
relating to the sale of the property, noticed to be sold by said Receiver herein, on the 3rd day
of March, 1939, and that said sale be not made of said property, or any part thereof. On
March 3 the receiver sold said property to respondent John S. Rencher for $5,200. On March
7 the receiver filed his return and account of sale and petition for order confirming and
approving said sale. On the same day the district court fixed March 18 as the time for hearing
said return, account and petition. Also, on the same day (March 7), receiver served upon
appellant notice of the time and place so fixed by the court for the hearing of said return,
account, and petition.
On March 11 appellant moved this court for an order staying the hearing of said return,
account, and petition, vacating the order setting said hearing, vacating said sale and for a
writ of supersedeas.
said sale and for a writ of supersedeas. The motion was made upon the ground that said
proceedings were stayed by the perfecting of plaintiff's appeal to this court, and is based upon
the notice of motion and the affidavit of appellant's attorney.
Section 16 of the 1937 new trials and appeals act, Stats. of Nevada, 1937, chap. 32, p. 53,
at p. 58, provides in part that to render an appeal effectual for any purpose, a written
undertaking in the sum of $300 must be filed, or the sum of $300 deposited with the clerk of
the district court within five days after the notice of appeal has been served.
Section 17 of said act provides in part that if the appeal be from a judgment or order
directing the payment of money, or from an order dissolving or refusing to dissolve an
attachment, it shall not stay the execution of the judgment or order unless a written
undertaking be given, conditioned as specially provided in said section 17.
Section 19 of said act provides in part that if the judgment or order appealed from directed
the assignment or delivery of documents, or personal property, the execution of the judgment
or order shall not be stayed by or upon appeal, unless the things required to be assigned or
delivered be assigned and placed in the custody of such officer or receiver as the court may
appoint, and an undertaking be entered into to be approved by the court or judge and in such
amount as the court or judge may direct, and conditioned as specially provided in said section
19.
Section 20 of said act provides in part that if the judgment or order appealed from direct
the execution of a conveyance or other instrument, the execution of the judgment or order
shall not be stayed by the appeal until the instrument is executed and deposited with the clerk,
and an undertaking executed to be approved by the court or judge in such amount as the court
or judge may direct, and as specially provided in said section 20.
Section 21 of said act reads as follows: If the judgment or order appealed from direct the
sale or delivery of possession of real property, the execution of the same shall not be stayed
unless a written undertaking be executed on the part of the appellant, with two or more
qualified and sufficient sureties, or a bonding or surety company qualified to do business in
the State of Nevada, to the effect that during the possession of such property by the appellant
he will not commit, nor suffer to be committed, any waste thereon, and that if the judgment
be affirmed he will pay the value of the use and occupation of the property from the time of
the appeal until the delivery or possession thereof, pursuant to the judgment or order, not
exceeding a sum to be fixed by the judge of the court by which the judgment was rendered or
order made, and which shall be specified in the undertaking. When the judgment is for the
sale of mortgaged premises, and the payment for a deficiency arising upon the sale, the
undertaking shall also provide for the payment of such deficiency. In all other cases, not
provided for in sections 16, 17, 19, 20, or 21 hereof, the amount and conditions of the
undertaking to stay the execution of the judgment or order shall be fixed by the court or the
judge thereof, in which the judgment was rendered or the order made.
Section 24 relates to the justification of sureties on undertakings on appeal, and to deposits
of money in lieu of such undertakings.
Section 25 provides: In cases not provided for in sections 17, 19, 20, 21 or 24 of this act,
the perfecting of an appeal by giving the undertaking, and the justification of the sureties
thereon, if required, or making the deposit mentioned in section 16, shall stay proceedings in
the court below upon the judgment or order appealed from, except that where it directs the
sale of perishable property the court below may order the property to be sold, and the
proceeds thereof to be deposited to abide the judgment of the appellate court. District court
rule XXVI provides in part that: "No stay of execution upon motion for a new trial shall be
granted or allowed, nor execution or other proceeding be stayed in any case, except upon
the giving of a good and sufficient undertaking, in the manner and form as other
undertakings are given, to be approved by the judge, with at least two sureties, for the
payment of the judgment or debt, or performance of the act directed by the judgment or
order, in such amount as may be fixed by the judge."
District court rule XXVI provides in part that: No stay of execution upon motion for a
new trial shall be granted or allowed, nor execution or other proceeding be stayed in any case,
except upon the giving of a good and sufficient undertaking, in the manner and form as other
undertakings are given, to be approved by the judge, with at least two sureties, for the
payment of the judgment or debt, or performance of the act directed by the judgment or order,
in such amount as may be fixed by the judge.
Without a stay of proceedings in the lower court, it seems clear that appellant might suffer
irreparable injury in the event that his appeal should be successful. The main question to be
determined by this court on appellant's motion is whether the perfecting of his appeal stayed
further proceedings in the district court or whether, as contended by respondents, such stay
could only be effected by the giving of a stay bond. Appellant relies upon section 25 of the
1937 new trials and appeals act, while respondents base their contention on section 21 of said
act, and district court rule XXVI.
Sweeney v. Karsky, 25 Nev. 197, 58 P. 813, cited by respondents, grew out of an election
contest. The losing party appealed to the supreme court and filed a stay bond in addition to
the $300 appeal bond. The judgment having been affirmed, action was commenced on the
undertaking to recover the fees and emoluments of office. Upon appeal from a judgment in
favor of plaintiff, appellants contended that the undertaking was not authorized by law and
was therefore void. This court, in its opinion, said in part: It is provided in the last clause of
section 3367 that, in all cases not mentioned, the amount of the undertaking to stay the
execution of the judgment or order shall be fixed by court or the judge thereof. The stay of
execution of judgment in contested election cases, not being specifically provided for, comes
under this clause, and the recitals of the undertaking sufficiently show that all required steps
were taken to render it a valid contract under the law."
were taken to render it a valid contract under the law.
O'Donnell v. District Court, 40 Nev. 428, 165 P. 759, 760, was an appeal from an order
appointing a guardian. Appellant filed only an undertaking on appeal in the sum of $300. This
court, holding that the appeal stayed proceedings in the court below without the giving of any
further bond, said: The undertaking on appeal filed by petitioner conforms to section 404 of
the Civil Practice Act, and, as the procedure authorized by section 6162, Revised Laws, is not
a case provided for in sections 404, 405, 408, and 409 of the Civil Practice Act, the perfecting
of the appeal by giving the undertaking, as prescribed by section 404, stays proceedings in the
court below upon the judgment and order appealed from. Section 5355, Revised Laws. It is
argued by respondents that it is against the interest of petitioner, and against public policy, to
permit petitioner to manage her property pending the time of her appeal. And it might have
been suggested, by way of argument, that an appeal in such cases defeats the purpose of the
statute. This position has been ruled upon adversely to respondents by the Supreme Court of
California in construing a similar statute. Coburn v. Hynes, 161 Cal. 685, 120 P. 26; In re
Woods' Estate, 94 Cal. 566, 29 P. 1108; In re Moss, 120 Cal. 695, 53 P. 357. We are
powerless to remedy what may be a defect or omission in the Civil Practice Act.
In Dunphy v. McNamara, 50 Nev. 113, 252 P. 943, 945, the appeal was from an order
appointing a temporary trustee with directions to him to protect and preserve the property
involved pending the litigation. The defendants perfected their appeal by giving the statutory
$300 appeal bond, and contended that the appeal operated to suspend the order appealed
from, and that appellants were entitled to the possession of the trust property pending the
appeal. This court ruled against that contention, and after citing In the Matter of Real Estate
Associates, 58 Cal. 356, and quoting from Morbeck v. Bradford-Kennedy Co., 18 Idaho, 458,
110 P. 261, proceeded to say: "So, in this proceeding, it clearly appears that it is necessary
that the property involved should be preserved in statu quo as nearly as may be, pending
the litigation concerning it, and both upon principles of equity and upon the authorities
construing statutes substantially the same as ours we hold that the order appointing
George Russell, Jr., temporary trustee or receiver pendente lite was not vacated or
superseded by the giving of the statutory undertaking on appeal in the sum of $300.
proceeded to say: So, in this proceeding, it clearly appears that it is necessary that the
property involved should be preserved in statu quo as nearly as may be, pending the litigation
concerning it, and both upon principles of equity and upon the authorities construing statutes
substantially the same as ours we hold that the order appointing George Russell, Jr.,
temporary trustee or receiver pendente lite was not vacated or superseded by the giving of the
statutory undertaking on appeal in the sum of $300. See 3 C.J. 1285, note 31.
So far as we have been able to learn, the California statutes have never contained a
provision similar to the last sentence of section 21 of our 1937 new trials and appeals act. In
Oregon, however, in the case of In re Workman's Estate, 156 Or. 333, 65 P.(2d) 1395, 68
P.(2d) 479, the supreme court was confronted with statutory provisions similar to section 25,
and the last sentence in section 21 of our 1937 act. The confusion naturally resulting from
such provisions is well illustrated in this case, as well as in Dunphy v. McNamara supra; for,
just as in the latter case Justice Coleman dissented, basing his dissent on the statute
corresponding to section 25 of our said 1937 act, so in the Oregon case three of the seven
justices dissented, one of the grounds of their dissent being that, in their opinion, under the
provisions of that portion of their appeals statute corresponding to section 25 of the Nevada
act of 1937, the appeal from an order denying and overruling a petition to be appointed
executor operated to stay proceedings in the lower court, notwithstanding no supersedeas
bond was given.
1. Respondents contend that this court is without jurisdiction to hear or determine
appellant's motions, and cites 60 C.J. 1156, placing particular emphasis upon that portion of
the passage cited, which reads: But an application for a supersedeas of execution issuing on
a judgment from the court below must first be made to that court, and refused by it, before the
supreme court will hear such application. Two Arkansas cases are cited in support of the
foregoing rule, but an examination of them has disclosed that both are criminal cases, not
applicable to the pending motion.
cited in support of the foregoing rule, but an examination of them has disclosed that both are
criminal cases, not applicable to the pending motion. This court, on appeal, has power to stay
proceedings in the district court. In re Workman's Estate, supra; Lund v. Idaho & Wash.
Northern R., 48 Wash. 453, 93 P. 1071; Hough v. Roberts Min. & Mill. Co., 58 Nev. 317, 78
P.(2d) 102; Bancroft's Code Pr. & Rem., vol. 8, pp. 8716, 8717, sec. 6597; Bancroft's Code
Pl. & Rem., Ten Year Supp., vol. 5, 419, sec. 6597.
Aside from the perplexing questions arising out of the conflict in the provisions of our
appeals statutes hereinbefore mentioned, respondents contend that this case comes within the
provisions of the first part of section 21 of the 1937 act, for the reason that the major portion
of the property ordered sold is real property within the meaning of that section. They cite
Adams v. Smith, 19 Nev. 259, at pages 272-273, 9 P. 337, 10 P. 353. Appellant, on the other
hand, maintains that said property is personal property under the general rule that real
property does not include estates less than freehold, such as leaseholds and estates for years
which are, he contends, chattels real. He cites 50 C.J. 747, 748, notes 20, 21; and 50 C.J. 763,
notes 24-28. It is clear that the trial court considered the property personal property, because
in a modification of the judgment, appearing as Exhibit B in appellant's motion, the trial
court in prescribing the time for posting and publication of notice of sale, followed the
statutory provisions for the sale of personal, not real, property.
2. It is not necessary, however, for the court on this motion to determine whether the
property ordered sold is real or personal property; because, conceding it to be real property,
section 21 of the 1937 appeal act is not applicable, for the reason that said property, ever
since the receiver took possession in June 1937 has been in his possession and not in the
possession of appellant or any person subordinate to him. Zappettini v. Buckles, 167 Cal.
167 Cal. 27, 138 P. 696; Bancroft's Code Pr. & Rem., vol. 8, p. 8692; Keeling Collection
Agency v. McKeever, 209 Cal. 625, 289 P. 617; Bancroft's Code Pl., Pr. & Rem., vol. 5,
4184, sec. 6573.
3. The judgment in this case provides for a personal judgment against plaintiff for the
amount of any deficiency, should the funds realized from the sale be insufficient to pay
defendants in full all of the sums mentioned in subdivision (c) of paragraph 8 of said
judgment, after paying all sums mentioned in subdivisions (a) and (b) of said paragraph. But
even if the property ordered sold should be conceded to be real property, the judgment for a
deficiency would not bring this case within section 21 of the act of 1937. Arrington v.
Wittenberg, 11 Nev. 285; Bancroft's Code Pr. & Rem., vol. 8, p. 8692, note 20.
Until the last few years, the last sentence of the section corresponding to section 21 of the
1937 act read: In all other cases, not hereinbefore mentioned, the amount of the undertaking
to stay the execution of the judgment or order shall be fixed by the court or the judge
thereof. Comp. Laws, sec. 8898. Appellant argues that the effect of the change in section 21,
specifically excepting section 16, has been to remove any apparent conflict between section
25 and the last sentence of section 21. We are unable to concur in this view.
Appellant also maintains that section 25 of the 1937 act should control, under the rule that
in case of conflicting provisions in the same statute, the last in point of time or order of
arrangement should prevail. Ex parte Smith, 33 Nev., 466, at pages 480, 481, 111 P. 930; 59
C.J. 999, 1000; 25 R. C. L. 1011, 1012. But we are not disposed to consider this rule as
decisive in this case, particularly in view of the fact that the conflicting provisions under
discussion have been, with some variations, in our appeal statutes for approximately seventy
years, and have, with slight modifications from time to time, been retained to the present
time even when preceding acts have been supplanted by later ones.
time, been retained to the present time even when preceding acts have been supplanted by
later ones.
4. All efforts of this court to reconcile the provisions mentioned have proved unavailing,
nor have we been able to determine whether one provision should prevail over the other.
Having in mind the inherent powers of the court, and in view of our holding in Dunphy v,
McNamara, supra, the only conclusion we have been able to arrive at is that until the
legislature sees fit to clarify this situation, a stay bond, in a case not provided for in sections
17, 19, 20, 21, or 24 of the new trials and appeals act of 1937, should be required only when
it is made to appear that on principles of equity and justice such bond is necessary to protect
an appellee against damages he may sustain by reason of an unsuccessful appeal. No showing
of damage which may result from an unsuccessful appeal in this case has been made by
respondents. They have filed no county affidavits, nor have they offered any evidence. They
have relied entirely upon their contention that legally a stay may not be granted by this court
without the giving of a stay bond, at least unless application be first made in the court below.
5. Appellant's motion for an order staying the hearing of the return and account and
petition of the receiver for confirmation of sale, and vacating the order setting said hearing, is
granted, and it is hereby ordered and adjudged that no further proceedings be had in the lower
court, or any further steps taken by said court or the receiver towards the confirmation of said
sale, or the conveyance of said property; or any portion thereof, pending the appeal herein.
Appellant's motion for an order vacating said sale will be denied at this time, pending the
decision of this court on the merits of the appeal.
NoteOrr, J., being disqualified, the Governor designated Hon. Edgar Eather, Judge of
the Third Judicial District, to sit in his stead.
On the Merits
February 1. 1940. 98 P.(2d) 481.
1. Stipulations.
In partnership accounting proceeding, counsel for parties were authorized by statute to
stipulate that accounting reported by referee was incorrect, and that certain specified
figures constituted a correct accounting, since such stipulation related merely to step
taken in procedure by which cause of action was litigated and did not affect substantial
rights of the parties. Comp. Laws, sec. 600.
2. Stipulations.
The practice of stipulating facts in order to dispense with formal proof is encouraged,
and such stipulations are regarded as establishing the facts stipulated, and as taking the
place of evidence with regard thereto.
Generally, an attorney has implied authority to bind his client for management and
conduct of cause while it is pending before the court for determination. Comp. Laws, sec.
600.
An attorney has implied power to make admission of fact on behalf of his client
within scope of attorney's authority in conducting litigation, and admissions so made
bind client and dispense with necessity of proof. Comp. Laws, sec. 600.
5. Courts.
The court has inherent power and duty to correct the record so as to make it speak the
truth concerning what was actually decided.
6. Courts.
Action of trial court in amending minute entry of oral decision of trial court, to show
what court actually decided, was proper as a correction of record so as to make it speak
the truth, as against contention that the court altered its decision in a substantial way.
7. Judgment.
The trial court in rendering oral decision is not bound by what the clerk or
stenographer takes down, but may rely on the court's own memory as to what was
actually decided, and, in exercise of discretion, may refresh its memory from any source
it deems reliable.
Any error in trial court's refusal on hearing of a motion to be sworn and testify and to
call in another judge to hear the motion was cured where the court subsequently offered
to do so and counsel objected.
9. Motions.
Action of trial court on a hearing of a motion to strike orders and proposed findings of
fact and conclusions of law, in rejecting affidavit of the plaintiff, his attorney and
others, was proper where the affidavit had no relevancy to the motion.
in rejecting affidavit of the plaintiff, his attorney and others, was proper where the
affidavit had no relevancy to the motion.
10. Contempt.
An attorney is an officer of the court answerable to court for any contempt on part of
attorney.
11. Contempt.
Trial court's action in compelling attorney to answer under oath question concerning
averments in attorney's affidavit, under threats of commitment for contempt, was
authorized, since attorney as an officer of the court was answerable to it for contempt.
An attorney who is a recipient of confidence of client concerning a certain matter is
thereafter disqualified from acting for another party adversely interested in the same
matter.
The privilege which is secured to a client whose confidence has been given to attorney
may be expressly or impliedly waived.
Where attorney, who had been retained by plaintiff who subsequently terminated the
employment, acted as attorney for defendants, with consent of plaintiff given through
plaintiff's counsel, and where no protest was made by plaintiff at any stage of the
proceeding until more than a year after attorney appeared in the case for defendants,
plaintiff waived his right to object to representation of defendants by such attorney.
Whether attorney has violated his professional duty by changing sides in a particular
case depends upon the facts.
16. Pleading.
A motion for leave to file an amended complaint after trial court's decision had been
rendered was addressed to sound discretion of trial court.
17. Pleading.
The denial of a motion for leave to file amended complaint after trial court's decision
was proper where amended complaint would have injected a different issue into the
action and would have necessitated a new trial.
18. Judgment.
The granting of defendant's motion for modification of judgment was within sound
discretion of trial court.
In considering motion for modification of judgment which was denied by trial court in
partnership accounting proceeding, supreme court would presume that evidence
sustained judgment for defendants, and order of sale of partnership property.
20. Partnership.
The action of the trial court, in denying plaintiff's motion for continuance of sale of
partnership property which was ordered in trial court's judgment, was not error, where no
sufficient ground for continuance was made to appear to the court.
Plaintiff's contention concerning fixing of time by the court for hearing receiver's
petition for order confirming his account and return of sale of partnership property
became a moot question upon granting of stay by supreme court in that matter.
Action by F. H. Gottwals against John S. Rencher and others for a partnership accounting,
and other relief. From the judgment and from an order of the court denying plaintiff's motion
for modification of judgment, an order granting defendants' motion for modification of
judgment, and an order denying plaintiff's motion for continuance of sale of property found to
be partnership property, and from an order denying motion for new trial, the plaintiff appeals.
Affirmed.
OPINION
This action grew out of what was found by the trial court to be a partnership agreement in
the ownership and operation of a lease on certain lots in Boulder City, Nevada, stages,
automobiles, equipment, machinery, appliances, furniture, and fixtures, together with the
buildings on said lots, for a period of five years. On the 25th of October 1935 plaintiff, who
was the owner of said properties and business, agreed to sell to the defendants, who agreed to
purchase, an undivided one-half interest in same, for the price of $6,000, payable, $300 in
cash, and a promissory note for $5,700 due in five years from date thereof.
five years from date thereof. In addition to this consideration defendants agreed to devote
their entire time to said business in the management and conduct thereof.
A written agreement was executed by the plaintiff and defendants on that date. Plaintiff
alleged in his complaint that the written agreement, due to mutual mistake, contained only a
part of the arrangement entered into, and alleged the particulars in which it failed to state the
full understanding of the parties. Plaintiff, becoming dissatisfied with the defendants'
management of the business, and contending that the written agreement was incomplete as
aforesaid, served upon defendants a notice of rescission of the agreement of sale of the
undivided one-half interest in said properties and business, a notice of dissolution of the
partnership agreement, demanding an accounting and payment of any sum of money found
due plaintiff upon such accounting, offering therein to return in addition to the note, any and
all benefits received under and by virtue of the agreement, and to restore the status quo of the
parties.
Upon defendants failing to comply therewith this action was instituted in which such relief
is sought. Defendants answered; the action was tried to the court; a decision was rendered on
March 24, 1939, and counsel for the defendants were directed to prepare findings. Thereafter
defendants served upon plaintiff proposed findings of fact and conclusions of law. Prior to the
entry of judgment and before findings of fact and conclusions of law were signed, the court
permitted plaintiff's counsel to withdraw as his attorneys. Thereafter the present attorney, who
represents plaintiff on appeal, appeared specially for him in the court below and made a
number of motions, which were all denied by the court. Findings of fact and conclusions of
law were signed and filed by the court.
The court found, inter alia, that an agreement of partnership, partly oral and partly written,
for the term of five years from October 25, 1935, had been entered into between the
parties and that plaintiff dissolved the same after nineteen months in contravention of the
agreement, and found that no damages resulted from such improper dissolution; that in
order to adjust the accounts between the parties duly found, and effect an equitable
division of the joint property and assets, a sale of such property must be made by the
receiver theretofore appointed.
of five years from October 25, 1935, had been entered into between the parties and that
plaintiff dissolved the same after nineteen months in contravention of the agreement, and
found that no damages resulted from such improper dissolution; that in order to adjust the
accounts between the parties duly found, and effect an equitable division of the joint property
and assets, a sale of such property must be made by the receiver theretofore appointed.
Judgment was entered accordingly.
Plaintiff noticed his appeal from the judgment; from the order of the court denying his
motion for modification of the judgment; from the order granting defendants' motion for a
modification of the judgment; from the order denying plaintiff's motion for a continuance of
sale, and from the order denying his motion for a new trial. We will continue to refer to the
parties as they appeared in the court below.
Forty-four errors have been assigned. We will discuss only such of these assignments as
have been fairly argued.
1-3. The first of these is that the court erred in denying plaintiff's motion to vacate the
stipulation made by counsel for the parties, agreeing that the accounting reported by the
referee was incorrect and that certain specified figures constituted a correct accounting. There
is nothing unusual in such a stipulation of fact dispensing with formal proof. On the contrary,
it is common practice to dispense with such proof by an agreed statement of facts.
Stipulations of this kind, as said in City of Los Angeles v. Oliver, 102 Cal. App. 299, 283 P.
298, 311, have always been regarded by the courts as establishing the facts stipulated and as
taking the place of evidence with regard thereto. Sec. 23 Cal. Jur. p. 816 and cases cited in
note 14. The practice is encouraged by the courts. 60 C.J. 58. But counsel for plaintiff asserts
that his client's former attorneys did not have authority to enter into the stipulation. In this he
is mistaken.
is mistaken. As a general rule an attorney has implied authority to bind his client for the
management and conduct of the cause while it is pending before the court for determination.
This general rule and the manner in which such authority can be exercised are seen in our
statute. Sec. 600 N. C. L. It provides in part: An attorney and counsellor shall have authority:
FirstTo bind his client in any of the steps of an action or proceeding, by his agreement filed
with the clerk, or entered upon the minutes of the court, and not otherwise. * * *
The stipulation in this case, pursuant to the statute, was filed with the clerk. Stipulations
by respective counsel as to evidence to take the place of formal proof have always been
common practice.
4. As stated by Mr. Thornton, in his work on Attorneys at Law, vol. 1, pp. 476, 477: The
implied power of an attorney to make admissions of fact on behalf of his client within the
scope of his authority in conducting litigation, is beyond question. Admissions when so made
by an attorney bind the client and dispense with the necessity of proof. The following
authorities support the rule stated: Lewis v. Sumner, 13 Metc., Mass., 269, 272; Garrett v.
Hanshue, 53 Ohio St. 482, 42 N. E. 256, 35 L. R. A. 321; Holmes v. State, 82 Neb. 406, 118
N. W. 99; Harrill Bros. v. Southern R. Co., 114 N. C. 542, 57 S. E. 382; Richmond v.
Sangster, Tex. Civ. App., 217 S. W. 723; Heinze v. Industrial Commission, 288 Ill, 342, 123
N. E. 598; Christy v. Atchison, T. & S. F. Ry. Co., 8 Cir., 233 F. 255; 5 Am. Jur. 314; 7 C. J.
S., Attorney and Client, sec. 100, pp. 919, 920, 921; Weeks on Attorneys at Law, p. 450.
The court in Lewis v. Sumner, supra, emphasized the importance of upholding agreements
of this kind. Shaw, C. J., speaking for the court, said: The importance of upholding
agreements and concessions like the present, between attorneys and counsel of litigating
parties, is greater than it might seem at first blush, and is enhanced by our present practice.
enhanced by our present practice. In most cases of controverted facts, many facts are
embraced in the issue, which are not really in dispute between the parties; but each must be
prepared to prove all the facts necessary to his own case, unless he can previously obtain a
concession from the adverse party, in a form which he can rely upon, at the trial. It is,
therefore, a wise, useful and beneficial practice, resorted to by those who are most careful in
preparing causes for trial, and a practice well deserving to be encouraged by the courts, for
the parties, by their attorneys, to obtain and give mutual concessions, in writing, of all the
material facts, not intended to be controverted, and so narrow the litigation to the precise
matters in controversy. It saves expense, avoids surprise and delay, and often prevents the
loss of a good cause, by an expected call for proof, which could easily have been obtained, if
it had been anticipated that such fact would be called in question. This practice of admitting
facts is the more necessary, since the disuse of special pleading, which was designed, and to
some extent had the effect, to narrow the issue on record to some one or a few questions of
fact. This consideration renders it important to hold, that a litigant party shall not be permitted
to deny the authority of his attorney of record, whilst he stands as such on the docket. He may
revoke his attorney's authority, and give notice of it to the court and to the adverse party; but
whilst he so stands, the party must be bound by the acts of the attorney.
In Garrett v. Hanshue, supra, the court, after a review of the authorities held [53 Ohio St.
482, 42 N. E. 260, 35 L. R. A. 321]: In view of these authorities, we are of opinion, and so
hold, that an attorney of record has ample power to do on behalf of his client all acts, in or out
of court, necessary or incidental to the prosecution, management, or defense of the action, and
which affect only the remedy, and not the right, and that this includes the power to waive
objections to evidence, and enter into stipulations for the admission of facts on the trial."
stipulations for the admission of facts on the trial.
In the case before us the stipulation did not affect a substantial right. It went only to the
mode of proof. Within the meaning of the statute it was but a step taken in the procedure by
which the cause of action was litigated. Consequently the authorities cited by appellant to the
effect that the rule applies only to procedure need not be discussed. State v. Cal. Min. Co., 15
Nev. 234; Scheeline Banking & Trust Co. v. Stockgrowers' & Ranchers' Bank, 54 Nev. 346,
16 P.(2d) 368, cited by him are not in point. Moore v. De Bernardi, 47 Nev. 33, 213 P. 1041,
220 P. 544, is not contrary to the views expressed.
We have considered the motion to vacate, and affidavit of plaintiff in support thereof,
attentively, and are satisfied that the trial court would have abused its discretion if it had
granted the motion. There was no showing of mistake, fraud, collusion, accident, surprise, or
some ground of like nature. There is no claim that the stipulation was untrue in any respect,
or that a result more beneficial to plaintiff would be obtained if an accounting is had. The
burden of the claim is that plaintiff's counsel were without authority to enter into the
stipulation. We hold to the contrary.
The errors assigned concerning the promissory note are without merit, and received but a
passing notice in the opening brief. It is contended that the judgment should be reversed
because plaintiff's rights in the note were not adjudicated. At the trial the note for $5,700 was
surrendered to the court for such disposition as it might direct. The court found against
plaintiff on all points on which he predicated his offer to surrender the note to defendants,
namely, that the agreement of partnership be rescinded and that defendants be required to
reconvey to plaintiff everything attempted to be conveyed to defendants. The court found that
a partnership had been consummated and that the note had been given as a part of the
purchase price for an undivided one-half interest in the business and property conveyed;
that the note was taken by plaintiff as payment and not as evidence of indebtedness.
one-half interest in the business and property conveyed; that the note was taken by plaintiff as
payment and not as evidence of indebtedness. The note is still the property of plaintiff but his
rights in it have been fully adjudicated.
Error is claimed by plaintiff on account of the action of the court in denying his motion to
vacate orders and to strike proposed findings of facts and conclusions. The motion to vacate
was made upon the ground that the orders made on March 24, 1938, when the court rendered
its decision on the merits and the proposed findings of facts and conclusions of law prepared
pursuant thereto, were premature because the court had not rendered its final decision. On the
hearing of the motion the deputy clerk identified the minutes of March 24, 1938, to be as
follows: It was by the court ordered that judgment be entered in accordance with the written
judgment to be filed herein. Counsel for defendants directed to prepare findings. The deputy
clerk also identified the minutes of July 8 to be as follows: The court set the 16th day of
September, 1938, within which to file objections to proposed findings, and to submit also his
substituted findings. The deputy clerk also testified that on said March 24 she had taken
down in shorthand certain statements of the court and had made a transcript thereof, which
transcript was introduced in evidence. The deputy clerk further testified that said transcript
contained only a partial statement of what the court said, and that she did not remember what
else he had said. Further hearing of said motion was continued to October 5, 1938. In the
meantime, on October 3, 1938, the court caused to be entered in the minutes its further order
respecting the statement of the court on March 24, 1938, prefacing said further remarks by the
following: On the 24th day of March, 1938, the court rendered an oral decision in the above
entitled matter, and a minute entry thereof was thereafter made; that said minute entry is
uncertain in its terms and that it is not the true or correct statement of what occurred; the
court, at this time, upon its own motion ordered that said minute entry in said cause be
amended so as to read as follows:"
it is not the true or correct statement of what occurred; the court, at this time, upon its own
motion ordered that said minute entry in said cause be amended so as to read as follows:
5, 6. It is contended that the court altered its decision in a substantial way. We think,
however, that the court merely corrected the record so as to make it speak the truth as to what
was actually decided. The court had the inherent power to do this and it was its duty to do it.
Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A. L. R. 824; Smart v. Valencia, 49 Nev. 411,
248 P. 46; Silva v. Second Judicial District Court, 57 Nev. 468, 66 P.(2d) 422; Dwight v.
Hazlett, 107 W. Va. 192, 147 S. E. 877, 66 A. L. R. 102, and authorities cited; 14 Cal. Jur.
994.
7. 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 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. District court
rule XLV has no application in this case. Lindsay v. Lindsay, supra. The power to change a
decision or judgment rests, of course, on different principles.
8. The complaint made of the refusal of the trial judge on the hearing of the motion at the
behest of plaintiff to be sworn and testify and to call in another judge to hear the motion,
needs no attention. The court subsequently offered to do both, and counsel objected. Certainly
that obviated the cause of complaint, if there was any.
9-11. A great deal of complaint is made by the plaintiff concerning the action of the trial
judge on the further hearing of the motion, in overruling his objections to the introduction of
evidence; in rejecting the affidavits of plaintiff, his attorney and others; in compelling the
attorney to be sworn and answer questions by the court as to averments in his affidavit
under threats of commitment for contempt.
to the introduction of evidence; in rejecting the affidavits of plaintiff, his attorney and others;
in compelling the attorney to be sworn and answer questions by the court as to averments in
his affidavit under threats of commitment for contempt. We have read these affidavits. They
had no relevancy to the motion to strike the orders and proposed findings of fact and
conclusions of law. The court was therefore justified in refusing to permit them to be filed.
Furthermore, they contain matters which bear an implication that impugns the motive and
good faith of the trial court as to its action on October 3 in correcting the record of its
decision. The attorney was an officer of the court and answerable to it for contempt, if such
was the fact. Consequently the court was acting within its authority in compelling him to
answer questions under oath as to such matters, which, to say the least, were dubious in their
import. The trial court was patient and forebearing throughout and eventually gave the
attorney the benefit of the doubt. Moreover, the proceedings in this respect had no bearing on
the ground of plaintiff's motion. It was properly denied, and plaintiff had no cause for
complaint in the rulings of the court in connection therewith. Neither had he any cause for
complaint of the ruling of the court denying his motion for additional and substantial
findings.
Another assignment discussed is leveled at the order of the court in denying the motion to
enjoin Harold M. Morse, one of the defendants' attorneys, from appearing as an attorney for
defendants. The motion was made on the ground that said Morse had previously represented
the adverse interests of the plaintiff respecting the subject matter of this action. It appears
from the hearing of the motion that some time prior to the commencement of the action
plaintiff consulted Morse concerning the subject matter of this litigation, leaving with him for
his inspection the written agreement and some accounts with the defendants, and paid him
$20 in cash for filing fee, if an action was instituted. Later plaintiff became dissatisfied with
Morse's attitude and terminated the employment.
plaintiff became dissatisfied with Morse's attitude and terminated the employment. Morse
returned the $20 to plaintiff and later accepted employment from the defendants to act as one
of their attorneys in the action, and did act as such in filing defendants' pleadings, throughout
the trial, and on appeal.
Plaintiff's affidavit was admitted in evidence on the hearing on the motion, and Harold M.
Morse, Alfreda Noland, one of plaintiff's former attorneys, and plaintiff testified on the
hearing. The motion was submitted, the trial court rendered an oral opinion thereon, and
made the following finding: My finding is that he (Morse) acted with consent of plaintiff,
which gave him the right to act; that the consent of plaintiff was given through counsel, with
the benefit of the knowledge and experience of counsel, and that as far as appears to the
court, in the giving of such consent his rights were fully safeguarded. The motion is denied.
This finding has substantial support in the foregoing testimony. We will not here state or
summarize it. To do either would prolong this opinion unnecessarily.
12, 13. It is well settled that an attorney who is a recipient of the confidence of a client
concerning a certain matter, is thereafter disqualified from acting for another party adversely
interested in the same general matter. Annotations 51 A. L. R. 1307; Wutchumna Water Co.
v. Bailey, 216 Cal. 564, 15 P.(2d) 505; 1 Thornton Attorneys at Law; Boyd v. Second Judicial
District Court, 51 Nev. 264, 274 P. 7. Most of the authorities presented by plaintiff are in
accord with this general rule. The facts of this case, however, take it out of its operation. They
show a waiver on the part of plaintiff of the privilege which, under the general rule, is secured
to a client whose confidence has been given to an attorney. The privilege so secured may be
waived. In re Cowdery, 69 Cal. 32, 10 P. 47, 58 Am. Rep. 545; Weidekind v. Tuolumne
County Water Co., 74 Cal. 386, 19 P. 173, 5 Am. St. Rep. 445; Michel v. McKenna, 199
Wis. 6008, 227 N. W. 396; Harvey v. Harvey, 202 Wis. 553, 231 N. W. 5S0; Hopkins v.
National Bank of Norman, 115 Okl.
553, 231 N. W. 580; Hopkins v. National Bank of Norman, 115 Okl. 196, 242 P. 532, 533; 1
Thornton on Attorneys at Law, secs. 179, 182; 7 C. J. S., Attorney and Client, sec. 48, p. 829.
The waiver may be either express or implied. In Harvey v. Harvey, supra, it was deemed
waived by conduct. That a waiver could be made was recognized in the case of In re Boone,
C. C., 83 F. 944, 952, and in Peirce v. Palmer, 31 R. I. 432, 77 A. 201, 209, Ann. Cas. 1912b,
181, the court quoted approvingly from the former case as follows: This is the privilege of
the client, and not of the attorney, and, unless the client sees fit to waive his privilege, the
obligation solemnly rests upon the attorney to keep his lips forever sealed, and to preserve
inviolate the confidence reposed in him.
14, 15. Under the facts of this case there was both an express waiver and an implied
waiver. As previously pointed out, the court found on substantial evidence that Morse acted
with the consent of plaintiff given through the latter's counsel. This was an express waiver.
No objection or protest was ever made by plaintiff at any stage of the proceedings, during the
trial or after decision, or at all, until his present attorney filed the motion to enjoin Morse on
June 14, 1938, over a year after Morse appeared in the case as one of the attorneys for
defendants. This conduct was in itself a waiver. A party ought not to be permitted to remain
quiescent over a long period of time looking for a favorable decision, and, if unsuccessful,
obtain a reversal upon a mere charge of collusive fraud between his own attorneys and the
attorney on the other side, by which the latter was permitted to appear against him in the
action. If it be argued that he was in the hands of his attorneys it may be noted that plaintiff,
on the motion to enjoin, testified that he mistrusted his former attorneys from the time he had
the conversation with them about Morse representing defendants. Whether an attorney has
violated his professional duty by changing sides in a particular case, which is the charge here,
depends upon the facts of the particular case.
facts of the particular case. Logan v. Logan, 97 Ind. App. 209, 180 N. E. 32. Consequently,
we have less hesitancy in holding a waiver in this case, because the likelihood that plaintiff
sustained injury is extremely remote. He does not allege or show it, but stands on the bare
legal proposition that he is entitled to a new trial because of Morse's former relations with
him. There is nothing in any of the evidence adduced on the hearing to indicate that he was
prejudiced. The evidence adduced on the trial is not before us, but the court found that in
giving his consent through counsel, his rights were fully safeguarded. The trial court was in a
position to know whether he suffered any prejudice on account of his former relation with
Morse. The motion was properly denied and there is no merit in any of the objections taken
by plaintiff to the rulings of the court on the hearing of the motion.
16. It is contended by plaintiff that the court erred in denying his motion for leave to file an
amended complaint after its decision had been rendered. This was necessarily addressed to
the sound discretion of the trial court. As stated in McCausland v. Ralston, 12 Nev. 195, 28
Am. Rep. 781: This court has always been quite liberal in sustaining the action of the lower
courts in allowing or refusing amendments to pleadings * * *.
17. The furtherance of justice is more nearly accomplished by this policy. It is not seen
why in this case there should be any departure from that course. It is not contended that the
proposed amendment was to conform to proof, which is often deemed a sufficient reason for
amendment. A comparison of the proposed amended complaint with the original reveals that
a substantial change in the cause of action was sought. In the original complaint a rescission
of the partnership agreement was asked, together with a dissolution of the partnership, while
in the proposed amended complaint a reformation of the partnership agreement was sought. A
different issue would have thus been injected into the action. It is obvious that a new trial
would have been necessitated without fault upon the part of defendants.
is obvious that a new trial would have been necessitated without fault upon the part of
defendants. Under such circumstances the motion was properly denied. Nevada Mining &
Exploration Co. v. Rae, 47 Nev. 173, 218 P. 89, 223 P. 825.
18. The granting of defendants' motion for a modification of the judgment of which
plaintiff complains, was within the sound discretion of the court.
19. The plaintiff made a motion for modification of the judgment which was denied by the
court. In support of this assignment it is asserted that the judgment is void and the order of
sale contained therein is likewise void. There is no merit in the claims. The judgment and
order are not void. The findings sustain the judgment and order and we must presume that the
evidence sustains the findings.
20, 21. Error is assigned to the action of the court in denying plaintiff's motion for a
continuance of the sale of all the properties belonging to the partnership, which was ordered
in the judgment. There was no error in this because no sufficient ground for such continuance
was made to appear to the court. The question raised by plaintiff as to the court fixing a time
for hearing the receiver's petition for an order confirming his account and return of sale of
said properties, has become moot because of a stay granted by this court in that matter.
Gottwals v. Rencher et al., 60 Nev. 35, 92 P.(2d) 1000.
No error, at least no prejudicial error, among the forty-four assigned, appears. If any, they
are of an extremely technical character.
The judgment and orders appealed from are affirmed.
February 27, 1940.
Per Curiam:
Rehearing denied.
____________
60 Nev. 62, 62 (1940) Squires v. Mergenthaler Linotype Co.
CHARLES P. SQUIRES (Publisher Las Vegas Age), Appellant, v.
MERGENTHALER LINOTYPE CO., a Corporation, Respondent.
No. 3294
February 15, 1940. 99 P.(2d) 20.
The failure to file transcript of record on appeal within period fixed by court rule is not jurisdictional.
Supreme Court Rules, rule 2.
Where respondent did not move to strike proposed bill of exceptions in district court and transcript of
record on appeal was filed before respondent's motion to dismiss was noticed, filed or made, any failure on
part of appellant to file transcript or cause it to be filed within time fixed by supreme court rule was
waived. Supreme Court Rules, rule 2.
Where papers making up judgment roll, certified by clerk, were incorporated in bill of exceptions, new
trial and appeals act was complied with. Stats. 1937, c. 32, secs. 38, 42.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Judge
Presiding.
Foreclosure proceeding by the Mergenthaler Linotype Company against Charles P.
Squires, publisher Las Vegas Age. From a decree for the plaintiff, defendant appeals. On
motion to dismiss the appeal. Motion denied.
OPINION
By the Court, Taber, C. J.:
Respondent, plaintiff in the court below, has moved this court to dismiss defendant's
appeal; to strike from the files the transcript on appeal; to strike the purported bill of
exceptions; and to affirm the judgment attempted to be appealed from. The motion is based
chiefly upon two grounds: (1) That the transcript on appeal was not served or filed within the
time prescribed by law; (2) that the purported bill of exceptions, together with the notice of
appeal and undertaking on appeal, were not annexed to a copy of the judgment roll
certified by the clerk or the parties.
together with the notice of appeal and undertaking on appeal, were not annexed to a copy of
the judgment roll certified by the clerk or the parties.
Rule II of this court provides: The transcript of the record on appeal shall be filed within
thirty days after the appeal has been perfected, and the bill of exceptions, if there be one, has
been settled. The transcript was not filed within thirty days after the appeal had been
perfected, but was filed within thirty days after the bill of exceptions had been settled.
Respondent, however, contends that a bill of exceptions was neither proper nor permissible in
this case, and for that reason the act of the trial court in settling the purported bill of
exceptions could not operate to extend the time for filing the transcript beyond thirty days
after the perfecting of the appeal.
In the district court defendant demurred to plaintiff's complaint in foreclosure upon the
ground that it did not state facts sufficient to constitute a cause of action, and upon the further
ground that it appeared upon the face of the complaint that the action was not commenced
within the time limited by law. The demurrer was overruled, and defendant given time to
answer; but defendant elected to stand on his demurrer, and on June 12, 1939, the default of
defendant for failure to answer the complaint within the time allowed by the court was
entered. Final judgment, being a decree of foreclosure and order of sale, was filed July 18,
1939. Defendant served copy of notice of appeal from the judgment on July 18, 1939, and
filed the notice of appeal and undertaking on appeal on July 20, 1939. He served and filed his
proposed bill of exceptions on July 27, 1939, which was within the time allowed by law.
Section 31 of the 1937 new trials and appeals act, Statutes of Nevada 1937, chap. 32, p.
53, at p. 63, provides in part: At any time after the filing of the complaint and not later than
twenty (20) days after final judgment, * * * any party to an action or proceeding may serve
and file a bill of exceptions to such judgment or any ruling, decision, order, or action of
the court, which bill of exceptions shall be settled and allowed by the judge or court, or by
stipulation of the parties.
may serve and file a bill of exceptions to such judgment or any ruling, decision, order, or
action of the court, which bill of exceptions shall be settled and allowed by the judge or court,
or by stipulation of the parties. * * *
Section 32 of said act reads as follows: Any adverse party may object to the allowance
and settlement of any bill of exceptions herein provided for within five (5) days after the
service of the same, by serving upon the opposite party and filing in said court a statement
specifically pointing out wherein said bill does not state the true facts, or wherein the same
omits any material fact necessary to explain or make clear any ruling, decision, or action of
the court. Such objection shall be heard and determined by the court within (5) days
thereafter, and upon such hearing the court shall designate in what respect said bill is
incorrect or untrue, or fails or omits to state the true facts, and shall order and direct that such
bill be corrected in accordance with said determination, and engrossed so as to contain the
true facts as herein required, and when so engrossed said bill must be allowed and settled as
in this act provided, and when so settled shall become and be a part of the record of said
action or proceeding. If the objections of the adverse party are disallowed, then such bill as
originally filed must be immediately settled and allowed as by this act required.
In the instant case the district court, on September 22, 1939, made the following order:
The above entitled cause having been submitted for decision upon Plaintiff's Objections to
the Allowance and Settlement of Defendant's foregoing Proposed Bill of Exceptions, it is
hereby ordered that the matters stated on page 23 thereof, be, and the same are hereby
stricken therefrom; otherwise, and with that exception, I hereby certify that said Proposed Bill
of Exceptions is correct, contains the substance of the proceedings relating to the point or
points involved, and has been settled and allowed.
allowed. Done: This 22nd day of September, 1939. William D. Hatton, Judge, presiding.
1, 2. Failure to file the transcript of the record on appeal within the period fixed by rule II
of this court is not jurisdictional. Thiess v. Rapaport, 57 Nev. 434, 66 P.(2d) 1000, 69 P. (2d)
96. In the case at bar, it appears not only that plaintiff did not move to strike the proposed bill
of exceptions in the district court, but further that the transcript of the record on appeal was
filed before respondent's motion to dismiss was noticed, filed, or made. Any failure on the
part of the appellant to file the transcript, or cause it to be filed, within the time fixed by the
rule, was waived, and it is therefore unnecessary to determine whether a bill of exceptions
was proper or permissible. Dernham v. Bagley, 151 Cal. 216, 90 P. 543; Brown v. Cobb, 63
Cal. App. 533, 219 P. 78; Perkins v. Boyd, 17 Colo. App. 447, 68 P. 1062; Armijo v.
Abeytia, 5 N. M. 533, 25 P. 777; Herbst v. Rogers, 22 N. M. 449, 164 P. 827; Collins v.
Unknown Heirs, 27 N. M. 222, 199 P. 362; Gustin v. Jose, 10 Wash. 217, 38 P. 1008;
McNamara v. Crystal Min. Co., 23 Wash. 26, 62 P. 81; Johnson v. San Juan Fish & Packing
Co., 30 Wash. 162, 70 P. 254.
3. Respondent's contention that its motion should be granted because the so-called bill of
exceptions, together with the notice of appeal and the undertaking on appeal, are not annexed
to a copy of the judgment roll and certified by the clerk or by the parties, is based upon
section 38 of said new trials and appeals act, which reads in part: The original bills of
exceptions herein provided for, together with a notice of appeal and the undertaking on
appeal, shall be annexed to a copy of the judgment roll, certified by the clerk or by the parties,
if the appeal be from the judgment * * *. Section 42 of said act, however, provides that:
Whenever the judgment roll, or the papers making up the judgment roll, shall be
incorporated in a bill of exceptions, it shall not be necessary to take to the supreme court any
separate copy of the judgment roll, but in all such cases the judgment roll, or the papers
making up the judgment roll, shall be certified by the clerk of the court in which the
action or proceeding is pending, or by the parties or their attorneys."
copy of the judgment roll, but in all such cases the judgment roll, or the papers making up the
judgment roll, shall be certified by the clerk of the court in which the action or proceeding is
pending, or by the parties or their attorneys. This section was complied with in the case at
bar.
Respondent's motion is denied.
Reporter's Note: Pursuant to stipulation of counsel for the respective parties, the appeal in
this case was dismissed by order of the court on February 15, 1940.
____________
60 Nev. 66, 66 (1940) Richards v. Steele
DONNELL RICHARDS, as Administrator of the Estate of MARGARET L. BRIDGMAN,
Also Known as MARGARET L. STEELE, Appellant, v. ELIZABETH FRANCES
STEELE, Infant, by GERTRUDE E. STUART, Guardian of the Person and Estate of
Infant, Respondent.
No. 3281
February 27, 1940. 99 P.(2d) 641.
Where defendant filed objections to proposed findings but failed to serve on plaintiff a written notice
specifying desired modifications of findings as required by the statute, defendant on appeal from order
denying a new trial could not assert that evidence was insufficient to justify decision for plaintiff, but,
defendant having also appealed from judgment, reviewing court would examine evidence to determine
whether judgment was supported by any evidence. Comp. Laws, sec. 8784, as amended by Stats. 1931, c.
25; Stats. 1937, c. 32, sec. 15.
2. Gifts.
In action by adopted daughter against administrator of deceased mother to recover amount allegedly
loaned to mother during her lifetime, evidence that mother placed money in postal savings account in name
of adopted daughter, and that daughter withdrew money from the account and delivered it physically to
mother, constituted some substantial evidence that mother made gift of money to daughter who lent the
money to mother, and supported judgment for daughter.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Action by Elizabeth Frances Steele, infant, by Gertrude E. Stuart, guardian of the person
and estate of the infant, against Donnell Richards, as administrator of the estate of Margaret
L. Bridgman, also known as Margaret L. Steele, to recover an amount allegedly loaned by
plaintiff to deceased in her lifetime. From a judgment for plaintiff and from an order denying
a new trial, defendant appeals. Judgment and order affirmed.
OPINION
The first trial of this cause resulted in a judgment for plaintiff (respondent) which was
reversed on appeal. Richards v. Steele, 59 Nev. 121, 86 P.(2d) 30. On the second trial, which
like the first was by the court without a jury, plaintiff again recovered judgment, and this
appeal is from that judgment and from an order denying a new trial. The grounds upon which
a new trial was asked were: 1. Insufficiency of the evidence to justify the decision and
judgment. 2. That the judgment and decision are against law.
The allegations in the first five paragraphs of the complaint are admitted.
Paragraph VI of the complaint reads: That heretofore, and during the lifetime of the said
Margaret L. Bridgman, also known as Margaret L. Steele, the Plaintiff, Elizabeth Frances
Steele, loaned to the said Margaret L. Bridgman, also known as Margaret L. Steele, the
following sums of money, on the dates set opposite the respective sums, as follows: May 25,
1937$400.00, June 14, 1937$500.00, July 10, 1937$500.00, July 24, 1937$500.00,
August 12, 1937$500.00; which said sums the said Margaret L. Bridgman, also known as
Margaret L. Steele promised to repay. In paragraph II of his answer, defendant answers
said paragraph VI of the complaint as follows: "The defendant not having any knowledge
of the transaction alleged in paragraph VI of plaintiff's complaint, therefore, denies all of
paragraph of plaintiff's complaint, and further answering paragraph VI, defendant
alleges: That defendant is informed and believes and therefore alleges the facts to be that
the plaintiff, Elizabeth Frances Steele, came into possession of certain sums of money
belonging to Margaret L.
In paragraph II of his answer, defendant answers said paragraph VI of the complaint as
follows: The defendant not having any knowledge of the transaction alleged in paragraph VI
of plaintiff's complaint, therefore, denies all of paragraph of plaintiff's complaint, and further
answering paragraph VI, defendant alleges: That defendant is informed and believes and
therefore alleges the facts to be that the plaintiff, Elizabeth Frances Steele, came into
possession of certain sums of money belonging to Margaret L. Bridgman, also known as
Margaret L. Steele, in that Margaret L. Bridgman disposed of real property situated in Reno,
Washoe County, Nevada, and received in consideration thereof, approximately $5,000; that
the said Margaret L. Bridgman thereafter deposited $2,500 of that sum in her own name in a
Postal Savings account with the United States Post Office Dept., and a sum at this time
unknown to administrator, in the name of Elizabeth Frances Steele. That the said Margaret L.
Bridgman placed the said unknown sum of money in the name of Elizabeth Frances Steele,
for the use and benefit of Margaret L. Bridgman; that the said sum was held to the use and
benefit of Margaret L. Bridgman by the said Elizabeth Frances Steele. From time to time and
at the instance and direction of her mother, Margaret L. Bridgman, Elizabeth Frances Steele
drew out the said money, and gave it to her mother, the said Margaret L. Bridgman.
In her reply, as originally drafted and as it stood at the time of the first trial, plaintiff
replied to said paragraph II of defendant's answer as follows:
I. Plaintiff denies the allegation in Paragraph II of Defendant's Answer to the effect That
the said Margaret L. Bridgman placed the said unknown sum of money in the name of
Elizabeth Frances Steele, for the use and benefit of Margaret L. Bridgman; that the said sum
was held to the use and benefit of Margaret L. Bridgman by the said Elizabeth Frances
Steele.
II. Plaintiff denies the allegation in the last four lines of Paragraph II of Defendant's
Answer in so far as said allegation alleges that the Plaintiff 'gave' to Margaret L.
lines of Paragraph II of Defendant's Answer in so far as said allegation alleges that the
Plaintiff gave' to Margaret L. Bridgman any money, but on the contrary alleges that said
money was loaned.
Prior to the second trial plaintiff, by leave of court, amended said paragraph II of her reply
to read: Plaintiff admits that from time to time, at the instance and direction of her mother,
Margaret L. Bridgman, Elizabeth Frances Steele drew out the said money and actually and
physically delivered it to her said mother, the said Margaret L. Bridgman, but in so far as the
last three lines of Paragraph II of Defendants' Answer contain any implication of a conclusion
of law that in so doing the conduct of Elizabeth Frances Steele amounted to a legal gift, to
that extent, and that extent only, the Plaintiff denies such implication.
At the opening of the second trial the respective parties stipulated that the transcript of the
testimony taken at the first trial should constitute the testimony in the second trial, and a copy
of the reporter's transcript of the evidence given at the first trial is included in the record on
this appeal.
After the trial court had rendered its decision in the second trial and directed findings to be
prepared, plaintiff served a copy of the proposed findings upon defendant as required by the
statute. Defendant filed objections to the proposed findings, but failed to serve on plaintiff a
notice in writing specifying desired additions to or modifications of said proposed findings.
Section 15 of the 1937 new trials and appeals act, Stats. of Nevada, 1937, chap. 32, p. 53,
at p. 57, reads: In cases tried by the court, without a jury, no judgment shall be reversed for
want of a finding, or for a defective finding of the facts, unless exceptions be made in the
court below to the finding or to the want of a finding after application to the court for
additions to or modification of the findings with notice given to the adverse party as
prescribed in section 286 of an act entitled 'An act to regulate proceedings in civil cases in
this state, and to repeal all other acts in relation thereto,' approved March 17, 1911, as
amended by an act entitled 'An act to to amend section 2S6 of an act entitled "An act to
regulate proceedings in civil cases in this state and to repeal all other acts in relation
thereto,"' approved March 17, 1911, as amended, being section S7S4 Nevada Compiled
Laws 1929, volume 4, approved February 20, 1931.
entitled An act to regulate proceedings in civil cases in this state, and to repeal all other acts
in relation thereto,' approved March 17, 1911, as amended by an act entitled An act to to
amend section 286 of an act entitled An act to regulate proceedings in civil cases in this state
and to repeal all other acts in relation thereto,' approved March 17, 1911, as amended, being
section 8784 Nevada Compiled Laws 1929, volume 4, approved February 20, 1931. Upon
failure of the court on such application to remedy the alleged error, the party moving shall be
entitled to his exceptions.
Said section 286 of the civil practice act (sec. 8784 N. C. L. 1929), as amended, Stats. of
Nevada 1931, chap. 25, p. 28, reads in part: In all cases where the court directs a party to
prepare findings, a copy of said proposed findings shall be served upon all the parties who
have appeared in the action at least five days before findings shall be signed by the court, and
the court shall not sign any findings therein prior to the expiration of such five days. The
court may, however, at any time before said findings are signed, add to or modify the findings
in any respect so as to make the same conform to the issues presented by the pleadings and to
the evidence adduced at the trial. No such additions to, or modifications of, the findings shall
be made unless a notice in writing specifying generally the additions or modifications desired
shall have been served on the adverse party of his attorney of record.
1. The trial court refused to add to or modify the proposed findings, basing its action upon
defendant's failure to serve plaintiff with notice of desired additions or modifications.
Defendant, having failed to serve such notice, is in no position, on his appeal from the order
denying a new trial, to urge that the evidence was insufficient to justify the decision; but he
has appealed from the judgment of the district court as well as from its order denying a new
trial, and we can therefore examine the evidence to determine the legal question whether
there was any evidence to support the judgment.
whether there was any evidence to support the judgment. Sweet v. Sweet, 49 Nev. 254, at
page 258, 243 P. 817.
It is not claimed that the decision of the trial court is inconsistent, that said decision is
impossible under the pleadings, or that the findings do not support the judgment. Appellant
does contend, however, not only that the evidence was insufficient to justify the decision, but
that there was no evidence to justify it; in other words, that there was a total failure of proof
either that Mrs. Bridgman made a gift of the money in question to the infant, or that the latter
lent the same to the former. He urges that plaintiff's amendments of her reply has not effected
any material change in the pleadings, and as the testimony and documentary evidence were
precisely the same on the second trial as on the first, he argues that our decision on the first
appeal is res adjudicata, and that we can neither legally nor consistently do otherwise than
order a reversal as on the first appeal.
2. In the opinion on the first appeal Chief Justice Coleman, speaking for the court, said
[86 P.(2d) 31]: The pleadings do not constitute evidence. The matter pleaded in the answer,
above quoted, does not, as contended by plaintiff, admit that the plaintiff loaned the amount
stated therein to Margaret L. Bridgman, nor does it establish as a fact, as contended by
defendant, that the said deposits were in trust for Margaret L. Bridgman. No change in the
foregoing statement would be justified by reason of plaintiff's amendment to her reply. But a
careful study of the pleadings as they stood at the time of the second trial satisfies us that,
independent of any testimony, said pleadings establish the fact that the money claimed to
have been given Elizabeth Frances Steele by Mrs. Bridgman was placed in postal savings
account by the latter in the name of the former, and that when Elizabeth Frances Steele
withdrew this money from said account, she delivered it physically to said Margaret L.
Bridgman. These facts, coupled with such other facts as the infancy of Elizabeth Frances
Steele, her relationship {adopted daughter) to Mrs.
coupled with such other facts as the infancy of Elizabeth Frances Steele, her relationship
(adopted daughter) to Mrs. Bridgman, and the depositing of said $2,400 in postal savings
account so as to place it in the infant's exclusive control, constitute some substantial evidence
that Mrs. Bridgman made a gift of said money to her said adopted daughter, and that the latter
in turn lent the same to Mrs. Bridgman. It is to be observed that there was no testimony
whatever substantiating defendant's allegation that the $2,400 was placed in postal savings
account for the use or benefit of Mrs. Bridgman, or that it was held by Miss Steele for Mrs.
Bridgman's use or benefit.
Taking these views, regardless of any opinion we may entertain as to the sufficiency of the
evidence to justify the decision of the trial court, we do not feel that it would be proper to
adjudge a reversal.
The judgment and order appealed from are affirmed.
March 18, 1940. 100 P.(2d) 72.
1. Pleading.
In action by adopted daughter against administrator of deceased mother to recover an
amount allegedly loaned to mother during her lifetime, where administrator's answer
alleged that the mother deposited money in a savings account in daughter's name, and
allegation was not denied in daughter's reply, which denied that money was placed in
daughter's name for use of mother and held to the mother's use by daughter, the fact that
daughter procured the money from the mother was indisputably established by
pleadings.
2. Pleading.
amount allegedly loaned to mother during her lifetime, where administrator's answer
alleged that from time to time and at direction of the mother the daughter drew money
out of savings account, in which it had been deposited by the mother, and gave the
money to the mother, and daughter's amended reply, on response to such allegation,
expressly admitted that money was actually delivered to mother by daughter, what was
done with the money after it was withdrawn from savings account was established by
pleadings.
Rule that supreme court could examine evidence to determine legal question of whether
there was any evidence to support judgment applied to facts established by pleadings as
well as by evidence.
amount allegedly loaned to mother during her lifetime, where there was some substantial
showing, from pleadings and evidence, that money was a gift to daughter, supreme court
was bound to accept trial court's finding to that effect and could not consider whether
evidence was sufficient to support finding in view of facts established by pleadings.
amount allegedly loaned to mother during her lifetime, where administrator appealed
from adverse judgment but failed to serve daughter with notice of desired additions to or
modifications of proposed findings, supreme court could not determine whether evidence
was sufficient to justify finding that transaction constituted a loan, and hence such
finding could not be disturbed where it could not be said that there was no substantial
showing in support of it.
amount allegedly loaned to mother during her lifetime, where money, which was
exclusive property of daughter while on deposit in a savings account and when
withdrawn therefrom, was delivered to the mother at a time when daughter was an infant,
and where question of sufficiency of evidence to justify decision for daughter was not
before supreme court, the statutory presumption that money paid by one to another was
due to latter did not justify setting aside trial court's finding favorable to daughter. Stats.
1931, c. 50, p. 60, secs. 558f, 558g, subd. 7.
On petition for rehearing. Rehearing denied.
For former opinion see 60 Nev. 66, 99 P.(2d) 641.
OPINION
While it is true, as stated in the opinion on the first appeal in this case {59 Nev. 121, S6
P.{2d) 30, 31), that "The pleadings do not constitute evidence," it is equally true, as said
in the same opinion, that "A fact alleged in a pleading verified by a party to an action,
which is not denied, is admitted."
appeal in this case (59 Nev. 121, 86 P.(2d) 30, 31), that The pleadings do not constitute
evidence, it is equally true, as said in the same opinion, that A fact alleged in a pleading
verified by a party to an action, which is not denied, is admitted. This is one of the primary
rules of pleading, and is elementary. 20 Am. Jur. 532, sec. 630; 21 R. C. L. 561, 562, sec.
120, nn. 10, 14.
1. Defendant himself alleges in his answer that Mrs. Bridgman deposited the money in
controversy in the name of the infant. This is not denied in plaintiff's reply. What is denied is
that the money was placed in the infant's name for the use and benefit of Mrs. Bridgman, and
held to her use and benefit by the infant. Thus, while there is no oral testimony or other
evidence as to where the infant procured the money which she deposited in the postal savings
account, the fact that she procured it from Mrs. Bridgman, who deposited it in her name, is
indisputably established by the pleadings.
2. It was stated in our decision on the first appeal that there was not a scintilla of evidence
that the infant lent the money to Mrs. Bridgman, or otherwise disposed of it. And in that
decision the court further said: Assuming that the money in question belonged to the
plaintiff when deposited and withdrawn from deposit, there is no evidence as to what was
done with it by the plaintiff after she drew it out of the savings account. In defendant's
answer it is alleged that from time to time and at the instance and direction of Mrs. Bridgman,
the infant drew out the said money and gave it to her. In her amended reply, in response to the
foregoing allegation, plaintiff expressly admits that the money was actually and physically
delivered to Mrs. Bridgman by the infant. What was done with the money after it was
withdrawn from the savings account is thus clearly established by the pleadings.
3. When we said, in our opinion on this appeal, that we could examine the evidence to
determine the legal question whether there was any evidence to support the judgment, we
were employing the language used in Sweet v. Sweet, 49 Nev. 254, at page 25S
judgment, we were employing the language used in Sweet v. Sweet, 49 Nev. 254, at page
258, 243 P. 817. It is obvious that the rule referred to applies to facts established by the
pleadings as well as by the evidence.
4, 5. There was some substantial showing, from the pleadings and evidence, that the
money in question was a gift to Miss Steele, and we must therefore accept the finding of the
trial court to that effect; we cannot, for the reason given in our opinion on this appeal,
consider whether the evidence was sufficient to support that finding. The money, at the time
of its withdrawal, was the exclusive property of Miss Steele; it is admitted that she delivered
it to Mrs. Bridgman at the latter's request. At that time, as at the time the money was given
her, she was an infant, and there is nothing in the pleadings or evidence showing, or tending
to show, that the money, or any part of it, was given or used for necessaries. Under these
circumstances, and in view of the protection thrown by the law around infants, making their
contracts and transfers of money voidable, the trial court found that the money was lent to
Miss Steele. Whether we would have arrived at the same conclusion had we sat as trial
judges, we do not say; and as defendant failed to serve plaintiff with notice of desired
additions to or modifications of the proposed findings, we cannot determine whether the
evidence was sufficient to justify the trial court's finding that the transaction constituted a
loan. The finding must stand because it cannot be said that there was no substantial showing
in support of it.
6. Petitioner has directed our attention to the presumption that money paid by one to
another was due to the latter. Statutes of Nevada 1931, chap. 50, sec. 558g, subd. 7, p. 60, at
page 61. This statutory presumption is called to our attention for the first time in the petition
for rehearing; but aside from that, while the statute provides that such disputable
presumptions are satisfactory, if uncontradicted, it likewise provides that they are not
conclusive.
are not conclusive. See the same act, sec. 558f, p. 60. In the instant case the money in
question, which was the exclusive property of Miss Steele while on deposit and when
withdrawn therefrom, was delivered to Mrs. Bridgman at a time when Miss Steele was yet an
infant; and as the question of the sufficiency of the evidence to justify the decision is not
before usthe sole question being whether there was any substantial showing to support the
judgmentthe presumption relied on by appellant would not, in our opinion, justify setting
aside the finding of the trial court.
The petition for a rehearing is denied.
____________
60 Nev. 76, 76 (1940) Gottwals v. Manske
F. H. GOTTWALS, Appellant, v. FRED MANSKE, Receiver,
J. C. MANIX and J. R. LEWIS, Respondents.
No. 3301
February 28, 1940. 99 P.(2d) 645.
Whenever a doubt is suggested concerning supreme court's jurisdiction, the court must determine such
doubt, notwithstanding no formal motion to dismiss is made, since every court is bound to know and to
keep within the limits of its jurisdiction.
2. Contempt.
Contempt charged against receiver and others for violating court order requiring monthly payments by
receiver to plaintiff by reason of conspiracy whereby such others brought action against plaintiff and
attached monthly payments which receiver thereupon refused to pay to plaintiff and, after judgment against
plaintiff, paid to other under writ of execution, was a civil contempt and not a criminal contempt,
hence supreme court had jurisdiction upon plaintiff's appeal from dismissal of the contempt proceedings.
3. Receivers.
A receiver appointed by a court of equity holds possession of the property as an officer of the court, the
property is in custodia legis and, without leave of court, is not subject to levy, and the receiver is not liable
to action in regard thereto.
4. Receivers.
The court appointing a receiver must protect the property in its possession through its receiver from
interference, and will never tolerate interference without its leave, whether it is done by
the consent or submission of the receiver or by compulsory process against him, even
for the purpose of carrying out private contracts, or trusts, and whether receiver's
appointment was erroneous is immaterial.
will never tolerate interference without its leave, whether it is done by the consent or submission of the
receiver or by compulsory process against him, even for the purpose of carrying out private contracts, or
trusts, and whether receiver's appointment was erroneous is immaterial.
5. Receivers.
The court appointing a receiver can by summary process compel a person to make restoration of property
wrongfully taken from receiver's possession, or to make good the pecuniary value, regardless of whether
the person interfering was a party to the suit in which receiver was appointed.
6. Receivers.
Where court has jurisdiction of the parties and subject matter of action in which receiver is appointed,
any interference without leave of the court with the receiver's possession after notice of the character in
which such possession is held, either by taking forcible possession of the property committed to his charge,
or by legal proceedings for that purpose, is a contempt of court.
7. Receivers.
An attorney upon whose advice a receiver's possession of property held in custody of the law is in any
way disturbed is guilty of contempt of court equally with his client.
8. Receivers.
Where receiver was ordered to make monthly payments to plaintiff for plaintiff's support, attachment of
such payments by third party pursuant to alleged agreement between such third party, his attorney, and the
receiver, whereupon receiver refused to make payments to plaintiff and, after judgment against plaintiff,
paid third party under writ of execution, would constitute contempt of court by third party, his attorney,
and receiver. Comp. Laws, sec. 8941.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Presiding
Judge.
Contempt proceedings by F. H. Gottwals against Fred Manske, receiver, and others. From
order and judgment dismissing the proceedings, plaintiff appeals. Reversed and remanded,
with directions.
OPINION
This case is now before the court on appeal, by plaintiff, from an order of the trial court,
dated December 15, 1939, dismissing contempt proceedings against respondents, and
purging them of the charge of contempt of court, preferred against them by the said
plaintiff.
1939, dismissing contempt proceedings against respondents, and purging them of the charge
of contempt of court, preferred against them by the said plaintiff.
1. Respondents have suggested the court is without jurisdiction to entertain this appeal for
the reason the contempt, if any, charged against them was criminal contempt and this court
has no appellate jurisdiction in matters of criminal contempt. It was held in the case of
Phillips v. Welch, 11 Nev. 187, to be the duty of this court, whenever a doubt is suggested
concerning its authority to decide a cause to determine such doubt; although no formal
motion to dismiss on that ground is made; since every court is bound to know the limits of its
jurisdiction and must keep within them.
The affidavit for contempt alleged among other things:
That on June 4th, 1938, the court appointed Fred Manske receiver in the action, who
thereupon qualified as such and since his qualification has been and now is receiver: that the
action is still pending in this court; which said court, on June 8th, 1938, made an order,
directing the receiver until the further order of the court, if he had sufficient funds in his
hands so to do, to pay unto plaintiff, the affiant, for his support pending the litigation, the sum
of $50.00 per month, beginning June 15th, 1938; which order has never been revoked, or
modified and is in full force and effect, and the receiver has at all times had sufficient funds
to make the payments so ordered.
That on April 14th, 1939, one J. C. Manix, J. R. Lewis, his attorney, and the receiver,
although having actual knowledge of the order of June 8th, 1938, the premise on which it was
based and the purpose thereof, entered into an agreement and conspiracy to resist and disobey
said order and deprive affiant of his means of sustenance by taking from said receiver certain
of the payments to be made by him unto the affiant, pursuant to said order, and in the
furtherance of such plan the said Manix, upon advice of Lewis, as his attorney, commenced
an action in the Justice Court of Nelson Township, Clark County, Nevada, against affiant,
on said April 14th, 1939, and on the same day a writ of attachment was issued out of said
court, which was forthwith served by the constable on the said receiver, together with
written notice said moneys were attached: that said receiver thereupon refused to pay
unto affiant the $50.00, due on April 15th, 1939, basing such refusal solely on the ground
of said attachment; although this affiant, on April 1Sth, 1939, served on said receiver
written notice such attachment was illegal and demanded such money.
said Manix, upon advice of Lewis, as his attorney, commenced an action in the Justice Court
of Nelson Township, Clark County, Nevada, against affiant, on said April 14th, 1939, and on
the same day a writ of attachment was issued out of said court, which was forthwith served by
the constable on the said receiver, together with written notice said moneys were attached:
that said receiver thereupon refused to pay unto affiant the $50.00, due on April 15th, 1939,
basing such refusal solely on the ground of said attachment; although this affiant, on April
18th, 1939, served on said receiver written notice such attachment was illegal and demanded
such money. That thereafter, and on the following day a similar notice and demand were
served on said Manix, and Lewis, who likewise refused to release said attachment.
That on April 25th, 1939, judgment was entered in said justice court in favor of Manix,
against affiant, for the sum of $103.92, including attorney's fee and costs, upon which the
justice, at request of Manix and Lewis, issued a writ of execution on May 3rd, 1939, which
on the same day was served on the receiver, who paid unto the constable the sum of $50.00,
withheld from affiant since April 15th, 1939, who turned it over to Manix to apply on his
judgment; that said Manix so credited it on said judgment and has retained the possession
thereof.
That thereafter, and on May 16th, 1939, the constable made a second levy of said
execution on the receiver, who thereupon paid him the sum of $50.00, which had been
withheld from affiant since May 15th, 1939, which amount was turned over to Manix, who
applied it on said judgment, and has kept the same: that on Sept. 15th, 1939, an alias
execution was issued on said judgment and served by the constable on said receiver who
thereupon paid over the balance of $14.27, due on said judgment, which was applied in full
satisfaction of said judgment, as the other payments, and is held by the said Manix.
That all of said acts of levying said attachment and writs of execution on said receiver,
and his paying over said sums of moneys, the application of the same to the satisfaction of the
justice court judgment, and disobedience of the order of June 8th, 1938, were done pursuant
to said agreement and conspiracy, and without the knowledge or consent of this court, and
against the will of affiant, and neither said receiver, Manix or Lewis, has ever offered to repay
unto this affiant any part of said sums, amounting to $114.27, which said receiver paid the
said constable as and in satisfaction of said judgment, or any part thereof, and the whole
thereof is due under said order of June 8th, 1938; although the receiver has paid unto affiant
all other sums pursuant to said order.
The prayer of the affidavit is that said Manix, or said receiver, be required by the court to
pay the affiant said sum of $114.27; and the respondents be required to show cause why they
should not be punished for their contempt in disobeying and resisting said order, and
interfering with moneys in the hands of the court.
It is stated in the decision appealed from that a show cause order was signed by the court
requiring the said Fred Manske, Receiver, J. C. Manix, and J. R. Lewis to show cause why
they should not be punished for contempt for their alleged disobedience of the order, made
June 8, 1938, and for their interference with moneys in the possession of the receiver; that a
hearing was had on December 14, 1939, at which plaintiff introduced in evidence his affidavit
upon which the show cause order was based and rested, whereupon counsel for contemners
moved for a dismissal of the proceedings; that the motion to dismiss and the sufficiency of
the affidavit were argued and submitted to the court; which rendered its decision, on
December 15, 1939.
In that decision the trial court ordered: that the affidavit of the plaintiff, upon which the
Show Cause Order was issued, and which was offered in evidence by the plaintiff upon the
hearing, does not allege matters which constitute a contempt of court, and that, the
regularity of the steps taken on levies of execution being conceded, the said parties are
deemed to be purged of the charge of contempt so preferred against them by the plaintiff
in this action."
which constitute a contempt of court, and that, the regularity of the steps taken on levies of
execution being conceded, the said parties are deemed to be purged of the charge of contempt
so preferred against them by the plaintiff in this action.
Section 8941 N. C. L. defines the acts or omissions deemed contempts of court, among
which are: Disobedience or resistance to any lawful writ, order, rule, or process issued by the
court or judge at chambers.
Mr. Justice Sweeney, speaking for the court in the case of Ex parte Hedden, 29 Nev. 352,
373, 90 P. 737, 13 Ann. Cas. 1173, said that numerous cases may be found holding contempt
of court to be a specific criminal offense, and the judgment therein to be a judgment in a
criminal case, while other cases indicate contempt proceedings to be civil, not criminal, and
while the apparent conflict of views cannot in all cases be reconciled, much of the
inconsistency disappears if contempts be regarded as civil or criminal according to their
nature and effect. Among the cases he cited to sustain his conclusions is the case of Phillips v.
Welch, 11 Nev. 187, which held the distinction between civil and criminal contempt to be
that: If the contempt consists in the refusal of a party to do something which he is ordered to
do for the benefit or advantage of the opposite party, the process is civil and he stands
committed till he complies with the order. The order in such case is not punitive, but
coercive. If, on the other hand, the contempt consists in the doing of a forbidden act, injurious
to the opposite party, the process is criminal and conviction is followed by a penalty of fine or
imprisonment, or both, which is purely punitive.
Hagerman v. Tong Lee, 12 Nev. 331, was before the court on appeal from an order
directing garnishee defendants to pay over unto the sheriff a specified sum of money within
two days, or stand committed to jail until said sum was paid, and in passing on the appeal the
court held: The order of the court adjudging appellants to be in contempt upon failure to pay
over the money, is in the nature of a civil process, and is, under the principles decided in
Phillips v. Welch, 11 Nev.
money, is in the nature of a civil process, and is, under the principles decided in Phillips v.
Welch, 11 Nev. [187] 190, an appealable order.
Other authorities holding to the same effect are Snow v. Snow, 13 Utah 15, 43 P. 620;
Jastram v. McAuslan, 29 R. I. 390, 71 A. 454, 17 Ann. Cas. 320; In re Graves, D. C., 29 F.
60; In re Nevitt, 8 Cir., 117 F. 448; and Bessette v. W. B, Conky Co., 194 U. S. 324, 325, 24
S. Ct. 665, 48 L. Ed. 997.
2. It is apparent from the foregoing cases the proceeding before the lower court was civil,
not criminal, and this court has jurisdiction to determine the appeal now before it.
The remaining question to be determined is whether the facts alleged in the affidavit for
contempt constitute a contempt of court; if they do, the order of the lower court should be
reversed, if not, the ruling should be affirmed.
3. A receiver appointed by a court of equity holds possession of the property as an officer
of the court, the property is in custodia legis, and, without leave of court, is not subject to
levy, nor is the receiver liable to action in regard thereto. 28 C.J., Garnishment, page 71,
section 86. To the same effect see 53 C.J., Receivers, page 331, section 545.
4, 5. The court appointing a receiver has power, and it is its duty, to protect from
interference the property in its possession through its receiver. It never tolerates such
interference without its leave, whether it is done by the consent or submission of the receiver
or by compulsory process against him, even for the purpose of carrying out private contracts
or trusts; and the fact, if it be a fact, that the receiver's appointment was erroneous is
immaterial. The court has power by summary process to compel a person to make restoration
of property wrongfully taken from the receiver's possession, or, in default thereof, make good
the pecuniary value. Such rule applies regardless of whether the person so interfering was a
party to the suit or not.
person so interfering was a party to the suit or not. 53 C. J., Receivers, page 111, section 134.
6. If the court has jurisdiction of the parties and subject matter of the action in which the
receiver is appointed, any interference with the receiver's possession after notice of the
character in which such possession is held, either by taking forcible possession of the
property committed to his charge or by legal proceeding for that purpose, without the sanction
of the court appointing him, is a contempt of court. Id., page 113, section 138.
7. An attorney on whose advice the receiver's possession of the property in custody of the
law is in any way disturbed is guilty of contempt equally with his client. Kneisel v. Ursus
Motor Co., 316 Ill. 336, 147 N. E. 243, 39 A. L. R. 1, and cases cited in the extensive note
beginning on page 6.
There are many cases cited in the foregoing note holding the possession of the receiver is
that of the court and any attempt to disturb such possession, without leave of the court first
obtained, constitutes contempt of court; among such cases are several where the interference
was pursuant to writs of execution or attachment, one being the case of Cramer v. Iler, 63
Kan. 579, 66 P. 617, 618, wherein it was held when a receiver has been appointed and takes
charge of the property he merely holds the property intact until the relative rights of parties
can be determined; and that when the property rightfully passes into the custody of the law it
is not subject to execution or interference without permission of the court, and any attempt to
seize or sell it by a third party without permission would be a contempt of the court having it
in custody.
That property in custodia legis is not subject to be interfered with without consent of the
court, having such custody, has been often held the rule in Nevada, see Irvin National Bank v.
Second Judicial District Court, 47 Nev. 86, 217 P. 962; Reinhart Co. v. Oklahoma Gold
Mining Co.,
Gold Mining Co., 48 Nev. 32, 37, 226 P. 902, 233 P. 842; where the possession was that of a
receiver, and In re Howard's Estate, 48 Nev, 100, 227 P. 1016, 232 P. 783, where the
possession was held by an administrator.
The reason for the rule, which in the absence of statutes authorizing attachment or
garnishment of such property, while in the hands of the court, is a general one, is that the
person holding such property is acting merely for the court, and to require him to respond in
garnishment or attachment would interrupt the orderly progress of judicial proceedings,
invade the jurisdiction of the court, and be against public policy.
There are some decisions holding, as exception to the foregoing rule, that after a final
judgment has been rendered in a case, directing the distribution of the funds in the hands of
the court, and nothing remains for the person holding such funds to do but distribute them as
directed in said judgment, they may be levied upon by a creditor of the party to whom such
fund was ordered distributed. Such was the ruling in the case of Dunsmoor v. Furstenfeldt, 88
Cal. 522, 26 P. 518, 12 L. R. A. 508, 22 Am. St. Rep. 331, cited in the decision of the lower
court as authority for its order dismissing the contempt proceedings.
Although that case has been cited with approval in later cases in California, and followed
in certain other states, there are decisions from other courts holding that even after final
judgment, funds still in the hands of the court may not be levied upon, without first having
obtained the consent so to do from the court having such custody. Among such cases are Dale
v. Brumbly, 98 Md. 468, 56 A. 807, 64 L. R. A. 112; In re Chakos, D. C., 36 F.(2d) 776; and
Bankers' Mortg. Co. v. McComb, 10 Cir., 60 F.(2d) 218; the reason for their refusal to follow
along with the conclusion reached in the California cases being that the question of whether
the purposes of the law's custody have been fully accomplished should be determined by the
court whose officer has custody of the property, and garnishment should not be permitted
without the consent of that court.
custody of the property, and garnishment should not be permitted without the consent of that
court.
Since the facts set forth in the affidavit, on which the contempt proceedings were based, do
not bring this case within the exception to the general rule, as defined and set out in
Dunsmoor v. Furstenfeldt, supra, it is not necessary to determine whether the rule laid down
in that case, or one followed in the Dale-Brumbly case, is based on the sounder reasoning.
8. We are of the opinion that the affidavit for contempt state facts constituting contempt
of the court; therefore, the judgment and order appealed from are set aside, and the
proceedings remanded to the lower court, with directions it hear and dispose of the contempt
charges made against respondents in the manner provided by law, and in conformity with this
opinion.
April 1, 1940. 100 P.(2d) 580.
1. Contempt.
The supreme court had jurisdiction of plaintiff's appeal from dismissal of contempt
proceedings against receiver and others, for violating a court order, notwithstanding that
the sum involved was only $114.27.
2. Contempt.
Where an order and judgment dismissing contempt proceedings was reversed and
remanded to lower court with direction to hear and dispose of contempt charges, supreme
court would not determine in advance what rules of law would be applied should matter
come before it on another appeal.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Judge.
On petition for rehearing. Rehearing denied.
OPINION
Respondent Fred Manske has petitioned for a rehearing for the reason he asserts the court
did not pass upon the point raised by him that even if the proceeding in the lower court
was civil in its nature this court had no jurisdiction to entertain the appeal because of the
amount involved before the lower court; which was the sum of $114.27.
the point raised by him that even if the proceeding in the lower court was civil in its nature
this court had no jurisdiction to entertain the appeal because of the amount involved before
the lower court; which was the sum of $114.27.
1. Respondent raised such objection to the jurisdiction of this court to determine the
appeal, the court considered such objection, examined the authorities cited in support thereof,
and in determining it had jurisdiction necessarily decided there was no merit in such
objection. We are of that opinion now.
2. In his petition for a rehearing respondent Manske also asks the court to indicate
whether, should this matter come before this court on another appeal, the rule laid down in
the case of Dunsmoor v. Furstenfeldt, 88 Cal. 522, 26 P. 518, 12 L. R. A. 508, 22 Am. St.
Rep. 331, that the facts in that case constitute an exception to the general rule that funds in
the hands of the court may not be levied upon without the consent of the court in whose
custody they are, will be followed, or the court will adopt and follow the contrary rule laid
down in Bankers Mortgage Company v. McComb, 10 Cir., 60 F.(2d) 218.
In our opinion we said it was not necessary to determine which was the sounder rule
because: the facts set forth in the affidavit, on which the contempt proceedings were based,
do not bring this case within the exception to the general rule, as defined and set out in
Dunsmoor v. Furstenfeldt, supra [99 p.(2d) 645, 649], and we now hold the same opinion. It
is therefore neither necessary nor proper to comply with the respondent's request.
The petition for rehearing is denied.
NoteOrr, J., being disqualified, the Governor designated Hon. L. O. Hawkins, Judge of
the Sixth Judicial District, to sit in his stead.
____________
60 Nev. 87, 87 (1940) Nevada Transfer & Warehouse Co. v. Peterson
NEVADA TRANSFER AND WAREHOUSE COMPANY, a Corporation, Appellant, v.
AMY J. PETERSON and ANDREW E. PETERSON, Respondents.
No. 3267
On Motion To Strike Portions Of The Bill Of Exceptions, And Petition To Disallow
Appellant's Objections Contained Therein.
April 6, 1939. 38 P.(2d) 8.
The supreme court is without statutory authority to strike or disallow a part of a bill of exceptions; the
action of the trial court being conclusive as to matter incorporated therein.
Under statute providing a method for proving an exception which the trial judge has refused to allow in
accordance with facts, if exceptions are allowed by supreme court they become a part of record, and such is
the extent to which the statute empowers supreme court to alter a bill of exceptions. Comp. Laws, sec.
8872.
3. Appeal and ErrorExceptions, Bill of.
The sole purpose of statute providing method for proving an exception which trial judge has refused to
allow in accordance with facts, is to permit a party aggrieved, under proper application, to prove an
exception actually taken to a ruling actually made, and when so proven the exception and ruling and facts
applicable thereto become part of record on appeal, but not in nature of an amendment to bill of exceptions
or statement on appeal as settled by trial court. Comp. Laws, sec. 8872.
Appeal from Second Judicial District Court, Washoe County; Edgar Eather, Judge,
Presiding.
Proceeding by the Nevada Transfer & Warehouse Company against Amy J. Peterson and
another, wherein there was an appeal by plaintiff. On motion to strike portions of the bill of
exceptions, and petition to disallow appellant's objections contained therein. Motion and
petition denied.
George B. Thatcher, William Woodburn, and William J. Forman, for Appellant.
Lloyd V. Smith, for Respondents.
OPINION
This case is before the court on a motion to strike portions of the bill of exceptions, and
petition to disallow appellant's objections contained therein. The matter challenged in this
way is found in appellant's bill of exceptions from page 304 to 314, and consists of certain
instructions proposed by appellant and refused by the court, or modified by the court and
given; certain instructions proposed by respondents and given, or given as modified; and
appellant's objections thereto and exceptions to the rulings of the court in each instance.
In support of their motion and petition respondents presented their bill of exceptions and
an affidavit of their counsel showing steps taken by them in the court below to prevent the
matter complained of from being incorporated in appellant's bill of exceptions and the reasons
therefor. Counsel for appellant objected to their consideration. In view of our conclusion as to
the merits of respondents' motion and petition, their bill of exceptions and counsel's affidavit
may be put aside.
1, 2. Appellant makes several points against the allowance of the motion and petition, or
either. The first of these being well taken, those remaining need not be considered. The point
is that there is no statute authorizing this court to strike or disallow a part of a bill of
exceptions. Sec. 8872 N. C. L. (reenacted in chapter 32 of the Statutes of 1937 at page 64) on
which respondents base their contention, provides a method for proving an exception which
the trial judge has refused to allow in accordance with the facts. If such exception is allowed
by the supreme court it becomes a part of the record in the cause. This is the extent to which
the foregoing statute empowers this court, in force and effect, to alter a bill of exceptions.
Nowhere is this court given authority to expunge anything from a bill of exceptions.
is this court given authority to expunge anything from a bill of exceptions. The action of the
lower court is conclusive as to matter incorporated in it.
Respondents also base their motion and petition on a certain statement made by the court
in the case of Miller v. Miller, 36 Nev. 115, 134 P. 100, 104. The statement relied on is as
follows: if either party to the action feel aggrieved by reason of matters either inserted in or
omitted from the statement, that party may apply to this court under section 374 of the civil
practice act to prove either certain exceptions were reserved to rulings actually made, or that
no such exceptions were made or reserved. (The italicizing is ours.)
Section 374 of the civil practice act referred to above was as to the method provided for
proving an exception, the same as the provision before us.
It will be observed on a careful reading of the opinion in Miller v. Miller, supra, that the
statement italicized above is dictum. The application to the court was to prove exceptions.
True, the petitioner also asked to have his statement settled without the insertion of certain
matter required by the respondent judge to be inserted therein but this was pursuant to his
application to prove his exceptions and the matter he claimed to be in proof thereof. That the
supreme court so considered the application is apparent from its statement on page 125 of 36
Nev., 134 P. at page 103 of the opinion, if it be anything it is only a case in which certain
exceptions contended for by petitioner have not been allowed.
3. Moreover, the application was held to be premature for the reason that the trial judge
had not settled the bill of exceptions. It is significant to note that the language relied on by
respondents as ruling, was not even in substance stated in the syllabus. It is interesting to note
that the court, more than once in its opinion, stated the sole purpose of said section 374 to be
as we have concluded, as to the provision before us. On page 126 of 36 Nev.,
126 of 36 Nev., 134 P. on page 103 of the opinion the court said: The sole purpose and aim
of the statute is to permit a party aggrieved, under a proper application to prove an exception
actually taken to a ruling actually made, and when so proven the exception and ruling and the
facts applicable thereto become a part of the record on appeal, but not in the nature of an
amendment to the bill of exceptions or statement on appeal as settled by the trial court.
Again on page 127 of 36 Nev., 134 P. on page 104 the court said: The sole object of the
statute is to afford relief to a party aggrieved when a trial judge has refused to allow an
exception according to the facts; that is, where he has refused to admit by allowance that a
particular ruling was made and excepted to when in fact it was made and excepted to.
Furthermore, the point is not open to controversy. It was determined adversely to
respondents' contention in Ryan et al. v. Landis et al., 58 Nev. 253, 74 P.(2d) 1179. See also
Quinn v. Quinn, 53 Nev. 68, 292 P. 620, 295 P. 1111, 2 P.(2d) 130.
The motion to strike and petition to disallow are hereby denied.
Taber, C. J., concurs.
Coleman, J., died before the foregoing opinion was completed.
Orr, J., did not participate in the consideration of any matters connected with this case.
On The Merits
March 5, 1940. 99 P.(2d) 633.
1. Negligence.
Where plaintiff, after bringing a flashlight to plaintiff's husband, who was defendant's
foreman at defendant's warehouse, was requested by defendant's night watchman, who
was in charge of warehouse, to go to warehouse office to attend to a duty for watchman,
which watchman was unable to perform because of being engaged in other duties,
plaintiff was an invitee on premises, as respects defendant's liability for injury received
by plaintiff while departing from office.
2. Master and Servant.
A night watchman in charge of defendant's warehouse had implied authority to request
plaintiff, who had brought a flashlight to plaintiff's husband who was defendant's
foreman at warehouse, to go to warehouse office while a stranger was using a telephone
in the office, where watchman could not remain in office because of being engaged in
performing other duties.
3. Negligence.
An invitation is implied where the entry on, or the use of, the premises is for a purpose
which is, or is supposed to be, beneficial to owner or occupant.
4. Negligence.
Where plaintiff's status was that of an invitee when plaintiff was injured upon
defendant's premises, defendant owed plaintiff the duty of ordinary care.
5. Negligence.
Where plaintiff, as an invitee, was requested by night watchman in charge of
defendant's warehouse to go to warehouse office while a stranger was using telephone,
and plaintiff was obliged to go through a darkened receiving room in leaving office, and
watchman knew of an open pit in receiving room, watchman was negligent in directing
plaintiff to go through receiving room without warning plaintiff of pit, even if watchman
told plaintiff to be careful, and watchman's negligence was proximate cause of injuries
received when plaintiff fell into pit.
6. Negligence.
An owner or occupant of lands or buildings who knows, or in exercise of reasonable
care should know, of their dangerous and unsafe condition, and who invites others to
enter upon the property, owes to such invitees a duty to warn them of danger where peril
is hidden, latent or concealed or invitees are without knowledge thereof.
Where night watchman in charge of defendant's warehouse had implied authority to
request plaintiff, who was wife of defendant's foreman, to go to warehouse office while a
stranger used a telephone and plaintiff was obliged to go through a darkened room in
leaving office, and plaintiff was injured by falling into pit in darkened room, defendant
could not escape liability for injuries on theory that watchman was not acting within
scope of employment in advising plaintiff as to way out of office.
Where night watchman, who was in charge of defendant's warehouse, had implied
authority to request plaintiff to go to warehouse office while a stranger was using
telephone, the watchman's general duties as night watchman included an incidental duty
to direct plaintiff to a safe way out of office after the way by which plaintiff entered
office had been obstructed.
after the way by which plaintiff entered office had been obstructed.
9. Trial.
An instruction that if defendant's employee, while acting within scope of employment,
requested invitee to come upon premises, and if dangerous condition of premises was
unknown to invitee, defendant's employee was bound to warn invitee of danger and that
failure to so notify invitee would constitute negligence, was not objectionable as
informing jury that they should find defendant guilty of negligence, even though
existence of pit was obvious to invitee, in view of other instructions.
10. Trial.
All of the instructions must be considered together by jury.
An instruction that if defendant's employee, while acting within scope of employment,
requested invitee to come upon defendant's premises and, if dangerous condition of
premises was unknown to invitee, defendant or employee was bound to warn invitee
thereof, and that failure to so notify invitee would constitute negligence, was not
objectionable on ground that there was no evidence that invitee's husband, who invited
plaintiff to come upon defendant's premises, was acting within scope of his employment
by defendant where another of defendant's employees had acted within scope of
employment in directing invitee to a way out of room in warehouse before she was
injured.
12. Trial.
An instruction that, if one of defendant's employees directed invitee as to a passageway
by which invitee should leave premises, invitee could assume that such passageway
would be in reasonably safe condition, was not objectionable on ground that instruction
did not require that employee should be acting within scope of employment at time of
directing invitee, in view of remainder of instruction.
13. Negligence.
An instruction that defendant was bound to provide reasonably safe passages to and
from places included in invitation to use premises, and that, if invitee was requested to
use a passageway which was in a dangerous condition, and if invitee did not know of
location of pit into which she fell, which was near passageway, request to invitee to use
passageway constituted negligence, was not erroneous, as assuming that pit was in
dangerous condition and in passageway, in view of evidence.
14. Negligence.
In invitee's action for injuries received by falling into pit in darkened room in
defendant's warehouse, whether invitee was contributorily negligent was for jury under
evidence that she was not proceeding in a totally darkened room at time of injury and that
danger was not obvious to invitee.
15. Negligence.
In invitee's action for injuries received by falling into pit in darkened room in
defendant's warehouse, whether danger was known to invitee was for jury,
notwithstanding that invitee's residence was near warehouse.
16. Trial.
Refusal to instruct that, if invitee entered room in which injury occurred and if invitee
could not see and proceeded in darkness without knowledge, information, or
investigation as to what the darkness might conceal, invitee was guilty of contributory
negligence, was proper, where there was no evidence that darkness of room was of such
degree that invitee could not see.
17. Husband and Wife.
Where negligence, if any, of a husband in inviting his wife to come upon defendant's
premises was not a proximate cause of wife's injuries sustained while wife was on
premises as an invitee, the husband and wife were not barred from recovering for wife's
injuries on theory that cause of action, if any, was a community cause of action and that
contributory negligence by husband precluded recovery.
18. Negligence.
In action by husband and wife for injuries received by wife by falling into pit in
darkened room in defendant's warehouse, where wife was on defendant's premises as an
invitee, an instruction that wife's right to recover was not affected by fact that husband
was one of the plaintiffs, or by fact that husband was employed by defendant, was not
error, where husband's negligence, if any, did not proximately cause accident.
In action by husband and wife for injuries received by wife while an invitee on
defendant's premises, an amendment which removed from complaint an allegation that
husband was employed by defendant in a certain capacity was not prejudicial to
defendant.
Appeal from Second Judicial District Court, Washoe County; Edgar Eather, Judge
Presiding.
Action by Amy J. Peterson and husband against the Nevada Transfer & Warehouse
Company for personal injuries sustained by Amy J. Peterson. From a judgment for plaintiffs,
defendant appeals. Affirmed.
George B. Thatcher, William Woodburn, and William J. Forman, for Appellant.
Lloyd V. Smith, for Respondents.
OPINION
This action was instituted by respondents, who are husband and wife, to recover damages
for personal injuries sustained by the latter. The facts out of which the action arose may be
stated substantially as follows: Appellant corporation at the time of the trial and for some
years prior thereto, was engaged in a general warehouse business and owned and operated a
large warehouse building in Reno, Nevada. H. E. Stewart was the secretary of the company
and owner of 99 1/2% of the stock thereof. At the time of the accident which resulted in the
injuries complained of, the warehouse was divided by a long aisle or passageway extending
from the rear entrance on the easterly side of the building to the office on the westerly side of
the building. On the northerly side of the building were three large rooms. The one on the
easterly end of the northerly side of the building was known as the packing room and the
one in the center, where a truck runway was located, was called a receiving or delivery
room. The truck runway in the receiving room was so constructed as to form an inside
loading and unloading dock, the floor of such runway being approximately 4 feet lower than
the floor of the remainder of the room. The runway was approximately 16 feet wide and 20
feet long and was almost flush with the wall separating the receiving room from the larger
room on the westerly side. There was no guard rail around the runway, and no light in the
receiving room. It was used almost exclusively in the day time. There was a doorway between
the receiving room and the aisle or passageway, and a doorway between the receiving room
and the packing room, but no doorway from the aisle to the latter room. There were two
doorways in the easterly wall of the packing room opening onto a loading platform connected
with the building which extended from the northeast corner of the building to a short distance
beyond the rear entrance to the said aisle or passageway.
beyond the rear entrance to the said aisle or passageway.
At the time of the accident respondents were living together in a house located on the
premises of and owned by appellant, situated about 50 or 60 feet northerly from the
warehouse. Formerly they had resided for some years in a portion of the warehouse. In
November 1935 a part of appellant's warehouse burned, and was reconstructed, such
reconstruction being completed about the 28th of February 1936. The northerly side of the
warehouse was a concrete wall. At the time of the reconstruction it was drilled by air drills
and a large opening 14 by 16 feet on a level with the adjacent street or driveway made therein
whereby trucks could drive directly into the runway. There was a large overhead door in the
opening of the runway.
Tom Ginnochio was night watchman. He had charge of the warehouse at night and was on
duty when Mrs. Peterson was injured. Peterson was foreman at that time and had been an
employee of the appellant at the warehouse for a number of years. On the night of July 7,
1936, he was at work loading furniture from the larger room on the north side of the
warehouse. At about eight o'clock on that evening he called from the door of that room to his
wife, who was in the yard of their home, to bring him a flashlight. She obtained the flashlight
from her home and entered the warehouse building through the rear entrance to the aisle.
Peterson came through the larger room and met her about midway of the aisle, got the
flashlight, and returned to his work, telling her he would be along in a few minutes. She
started to leave the warehouse by the same way she came in when she met Tom Ginnochio,
who was unloading case goods from the truck. He asked her to go into the office because a
truck driver was in there telephoning, and he didn't care to have the man in there alone. She
remained there from twenty minutes to half an hour, and on attempting to leave the building
by the same way she had entered, she found the passageway filled with the case goods
Ginnochio had been unloading.
the passageway filled with the case goods Ginnochio had been unloading. She asked
Ginnochio how to get out. He told her to go through the packing room and he would let her
out another door. He said, Go right around there and come out of the packing room. To
reach the packing room from the aisle she had to go through the receiving room, where the
truck runway was located. She entered the receiving room, and on going forward fell into the
runway, fracturing and dislocating her right elbow, and suffering other injuries.
Appellant contends that the trial court erred in refusing to grant a new trial because the
evidence failed to establish any duty owed by appellant to respondents which was breached.
This contention is grounded in part of the theory that Mrs. Peterson was on the premises as a
trespasser, or bare licensee, to whom appellant owed no duty, except to refrain from willfully
or wantonly injuring her. In support of this position it is argued that Peterson was without
authority to invite her to come upon the premises because Stewart testified that before the
accident he once or twice requested Peterson to ask her not to come on the premises.
1-3. On the other hand respondents contend that she was on the premises as an invitee.
We are inclined to this view, irrespective of what the evidence may show as to Peterson's
implied authority to invite her to the premises. Ginnochio, who had charge of the warehouse
at night, requested her to go the office to attend to a duty for him which he was unable to do
because he was at the time engaged in the performance of other duties. One in charge of
premises has authority to do thereon any reasonable act to accomplish the discharge of his
duties. There was nothing unreasonable in requesting Mrs. Peterson to stay in the office. She
was no stranger to Ginnochio, or to the premises. She was the wife of his fellow employee
and lived close to the warehouse; had formerly lived in the warehouse and was frequently
seen on the premises. She had just performed a chore for her husband by bringing him the
flashlight.
for her husband by bringing him the flashlight. There is nothing to show that Ginnochio had
any knowledge that Stewart had requested Peterson to ask his wife not to come on the
premises. An additional reason for holding that Ginnochio had implied authority to invite her
to the office may be found in the fact that her going there was for the benefit of appellant.
Smith v. Pickwick Stages System, 113 Cal. App. 118, 297 P. 940. An invitation is implied
where entry on, or the use of, the premises is for a purpose which is, or is supposed to be,
beneficial to the owner or occupant. * * * 45 C.J. 812, and cases cited in note 38.
4. Mrs. Peterson's legal status at the time she suffered injuries being that of an invitee,
appellant owed her the duty of ordinary care. Even so, appellant insists that the evidence fails
to establish a breach of that duty which would justify the verdict and judgment thereon. On
the other hand, respondents contend that the action of Ginnochio in blocking the passageway
through which she entered the warehouse, and directing her to a way out into a place of
unknown danger, constituted negligence on his part chargeable to appellant, and which was
the proximate cause of her injuries. Ginnochio was familiar with the interior of the
warehouse. He knew of the open pit or runway in the receiving room and the danger attending
it. His testimony concerning which is undisputed, is as follows:
Q. Were there any guard rails or means of any kind to guard the open pit, to prevent
people from falling into it? A. No.
Q. Did you know the open pit was in that room? A. Yes, sir.
Q. Have you ever fallen into it? A. Yes, sir, I have.
Q. Was it before the occasion that Mrs. Peterson was injured? A. Yes, sir.
Q. At the time when you told Mrs. Peterson to go through the packing room to get out,
did you know the open pit was in the room? A. I did.
Q. Why didn't you tell Mrs. Peterson it was there? A. I told her to be careful as you go
out, go out that door. There was a light from her door on the back porch could throw light
into the pit, that she could possibly see it, but there was a couple of van boxes there on both
sides loaded with furniture.
Q. Did you tell Mrs. Peterson that there was a pit in the room? A. Well, sir I could not
recall. I don't think I did. I don't know whether I did or not, I could not say.
Q. Were there any lights in the packing room? A. Yes, sir, one little light.
Q. Was that lighted? A. Well, I don't know, I unloaded a lot of meat there. I don't know if
I turned it off or not. It was lit at the time I unloaded. I believe it was. I would not swear to it.
Q. Was that light inside or outside the packing room? A. The light from her door could
have throwed some reflection that could have been light there.
Q. Was there any lighting fixture in the packing room itself? A. By the pit?
Q. Yes. A. No, sir.
The evidence shows that the van boxes loaded with furniture, testified to by the witness,
made almost a complete passageway about 6 or 8 feet in width, from the entrance to the
receiving room, to the pit. The van boxes on the left of the entrance extended from the door a
short distance over the pit, while the one on the right extended to a point opposite the sought
end of the pit, leaving an open space of four feet between the van box and the southeast
corner of the pit. Consequently, one passing through would be perilously close to the verge of
the pit. In the condition of partial gloom existing there, the jury had a right to consider the pit
a place of danger to one attempting to pass from the entrance to the receiving room to the
packing room.
5, 6. The condition was known to Ginnochio, and it was negligence on his part to direct
her to go there without warning her of the danger in her path. The general rule applicable
here is well expressed in 45 C.J., p.
general rule applicable here is well expressed in 45 C.J., p. 875, as follows: If the owner of
land knows that its condition is unsafe he should give timely warning to persons rightfully
there. More specifically, an owner or occupant of lands or buildings who knows, or in the
exercise of reasonable care should know, of their dangerous and unsafe condition and who
invites others to enter upon the property owes to such invitees a duty to warn them of the
danger, where the peril is hidden, latent, or concealed or the invitees are without knowledge
thereof.
Ginnochio testified that he told her to be careful, but that was not enough to relieve him
from negligence. As if the keeper of a skating pond advised a skater to go upon the ice and be
careful, when he knew of a place where the ice was thin and the water deep, which was
unknown to the invitee, Ginnochio should have apprised her of the imminence of danger
arising from the pit or runway extending almost across her path in the semidarkness of the
room. Appellant insists that the rule stated does not apply because the danger was known to
Mrs. Peterson, and was also obvious, but of these elements we will speak later.
7. The argument that Ginnochio was not acting within the scope of his employment when
he advised her as to the way out, is, we think, unsound. He had full charge of the warehouse
at night, was the night watchman, and it would be too curious to believe that she must have
been left to find a way out at night because the watchman lacked the authority to suggest such
a way.
8. It is contended that Ginnochio alone was liable because there is no affirmative evidence
showing that it was part of his duties to direct person's movements in the warehouse. We say
it would be unreasonable to conclude that his duty to direct Mrs. Peterson to a safe way out,
after he had detained her there and blocked the safe passageway by which she had entered,
was not included in his general duties as night watchman. It was clearly incidental to
appellant's business.
was clearly incidental to appellant's business. Poundstone v. Whitney, 189 Wash. 494, 65
P.(2d) 1261; 39 C.J. 1283; 2 Mechem on Agency (2d), sec. 1879, Lachat v. Lutz, 94 Ky. 287,
22 S. W. 218, 219, 15 Ky. Law Rep. 75, cited by appellant, is not in point. It does not appear
that the person who directed the plaintiff to go into the room where he was injured was an
employee of the defendant. And the court held that even if he were an employee, he alone
could be made liable for the injury, because he was not then acting in the line of his duty, or
by the direct or implied authority of defendant. The opposite situation appears in this case,
we believe.
While there is dictum in the case of Chesley v. Nantasket Beach Steamboat Co., 179 Mass.
469, 61 N. E. 50, favorable to appellant's contention, the situation was not exactly the same,
and it was decided on the fact that the plaintiff was guilty of contributory negligence. Keating
v. Michigan Cent. R. Co., 97 Mich. 154, 56 N. W. 346, 37 Am. St. Rep. 3228, is not in point.
Ginnochio's negligence was the proximate cause of the injuries sustained by Mrs. Peterson.
It is contended that the court erred in instructing the jury by its instructions numbered 17,
19 and 32.
No. 17 reads: The Court instructs the jury that if you believe from the evidence in this
case that an agent and employee of the Defendant corporation, while acting within the scope
of his employment, invited and requested the plaintiff, Amy J. Peterson, to come upon the
premises of the Defendant corporation, and if you further believe from the evidence that the
dangerous condition of the premises was unknown to the Plaintiff, Amy J. Peterson, that it
was then the duty of the Defendant corporation or its agent and employee to warn the
Plaintiff, Amy J. Peterson, of the dangerous condition of the premises, of which condition the
Defendant corporation is charged with knowledge, and a failure to so notify the Plaintiff,
Amy J. Peterson, of the dangerous condition of the premises would constitute negligence on
the part of the Defendant corporation. No.
No. 19 reads: The Court instructs the jury that if you believe from the evidence that one
of the agents and employees of the Defendant corporation directed the plaintiff, Amy J.
Peterson, as to the passageway through which she should leave the premises, that said
Plaintiff had the right to assume that the said passageway would be in a reasonable safe
condition.
No. 32 reads: The Court instructs the jury that it was the duty of the Defendant
corporation to provide reasonably safe passages to and from the places included in its
invitation to use the premises; and if you believe from the evidence that the Plaintiff, Amy J.
Peterson, was invited and requested to use a passageway which was in a dangerous condition,
and that the Plaintiff Amy J. Peterson, did not know of the location of said loading pit, then
the invitation and request to Plaintiff, Amy J. Peterson, to use said passageway constituted
negligence on the part of the Defendant corporation.
9. One objection to instruction 17 is that it informs the jury that they should find appellant
guilty of negligence, even though the existence of the runway was obvious to Mrs. Peterson.
True this qualification is not found in the instruction, but a court should not be required to
give all the law in one instruction. And the element of evident danger which would have
relieved appellant of the duty of warning Mrs. Peterson is found in instruction 24. It reads:
You are instructed that a landowner is not under a duty to warn a person coming upon its
premises of dangers where such dangers are obvious or the person injured has actual
knowledge thereof.
10. So the question raised was fairly and explicitly submitted to the jury. Considered
together, the two instructions correctly state the law on this phase of the case. It is well settled
by a line of decisions dating from the earliest history of the court that all of the instructions
must be taken together by the jury and considered together. Caples v. Central P. R. R. Co., 6
Nev. 265; Allison v. Hagan, 12 Nev. 38; Solen v. Virginia & Truckee R. R. Co.,
Truckee R. R. Co., 13 Nev. 106; Cutler v. Pittsburg S.P.M. Co., 34 Nev. 45, 116 P. 418.
Moreover, the court instructed the jury not to select a single instruction, or a portion of an
instruction alone, but to consider all of the instructions together in determining any issue in
the case.
11. The objection that instruction 17 was improper for the reason that there was no
evidence that her husband, who invited her to come upon the premises, was acting within the
scope of his employment, is without merit. As we have previously pointed out. Ginnochio,
who requested her to go to the office and directed her to a way out of the building, was acting
within the scope of his employment.
12. The objection to instruction nineteen is that it was not qualified in any way by
requiring that the employee who directed Mrs. Peterson as to the passageway through which
she should leave the premises, was acting within the scope of his employment. Taken with
the rest of the charge the jury were correctly instructed in this respect.
13. It is contended that instruction thirty-two was erroneous in that it assumed that the
loading pit was in a dangerous condition, and was in a passageway. There is no assumption of
either in the instruction. The jury were justified in finding from the evidence that both
conditions existed. The event itself was sufficient to show that the runway was in a dangerous
condition, for any one to fall into it. The presence of van boxes from the entrance on the one
side, and from the wall to near the pit, on the other, made a virtual passageway. The
instruction was not erroneous for the reasons given.
The next contentions are that respondent, Mrs. Peterson, was guilty of contributory
negligence as a matter of law, and the court incorrectly instructed the jury in respect thereto,
and failed to give the necessary instructions as to her contributory negligence.
Appellant presents cases to the effect that it is contributory negligence, as a matter of law,
for a person to proceed in darkness in unfamiliar surroundings, when he is unaware of
what the darkness contains.
to proceed in darkness in unfamiliar surroundings, when he is unaware of what the darkness
contains. But we think these cases may be distinguished from the instant one. The jury could
well have found that Mrs. Peterson did not enter or proceed in a room clothed in total
darkness. She testified:
Q. When you got into this room on the north side of the building, you could see the daylight
or the lights outside? A. I could see the lights outside through this glass.
Q. Was it daylight or the electric light? A. It was the light from my porch.
Q. And were there no lights in that room? A. No, sir.
Q. Were you able to see anything in that room? A. I don't remember.
Q. Was it dark or light in the room? A. It was light enough so that I could keep going.
Q. Could you see where you were going? A. I guess not, or I would not have fell into the
pit.
Q. Were you feeling your way along? A. Yes, sir, I was.
Q. Were you just feeling with your foot? A. I had my hand out.
Q. Then what happened? A. I dropped into this pit.
Q. You walked off the platform? A. I didn't know that I had did that until I came to and
found myself all broken up. * * *
Q. Now, earlier in your testimony, on cross examination you testified that when you
entered this storeroom wherein the pit was located, you were feeling your way along with
your hands; is that true? A. Yes.
Q. What were you feeling with your hands? A. I thought it was a wall.
Q. Was there any light in the room at all? A. There was light enough I could see to walk
along. I thought I was safe in going ahead, because the floor all looked level in front of me.
As to the condition of light and darkness in the receiving room at the time of the accident,
Peterson testified:
As to the condition of light and darkness in the receiving room at the time of the accident,
Peterson testified:
Q. At the time the accident happened? A. I went right in.
Q. Were there any lights then? A. None. The only light that shone from the east door of
the packing room, and the lights that shone from our back porch in the big lights, the
overhead door that leads into the pit.
Q. Could you see where you were going when you went in there? A. I could see very
good up high. You could see the floor but you could not possibly see this hole unless you
knew it was there.
Q. You could not see what? A. This here pit, unless you knew it was there. * * *
Q. Were there any electric light fixtures or electric lights in that room? A. None.
Q. Were there any over in any other room in the house? A. Just one light in the main aisle
about the center of the building, and that had a little square hole, I should judge about five
inches square, cut so the light would show in, and it shone over the box, and shining in there
it showed a pretty good light in there.
Q. Was there sufficient light from that so you could see the open pit? A. No, you could
not see the open pit unless you knew it was there.
In the case of Kurre v. Graham Ship by Truck Co., 136 Kan. 356, 15 P.(2d) 463, 466, cited
by appellant and quoted from at length, the plaintiff was held guilty of contributory neglect as
a matter of law. It presents a different situation. The invitee was not directed by an employee
into a place of danger. He voluntarily entered a dark room in search of the shipping clerk. His
testimony showed, and the court said: It was very darkso dark that he could not see, and
he made some effort to feel his way with his feet.
In Powers v. Raymond, 197 Cal. 126, 239 P. 1069, the darkness of the by-path into which
the person injured wandered, was impenetrable, and she was a mere licensee.
In Erickson v. McKay, 207 Wis. 497, 242 N. W. 133, the injured person testified that it
was probably as dark as it could be.
The plaintiff, in Herman v. Golden, Mass., 9 N. E. (2d) 394, was groping in a dark hallway
for an elevator gate which he knew might not be in place, when he fell down the shaft. The
court intimated, but did not hold, that he was guilty of contributory negligence as a matter of
law.
14. We think the question of Mrs. Peterson's negligence was for the jury. As previously
stated, she did not proceed in total darkness. The reflection of light in the receiving room was
sufficient to enable her to see the floor, but it looked level in front of her. She was
corroborated as to this deceptive appearance by her husband, who testified: I could see very
high up. You could see the floor but you could not possibly see this hole unless you knew it
was there.
A similar situation was present in Marston v. Reynolds, 21 Mass. 590, 98 N. E. 601, 602,
in which the court said: It could be found that the front portion of the basement was unsafe
unless properly lighted, because the platform extending across the basement for a space of
five feet from the front wall was eighteen or twenty inches above the cellar bottom, and there
was no guard to protect one from the danger of the unusual depression, or to call it to the
notice of one unfamiliar with the premises. There was ample evidence that at the time of the
accident the light in the basement was too dim to enable the plaintiff to see the edge of the
platform or to perceive this dangerous difference in level; and Otis, who directed her attention
to the coal bin in the rear of the cellar, failed to give this elderly woman any warning of the
imminent danger known to him.
And as here, Ginnochio failed to give this woman any warning of the imminent danger
known to him.
An illusion similar to the seeming continuity of the level of the floor in the receiving room
may be found in Los Angeles & S. L. R. Co. v. Lytle, 56 Nev. 192, 47 P.
P.(2d) 934, 52 P.(2) 464, and Elliott v. Missouri Pac. R. Co., 227 Mo. App. 225, 52 S. W.
(2d) 448, where it was held that whether plaintiff was guilty of contributory negligence was
for the jury.
15. On the same evidence the jury had the right to find that the danger was not obvious.
Also the question as to whether the danger was known to Mrs. Peterson on account of her
knowledge of the presence of the unguarded runway in the receiving room, was for the jury.
In this respect she testified positively as follows:
Q. Did you know of the fact that there was a loading pit in the storeroom? A. I did not.
Q. Did you know of the fact there there was a loading pit in the building at all? A. I did
not.
Q. Had you ever been in this room wherein this open pit was located at any time previous
to the accident? A. I had not.
It is argued by appellant that she must have known because of the evidence showing the
proximity of the back porch of her residence to the runway by reason of which she could look
from the porch into the runway when the door was open. And also the fact that she was
familiar with the warehouse, having made her home in it for a time. The same argument was
doubtless properly addressed to the jury, which rejected it. The most such evidence proves is
that she had ample opportunity to know of the presence of the runway. It is not a case where
the physical facts confute the testimony of a witness, and, therefore, must control. The jury
were correctly instructed as to known danger.
16. Error is claimed in the ruling of the court in refusing the following instruction: You
are instructed that if you find from the evidence in this case that plaintiff, Amy J. Peterson,
entered the room in which the alleged injury occurred and could not see, and proceeded in
such darkness, without any knowledge, information or investigation as to what such darkness
might conceal, then said plaintiff was guilty of contributory negligence.
The instruction was properly refused because it assumed a fact not in evidence. There is no
evidence that the darkness of the receiving room was of such degree that Mrs. Peterson could
not see. True, as in the case of Perry v. Loew's Boston Theatres Co., 291 Mass. 332, 197 N.
E. 54, cited by appellant, there was a dim reflected light on the theater stairs on which
plaintiff fell. But in that case she was a voluntary on the stairs and no latent danger was
involved. There was no evidence of any defect in the stairs. Any danger in descending them
was therefore obvious. Surely one must take notice that stairs are stairs, and assume the risk
of descending them, unless there are other circumstances unknown to the party that would
render it perilous. The case is therefore to be distinguished from the instant one. The jury
were correctly instructed on the question of Mrs. Peterson's contributory negligence.
17. It is contended that respondents are barred from recovery by contributory negligence
of Andrew Peterson, and the court incorrectly instructed the jury in respect thereto. That they
were so barred is based upon the contention that the cause of action, if any existed, was a
community cause of action. We think the determination of this question is not necessary to a
decision in this case. If Peterson was negligent in inviting Mrs. Peterson to come upon the
premises, such negligence was not the proximate cause of the injury. Weck v. Reno Traction
Co. 38 Nev. 285, 149 P. 65. This court, in that case, quoting approvingly from Smith v. Conn.
Ry & Ltg. Co. 80 Conn. 268, 67 A. 888, 889, 17 L. R. A. (N.S) 707 said: Negligence is only
deemed contributory when it is a proximate cause of the injury. That only is a proximate
cause of an event, juridically considered, which, in a natural sequence, unbroken by any new
and intervening cause, produces that event, and without which that event would not have
occurred. It must be an efficient act of causation separated from its effect by no other act of
causations. * * *
Assuming that Peterson was negligent, it did not produce the accident.
produce the accident. Another cause intervened without which the accident would not have
happened. But for the action of Ginnochio in diverting her into the office and thence into the
receiving room, she would have retired from the building by the way she had entered, through
the main aisle or passageway. She always entered the warehouse through this passageway.
She testified:
Q. After you delivered the flashlight, by what method did you start to go out of the
warehouse? A. I turned and started to go out.
Q. By the same way you came in? A. Yes, sir.
Q. By the same passageway? A. Yes, sir.
If Peterson had known that his wife intended leaving by the way of the receiving room and
had failed to warn her of the danger of the runway, he would have been guilty of negligence
contributing to the injurious result. But he did not know this. It is apparent from the testimony
that he thought she had left the building by the same way she entered it, and did not know of
her presence until sometime after he had received the flashlight from her in the main aisle or
passageway, when he found her injured, having been attracted there by her screams. Peterson
testified: I walked to the center of the aisle * * * and my wife came in the back door, and I
walked maybe four of five feet and met her and took the flashlight and told her I would be
along in a few minutes. * * * I went back to check off the rest of the pieces of furniture.
18. As Peterson's negligence, if any there was, did not proximately cause the accident, the
court did not err in instructing the jury that the plaintiff's right to recover judgment for
damages is in no way affected by the fact that her husband is one of the plaintiffs in the
action, or that he was employed by the defendant corporation.
Complaint is made of the ruling of the court in granting plaintiff's motion to amend their
complaint by striking therefrom the following language: * * * and was in charge of their
premises and warehouse, located at 440 Valley Road, Reno, Nevada, and was acting as
foreman in connection with the warehouse business of the said defendant."
was in charge of their premises and warehouse, located at 440 Valley Road, Reno, Nevada,
and was acting as foreman in connection with the warehouse business of the said defendant.
19. This amendment removed from the complaint the allegation that Andrew E. Peterson
was employed by appellant in the capacity stated. If there were error in this respect it is not
apparent how any substantial right of appellant was affected. A new trial was properly denied.
____________
60 Nev. 109, 109 (1940) Ex Parte Filtzer
In the Matter of the Application of JOHN JACOB
FILTZER for a Writ of Habeas Corpus.
No. 3303
April 4, 1940. 100 P.(2d) 942.
A separate maintenance decree, obtained by wife in California court, bars criminal prosecution of
husband in such state for abandonment of wife, but not prosecution for nonsupport because of nonpayment
of alimony awarded wife in such decree, though she may bring contempt proceedings or civil suit on decree
for alimony in arrears. Pen. Code Cal., sec. 270a.
2. Habeas Corpus.
In habeas corpus proceeding for release from custody under executive warrant issued pursuant to
requisition of governor of California, wherein petitioner was charged with nonsupport of his wife, receipt
and statement, purporting to show petitioner's payment of stated sum for wife's support, were inadmissible
in evidence, as such offense is in nature of continuing one. Pen. Code Cal., sec. 270a.
3. Habeas Corpus.
Whether amount paid for wife's support by husband, bringing habeas corpus proceeding for release from
custody under executive warrant issued pursuant to requisition of governor of California, in which husband
was charged with nonsupport of wife, covered period charged in complaint, and whether he was in default
at time charged therein, are fact questions determinable by court of demanding state. Pen. Code Cal., sec.
270a.
4. Habeas Corpus.
In habeas corpus proceeding for release from custody under interstate extradition warrant, court of
asylum state cannot try question of petitioner's guilt or innocence of crime with which he is charged in
demanding state.
5. Habeas Corpus.
In habeas corpus proceeding for release from custody under interstate extradition warrant, burden is on
petitioner to show that he is not fugitive from justice.
Original proceeding by John Jacob Filtzer for a writ of habeas corpus to procure his
release from the custody of Ray G. Root, Sheriff of Washoe County, under an executive
warrant issued by the governor of Nevada pursuant to a requisition issued by the governor of
California. Writ quashed, and petitioner ordered to surrender himself to the sheriff for
delivery into the custody of the agent of the State of California.
George S. Green, for Petitioner.
W. T. Mathews, Deputy Attorney General, Ernest S. Brown, District Attorney, of Washoe
County, and Nash P. Morgan, Deputy District Attorney, for Respondent.
OPINION
This is a proceeding in habeas corpus. Upon the issuance of the writ petitioner was
admitted to bail. The return to the writ shows that the petitioner was held in custody by Ray
G. Root, sheriff of Washoe County, by virtue of an executive warrant issued by the governor
of this state, pursuant to a requisition issued by the governor of California. In this warrant it is
alleged that petitioner stands charged with the crime of failure to provide for wife committed
in the county of San Diego, State of California, and is a fugitive from the justice of that state.
The requisition papers show that petitioner is charged as follows: That said John Jacob
Filtzer, on or about the 26th day of September, 1939, in the said county of San Diego, State
of California, and before the filing of this complaint, willfully, unlawfully and feloniously
abandoned and left his wife, Juliet A.
in the said county of San Diego, State of California, and before the filing of this complaint,
willfully, unlawfully and feloniously abandoned and left his wife, Juliet A. Filtzer, in a
destitute condition and refused and neglected to provide her with necessary food, clothing,
shelter and medical attendance, although he had at said time sufficient ability to provide and
earn the means for her support, and was not justified in so abandoning her by any misconduct
on her part.
In the petition for the writ and traverse to the return it is alleged that petitioner is a resident
of the State of Nevada, and not a fugitive from justice of the State of California; that he left
the State of California on or about the 20th day of October 1939; that when he left California
he and his wife no longer maintained the marital relationship in that his wife sought and
obtained a decree of separation from him in the superior court of California, in and for the
county of San Diego; that pursuant to said decree and on October 5, 1939, he paid to his wife
the sum of $40 for her support and maintenance, and thereafter, and after the 15th day of
October 1939, he caused to be paid to his wife the sum of $20 as and for her support and
maintenance.
1. On the hearing petitioner introduced in evidence an exemplified copy of a decree of
separate maintenance obtained by his wife against him, rendered in the superior court of the
State of California, in and for the county of San Diego, on November 4, 1937, in which it was
ordered, adjudged and decreed that he pay to her the amount of $10 per week until further
order of court.
Petitioner contends that this decree is a bar to a criminal prosecution for abandonment and
nonsupport. It is easy to see why such a decree is a bar to a criminal prosecution for wife
abandonment, for its terms preclude such an act. The decree has put it out of the power of the
husband to commit such an act, by effecting a legal separation. In re Kuhns, 36 Nev. 487, 137
P. 83, 50 L. R. A. (N.S.) 507, the petitioner and his wife had entered into a written agreement
to live separate and apart, and the court held that, as the agreement of separation was in
force, there was no abandonment of the wife.
and apart, and the court held that, as the agreement of separation was in force, there was no
abandonment of the wife. The decree is of equal effect. People ex rel. Com'rs. of Charities v.
Cullen, 153 N.Y. 629, 47 N. E. 894, 44 L. R. A. 420.
But it cannot be held a bar to prosecution for failure to provide, which is charged in the
complaint. The prosecution was commenced under section 270a of the California Penal Code,
which reads: Every husband having sufficient ability to provide for his wife's support, or
who is able to earn the means of such wife's support, who willfully abandons and leaves his
wife in a destitute condition, or who refuses or neglects to provide such wife with necessary
food, clothing, shelter or medical attendance, unless by her misconduct he was justified in
abandoning her, is punishable by imprisonment in the state prison, or in the county jail, not
exceeding two years, or by fine not exceeding one thousand dollars, or by both.
The effect of this statute is to make the act of unlawfully abandoning a wife by a husband,
a crime, and a further effect is to make his act of unlawfully refusing or neglecting to provide
her with the necessary food, clothing, shelter or medical attendance, a crime. Similar statutes
have been similarly construed. O'Brien v. State, 90 Tex. Cr. R. 276, 234 S. W. 668; Bobo v.
State, 90 Tex. Cr. R. 397, 235 S. W. 878; Stedman v. State, 80 Fla. 547, 86 So. 428; Wald v.
Wald, 161 Md. 493, 159 A. 97.
In construing a similar statute, the court, in O'Brien v. State, supra, said [90 Tex. Cr. R.
276, 234 S. W. 669]: We believe a fair construction of the statute would be as though it read
that any husband who shall willfully or without justification desert his wife, etc., would be
guilty,' or that any husband who shall willfully or without justification neglect or refuse to
provide for the support and maintenance of his wife, etc., would be guilty.' If the evidence
should disclose a state of facts where the husband may not have actually deserted his wife,
but continued to live with her and yet willfully or without justification neglected or
refused to provide for her support and maintenance when she was in destitute and
necessitous circumstances, he being able to so support and provide for her, we can see no
reason why, under the law, he might not be guilty of an offense."
wife, but continued to live with her and yet willfully or without justification neglected or
refused to provide for her support and maintenance when she was in destitute and necessitous
circumstances, he being able to so support and provide for her, we can see no reason why,
under the law, he might not be guilty of an offense.
The same reasoning will apply where, as here, a separation has been effected by judicial
decree and the obligation for support and maintenance fixed therein.
The case chiefly relied on by petitioner is People ex rel. Com'rs of Charities v. Cullen,
supra, but the case is not helpful to him. In that case the husband had been adjudged in a
lower court to be a disorderly person in that he had abandoned his wife and left her in danger
of becoming a charge upon the public. In the court of appeals the question was whether the
defendant had abandoned or deserted his wife. The court held that there could be no
abandonment within the meaning of the statute when the husband lives apart from his wife in
obedience to a judgment of separation from bed and board, obtained at the suit of the wife.
The court said [153 N. Y. 629, 47 N. E. 896, 44 L. R. A. 420]: But the question here is
whether the husband has committed the statutory offense of desertion or abandonment. * * *
Abandonment, in the sense in which the term is used in the statute, means the actual and
willful desertion by the husband of the wife. It is the willful act of actually leaving her, or
separating from her, and the withdrawal of all aid and protection implied in the marriage
relations. If the wife herself procures the separation, or consents to it, the case does not come
within the statute.
The judgment of separation was therefore a bar to the prosecution. So it would be here if
petitioner was charged only with wife abandonment. But he is charged also with the crime of
wrongfully refusing and neglecting to provide his wife with the necessary food, clothing,
shelter and medical attendance.
The separate maintenance decree did not absolve him from that obligation, as did the
judgment in the case, supra.
from that obligation, as did the judgment in the case, supra. Consequently, the decree cannot
be held a bar to the prosecution for the latter offense.
We have examined the other cases cited by petitioner but cannot extract therefrom the
conclusion reached by him that a separate maintenance decree in which alimony has been
adjudged is a bar to a criminal action in California for nonsupport. He contends that the only
remedy the wife has in such a case is by contempt proceedings, or by civil suit brought upon
the decree for alimony that may be in arrears. That may be true, as far as the wife is
concerned, but she is not a party in the criminal proceedings under said section 270a. The
people's right to enforce the penal laws of the state is absolute. It is not dependent upon what
remedy may be open to the wife in a civil action. We hold that the decree of separate
maintenance is no bar to the criminal prosecution for nonsupport.
2. It is next insisted by petitioner that he is not a fugitive from justice because after the
time charged in the criminal complaint and immediately prior to his leaving the State of
California, he paid to his wife the sum of $60 for her support. A receipt and statement
purporting to show such payment were offered in evidence and admitted, subject to the
objections of respondent. We now sustain those objections, and hold the offered evidence
inadmissible.
The offense of willfully omitting, without lawful excuse, to provide the wife with the
necessary food, clothing, shelter or medical attendance under said section 270a, is in the
nature of a continuing offense. It was so held in People v. Curry, 69 Cal. App. 501, 231 P.
358, under section 270 of the Penal Code, where the offense was shown to have been
committed against minor children, and the same construction should be given to said section
270a. See Ex Parte Quint, 54 N. D. 515, 209 N. W. 1006, and People ex rel. Gottschalk v.
Brown, 237 N. Y. 483, 143 N. E. 653, 32 A. L. R. 1164, for statement of this principle. 3.
3. The offense charged is founded upon neglect of duty and continues so long as the
neglect does not cease. People ex rel. Gottschalk v. Brown, supra. The separate maintenance
decree made on or about the 4th day of November 1937, providing that petitioner pay to his
wife $10 per week for her support, fixed his obligation therefor. A prosecution for neglect to
comply with the order could have been maintained at any time thereafter, prior to the running
of the statute of limitations. Petitioner was in the State of California at the time charged in the
complaint, and the $60 payment, conceding it to have been made, is not conclusive evidence
that he was not guilty of neglect to provide for his wife at that time. It may have been made in
payment of sums long past due. Whether the $60 payment covered the period charged in the
complaint, and that petitioner was not in default at that time, are questions of fact
determinable by the court of the demanding state.
A somewhat similar situation confronted the court in Ex Parte Quint, supra. The court said
[54 N. D. 515, 209 N. W. 1007]: Point is made of the fact that the affidavit of petitioner's
wife shows that the petitioner sent money averaging $30 per month up to and somewhat
beyond the date on which he is charged with having committed the crime of abandoning his
children. The fact remains that the complaint specifically charges the crime to have been
committed on October 10, 1925. Whether in the judgment of a jury, in view of the items of
money sent from time to time, averaging $30 per month, and of his conduct thereafter in
substantially discontinuing all remittances, the petitioner would be guilty of the crime charged
is a question of fact with which we are not concerned in this proceedings, and which we
cannot investigate. Such payments may be defensive matter in a trial on the merits. State v.
Clark, 148 Minn. 389, 182 N. W. 452.
4, 5. It is well settled that a court, on habeas corpus in interstate extradition, cannot try the
question of guilt or innocence of the accused. Ex Parte La Vere, 39 Nev.
214, 156 P. 446; Hyatt v. New York ex rel. Corkran, 188 U. S. 691, 23 S. Ct. 456, 47 L. Ed.
657; Munsey v. Clough, 196 U. S. 364, 25 S. Ct. 282, 49 L. Ed. 515.
As said in Bruce v. Rayner, 4 Cir., 124 F. 481, 484: It would seem that it is not competent
either for the governor or for the court to go into evidence tending to show the guilt or
innocence of the party whose surrender is sought. This would, in effect, be a trial of the case,
although the manifest design of the Constitution and the act of Congress is that the party
demanded should be remitted for trial exclusively in the state in which he stands charged with
having committed the offense.
See In re White, 2 Cir., 55 F. 54; 21 Cyc 328, and cases cited in note 47. The burden is on
petitioner to show that he is not a fugitive from justice. Ex Parte Montgomery, D. C. 244 F.
967; Roberts v. Reilly, 116 U. S. 80, 6 S. Ct. 291, 29 L. Ed. 544; People v. Munnie, 354 Ill.
390, 188 N. E. 545. The onus thus placed on him is not sustained by the offered evidence.
There is nothing in the Nevada cases cited by petitioner contrary to the well-settled rule on
habeas corpus in interstate extradition, that the question of the guilt or innocence of the
accused is not triable in the courts of the asylum state. This is not a case where the evidence is
of such a character as to show conclusively that the crime charged could not have been
committed by the petitioner.
The writ should be and is quashed.
It is ordered that petitioner forthwith surrender himself to the sheriff of the county of
Washoe, State of Nevada, to be delivered into the custody of the duly appointed agent of the
State of California for return to that state, and that upon compliance with this order his bail
may be exonerated.
____________
60 Nev. 117, 117 (1940) Fredrickson & Watson Constr. Co. v. Boyd
FREDRICKSON & WATSON CONSTRUCTION COMPANY, Et Al. v.
ELIZABETH E. BOYD and H. E. BOYD, Her Husband.
No. 3221
May 2, 1940. 102 P.(2d) 627.
1. Negligence.
A husband's contributory negligence should not be imputed to wife so as to preclude recovery by wife
from third person, notwithstanding statutes providing that all property acquired after marriage is
community property. Comp. Laws, secs. 3355, 3356.
In statute providing that all property acquired after marriage by either husband or wife, with specified
exceptions, shall be community property, the word acquired was not used in an all-comprehensive sense,
but in a more restricted sense embracing wages, salaries, earnings, or other property acquired through the
toil, talent, or other productive faculty of either spouse, and did not include compensation for injuries to the
person arising from violation of right of personal security. Comp. Laws, secs. 3355, 3356.
The character of judgment obtained by one spouse as separate or common property depends on the right
violated.
At common law, the right to personal security of wife and cause of action for its violation belonged to
wife, and husband could recover in his own right only for loss of services and expense of wife's care.
A husband as head of the community sustains the same relation to the wife as at common law, as respects
right to recover for personal injury to wife.
6. Statutes.
The Nevada court was not required to construe a Nevada statute taken from California as such statute was
construed by California courts, where California rule at time of enactment of the Nevada statute differed
from the construction that would thus result. Comp. Laws, sec. 3356.
In action against highway construction company for injuries suffered by automobile guest, admitting in
evidence the company's contract with the state providing that company should give warning of dangerous
condition of highway, and giving instruction authorizing verdict for plaintiff if company failed to give such
warning, was not error, where instructions plainly evidenced that court understood that the action was tort
and not for breach of contract, and limited the contract's force and effect accordingly.
not for breach of contract, and limited the contract's force and effect accordingly.
8. Trial.
Refusal to permit an offer of proof was not error, where the court had just made a favorable ruling on
objection to questions asked by the offeror, and was permitting offeror to proceed with the development of
evidence then being elicited.
In action by wife for personal injuries, error in admitting evidence of husband's loss of services and
expenses incurred was cured by charging that jury should not consider medical expenses and loss of
services in allowing damages.
Action by Elizabeth E. Boyd and H. E. Boyd, her husband, against the Fredrickson &
Watson Construction Company and others for damages resulting from injuries to wife while
guest in automobile. From a judgment and order in favor of plaintiffs, defendants appeal.
Affirmed.
E. F. Lunsford and Morley Griswold, for Appellants.
Sherman & Sherman, Clel Georgetta, and Clyde D. Souter, for Respondents.
OPINION
Respondents are husband and wife, and as such brought an action in the court below
asking damages for injuries alleged to have been suffered by the wife due to the negligence of
the defendants. The case was tried by a jury and a verdict rendered in favor of the respondents
in the sum of $16,000. From this judgment appellants have appealed and have assigned
certain errors upon which they base their claim for a reversal of the judgment.
Assignment No. 1 has three subdivisions, namely: (a) Sustaining of the general demurrer
to the affirmative answer and defense, which alleges contributory negligence of the
plaintiff husband, who is alleged to have been driving the automobile; {b) to the giving of
instruction No.
Sustaining of the general demurrer to the affirmative answer and defense, which alleges
contributory negligence of the plaintiff husband, who is alleged to have been driving the
automobile; (b) to the giving of instruction No. 9, which reads as follows: The Court
instructs the jury that if you find from the evidence that the defendants in this case were
negligent and that such negligence was the proximate cause of the injuries, if any, received by
Elizabeth E. Boyd, then your verdict should be for the plaintiffs even if you should also
believe from the evidence that H. E. Boyd was guilty of contributory negligence.
(c) To the refusal of the court to give defendant's offered instruction No. 5, which reads as
follows: I instruct you that in an action for injuries by the wife received in a collision where
the automobile in which the wife was riding was being driven by her husband and where the
husband is guilty of negligence in the operation of his automobile, proximately contributing
to the accident and the wife's injuries, such negligence is imputable to the wife and
constitutes a defense just as if the injuries received by the wife resulted from her own
negligence.
1. The issue raised under the assignments above stated is: may the contributory negligence
of the husband be imputed to the wife in the State of Nevada? At the outset we may state that
appellants present the affirmative of this question, fortified by an unanimity of authority in
their favor from each of the community property states which have passed upon it, namely:
Texas, Louisiana, Washington, California, Idaho and Arizona. These comprise six of the
eight community property states. If this court can accept the reasoning employed by the courts
of the states mentioned, in arriving at their conclusion that the proceeds flowing from a cause
of action for a personal injury to the wife is community property, then this judgment should
be reversed. We have given much attention to this subject, realizing its importance and,
further, realizing that the decisions of the very eminent courts of the several states
mentioned merit careful consideration.
decisions of the very eminent courts of the several states mentioned merit careful
consideration. Ordinarily, such an array of reputable authority would almost at once persuade
us to follow the same course. But careful analysis has lead us to the conviction that in the
beginning the course was charted wrong, and there is no sufficient ground of justice or social
policy to refuse the innocent wife any and all recovery because of the husband's contributory
negligence. 24 Cal. Law Review 741. The courts of the community property states have
classed such a cause of action and the proceeds thereof as community property because of the
statutes of those several states defining separate and community property, which statutes are
very much the same as the statutes of this state.
Section 3355 N. C. L. provides, in part, as follows: All property of the wife, owned by
her before marriage, and that acquired by her afterwards by gift, bequest, devise or descent,
with the rents, issues, and profits thereof, is her separate property.
Section 3356 N. C. L. provides: All other property acquired, after marriage, by either
husband or wife, or both, except as provided in sections 14 and 15 of this act, is community
property.
Sections 14 and 15 of the act have no bearing on the points under consideration.
Hence the holding of the states mentioned, supra, that a cause of action for personal
injuries to the wife, or the proceeds of the recovery from such a cause of action, not being
property owned by the wife before marriage or acquired by her afterwards by gift, bequest,
devise or descent, or the rents, issues or profits thereof, must necessarily be community
property.
Appellants contend that the provisions of the statute are plain and direct, and that to say
that the cause of action and proceeds thereof, acquired after marriage, is separate property is
to carve out of the community property law additional property, which, if it is to be done, is
for the legislature and not for the courts.
We are in complete agreement that changes in the law are for the legislature. No matter
how great the injustice resulting from the application of the hard and fast rule depriving the
innocent wife of compensation for injuries because of the contributory negligence of the
husband may appeal to us, we cannot evade such an application unless convinced it is not a
proper one under the law.
2. In construing section 3356 N. C. L., much depends upon the breadth of meaning given
the word acquired as used therein. We are aware that a sufficiently broad definition can be
given it so that it will envelop every known mode and manner of property acquisition, and
thus be made to squarely fit the pattern of interpretation found in the cases dealing with like
statutes in the community property states hereinbefore referred to. We are persuaded that the
word should be read and interpreted in the light of the uses and purposes of community
property and the establishment of community rights; and in so reading it we doubt very much
whether it logically can be said that the legislature used the word in the sense that it was to be
all-comprehensive. It seems more logical to conclude that the word was used in the more
restricted sense of embracing wages, salaries, earnings or other property acquired through the
toil or talent or other productive faculty of either spouse; that they did not have in mind
compensation for an injury to the person which arises from the violation of the right of
personal security, which said right the wife brings to the marriage.
If compensation to a married woman for personal injury is not made community property
by section 3356 N. C. L., then its character as to being separate or community must be
determined by the generally accepted rules of property classification. In fixing the
classification of the proceeds flowing from compensation for a personal injury to the wife in
this case, it seems unnecessary to discuss the refinements involved in the question of whether
a chose in action for a tort is property, for the reason that the judgment and proceeds
flowing therefrom are conceded to be property, and the judgment takes its character from
the right violated, namely, the right of personal security.
for the reason that the judgment and proceeds flowing therefrom are conceded to be property,
and the judgment takes its character from the right violated, namely, the right of personal
security. We quote with approval the following, taken from McKay on Community Property,
Second Edition, p. 296, par. 398:
3. The character of the judgment as separate or common takes its character from the right
violated; and that a cause of action for a personal injury is based on the violation of a separate
right, namely, the right to personal security, that which no right is more intensely personal
and separate. This right is so intensely personal and separate that it cannot be held by another
as trustee nor in common with another. This right belonged to the wife at common law, and
so did the cause of action for its violation. There has never been any mistake about this in the
common-law authorities, though the later cases make it more clear than did the older ones.
4. The general rule adopted by the courts is in conflict with the fundamental principles of
compensation. The common-law rule is well established that the plaintiff's compensation
must be limited to the loss he has sustained by the defendant's act. In case of the wife's
personal injury, the husband at common law was permitted to recover for the loss of the
wife's services and the expense of her care and cure, in his own right; but in his own right he
could not recover more; he could not recover for her personal injury.
5. The husband as head of the community sustains the same relation to the wife as at
common law, so far as the present question is concernedhe is entitled to her services, and is
liable for the expense of her care and cure, and for the violation of these rights he should
recover. But neither at common law or by the law of community does he hold the wife's right
to personal security and should not be permitted to recover for the violation of this right. It
does not belong to him nor to the community.
to the community. The wife's physical pain and suffering are not his loss nor the loss of the
community.
6. Our statute, section 3356 N. C. L., and other related statutes were taken from
California. So far as we have been able to discover, appellant has not contended that we
should place the same construction on this statute as have the courts of California, by reason
of said statute having been taken from said state. This could not be so, because the rule in
California at the time of the enactment of our statute was different than at present.
Because the judgment and proceeds thereof are property, it seems unnecessary to make a
determination of the point urged by appellant to the effect that the words things in action
used in section 9022 removes any question as to whether a cause of action for personal injury
is property. The same may be said as to the controlling effect of the case of Forrester v.
Southern P. Co., 36 Nev. 247, 134 P. 753, 136 P. 705, 48 L. R. A. (N.S.) 1.
From what has been said, it follows that the contributory negligence of the husband cannot
be imputed to the wife in this state.
Under assignment of error No. 2, the appellants contend that the court erred in giving
instruction No. 14, which reads as follows: The Court instructs the jury that when the
defendants in this case entered into a contract with the State of Nevada they assumed the duty
of giving the traveling public warning of a dangerous condition upon the highway, in the
manner and by the means specified in the contract. You are further instructed that if you find
from the evidence that at the time and place of the accident, the highway was in a dangerous
condition, and that the defendants failed or neglected to give warning to the traveling public
in the manner and by the means specified in the contract, and that such failure or neglect was
a proximate cause of the injuries, if any, sustained by the plaintiff, Elizabeth E.
of the injuries, if any, sustained by the plaintiff, Elizabeth E. Boyd, then your verdict should
be for the plaintiffs.
7. And appellants ask the question: Is the measure of duty owed by the defendants to the
plaintiffs in this case to be determined by the terms of the contract between the state and the
appellants, or is that duty to be found, determined and measured by the terms of the common
law? They contend that the respondents were not parties to the contract, and that there is no
such privity of contract existing between respondents and the State of Nevada as would
entitle appellants to sue for breach of a contract. Appellants admit that there is a division of
authorities as to whether or not a contract such as in question here inures to the benefit of the
traveling public, but insists that this court is committed to the rule that it does not, by reason
of the decision in the case of Ferris v. Carson Water Co., 16 Nev. 44, 40 Am. Rep. 485. An
action was brought on the contract under consideration in that case, by an individual, for an
alleged breach thereof by the water company, on the theory that the provisions of the contract
inured to the benefit of the residents of Carson City. This court correctly held that there was
no such privity of contract existing between the residents of Carson City and the water
company as would permit the said resident to sue on the contract. A different question is
presented here. Respondent did not sue for breach of contract, but in tort based on the
negligence of appellant. The theory of the introduction in evidence of the contract and the
giving of instruction No. 14 and other instructions in the case was to show the precautions
which appellants assumed and deemed necessary to safeguard the traveling public; they
thereby agreed and acknowledged that the measures and precautions named in the contract
were necessary to protect the traveling public, and in effect committed themselves to the
proposition that to do less would constitute negligence on their part. By their contract they
acquiesced in and set the standard of duty.
acquiesced in and set the standard of duty. And the jury were told that in determining whether
or not the appellants were negligent they had a right to use as a determining factor what the
appellants themselves had considered adequate. As stated in Karle v. Reed, 1 Cal. App.(2d)
144, 36 P.(2d) 150, 152, 37 P.(2d) 694; [The contractor] owed the traveling public the
common-law duty of protection from injury resulting from its negligence. The contract
established a standard of care to be used by the contractor in performing this duty. We see no
reason why the contractor should not be held to this standard of care to which it formerly
consented.
The statement in the case of Metcalf v. Mellon, 57 Utah 44, 192 P. 676, has application
here: The contract is a measure of the contractor's duty. If he assumes a responsibility
broader than that of his common-law liability for negligence, he becomes liable for torts
arising out of a breach of such duty which are the proximate cause of injury to third persons.
This is an action founded in tort for negligence, and not for breach of contract. A reading
of the instructions given by the court plainly evidences that the court so understood and so
limited the force and effect of the provisions of the contract. To single out instruction No. 14
and lay stress upon some of its provisions may give color to the contention made by
appellants. But, as heretofore stated, a reading of other pertinent instructions given, in
connection with instruction No. 14, negatives such contention.
The reception of the contracts in evidence and the giving of instruction No. 14 did not
change the cause of action from one arising in tort to one based on a contract.
Under assignment of error No. 3, appellants complain of the refusal of the trial court to
allow them to make an offer of testimony. In order to properly present the situation as it
existed, it is necessary for us to quote certain of the evidence appearing on pages 556 to
55S of the record on appeal, as follows:
to quote certain of the evidence appearing on pages 556 to 558 of the record on appeal, as
follows:
Q. How fast were you driving down the canyon?
Mr. Georgetta: Object to that, your Honor, that is also too far removed, irrelevant and
immaterial. I can see no purpose in this testimony.
Mr. Griswold: If the Court would like to hear I can give your Honor the purpose of it. The
Court will recall they testified about the time they left and that Mr. Boyd testified repeatedly
that he never drove over 45 miles an hour.
Mr. Georgetta: If the Court please, this is not within the issues of this case in any respect.
There is nothing in the allegations of the complaint, nothing in the answer
The Court: The objection is sustained.
Mr. Griswold: (Q) Mr. Wilcox, when you passed this car, what did the car do, this Ford
V-8 car that you have testified to, what did it do?
Mr. Georgetta: The same objection.
The Court: Objection sustained.
Mr. Griswold: May I be heard on that, if the Court please, for just a second before the
objection is sustained?
The Court: Well, I have sustained the objection, Mr. Griswold. You may proceed with the
examination.
Mr. Griswold: (Q) When you startedwhen you had passed these cars and started down
the road, did you see that car any more, that Ford V-8? A. No, I didn't see them until I got the
other side of Wadsworth.
Q. I am talking about when you first passed it. Did that car keep in sight of you after that
time? A. Yes, he kept right at my tail all the way into Wadsworth.
Q. And how fast were you driving at that time?
Mr. Georgetta: The same objection, your Honor. Not within the issues and the pleadings
in this case.
The Court: The objection is overruled. The answer will be confined to the time they went
through Wadsworth, or beyond that.
Mr. Griswold: I did not hear your Honor.
The Court: I say the answer will be confined to when they went through Wadsworth, or
just beyond it. You may confine your answer to that. Read the question.
(The Reporter read the question.)
The Court: (Q) That means at that time, or at the time you went through Wadsworth or
just beyond Wadsworth? A. I was driving about thirty miles an hour through Wadsworth.
Mr. Griswold: Now, when you got over beyond Wadsworthwithdraw that. If the Court
please, at this time may I ask that the jury be excused in order that I
The Court: No, proceed with the trial, Mr. Griswold. If you are not satisfied with the
rulings of the Court I will give you an exception. Proceed.
Mr. Griswold: May I have the record show this, if the Court please, that I offer at this
time to show what the witness would testify to in order that I may have my record with
reference to it, because the record is not tied in at this time and there is no opportunity during
the trial.
The Court: No, you may proceed with the examination.
8. It will be noted that at the time counsel for appellants requested permission to make an
offer of proof, the court had made a favorable ruling on an objection to a question asked, and
was permitting counsel to proceed with the development of the evidence then being elicited.
If counsel desired to introduce evidence other than was being elicited at the time, he should
have first brought the matter to the attention of the court by proper questions to the witness,
and if he had received an adverse ruling, then requested permission to state what he intended
to prove. But, perhaps due to the stress and heat of the trial, counsel failed to recognize the
existing condition of the record, and hence the court did not err in refusing to permit an
offer of proof, under the existing circumstances.
did not err in refusing to permit an offer of proof, under the existing circumstances.
9. Under assignment No. 4 appellants complain of the reception of evidence relative to
services performed by Mrs. Boyd before the accident and help that it has been necessary to
employ since the accident, work that the husband was required to do, and certain expenses
incurred, because such evidence was entirely without the issues. We think that the reception
of such evidence, though it may have been improper, was entirely cured and rendered
harmless by the giving of instructions No. 20 and No. 21, which informed the jury as to the
issues before them and the items upon which they could base damages. Said instructions are
as follows:
20. I instruct you that in this case the plaintiffs are not asking to be awarded any damages
for medical, hospital or other expenses due to Mrs. Boyd's injuries, nor are they asking for
compensation for loss of her services. You should, therefore not take any of these items or
elements into consideration in allowing damages, if any, to the plaintiffs.
21. The Court instructs the Jury that if you find for the plaintiffs you will assess Elizabeth
E. Boyd's damages at such a sum of money as in your opinion will be a reasonable and just
compensation for the injuries she has sustained. In estimating the damages you will take into
consideration the physical and mental pain, if any, she has sustained by reason of such
injuries, if any, and if you believe from the evidence that Elizabeth E. Boyd has not yet
recovered, and that her injuries, if any, are permanent, and that hereafter she will suffer pain
and anguish therefrom, then you will take this into consideration in estimating the damages.
Appellants' contention that respondent H. E. Boyd was guilty of contributory negligence as
a matter of law requires no consideration in view of our holding that the contributory
negligence of the husband is not imputable to the wife.
June 27, 1940.
Per Curiam:
Rehearing denied.
____________
60 Nev. 129, 129 (1940) Buckingham v. District Court
D. M. BUCKINGHAM, Petitioner, v. THE FIFTH JUDICIAL DISTRICT COURT OF THE
STATE OF NEVADA, in and for the County of Mineral, and the HONORABLE WM. D.
HATTON, the Presiding Judge Thereof, Respondents.
No. 3302
May 14, 1940. 102 P.(2d) 632.
Ordinarily, trial court will not be required to pause in the hearing of matters under consideration while
determination is made by appeal as to the correctness of intermediate orders.
2. Prohibition.
Prohibition would lie to determine whether complaint against county clerk and treasurer in removal
proceedings stated cause of action, as against contention that petitioner had a plain, speedy, and adequate
remedy at law by appeal, since to await a possible final judgment of removal before testing correctness of
trial court's overruling of demurrer might cause petitioner irreparable damage even if the judgment were
reversed on appeal. Comp. Laws, sec. 4860, 4861.
3. Officers.
The word malpractice in statute stating grounds for removal of public officers means the same as
malfeasance as used in constitution. Comp. Laws, sec. 4860; Const. art. 7, sec. 4.
4. Counties.
Allegations that county treasurer failed to make an entry in books, to issue and file receipts for moneys
received, and to submit a complete record of county commissioners, did not state a cause of action for
removal from office for malpractice or malfeasance, since acts charged were acts of omission rather
than acts of commission. Comp. Laws, sec. 4860.
5. Officers.
Acts of omission are not acts of malfeasance in office, warranting removal, but are nonfeasance.
6. Officers.
A distinct difference is recognized between malfeasance and nonfeasance as grounds for removal
from public office, and conduct invoking one charge will not be sufficient to justify the other.
7. Counties.
Allegation that cash in county treasurer's office and bank deposits did not show an excess over amount
shown by treasurer's books, and did not otherwise show amount of check which treasurer had received and
deposited to county's credit, did not state cause of action for malpractice or malfeasance since a
wrongful act was not charged by the description employed and the mere use of words malpractice and
malfeasance would not suffice. Comp. Laws, sec. 4860.
8. Officers.
A statute, the substantive provisions of which provided for removal of public officers for neglect or
refusal to perform official acts in manner and form now prescribed by law, was operative only with
respect to acts prescribed by laws enacted and in force and effect at the time the removal statute was
enacted, notwithstanding word now was not used in subsequent procedural provisions of the statute.
Comp. Laws, sec. 4860, 4861.
9. Counties.
Under statute providing for removal of officers for neglect or refusal to perform official acts in manner
and form as now prescribed by law, complaint charging county clerk and treasurer with acts of omission,
all of which involved acts required of such officer by repealed statutes or by statutes enacted after the
removal statute, did not state cause of action. Comp. Laws, secs. 4860, 4861.
Original proceeding by D. M. Buckingham against the Fifth Judicial District Court of the
State of Nevada in and for the County of Mineral, and the Hon. William D. Hatton, the
Presiding Judge thereof, for a writ of prohibition restraining the District Court and the Judge
from taking any further steps in a pending proceeding to remove petitioner from the office of
County Clerk and Treasurer. Alternative writ of prohibition made permanent.
Thatcher & Woodburn, for Petitioner.
Martin G. Evansen, District Attorney, for Respondents.
OPINION
This is an application for a writ of prohibition.
D. M. Buckingham is the duly elected and acting county clerk and ex officio treasurer of
the county of Mineral, State of Nevada.
county clerk and ex officio treasurer of the county of Mineral, State of Nevada. On the 7th
day of October 1939 the State of Nevada, on the relation of Farrell Seevers, as complainant,
filed in the district court of the Fifth judicial district of the State of Nevada, in and for the
county of Mineral, a certain amended complaint, the pertinent portions of which are as
follows:
1. That Defendant did, while acting as such County Clerk and County Treasurer of
Mineral County, on or about the 9th day of May, 1939, have in his possession public moneys
belonging to the County of Mineral;
2. That a check described as follows 11-84 Day & Night Branch 11-84 Bank of America
National Trust & Savings Association No1014056 San Francisco, California, May 8, 1939 19
Pay to the Order of Treasurer, Mineral County $150.00 Exactly $150-00 cts dollars Cashier's
Check A. G. Volz Asst. Cashier-Manager' was received on or about the 9th day of May, 1939
by D. M. Buckingham while acting in the capacity of County Clerk and Treasurer of Mineral
County;
3. That said above described check was received by said D. M. Buckingham for the
purpose of paying to the County of Mineral said money in return for certain road work;
4. That said check was endorsed by said D. M. Buckingham For deposit only Pay to the
order of First National Bank in Reno 94-2 Reno, Nevada 94-2 D. M. Buckingham Treas.
Mineral County';
5. That said above described check was deposited in the First National Bank of Nevada in
Reno, Nevada to the credit of D. M. Buckingham, Treasurer of Mineral County;
6. That said D. M. Buckingham acting as County Treasurer of Mineral County failed and
neglected to make any accounting of said moneys in the books of Mineral County provided
for that purpose and within the period prescribed by law;
7. That the cash and cash items in the Treasurer's office and funds in the depository bank
on the 7th day of September, 1939, amounted to a sum only of $11.66 in excess of the
amounts shown by the books of Mineral County as chargeable to said Treasurer and did
not show any other amount of overage that could be designated as being any part of the
above $150.00;
of September, 1939, amounted to a sum only of $11.66 in excess of the amounts shown by
the books of Mineral County as chargeable to said Treasurer and did not show any other
amount of overage that could be designated as being any part of the above $150.00;
8. That said D. M. Buckingham acting as Treasurer of Mineral County failed and
neglected to issue a receipt in triplicate for all moneys received by him during the month of
May, 1939 and failed and neglected to immediately file the duplicate with the County Auditor
of Mineral County, and failed and neglected to submit to the Board of County Commissioners
at its first regular meeting in May, 1939, and every regular meeting by said board thereafter,
to the date of the filing of the original Complaint herein, a statement containing a complete
record of the source and amount of all receipts, payments from, and balances in all funds, all
of which is contrary to the statute so made and provided.
The amended complaint seeks the removal of said Buckingham from the office of clerk
and treasurer of Mineral County, Nevada.
On the 13th of October 1939 the said district court issued a citation requiring the said
Buckingham to appear before the said court and the judge thereof to show cause why
judgment should not be given and entered as prayed in the amended complaint. Thereafter
said Buckingham filed a demurrer to the amended complaint, alleging that the said amended
complaint failed to state facts sufficient to constitute a cause of action against said
Buckingham, and asking that said proceeding be dismissed. The said demurrer was overruled,
and the hearing of the removal proceeding set for January 29, 1940.
On the 18th day of January 1940 said Buckingham filed herein a petition for a writ of
prohibition restraining the said district court and the Honorable Wm. D. Hatton, judge
thereof, from taking any further proceedings in said cause. On the same date the said petition
was filed, an alternative writ of prohibition was issued by this court, wherein the
respondents were ordered to show cause why a peremptory writ should not issue.
issued by this court, wherein the respondents were ordered to show cause why a peremptory
writ should not issue. Respondents have filed herein a demurrer to the petition, alleging that it
is insufficient to entitle the petitioner, D. M. Buckingham to a writ of prohibition. An answer
has also been filed, which admits all of the allegations of the petition except the allegations in
paragraphs VI and VII thereof. Said answer raises only questions of law.
1, 2. Respondents first contend that a writ of prohibition is not a proper remedy for
petitioner herein to invoke, and assert that a writ of prohibition will not issue to determine
whether or not the complaint states a cause of action, because the sections of the Nevada
statute under which this proceeding is brought provide for an appeal, and that the petitioner
has a plain, speedy and adequate remedy at law. In support of this contention of respondents
many cases are cited, and, of course, the general rule is that ordinarily trial courts will not be
required to pause in the hearing of matters under consideration while determination is made
by appeal as to the correctness of intermediate orders. However, in a proceeding such as we
now have before us, the propriety of such a writ has been sanctioned in the case of Bell v.
District Court, 28 Nev. 280, 81 P. 875, 1 L. R. A. (N. S.) 843, 113 Am. St. Rep. 854, 6 Ann.
Cas. 982. Respondents attempt to distinguish this case upon the ground that in the Bell case
the unconstitutionality of the statute in question was apparent, and that no such condition
exists here. The finding of this court as to the unconstitutionality of the statute in the Bell
case was arrived at after a hearing. The hearing was granted to afford opportunity to arrive at
a finding. The underlying purpose was to prevent possible injustice. It is recognized that
courts, on occasion, fall into error in ruling on questions of law. When no occasion exists
whereby injustice might result, the correctness of the ruling is tested by an appeal from a final
judgment, and not from intermediate orders, thus avoiding delays and other clogging of the
judicial machinery.
delays and other clogging of the judicial machinery. But, as in the instant case, to await the
final judgment before testing the correctness of the ruling on demurrer could (in the event the
judgment was one of removal) result in irreparable damage to petitioner, in humiliation
suffered, the loss of the respect and confidence of constituents, to say nothing of loss of salary
and surrender of the office to another. These results are experienced even though the
judgment be reversed. In viewing probable results we are not anticipating the
judgmentmerely recognizing existing opportunity for an injustice to result from
unintentional error. Such is the reasoning that permeates the Bell case, supra, as we read it,
and the holding therein settles the question adversely to respondents' contention. A final
determination as to whether the complaint states a cause of action for removal is just as
important on this hearing as was the determination of the constitutionality of the statute in the
Bell case, and the propriety of prohibition proceedings rests upon the same principles in both.
3. Petitioner has advanced certain arguments relative to the unconstitutionality of the
statute involved, but the contention is based solely upon the idea that the unconstitutionality
would only appear if it be urged that malpractice as used in the statute means something
different than malfeasance, appearing in article VII, section 4 of the Constitution of Nevada.
Respondents concede that malpractice as used in the statute means no more and is not
different from the word malfeasance. So we need pursue that inquiry no farther, and shall
consider the questions presented, with the understanding that the use of the word
malpractice comprehends malfeasance as used in the constitution and statute.
Does the amended complaint charge an act of malfeasance in office? The sections of the
statute involved are sections 4860 and 4861 N. C. L. Section 4860 prescribes the instances
under which the statute can be invoked against a public official, and section 4S61
prescribes the procedure therefor.
invoked against a public official, and section 4861 prescribes the procedure therefor. Section
4860 enumerates four instances in which the statute is operative:
(1) Where such public official has refused to perform an official act in the manner and
form as now prescribed by law;
(2) Where such official has neglected to perform an official act in the manner and form as
now prescribed by law;
(3) Where such official has been guilty of malpractice in office;
(4) Where such official has been guilty of malfeasance in office.
Petitioner contends that the amended complaint is insufficient to charge malfeasance in
office because the complaint is limited to acts of omission rather than commission; that it is
further insufficient in failing to allege knowledge or corrupt intent on the part of petitioner;
and, further, that the amended complaint is insufficient to sustain the charge of neglect of
duty in the contemplation of the statute, because: (a) It alleges no omission of acts required by
law at the date of the enactment of the removal statute; (b) it alleges no extreme or
extraordinary conduct on the part of petitioner which would call for the invoking of the
provisions of the statute; (c) petitioner could not be removed from the office of county clerk
for alleged acts of omission in his capacity as ex officio treasurer.
4-6. The amended complaint, without question, alleges acts of omission rather than
commission. Subdivision 6 of paragraph I alleges that the petitioner failed and neglected to
make an entry in the books of the county of a certain item. In subdivision 8 of the same
paragraph it is alleged that petitioner failed and neglected to issue a receipt in triplicate for all
moneys received by him during the month of May 1939, and that he failed and neglected to
immediately file a duplicate with the county auditor of Mineral County; that he failed and
neglected to submit to the board of county commissioners at its first regular meeting in
May 1939 and every regular meeting of the said board thereafter to the date of the filing
of the original complaint, a statement containing a complete record of the source and
amounts of all receipts, payments from and balances in all funds.
he failed and neglected to submit to the board of county commissioners at its first regular
meeting in May 1939 and every regular meeting of the said board thereafter to the date of the
filing of the original complaint, a statement containing a complete record of the source and
amounts of all receipts, payments from and balances in all funds.
The foregoing are acts of omission. Omissions to act are not acts of malfeasance in office,
but constitute nonfeasance. A distinct difference is recognized between the two. Conduct
invoking one charge will not be sufficient to justify the other. Cases pointing out this
distinction are: State ex rel. Hessler v. District Court, 64 Mont. 296, 209 P. 1052; State v.
Beazley, 77 Mont. 430, 250 P. 1114; State v. McRoberts, 207 Ind. 293, 192 N. E. 428; State
ex rel. Hardie v. Coleman, 115 Fla. 119, 155 So. 129, 92 A. L. R. 989; Holliday v. Fields, 210
Ky. 179, 275 S. W. 642.
We have examined the cases cited by respondents, wherein certain acts of omission have
been classed as malpractice; they are not persuasive in view of the wording of our statute; it is
plain that the legislature intended that acts of omission were to be dealt with under that
portion of the statute which reads: who shall refuse or neglect to perform any official act in
the manner and form as now prescribed by law, and that acts of commission were to fall
under the remaining provision: or who shall be guilty of any malpractice or malfeasance in
office.
7. Respondents insist that subdivision 7 of paragraph I charges malfeasance. That
allegation does not charge a wrongful act on the part of petitioner. The check was regularly
deposited to the credit of the county. It cannot be said the allegation is sufficient to sustain a
charge of embezzlement or abstraction of funds. The difference between the books and the
cash counted could have been occasioned by many different causes of an innocent nature. The
wrongful act must be made to appear by the description employed, and the mere use of the
words "malpractice" and "malfeasance" will not suffice.
by the description employed, and the mere use of the words malpractice and malfeasance
will not suffice.
8, 9. We find substance in the contention of petitioner that the acts of omission charged
against him do not come within the provisions of section 4860 N. C. L. for the reason that the
acts which it alleged were omitted were not required of a county treasurer at the time of the
enactment of the said section 4860. It will be noted that the provision of the statute confines
its operation to neglect or refusal of any official to perform any official act in the manner
and form as now provided by law. Section 4860 was enacted in the year 1909. The
requirement, if any, for the petitioner to enter the $150 check in the books of the county and
issue a receipt in triplicate and to make a report to the county commissioners is found in
sections 2067 to 2070 N. C. L., which said sections were enacted in 1919, long subsequent to
the enactment of section 4860. So, if the provision in said section 4860, namely, now
prescribed by law, means exactly what it says, then it follows that the omissions to act
charged against petitioner do not constitute grounds for removal. The words now prescribed
by law have a definite, ascertainable meaning, which is: laws enacted and in force and effect
at the time section 4860 was placed on the statute books. See Petition of Easby, 124 Pa.
Super, 578, 189 A. 548; 46 C. J. 632; Gibbs v. Barkley, Tex. Com. App., 242 S. W. 462, at
page 465.
We cannot reject the word now as used in the statute as surplusage, because of a
well-known rule of statutory construction that each and every word of a statute must be given
its meaning. This rule was recognized in the case of State v. Ruhe, 24 Nev. 251, at page 261,
52 P. 274. See, also, Torreyson v. Board of Examiners, 7 Nev. 19.
Respondents argue that while section 4860 uses the word now, section 4861 omits it, and
for that reason the charge may be sustained by ignoring section 4860 and basing it solely
upon section 4S61.
and basing it solely upon section 4861. Section 4860 provides the ground for removal, and
section 4861 provides the means for carrying the same into effect. The two sections must be
read together. Section 4860 is the substantive law fixing the grounds for removal, and section
4861 provides the procedure for carrying the preceding section into effect.
Petitioner calls attention to the fact that the contention of respondents that certain acts
were required of the treasurer by the laws of 1912 is without merit, because the sections
referred to have long since been repealed. The position of petitioner in this respect is sound,
and no further comment is required relative thereto.
We think that a determination of two other points raised by petitioner, namely, that the
county commissioners are not authorized to perform road work for pay, and hence there was
no fund to which the $150 could have been legally apportioned, and, secondly, that the
removal of the treasurer would not cause a vacancy in the office of county clerk, by reason of
the fact that the county clerk is ex officio treasurer, need not be made here. However, we
recognize them as presenting propositions of importance.
Our conclusion is that the amended complaint fails to charge any act of malfeasance, and,
further, that it fails to charge any neglect of duty on the part of petitioner, required by any law
in existence at the time of the enactment of section 4860, and for those reasons the district
court is without jurisdiction to proceed with the hearing of said matter, and the writ is made
permanent.
____________
60 Nev. 139, 139 (1940) Wood v. State
FRED L. WOOD, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 3253
June 26, 1940. 104 P.(2d) 187.
1. Criminal Law.
A motion to recall the remittitur, filed after affirmance by supreme court of a conviction, and the denial of
a petition for a new trial, on ground that supreme court lacked jurisdiction in that information failed to state
a public offense, that district court lacked jurisdiction, that change of venue granted by district court was
void, and that defendant was deprived of right of counsel would be denied where remittitur was regularly
issued, and there was no inadvertence, fraud, misapprehension, or mistake of fact. Comp. Laws, sec.
11105; Supreme Court Rules, rule 15.
2. Criminal Law.
A remittitur will be recalled only when inadvertence, mistake of fact, or an incomplete knowledge of the
circumstances of the case on the part of the court or its officers, whether induced by fraud or otherwise, has
resulted in an unjust decision. Comp. Laws, sec. 11105; Supreme Court Rules, rule 15.
On motion to recall remittitur. Motion denied.
For former opinions, see 59 Nev. 445, 96 P.(2d) 441; 99 P.(2d) 644.
J. M. Frame and Harry G. Pray, for Appellant.
Gray Mashburn, Attorney-General, W. T. Mathews and Alan Bible, Deputy
OPINION
Appellant has moved this court to recall the remittitur heretofore certified to the district
court, to vacate, set aside and hold for naught its opinion affirming the judgment of the
district court, and to vacate and set aside the subsequent opinion of this court and the order
denying appellant's petition for rehearing.
The motion is based upon the ground that this court was without jurisdiction to affirm
the judgment of conviction in the district court, because that court was itself without
jurisdiction to pronounce said judgment.
60 Nev. 139, 140 (1940) Wood v. State
was without jurisdiction to affirm the judgment of conviction in the district court, because
that court was itself without jurisdiction to pronounce said judgment. The alleged lack of
jurisdiction is based upon the following grounds: That the information does not state facts
sufficient to constitute a public offense; that the district court for Nye County had no
jurisdiction of the subject matter of the action, as the offense, if any, was committed in
Mineral County; that the change of venue granted by the district court for Mineral County
was void, because based upon an affidavit which stated no legal cause for such change of
venue; that appellant was deprived of the right to counsel at his arraignment and at the time of
the granting of the change of venue; and that for all said reasons appellant was denied due
process of law and the right to a fair and impartial trial.
Appellant was convicted in the district court of neglect of official duty, and appealed to
this court, where the judgment of conviction and order denying a new trial were affirmed.
Wood v. State, 59 Nev. 445, 96 P. (2d) 441. Thereupon he petitioned this court for a
rehearing, but the petition was denied. Wood v. State, 59 Nev. 458, 99 P.(2d) 644. A reading
of the opinion on appeal and the opinion on petition for rehearing will disclose that all the
questions sought to be raised by the present application have already been presented and
passed on by this court. There is no need of repeating here what was said in those opinions.
Appellant, however, contends that the grounds for his motion to go to the jurisdiction of the
court, and that he is therefore entitled to have these questions reconsidered.
Section 11105 N. C. L. 1929 provides: After the certificate of judgment has been
remitted, the appellate court shall have no further jurisdiction of the appeal, or of the
proceedings thereon, and all orders which may be necessary to carry the judgment into effect
shall be made by the court to which the certificate is remitted.
The second paragraph of rule XV of this court reads: "The court may, on its own motion,
recall a remittitur in any case, for good cause, and may recall such remittitur, for good
cause, upon application noticed or made within fifteen days after the filing of the same in
the trial court."
60 Nev. 139, 141 (1940) Wood v. State
The court may, on its own motion, recall a remittitur in any case, for good cause, and may
recall such remittitur, for good cause, upon application noticed or made within fifteen days
after the filing of the same in the trial court.
1, 2. The only case cited by appellant in support of his position that we should entertain
his present motion, even after judgment of affirmance and denial of petition for rehearing, is
In re Rothrock, 14 Cal.(2d) 34, 92 P.(2d) 634. In that case a motion to recall the remittitur
was granted because, in issuing it, the court had inadvertently assumed that no motion for a
new trial had been made, when in fact such a motion had been made. We are not confronted
here with that or any similar situation. Furthermore, that case recognizes the rule that a
remittitur will be recalled when, but only when, inadvertence, mistake of fact, or an
incomplete knowledge of the circumstances of the case on the part of the court or its officers,
whether induced by fraud or otherwise, has resulted in an unjust decision See 23 Cal. Law
Review 354-356. In the article on criminal law in 8 Cal. Jur., at p. 641, sec. 613, the rule is
thus stated: When a remittitur has been regularly issued and filed, and there has been no
violation of law or the rules of the appellate court, and no mistake of facts and no fraud or
imposition practiced by the prevailing party upon the court or upon the losing party, the
jurisdiction of the appellate court over the case is at an end. The judgment is final and the
court is without power to recall its remittitur.
In the case at bar the remittitur was regularly issued, and there has been no inadvertence,
fraud, imposition, false suggestion, misapprehension or mistake of fact. Furthermore, the
court is of opinion that there is no error either in the opinion and decision on appeal or in the
opinion and decision on petition for rehearing.
It is ordered and adjudged that the motion be denied.
____________
60 Nev. 142, 142 (1940) Chiquita Mining Co. v. Fairbanks, Morse & Co.
CHIQUITA MINING CO., Ltd., A Corporation, Appellant, v.
FAIRBANKS, MORSE & CO., A Corporation, Respondent.
No. 3286
June 26, 1940. 104 P.(2d) 191.
1. Sales.
A warranty can only exist where subject matter of sale is ascertained and existing, so as to be capable
of being inspected at time of contract, but where subject matter is not in existence, or not ascertained, an
engagement that it shall, when existing or ascertained, possess certain qualities, is not a mere warranty
but a condition, performance of which is precedent to any obligation upon buyer under contract, since
existence of these qualities, being part of description of thing sold, becomes essential to its identification,
and buyer cannot be obliged to receive and pay for a thing different than that for which he contracted.
Comp. Laws, secs. 6749(3), 6783.
2. Sales.
A provision in contract of sale of a used engine to mining company that seller, a foreign corporation,
would dismantle engine from its location, reinstall it on mining company's property, and run a test, was a
guaranty which was fulfilled, and was not a condition intended to survive its acceptance and give
purchaser further time for trial and examination. Comp. Laws, secs. 6749(3), 6783; sec. 8603, as amended
by Stats. 1931, c. 148.
3. Sales.
A mining company purchasing a used engine could not rely on an implied undertaking that engine would
be reasonably suited to uses for which seller knew it was bought, where company actually used engine for
purpose for which it was purchased. Comp. Laws, sec. 6749(3), 6783.
4. Sales.
Under contract for sale of a used engine to mining company providing that liability of seller on all
guaranties was limited to replacement of parts failing through defect in workmanship or materials, except
seller's liability to remove engine in event it did not operate at the test described in contract in accordance
with a guaranty of duty, there could be no condition, performance of which by seller was precedent to any
obligation on mining company. Comp. Laws, secs. 6749(3), 6783.
5. Contracts.
When a party makes a contract and reduces it to writing, he must abide by its terms as plainly stated
therein.
6. Sales.
A contract for sale of a used engine to mining company, limiting seller's liability under all
guaranties, either express or implied, to replacement of parts failing through defect
in workmanship or material, did not admit consideration of a duty or liability on part
of seller by implication of law.
limiting seller's liability under all guaranties, either express or implied, to replacement of parts failing
through defect in workmanship or material, did not admit consideration of a duty or liability on part of
seller by implication of law. Comp. Laws, secs. 6749(3), 6783.
7. Evidence.
Where parties reduced their contract to writing, all oral negotiations and agreements are merged in the
writing, and parol proof is not admissible to alter its terms unless party attacking instrument can establish
fraud or mistake in its execution.
8. Sales.
Where, pursuant to contract of sale of an engine to mining company, engine was installed and a test run
made as provided by contract, and thereafter officer of company executed receipt for engine, any defect in
engine existing at time of its installation was waived by company. Comp. Laws, secs. 6749(3), 6783.
9. Sales.
Where a contract of sale of an engine to mining company expressly excluded all implied warranties,
company could not claim benefit of implied warranties, and was bound by limitations expressed in written
contract.
10. New Trial.
In claim and delivery action wherein defendant filed a counterclaim, trial court did not commit error in
granting a new trial, after a verdict for defendant on its counterclaim, where verdict was in excess of
amount of damages claimed by defendant, and it appeared that verdict was reached without reference to
pleadings, evidence and charges of the court considered together and construed as a whole.
Action by Fairbanks, Morse & Company, a corporation, against Chiquita Mining
Company, Limited, a corporation, to recover possession of an engine, wherein defendant filed
a counterclaim. From an order granting a new trial, after a verdict for the defendant on its
counterclaim, defendant appeals. Affirmed.
Clifford A. Jones and A. P. G. Steffes, for Appellant.
McNamee & McNamee, and L. K. Vermille, for Respondent.
OPINION
By the Court, Annand, District Judge:
This case is before the court on appeal by defendant from an order of the trial court, dated
March 13, 1939, granting plaintiff a new trial on the ground the verdict is against law. The
cause was tried before a jury which returned a verdict for defendant in the sum of $8,500.
Fairbanks, Morse & Company, a corporation, commenced a claim and delivery action in
the lower court against the Chiquita Mining Company, Ltd., a corporation, for the recovery of
a certain Fairbanks Morse used engine and Diesel Electric Unit and accessories sold under the
terms of a written agreement, or in case possession could not be had, for the value of the
machinery alleged to be $7,271, together with damage for the detention of the property, and
for costs.
In its complaint, the plaintiff in the lower court and the respondent here alleged the
delivery of the machinery to defendant in accordance with and pursuant to the terms and
conditions of the contract, a copy of which was attached to the complaint and made a part
thereof.
The complaint alleged that defendant Mining Company agreed to pay to plaintiff the sum
of $15,000, payable $5,000 in cash and the balance in twelve equal monthly installments
beginning January 1, 1937, which installments were evidenced by twelve promissory notes in
the principal sum of $833.33 each. The notes were executed by defendant and dated
December 31, 1936.
Plaintiff alleged that defendant had paid the sum of $5,000 cash and also three of the
promissory notes which became due January 1, 1937, February 1, 1937, and March 1, 1937,
but had failed and refused to pay the nine remaining notes aggregating in their principal
amount the sum of $7,500.
Plaintiff alleged that the said remaining nine notes, with interest, according to their terms,
had become due and payable. That on the 4th day of November 1937 the plaintiff elected to
declare the full amount of the sums remaining unpaid, immediately due and payable and so
notified defendant; that said defendant failed and refused to pay the same; that on
December 5, 1937, the plaintiff demanded of defendant immediate possession of the
machinery and material, but defendant failed and refused to deliver the same.
sums remaining unpaid, immediately due and payable and so notified defendant; that said
defendant failed and refused to pay the same; that on December 5, 1937, the plaintiff
demanded of defendant immediate possession of the machinery and material, but defendant
failed and refused to deliver the same. The value of the machinery was alleged to be $7,271.
Plaintiff claimed as a reasonable value for the detention of the property, the sum of $50 per
month.
Defendant Chiquita Mining Company, in its amended answer, admitted delivery of the
machinery, the execution of the contract, the terms of payment and the payments made and
the refusal of the defendant to pay the balance due. Defendant denied that plaintiff, according
to the terms of the written agreement pleaded, had done or performed everything which by the
terms thereof it had obligated itself to do and perform, and alleged that prior to the alleged
defaults on the part of the defendant, plaintiff was in default, in that it had failed to do and
perform certain obligations on its part as provided in the agreement.
Plaintiff Fairbanks, Morse Company, a corporation, being a nonresident of the State of
Nevada, defendant filed a counterclaim, pursuant to section 8603 N. C. L. 1929, as amended
in 1931, chapter 148, alleging that the sales contract provided that the engine specified therein
would be tested by plaintiff at its factory before shipment and that the engine would be placed
on a test block in plaintiff's factory and subjected to a full rated brake horsepower test run and
all adjustments made before shipment.
Defendant claimed that the engine was not so tested, thereby breaching the contract and
that the damages claimed by defendant were the proximate result of such breach.
Defendant claimed special damages for certain repairs, labor and expense caused by
shut-down of machinery, and general damages in the total sum of $7,712.39.
The case was tried before a jury and the jury found in favor of the defendant Chiquita
Mining Company and fixed the damages in the sum of $8,500.
Judgment was entered on the verdict and the plaintiff filed its motion for a new trial. The
trial court granted plaintiff's motion for a new trial on the ground that the verdict was against
law. From this order, defendant appealed.
The rights and liabilities of the plaintiff and defendant depend upon the terms of the
contract, a copy of which was attached to the complaint. The contract is a printed form
furnished by plaintiff, Fairbanks, Morse & Company.
The plaintiff agreed to furnish and deliver to defendant one Fairbanks Morse (used) model,
describing it by number, a Diesel electric unit with switchboard and accessories conforming
with attached specifications.
The company agreed to deliver the machinery f. o. b. location at mine near Goodsprings,
Nevada.
Paragraph 2 of the agreement provided: The Engine specified herein shall be tested by
the Company at its factory before shipment and the Company guarantees said engine shall
develop 350 actual horsepower at such test.
Paragraph 3(a): When engine is unloaded and transported to foundation and preparations
are completely ready for such erection, the Company shall, (at request of the Purchaser),
furnish a competent Engineer, who shall superintend the erection and test of the machinery,
do all work requiring skilled labor and instruct Purchaser's operator on the operation and care
of the machinery. This service shall be furnished at the expense of Fairbanks, Morse &
Company and shall include labor for dismantling present installation for hauling from Atolia
to Goodsprings, Nevada. Purchaser to furnish board and lodging at Chiquita Mine for
erector.
The following paragraph provided, in part, that: "When property installed the Company
guarantees that at a test to be conducted at the time and in the manner hereinafter set
forth, the machinery herein specified will operate successfully, at," {then follows the
specifications of consumption of fuel oil at full load and fractions, indicating pounds per
brake horsepower hour).
When property installed the Company guarantees that at a test to be conducted at the time
and in the manner hereinafter set forth, the machinery herein specified will operate
successfully, at, (then follows the specifications of consumption of fuel oil at full load and
fractions, indicating pounds per brake horsepower hour). Under guarantees of duty, the
contract provided the test shall be made only if required by the purchaser, and shall consist of
three eight-hour days' operation and shall be conducted by the engineer of the company.
The contract provided if at the end of the three days' test the machinery successfully
operates in accordance with the guarantees of duty, the purchaser shall give to the engineer of
the company a written acknowledgment that a successful test has been made, demonstrating
that said machinery will operate successfully as provided in said guarantees of duty.
The following paragraph provided if purchaser failed or refused to give such
acknowledgment, the purchaser shall immediately notify the company in writing setting forth
in what particulars the purchaser claims the machinery to be defective. If it shall appear to be
beyond the power of the company to make the machinery perform according to guarantees,
within a reasonable time, then the company shall remove the machinery at no expense to
purchaser and refund all purchase money paid thereon.
The company guaranteed the machinery to be well made of good material and in a
workmanlike manner and provided if any parts of said machinery furnished should fail
through defect in workmanship or material and written notice of such failure be given, the
company would replace such defective parts free of charge, but the company would not be
liable for repairs unless made with its consent.
The Company shall not be liable for damages or delays caused by such defective material
or workmanship and it is agreed that, excepting its obligation to remove said machinery in
the event of its inability to make said machinery operate at the test as hereinabove
described according to said Guarantees of Duty, the liability of the Company under all
guarantees either express or implied, is specifically limited to the replacement free of
charge F. O. B. its factory of parts failing through defect in workmanship or materials
within the time and in the manner aforesaid."
remove said machinery in the event of its inability to make said machinery operate at the test
as hereinabove described according to said Guarantees of Duty, the liability of the Company
under all guarantees either express or implied, is specifically limited to the replacement free
of charge F. O. B. its factory of parts failing through defect in workmanship or materials
within the time and in the manner aforesaid.
At the trial the defendant based its defense upon a claim that plaintiff had not done and
performed everything which by the terms of its agreement in writing it was obliged to do and
perform, namely, that the engine specified would be tested by plaintiff at its factory before
shipment; that the engine would be placed on a test block at the factory and subjected to a
full-rated brake horsepower test run and all adjustments properly made before shipment,
claiming that this breach of the contract caused defendant damages which resulted from such
breach.
The evidence at the trial disclosed the fact that James J. Smith, vice president of defendant
mining company, signed the contract and he knew that the machinery was a used model
which was to be dismantled from its location at Atolia, California, and installed at
Goodsprings, Nevada.
According to the evidence, the machinery was installed on the cement base constructed by
the defendant mining company and the test run made as provided in the agreement. That the
vice president of the company was present at the test and accepted the machinery for the
mining company.
On cross examination James J. Smith testified in part as follows:
Q. But they did make a full test on it, didn't they? A. Yes.
Q. And they ran it continuously for twenty-four hours during that time? A. I don't
remember that they shut it down after they started.
Q. You mean after the engine was started you don't remember that it was shut down? A.
No, I don't, I wasn't there continuously.
Q. Well you were there on February 18th when Mr. Carter and Milligan left there? A.
Yes, I was.
Q. Do you remember that the engine was turned over to you that day? A. Yes, I do.
Q. And it was accepted by you? A. It was.
Q. And you signed a receipt? A. I did.
According to testimony of Mr. Smith, the first time the engine was shut down after
February 18, 1937, was in July 1937, and that was for the purpose of a clean-up.
The payments on the machinery were made for the months of January, February, and
March 1937.
It appears from the testimony that there was a shutdown in October and another in
November.
On November 4, 1937, the plaintiff elected to declare the full amount of the sums
remaining unpaid, immediately due and payable and so notified defendant, and on December
5, 1937, demanded immediate possession of the machinery.
According to a copy of a letter dated November 27, 1937, attached to defendant's answer,
Fairbanks, Morse & Company was notified through its attorney to the effect that the letter
confirmed the substance of a recent conversation concerning the Diesel engine sold to the
mining company. The letter claimed the engine had not been properly installed and stated:
The things which I personally was able to observe with my senses, which were such as not to
require expert knowledge to ascertain, plus the clear and common sense explanation given
me, conclusively proved to me that the condition found by Mr. Wallace, when he made his
recent examination, had existed since the engine commenced to run after its installation. I
refer particularly to the misalignment of the crank shaft.
Counsel for respondent, plaintiff in the lower court, contends that the provision in the
contract to the effect that plaintiff would test the engine at its factory before shipment and
properly make all adjustments before shipment, were warranties and not conditions, as
contended by defendant.
that plaintiff would test the engine at its factory before shipment and properly make all
adjustments before shipment, were warranties and not conditions, as contended by defendant.
1. A warranty, properly so called, can only exist where the subject-matter of the sale is
ascertained and existing, so as to be capable of being inspected, at the time of the contract * *
*. But where the subject matter of the sale is not in existence, or not ascertained, at the time
of the contract, an engagement that it shall, when existing or ascertained, possess certain
qualities, is not a mere warranty, but a condition, the performance of which is precedent to
any obligation upon the vendee under contract, because the existence of these qualities, being
part of the description of the thing sold, becomes essential to its identification, and the vendee
cannot be obliged to receive and pay for a thing different from that for which he contracted.
Cited in Carleton et al. v. Lombard, Ayres & Co., 72 Hun 254, 25 N. Y S. 570, 573.
2. The provision in the contract to dismantle the engine from its location at Atolia,
California, install it at Goodsprings, Nevada, and run the test, was a guarantee which was
fulfilled and was not a condition intended to survive its acceptance and give the purchaser
further time for trial and examination.
Section 6749 N. C. L. 1929, uniform sales act, subparagraph (3): If the buyer has
examined the goods there is no implied warranty as regards defects which such examination
ought to have revealed.
Section 6783 N C. L. 1929 provides: In the absence of express or implied agreement of
the parties, acceptance of the goods by the buyer shall not discharge the seller from liability in
damages or other legal remedy for breach of any promise or warranty in the contract to sell or
sale. But, if, after acceptance of the goods, the buyer fail to give notice to the seller of the
breach of any promise or warranty within a reasonable time after the buyer knows, or ought
to know, of such breach, the seller shall not be liable thereunder."
after the buyer knows, or ought to know, of such breach, the seller shall not be liable
thereunder.
The contract between plaintiff and defendant provided that after the test of the machinery,
if the machinery be defective the purchaser shall immediately notify the company in writing
setting forth in what particulars the machinery was defective.
The record shows that the letter sent to the attorney for Fairbanks, Morse & Company
setting forth the defects was dated November 27, 1937; after the plaintiff company had
declared a default in the agreement.
The machinery was accepted by written acknowledgment in February 1937, and used
continuously until July 1937, when it was shut down for a clean-up.
The subject matter of this sale existed at the time of the signing of the contract. It was
inspected and accepted and no complaint was made that the engine was not tested at the
factory.
3. The defendant cannot rely on an implied undertaking that the goods sold shall be
reasonably suited to the uses for which the seller knew they were bought, for here it appears
that the defendant actually used the machinery for the purpose for which the machinery was
purchased.
4. There can be no condition the performance of which is precedent to any obligation
upon the purchaser in this contract. The warranties or guarantees are all expressed in the
contract in the following language: and it is agreed that, excepting its obligation to remove
said machinery in the event of its inability to make said machinery operate at the test as
hereinabove described according to said guarantee of duty, the liability of the company under
all guarantees either express or implied, is specifically limited to the replacement free of
charge F. O. B. its factory of parts failing through defect in workmanship or materials within
the time and manner aforesaid.
In the case of A. B. Farquhar Co. v. Hardy Hardware Company, 174 N. C. 369, 93 S. F.
922, 925, in construing a contract for the sale of machinery, allowing a week's trial and
requiring notice of any defect to be given the seller with opportunity to make the
machinery as represented, or payment refunded, the court said: "The defendant should
have complied with the plainly expressed terms of the contract, and pursued the course
therein indicated, as they had solemnly agreed to do.
Company, 174 N. C. 369, 93 S. F. 922, 925, in construing a contract for the sale of
machinery, allowing a week's trial and requiring notice of any defect to be given the seller
with opportunity to make the machinery as represented, or payment refunded, the court said:
The defendant should have complied with the plainly expressed terms of the contract, and
pursued the course therein indicated, as they had solemnly agreed to do. We cannot help them
when they fail to help themselves, for the law lends its aid to the vigilant and denies it to
those who sleep upon their rights. Parties should assert their rights in due season and
according to their own stipulations, where they claimed under a contract.
In the case of Murray Co. v. Putman, Tex. Civ. App., 1913, 154 S. W. 245, cited by
counsel for appellant, the plaintiff did not ask for damages for defects in the machinery but
for damages caused by faulty installation and received a judgment in the lower court which
was reversed and remanded by appellant court.
Lindsay v. Fricke, 130 Wis. 107, 109 N. W. 945, cited by appellant, a case where
machinery was sold under a special guarantee that it would pull a 30 x 60 Avery separator. In
addition to this guarantee, it contained one to the effect that the article is of good material,
well made, and with proper management capable of doing as good work as any similar article
made in the United States, with a provision if said machine shall fail to fill this warranty,
written notice shall be given to vendor, and an opportunity given to remedy the defects.
There was no claim of a breach of this latter warranty, but simply a breach of the first, and,
there being no condition attached to the first warranty respecting notice or return, the court
held the ordinary damages with regard to breach of warranty apply, but not where right of
return was provided.
In the case now before this court there is a claim for damages on a guarantee with a
condition attached respecting notice in case of failure to perform.
There is no contention by appellant that the engine would not develop 350 actual
horsepower, nor that it did not comply with the guarantee specified in the contract at the time
of the fuel consumption test provided.
5. When a party makes a contract and reduces it to writing, he must abide by its terms as
plainly stated therein.
6. The agreement between plaintiff and defendant herein does not admit the consideration
of a duty or liability by implication of law, as the express agreement between the parties
limits the liability under all guarantees, either express or implied, to the replacement of parts
failing through defect in workmanship or material.
There is no allegation in the pleadings of defendant of fraud or that defendant relied upon
the representation of an agent of the plaintiff company that the engine was properly installed.
No claim was made by defendant for damages in the failure of plaintiff to replace defective
parts.
The contract expressly provided that it contained all the agreements between the parties
and was accepted by defendant with the definite understanding that there were no verbal
agreements or understandings changing or modifying it.
7. The supreme court of this state in Gage v. Phillips, 21 Nev. 150, 26 P. 60, 61, 37 Am.
St. Rep. 494, held: When parties reduce their contract to writing, all oral negotiations and
agreements are merged in the writing, and the instrument must be treated as containing the
whole contract, and parol proof is not admissible to alter its terms, or to show that, instead of
being absolute, as it purports to be, it was in reality conditional, unless the party attacking the
instrument can establish fraud or mistake in its execution.
It is well settled, by a long line of decisions of this court, when parties reduce their
contract to writing, all oral negotiations and stipulations are merged therein.
8. The acceptance of the engine is shown by an independent instrument in writing. If any
defect existed at the time of the installation of the machinery, this was waived by
defendant.
at the time of the installation of the machinery, this was waived by defendant.
9. The parties to the contract having by express terms negated and excluded all implied
warranties, the defendant cannot claim the benefit of such and is bound by the limitations
expressed in the written contract.
10. The verdict of the jury was in excess of the amount of damages claimed by defendant.
It appears that the verdict was reached without reference to the pleadings, the evidence and
the charges of the court considered together and construed as a whole.
Therefore, the order of the court granting a new trial is affirmed.
____________
60 Nev. 154, 154 (1940) Ex Rel. Whalen v. Welliver
STATE OF NEVADA, Ex Rel. WILLIAM D. WHALEN, Relator, v. A. M. WELLIVER, as
Chief of Police of the City of Reno, Et Al.
STATE OF NEVADA, Ex Rel. CHESTER BOWLIN,
Relator, v. SAME.
No. 3314, 3315
June 27, 1940. 104 P.(2d) 188.
1. Municipal Corporations.
Under charter of city of Reno, authorizing chief of police to suspend police officer for cause, order of
chief of police and city council purporting to discharge all police officers, as a matter of convenience in
getting the civil service act into operation, was void. Stats. 1939, c. 95; Stats. 1937, c. 204, p. 427, sec. 2.
Under charter of city of Reno, removal of police officers must be for cause, and the word cause as used
therein means legal cause, and not any cause which the council may have deemed sufficient. Stats. 1937, c.
204, p. 427, sec. 2.
In statutes and ordinances authorizing removal of officers for cause, cause or sufficient cause means
legal cause, and not any cause which the officer authorized to make removal may deem sufficient, but one
which specifically relates to and affects administration of the office, restricted to something of a
substantial nature directly affecting the rights and interests of the public, touching
the qualifications of the officer or his performance of his duties, and showing that he
is not a fit or proper person to hold the office.
of a substantial nature directly affecting the rights and interests of the public, touching the qualifications of
the officer or his performance of his duties, and showing that he is not a fit or proper person to hold the
office. Stats. 1937, c. 204, p. 427, sec. 2.
Proceedings by the State of Nevada, on the relation of William D. Whalen, and by the
State of Nevada, on the relation of Chester Bowlin, against A. M. Welliver, as Chief of Police
of the City of Reno, County of Washoe, State of Nevada, and others, for writ of mandate to
compel respondents to reinstate relators as police officers. Writ granted.
Bowen & Custer, for Relators.
Douglas A. Busey, City Attorney, for Respondents.
OPINION
Petitioners seek a writ of mandate to compel respondents to reinstate them as police
officers of the city of Reno, State of Nevada.
Petitioner Bowlin was appointed an officer of the city of Reno police department, by the
chief of police thereof, in December 1936, and was confirmed as such officer by the city
council of the city of Reno in November 1937. Petitioner Whalen was appointed an officer of
the city of Reno police department by the chief of police thereof in March 1938, and was
confirmed by the city council of the city of Reno in November 1938. On the 20th of March
1939, the legislature of the State of Nevada passed a civil service law for the police and fire
departments of the city of Reno (Stats. 1939, p. 99, c. 95). Pursuant to the provisions of said
act, the city council of said city of Reno appointed members of the civil service commission
on June 1, 1939, which said commission organized and held the first examinations under the
act on August 2S, 1939.
on August 28, 1939. All the persons who were then police officers of the city of Reno,
including petitioners, took the said examination. On the 25th day of September 1939 the
commission designated to the chief of police a list of persons who were then police officers
of the city of Reno, which designation included the petitioners, who were eligible for the
appointment as police officers of the Reno police department, and also a list of other
applicants who had passed the examination and who were eligible to appointment as said
police officers.
On the 30th day of September 1939 the city council and chief of police of the city of Reno
entered an order which purported to summarily discharge all police officers of the city of
Reno, thirty-six in number, the petitioners being included in the said order. Immediately
thereafter the chief of police appointed as police officers for said city thirty-one of the
thirty-six persons discharged as aforesaid. The remaining five appointments were made from
the list of other applicants furnished by the commission. Said appointments were confirmed
by the city council. The petitioners were not appointed as police officers under said order,
and, of course, were not confirmed.
In March 1940 petitioners requested and secured a hearing before the commission. On
April 18, 1940, the commission entered an order that petitioners be reinstated as police
officers of the said city of Reno, and pursuant to said order the chief of police assigned
petitioners to duty as patrolmen on the Reno police department, and petitioners acted as such
from April 19 to April 29, 1940. On the date last mentioned petitioners received notice from
the chief of police not to thereafter report for duty, as the city council considered them
discharged from the Reno police department as of September 30, 1939. Again, on May 9,
1940, after a hearing, the commission ordered the reinstatement of petitioners, but the chief of
police, acting under orders from the Reno city council, refused to assign either of them to
duty.
Respondents make two defenses to the petitions: First, that petitioners are not now and
never have been police officers of the city of Reno under the civil service law; second, if the
civil service law is applicable to petitioners it is unconstitutional insofar as it purports to
prevent their discharge without a hearing before the commission.
In substance, the contentions of respondents are that while the Reno civil service law did
not have the effect of removing from office those officers who were serving at the time of its
enactment, its protective terms relative to the methods of removal did not apply to the then
serving officers, but have application only to officers appointed under its provisions, and that
therefore the then serving officers could only be removed by the chief of police and city
council under section 2 of article IX of the charter of the city of Reno. Further, that if it be
determined that the protective provisions of the Reno civil service law applied to the officers
serving at the time of its enactment, then section 2, which makes provision for the filling of
vacancies, is unconstitutional, in that it establishes no term of office. Section 2 of the civil
service law reads as follows: Whenever a vacancy in either the police or fire department of
said city exists, a request shall be made of the commission by the chief of the respective
department for the designation of suitable appointees. The commission shall designate
suitable appointees within three days after receiving any request. If satisfactory the
appointment of a suggested individual shall be made and confirmed by the council. If the
suggested appointees fail of appointment and confirmation, the commission shall suggest
individuals until the council does confirm.
1. Our consideration of the petitions leads to the conclusion that even though the position
of respondents relative to the defensive matters hereinbefore stated is correct, yet the writ
should issue for the reason that the order of the chief of police and city council of September
30, 1939, purporting to discharge the petitioners, is void because it violates the provisions of
section 2 of article IX of the charter of the city of Reno, which was the law operating at
the time petitioners were appointed, and which said law the civil service law was
intended to supersede.
is void because it violates the provisions of section 2 of article IX of the charter of the city of
Reno, which was the law operating at the time petitioners were appointed, and which said law
the civil service law was intended to supersede. Said section reads as follows: The chief of
police shall have command and control of the police force of the city, and may suspend any
police officer for cause pending investigation by the city council. At the first meeting
subsequent to such suspension the chief of police shall report said suspension. If the city
council by a majority vote of members elected approve the suspension the police officer shall
be thereby dismissed. If such suspension is not approved by such vote the suspension is
thereby revoked. He shall be vigilant in the detection of crimes and the speedy apprehension
of all criminals and offenders, and shall diligently see that all ordinances of the city of a
police nature, the general laws and the provisions of this charter, are rigidly enforced and
observed. Statutes of 1937, p. 427.
2, 3. It will be noted that the section empowers the chief of police to suspend an officer
for cause, and if after investigation by the city council the suspension is approved by said
council, then such approval acts as a dismissal. The facts surrounding the order of dismissal
entered by the council on September 30, 1939, disclose that the council, being of the opinion
that the civil service act applied only to those appointed under its provisions, and being
desirous of having said civil service act go into operation without the long delay which would
have been necessitated had they waited until vacancies occurred and were filled in the
ordinary course in events, dismissed all of the then serving members of the police department
and reappointed all of them except petitioners and three others. This suspension was
summarily made as a matter of convenience in getting the civil service act in operation, and
while the motive which actuated the council at the time is commendable, it was in violation
of law, no matter what view is taken as to which statute was in operation. As has been said, it
was clearly not in accordance with section 2 of the civil service act, and it is just as clearly
not in accordance with the provisions of section 2 of article IX of the charter of the city of
Reno.
was clearly not in accordance with section 2 of the civil service act, and it is just as clearly
not in accordance with the provisions of section 2 of article IX of the charter of the city of
Reno. Under the provisions of said section of the charter, removal must be for cause, and the
word cause as used therein means legal cause, and not any cause which the council may
have deemed sufficient. A good definition of the word cause as used in statutes and
ordinances similar to the one in question is found in the case of Sausbier v. Wheeler, 252
App. Div. 267, 299 N. Y. S. 466, at page 472: Cause' or sufficient cause' means legal
cause, and not any cause which the officer authorized to make such removal may deem
sufficient. It is implied that an officer cannot be removed at the mere will of the official
vested with the power of removal, or without any cause. The cause must be one which
specifically relates to and affects the administration of the office, and must be restricted to
something of a substantial nature directly affecting the rights and interests of the public. The
cause must be one touching the qualifications of the officer or his performance of his duties,
showing that he is not a fit or proper person to hold the office. An attempt to remove an
officer for any cause not affecting his competency or fitness would be an excess of power and
equivalent to an arbitrary removal.
Words and Phrases cites many more cases which define the word in a similar manner.
Therefore the order of September 30, 1939, purporting to dismiss petitioners from the police
force was a summary and arbitrary one, in excess of the rights granted to the chief of police
and city council by either the civil service law or the provisions of the Reno charter
hereinbefore set out.
The view we have taken as to the validity of the purported order of September 30, 1939,
renders unnecessary a determination of the constitutionality of section 2 of the Reno civil
service law, and also renders unnecessary a determination as to whether the provisions of the
civil service law apply to the officers serving at the time of its enactment, or only to those
appointed under its provisions.
time of its enactment, or only to those appointed under its provisions.
It is ordered that the chief of police and city council of the city of Reno permit petitioners,
and each of them, to assume the positions in the Reno police department held by them on the
30th day of September.
August 28, 1940. 104 P.(2d) 1016.
1. Constitutional Law.
Courts will not pass upon constitutionality of a statute unless absolutely necessary, and
supreme court would not go outside the issues presented in order to bring question of
constitutionality of a statute into the case.
Questions presented for the first time on petition for rehearing will not be decided.
Rehearing denied.
Bowen & Custer, for Relators.
Douglas A. Busey, City Attorney, for Respondents.
OPINION
In presenting this petition, respondents urge that by our decision we in effect overruled a
former decision of this court, viz, Leeper v. Jamison, 32 Nev. 327, 108 P. 1.
At the time of rendering the decision we were familiar with that case, it having been cited
by respondents in support of their contention that certain sections of the Reno civil service
law are unconstitutional.
Counsel for respondents in his brief in the main case called attention to the fact that prior
to the enactment of the civil service law, sections 1 and 2 of article IX of the charter of the
city of Reno governed the appointment and removal of police officers. Petitioners raised the
question of the legality of the dismissal under said sections.
the question of the legality of the dismissal under said sections. It was apparent that should
respondents prevail in their contention as to the unconstitutionality of certain sections of the
civil service law we would be confronted with a determination of the legality of the dismissal
under the said sections of the charter, and it appearing that the dismissal under the terms of
the charter was illegal, respondents could gain nothing by a decision on the constitutionality
of the civil service law.
1. The situation resolved itself into this: First, if we should find the civil service law
constitutional, then the writ should issue, because its terms were not complied with; second,
if we should find the Reno civil service law unconstitutional, then, again, the writ should
issue because the discharge was not in conformity with the provisions of the Reno charter.
And, following the well-established rule that courts will not pass upon the constitutionality of
a statute unless absolutely necessary, we declined to do so.
We think it will be conceded that before we would be justified in considering the
controlling effect of the case of Leeper v. Jamison, supra, the question of the constitutionality
of sections 1 and 2 of article IX should have been challenged and presented for consideration.
This was not done. We did not feel justified in going outside the issues presented in order to
bring that question into the case. We will be disposed to give such force and effect to the
Leeper case as we then think proper if and when a question is presented to us, necessary to be
determined, involving the principles therein decided. We most certainly have not, as yet,
overruled that case.
2. Another well-recognized rule is that questions presented for the first time on petition
for rehearing will not be decided.
Rehearing denied
____________
60 Nev. 162, 162 (1940) Gilbert v. Breithaupt
C. V. T. GILBERT, Appellant, v. JACK BREITHAUPT,
Respondent.
No. 3298
June 29, 1940. 104 P.(2d) 183.
1. Officers.
The exercise of right to hold public office should not be declared prohibited or curtailed except by plain
provisions of law, and ambiguities should be resolved in favor of eligibility to office.
A candidate for city commissioner of city of Las Vegas who was a qualified elector as defined by
constitution was a qualified voter within terms of statute defining qualifications for the office, without
necessity of being legally registered as a voter. Stats. 1911, c. 132, subd. 2, sec. 6, as amended by Stats.
1939, c. 155, sec. 6; Comp. Laws, secs. 2368, 2374, 2391, 4766; Const. art. 2, secs. 1, 6; art. 15, sec. 3.
Appeal from Eighth Judicial District Court, Eighth District, Clark County; Wm. D. Hatton,
Presiding Judge.
Action by Jack Breithaupt against C. V. T. Gilbert, to set aside a certificate of election and
declare office vacant. From a judgment for plaintiff, defendant appeals. Reversed and
remanded.
Ham & Taylor, for Appellant.
Harold M. Morse, for Respondent.
OPINION
Respondent commenced an action in the Eighth judicial district court, county of Clark,
praying that court to declare null and void the certificate of election issued to appellant as city
commissioner of the city of Las Vegas, and to declare said office vacant.
In his complaint plaintiff, respondent here, alleges that defendant was not a qualified voter
of the city of Las Vegas, or of the county of Clark, or of the State of Nevada, for at least
two years immediately preceding his election, and was therefore not a qualified candidate
for said office, either at the time he signed his declaration of candidacy or at the time of
his election.
Las Vegas, or of the county of Clark, or of the State of Nevada, for at least two years
immediately preceding his election, and was therefore not a qualified candidate for said
office, either at the time he signed his declaration of candidacy or at the time of his election.
The complaint further alleges: That plaintiff and contestant alleges and states that said C. V.
T. Gilbert, defendant and contestee, within two years immediately preceding the general
municipal election of the city of Las Vegas, Clark County, Nevada, as hereinbefore set forth,
did not register as required by the constitution and laws of the State of Nevada to become a
qualified voter of the city of Las Vegas, county of Clark, State of Nevada, and that by reason
thereof, to wit; on November 21, 1938, his name was canceled from and stricken from the list
of qualified voters of the city of Las Vegas, Clark County, Nevada, and so remains stricken
and canceled from the list of qualified voters of the city of Las Vegas, Clark County, Nevada,
from said date continuously to and including May 2, 1939, and date of the general municipal
election of the city of Las Vegas, Clark County, Nevada, and therefore ineligible to be a
candidate for, or to be elected to the office of city commissioner of the city of Las Vegas,
Clark County, Nevada, and therefore ineligible to be declared elected to said office, or to
qualify for, or hold said office.
Defendant (appellant) demurred to the complaint upon the ground, among others, that it
does not state facts sufficient to constitute a cause of action. Defendant did not file an answer.
The cause came on for trial, both parties being represented, and thereafter the district court
rendered its decision in favor of plaintiff as prayed in his complaint. Defendant's motion for a
new trial was denied.
The city of Las Vegas was incorporated by act of the legislature approved March 16, 1911.
Stats. of Nevada 1911, chap. 132, p. 145. Section 6 of said act was amended March 24, 1939.
Stats. of Nevada 1939, chap.
155, pp. 209, 210. The first sentence of the section, as amended, reads: The mayor, each of
the four commissioners, the city clerk, the city attorney, and the judge of the municipal court
shall not be less than 25 years of age, citizens of the United States, and for at least two years
immediately preceding their election residents of the city of Las Vegas, county of Clark, State
of Nevada, qualified voters who are property owners and taxpayers on real estate or personal
property, situate in the city of Las Vegas, county of Clark, State of Nevada, as shown on the
assessment rolls of said city of Las Vegas, county of Clark, State of Nevada, on file in the
office of the county assessor and ex officio city assessor of the county of Clark, State of
Nevada, for at least two years immediately preceding the year in which said election is held.
The corresponding part of the original section 6 read as follows: The mayor and each of
the said four commissioners shall not be less than 25 years of age, citizens of the United
States, and for at least two years immediately preceding their election residents of the city of
Las Vegas, qualified voters who are property owners and taxpayers in said city.
Respondent contends that to be a qualified voter within the meaning of said section 6, one
must not only have the qualifications of an elector set forth in the state constitution, but must
further be legally registered. One of appellant's contentions is that registration is not required
to make one a qualified voter within the meaning of said section.
Section 1 of article II of the constitution of Nevada provides, in part, that: All citizens of
the United States (not laboring under the disabilities named in this constitution) of the age of
twenty-one years and upwards, who shall have actually, and not constructively, resided in the
state six months, and in the district or county thirty days next preceding any election, shall be
entitled to vote for all officers that now or hereafter may be elected by the people, and upon
all questions submitted to the electors at such election.
may be elected by the people, and upon all questions submitted to the electors at such
election. * * *
Section 6 of said article II reads: Provision shall be made by law for the registration of the
names of the electors within the counties of which they may be residents, and for the
ascertainment, by proper proofs, of the persons who shall be entitled to the right of suffrage,
as hereby established, to preserve the purity of elections, and to regulate the manner of
holding and making returns of the same; and the legislature shall have power to prescribe by
law any other or further rules or oaths as may be deemed necessary as a test of electoral
qualifications.
Section 3 of article XV of the state constitution provides, in part, that No person shall be
eligible to any office who is not a qualified elector under this constitution. It is provided in
sec. 4766 N. C. L. 1929 that No person who is not a qualified elector shall be eligible to any
office of honor, profit, or trust, in and under the government and laws of this state.
In State ex rel. Schur v. Payne, 57 Nev. 286, 63 P.(2d) 921, this court approved the rule
that all persons are equally eligible to office who are not excluded by some constitutional or
legal disqualification; and that the right of the people to select from citizens and qualified
electors whomsoever they please to fill an elective office is not to be circumscribed except by
legal provisions clearly limiting the right.
1. The right to hold public office is one of the valuable rights of citizenship. The exercise
of this right should not be declared prohibited or curtailed except by plain provisions of law.
Ambiguities are to be resolved in favor of eligibility to office. In Carter v. Commission on
Qualifications of J. A., 14 Cal.(2d) 179, 93 P.(2d) 140. In 46 C.J. at p. 937, sec. 32, it is said:
Statutes imposing qualifications should receive a liberal construction in favor of the right of
the people to exercise freedom of choice in the selection of officers. Furthermore,
disqualifications provided by the legislature are construed strictly and will not be
extended to cases not clearly within their scope.
disqualifications provided by the legislature are construed strictly and will not be extended to
cases not clearly within their scope. * * *
2. Respondent has not cited one case involving eligibility to office or qualifications to
hold office where it was held that registration was necessary to make the candidate or person
elected a qualified voter. On the other hand, there are at least two jurisdictions holding that in
such cases registration is not required to make one a qualified voter.
In Meffert v. Brown, 132 Ky. 201, 116 S. W. 779, 780, 1177, the question was as to the
eligibility of a city commissioner. The statute provided that: No person shall be eligible to
any office who is not at the time of his election a qualified voter of the city, and who has not
resided therein three years preceding his election. Ky. St. sec. 2746. In the court's opinion
the chief justice of the court of appeals said: The fact that Wood did not register cannot
affect the question of his eligibility to the office of commissioner of the sinking fund. The act
of registering is only one step towards voting, and it is not one of the elements that makes the
citizen a qualified voter. If at the time of his election as a commissioner of the sinking fund
Wood had been a resident of the city three years and by registering before any election during
that time would have been entitled to vote at such election, would his failure to register have
destroyed his legal status as a qualified voter? Obviously not; the only legal effect of the
failure to register would be to deprive him of a vote in the election for which the registration
was required. The term qualified voter' is defined by section 145 of the Constitution in
declaring who shall be entitled to vote. One may be a qualified voter without exercising the
right to vote. Registering does not confer the right; it is but a condition precedent to the
exercise of the right. When the defendant, Wood, was brought into the city of Louisville, he
became as fully eligible to the office he now holds as if he had resided in Louisville three
years, and in the precinct 60 days preceding his election, and had during the whole of that
time registered previous to each city, county, or state election, as required by law."
resided in Louisville three years, and in the precinct 60 days preceding his election, and had
during the whole of that time registered previous to each city, county, or state election, as
required by law.
In Trammell v. Griffin, 141 Tenn. 139, 207 S. W. 726, the eligibility of the defendant to
hold the office of mayor was challenged. The statute read: No person shall be elected Mayor
who is not at the time of his election a citizen of the State of Tennessee, and has not been for
six months, and is not thus a bona fide citizen of and voter in said city. Acts Tenn. 1903, c.
336, sec. 13. In the opinion of the court, Justice Green said in part: Does the word voter,' as
used in said charter, mean a person having the qualifications entitling him to vote, or does it
mean such a person who has registered and thus lawfully evidenced his right to votein
other words, a registered voter? This is the question for determination. * * * The contention
of plaintiff in error is that registration is a condition precedent to voting in those parts of the
state to which our registration laws apply, and that an elector cannot be described as a
qualified voter unless he is registered. * * * This court has repeatedly held that our
registration laws did not impose an additional qualification on the right of suffrage. The court
has quoted and approved a statement from Cooley on Constitutional Limitations, page 601,
that: The provision for a registry deprives no one of his right, but is only a reasonable
regulation under which the right may be exercised.' Moore v. Sharp, 98 Tenn. 491, 499, 41 S.
W. 587, 589. In a later case, the court said: The registration laws of the state do not prescribe
qualifications of electors, but were enacted for the purpose of regulating the exercise of the
elective franchise, and are authorized by the concluding clause of section 1, art. 4, of the
Constitution, ordaining that the General Assembly shall have power to enact laws to secure
the freedom of elections and the purity of the ballot box.' State v. Weaver, 122 Tenn. 198,
122 S. W. 465.
465. In Ruling Case Law it is said that: The theory upon which registration laws may be
supported is that they do not impair or abridge the elector's privilege, but merely regulate its
exercise by requiring evidence of the right. * * * The requirement of registration does not add
new qualifications, unless such voter is deprived of the right to prove himself to be an elector,
or, as it has been held, is denied the right to register and vote at any time prior to the closing
of the polls on election day.' 9. R. C. L., p. 1036. So it is obvious, from the authorities quoted,
that we cannot properly speak of registration as a qualification for voting in state and county
elections. One qualified to vote in those elections is likewise a qualified voter in Jellico,
provided he resides there, or owns property there. It follows that registration is not necessary
to make one a voter in said city.'
Respondent relies on the case of Caton et al. v. Frank, 56 Nev. 56, 44 P.(2d) 521, 523. In
that case a petition was filed praying for amendment of a city charter. The statute (sec. 1257
N. C. L. 1929) provided for the filing of a petition bearing the signatures of not less than
60% of the qualified voters of the city or town * * *. The petition filed recited that it was
signed by 5,834 qualified electors. For reasons set forth in the opinion, it was held that by
qualified voters, as used in said statute, was meant those who, in addition to being electors
as provided in the state constitution, had also complied with the registration laws. But it was
not held that such must be the meaning of those words in every other statutory provision. On
the contrary, it was appropriately pointed out by Judge Dysart, who wrote the opinion in that
case, that there is no uniform interpretation of the word voter. We are of the opinion, said
the court that qualified elector' and qualified voter' are not necessarily synonymous.
Whether qualified elector,' as used in the Constitution, and qualified voter,' as that term is
used in section 1257 N. C. L. 1929, are synonymous depends entirely upon the intention of
the Legislature in using the term 'qualified voter.'" So in the instant case, the meaning of
"qualified voters" depends upon the intention of the legislature in using that expression in
section 6 of the act incorporating the city of Las Vegas.
are synonymous depends entirely upon the intention of the Legislature in using the term
qualified voter.' So in the instant case, the meaning of qualified voters depends upon the
intention of the legislature in using that expression in section 6 of the act incorporating the
city of Las Vegas.
Caton et al. v. Frank, supra, was not a case involving eligibility to, or qualifications for,
office; and it is to be further observed that the statute in that case did not merely say
qualified voters, as in the case at bar, but qualified voters of the city or town.
In cases not involving eligibility or qualifications for office, the courts differ as to whether
a qualified voter must be registered in addition to being a qualified elector. In North
Carolina registration is required. Such is the case also in South Carolina and Georgia; but in
these two states their constitutions expressly require registration. McComb v. Robelen, 13
Del. Ch. 157, 116 A. 745, at page 747, latter portion first column; Shaw v. DeVane, 169 Ga.
702, 151 S. E. 347, at page 348, first column, 1, 5 from bottom. In a comparatively recent
Arizona case, not cited by respondent, the supreme court held that registration is necessary.
Lane et al. v. Henderson, 39 Ariz. 457, 7 P.(2d) 588, 589. In that case the statute read,
qualified voter of the city of Phoenix, not simply qualified voter. Whether the courts in
North Carolina and Arizona would hold registration necessary to constitute a qualified voter
in cases involving eligibility or qualification for office, we of course cannot say.
On the other hand, in addition to Kentucky and Tennessee, Delaware, Iowa and
Washington also hold registration unnecessary to constitute one a qualified voter. McComb v.
Robelen, 13 Del. Ch. 157, 116 A. 745; Piuser v. Sioux City, 220 Iowa 308, 262 N. W. 551,
100 A. L. R. 1298; Hindman v. Boyd, 42 Wash. 17, 84 P. 609.
In McComb v. Robelen, supra, the statute read, At such election every person qualified to
vote at the school election in the district shall be qualified to vote."
election in the district shall be qualified to vote. 32 Del. Laws, c. 160, sec. 54. In the
opinion, the chancellor said in part [13 Del. Ch. 157, 116 A. 746]: Solicitors for both the
complainant and defendants agree that the term qualified voters,' in the absence of a
definition thereof in the statute employing it, is to gather its meaning from article 5 of the
Constitution of the state, which deals with the subject of elections and the qualifications of
voters. * * * When we speak of the qualifications of a voter, we mean to refer to those things
which must exist as going to make of him a voter, as conferring on him the absolute right to
be placed among the class of persons which the law creates and calls voters. Registration,
however, means an entirely different thing. It rather refers to the idea of evidencing the
existence of the things which constitute a voter, a recording of the fact that the individual in
question possesses the designated qualifications of a voter. * * * Qualifications are
recognized as existing as distinct from a right to vote; that is to say, a voter must possess
certain qualifications, the possession of which entitles him to be a voter; but the existence of
these qualifications must be evidenced by registration before he is permitted to exercise his
right as a voter. * * * I hold that a qualified voter,' within the meaning of the school law
(chapter 160, volume 32, Laws of Delaware), does not mean a registered voter' under the
Constitution and laws of this state.
In Hindman v. Boyd, supra, the court said [42 Wash. 17, 84 P. 613]: Article 6, sec. 1, of
the state constitution, defines who are qualified voters as follows: All male persons of the
age of twenty-one years or over, possessing the following qualifications, shall be entitled to
vote at all elections. They shall be citizens of the United States; they shall have lived in the
state one year, and in the county ninety days, and in the city, town, ward, or precinct thirty
days immediately preceding the election at which they offer to vote; they shall be able to
read and speak the English language.' It will be seen that registration is not an element
entering into the definition of a qualified voter.
shall be able to read and speak the English language.' It will be seen that registration is not an
element entering into the definition of a qualified voter. It is held by eminent authority that
registration laws cannot be justly regarded as adding a new qualification to those prescribed
by the Constitution, but that they are merely reasonable and convenient regulations
prescribing the mode of exercising the right to vote.
In view of the fact that Caton et al. v. Frank, supra, was decided nearly four years before
the 1939 amendment to section 6 of the Las Vegas incorporating act was approved, it might
at first be thought that in making said amendment the legislature, in using the words
qualified voters, had in mind the interpretation placed upon them in said case; but it must
be remembered, as stated early in this opinion, that those words occurred in the original
section 6, passed about twenty-four years before Caton et al. v. Frank was decided.
Some support is given respondent's position by the use of the words a qualified voter
under the provisions of this act in sec. 2391 N. C. L. 1929, being section 32 of the general
registration act. And it may be further argued that if the legislature meant nothing more than
qualified electors when it used the words qualified voters in said sec. 6, they would
naturally have said qualified electors rather than qualified voters. On the other hand,
however, in support of appellant's position, we have to consider that the expression
registered elector occurs in said registration act in at least two sections, 9 and 15 (secs.
2368 and 2374 N. C. L. 1929), and has occurred in those sections from the time they were
originally enacted in 1917 (Stats. of Nevada 1917, chap. 231, at pp. 426, 429) to their last
amendment in 1935 (Stats. of Nevada 1935, chap. 50, pp. 110, 112) and that if, by the
expression qualified voters, the legislature of 1939 had intended that registration be
required, they would naturally have used the word registered, as was done, for example, by
the legislature of North Carolina when the words "qualified registered voters" were
employed.
North Carolina when the words qualified registered voters were employed. Southerland v.
Town of Goldsborough, 96 N. C. 49, I. S. E. 760, 761.
In the case at bar appellant was elected by a vote of the people. He should not be ousted,
unless clearly ineligible under some constitutional or statutory provision. In the light of the
authorities cited, we are unable to say it is clear that registration was required in order to
constitute appellant a qualified voter within the meaning of said sec. 6. As it is not questioned
that appellant was at all times a qualified elector, it becomes unnecessary to determine the
other questions presented on this appeal.
The judgment and order appealed from are reversed, and the cause remanded to the district
court for judgment in accordance with the views herein expressed.
____________
60 Nev. 172, 172 (1940) In Re Walters' Estate
In the Matter of the Estate of CAROLINE ROEBLING
WALTERS, Deceased.
ROBERT C. ROEBLING, GEORGE CUTTING, Proponents and Respondents, v. PAUL A
WALTERS, Contestant and Appellant.
No. 3305
August 15, 1940. 104 P.(2d) 968.
1. Wills.
Under the common law, a married woman could not make a will.
2. Wills.
Statute providing that a married woman might dispose of her separate estate by will without consent of
husband, and might alter or revoke a will in like manner as a person under no disability may do, is not a
statute relating to method of revocation and merely empowers married women to make wills and confers
upon them the ancillary rights of alteration or revocation; the words may alter or revoke being clearly
enabling and permissive and not destructive or restrictive. Comp. Laws, sec. 9906.
3. Wills.
Revocation of a will is an act done by a party by which he recalls his will, and to revoke a will is to
recall, cancel, or set it aside, and a revocation can only be by the grantor, licensor, or maker of an
instrument granting the right or privilege.
4. Wills.
The words may revoke, as used in statute providing that married woman may dispose of her separate
estate by will without consent of her husband and may revoke the will in like manner as a person under no
disability may do, refer only to intentional revocation by the act of the maker. Comp. Laws, sec. 9906.
5. Statutes.
Where an amendment leaves certain portions of original act unchanged, such portions are continued in
force with the same meaning and effect they had before the amendment.
6. Statutes.
Where an amendatory act provides that an existing statute shall be amended to read as recited in the
amendatory act, the portions of the existing law as are retained either literally or substantially are regarded
as a continuation of the existing law and not as a new enactment.
7. Wills.
The purpose of statute authorizing a married woman to dispose of her separate property by will without
consent of her husband was to remove the testamentary disability of married women. Comp. Laws, sec.
9906.
8. Wills.
Where death of testatrix who executed will while she was married to first husband occurred while she
was married to second husband, who was not mentioned in the will, the will was not revoked by operation
of law on ground that statute authorizing married woman to dispose of her separate estate by will without
consent of her husband and to revoke the will in like manner as a person under no disability might do
provided for revocation of will by operation of law as well as by intentional act of maker. Comp. Laws,
sec. 9906.
9. Wills.
Revocations of wills by implication are not favored.
10. Wills.
Provision of statute relating to revocation of will, that nothing in the statute should prevent revocation
implied by law from subsequent changes in condition or circumstances of testator, should be strictly
construed. Comp. Laws, sec. 9912.
11. Wills.
Provision of statute relating to revocation of will, that nothing in the statute should prevent revocation
implied by law from subsequent changes in condition or circumstances of testator,
referred to the implication in force and effect at common law.
law from subsequent changes in condition or circumstances of testator, referred to the implication in force
and effect at common law. Comp. Laws, sec. 9912.
12. Wills.
Under the common law, marriage revoked a woman's will, but by antenuptial agreement the provisions of
the will could be continued in force and effect after marriage.
13. Wills.
The effect of statute granting married woman power to hold her separate property and dispose of it by
will was to render common-law rule of revocation of a woman's will by marriage ineffective. Comp. Laws,
sec. 9912.
14. Wills.
A will made by a married woman is not revoked by subsequent marriage of the woman to another man.
15. Wills.
Where death of testatrix, who executed will while she was married to first husband, occurred when she
of law because of provisions of statute relating to revocation of wills that nothing contained in the statute
should prevent revocation implied by law from subsequent changes in condition or circumstances of
testator. Comp. Laws, sec. 9912.
16. Wills.
Where death of testatrix, who executed will when she was married to first husband occurred while she
of statute under which a man's will is revoked by marriage, on ground that the masculine terms of the
statute should be held to include the feminine. Comp. Laws, sec. 9914.
17. Statutes.
Where language of a statute is plain and unambiguous and its meaning clear and unmistakable, there is no
room for construction and the courts are not permitted to search for its meaning beyond the statute itself.
18. Wills.
The statute under which an unmarried woman's will is revoked by marriage is, under the rule of
expressio unius est exclusio alterius, inapplicable to a will of a married woman. Comp. Laws, sec. 9915.
19. Constitutional LawWills.
The classification effected by statute of wills, under which will executed by an unmarried woman would
be deemed revoked by her subsequent marriage but a will executed by a married woman would not be
deemed revoked upon her subsequent remarriage, was not unreasonable nor arbitrary, and the statute did
not violate equal protection clause of federal constitution.
constitution. Comp. Laws, sec. 9915; U. S. C. A. Const. Amend. 14.
If statutory classification is not wholly unreasonable and arbitrary so that the statute is uniform in its
operation on all members of class to which it is made applicable, no one is denied the equal protection of
the laws guaranteed by the federal Constitution. U. S. C. A. Const. Amend. 14.
21. Wills.
Statutes providing for revocation of a man's will upon marriage, and for revocation of unmarried woman's
will upon marriage, were not, upon subsequent enactment of statute giving to married women right to
execute wills, expanded so as to include married women within their intent and purposes. Comp. Laws, sec.
9906, 9914, 9915.
Whether statutory mandate concerning when marriage revokes a will and when it does not is just and
equitable is for the legislature and not the courts. Comp. Laws, secs. 9906, 9914, 9915.
Proceeding in the matter of the estate of Caroline Roebling Walters, deceased, wherein
deceased's will was offered for probate by Robert C. Roebling and another and Paul A.
Walters was contestant. From an order admitting the will to probate, the contestant appeals.
Affirmed.
Lloyd V. Smith and L. D. Summerfield, for Appellant.
Hogan & Hartson, and Brown & Belford, for Respondents.
Harlan L. Heward, for Minor and Absent Heirs.
OPINION
This is an appeal from an order of the district court admitting the will of Caroline Roebling
Walters, deceased, to probate.
The testatrix, while the wife of one Hagner, on January 27, 1938, at Washington, D. C.,
made a will providing for the said Hagner and their two minor daughters. On February 27,
1939, she made a codicil to said will revoking the bequest to her husband, Hagner. On May 8,
1939, the testatrix, then a resident of Washoe County, Nevada, obtained a decree of divorce
from Hagner. On said May 8, 1939, she married the contestant, Paul A. Walters, also a
resident of Washoe County, Nevada.
The testatrix died through accident in Washoe County, Nevada, on July 8, 1939, without
having made another will. She left her surviving husband, Walters, and two daughters the
issue of her marriage to Hagner, aged eight and two, residing with their father, Hagner, at
Washington, D. C. All the estate consists of separate property owned by the testatrix prior to
her marriage to Walters.
The question of law presented on this appeal is whether the marriage of said testatrix to
Walters and her death revoked her prior will made while she was married to Hagner and in
which appellant was not mentioned.
Appellant contends that the said will and codicil were revoked by the marriage of the
testatrix to Walters: First, under the terms and provisions of section 2 of the wills act (sec.
9906 N. C. L.; second, under the terms and provisions of section 8 (sec. 9912 N. C. L.); third,
under the doctrine that the masculine terms in the statute must be construed to include the
feminine; fourth, under what appellant claims to be a constitutional construction of the statute
as differentiated from what he claims was an unconstitutional construction placed upon it by
the trial court; fifth, under the common law as adopted in Nevada, if there is no statutory
provision applicable.
We will dispose of the contentions in the order named.
First. Was the will revoked under the terms of section 9906 N. C. L., which reads as
follows: Any married woman may dispose of all her separate estate by will, absolutely,
without the consent of her husband, either express or implied, and may alter or revoke
the same in like manner as a person under no disability may do.
married woman may dispose of all her separate estate by will, absolutely, without the consent
of her husband, either express or implied, and may alter or revoke the same in like manner as
a person under no disability may do. Her will must be attested, witnessed, and approved in
like manner as all other wills.
1. Under the common law a married woman could not make a will. In 1862 there was
enacted in this state a statute, under section 2 of which a married woman could make, alter or
revoke a will in like manner as a person under no disability might do, subject, however, to the
limitation that the making, altering or revocation must be with the formal written consent of
the husband. In 1873 said section 2 was amended to read as above set forth. It will be noted
that the limitation as to the written consent of the husband was removed; the mention of
common property was dropped, and the word might changed to may. Appellant presents
the view that the removal by the legislature of the limitation as to the making, altering or
revocation subject to the consent of the husband, by the 1873 amendment, placed married
women in the same position as married men in making, altering or revoking wills relating to
separate property, and placed wills of married women, as to revocation, in the same position
as those of men and unmarried women possessing the qualifications prescribed by section 1
of the act (sec. 9905 N. C. L.). In other words, appellant construes the words in like manner
as a person under no disability may do as evidencing the manner in which a will of a person
under no disability is to be deemed revoked by implication of law, as well as the way a person
may revoke it by a subsequent testamentary instrument or by the other affirmative methods
prescribed by statute.
2. We are unable to agree with that construction. The legislature dealt with methods of
revocation, express and implied in other sections of the wills act (sections 9912 to 9917 N. C.
L., both inclusive). Section 2 of the 1S62 act and section 9906 N. C. L., which amended it,
do not appear to us as being statutes relating to methods of revocation, but are, as is
urged by respondent in the following language, which we adopt, "statutes empowering
married women to make wills and conferring upon them the ancillary rights of alteration
or revocation.
1862 act and section 9906 N. C. L., which amended it, do not appear to us as being statutes
relating to methods of revocation, but are, as is urged by respondent in the following
language, which we adopt, statutes empowering married women to make wills and
conferring upon them the ancillary rights of alteration or revocation. The words may alter or
revoke' are clearly enabling and permissivenot destructive or restrictive. The intention
which appellant deduces from these words would have been expressed by the words shall be
deemed revoked' which were used in the other portions of the act where the legislature was
providing for revocation by operation of law. It is not reasonable to suppose that had the
legislature intended to provide for such revocation when it enacted section 9906 it would
have used terms from which that intention could be deduced only by highly doubtful
construction, when all other sections of the Act dealing with revocation are clear and
unambiguous.
3. The terms deemed revoked or revoked by implication (or operation) of law mean
something different from the term revoked.
Revocation is an act done by the party, by which he recalls his will. The statute,
therefore, with propriety says, not that marriage revokes, but that it is to be deemed, or
considered the same as, a revocation. It is not a revocation, but it has the effect of a
revocation. Lathrop v. Dunlop, 4 Hun, N. Y., 213.
To revoke is to recall, cancel, or set aside, and a revocation can only be by the grantor,
licensor, or maker of an instrument granting a right or privilege. * * * The statute declares
that a subsequent marriage shall be deemed a revocation of a will, which means that the act of
the testator in entering into the new relation shall be considered and regarded as a recalling,
canceling, or setting aside of his will. Ford v. Greenawalt, 292 Ill. 121, 126 N. E. 555, 557.
4-6. An examination of the statutes on wills discloses that the legislature used those terms
in the sense, "revoked" when referring to intentional revocation, and "revocation implied
by law" when referring to constructive revocation.
revoked when referring to intentional revocation, and revocation implied by law when
referring to constructive revocation. See sections 9912, 9913, 9914, 9915, 9916 and 9917 N.
C. L. Had the legislature intended to provide for revocation by implication in section 9906, it
would not have used the words may alter or revoke, but would have used the term deemed
revoked, as it did in other sections of the act. See In re Estate of Lewis, 39 Nev. 445, at page
455, 159 P. 961, 4 A. L. R. 241. The use of the words may * * * revoke * * * in like manner
as a person under no disability might do in the 1862 act referred only to intentional
revocation by the act of the maker; and when the words were used in the 1873 amendment
they carried the same meaning.
Where an amendment leaves certain portions of the original act unchanged, such portions
are continued in force, with the same meaning and effect they had before the amendment. So
where an amendatory act provides that an existing statute shall be amended to read as recited
in the amendatory act, such portions of the existing law as are retained, either literally or
substantially, are regarded as a continuation of the existing law, and not as a new enactment.
59 C.J. 1097.
7. The construction contended for by appellant would apply to a will executed by a
married woman the same statutory rules of implied revocation as apply to wills executed by
men and by unmarried women. To effect the revocation of a man's will by implication three
things are necessary: Marriage, failure to mention his wife in the will, and her survival of
him. Marriage alone is deemed the revocation of an unmarried woman's will. Circumstances
necessary to imply the revocation of a will executed by a person under no disability are
entirely different in the case of a man than in that of an unmarried woman, and we cannot
ascribe to the legislature an intent to leave the question of the will of a married woman in an
uncertain state, when it was definite as to others. Section 9906 was intended to remove the
testamentary disability of married women, and in that section the legislature was not
dealing with methods of revocations by operation of law.
that section the legislature was not dealing with methods of revocations by operation of law.
8. The will was not revoked under the terms of section 9906 N. C. L.
The second proposition advanced by appellant is that the will was revoked under the
provisions of section 9912 N. C. L., which reads as follows: No will in writing shall be
revoked unless by burning, tearing, canceling, or obliterating the same, with the intention of
revoking it, by the testator, or by some person in his presence, or by his direction, or by some
other will or codicil in writing, executed as prescribed by this act; but nothing contained in
this section shall prevent the revocation implied by law from subsequent changes in the
condition or circumstances of the testator.
Appellant's contention is summed up by him in the following language: If the husband or
wife share substantially in the estate through dower or curtesy or a substitute therefor,
regardless of a will made prior to marriage, then there has been no such change in conditions
or circumstances as to require revocation of the will; but if, on the other hand, there is no
statutory provision for dower or curtesy or a substitute therefor to be taken regardless of the
will, and the sustaining of such will results in the surviving spouse being precluded from the
estate and in sharing substantially therein, then there is such a change in conditions and
circumstances as to revoke the will by implication.
9, 10. In considering the provisions of section 9912 N. C. L., we must keep in mind that
revocations by implication are not favored. In re Adler's Estate, 52 Wash. 539, 100 P. 1019,
1023. And, also, that a proviso such as is found in section 9912 should be strictly construed.
59 C.J. 1089.
11-13. Our consideration of the cases cited results in the conclusion that the revocation
implied by law referred to in said section 9912 refers to the implication in force and effect at
common law. Under the common law marriage revoked a woman's will. The reasons given
for such revocation were that inasmuch as a will by its nature is ambulatory and under
the control and direction of the maker during his or her lifetime, and the marriage of a
woman placed the disposition and control of her property in the husband, by thus
surrendering the disposition and control of the property the ambulatory characteristics of
her will made before marriage were destroyed, the control thereof taken from her, and it
was thereby revoked.
given for such revocation were that inasmuch as a will by its nature is ambulatory and under
the control and direction of the maker during his or her lifetime, and the marriage of a woman
placed the disposition and control of her property in the husband, by thus surrendering the
disposition and control of the property the ambulatory characteristics of her will made before
marriage were destroyed, the control thereof taken from her, and it was thereby revoked.
However, there was one exception to this rule, to wit: That by antenuptial agreement the
provisions of the will could be given life and effectiveness and continued in force and effect
after marriage. Later, by statutory enactment in some of the states, a married woman was
given full power to hold her separate property and dispose of the same by will or otherwise.
Such power was given in this state by the provisions of section 9906 N. C. L. The effect of
the enactment of a statute granting such power to a married woman was to render the
common-law rule of revocation of a woman's will by marriage ineffective, because the reason
for the rule no longer existed. This principle is sustained by the following cases: Kelly v.
Stevenson, 85 Minn. 247, 88 N. W. 739, 56 L. R. A. 754, 89 Am. St. Rep. 545; Hastings v.
Day, 151 Iowa 39, 130 N. W. 134, 34 L. R. A. (N.S.), 1021, Ann. Cas. 1913a, 214; In re
Ward's Will, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174; in re Lyon's Will, 96 Wis. 339,
71 N. W. 362, 363, 65 Am. St. Rep. 52; Fellows v. Allen, 60 N. H. 439, 49 Am. Rep. 328;
Noyes v. Southworth, 55 Mich. 173, 20 N. W. 891, 54 Am. Rep. 359; In re Hunt's Will, 81
Me. 275, 17 A. 68; Webb v. Jones, 36 N. J. Eq. 163; Morton v. Onion, 45 Vt. 145; Roane v.
Hollingshead, 76 Md. 369, 25 A. 307, 17 L. R. A. 592, 35 Am. St. Rep. 438; Chapman v.
Dismer, 14 App. D. C. 446, 453.
14, 15. Therefore, if the revocations implied by law referred to in section 9912 N. C. L.
were the revocations known to the common law, then insofar as a woman's will is concerned,
by reason of the rule having ceased to exist, that proviso has no application. If section 9906 is
to be given any force or effect insofar as the present case is concerned, it would only be
by the application of the rule at common law relating to the revocation of a man's will.
is to be given any force or effect insofar as the present case is concerned, it would only be by
the application of the rule at common law relating to the revocation of a man's will. We have
been impressed, after a consideration of the many cases cited and read, with the fact that
much of the confusion which seems to exist in the cases results from a desire to reach a
conclusion which would square with what appealed to the courts as conforming to the justice
of the particular cases under consideration, and being confronted with the fact that no such a
thing as a married woman's will was known to the common law; that the rule that the
marriage of a single woman revoked her will no longer existed because the reason for the rule
had ceased; and having no express statutory provision, resort was had to the common-law
rule relative to a man's will. In some cases this rule relative to the revocation of a man's will
was extended to apply to a woman's will. We also find the question of curtesy and dower
given controlling effect. It is our opinion that where curtesy and dower were provided for
under the statute and a will was made which took no account of these vested rights, then the
will would be deemed revoked to the extent that it attempted to convey such rights in
contravention of the statute. That would be a perfectly logical holding. But we can see no
foundation for the extension of the rule, which is found in some of the cases and which
appellant has asserted as an established proposition of law, that in states where dower and
curtesy are not provided for and a will does not make provision for the surviving spouse, then
such will is revoked in its entirety. Again we find cases holding, in a few of the states where
husband and wife are made heir to each other, that marriage revokes a prior will. These cases
endeavor to sustain the principle adopted by an application of the common-law rules which
revoked a man's will. They are not persuasive, because we are dealing with a married
woman's will, and more particularly because of the view we take of the controlling effect of
our statute.
the view we take of the controlling effect of our statute. Many of the cases which have been
cited are of little value in assisting us in the determination of the question presented here,
because of the wide divergence of the statutory background. We are impressed with the fact
that the legislature of Nevada has expressly provided when marriage shall act as a revocation
of a willa man's will under section 9914, a woman's will under section 9915. No matter
what consideration may be given to the diversity of applications made of the common-law
rules, or the devious paths taken to reach desired results in particular cases, we must rest our
decision on the statutory law of this state. We think that the statutes are plain and direct, with
a clear and definite meaning, such meaning being that a man's will is revoked by marriage
under the terms of section 9914; that an unmarried woman's will is revoked under the terms
of section 9915; and that no provision exists in the State of Nevada for the revocation by
marriage of a will made by a woman while married.
16, 17. We have given careful attention to the contention of appellant that a will made by
a woman while married could be revoked under the terms of section 9914, on the ground that
the masculine terms should be held to include the feminine, and have read the cases cited in
support of that proposition. To our minds they are not applicable as authority here, because of
the fact that with them no such situation existed as does with us, where one section deals
specifically with the masculine and is followed by a section dealing with the feminine. There
is no more justification for saying that a will executed by a woman while married would fall
within the provisions of section 9914 than to say it would fall within the provisions of section
9915.
Where the language of a statute is plain and unambiguous, and its meaning clear and
unmistakable, there is no room for construction, and the courts are not permitted to search for
its meaning beyond the statute itself."
itself. State v. Jepsen, 46 Nev. 193, at page 196, 209 P. 501, at page 502; State v. Beemer,
51 Nev. 192, at page 199, 272 P. 656; Ex Parte Smith, 33 Nev. 466, 480, 111 P. 930.
18. The mention of an unmarried woman's will in section 9915 excludes that of a married
woman; such is the plain implication. The rule of expressio unius est exclusio alterius is
applicable. And to us it is equally plain that in adopting section 9914 the legislature was
considering men's wills, and not those of women.
To sum up, we cannot but conclude that the legislature in enacting section 9914 had in
mind only a man's will; that in enacting section 9915 it had in mind only a woman's will; and
that if the legislature had intended the marriage of a woman who, while married, had made a
will, to operate to revoke it, it would have said so. Hibberd v. Trask, 160 Ind. 498, 67 N. E.
179, 180.
19, 20. We feel that the statute on wills is constitutional, even though we hold that a will
executed by an unmarried woman is deemed revoked by her subsequent marriage, but that a
will executed by a married woman is not to be deemed so revoked. This distinction is not
unreasonable and arbitrary, and its operation is uniform as to members of the class to which it
is made applicable.
But if the classification is not wholly unreasonable and arbitrary, so that the statute is
uniform in its operation on all members of the class to which it is made applicable, no one is
denied the equal protection of the laws guaranteed by the federal constitution [Amend. 14.] 6
R. C. L., sec. 372, p. 378.
For many years the legislatures of the different states have differentiated between married
and unmarried women regarding their right to make wills. That power in Nevada has existed
at all times as to unmarried women, but was not given to married women until 1873.
The power to make wills is neither a natural nor a constitutional right; it depends upon
the statute, and may be conferred, regulated, limited or taken away in whole or in part by
legislative enactment. Alexander on Wills, sec. 21. See, also, Schouler on Wills {6th Ed.),
sec. 15; Page on Wills {2d Ed.), sec. 22.
21.
on Wills, sec. 21. See, also, Schouler on Wills (6th Ed.), sec. 15; Page on Wills (2d Ed.), sec.
22.
21. Appellant asserts that where the power to execute wills is conferred by statute upon
certain classes, and subsequent to their enactment the same power is conferred upon other
persons of the same class, then the wills of the persons to whom the power is subsequently
given are revoked in the same manner as those of the persons previously holding the right to
execute wills. The foremost case cited in support of this contention is In re Booth's Will, 40
Or. 154, 66 P. 710. This case holds that where a statute existed providing for the revocation
of an unmarried woman's will, such as section 9915 N. C. L., and subsequent to the
enactment of such a statute married women were given the right to execute wills, the statute
emancipating married women did not repeal the prior enactment relative to unmarried
women. We think it can further logically be said that while the emancipatory statute relative
to married women did not repeal the statute relative to the revocation of unmarried women's
wills, it just as certainly did not amend that statute so as to include within its provisions the
revocation of a married woman's will. We cannot subscribe to the idea that the statutes
providing for revocation of a man's will and for the revocation of an unmarried woman's will,
upon the subsequent enactment of a statute giving to married women the right to execute a
will, were expanded so as to include married women within their intent and purposes. We do
not agree that married women are in the same class.
Appellant is not without substantial authority supporting the contentions he here makes.
We have followed what we deem to be the weight of authority and which we believe more
logically squares with our statutory background.
22. If the statutes of Nevada were silent on the matter of revocation of wills by marriage,
we could find more justification for a holding that marriage revokes all prior wills, which
Schouler on Wills {6th Ed.), vol.
all prior wills, which Schouler on Wills (6th Ed.), vol. 1, p. 732 (cited by appellant), under
such circumstances, deems to be the better rule. But with us the conclusion is inescapable that
there is a plain statutory mandate in this state as to when marriage shall revoke a will, and a
plain and clear resulting implication as to when it shall not. We accept the statute as it is
written. Whether or not it is just or equitable is for the legislature.
In a summary of his brief counsel for the minor heirs has classified the cases sustaining the
conclusion we have reached in this case, and we believe it may be of assistance to repeat the
classification in this opinion.
The exact question has been adjudicated in eight decisions that we have considered. In
Van Guelpen's Estate, 87 Wash. 146, 151 P. 245, Ann. Cas. 1917c, 1037, the will of a
married woman was held revoked. In the following seven cases, with facts identical to those
in the instant case, wills executed by married women were upheld: Burton's Will, 4 Misc.
512, 25 N. Y. S. 824; Chapman v. Dismer, 14 App. D. C. 446; Comassi's Estate, 107 Cal. 1,
40 P. 15, 28 L. R. A. 414; Hibberd v. Trask, 160 Ind. 498, 67 N E. 179; Lufkin's Estate, 32
Haw. 826; McLarney's Estate, 153 N. Y. 416, 47 N. E. 817, 60 Am. St. Rep. 664; Ward's
Will, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep. 174.
Cases rendered in jurisdictions having a section comparable to section 9912 N. C. L. and
which support our conclusion, are: Kelly v. Stevenson, 85 Minn. 247, 88 N. W. 739, 56 L. R.
A. 754, 89 Am. St. Rep. 545; Re Ward's Will, 70 Wis. 251, 35 N. W. 731, 5 Am. St. Rep.
174; Re Lyon's Will, 96 Wis. 339, 71 N. W. 363, 65 Am. St. Rep. 52; Fellows v. Allen, 60 N.
H. 439, 49 Am. Rep. 328; re Hunt's Will, 81 Me. 275, 17 A. 68; Morton v. Onion, 45 Vt.
145; Noyes v. Southworth, 55 Mich. 173, 20 N. W. 891, 54 Am. Rep. 350; Re Lufkin's
Estate, 32 Haw. 826.
Cases rendered in jurisdictions having a section comparable to section 9915 N. C. L. and
which support our conclusion are: Burton's Will, 4 Misc.
conclusion are: Burton's Will, 4 Misc. 512, 25 N. Y. S. 824; Comassi's Estate, 107 Cal. 1, 40
P. 15, 28 L. R. A. 414; Hibberd v. Trask, 160 Ind. 498, 67 N. E. 179; Lufkin's Estate, 32
Haw. 826; McLarney's Estate, 153 N. Y. 416, 47 N. E. 817, 60 Am. St. Rep. 664.
At the time of the decision in Comassi's Estate, supra, California had sections similar to
sections 9914 and 9915, N. C. L., and that case sustains our conclusion.
Lufkin's Estate, 32 Haw. 826, is the most nearly in point of all cases cited, and it sustains
our conclusion.
The order of the trial court admitting the will to probate is affirmed.
October 4, 1940.
Per Curiam:
Rehearing denied.
____________
60 Nev. 187, 187 (1940) Kenney v. Hickey
JOHN H. KENNEY, Complainant, v. JOHN I.
HICKEY, Respondent.
No. 3312
August 27, 1940. 105 P.(2d) 192.
Under statute, no one but an aggrieved party may appeal. Comp. Laws, sec. 9385.57.
Mere fact that a party could properly arouse jurisdiction of court below does not establish his right to
appeal from an adverse decision. Comp. Laws, sec. 9385.57.
Appeals are purely statutory.
An aggrieved party, under statute granting to such party the right of appeal from an order or judgment,
is one whose personal right is injuriously affected by the adjudication, or where the right of property is
adversely affected or divested thereby; word aggrieved referring to a substantial grievance. Comp. Laws,
sec. 9385.57.
Complainant who brought proceeding to remove trustee of county general hospital from office, pursuant
to right given by statute, was not entitled to appeal from judgment dismissing the proceeding, since
complainant was not an aggrieved party within statute granting right of appeal. Comp. Laws, secs. 4861,
9385.57.
Proceeding by John J. Kenney to remove John I. Hickey from his office as trustee of
Washoe County General Hospital of Washoe County. From a judgment dismissing the
proceeding, the complainant appeals. On motion to dismiss the appeal. Appeal dismissed.
James T. Boyd, Geo. S. Green, Jr., and John P. Thatcher, for Appellant.
Springmeyer & Thompson, for Respondent.
OPINION
This is a motion to dismiss an appeal from a judgment dismissing the proceeding brought
by the complainant, John J. Kenney, to remove respondent from his office as Trustee of
Washoe County General Hospital of Washoe County. The grounds for the motion are as
follows:
1. That appellant is not a party aggrieved by the judgment appealed from and is not
entitled to appeal from said judgment under the laws of the State of Nevada;
2. That the judgment appealed from is final and absolute and is not subject to review by
appeal to the supreme court of the State of Nevada, the statutes of the State of Nevada not
having provided for an appeal from such a judgment by one in the position of appellant.
1, 2. As the first ground is well taken, we need not discuss or pass upon the second. No
one but an aggrieved party may appeal under our statute.
party may appeal under our statute. It does not result, as complainant contends, that because
he has been given the right by statute (sec. 4861 N. C. L.) to initiate the proceedings, his right
to appeal necessarily follows. The mere fact that a party could properly arouse the jurisdiction
of the court below does not establish his right to appeal from an adverse decision. 88 A. L. R.
1159. Section 9385.57 N. C. L. provides: 7. Any party aggrieved may appeal in any action,
case or proceeding prescribed in this act. The party appealing shall be designated as the
appellant, and the adverse party as the respondent.
3. Appeals are purely statutory. The question presented, therefore, is whether complainant
is an aggrieved party within the meaning of the quoted section.
4. By the great weight of authority, an aggrieved party under statutes granting to such the
right of appeal from an order or judgment, is one whose personal right is injuriously affected
by the adjudication, or where the right of property is adversely affected or divested thereby.
Hornbeck et al. v. Richards, 80 Mont. 27, 257 P. 1025; Appeal of Cummings, 126 Me. 111,
136 A. 662; Williams v. Rice, Sup., 201 N. Y. S. 43; Standard Oil Co. of New York v. Board
of Purification of Waters, 43 R. I. 336, 111 A. 887; Glos v. People, 259 Ill. 332, 102 N. E.
763, Ann. Cas. 1914c, 119; Ruff v. Montgomery, 83 Miss. 185, 36 So. 67; McMahan v.
Ruble, 135 Ark. 83, 204 S. W. 746; Tillinghast v. Brown University, 24 R. I. 179, 52 A. 891,
and cases cited in the opinion; McKenna v. McKenna, 29 R. I. 224, 69 A. 844, 845.
The rule generally adopted, says the court in the last cited case, quoting approvingly, in
construing statutes on this subject, is that a party is aggrieved by the judgment or decree when
it operates on his rights of property or bears directly upon his interest. 2 Cyc. 633. The word
aggrieved' refers to a substantial grievance, a denial of some personal or property right, or
the imposition upon a party of a burden or obligation."
the imposition upon a party of a burden or obligation.
This statement of the general rule was approved by the court in Kondas v. Washoe County
Bank, 50 Nev. 181, 254 P. 1080. In Esmeralda County v. Wildes, 36 Nev. 526, 137 P. 400,
the court, in construing section 5327 of the Revised Laws of Nevada, identical with section
9385.57, supra, was of the opinion that the word aggrieved in the statute refers to a
substantial grievance. The receiver was held not entitled to appeal.
5. It is plain that under the general rule of construction recognized and declared by this
court, complainant is not an aggrieved person within the meaning of the statute, and therefore
has not clothed this court with jurisdiction to review the proceedings.
His status is nothing more than a dissatisfied party. It does not appear that he might be
remotely interested as a taxpayer, if such were entitled to appeal herein, which we do not
decide.
As stated in 2 Amer. Jur. p. 943, section 152: In addition to the requirement of a
substantial interest in the subject matter of the litigation, it is essential, in order that a person
may appeal * * * that he shall be aggrieved or prejudiced by the judgment or decree. Appeals
are not allowed for the purpose of settling abstract questions, however interesting or
important to the public generally, but only to correct error injuriously affecting the appellant.
* * * Persons aggrieved, in this sense, are not those who may happen to entertain desires on
the subject.
The most that appears in this proceeding is that complainant desires to appeal. It is not
enough. While a case might arise which would impel this court to the belief that a broader
construction than that comprehended in the general rule we have stated would more nearly
reflect the intention of the legislature, the complainant is not in such a class. The appeal
should be dismissed.
It is so ordered.
____________
60 Nev. 191, 191 (1940) Cunningham v. Cunningham
SYLVIA H. CUNNINGHAM, Appellant v. FRANCIS
J. CUNNINGHAM, Respondent.
No. 3307
May 11, 1940. 102 P.(2d) 94.
On Motion For Allowances
1. Divorce.
A motion by woman granted divorce from her husband for allowances to prosecute her appeal from parts
of divorce decree concerning property awards must be denied, in absence of proof that notice of appeal was
filed and served and undertaking or statutory equivalent thereof deposited or filed in apt time, and supreme
court is without jurisdiction to order allowances until appeal is perfected. Stats. 1937, c. 32, sec. 11.
Appeal from Second Judicial District Court, Washoe County, Wm. McKnight, Judge.
Action for divorce by Francis J. Cunningham against Sylvia H. Cunningham, who filed a
cross-complaint for divorce. From parts of a divorce decree for cross-complainant concerning
property awards, she appeals. On appellant's motion for allowances to prosecute the appeal
and respondent's motion to dismiss the appeal. Motion for allowances denied without
prejudice, and ruling on motion to dismiss appeal reserved.
Leon Shore and Bert Goldwater, for Appellant.
Harlan L. Heward, for Respondent.
OPINION
Two motions are before us arising out of a divorce proceeding instituted by respondent.
Appellant cross-complained and was granted a decree of divorce on the ground of extreme
cruelty. The first motion has been made by the wife for allowances to prosecute her appeal
from specific parts of the decree concerning property awards, and the second motion has been
made by the husband to dismiss the appeal.
husband to dismiss the appeal. They were heard in that order at the same hearing.
The motion for allowances must be denied for the reason that it does not appear that an
appeal has been perfected in accordance with section 11 of chapter 32, Statutes 1937, page
56. This court is without jurisdiction to order allowances until an appeal has been perfected.
Lamb v. Lamb, 55 Nev. 437, 38 P.(2d) 659; Hannah v. Hannah, 57 Nev. 239, 62 P.(2d) 696.
There was no proof presented at the hearing of the motion for allowances, that a notice of
appeal had been filed and served in apt time and an undertaking, or its statutory equivalent,
deposited or filed in apt time.
It is ordered that the motion for allowances be and the same is hereby denied without
prejudice to appellant's filing, serving and presenting another motion therefor within a
reasonable time.
It is further ordered that a ruling on the motion to dismiss the appeal be reserved until after
the expiration of such time.
On Second Motion For Allowances and Motion To
Dismiss Appeal
August 28, 1940. 105 P.(2d) 398.
1. Divorce.
Where divorce decree granted wife a divorce and awarded to her residence property, an
automobile, and alimony, and husband did not appeal from any part of decree, wife did
not waive right of appeal from that portion of judgment awarding husband realty and a
dwelling house thereon and was not estopped from taking an appeal by voluntarily
accepting from husband alimony installments and attorney's fees and by accepting title
certificate to automobile and having it transferred to her own name and by making
improvements on residence property awarded to her.
A party may appeal from the whole or any specific part of a judgment, and, when the
appeal is from part only of the judgment, order, or decree, that part not appealed from is
not subject to review. Stats. 1935, c. 90, sec. 11.
3. Divorce.
A wife who has been awarded a divorce is entitled to such support from husband as to
the court shall appear adequate in view of financial conditions of parties.
in view of financial conditions of parties. Stats. 1939, c. 25, sec. 1.
4. Divorce.
A wife has a right to allowances from a husband to enable her to prosecute an appeal in
a divorce action.
5. Divorce.
Generally, grounds of bad faith, or lack of merit in an appeal in a divorce action, urged
against allowances sought by a wife from husband, should be considered by reviewing
court only when manifest from record.
6. Divorce.
On wife's motion for allowances to prosecute an appeal from a divorce judgment where
record was not before the court, reviewing court would not consider whether appeal was
taken in good faith with reasonable probability that it would be successful, since wife,
having perfected her appeal, was entitled to have proceedings reviewed in usual way.
7. Divorce.
The amount of allowances to be awarded to a wife to enable her to prosecute an appeal
from a divorce judgment should be commensurate with husband's ability to pay, and a
sum should be awarded that will insure to wife efficient presentation of her side of
controversy.
8. Divorce.
On wife's motion for allowances to enable her to prosecute an appeal from portion of a
divorce judgment, $150 would be granted as an attorney's fee where husband in his
affidavit stated that he had less than $100 in cash, no bank account, no stocks or bonds,
no assets upon which any money could be borrowed, and was in debt.
9. Divorce.
On wife's motion for allowances to enable her to prosecute an appeal from portion of a
divorce judgment, a sum for a filing fee would not be allowed, since only one filing fee
may be charged for filing an appeal in supreme court and supreme court would assume
that was paid when wife filed her motion for allowances.
10. Divorce.
Allowances to enable a wife to prosecute an appeal in a divorce action are based upon
need to the wife and ability of husband to furnish them, and they will be ordered only
when necessary.
11. Divorce.
On wife's motion for allowances to prosecute an appeal from portion of a divorce
judgment, husband's proposals that wife could prepare a bill of exceptions containing
substance of proceedings relating to points involved or that husband would agree to an
agreed statement of facts could not deprive wife of right to a certified transcript of
proceedings, and $150 would be awarded to wife to enable her to obtain such
transcript.
would be awarded to wife to enable her to obtain such transcript. Stats. 1937, c. 32, sec.
31.
An appellant may elect under statute whether to file bill of exceptions or transcript in
lieu thereof. Stats. 1937, c. 32, sec. 31.
Motion for allowances granted, and motion to dismiss denied.
Bert Goldwater, for Appellant.
Harlan L. Heward, for Respondent.
OPINION
The motion for allowances herein was denied without prejudice to appellant's filing,
serving and presenting another motion therefor within a reasonable time. Ruling on the
motion to dismiss the appeal was reserved until after the expiration of that time. Sylvia H.
Cunningham v. Francis J. Cunningham, 60 Nev. 191, 102 P.(2d) 94.
The motion for allowances was denied for the reason that no proof was presented at the
hearing that an appeal had been perfected. A new motion for allowances has been made by
appellant and it has been stipulated by the parties that the merits of the motion may be
considered on the same evidence adduced at the former hearing.
It appears from the affidavit of appellant that an appeal has been duly perfected. The
affidavits of the parties in support of their respective motions show that the court, in its
decree granting appellant a divorce, awarded to her certain residence property, known as the
Shekell property, located in Sparks, Nevada, found to be her separate property; a certain 1936
Chevrolet Sedan automobile, found to be community property, and alimony in the sum of
$50 per month, to continue for a period of ten months.
Sedan automobile, found to be community property, and alimony in the sum of $50 per
month, to continue for a period of ten months. Respondent was awarded certain real estate
and a dwelling house of the parties thereon, situated in Sparks, together with its contents and
furnishings, found to be community property. The decree was rendered on the 9th day of
February 1940.
1. She appeals from the two latter awards only. The motion to dismiss the appeal will now
be considered. It is made upon the ground that appellant has waived the right of appeal, and is
estopped from taking an appeal by voluntarily accepting and receiving portions of the
judgment appealed from.
From respondent's affidavit in support of his motion it appears that, pursuant to the decree,
he has paid, and appellant has voluntarily accepted, two installments of said alimony; that he
has paid, pursuant to the order of the trial court for the benefit of her attorneys, the sum of
$100, which has been voluntarily received and accepted by her and them; that immediately
after the entry of the decree, the respondent delivered to appellant the Nevada title certificate
to the said automobile, which was accepted by her; that she had the certificate of title and
automobile transferred to her own name by the motor vehicle department of the state; that she
has paid the transfer fee therefor, and has on written application signed by herself caused to
be issued a 1940 automobile license; that appellant, since the rendition of the decree, has
caused improvements to be made upon the so-called Shekell property awarded to her, and
that she has taken out a plumbing permit for plumbing improvements on said property, a
building permit authorizing remodeling work on said premises; a city electrical permit
covering said premises, which improvements, remodeling and construction work now either
completed or in the process of construction, will cost not less than $500. It appears from the
testimony at the hearing that she borrowed the sum of $219.42 on the automobile.
the automobile. It is argued that the affidavit and testimony in this respect show such an
acceptance by appellant of benefits under the decree, that a dismissal of her appeal must
follow.
2. We are not so minded and think that the motion should be denied. No sound reason or
legal impediment occurs to us why the appellant may not prosecute her appeal from the
property parts of the decree, being dissatisfied therewith. A party may appeal from the whole
or any specific part of the judgment. Stats. 1935, c. 90, sec. 11, pp. 197, 198; State v. C. P. R.
Co., 21 Nev. 172, 26 P. 225, 1109; Lake v. Lake, 17 Nev. 230, 30 P. 878; Id., 18 Nev. 361, 4
P. 711, 7 P. 74. The time for taking an appeal has expired and there is no showing before us
that respondent has appealed from any part of the decree.
A review by this court could not disturb those parts of the decree about which no
complaint is made, namely, the granting of the divorce, and the awarding to appellant the real
property mentioned. When the appeal is from part only of the judgment, order or decree, the
general rule is that the part not appealed from is not subject to review, 5 C. J. S., Appeal and
Error sec. 1472. See Meadow Valley M. Co. v. Dodds, 6 Nev. 261. Consequently, appellant
could not be estopped by the fact that she has done as she pleased with her own, as accepting
the automobile and taking the legal steps necessary to have the 1940 license therefor issued in
her name, borrowing money on it, and improving and remodeling the town property awarded
her. Respondent is not placed at any disadvantage by her action in this respect. The facts of
this case do not bring it within the rule that one cannot accept the fruits of a judgment and at
the same time prosecute an appeal from it. An appeal will lie in the situation disclosed above.
This conclusion is supported by ample authority. State v. Central Pac. R. R. Co., supra;
Higbie v. Westlake, 14 N. Y. 281; Embry v. Palmer, 107 U. S. 3, 2 S. Ct. 25, 27 L. Ed. 346;
Reynes v. Dumont, 130 U. S. 354, 9 S. Ct. 4S6, 32 L. Ed. 934; Merriam v. Victory Placer M.
Co., 37 Or.
Reynes v. Dumont, 130 U. S. 354, 9 S. Ct. 486, 32 L. Ed. 934; Merriam v. Victory Placer M.
Co., 37 Or. 321, 56 P. 75, 58 P. 37, 60 P. 997; Mellen v. Mellen, 137 N. Y. 606, 33 N. E.
545; In re Black's Estate, 39 Mont. 51, 79 P. 554; 2 Cyc. p. 654; Hodges v. Smith, 34 Tex.
Civ. App. 635, 79 S. W. 328. The principle applicable here is stated in State v. Central Pac.
R. R. Co., supra. The court said: Where a reversal upon the plaintiff's appeal would require
him to refund to the defendant money or property which he has obtained under the judgment,
there is reason for holding that the acceptance of the benefits of the judgment is a waiver of
the right to appeal. Having elected to receive the fruits of the judgment, he is estopped from
attempting to destroy the very foundation of his right to receive them. But where a reversal
would not work this result, where his right to what he has received would still remain intact,
it is difficult to conceive why he should not be allowed to take what is now, and always will
be, his, and still prosecute his claim for more.
The only parts of the decree that a reversal might affect are those parts awarding the
dwelling house, contents and furnishings to respondent, and alimony awarded to appellant.
The purpose of the appeal is to secure more as to those.
3. The right of the wife, who has been given the divorce, to such support as to the court
shall appear adequate in view of the financial conditions of the parties, cannot be questioned.
Stats. 1939, c. 25, sec. 1, pp. 18, 19; Lake v. Lake, 18 Nev. 361, 4 P. 711, 7 P. 74; Browning
v. Browning, 208 Cal. 518, 282 P. 503, 505.
The alimony allowed is not so large as to render it probable that less might be allowed on a
retrial and a refund to respondent therefore necessary. Her affidavit shows that she is entirely
dependent upon the amount allowed her for her living expenses. The appellant was at least
entitled to the amount allowed. Browning v. Browning, supra, is well in point. In that case, as
here, the wife obtained a decree of divorce {an interlocutory decree).
the wife obtained a decree of divorce (an interlocutory decree). There had been a property
settlement entered into by the parties which she assailed, but which was ratified by the trial
court. She took her appeal from all of the judgment except the portion relating to the decree
of divorce. The husband moved to dismiss on the ground that she had accepted payments
under the judgment including costs and attorney fees. It was found that she would be entitled
to the same at all events, and the motion was denied. The court said: It is only in cases where
an appellant is shown to have received and accepted advantages from a judgment to which
such appellant would not be entitled in the event of a reversal of the judgment that her
acceptance thereof has been held to operate to defeat the appeal.
The case of Moorman v. Moorman, 163 Mich. 652, 129 N. W. 13, cited by respondent is
not persuasive as to his contention. Moreover, it will be observed that the court recognized
the rule that one could accept a benefit under a judgment and at the same time appeal from it,
when his right to the benefit is absolute. Such is the case here on the alimony part of the
decree, and the other property awards from which no appeal is taken. Respondent insists that
the appeal should be dismissed for other reasons, but as none thereof was made a ground of
the motion, they will not be considered.
The motion to dismiss is denied.
4. The right of a wife to allowances from a husband to prosecute an appeal in a divorce
action, is so well established that reference to authority is unnecessary. In opposition to her
motion respondent contends that the appeal is not taken in good faith and there is no
reasonable probability that the appeal will be successful.
5, 6. In her affidavit appellant alleges that she has consulted her attorney and that he
believes she has good ground for an appeal. We find nothing in respondent's affidavit to
justify us in concluding to the contrary. Ordinarily grounds of bad faith, or lack of merit in an
appeal urged against allowances, should be considered only when perfectly manifest from
the record.
appeal urged against allowances, should be considered only when perfectly manifest from the
record. The record is not before us and one of the purposes of the motion is to obtain such a
record. We are therefore not inclined to pursue in advance a futile investigation of motives or
merits. The wife, having perfected her appeal, is entitled to have the proceedings reviewed in
this court in the usual way.
7. As the nature of the case and appellant's affidavit show a necessity for allowances, the
only question is as to the amount that should be allowed. This should be commensurate with
the ability to pay and a sum awarded that will insure to the wife efficient presentation of her
side of the controversy. Certain objections taken to the admission of testimony on the hearing
are now overruled.
8. Respondent is an attorney at law and holds the office of justice of the peace. As such
justice of the peace he receives a salary of $2,160 per year. Appellant avers that he receives
approximately the sum of $600 per annum for performing marriage ceremonies, and an
income of approximately $4,000 per annum from his private law practice. She appended to
her affidavit a list of 31 cases and matters filed by respondent in judicial districts of the state,
and alleged that he represented numerous defendants in divorce cases under powers of
attorney. She alleged that he received in 1939 a sum amounting to approximately $1,200 as
beneficiary of two life insurance policies, which insurance policies matured on the death of
the insured.
Respondent was examined as a witness at the hearing and his testimony, which was not
denied, reduced appellant's approximation of $4,000 per annum from his private law practice
by a considerable sum. We conclude that his law practice for 1939 was not lucrative. She
averred that his income from performing marriage ceremonies approximated the sum of $600
per annum. As to this respondent stated in his affidavit that the figure was grossly
inaccurate, and that as a matter of fact during the first three months of 1940 he
performed twelve marriages for which he received approximately $25 per month.
was grossly inaccurate, and that as a matter of fact during the first three months of 1940 he
performed twelve marriages for which he received approximately $25 per month. Be that as it
may, we are of the opinion that an income derived from performing marriage ceremonies is
ordinarily too inconstant to form any satisfactory basis for estimating allowances. He testified
at the hearing that he had received $1,360 as insurance money in 1940, but had applied the
major part thereof to the funeral expenses of the person whose beneficiary he was, and to the
payment of bills contracted by himself and wife. In his affidavit he stated that he had less than
$100 in cash, no bank account, no stocks or bonds, no assets upon which any money could be
borrowed, and was in debt to the extent of $1,849.63.
9, 10. In view of respondent's financial condition as above shown, the request for $1,000
as an attorney's fee will not be allowed. Instead the sum of $150 will be granted for that
purpose. The sum of $25 for filing fee cannot be allowed. Allowances are based upon the
need of the wife and the ability of the husband to furnish the same. They will be ordered only
when necessary. Only one filing fee may be charged for filing an appeal in this court and we
assume that was paid when appellant filed her motion for allowances. Hannah v. Hannah, 57
Nev. 239, 62 P.(2d) 696.
11, 12. She requests the sum of $150 to be used as payment for the transcript of the
evidence and proceedings had upon the trial. In support of the necessity for this item of
expense appellant attached to her affidavit a letter from the stenographer who took down such
evidence and proceedings in shorthand at the trial, in which letter it was estimated that an
original copy of a transcript would cost between $90 and $100, and two carbon copies would
run about $90 to $100. Respondent objects to the payment of this item. He claims it is
unnecessary in that appellant could adopt the method of preparing a bill of exceptions
containing the substance of the proceedings relating to the points involved, and thus
eliminate the expense of a transcript.
proceedings relating to the points involved, and thus eliminate the expense of a transcript. He
further suggests that he would be willing to agree to an agreed statement of facts. Neither
proposal can deprive appellant of her right of selecting the method of a certified transcript of
the proceedings as her bill of exceptions as provided in chap. 32, sec. 31, Stats. of 1937, at
page 63. An appellant's right to select either method was decided in State ex rel. Gray v.
Second Judicial Court, 51 Nev. 412, 278 P. 363, and in State ex rel. Capurro v. District Court,
54 Nev. 371, 17 P.(2d) 695.
It is ordered that respondent pay to the clerk of this court, for the use of appellant in
prosecuting her appeal, the following sums: $150 for attorney's fees, and the sum of $150 for
obtaining a transcript of the evidence and proceedings, to be used as a bill of exceptions.
September 24, 1940.
Per Curiam:
Rehearing denied.
____________
60 Nev. 202, 202 (1939) Magee, Et Al. v. Whitacre, Et Al.
HARRY H. MAGEE, Et Al., Appellant, v. WALTER WHITACRE as Treasurer and Ex
Officio Tax Receiver of Lyon County, Nevada, Respondent, and WALKER RIVER
IRRIGATION DISTRICT, a Corporation, Intervener and Respondent.
No. 3291
November 28, 1939. 96 P.(2d) 201.
On Motions To Dismiss Appeals And Motion
To Strike
The six months' period allowed by statute for the taking of an appeal from a final judgment runs from the
rendition of the trial court's decision, and not from time of filing of formal findings and formal judgment.
Comp. Laws, sec. 9385.60, subd. 1.
2. Costs.
The trial court was vested with discretion in assessment of costs in equitable action involved. Comp.
Laws, sec. 8921.
A judgment is final for purposes of appeal if it disposes of the issues presented, determines the costs,
and leaves nothing for future consideration of the court. Comp. Laws, sec. 9385.60, subd. 1.
Where trial court's decision, in action in equity rendered more than six months prior to taking of appeal,
did not determine costs which were determined at time formal final judgment was entered, appeal which
was taken within six months' period following entry of the judgment was timely. Comp. Laws, sec. 8927;
sec. 9385.60, subd. 1.
Under Nevada law where an appeal is taken from judgment and from order denying motion for new trial,
only one undertaking in the sum of $300 need be given, but the undertaking must refer to both appeals.
Where undertaking of appellants who appealed from judgment and from order denying motion for new
trial referred only to the judgment and made no reference to the appeal from the order, the appeal from the
order was dismissed.
Affidavit constituting proof of service of notice of appeal formed no part of the judgment roll and was
upon motion required to be stricken from the record on appeal. Comp. Laws, secs. 8829, 9385.88.
Affidavit for change of judge had no place in the judgment roll, and upon motion was required
to be stricken from record on appeal.
roll, and upon motion was required to be stricken from record on appeal. Comp. Laws, sec. 8829.
Appeal and notice of appeal were properly annexed to judgment roll, and motion to strike them from
record on appeal was denied. Comp. Laws, sec. 9385.88.
Motion to strike from record on appeal certain portions of the clerk's certificate insofar as it incorporated
matters not a part of the judgment roll was too general and was required to be denied, where the papers
referred to were not pointed out in the motion. Comp. Laws, sec. 8829.
Motion to make more definite and certain was not one of the papers required to be incorporated in the
judgment roll or appended thereto on appeal and was required to be stricken from the record on appeal.
Comp. Laws, secs. 8829, 9385.88.
Appeal from First Judicial District Court, Lyon County; W. D. Hatton, Presiding Judge.
Action by Harry H. Magee and others, for their own use and benefit and for the uses and
benefit of all others similarly situated, against Walter Whitacre, as Treasurer and ex officio
Tax Receiver of Lyon County, Nevada, wherein the Walker River Irrigation District
intervened. From an adverse judgment and from an order denying motion for new trial, the
plaintiffs appeal. On motions of respondent and intervener to dismiss the appeals from the
judgment and from the order and to strike certain portions of the record on appeal. Motion to
dismiss appeal from judgment denied, appeal from order denying motion for new trial
dismissed, and motion to strike certain portions of the record on appeal granted in part.
George L. Sanford, for Appellants.
W. M. Kearney, for Walker River Irrigation District, Intervener and Respondent.
OPINION
This case is before us on motions to dismiss the appeals from the judgment and from an
order denying plaintiff's motion for a new trial, and to strike certain portions of the record
on appeal.
appeals from the judgment and from an order denying plaintiff's motion for a new trial, and to
strike certain portions of the record on appeal.
The case was submitted to the trial court on briefs. Thereafter, on the 14th day of April
1938 the district court rendered a written decision, which was filed on the 16th day of April
1938. The notice of appeal from the judgment was signed September 23, 1938, and filed
September 26, 1938.
Intervening defendant and respondent moves the dismissal of the appeal from the
judgment, on the ground that it was not taken within six months after rendition of final
judgment, as required by section 9385.60, Comp. Laws, which reads, in part:
An appeal may be taken:
1. From a final judgment in an action or proceeding commenced in the court in which the
judgment is rendered, within six months after the rendition of the judgment.
1. The law of this state is settled that the six months' time mentioned in the statute runs
from the rendition of the decision of the court, not from the time of the filing of the formal
findings and formal judgment. Central Trust Co. v. Holmes Mining Co., 30 Nev. 437, 97 P.
390; Mellan v. Messenger, 48 Nev. 235, 228 P. 1095; Ex Parte Breckenridge, 34 Nev. 275,
280, 118 P. 687, Ann. Cas. 1914d, 871; Coleman v. Moore & McIntosh, 49 Nev. 139, 241 P.
217; First National Bank v. Fallon et al., 55 Nev. 102, 26 P.(2d) 232.
If the decision filed by the court on April 16, 1938, constitutes a final judgment, then the
attempted appeal taken therefrom was too late, being more than six months after its rendition.
Appellants urge that the said decision of the trial court did not constitute a final judgment,
in that it left something to be done and for the future consideration of the court in order to
fully dispose of the issues and rights of the parties. Appellants urge two propositions as not
having been disposed of; first, that the trial court in its decision failed to determine the
constitutionality of section 29 1J2 of the Nevada irrigation district act, sec.
as not having been disposed of; first, that the trial court in its decision failed to determine the
constitutionality of section 29 1/2 of the Nevada irrigation district act, sec. 8042 N. C. L.;
and, secondly, that the trial court in said decision failed to determine the costs.
As to the first proposition we cannot agree with appellant. In our opinion that question was
determined by the trial court adversely to the contention made by appellants in said court, and
said court found said section constitutional.
2, 3. As to the second proposition, the trial court did not make an order relative to the
costs until the filing of the formal findings and formal judgment, on the 26th day of
September 1938, and no mention thereof was made in the decision of April 14, 1938. This is
an action in equity, and is clearly one in which the court is vested with discretion in the
assessment of costs, under section 8927 N. C. L. The case of Perkins v. Sierra Nevada S. M.
Co., 10 Nev. 405, 410, gives the following definition of a final judgment: A judgment or
decree is final that disposes of the issues presented in the case, determines the costs, and
leaves nothing for the future consideration of the court. This definition is cited with approval
by this court in the case of Nevada First National Bank v. Lamb, 51 Nev. 162, 271 P. 691.
4. Reading the decision of the trial court in the light of the above definition, we find
missing one of the essentials, namely, it fails to determine the costs; hence to that extent it is
not final, and such determination not having been made until September 23, 1938, final
judgment was not entered until said date, and appellants had six months therefrom in which
to appeal. The appeal from the judgment was timely, and the motion to dismiss said appeal is
denied.
5. In the motion of intervening defendant and respondent to dismiss the appeal from the
order denying plaintiff's motion for a new trial, several grounds are urged. We need consider
but one, namely, that there was no undertaking given on said appeal.
was no undertaking given on said appeal. Under the law of this state where an appeal is taken
from a judgment and from an order denying a motion for a new trial, but one undertaking in
the sum of $300 need be given. However, said undertaking must refer to both appeals. The
undertaking filed herein refers to the judgment rendered September 23, 1938, and makes no
reference to the appeal from the order denying plaintiff's motion for a new trial. This exact
question has been decided many times in the State of California, and the same rule has been
established in North Dakota, Idaho, and Montana. The rule as announced in California is
stated in the case of Granger v. Robinson, 114 Cal. 631, 46 P. 604. After affirming the rule
that one undertaking may be given for both appeals, the court states: It is, however,
necessary that the undertaking shall refer to each of the appeals as distinctly as if they were
from separate orders requiring an undertaking for each. If the undertaking recites merely the
appeal from the judgment, the appeal from the order denying a new trial will be dismissed.
See, also, Berniaud v. Beecher, 74 Cal. 617, 16 P. 510; Crew v. Diller et al., 86 Cal. 554,
25 P. 66; Pacific Paving Co. v. Bolton et al., 89 Cal. 154, 26 P. 650; Dodge v. Kimple, 121
Cal. 580, 54 P. 94; Buchner v. Malloy, 152 Cal. 484, 92 P. 1029; Little v. Thatcher, 151 Cal.
558, 91 P. 321; Schurtz v. Romer, 81 Cal. 244, 22 P. 657; Hedderich v. Hedderich, 18 N. D.
488, 123 N. W. 276; Hurley v. O'Neill, 24 Mont. 293, 61 P. 658.
The supreme court of the State of Idaho, in the case of Baker v. Oregon R. & Navigation
Co., 8 Idaho 36, 66 P. 806, dismissed an appeal in which the undertaking recited both the
appeal from final judgment and the appeal from the order denying the motion for a new trial,
because the undertaking merely recited the singular in that portion of the undertaking wherein
the sureties bound themselves. The Idaho court declared such a statement to be so ambiguous
that it could not be enforced.
6. The appeal from the order denying the motion for a new trial is dismissed.
7-11. Intervening defendant and respondent moves to strike certain parts of the record for
the reason they form no part of the judgment roll. Section 8829 N. C. L. provides what shall
constitute the judgment roll in civil cases. The first instrument to which the motion is directed
is the affidavit of Homer Mooney, appearing on pages 131 and 132. This constitutes the proof
of service of the notice of appeal. Such an instrument is not made a part of the judgment roll
by section 8829, supra, nor is it required to be annexed thereto by section 9385.88 N. C. L. It
is ordered stricken. The second is the affidavit appearing on page 126, volume 1, of the
record on appeal, which is an affidavit for change of judge. This has no place in the judgment
roll, and is ordered stricken. Third, the appeal and notice of appeal, on page 130, volume 1.
These papers may properly be said to be annexed to the judgment roll, which is proper and is
authorized by section 9385.88 N. C. L. As to these, the motion is denied. Fourth, it is asked
that certain portions of the clerk's certificate, insofar as it incorporates matters not a part of
the judgment roll as defined by law, be stricken. The papers referred to are not pointed out in
the motion; it is too general, and is therefore denied. Lovelock Lands v. Lovelock L. & D.
Co., 54 Nev. 1, at page 5, 2 P.(2d) 126, 7 P.(2d) 593, 12 P.(2d) 339. The fifth ground refers
to the motion appearing on pages 4 and 5 of volume 1 of the record on appeal. This
instrument has no place in the judgment roll, nor is it required to be annexed thereto in an
appeal from the judgment. It is ordered stricken. The sixth ground refers to the motion
appearing on pages 19 to 21. This is a motion to strike, and is not one of the papers required
to be placed in the judgment roll or appended thereto, and as to it the motion is granted. The
seventh ground is addressed to the motion appearing on pages 104 to 111 of volume 1 of the
record. This is a motion to make more definite and certain, and not being one of the papers
required to be incorporated in the judgment roll or appended thereto on appeal, it is
ordered stricken.
certain, and not being one of the papers required to be incorporated in the judgment roll or
appended thereto on appeal, it is ordered stricken. Ground number eight refers to the
stipulation appearing on pages 2 and 3 of volume 1; it is ordered stricken, for the reasons
heretofore given.
Intervening defendant and respondent further asks that the bill of exceptions be stricken.
This is denied. If reasons exist why this court cannot consider the bill of exceptions on the
appeal from the judgment, respondents may present them in their briefs on said appeal.
The motion to strike the remaining portions of the file, upon the ground that there is no
valid appeal from the judgment, is denied.
On The Merits
October 23, 1940. 106 P.(2d) 751.
The supreme court will determine constitutionality of statute on those phases alone
which are properly raised by the facts presented and will not enter into a determination of
the constitutionality of a statute on a hypothetical case which might arise thereunder.
2. Statutes.
The irrigation district law of Nevada is patterned after the Wright act of California, and
the decisions of the State of California interpreting that act, which had been decided at
the time of the enactment of the Nevada irrigation district law, will be given great weight
in the determination of cases involving the Nevada irrigation district law. Comp. Laws,
sec. 8042.
3. Waters and Water Courses.
The legislature can authorize an irrigation district, which is a public corporation, to
enforce liens given to it to protect district in the collection of its taxes, assessments, tolls,
and charges. Comp. Laws, sec. 8042.
The policy of the state is to encourage formation of irrigation districts, so that arid lands
may be brought under cultivation, the welfare and comfort of its inhabitants enhanced,
and the taxable value of the state enlarged.
5. Taxation.
Under statute providing lien for irrigation district assessments and making it equal to
general tax lien, purchasers from county of lands which had been sold to county for
delinquent taxes were not entitled to take lands free of delinquent irrigation district
assessments.
county of lands which had been sold to county for delinquent taxes were not entitled to
take lands free of delinquent irrigation district assessments. Comp. Laws, secs. 6449,
6462, 8042.
6. StatutesTaxation.
The statute providing lien for irrigation district assessments and making it equal to
general tax lien does not violate constitutional provision against local and special
legislation for assessment and collection of taxes, or provisions requiring uniformity
and equality in matters of taxation. Comp. Laws, sec. 8042; Const. Nev. art. 4, secs. 20,
21; art. 10, sec. 1; U. S. C. A. Const. art. 1, sec. 10.
7. Taxation.
A tax lien has no inherent priority over other liens, but only such priority as is given by
statute.
The legislature, by enactment of statute providing lien for irrigation district assessments
and making lien equal to general tax lien, intended to protect irrigation districts in
collection of taxes, assessments, tolls, and charges and to require county to collect
irrigation district assessments in the same way school and city taxes are collected. Comp.
Laws, sec. 8042.
9. Statutes.
The Nevada irrigation district law, providing a lien for irrigation district assessments
and making lien equal to general tax lien, is an independent act complete in itself, and is
not unconstitutional on ground that it amends provisions of general revenue law, without
reference to them by title or otherwise, or without setting them out in full as amended.
Comp. Laws, sec. 8042; Const. Nev. art 4, sec. 17.
Appeal from First Judicial Court, Lyon County; W. D. Hatton, Presiding Judge.
Action by Harry H. Magee and others against Walter Whitacre, as Treasurer and ex officio
Tax Receiver of Lyon County, Nevada, for an injunction forbidding the defendant from
selling, on demand of the Walker River Irrigation District, certain parcels of land situated
therein, for delinquencies arising from assessments and charges of the district, wherein the
Walker River Irrigation District intervened. From an adverse judgment, the plaintiffs appeal.
Affirmed.
George L. Sanford, for Appellants. Richard R.
Richard R. Hanna and W. M. Kearney, for Respondents.
W. M. Kearney and Robert Taylor Adams, for Intervening Respondent.
Roy W. Stoddard, Charles M. Merrill, and A. L. Haight, Amici Curiae.
OPINION
Appellants instituted an action in the First judicial district court, in and for Lyon County,
asking an injunction forbidding defendant Lothrop, who was at the time county treasurer and
ex officio tax receiver of Lyon County, from selling, on demand of the Walker river irrigation
district, certain parcels of land situate therein, for delinquencies arising from assessments and
charges of the district, alleging that the threatened sales of said lands were without authority
of law. Defendant set up in his answer that the lands were bid in at tax sales by the county,
that the county later obtained deeds to said lands, and later resold them to appellants, but that
said lands remained charged with the lien of the unpaid irrigation district assessments, and
that a summary sale was authorized under section 29 1/2 of the Nevada irrigation district law,
as amended, in order to foreclose said lien. Walker river irrigation district intervened and
alleged that the bonds issued by the district were general obligations of the district and were a
lien on all of the lands in said district; that the lands were lawfully assessed, became
delinquent, and were subject to summary sale.
Appellants assert that section 29 1/2 of the irrigation district law, as amended, violates the
following sections of the constitution of the State of Nevada: (1) Article IV, sections 17, 20
{subdivisions 11 and 16) and 21; {2) article IX, sections 2 and 3; {3) article X, section l;
and violates section 10 of article 1 of the constitution of the United States.
IV, sections 17, 20 (subdivisions 11 and 16) and 21; (2) article IX, sections 2 and 3; (3)
article X, section l; and violates section 10 of article 1 of the constitution of the United States.
The principal objection urged against the constitutionality of said section 29 1/2 is that the
said section attempts to make the lien of an irrigation district for assessment charges equal or
superior to the lien for general state, county, city and school taxes.
The trial court found that certain of the attempted levies, as alleged in the complaint, were
not lawfully made, but did find that the district assessments against the so-called Magee
Parcel No. 3 of Harry H. Magee, and the lands of L. S. Greely, Floyd Becker and Harriet K.
Arentz, were lawfully made.
The appeal herein must be considered as from the judgment roll alone, and only those
alleged errors which appear from the face thereof will be considered. However, the main
questions raised and to be determined on this appeal sufficiently appear, namely, the
constitutionality of said section 29 1/2, as above set forth, and, further, whether or not it was
legally enacted.
The following assignments of error are presented for consideration: (1) That the court
erred in dismissing the injunction forbidding the sale of the lands of Harry H. Magee Parcel
No. 3 and the lands of plaintiffs Greely, Becker and Arentz; (2) the court erred in adjudging
and concluding as a matter of law that section 29 1/2 of the Nevada irrigation district act, as
said section was amended by Statutes of Nevada 1927, p. 309, at p. 320, and as said act
existed at the time of trial, being section 8042 N. C. L. 1929, as amended, was and is
constitutional; (3) the court erred in adjudging and concluding that the irrigation district
assessments, tolls and charges were and are on an equality with the lien for the general taxes.
1. Appellants assume to attack the Nevada irrigation district law, as amended, in all its
phases, yet they are entitled to a decision on those phases alone which are properly raised by
the facts presented in this case.
properly raised by the facts presented in this case. We are not authorized to enter into a
determination of the constitutionality of the statute on a supposed or hypothetical case which
might arise thereunder. 16 C. J. S., Constitutional Law, p. 162, sec. 76; 11 Am. Jur., p. 753,
note 18.
As has been noted the lands in question became delinquent and were sold to the county; no
redemption was made, and the title passed to the county; thereafter the county sold said lands
to appellants; the delinquent irrigation district assessments were not taken care of and remain
unpaid. Appellants contend that they are entitled to take under the deeds from the county, free
and clear of all encumbrances, pursuant to the provisions of sections 41 and 55 of the general
revenue law, Comp. Laws, secs. 6449, 6462.
2. The Nevada irrigation district law has been before this court on a number of different
occasions, the constitutionality thereof being presented for consideration in several different
aspects, but the decisions of this court have uniformly upheld the constitutionality of the act
as to the questions presented. One of the first determinations made by this court was in the
case of In re Walker Irrigation District, 44 Nev. 321, 195 P. 327. The sufficiency of the title
of the act was questioned at that time, and also the constitutionality of the provisions relative
to voting privileges. In deciding the constitutionality of the provisions of the Nevada act
relative to voting privileges, this court refused to follow the decisions of California and Idaho,
and patterned its finding after the cases of Oregon. Appellants profess to see in that decision a
disposition on the part of this court to reject the California and Idaho decisions as authority on
points other than those under consideration by the court at the time of its making the decision
above referred to. However, we cannot accept this interpretation, and if questions not decided
in the Walker River Irrigation District case, supra, are presented, and we find cases in
California or Idaho or any other state which are persuasive, we feel that we should not
hesitate to give them due consideration.
find cases in California or Idaho or any other state which are persuasive, we feel that we
should not hesitate to give them due consideration. It is conceded that the irrigation district
laws of Nevada, as well as most of the western states, is patterned after the Wright act of
California, and the decisions of the State of California interpreting that act, which had been
decided at the time of the enactment of the Nevada irrigation district law, will be given great
weight in the determination of cases involving the latter.
3. Appellants adopt two statements in the case of In re Walker River Irrigation District,
namely, that an assessment is not a tax and that an irrigation district is not a municipality, and
place much emphasis on their importance. As we gather the construction placed thereon by
appellants, their contention is that such a finding absolutely prohibits an irrigation district
assessment from being placed upon an equality with a tax as the same is known in the
strictest sense of the term. However, an assessment owes its origin to the same sources as the
taxing power, and we believe that that power is constitutionally authorized to fix the priorities
of levies and the liens that may attach, and to empower a public corporation, which an
irrigation district is conceded to be, to enforce the liens given to it.
4, 5. It is conceded that the policy of the state is to encourage the formation of irrigation
districts, so that the arid lands may be brought under cultivation, the welfare and comfort of
its inhabitants enhanced, and the taxable value of the state enlarged. It is reasonable to
suppose that in enacting legislation furthering this general policy, the legislature intended that
general taxes for state and county purposes and assessments for irrigation districts should
coexist, recognizing that the one is dependent upon the other. The argument that unless the
general taxes are made superior, counties, cities and towns will perish, finds little support
when it is understood that the lands within an irrigation district would afford little
sustenance to the inhabitants and small tax returns to the counties, cities and towns if it
were not for the benefits which the formation of an irrigation district and the resulting
opportunity to bring land under cultivation provide.
would afford little sustenance to the inhabitants and small tax returns to the counties, cities
and towns if it were not for the benefits which the formation of an irrigation district and the
resulting opportunity to bring land under cultivation provide. In furtherance of this plan, the
legislature of the State of Nevada has spoken, and assured those who have advanced the
capital to make the improvements that the land thus improved shall repay the amounts
advanced and expended, and have enacted that a lien shall subsist upon said lands to insure
the payment thereof. Such is the announced public policy. It is fair, equitable and just, and
should not be struck down by the courts unless there is a very clear and compelling reason for
so doing. Our consideration of the cases presented leads to the conclusion that the legislature
intended that the lien for irrigation district assessments and for general county taxes should be
of equal dignity and importance and should remain a lien upon the lands in the district until
paid, and thus defeat any attempt that might be made to permit taxes placed upon the lands to
become delinquent and then buy in the said lands free of the irrigation district assessments,
which course, if pursued to any considerable extent, would cause the district to become
nonexistent.
6. One important proposition advanced by appellants as indicating that section 29 1/2 not
only creates the irrigation district lien as equal to the general tax lien but that it makes it
superior, is the provision for the sale of the land at summary sale, where the same has been
bought in by the county and no future sale to an individual made, and at said summary sale
the district might purchase the same minus the lien for general county taxes. We are not
called upon to decide that matter in this case; the county sold the land and extinguished its
lien thereby. The question here is whether or not the legislature can constitutionally provide a
lien for irrigation district assessments and make it equal to the general tax lien.
the general tax lien. We hold that it can, and the following cases will so demonstrate. The
summary provision of the statute for sale is for the enforcement of that lien. The question of
whether or not the general tax lien would thereby be abolished if the land should be bought in
by the district is not involved; the county has exercised its remedy. We think that sections 41
and 55 of the general revenue law were amended by implication, by section 29 1/2 of the
irrigation district law, and that the tax deeds given by the county under said sections 41 and
55 do not convey absolute title, but that such conveyance is burdened with the irrigation
district lien unless the assessments have been paid. The following cases are authority for the
proposition that the legislature can constitutionally so provide: Howie v. Panola-Quitman
Drainage District, 168 Miss. 387, 151 So. 154; Bolton v. Terra Bella Irrigation District, 106
Cal. App. 313, 289 P. 678; La Mesa Lemon Grove and Spring Valley Irrigation District v.
Hornbeck, 216 Cal. 730, 17 P.(2d) 143; North Spokane Irrigation District v. Spokane County,
173 Wash. 281, 22 P.(2d) 990; Yakima County v. Stephens, 177 Wash. 601, 33 P.(2d) 93.
Appellants discount the value of some of these cases as authority because the word tax is
used, rather than assessment, and rely on the distinction made in the Walker river irrigation
district case. We are unable to agree that the force and effect of said cases as authority is so
destroyed.
There is no reason why assessments levied for the use and benefit of a duly organized and
lawful irrigation district should not be of equal validity and dignity with other taxes and
enforced in the same manner. Moore v. Gas Securities Co., 8 Cir., 278 F. 111.
The state may constitutionally provide that an irrigation district assessment lien shall at
least be equal to a lien for general taxes. Bolton v. Terra Bella Irrigation District, supra;
Kennewick Irrigation District v. Benton County, 179 Wash. 1, 35 P.(2d) 1109; North
Spokane Irrigation District v. Spokane County, supra; Howie v. Panola-Quitman Drainage
District, supra; Prince v. Ypsilante, 140 Okl.
Spokane Irrigation District v. Spokane County, supra; Howie v. Panola-Quitman Drainage
District, supra; Prince v. Ypsilante, 140 Okl. 131, 282 P. 282; In re Gould, 110 Minn. 324,
125 N. W. 273.
7. A tax lien has no inherent priority over other liens, but only such priority as is given by
statute. 37 Cyc. 1143, 1144; Miller v. Anderson, 1 S. D. 539, 47 N. W. 957, 11 L. R. A. 317;
Bibbins v. Clark, 90 Iowa 230, 57 N. W. 884, 59 N. W. 290, 29 L. R. A. 278; Guinn v.
McReynolds, 177 Cal. 230, 170 P. 421; Bolton v. Terra Bella Irrigation District, supra.
In the absence of a specific statute, the lien for general taxes is only coequal with liens of
other governmental units; because one agency is larger or more important than another, it
does not give it priority for tax liens. 26 R. C. L. 404; Kentucky Land Investment Co. v.
Fitch, 144 Ky. 273, 137 S. W. 1040, Ann. Cas. 1913a, 672; Allison Realty Co. v. Graves
Investment Co., 115 Fla. 48, 155 So. 745; City of Tampa v. Barbee, 115 Fla. 46, 155 So. 751;
Hoffman v. Otto, 277 Mich. 437, 269 N. W. 225; Tax Securities Corporation v. Security
Investment Corporation, 115 Fla. 536, 155 So. 752.
Irrigation district assessments are equivalent to and should be treated as if they are in the
same class as tax liens, and for that reason irrigation district assessments should be on a parity
with and treated as coequal with liens for general taxes. Outlook Irrigation District v. Fels,
176 Wash. 211, 28 P.(2d) 996; Horse Heaven Irrigation District v. Jenkins, 183 Wash. 49, 48
P.(2d) 591; Bankers Farm Mortgage Co. v. Christofferson, 221 Wis. 148, 266 N. W. 220.
8. It is evident that the legislature has the undoubted power to say whether taxes shall
constitute a lien, in the first instance, and what priority it shall have, in the second instance,
and may provide that taxes shall not create a lien at all; that the legislature intended, by the
enactment of section 8042 N.C. L. 1929, that a sale by a county should not defeat a district
lien; that the legislature intended thereby to protect an irrigation district in the collection
of its taxes, assessments, tolls and charges; and that it was the intention of the
legislature that the county should collect these assessments in the same way school and
city taxes are collected.
the legislature intended thereby to protect an irrigation district in the collection of its taxes,
assessments, tolls and charges; and that it was the intention of the legislature that the county
should collect these assessments in the same way school and city taxes are collected.
Appellants strongly rely upon the case of Hanson v. Burris, 86 Utah 424, 46 P.(2d) 400.
The Utah court, in distinguishing said case from that of Moore v. Gas Securities Co., supra,
stated that it was unable to accept the reasoning there employed, because of the former
decisions and statutes of their state. We are confronted with no such obstruction in our
consideration of this and other cases, and find the reasoning in the case of Moore v. Gas
Securities Co. in conformity with the legislative policy of this state and former decisions of
this court.
9. Appellants raise the further question that section 29 1/2 of the Nevada irrigation district
law was not validly enacted, in that the provisions of the general revenue law of Nevada are
purported to be changed, without reference to them by title or otherwise, or without setting
them out in full as amended. Constitution article IV, section 17, reads as follows: Each law
enacted by the legislature shall embrace but one subject, and matters properly connected
therewith, which subject shall be briefly expressed in the title; and no law shall be revised or
amended by reference to its title only; but, in such case, the act as revised, or section as
amended, shall be re-enacted and published at length.
We do not believe the contention is good. The Nevada irrigation district law does not
purport to be an amendatory act; it is clearly an independent act, complete in itself. Such acts
are almost universally held not to violate the terms of the constitutional provisions above
quoted. State v. Cole, 38 Nev. 488, 151 P. 944.
In the case of Southern Pacific Company v. Bartine, C. C., 170 F. 725, 739, Judge
Farrington said: Hence, courts have not inclined to extend this prohibition beyond the
mischief it was designed to prevent.
beyond the mischief it was designed to prevent. Where a new act deals with the details of a
former law and is designed to correct its defects and remedy its deficiencies without changing
its general framework, then in order that the act as amended may be readily and fully
understood, and the force and effect of changes appreciated, the original act or section as
amended must be set out at length and its title referred to; but when a new act is complete in
itself, when it does not purport to be amendatory of any previous act and requires no
reference to another law to discover its scope and meaning, the mischief to be guarded against
is not present and the reason for the rule fails. In such a case, though the new law has the
effect of modifying a former law, it is not an amendatory statute within the meaning of the
Constitution, and the previous law as modified or amended need not be re-enacted or
published at length, nor is it requisite to the validity of the new law that it refer to the title of
the old law. Hence, an act of the Legislature not amendatory in character, but original in
form and complete in itself, exhibiting on its face what the law is to be, its purpose and scope,
is valid, notwithstanding it may in effect change or modify some other law on the same
subject.' * * *
Judgment affirmed.
____________
60 Nev. 219, 219 (1940) Brooks v. Dewar, Et Al.
L. R. BROOKS, Appellant, v. ARCHIE J. DEWAR,
Et Al., Respondents.
October 24, 1940. 106 P.(2d) 755.
No. 3287
1. United States.
An action to enjoin regional grazier, an officer of department of interior, from collecting grazing license
fees because of alleged invalidity of regulation adopted by the secretary of interior under which fees were
prescribed, was not a suit against the United States so as to make the United States an indispensable
party. Taylor Grazing Act, 43 U. S. C. A., secs. 315-315p.
2. Public Lands.
In action to enjoin regional grazier, an officer of the department of interior, from collecting grazing
license fees because of alleged invalidity of regulation adopted by secretary of interior under which fees
were prescribed, the secretary was not an indispensable party defendant. Taylor Grazing Act, 43 U. S. C.
A., secs. 325-315p.
3. Statutes.
Where the language of a statute is plain, judicial construction is unnecessary.
4. Statutes.
In seeking legislative intent, court must look at entire act giving effect, if possible, to all its parts and
endeavoring to harmonize them.
5. Courts.
A decision of a federal district court construing an act of Congress is entitled to great weight as
persuasive authority.
6. Public Lands.
Under the Taylor grazing act provision authorizing secretary of interior to promulgate regulations
necessary to accomplish the purposes of the act, and authorizing issuance of permits upon the payment
annually of reasonable fees in each case to be fixed or determined from time to time, secretary may adopt,
consistent with other provisions of the statute, rules governing use of the range subject to the act but cannot
promulgate a general rule for collection of fees for temporary licenses unless fees conform to the quoted
provision. Taylor Grazing Act, 43 U. S. C. A., secs. 315-315p.
7. Public Lands.
Under the Taylor grazing act provisions authorizing secretary of interior to promulgate rules necessary to
accomplish purposes of the act and to issue permits on the payment annually of reasonable fees in each
case to be fixed or determined from time to time, where majority of delegates from grazing region
approved of regulation requiring fees to be paid for temporary license, and secretary promulgated general
rules requiring payment of fees for temporary license, but did not consider the factors
present in individual districts comprising the region, rule promulgated by the
secretary was not enforceable.
requiring payment of fees for temporary license, but did not consider the factors present in individual
districts comprising the region, rule promulgated by the secretary was not enforceable. Taylor Grazing Act,
43 U. S. C. A., sec. 315-315p.
8. Evidence.
It is common knowledge among stockmen of the far western states that the base rates on grazing fees in
the national forests are not the same in every national forest either for cattle or sheep.
9. Pleading.
In action to enjoin regional grazier, an officer of the department of interior, from collecting grazing fees
because of alleged invalidity of regulation adopted by the secretary of interior under which fees were
prescribed, where defendant did not move to strike any part of the complaint as being irrelevant but elected
to stand on a demurrer which was overruled, every relevant fact alleged in the complaint was accepted as
true. Taylor Grazing Act, 43 U. S. C. A., secs. 315-315p; Comp. Laws Nev., sec. 8623.
Action for an injunction by Archie J. Dewar and others against L. R. Brooks. From a
judgment for the plaintiffs, defendant appeals. Affirmed.
Norman M. Littell, Assistant United States Attorney-General, Miles N. Pike, United States
District Attorney for Nevada, and Charles R. Denny, Vernon L. Wilkinson, and William B.
Holst, Attorneys Department of Justice, for Appellant.
Milton B. Badt (Donovan, Leisure, Newton & Lumbard, William J. Donovan, Carl E.
Newton, Hiram E. Wooster, and John Howley, of counsel), for Respondents.
OPINION
The act of Congress commonly known as the Taylor grazing act was approved June 28,
1934. C. 865, 48 Stat.
Stat. 1269. It is entitled, An Act to stop injury to the public grazing lands by preventing
overgrazing and soil deterioration, to provide for their orderly use, improvement, and
development, to stabilize the livestock industry dependent upon the public range, and for
other purposes. As amended and added to, the act will bee found in U. S. C. A., Title 43, c.
8A, secs. 315-315p.
The first sentence of section 1 provides, in part: That in order to promote the highest use
of the public lands pending its final disposal, the Secretary of the Interior is authorized, in his
discretion, by order to establish grazing districts or additions thereto and/or to modify the
boundaries thereof, not exceeding in the aggregate an area of eighty million [amended June
26, 1936, to read one hundred forty-two million] acres of vacant, unappropriated, and
unreserved lands from any part of the public domain of the United States (exclusive of
Alaska), which are not in national forests, national parks and monuments, Indian reservations,
* * * and which in his opinion are chiefly valuable for grazing and raising forage crops * *
*.
Section 2 reads: The Secretary of the Interior shall make provision for the protection,
administration, regulation, and improvement of such grazing districts as may be created under
the authority of the foregoing section, and he shall make such rules and regulations and
establish such service, enter into such cooperative agreements, and do any and all things
necessary to accomplish the purposes of this Act [chapter] and to insure the objects of such
grazing districts, namely, to regulate their occupancy and use, to preserve the land and its
resources from destruction or unnecessary injury, to provide for the orderly use,
improvement, and development of the range; and the Secretary of the Interior is authorized to
continue the study of erosion and flood control and to perform such work as may be necessary
amply to protect and rehabilitate the area subject to the provisions of this Act [chapter],
through such funds as may be made available for that purpose, and any willful violation of
the provisions of this Act [chapter] or of such rules and regulations thereunder after
actual notice thereof shall be punishable by a fine of not more than $500."
such funds as may be made available for that purpose, and any willful violation of the
provisions of this Act [chapter] or of such rules and regulations thereunder after actual notice
thereof shall be punishable by a fine of not more than $500.
Section 3: That the Secretary of the Interior is hereby authorized to issue or cause to be
issued permits to graze livestock on such grazing districts to such bona fide settlers, residents,
and other stock owners as under his rules and regulations are entitled to participate in the use
of the range, upon the payment annually of reasonable fees in each case to be fixed or
determined from time to time: Provided, That grazing permits shall be issued only to citizens
of the United States or to those who have filed the necessary declarations of intention to
become such, as required by the naturalization laws and to groups, associations, or
corporations authorized to conduct business under the laws of the State in which the grazing
district is located. Preference shall be given in the issuance of grazing permits to those within
or near a district who are landowners engaged in the livestock business, bona fide occupants
or settlers, or owners of water or water rights, as may be necessary to permit the proper use of
lands, water or water rights owned, occupied, or leased by them, except that until July 1,
1935, no preference shall be given in the issuance of such permits to any such owner,
occupant, or settler, whose rights were acquired between January 1, 1934, and December 31,
1934, both dates inclusive, except that no permittee complying with the rules and regulations
laid down by the Secretary of the Interior shall be denied the renewal of such permit, if such
denial will impair the value of the grazing unit of the permittee, when such unit is pledged as
security for any bona fide loan. Such permits shall be for a period of not more than ten years,
subject to the preference right of the permittees to renewal in the discretion of the Secretary
of the Interior, who shall specify from time to time numbers of stock and seasons of use.
numbers of stock and seasons of use. During periods of range depletion due to severe drought
or other natural causes, or in case of a general epidemic of disease, during the life of the
permit, the Secretary of the Interior is hereby authorized, in his discretion to remit, reduce,
refund in whole or in part, or authorize postponement of payment of grazing fees for such
depletion period so long as the emergency exists: Provided further, That nothing in this
chapter shall be construed or administered in any way to diminish or impair any right to the
possession and use of water for mining, agriculture, manufacturing, or other purposes which
has heretofore vested or accrued under existing law validly affecting the public lands or
which may be hereafter initiated or acquired and maintained in accordance with such law. So
far as consistent with the purposes and provisions of this chapter, grazing privileges
recognized and acknowledged shall be adequately safeguarded, but the creation of a grazing
district or the issuance of a permit pursuant to the provisions of this chapter shall not create
any right, title, interest, or estate in or to the lands.
By executive order of the president, November 26, 1934, No. 6910, the public lands of
Nevada were withdrawn from settlement, location, sale, or entry, and reserved for
classification pending the determination of the most useful purpose of such lands under said
act. Thereafter grazing districts were established in many western states, including Nevada.
Nevada grazing district No. 1, embracing Elko County and that portion of Eureka and Lander
Counties north of the Humboldt river, was established April 8, 1935, by order of the secretary
of the interior. Respondents, plaintiffs in the court below, are graziers in this district.
On May 31, 1935, the director of grazing, acting under said sec. 2, promulgated certain
rules requiring all persons grazing their livestock within grazing districts to obtain temporary
licenses. These rules did not require payment of any license fees, and there were no fees
for the year 1935.
require payment of any license fees, and there were no fees for the year 1935. Under said
rules, plaintiffs applied for and obtained temporary licenses, and these licenses were
thereafter extended.
Upon call of the secretary of the interior, a conference of delegates from each of the
grazing districts theretofore established was held at Salt Lake City January 13 and 14, 1936.
The director of grazing asked the assembled delegates to advise him whether fees should be
charged for new temporary licenses, and if so, what the amount of the fees should be. The
director suggested a uniform fee of 5 cents per month for each head of cattle and 1 cent per
month for each sheep. Many delegates, and especially those from Nevada grazing district No.
1, objected to the imposition of such fees, upon three grounds: (1) that the grazing act did not
authorize the secretary to charge any fees whatsoever for temporary licenses; (2) that, as the
conditions of various portions of the public range differed greatly from one another, all
stockmen should not be charged the same uniform fees regardless of the public range where
they grazed their livestock; and (3) that, for certain portions of the public range, especially
those situated in Nevada grazing district No. 1, such fees would be utterly unreasonable
because, under conditions then existing, the privilege of grazing livestock on such portions of
the public range was not worth the payment of such fees, and because the payment thereof
would not permit stockmen situated like the plaintiffs to sell their livestock at a profit or to
meet competitive conditions, or to obtain the credit necessary to operate their businesses. The
director of grazing, however, found that a majority of the delegates were in favor of charging
such fees. Plaintiffs' complaint alleges that the director did not attempt to determine the
reasonableness or unreasonableness of such fees as applied to particular portions of the public
range.
The director of grazing, on March 2, 1936, promulgated Rules for Administration of
Grazing Districts, which will herein be sometimes referred to as the rules of March 2,
1936.
which will herein be sometimes referred to as the rules of March 2, 1936. Among other
things, these rules provided: (a) That the division of grazing of the department of the interior
should issue to certain qualified applicants new temporary licenses to graze livestock upon
the public range within the grazing districts theretofore established until the end of the
winter grazing season of 1936-1937 or until May 1, 1937, or until the issuance of permits
within the meaning of section 3 of said act of June 28, 1934, whichever should be sooner; (b)
that a fee of 5 cents per month or fraction thereof for each head of cattle, and a fee of 1 cent
per month for each head of sheep, should be collected from each licensee grazing his
livestock on the public range within a grazing district; and (c) that, after the issuance of said
new temporary licenses, all stockmen should be prohibited from grazing livestock upon or
driving them across the public range within a grazing district without such a license.
The first two paragraphs of the rules of March 2, 1936, read as follows:
Permits within the meaning of section 3 of the act of June 28, 1934 (48 Stat. 1269, 43 U.
S. C. A., secs. 315-315p), shall be issued as soon as the necessary data are available upon
which to ascertain the proper use of the lands and water which entitle their owners, occupants
or lessees to a preferential grazing privilege.
During the intervening period, temporary licenses will be issued under authority of
section 2 of said act to provide for the existing livestock industry using the public lands in
such districts.
Owing, as plaintiffs allege, to the necessity of protecting their livestock from injury, they
applied for new temporary licenses. On or about May 1, 1936, the register of the district land
office notified plaintiffs that new temporary licenses would be granted them upon payment of
the first installments for the grazing season of 1936-1937. On May 25, 1936, defendant
Brooks notified plaintiffs and other applicants for new temporary licenses that unless they
paid the first installments of their 1936-1937 grazing fees and obtained their new
temporary licenses by June 15, 1936, they would be considered in trespass under the
provisions of said grazing act, and would be punished by a fine of not more than $500 as
provided therein.
licenses that unless they paid the first installments of their 1936-1937 grazing fees and
obtained their new temporary licenses by June 15, 1936, they would be considered in trespass
under the provisions of said grazing act, and would be punished by a fine of not more than
$500 as provided therein.
The complaint, which is lengthy, further alleges that in fixing the fees for temporary
licenses no attempt was made to ascertain the character of the public range used in any
particular case, the type of feed thereon, the distribution thereof of water available for
livestock, the economic condition of the particular stockmen dependent thereon, the
respective abilities of the stockmen dependent thereon to meet commercial competition, the
existing market prices for the various types of livestock, the distance of such range from
shipping facilities, or any other standard of reasonableness in each case.
It is further alleged that the various portions of the public range within the several grazing
districts differ so widely in quality and general characteristics that a fee which is reasonable
as to one grazing district is not reasonable as to another, and a fee which is reasonable as to
one portion of a given grazing district is not reasonable as to another portion of the same
district.
Paragraph 6 of the complaint reads as follows: In general, the public range in Nevada is
the most dependent upon appropriated water and companionate agricultural and grazing lands
of any public grazing lands in the United States. The portions of the public range on which
plaintiffs graze their livestock are wholly dependent upon appropriated water and
companionate lands for economical and beneficial use, and it is necessary to invest large
sums in improvements of headquarters units, water rights, winter feed facilities, etc., before
livestock can be raised successfully. Most of the cattle produced by plaintiffs and other
stockmen similarly situated are what is known as feeders,' that is, cattle which must be
fattened in some other section of the country before they are fit for slaughter.
which must be fattened in some other section of the country before they are fit for slaughter.
Furthermore, because of the erratic production of feed on Nevada ranges due to semi-arid
climatic conditions and the great extreme of changes in temperature and moisture, on the
average less than twenty out of every hundred head of cattle raised can be marketed as feeders
each year and the receipts from these cattle must pay for the expense of supporting the entire
one hundred head. The sheep raised by plaintiffs and others similarly situated must be ranged
on special lambing grounds in spring; must be lambed' before shearing or shorn before
lambing', depending entirely on weather conditions; must be taken to the higher mountains
for summer range; the lambs shipped to market in fall; the ewes trailed to the winter range
depending while on the trail on snow for watering, and in spring again trailed north for
shearing and lambing. Such perennial trailing to and from one winter range, and such
shearing and lambing in adverse weather conditions, often subjects the bands of sheep to
losses ranging from a small percentage to as great as seventy-five per cent. In addition to such
adverse conditions, when the steers thus raised and the lambs thus raised are ready for market,
they must be disposed of irrespective of the prices offered for same. The margin of profit, by
reason of such conditions, both as to sheep and cattle, is so small that the imposition of
additional charges of overhead or operating costs, even though appearing nominal, threaten to
destroy said industries in the said Grazing District No. 1.
It is also pointed out in the complaint that the licenses required by the rules of March 2,
1936, are temporary and revocable without any qualifications or restrictions upon such right
of revocation, whereas section 3 of the grazing act requires that permits shall be for a fixed
period; that none of the new temporary licenses carries with it any right of renewal, whereas
said section 3 provides that permittees complying with the secretary's rules and
regulations shall not be denied renewal of their permits if such denial will impair the
value of the grazing units when pledged as security for bona fide loans; and that
plaintiffs' water rights are jeopardized because the temporary licenses are revocable
without qualification or restrictions as aforesaid.
3 provides that permittees complying with the secretary's rules and regulations shall not be
denied renewal of their permits if such denial will impair the value of the grazing units when
pledged as security for bona fide loans; and that plaintiffs' water rights are jeopardized
because the temporary licenses are revocable without qualification or restrictions as aforesaid.
The district land office has refused to issue plaintiffs their new temporary licenses unless
and until the required fees be paid, and defendant has threatened to prevent plaintiffs from
grazing their livestock on those portions of the public range in Nevada grazing district No. 1
heretofore for many years used by them for that purpose, unless such fees be paid; he has
further threatened that if plaintiffs attempt to so graze their livestock without payment of the
fees, they will be subject to an action for trespass and to a fine of not more than $500 and to
the other liabilities and penalties provided in the grazing act.
Subdivision (c) of paragraph 17 of the complaint alleges that: If plaintiffs are forced to
pay the grazing fees assessed against them under said illegal and void Rules of March 2,
1936, under protest, and to rely on their ability to recover back the sums so paid from the
defendant Brooks, or from the various federal, state and local authorities who receive the
proceeds thereof, the plaintiffs will suffer great inconvenience and expense in conducting
their businesses during the coming year, and, as to some of the plaintiffs, their businesses will
be disrupted entirely, and it will be impossible for such plaintiffs to obtain the money
necessary to operate their businesses during the coming year. Each and every one of the
plaintiffs, for the purpose of meeting his overhead expenses and operating costs and expenses
in the said business of raising and selling livestock, is strictly limited to definite sources of
income. As to a large group of said plaintiffs, they are, and each of them is, financed through
borrowed money lent to them by the Regional Agricultural Credit Corporation of Salt Lake
City, Utah, the Nevada Livestock Production Credit Association, or other similar
governmental loan agencies engaged in the business of lending funds of the
Reconstruction Finance Corporation of the United States of America, by accepting the
notes of said plaintiffs in said class and rediscounting the same with the said
Reconstruction Finance Corporation, the Federal Reserve Bank, the Federal Intermediate
Credit Bank, or other government bank agencies.
of Salt Lake City, Utah, the Nevada Livestock Production Credit Association, or other similar
governmental loan agencies engaged in the business of lending funds of the Reconstruction
Finance Corporation of the United States of America, by accepting the notes of said plaintiffs
in said class and rediscounting the same with the said Reconstruction Finance Corporation,
the Federal Reserve Bank, the Federal Intermediate Credit Bank, or other government bank
agencies. Such funds, lent as aforesaid for overhead and operating costs, are limited by what
is known as a Budget Allowance' set up and fixed at the beginning of the loan term, and are
allowable and payable in fixed, agreed amounts monthly during said term, and no funds in
excess of said budget allowances are available to such plaintiffs. At the time the budgets were
fixed and allowed for all plaintiffs in said class, no attempt had been made to levy or to
collect any grazing fees as a condition precedent to the right of said plaintiffs to graze their
livestock on the public range, and, accordingly, no such item of grazing fees was or is
provided for in such budgets. Such plaintiffs in such class have no other means of income and
are therefore unable to pay said grazing fees. As to the remainder of said plaintiffs, not
financed as aforesaid through such government loan agencies, their sources of revenue for
payment of overhead and operating expenses are nevertheless limited to fixed and definite
available sums. Such sums in like manner as the available funds of those plaintiffs financed
through Government agencies as aforesaid, are definitely allocated to definite overhead or
operating expenditures, and there is no surplus or overplus after such allocation and
application. Such plaintiffs are entirely unable to pay the said grazing license fees.
It is further alleged that should defendant attempt to enforce the said rules subjecting each
of the plaintiffs to a fine and other penalties and barring them from grazing their livestock as
aforesaid, plaintiffs' livestock will die of starvation, and plaintiffs will lose the large sums of
money which they have invested in said livestock, and in agricultural and grazing lands,
improvements, water rights, dams, ditches, canals, reservoirs, dipping vats, and other
real and personal property."
of money which they have invested in said livestock, and in agricultural and grazing lands,
improvements, water rights, dams, ditches, canals, reservoirs, dipping vats, and other real and
personal property.
Defendant demurred to the complaint upon the grounds that (1) it failed to state a cause of
action, (2) the secretary of the interior is an indispensable party defendant, (3) the United
States is an indispensable party defendant since its property rights are involved, and (4) the
court was without jurisdiction because the action is in essence a suit against the United States
which has not given its consent to be sued. The demurrer was overruled, and defendant
elected not to plead further. Thereupon his default was entered, and the court adjudged that
the director of grazing and the secretary of the interior had no authority to promulgate the
rules requiring plaintiffs to pay the fees as set forth in said complaint as a prerequisite to
grazing their livestock under the temporary licenses, and enjoined defendant from barring, or
threatening to bar, plaintiffs from grazing their livestock upon the public range within Nevada
Grazing District No. 1 in default of payment of the grazing fee of 5 cents per month or
fraction thereof per head of cattle, and 1 cent per month or fraction thereof per head of sheep,
grazed upon such public range and in default of obtaining a new temporary license as
required by said rules of March 2, 1936.
1. The first point urged on this appeal is that the trial court erred in holding that the United
States was not an indispensable party defendant, and in holding that it had jurisdiction over
the action which, appellant contends, was in essence a suit against the United States without
its consent. With this contention we do not agree. United States v. Dewar et al., D. C., 18 F.
Supp. 981; Ferris v. Wilbur, 4 Cir., 27 F. (2d) 262; Philadelphia Co. v. Stimson, 223 U. S.
605, 32 S. Ct. 340, 56 L. Ed. 570; Work v. Louisiana, 269 U. S. 250, 46 S. Ct. 92, 70 L. Ed.
259.
2. Nor do we find merit in appellant's second specification of error, that the district court
erred in holding that the secretary of the interior was not an indispensable party defendant.
State of Colorado v. Toll, 268 U. S. 228, 45 S. Ct. 505, 69 L. Ed. 927; 28 Am. Jur. 453,
section, n. 12.
Appellant's third and last specification of error is that the lower court erred in holding that
the complaint stated facts sufficient to constitute a cause of action. This specification is based
upon the contention that the grazing officials had the authority, under section 2 of the grazing
act, and independent of section 3 thereof, not only to issue temporary licenses and collect
grazing fees, but also to collect the very fees prescribed by the rules, to wit, 5 cents per head
per month, or fraction thereof, for each head of cattle or horses, and 1 cent per month, or
fraction thereof, for each sheep or goat.
In support of appellant's position, it is pointed out that delegations of power such as that in
section 2 of the grazing act should be broadly construed in order to effectuate the policy and
intent of Congress, that besides the wording of the act itself, the court, in endeavoring to
ascertain the intent of Congress; should consider the history and purposes of the act; that, in
providing for the issuance of temporary licenses and collection of fees, the secretary of the
interior is not acting under section 3 of the act but under section 2 thereof, and that such
action is the only effective means of beginning to carry out the policy and intent of Congress;
that in the case of United States v. Grimaud, 220 U. S. 506, 31 S. Ct. 480, 55 L. Ed. 563,
language very similar to that of section 2 was held by the supreme court of the United States
to authorize the charging of fees for the privilege of grazing livestock in the national forests;
that it must have been apparent to Congress that before the grazing act could be administered
on a permanent basis, considerable time would elapse; that prompt action was essential in
order to protect the public domain from present evils and abuses; that it was imperative
that the temporary licenses be revocable and carry no right of renewal, because they
were to be replaced by permits under section 3, and it was impossible to foretell when
that would be; that the language of section 2 is mandatory, while that of section 3 is
discretionary; that the issuance of temporary licenses is not expressly prohibited either in
section 3 or elsewhere in the act; that the act should not be interpreted so as to tie the
hands of the secretary while the necessary data are being collected and studied to afford
a basis for the issuance of permits under section 3; that notwithstanding the secretary
was not obliged to follow the procedure set forth in section 3 for fixing the fees to be
charged for the temporary licenses, he nevertheless took great care to make sure that the
fees would be reasonable by adopting the rates voted by a majority of the hundreds of
delegates from the eleven western states at the Salt Lake conference, thus showing that
his action was not arbitrary or capricious, but rather an honest endeavor to begin to fulfill
the mandate of Congress as required by section 2 of the grazing act; that whether the
fees are reasonable or not in any given case is not to be determined by what someone
else is paying, but what is being paid in the particular case; that if any piece of land is
worth grazing on at all, it is worth a least 1 cent an acre for sheep and 5 cents an acre for
cattle; that the fees collected go right back into the ranges for their improvement and
rehabilitation and in order to get the data requisite for the issuance of permits under
section 3; that, while some grazing areas are better than others, it must be remembered
that more livestock per acre are grazing on such lands than on others where there is less
forage, and for this reason it makes no difference whether or not one licensee has better
grazing land than another, because the one having the better grazing land grazes more
livestock, so that the matter of the reasonableness of the fees equalizes itself; that it
makes no difference whether the fees are reasonable in each case or
public domain from present evils and abuses; that it was imperative that the temporary
licenses be revocable and carry no right of renewal, because they were to be replaced by
permits under section 3, and it was impossible to foretell when that would be; that the
language of section 2 is mandatory, while that of section 3 is discretionary; that the issuance
of temporary licenses is not expressly prohibited either in section 3 or elsewhere in the act;
that the act should not be interpreted so as to tie the hands of the secretary while the necessary
data are being collected and studied to afford a basis for the issuance of permits under section
3; that notwithstanding the secretary was not obliged to follow the procedure set forth in
section 3 for fixing the fees to be charged for the temporary licenses, he nevertheless took
great care to make sure that the fees would be reasonable by adopting the rates voted by a
majority of the hundreds of delegates from the eleven western states at the Salt Lake
conference, thus showing that his action was not arbitrary or capricious, but rather an honest
endeavor to begin to fulfill the mandate of Congress as required by section 2 of the grazing
act; that whether the fees are reasonable or not in any given case is not to be determined by
what someone else is paying, but what is being paid in the particular case; that if any piece of
land is worth grazing on at all, it is worth a least 1 cent an acre for sheep and 5 cents an acre
for cattle; that the fees collected go right back into the ranges for their improvement and
rehabilitation and in order to get the data requisite for the issuance of permits under section 3;
that, while some grazing areas are better than others, it must be remembered that more
livestock per acre are grazing on such lands than on others where there is less forage, and for
this reason it makes no difference whether or not one licensee has better grazing land than
another, because the one having the better grazing land grazes more livestock, so that the
matter of the reasonableness of the fees equalizes itself; that it makes no difference whether
the fees are reasonable in each case or not if they are authorized under section 2; that, in
construing the grazing act, the court should bear in mind some of the practical problems
with which the secretary was faced; that, after ascertaining which public lands out of the
total of 173,000,000 acres were "chiefly valuable for grazing and raising forage corps," he
was to set up grazing districts embracing not to exceed S0,000,000 acres; that more than
15,000 persons had been using the public range, grazing thereon more than S,000,000
livestock annually; that in order to comply with the provisions of section 3, it was
necessary to determine which of these persons had priority rights and to what extent;
that the capacity of the range in many places had been impaired, and that if these lands
were to be restored, and inauguration of protective and rehabilitation measures was
immediately necessary, and in the meantime if these ranges were not to be destroyed or
the livestock industry disrupted, some temporary modus operandi had to be devised; that
the reason of the law should prevail over its letter; that the meaning of parts of a statute
should be controlled by the general intent of the whole act; and that the
contemporaneous and considered interpretation of an act by the administrative agency
charged with its enforcement is not to be lightly disturbed by the courts.
are reasonable in each case or not if they are authorized under section 2; that, in construing
the grazing act, the court should bear in mind some of the practical problems with which the
secretary was faced; that, after ascertaining which public lands out of the total of 173,000,000
acres were chiefly valuable for grazing and raising forage corps, he was to set up grazing
districts embracing not to exceed 80,000,000 acres; that more than 15,000 persons had been
using the public range, grazing thereon more than 8,000,000 livestock annually; that in order
to comply with the provisions of section 3, it was necessary to determine which of these
persons had priority rights and to what extent; that the capacity of the range in many places
had been impaired, and that if these lands were to be restored, and inauguration of protective
and rehabilitation measures was immediately necessary, and in the meantime if these ranges
were not to be destroyed or the livestock industry disrupted, some temporary modus operandi
had to be devised; that the reason of the law should prevail over its letter; that the meaning of
parts of a statute should be controlled by the general intent of the whole act; and that the
contemporaneous and considered interpretation of an act by the administrative agency
charged with its enforcement is not to be lightly disturbed by the courts.
As a further extrinsic aid to construction, appellant urges that temporary licenses and the
grazing fees fixed by the rules of March 2, 1936, have been ratified by Congress. In the first
place, Congress, knowing that the public range was being administered by the secretary of the
interior under the temporary license system and on a fee basis, has for several years
appropriated money for range improvements on the basis of the amount of fees collected in
the several grazing districts, such fees being the only moneys collected under the authority of
the grazing act prior to 1939. Secondly, Congress, in June 1936, knowing that the division of
grazing was operating under a temporary license and fee system, widened the scope of
section 1 of the act by extending its provisions to a further 62,000,000 acres of the public
domain, and at the same time amended four other sections of the original act, but left
sections 2 and 3 unchanged, though aware of the construction which had been placed on
them by the secretary.
fee system, widened the scope of section 1 of the act by extending its provisions to a further
62,000,000 acres of the public domain, and at the same time amended four other sections of
the original act, but left sections 2 and 3 unchanged, though aware of the construction which
had been placed on them by the secretary.
Respondents, on the other hand, defending the action of the lower court in overruling
defendant's demurrer, contend that section 2 cannot be construed to confer authority to charge
fees, because section 3 confers a specific and strictly limited grant of authority so to do; that
where an act contains both general and specific provisions relating to a particular subject, the
specific provisions must govern in respect to that subject, and this is true even though the
general provisions, standing alone, might be broad enough to include the subject to which the
more particular provisions relate; that the rules of March 2, 1936, establishing uniform fees
throughout the entire public range, violate that provision of section 3 which requires that the
fees are in each case to be fixed or determined from time to time; that the licenses, being
temporary and revocable, do not provide the stockmen with the certainty of tenure intended
by section 3; that under the temporary licenses the rights of renewal conferred by the
provisions of section 3 have been ignored and destroyed; that the valuable water rights which,
under the provisions of section 3, are not to be diminished or impaired, can be destroyed at
any time under the temporary licensees; that the forest reserve act, construed by the supreme
court of the United States in the case of United States v. Grimaud, supra, conferred only a
general power to regulate, and contained no provisions like those in section 3 of the grazing
act limiting and qualifying the procedure to be followed if the secretary should choose to
license the use of the range; that if section 2 authorizes the secretary to charge the fees
prescribed by the rules of March 2, 1936, section 3 might as well never have been written;
that even if the secretary was compelled to take steps to protect the range pending the
organizing of a permanent system of administration, it cannot be said that it was
necessary for him to violate the provisions of section 3 by charging fees for grazing
privileges which do not comply with that section.
written; that even if the secretary was compelled to take steps to protect the range pending the
organizing of a permanent system of administration, it cannot be said that it was necessary for
him to violate the provisions of section 3 by charging fees for grazing privileges which do not
comply with that section.
Respondents point out that the purpose of the grazing act, as stated in the preamble, is not
only to stop injury to the public grazing lands by preventing over-grazing and soil
deterioration, and to provide for their orderly use, improvement, and development, but
also to stabilize the livestock industry dependent upon the public range. They argue that the
effect of those portions of the rules of March 2, 1936, which they claim to be invalid is rather
to make the livestock industry unstable.
Regarding the reasonableness of the fees, respondents say that the maintenance of
competitive conditions between stockmen using the semiarid lands of Nevada and the
stockmen in more fertile states requires the payment of fees commensurate with the grazing
value of the public land that is used; that over an area of 162,000,000 acres of land in eleven
states, where some of the range is meadow land or fine bunch grass, while other portions are
salt grass or alkali flats, the uniform 5-cent and 1-cent rates cannot be reasonable in each
case. Respondents further call attention to the fact that appellant, by electing not to answer
their complaint in the court below, admitted all the material facts therein alleged, including
the allegations which, as contended by respondents, show that the fees were unreasonable as
to each and all of them.
In appellant's opening brief, counsel refer to the report which Mr. Taylor made in
introducing the grazing bill in the house of representatives. 78 Cong. Rec., Part V, pp.
5370-5376. In respondent's brief, counsel quotes from the same report as follows: Returning
to the bill before us I may say this bill originally started with about a dozen lines, just
putting all this public domain under the jurisdiction of the Interior Department, to be
administered for the general welfare of the Government and for the public good.
with about a dozen lines, just putting all this public domain under the jurisdiction of the
Interior Department, to be administered for the general welfare of the Government and for the
public good. But we have been adding to it all the time until now the bill contains 10 pages,
consisting quite largely of just unnecessary regulations written into the bill. The secretary
could do practically everything that is provided for in the bill if we had simply turned it over
to him. Nearly all these things could be provided for by regulations. However, many people
are not willing to give just carte blanche provisions of that kind in the bill. They, with some
justification, feel that there are some things that they should specifically provide for or
reserve in the law itself for their guaranty. 78 Cong. Rec., Part V, p. 5372.
On the oral argument of this case it was stated by counsel for appellant that Mr. Taylor had
said it might take forty, fifty, or sixty years to put all the grazing lands under administration.
Counsel did not think this statement well founded, and stated that permits under section 3
were already being issued in Colorado and New Mexico. On the other hand, the act was
passed in June 1934, and respondents' counsel point to the fact that in Nevada grazing district
No. 1 the system of temporary licenses is still being employed after six years, and no one can
tell how long it will be until permits will be issued in that district. Respondents do not
question the right of the secretary, under section 2, to make rules and regulations as to when
stock may and may not graze on the range, where the different kinds of stock may be grazed,
and as to following proper range practices in handling the stock. They insist, however, that in
making such rules and regulations, the secretary does not have the right to ignore section 3 or
to act entirely independent of that section.
Finally, respondents controvert appellant's contention that the license fees complained of
have been ratified by congressional appropriation acts, or by Congress amendment, in 1936,
of various sections of the grazing act other than sections 2 and 3, while leaving these two
sections unchanged.
amendment, in 1936, of various sections of the grazing act other than sections 2 and 3, while
leaving these two sections unchanged.
3, 4. Where the language of a statute is plain, certain and free from ambiguity, judicial
construction is unnecessary. But the intention of Congress, as regards the charging of fees for
grazing livestock on the public range, is not clear in all respects. We have to consider, on the
one hand, the decision of the United States supreme court in the case of United States v.
Grimaud, supra, construing a provision in the national forests act, 16 U. S. C. A. secs.
473-482, 551, very similar to section 2 of the grazing act, as well as the history and purpose
of the latter act, the evils to be remedied by it, and the action of Congress in making
appropriations from year to year based on estimates of sums to be collected from the users of
the public range. On the other hand, it must be borne in mind that the national forests act
contained no such special provision relating to the payment of fees as we find in section 3 of
the grazing act. It is not for this court to say whether it would have been better had Congress
specially provided that the secretary, in the matter of charging fees, could proceed under
section 2 without regard to section 3 until such time as sufficient data could be gathered upon
which to issue permits and collect fees under the provisions of the latter section. In construing
either of these sections, we are not at liberty to disregard the provisions of the other. In
seeking the legislative intent, we must look at the whole act, giving effect, if possible, to all
its parts and endeavoring to harmonize them.
5. In a very recent decision of the United States district court for the district of Nevada it
was held that the rules on March 2, 1936, insofar as they purported to authorize the collection
of fees based on the uniform 5-cent and 1-cent rates, were void. United States v. Achabal, 34
F. Supp. 1. As the grazing act is an act of Congress, the Achabal case is entitled to great
weight as persuasive authority.
as persuasive authority. Black's Law of Judicial Precedents, sec. 113, p. 374; United States
Law Review, September, 1935, vol. LXIX, pp. 449-454; 14 Am.Jur. 339, sec. 121; 21 C. J.
S., Courts, p. 377, sec. 206. Whether the Achabel case is absolutely binding on this court
need not be determined, because the conclusion arrived at in that case is not at variance with
that to which we have come after an independent consideration of the questions presented in
the case at bar.
6. Under section 2 rules may be adopted, consistent with other provisions of the statute,
for the prevention of such evils as overgrazing, for improving range conditions, fixing range
boundaries, prescribing the areas which may or may not be grazed, who may make use of the
range, the areas which may be grazed by the different kinds of livestock, setting the opening
and closing dates of the grazing seasons for cattle and for sheep, requiring proper range
practices in handling livestock, and prescribing other regulatory measures. But the charging
of fees is not essential to regulation, and even if it be conceded that section 2 authorizes not
only the issuance of temporary licenses but also the collection of fees for grazing livestock on
the public range, a careful study of the grazing act shows, in our opinion, an intention on the
part of Congress that all fees collected must be reasonable fees in each case to be fixed or
determined from time to time. We do not feel at liberty to read into the statute a provision
that fees fixed upon any other basis may be collected for an indefinite number of years until
the desired data be collected for issuing permits and collecting fees under section 3.
7. Appellant contends that as section 3 merely authorizes the issuance of permits upon the
payment of reasonable fees in each case, it is discretionary with the secretary whether he will
proceed under that section, and that he is thus left free, on the authority of United States v.
Grimaud, supra, to charge fees under section 2, independently of the limitations in section 3.
We do not so read the statute.
not so read the statute. In our opinion, the authority to issue permits upon the payment
annually of reasonable fees in each case to be fixed or determined from time to time
excludes the right to collect grazing fees not based on a system conforming to that limitation.
8. Whatever may be said in favor of the uniform rates approved by a majority of the
delegates to the Salt Lake City conference, they do not conform to the limitations prescribed
in section 3. The idea of fees determined on the basis of uniform rates for livestock grazing
on the millions of acres of public range land scattered throughout eleven western states,
without taking into consideration the different conditions to be found in various portions of
this vast domain, cannot be reconciled with the idea of reasonable fees in each case to be
fixed or determined from time to time. It is a matter of common knowledge among the
stockmen of the far western states that the base rates on grazing fees in the national forests
are not the same in every national forest, either for cattle or sheep. The fact that more
livestock are allotted to areas producing good forage than to grazing areas of poorer quality
does not operate to equalize the matter of reasonableness of grazing fees. Other factors must
be taken into consideration, some of which have been mentioned in the complaint in this
action and in the opinion of Honorable Frank H. Norcross in the Achabal case.
9. In the lower court, defendant did not move to strike out any part of the complaint as
being irrelevant or immaterial. N. C. L. 1929, sec. 8623. Having elected to stand on his
demurrer, every relevant and material fact alleged in the complaint must be accepted as true.
As we are of the opinion that the complaint states facts sufficient to constitute a cause of
action, that the trial court had jurisdiction of the person of the defendant and of the subject
matter of the action, and that there is no defect of parties defendant, the judgment appealed
from must be affirmed.
The court does not hold, as matter of law, that section 2 of the grazing act does not
authorize the issuance of temporary licenses or the charging of grazing fees; nor do we
determine whether, under the provisions of that section, some system of temporary licenses
and payment of fees can be devised which, even if not entirely perfect, will yet be consistent
with section 3. The action of Congress in making appropriations based on estimates of fees to
be collected under the licensing system lends considerable support to the view that Congress
has ratified the issuance of temporary licenses and the charging of fees to the licensees for
grazing their livestock on the public domain; but even if this view were to be accepted,
nothing has been presented in this case which would justify us in going further and holding
that, regardless of and contrary to the provisions of section 3, the fees could legally be based
upon the uniform rate prescribed by the rules of March 2, 1936, or that any part of said rules
can be held valid if inconsistent with that section or any other provisions of the grazing act.
____________
60 Nev. 241, 241 (1940) Goldfield Consol. Mines Co. v. State
THE GOLDFIELD CONSOLIDATED MINES COMPANY, a Corporation, Et. Al.,
Appellants, v. THE STATE OF NEVADA and COUNTY OF ESMERALDA, Respondents.
No. 3304
October 28, 1940. 106 P.(2d) 613.
The Constitution providing for taxation of proceeds of mines is not self-executing. Const. art. 10, sec.
1.
2. Taxation.
Where statutes authorized the tax commission to determine the net proceeds of all operating mines and
to assess the same and authorized certain deductions, including royalties paid by lessee or sublessee, in
determining the net proceeds, royalties were not taxable against owner of mine as net proceeds. Comp.
Laws, secs. 6544, subd. 6, 6578-6591, and sec. 6580, as amended by Stats. 1937, c. 68; Const. art. 10,
sec. 1; art. 8, sec. 2.
3. Taxation.
The mere fact that there may be property escaping taxation does not authorize the tax commission to tax
that property in a manner not authorized by law. Comp. Laws, sec. 6544, subd. 6.
Appeal from Fifth Judicial District Court, Esmeralda County; W. D. Hatton, Judge.
Action by the State of Nevada and another against the Goldfield Consolidated Mines
Company and others to recover bullion taxes. From an adverse judgment and order,
defendants appeal. Reversed.
Thatcher & Woodburn and M. A. Diskin, for Appellants.
Peter Breen, District Attorney, Gray Mashburn, Attorney-General, and W. T. Mathews and
Alan Bible, Deputy Attorneys-General, for Respondents.
OPINION
Respondents recovered a judgment in the lower court for the sum of $2,936.51 alleged to
be due for bullion taxes for the year 1937.
taxes for the year 1937. The case was submitted to the court on the following agreed
statement of facts:
That on September 1, 1934, the Goldfield Consolidated Mines Company, a corporation,
executed a lease and option to One John W. Mercer, under the terms of which said Mercer
was given the possession of the mining claims named as defendants herein, with the right to
work the said claims and to purchase them during the life of the option.
That prior to January 1, 1937, said Mercer assigned said lease and option and delivered
possession of the said mining claims to the Eastern Exploration Company.
That the Eastern Exploration Company executed subleases to divers persons covering
parts of said mining claims designated as defendants, and retained for its own operation a
portion of said property.
That during all of the year 1937, the Eastern Exploration Company and its sublessees
were in complete and exclusive possession, control and operation of said premises and mined
and produced gold and other valuable minerals from said mining property.
That from and out of the gold and other minerals produced by the said Eastern
Exploration Company and its sublessees from mining operations on those mining claims
designated as defendants, during the year 1937, the sum of $85,116.12 was paid to the
Goldfield Consolidated Mines Company by the Eastern Exploration Company as royalty.
That the lease and option executed in favor of said Mercer and thereafter assigned to the
Eastern Exploration Company, contained the following clause or covenant:
(j) To pay royalties to the Company on all ores, metal and mineral products shipped by
Mercer under the terms of this agreement, in amounts according to the following schedules:
Ten per centum (10%) in the case of ore a grade of Twenty Dollars ($20.00) per ton or
less;
Fifteen per centum (15%) in the case of ore of a grade of from Twenty Dollars {$20.00)
to Forty Dollars {$40.00) per ton;
grade of from Twenty Dollars ($20.00) to Forty Dollars ($40.00) per ton;
Twenty per centum (20%) in the case of ore of a grade of from Forty Dollars ($40.00) to
Eighty Dollars ($80.00) per ton;
Thirty per centum (30%) in the case of ore of a grade from Eighty Dollars ($80.00) to
One Hundred Forty Dollars ($140.00) per ton;
Forty per centum (40%) in the case of ore of a grade of over One Hundred Forty Dollars
($140.00) per ton.
In the case of shipments of ores, the rate of royalty shall be determined from the
settlement sheet covering each shipment and distributed as provided herein. In the case of
ores treated by Mercer, the rate of royalty shall be determined by dividing the total amount of
the return from product by the tonnage of ore treated each month from which the returns are
derived.
All such royalty payments from ores from the optioned premises, except for the area
reserved in Par. I, hereof shall be applied to the next maturing installment of purchase price
herein provided.'
That for the six months' period ending June 30, 1937, the Eastern Exploration Company
filed its statement with the Nevada Tax Commission showing a gross yield from its
operations in the sum of $220,613.17 and a net proceeds of $29,723.88 for said period.
Included in the deductions of cost allowed by Sec. 6580 N. C. L., as amended Statutes of
1937, Chapter 68, Page 139, was the sum of $58,502.78 representing royalty payments made
by the Eastern Exploration Company to the Goldfield Consolidated Mines Company.
That thereafter the Nevada Tax Commission issued its certificate to the County Assessor
of Esmeralda County, determining that $29,723.88 was the net proceeds of said operation for
said six months' period, and a tax in the sum of $1,025.47 became due and was paid by the
Eastern Exploration Company.
That a similar statement was made by the Eastern Exploration Company for and on
behalf of its sublessees for the six months' period ending June 30, 1937, showing a gross
yield of $40,921.65 and after subtracting therefrom the lawful deductions, the net
proceeds of said operation was the sum of $19,973.24.
Exploration Company for and on behalf of its sublessees for the six months' period ending
June 30, 1937, showing a gross yield of $40,921.65 and after subtracting therefrom the lawful
deductions, the net proceeds of said operation was the sum of $19,973.24. Included in the
deductions made in determining the net proceeds was the sum of $11,460.89, representing
royalty payments made by the lessees to the Goldfield Consolidated Mines Company.
Thereafter the Nevada Tax Commission issued its certificate to the Assessor of
Esmeralda County determining that $19,973.24 was the net proceeds of said operation for
said period, and a tax in the sum of $689.08 became due and was paid to the County
Treasurer of Esmeralda County.
That on October 8, 1937, the Nevada Tax Commission gave written notice to defendant
that for the biannual ending June 30, 1937, it had assessed defendant for royalties received
and paid to it from the Eastern Exploration Company, in the sum of $58,502.78 and for
royalties received from the sub-lessees, in the sum of $11,460.89, or a total assessment of
$69,963.67 and that the tax due by reason thereof was the sum of $2,413.75. The action of the
Tax Commission was protested by defendant, which protest was denied and overruled.
That similar statements were filed by the Eastern Exploration Company for the period
ending December 31, 1937. The statement showing a gross yield of $144,494.67. After
deduction of costs as provided by law were made, there were no net proceeds. The Nevada
Tax Commission accepted the statement as true and made no assessment against the Eastern
Exploration Company. Included in the deductions of cost, was the sum of $15,322.43 paid to
defendant representing royalty payments made by the Eastern Exploration Company.
That the Eastern Exploration Company also submitted statements for this period on
behalf of its sublessees showing a gross yield of $2,447.74, and no net proceeds.
proceeds. Included in the costs deducted was the sum of $134.21 representing royalty
payments.
That on February 25, 1938, the Nevada Tax Commissioner gave written notice that it had
assessed the Goldfield Consolidated Mines Company, appellants herein, for the royalties
received from the Eastern Exploration Company and other lessees in the sum of $15,152.45,
and that the tax due by reason thereof was $522.76 for the six months' period ending
December 31, 1937.
It was further stipulated that the total sum of $85,116.12, representing the amount upon
which a tax of $2,936.51 is claimed to be due, and for which plaintiff recovered judgment in
the lower court, represents royalty payments paid to the appellants by the Eastern Exploration
Company, pursuant to its lease and option for operations conducted during the year, 1937.
Section 1 of article X of the constitution of the State of Nevada, as amended, provides in
part: The legislature shall provide by law for a uniform and equal rate of assessment and
taxation, and shall prescribe such regulations as shall secure a just valuation for taxation of all
property, real, personal and possessory, except mines and mining claims, when not patented,
the proceeds alone of which shall be assessed and taxed.
1. Under the decision of Wren v. Dixon, 40 Nev. 170, 161 P. 722, 167 P. 324, Ann. Cas.
1918d, 1064, the above provision of the constitution, insofar as it provides for the taxation of
the proceeds of mines, is not self-executing. Therefore it became necessary for the legislature
to enact legislation carrying the provisions of the constitution into effect. This legislation is
now found in sections 6578 to 6591, inclusive, N. C. L. 1929, and amendments thereof,
namely; amendment of section 3, subsection 10, of section 6580, Stats. 1937, c. 68, p. 139,
and the further amendment of section 3, subsection 10, of section 6580, Statutes 1939, c. 174,
p. 256.
Section 6578 N. C. L. provides: The Nevada tax commission is hereby empowered and
authorized to investigate and determine the net proceeds of all operating mines and to
assess the same as in this act provided."
investigate and determine the net proceeds of all operating mines and to assess the same as in
this act provided.
Particular attention is here called to the fact it is net proceeds which the commission is
authorized to tax.
Section 6579 requires every person, corporation or association operating any mine, etc., to
make and file with the Nevada tax commission a statement showing the gross yield and
claimed net proceeds from each mine owned, worked or operated by such person, corporation
or association.
Section 6580, as amended in 1937, provides: The Nevada tax commission shall from said
statement and from all obtainable data, evidence, and reports, compute in dollars and cents
the gross yield and net proceeds of each mine for each semiannual period. The net proceeds
shall be ascertained and determined by subtracting from the gross yield the following
deductions for costs incurred during such six-months period, and none other: * * *.
Then follows an enumeration of the authorized deductions, among which is the amount
paid by a lessee or sublessee as royalty.
2. So we see the procedure authorized by the statute to be: first, the commission to satisfy
itself as to the gross yield, either by relying on the statements submitted by the operator, or
upon independent investigation, or both. Having ascertained the gross yield, it then makes the
ten authorized deductions. The remaining amount is net proceeds. After having ascertained
the net proceeds as above set forth, the commission, under section 6581 N. C. L. is directed to
prepare a certificate of the amount of net proceeds, in triplicate, file one copy with the
secretary of the commission, one copy with the county assessor, and send the third copy to the
person, corporation or association the owner of the mine. Upon the filing of the copies, the
statute provides that the assessment shall be deemed to be made on the amount fixed by the
certificate of the Nevada tax commission.
amount fixed by the certificate of the Nevada tax commission. So, in following the sequences
set out by the statute, we find the net proceeds do not include the amount paid for royalty,
having been expressly excluded by statutory mandate.
It has been asserted in this case that the statute, in saying that the royalties paid by a lessee
or sublessee shall be and constitute a deductible operating expense of such lessee or
sublessee, and shall not be taxable against such lessee or sublessee, does not say that the
royalty shall not be taxed. It does say, without question, that it shall not be taxed as net
proceeds. The deduction of the royalty as an operating expense has the same force and effect
as is placed on the same footing in the statute as amounts expended pursuant to the nine other
items of deductible expenses authorized therein. Certainly no one will contend that after
deductions have been made under the nine other authorized expenditures before ascertaining
the net proceeds, the commission would have a right to place a tax on the money paid to the
person, persons, firms or corporations to whom such money was paid.
Net proceeds can be assessed wherever they shall accrue, be it from operations of the
original lessee or sublessees, and as many certificates issued as may be necessary on the
different operations; but, we repeat, the assessment must relate to net proceeds. Having made
one assessment against the net proceeds produced by owner, lessee, sublessee or anyone else,
there is no authority for the commission to reach out and assess property specifically excluded
in the determination of what shall constitute net proceeds, and attempt to assess the excluded
property under the guise that it should be a portion of the net proceeds. Such action would be
based solely upon the conclusion of the commission, and without statutory sanction. Such is
the force and effect of appellants' argument, as we see it, that there can be but one assessment
and the issuance of one certificate.
By one assessment is meant that when an assessment has been levied against the
predetermined net proceeds, the operation, under authority of the statute, is concluded.
3. Respondents call attention to the constitutional requirement that the entire proceeds of
the mine shall be assessed and taxed. But we do not understand them to seriously contend that
there is any legal method of assessing the gross output. The legislature has placed a limitation
on the amount of gross yield that can be taxed, and designated that amount net proceeds.
Again, respondents call attention to section 2 of article VIII of the constitution, which reads:
All real property and possessory rights to the same, as well as personal property in this state,
belonging to corporations now existing or hereafter created, shall be subject to taxation the
same as property of individuals; provided, that the property of corporations formed for
municipal, charitable, religious, or educational purposes may be exempted by law. And
assert that should the contention of appellants be upheld, then under subdivision 6 of section
6544 N.C.L., the royalties would be property escaping just taxation. Further, they call
attention to the fact that taxation is the rule and tax exemption is the exception. Our holding
is that royalties are not taxable as net proceeds. If the money paid as royalties is property
escaping taxation, it would of necessity be required to be assessed on some other theory, with
which we are not concerned here. There is a specific, definite statute exempting royalties
from being taxed as net proceeds, but in this case the tax commission assumed to tax them on
that basis. Merely because there may be property escaping taxation does not authorize the
commission to tax that property in a manner not authorized by law.
The legislature, in its enactment of 1939, seems to have recognized the fact that by its
enactment of 1937, it set out from net proceeds of mines certain amounts paid as royalties,
which had therefore been taxed as net proceeds, and that in excluding such royalties from
the net proceeds it made no provision for taxes on such royalties; and, doubtless being
desirous of again bringing the royalties under the sphere of taxable property, enacted the
amendment of 1939.
net proceeds, and that in excluding such royalties from the net proceeds it made no provision
for taxes on such royalties; and, doubtless being desirous of again bringing the royalties under
the sphere of taxable property, enacted the amendment of 1939. Such construction should be
given the legislative declaration of 1939. American Laundry Co. v. Union Trust Co., 153
Misc. 55, 274 N.Y.S. 898; Drainage District v. Hetlage, 231 Mo. App. 355, 102 S. W.(2d)
702; Felin v. Kyle, D.C., 22 F. Supp. 556; Mackay v. Commissioner, 2 Cir., 94 F.(2d) 558, at
page 561; Royal Mineral Association v. Lord, D.C., 13 F.(2d) 227.
The case of Northern Pacific Railway Co. v. Musselshell County, 74 Mont. 81, 238 P. 872,
is more nearly in point with the instant case than any other we have considered. The history of
legislation in Montana taxing net proceeds of mines is similar to that of Nevada, and the case
of Northern Pacific Railway Co. v. Musselshell County, supra, lays down the rule that net
proceeds are the property of the lessee, being represented by a sum of money in the hands of
the lessee, after deducting therefrom costs and expenses allowed by law; that there can be but
one assessment of net proceeds; and the amount reserved by the lessor as royalty is not net
proceeds of mining operations, and cannot be assessed to the lessor on the basis of net
proceeds of mines.
Respondents cite Tong v. Maher, 45 Mont. 142, 122 P. 279. This case can be distinguished
from the instant case because the royalties were paid out of the net proceeds. It is the fact that
the royalties paid in the instant case were not a part of the net proceeds that exempted them
from bullion tax payment.
Homestake Exploration Corp. v. Schoregge, 81 Mont. 604, 264 P. 388, also turned upon
the question of whether royalties paid were a part of the net proceeds.
At the time of the decision in the case of Byrne v. Fulton Oil Co., 85 Mont. 329, 278 P.
514, the Montana statute expressly provided for the taxation of royalties, presenting a
similar situation to that created by the enactment of the 1939 amendment of our statute;
hence that case is of no assistance here.
statute expressly provided for the taxation of royalties, presenting a similar situation to that
created by the enactment of the 1939 amendment of our statute; hence that case is of no
assistance here.
Judgment and order appealed from are reversed.
December 16, 1940.
Per Curiam:
Rehearing denied.
____________
60 Nev. 250, 250 (1940) Grant and McNamee v. Payne
ARCHIE C. GRANT and FRANK McNAMEE, Petitioners, v. LLOYD S. PAYNE, County
Clerk of Clark County, Nevada, Respondent.
No. 3324
November 19, 1940. 107 P.(2d) 307.
1. States.
Under constitutional provision for appointment to fill vacancy in legislative office except where general
election takes place between time of vacancy and next session of legislature, the term general election
means the next general election at which the legislative officer would ordinarily be elected, so that where
office of state senator of Clark County, filled at election in 1938 for 4-year term, was vacated by
resignation of incumbent in 1940, election for the office could not be held at the biennial general election
in 1940 but could only be held at quadrennial election in 1942. Comp. Laws, secs. 2438, 4780; Const.
art. 4, secs. 4, 12; art. 17, secs. 10, 22.
2. Elections.
The biennial general election provided by statute is generally only for purpose of electing officers who
are by law authorized to be elected at that time. Comp. Laws, sec. 2438.
3. Elections.
A general election is for purpose of selecting an officer after expiration of full term of former officer,
whereas a special election may be one to fill a vacancy on a day other than the prescribed regular
election day and before arrival of time of general election for a full term.
4. States.
Where constitutional proviso that provision for filling of vacant legislative office by appointment shall
apply only where no general election takes place between time of vacancy and next session of legislature
was construed to mean the next general election at which legislative officer involved would
ordinarily be elected, and not necessarily the next "biennial election," that a
contingency admittedly could arise by which the proviso could become effective
under such construction precluded contention that proviso would be meaningless
unless "general election" was construed to mean the next "biennial election."
general election at which legislative officer involved would ordinarily be elected, and not necessarily the
next biennial election, that a contingency admittedly could arise by which the proviso could become
effective under such construction precluded contention that proviso would be meaningless unless general
election was construed to mean the next biennial election. Const. art. 4, sec. 12.
5. States.
Under constitutional provision for filling of vacant legislative office by appointment except where
general election takes place between time of vacancy and next session of legislature, office of state
senator of Clark County, which was filled at election in 1938 for 4-year term and was vacated by
resignation of incumbent in 1940, could not be filled at biennial general election in 1940, even if term
general election were construed to mean next biennial election, where there was no constitutional or
legislative provision for election of a senator at an intervening biennial. Comp. Laws, secs. 2438, 4780;
Const. art. 4, secs. 4, 12; art. 17, sec. 10.
6. Elections.
An election is not an inherent right in the people and cannot be held in absence of legislation clearly
authorizing election.
7. States.
The constitutional provision for issuance of writs of election by governor to fill vacancies in legislative
offices was repealed by implication by constitutional amendment providing for filling of vacancies in such
offices by appointment by county commissioners except where general election takes place between time of
vacancy and next session of legislature. Comp. Laws, sec. 4797; Const. 1864, art. 4, sec. 12; Const. art.
4, sec. 12.
8. States.
The statue relating to election of county officers every two years to fill vacancies does not include state
senators, who, in a strict legal sense, are state officers, and therefore does not provide necessary
machinery to elect a state senator at next biennial election after a vacancy occurs where such biennial is not
one at which the senator would ordinarily be elected. Comp. Laws, sec. 4813, as amended by Laws 1939,
c. 112; Const. art. 4, sec. 12.
9. Evidence.
The people are presumed to know what officers are designated by law to be elected at each biennial
election, but in absence of legislation they cannot be presumed to know when an election is to be held to
fill a vacancy.
10. States.
The constitutional provision for filling vacancy in legislative office by appointment where no general
election takes place between time of vacancy and next session of legislature, even if
"general election" were construed to mean "biennial election," did not itself express
or imply a sufficient rule of legislative enforcement to provide for filling of vacancy in
office of state senator of Clark County at biennial election in 1940 where office was
for 4-year term which did not expire until 1942.
place between time of vacancy and next session of legislature, even if general election were construed to
mean biennial election, did not itself express or imply a sufficient rule of legislative enforcement to
provide for filling of vacancy in office of state senator of Clark County at biennial election in 1940 where
office was for 4-year term which did not expire until 1942. Comp. Laws, secs. 2438, 4780; Const. art. 4,
secs. 4, 12; art. 17, secs. 10, 22.
Original proceeding in mandamus by Archie C. Grant and Frank McNamee, against Lloyd
S. Payne, County Clerk of Clark County, Nevada, to compel the clerk to place petitioners'
names upon general election ballot as candidates for office of State Senator for Clark County.
Petition denied and proceeding dismissed. (Taber, C.J., dissenting.)
Frank McNamee, Jr., for Petitioners.
Attorneys-General, and Roland H. Wiley, District Attorney of Clark County, for Respondent.
OPINION
Original proceeding in mandamus to compel the county clerk of Clark County to place the
names of Archie C. Grant and Frank McNamee upon the ballot of the general election to be
held on the 5th day of November 1940 as candidates, respectively, of the democratic and
republican parties for the office of state senator of Clark County.
On the 8th day of November 1938 L.R. Arnold was duly elected to the office of state
senator of said Clark County, for the term of four years commencing on the 9th day of
November 1938. Thereafter on or about the 3d day of January 1939 he resigned from said
office and a few days later Charles Lee Horsey was duly appointed to fill the vacancy therein.
The latter qualified for and assumed the duties of said office and on the 29th day of July
1940 resigned the same.
assumed the duties of said office and on the 29th day of July 1940 resigned the same. On the
31st day of July 1940 petitioners herein, Archie C. Grant and Frank McNamee, residents and
electors of Clark County, each filed with the respondent clerk herein his declaration of
candidacy for the purpose of having his name placed upon the democratic and republican
primary election ballots for nomination, respectively, for the office of state senator of that
county, and for the unexpired term existing for that office, caused by the resignation of said
Horsey. No other person filed declarations for the office. Shortly after the primary election
the respondent notified petitioners he would not place their names on the ballot for the
coming November election.
Respondent filed an answer to the petition disclosing the foregoing facts, setting up his
defense.
The question presented for determination was whether, under the constitution and laws of
this state, an election could be held for the office of state senator of Clark County at the
November election in 1940. We concluded that such an election could not be held, and
pursuant thereto entered an order denying the petition and dismissing the proceeding, counsel
having stipulated that an order on any decision we reached could be made in advance of a
written opinion. Our reasons for the order follow.
The only provision for filling a vacancy in the office of state senator is found in art. IV,
sec. 12, of the state constitution, as amended in 1922. It reads: In case of the death or
resignation of any member of the legislature, either senator or assemblyman, the county
commissioners of the county from which such member was elected shall appoint a person of
the same political party as the party which elected such senator or assemblyman to fill such
vacancy; provided, that this section shall apply only in cases where no general election takes
place between the time of such death or resignation and the next succeeding session of the
legislature.
1. Petitioners contend that the words general election mean biennial election and by
force of the proviso and certain statutes they mentioned, they were entitled to be voted for
state senator of Clark County at the November election of this year. On the other hand the
attorney-general contends that there was no vacancy that could be legally filled at such
election; but to the contrary, that the vacancy, by reason of said constitutional provision,
could be legally filled only by appointment by the board of county commissioners of Clark
County, and that the appointee would be entitled to hold such office until the day succeeding
the general election in November 1942. The position of the attorney-general is supported by
reason and authority which persuaded us to the same conclusion. The meaning, we think,
intended by the legislature and people of the term general election in the amendment, is the
general election at which state senators are ordinarily elected. Under the constitution and
statute enacted pursuant thereto, their term of office is for four years. Art. XVII, sec. 10, State
Constitution, section 4780 N.C.L. In Clark County that term expires immediately after the
general election in 1942. Art. IV, sec. 4, Stats. 1909, sec. 12, p. 10. If our construction of the
term general election in the amendment is correct, no election can be had for state senator
in Clark County except at such quadrennial election.
2, 3. It is said that such construction would run counter to the provisions of sec. 2438
N.C.L. which declares: A general election shall be held in the several election precincts in
this state on the Tuesday next after the first Monday of November, one thousand nine
hundred and eighteen, and every two years thereafter, at which there shall be chosen all such
officers as are by law to be elected in such year, unless otherwise provided for.
There is no conflict in this. A general election is held every two years, but it is general only
for the purpose of electing officers designated by law to be elected at such biennial periods.
biennial periods. For instance, the election in 1940 was a general election as to those state
senators whose terms expired in this year. As bearing on the supposed intention of the
legislature and people in employing the term general election in art. IV, sec. 12, petitioners
refer us to art. XVII, section 22, of the constitution, providing for the filling of vacancies
occurring in state offices other than legislative offices, but there the constitution itself
declares what is meant by general election, by stating that at the next general election the
vacancy shall be filled by election for the residue of the unexpired term. No such declared
intention appears in the constitutional provision for filling vacancies occurring in legislative
offices. The term general election stands alone, and by the great weight of authority it means
an election for the purpose of selecting officers who are by law authorized to be elected at
that time. State of Nevada v. Collins, 2 Nev. 351; State ex rel. Bridges v. Jepsen, 48 Nev. 64,
227 P. 588; State ex rel. Griffin v. Superior Court, 70 Wash. 545, 127 P. 120; People v. Col,
132 Cal. 334, 64 P. 477; People v. Hardy, 8 Utah 68, 29 P. 1118; McIntyre v. Iliff, 64 Kan.
747, 68 P. 633; State v. Claussen, 216 Iowa, 1079, 250 N. W. 195; State ex rel. Evrard v.
Roach, 269 Mo. 500, 192 S. W. 745; Norton v. Letton, 271 Ky. 353, 111 S. W. (2d) 1053,
1055; 20 C.J. 56. In Norton v. Letton, supra, it was said: Elections participated in by the
people are furthermore divided into general' and special' elections. The one (general
election) is for the purpose of selecting an officer after the expiration of the full term of the
former officer,' while the other (special election) may be one to fill a vacancy on a day other
than the prescribed regular election day and before the arrival of the time of the general
election for a full term. * * *
The general rule of interpretation as to the meaning of the term general election is thus
stated in State v. Claussen, supra [216 Iowa 1079, 250 N. W. 200]: The next general election
means the next general election at which, in pursuance of law, a vacancy may legally be
filled.
filled. Under all of the authorities called to our attention dealing with the subject, it is held
that this does not necessarily mean the next ensuing general election, but the election at which
the vacancy can be legally filled. [Citing the Nevada and other authorities.]
We think State ex rel. Bridges v. Jepsen, cited in the above case, is controlling here. We
there interpreted the phrase next general election to mean the election prescribed by law for
the election of county officers. A former attorney-general who represented respondent in that
case took the same view. There is nothing in article IV, section 12, to indicate that a different
conclusion is logical and would therefore justify us in overruling State ex rel. Bridges v.
Jepsen, supra.
4. Petitioners insist that unless general election is held to mean the next biennial election,
the proviso would be meaningless. They concede, however, that a situation could come about
in which the proviso could become operative, but claim it is too remote for consideration. It is
enough that a contingency could arise by which the proviso could become effective to rescue
it from the charge of being a vain act.
5, 6. Force is given to our construction of the term general election in the amendment by
the fact that neither in the constitution or by statute is any provision made for electing a
senator at any intervening biennial. The exercise of legislative power would be essential to
give it efficiency. This consideration alone was sufficient to authorize the denial of the writ
prayed for, even if petitioners' contention, that general election means biennial election, had
been allowed, because it is well established that an election is not an inherent right in the
people and cannot be held in the absence of legislation clearly authorizing the same. Sawyer
v. Haydon, 1 Nev. 75, 79; State ex rel. Bridges v. Jepsen, 48 Nev. 64, 227 P. 588; State v.
Claussen, 216 Iowa 1079, 250 N. W. 195; State ex rel. McGee v. Gardner, 3 S. D. 553, 54 N.
W. 606; People v. Col, 132 Cal. 334, 64 P. 477; State v. Ellison, 271 Mo. 123, 196 S. W.
751; State v. Kozer, 115 Or.
Kozer, 115 Or. 638, 239 P. 805; Williams v. Glover, Tex. Civ. App., 259 S. W. 957; 20 C.J.
95; McCreary Elections, sec. 109.
In Sawyer v. Haydon, supra, the court said: But when a people live under a Government
which is regulated by written law, in which the powers, duties and responsibilities of the
different officers of the Government and of the body of the people are clearly defined, and in
which the law attempts to point out how and when citizens may exercise the elective
franchise, and for what officers they may vote, we cannot conceive of a case in which the
people could be entitled to vote for any officer without some provision of law, either express
or clearly implied, authorizing such vote to be cast.
As stated in 20 C.J. 60, sec. 13: The right to vote is a political right or privilege to be
given or withheld at the exercise of the lawmaking sovereignty. It is not a natural right of the
citizen, but a franchise dependent upon law, by which it must be conferred to permit its
exercise. It can emanate only from the people, either in their sovereign statement of the
organic law or through legislative enactment which they have authorized.
7. When the constitution was adopted in 1864, article IV, section 12, provided: When
vacancies occur in either House, the Governor shall issue writs of election to fill such
vacancy.
With due expedition the legislature in 1866 set up ample machinery for the holding of
such special election. See section 4797 N.C.L. The part of the above section relating to the
filling of a vacancy in a legislative office was of course repealed by implication when the
constitution was amended in 1922. The promptness of the legislature at that time in
furnishing the needed legislation, and its failure to do so since the amendment in 1922, are, to
say the least, significant.
8, 9. Petitioners claim that such legislation has been enacted, and point to section 4813
N.C.L., as amended in 1939, c. 112, page 146. The claim may not be allowed. The section,
as amended, does not include state senators, which in a strict legal sense, are state
officers.
The section, as amended, does not include state senators, which in a strict legal sense, are
state officers. It was amended for the purpose of changing the rule declared by this court in
State ex rel. Bridges v. Jepsen, supra, in relation to filling vacancies by election in county
offices. While the constitution and statutes provide for the election of certain officers every
two years, this, in itself, does not authorize the election of an officer not appointed by law to
be elected at that time. The people are presumed to know what officers are designated by law
to be elected at each biennial election, but in the absence of legislation they cannot be
presumed to know when an election is to be held to fill a vacancy. State v. Superior Court,
140 Wash. 636, 250 P. 66; People ex rel. McKune v. John B. Weller, 11 Cal. 49, 70 Am.
Dec. 754; People ex rel. Leverson v. Thompson, 67 Cal. 627, 9 P. 833, and cases cited
therein; State ex rel. Sampson v. Superior Court, 71 Wash. 484, 128 P. 1054, Ann. Cas.
1914c, 591; Secord v. Foutch, 44 Mich. 89, 6 N. W. 110; State v. Kehoe, 49 Mont. 582, 144
P. 162.
10. It was insisted that the 1922 amendment to the constitution itself furnished the needed
legislation. We are satisfied that it does not. The bare statement general election if accorded
the meaning biennial election is wholly inadequate to express or imply a sufficient rule of
legislative enforcement. To read such into the proviso would be judicial legislation, which
courts, having due regard for the separation of the powers of our government, should
scrupulously avoid. Whether it would be better policy that a vacancy in the office of state
senator should be filled at the first election following the vacancy is none of our concern. The
legislature or the people, as the case may be, formulate policy. The courts are given no hand
in it.
Orr, J. I concur.
Taber, C. J., dissenting:
The election held on November 5, 1940, was in my opinion, a general election within the
meaning of the proviso in sec.
opinion, a general election within the meaning of the proviso in sec. 12, art. IV of the state
constitution, as amended in 1922. Appointment by the county commissioners is to be made
only in cases where no general election takes place between the occurrence of the vacancy
and the next succeeding session of the legislature. Senator Horsey resigned July 29, 1940.
Thus the general election of November 5, 1940, took place between the occurrence of the
vacancy and the next session of the legislature.
To hold that general election, as used in the proviso, means the election at which state
senators are ordinarily elected, is to read into the proviso what the people did not put there.
Amended sec. 12 of art. IV of the constitution relates to the filling of vacancies. It does not
undertake to change either the time or manner of the regular and ordinary election of
assemblymen or senators. In my opinion the names of Archie C. Grant and Frank McNamee
should have been placed on the ballot for the general election of November 5, 1940, so that
the voters of Clark County could choose one of them to fill the vacancy occasioned by
Senator Horsey's resignation. The successful candidate would not have been elected for an
ensuing four-year term, but only to fill the vacancy and serve until the general election of
1942.
Consider the effect of holding that general election, in the amended constitutional
section, means the election at which state senators are ordinarily elected. Let us say that a
candidate for the office of state senator from Clark County is regularly elected at the general
election of 1938. A vacancy later occurs, (1) in December 1938; or (2) after the legislative
session of 1939 and before the general election in 1940; or (3) after said 1940 election and
before the 1941 session of the legislature; or (4) after the 1941 legislative session and before
the general election in November 1942. In every one of these situations except (4) the
vacancy would, according to the prevailing opinion, be filled by appointment.
the prevailing opinion, be filled by appointment. The only election would be the general
election of 1942, and that, it seems to me, would not be one to fill a vacancy, but rather one to
regularly elect a senator for the ensuing four-year term.
I think we should adopt a construction which gives effect to the intent and purpose of the
framers of the section of the constitution under consideration, and of the people who adopted
it. 16 C. J. S., Constitutional Law, p. 51, sec. 16, n. 39; 11 Am. Jur. 674, sec. 61, n. 18; State
v. McNeill, 127 Wash. 157, 219 P. 852.
Respondent takes the position that even if the election of November 5, 1940, was a
general election within the meaning of the proviso, the writ should nevertheless be denied
because the said amended section of the constitution has not been followed up by special
legislation providing for elections to fill vacancies in the office of state senator. It seems to
me, however, that the constitutional provision itself (sec. 12 of art. IV), together with our
statutes governing elections, provide a complete machinery for the filling of such a vacancy at
a general election taking place between the occurrence of the vacancy and the next
succeeding session of the legislature. State v. McNeill, supra.
As I read sec. 12, art. IV of the constitution of Nevada, as applied to the instant case, it
means that where any general election takes place between the time of a vacancy in the office
of state senator and the next succeeding session of the legislature, the vacancy shall be filled
by election at such general election. It is said that such a construction amounts to judicial
legislation, but is it any more so than to say that general election, as used in the proviso,
and as applied to this case, means general election at which state senators are ordinarily
elected? If anything is to be read into the proviso, it would seem better that it be something
which will carry out the intent of those who adopted the constitutional provision. Implication
plays a very important role in constitutional construction, and the intent of a constitutional
provision may be shown by implications as well as by express words.
constitutional construction, and the intent of a constitutional provision may be shown by
implications as well as by express words. 11 Am. Jur. 666, sec. 56; 16 C.J.S., Constitutional
Law, p. 54, sec. 16, n. 43.
In the instant case, the time for filing declarations of candidacy had not expired when the
vacancy occurred, and petitioners filed their declarations within the time limited by statute.
All that was then required was the placing of petitioners' names on the ballot for the general
election of 1940. In such a situation, it would seem useless and unreasonable to require
special legislation for an election to fill the vacancy.
It may be further observed that if the election of November 5, 1940, was a general
election within the meaning of the proviso, then, even if it be conceded, for purposes of
discussion, that special legislation would be necessary for an election to fill the vacancy and
that such legislation has not been enacted, there would still be no legal authority for filling the
vacancy through appointment by the county commissioners, because the provision for
appointment by them shall apply only in cases where no general election takes place
between the time of such death or resignation and the next succeeding session of the
legislature. If, therefore, the November 1940 election was a general election within the
meaning of the proviso, the vacancy could not in any event be filled through appointment by
the county commissioners. This consideration tends to confirm the view that the true intent of
amended sec. 12 of art. IV was that, in such a case as this, the vacancy should have been
filled by the voters of Clark County at the general election on November 5, 1940.
Entertaining these views, the writ, in my opinion, should have been made peremptory.
____________
60 Nev. 262, 262 (1940) Kramer v. State
JOHN A. KRAMER, Appellant, v. THE STATE OF
NEVADA, Respondent.
No. 3318
December 18, 1940. 108 P.(2d) 304.
1. Criminal Law.
In murder prosecution, instructing jury that it was not bound to use identical forms of verdict handed it by
the court when it first retired for deliberation was not error, as against contention that trial court invited a
verdict such as was first returned wherein jury recommended leniency, where there was nothing in question
asked by jury which would indicate that it was considering such a verdict. Comp. Laws, secs. 10068,
11019, 11020, 11266.
2. Criminal Law.
In murder prosecution, instructing jury that it was not bound to use identical forms of verdict handed it by
the court when jury first retired for deliberation was not error, where instruction was not objected to and
was expressly suggested and approved by accused's counsel.
3. Homicide.
Accused convicted of murder of the first degree could not complain of action of trial court in not
accepting first verdict wherein jury found accused guilty of murder in second degree and recommended
leniency, since such action was favorable to accused because it gave jury an opportunity to fix the penalty
at life imprisonment. Comp. Laws, secs. 10068, 11019.
4. Homicide.
The failure to accept a verdict finding defendant guilty of murder in the first degree recommending
leniency was not error, since the recommendation for mercy in absence of statute could not be considered
by the court; such recommendation not constituting part of the verdict. Comp. Laws, secs. 10068, 11019,
11020, 11266.
5. Criminal Law.
In murder prosecution when jury asked court to use the form whereby jury did not have to stipulate the
sentence, trial court should have given instruction to effect that such form could be used but that, if jury
should return a verdict of guilty of murder in the first degree without saying anything as to punishment,
then the court would be bound to inflict the death penalty. Comp. Laws, secs. 10068, 11019, 11020, 11266.
6. Criminal Law.
In murder prosecution wherein jury asked court to use the form whereby jury did not have to stipulate the
sentence, failure to instruct that, if jury returned a verdict of guilty of murder in the first degree without
saying anything as to punishment, court would be bound to inflict death penalty, was not
prejudicial where jury was handed a form of verdict of first-degree murder with
nothing "stipulated" as to the penalty and was instructed that court would have to
inflict death penalty if jury should return a first-degree verdict but failed to agree in
fixing the penalty, which instruction was given after conference of trial judge and
counsel and no objection was made thereto and no modification or other instruction
was asked by defense, and jury had already been instructed that it had discretion to
fix penalty at life imprisonment.
punishment, court would be bound to inflict death penalty, was not prejudicial where jury was handed a
form of verdict of first-degree murder with nothing stipulated as to the penalty and was instructed that
court would have to inflict death penalty if jury should return a first-degree verdict but failed to agree in
fixing the penalty, which instruction was given after conference of trial judge and counsel and no objection
was made thereto and no modification or other instruction was asked by defense, and jury had already been
instructed that it had discretion to fix penalty at life imprisonment. Comp. Laws, secs. 10068, 11019,
11020, 11266.
7. Statutes.
The supreme court is not absolutely bound by either the earlier or more recent decisions of the supreme
court of California construing a provision of the penal code adopted by Nevada legislature, but generally
statute adopted from another state will be presumed to have been adopted with the construction placed
upon it by the courts of that state before its adoption.
8. Criminal Law.
Where, in original instructions, jury when first retiring for deliberation was told that it could in its
discretion fix punishment at life imprisonment if it should return a verdict of murder in the first degree, and
court declined to accept verdict which found defendant guilty of murder in the first degree with
recommendation of leniency, and court at suggestion of defendant's counsel stated that recommendation of
leniency was no part of verdict and could not be considered by court, and directed jury to retire for further
deliberation with instructions that court would have to sentence defendant to death if jury found him guilty
of murder in the first degree and failed to agree on penalty, and jury returned such a verdict, defendant
could not claim that court confused and misled the jury by contradictory instructions. Comp. Laws, secs.
10068, 11019, 11020, 11266.
9. Homicide.
Accused could not complain that jury persisted in bringing in informal verdicts by bringing in of second
verdict upon which accused was sentenced wherein defendant was found guilty of murder in the first
degree and charge in the information was not informal in any sense of the word and bringing in of the
only other verdict wherein jury also recommended leniency which recommendation jury was instructed
could not be part of verdict did not constitute persisting in finding informal verdicts.
10. Criminal Law.
The supreme court will take judicial notice of fact that state prison of Nevada is not situated within the
city limits of Carson City.
11. Criminal Law.
The supreme court will take judicial notice that Nevada has but one state prison and but one Carson City,
and that state prison is located approximately one mile from the city limits of Carson City, which is the
capital city of Nevada and county seat of Ormsby County, within the boundaries of which it is situated.
12. Criminal Law.
A death warrant that defendant should be delivered to warden of state prison of Nevada at Carson City,
Nevada, was not erroneous on ground that state prison was not in Carson City, where court would take
judicial notice that Nevada had but one state prison and but one Carson City and that state prison was
located approximately one mile from city limits of Carson City, and hence state prison of Nevada was at
Carson City within meaning of expression as used in death warrant. Comp. Laws, sec. 10068.
Appeal from Seventh Judicial District Court, White Pine County; George P. Annand,
Judge.
John A. Kramer was convicted of murder in the first degree, and he appeals. Affirmed.
Lewis W. Rogers, for Appellant.
Attorneys-General, and John W. Bonner, District Attorney, for Respondent.
OPINION
This is an appeal from a judgment of death upon a verdict of murder of the first degree
returned by a jury in the Seventh judicial district court, White Pine County. At the trial the
state was represented by Mr. John W. Bonner, district attorney of White Pine County, and the
defendant by Mr. James M. Collins, of Ely.
Included in the trial court's instructions to the jury were the following:
* * * the jury before whom any person informed against for murder shall be tried, shall,
if they find such person guilty of murder of the first degree, designate by their verdict
whether such person shall suffer death or confinement in the state prison for life."
against for murder shall be tried, shall, if they find such person guilty of murder of the first
degree, designate by their verdict whether such person shall suffer death or confinement in
the state prison for life.
Should you conclude that the Defendant, John A. Kramer, is not guilty, the following
should be the form of your verdict:
We, the Jury in the above-entitled cause, find the Defendant, John A. Kramer, not
guilty.'
Should you conclude that the Defendant, John A. Kramer, is guilty, one of the following
may be the form of your verdict, as you shall decide:
We, the Jury in the above-entitled cause, find the Defendant, John A. Kramer, guilty of
murder of the first degree, as charged in the information, and fix the penalty at death.'
or
murder of the first degree, as charged in the information, and fix the penalty at confinement in
the State Prison for life.'
or
We the Jury in the above-entitled cause, find the Defendant John A. Kramer, guilty of
murder of the second degree.'
or
manslaughter.'
After the Jury have retired for deliberation, if there is any disagreement among them as to
any part of the testimony, or if they desire to be informed on any point of law arising in the
case, they must require the officer to conduct them into court. Upon their being brought into
court, the information shall be given them in the presence of, or after notice to, the District
Attorney and the defendant and his counsel.
Upon retiring to deliberate upon its verdict, the jury was handed the instructions of the
court and five forms of verdict corresponding to those above set forth.
of verdict corresponding to those above set forth. Some hours later the jury returned into
court, and upon being asked whether it had arrived at a verdict, the Foreman replied: No,
your Honor. The Jury wishes further instructions before coming to a verdict. The Jury wishes
to know if it is absolutely necessary that the Jury use the forms submitted for the verdict?
The judge and counsel retired and after conferring in chambers, returned into court,
whereupon the following proceedings took place:
Mr. Collins: If your Honor please, in view of the question that has just been asked by the
Jurors, I am willingwith your Honor's permissionto suggest and stipulate with the district
attorney that your Honor might answer the question in substance that the Jury is not bound to
use those identical forms or the precise words contained therein for their verdict, and if they
desire to make their question more clear to your Honor, that your Honor will be glad to give
them an instruction which your Honor thinks is proper.
Mr. Bonner: The state, if your Honor please, will stipulate and agree to that proposition
as suggested by Mr. Collins.
Court: Gentlemen of the Jury, as stipulated by counsel, you are not bound to use these
identical forms or concise forms for your verdict, and if you desire at this time to make your
question more clear, the court will consider further instructions.
Foreman Topholm: Your Honor, it is the unanimous decision of the Jury to ask the court
to use the form whereby we don't have to stipulate the sentence of the defendant.
Court: The court will give you instructions on that. Counsel will retire with the court.
The judge and counsel thereupon again retired to chambers, and upon returning into court,
the jury was further instructed, in writing, as follows: You are instructed that if the Jury fails
to agree in fixing the penalty, and return a verdict finding the defendant guilty of murder
in the first degree, it would follow as a matter of law that the court would have to pass a
sentence inflicting the death penalty."
penalty, and return a verdict finding the defendant guilty of murder in the first degree, it
would follow as a matter of law that the court would have to pass a sentence inflicting the
death penalty. Along with this instruction, there was handed the jury another form of verdict
reading, We, the Jury, in the above-entitled cause, find the Defendant, John A. Kramer,
guilty of murder of the first degree as charged in the information. The court then stated to
the jury: You may take that instruction and the other form of verdict with you to the Jury
room and retire for further deliberation. The jury, accordingly, again retired for deliberation,
and more than two hours later returned into court. Upon being asked by the court whether the
jury had reached a verdict, the foreman replied that it had; and being directed to declare it, the
foreman read the verdict, which, omitting the formal parts, was in the following words: We,
the Jury, in the above-entitled cause, find the Defendant, John A. Kramer, guilty of murder of
the first degree as charged in the information and recommend leniency. The last three words
were written in with pen and ink.
Thereupon the following proceedings were had:
Court: This is not a verdict in accordance with the law. It is not determinative nor
consistent.
Mr. Collins: I feel that the Jury should be advised that a recommendation of leniency is
no part of a verdict and cannot be considered by your Honor.
Court: That is the law.
Mr. Bonner: That's right.
Court: The court will have to ask you to return for further deliberation; that leniency is
not according to law in that verdict. You may retire again gentlemen, for further
deliberation.
The foregoing proceedings took place on March 21, 1940, from about midafternoon until
near midnight. On the following morning the jury brought in this verdict: We, the Jury, in
the above-entitled cause, find the Defendant, John A.
Defendant, John A. Kramer, guilty of murder of the first degree as charged in the
information. The form used for this verdict was the same as the previous one, except the
words and recommended leniency were crossed out with pen and ink. The verdict having
been recorded, the court said: Gentlemen of the Jury, so say you all, is that your verdict? To
which the jurors replied: Yes, sir. The court then fixed the time for pronouncing judgment,
and defendant was later sentenced to death. No motion for new trial was made, and it is not
contended that the evidence was insufficient to justify the verdict.
In his assignment of errors, the appellant claims that the trial court erred:
1. In instructing the jury that it was not bound to use the precise language as given in the
forms of verdict theretofore submitted to them.
2. Having so instructed the jury, in refusing to accept the original verdict returned by the
jury, i. e. We * * * find the defendant * * * guilty of murder in the first degree and
recommended leniency.'
3. In not instructing the jury to disregard the remarks of counsel for the State and the
defendant that the recommendation of leniency was no part of the verdict and the court could
not consider it.'
4. After having given the instruction that the jury was not bound to use the precise words
in the forms of verdict already submitted,' and under all the circumstances and at the
particular time, in then giving them a contradictory instruction that if the jury failed to fix a
penalty or to agree upon a penalty, it would follow * * * that the court would fix the penalty
at death.'
5. After having instructed the jury that it might bring in an informal verdict (and before
rejecting it), in not assisting the jury, by ascertaining from their foreman, or the entire body of
jurors, just what their intention and meaning were, and then helping them to prepare a verdict
in such form as would be acceptable, but, nevertheless, retaining the clear meaning of the
original verdict with all fair intendments to support it, which would have made it life
imprisonment, and not death.
original verdict with all fair intendments to support it, which would have made it life
imprisonment, and not death. The Record on Appeal nowhere shows any such inquiry or
assistance. The court reporter's transcript, which is on file, however, shows clearly that no
such inquiry or assistance was made or given.
6. In confusing, misleading, and causing the jury to contradict themselves by the
contradictory instructions above mentioned, inducing them to defeat their purpose as first
expressed, and compelling them to render a verdict which was accepted as final, but flatly
contradicted the meaning, purpose and intent of their original verdict, that is: one of death
instead of life imprisonment.
7. In abridging the privileges and immunities of the defendant; depriving him of life
without due process of law, and denying him the equal protection of the law, contrary to the
XIV Amendment to the Constitution of the United States, and Sec. 8 of Art. I of the
Constitution of the State of Nevada, in committing the errors above mentioned, and in
sentencing the defendant to death on a verdict which did not justify such sentence.
8. In violating Sec. 11020 N.C.L. by refusing to accept the original, informal verdict,
particularly after he had instructed them that they might bring in an informal verdict.
9. In accepting the second verdict the jury brought in, which was just as informal and
untechnical as their first verdict, which he refused to accept, since the jury had not told the
Court that they (1) could not agree on the penalty, or (2) that they had not fixed the penalty.
Whereas, what they did say was, Your Honor, it is the unanimous decision of the jury to ask
the Court to use the form whereby we don't have to stipulate the sentence of the defendant.'
10. In sentencing the defendant to death under the circumstances, which showed the
intent and meaning of the jury to be the lesser penalty should be inflicted by their use of
synonymous and equivalent words.
11. In not excusing the jury for their persistence in bringing in informal verdicts, and
having another trial; or, if he would not excuse them, to show them how to bring in a
formal verdictone of the several forms he had submitted to them, and instructed them
to use. '* * * one of the following may be the form of your verdict.'
bringing in informal verdicts, and having another trial; or, if he would not excuse them, to
show them how to bring in a formal verdictone of the several forms he had submitted to
them, and instructed them to use. * * * one of the following may be the form of your verdict.'
12. In violating the humane, modern trend of jurisprudence, and the policy of the
criminal practice of Nevada, that the exact words of a statute are not necessarily to be used, as
shown in such sections of our criminal practice at N.C.L., secs. 1085410857.
13. In ordering, in the death warrant that defendant should be delivered to the warden of
the State Prison of the State of Nevada, at Carson City, Nevada, and there confined, and there
executed, for the reason that this Court will take judicial notice of the fact that the State
Prison of the State of Nevada is not in Carson City, Nevada.
14. In (1) inconsistently, contradictorially and vaguely instructing the jury regarding their
verdicts, as aforesaid, and in (2) not clearly, explicitly, unmistakably instructing them in such
a manner that they would not be misled or fail to understand his meaning, or contradict
themselves.
15. In failing to properly, concisely, explicitly and unmistakably instructing the jury of his
own motion, whether requested by counsel for defendant to do so or not, and notwithstanding
the stipulation of counsel for the state and defendant that improper instructions be given.
Section 10068 N.C.L. 1929 reads, in part: Every person convicted of murder in the first
degree shall suffer death or confinement in the state prison for life, at the discretion of the
jury trying the same. * * *
Section 11019 N.C.L. 1929: When there shall be a verdict of conviction, in which it
appears to the court that the jury have mistaken the law, the court may explain the reason for
that opinion and direct the jury to reconsider their verdict, and if, after the reconsideration,
they return the same verdict, it must be entered; but when there shall be a verdict of
acquittal, the court shall not require the jury to reconsider it.
to reconsider their verdict, and if, after the reconsideration, they return the same verdict, it
must be entered; but when there shall be a verdict of acquittal, the court shall not require the
jury to reconsider it. If the jury render an informal verdict, the court may direct them to
reconsider it, and it shall not be recorded until it is rendered in some form from which it can
be clearly understood what the intent of the jury is.
Sec. 11020 N.C.L. 1929: If the jury persist in finding an informal verdict, from which,
however, it can be clearly understood that their intention is to find in favor of the defendant
upon the issue, it shall be entered in the terms in which it is found, and the court shall give
judgment of acquittal. But no judgment of conviction can be given unless the jury find
expressly against the defendant upon the issue.
Section 11266 N.C.L. 1929: No judgment shall be set aside, or new trial granted, in any
case on the ground of misdirection of the jury or the improper admission or rejection of
evidence, or for error as to any matter or pleading or procedure, unless in the opinion of the
court, to which application is made, after an examination of the entire case, it shall appear
that the error complained of has resulted in a miscarriage of justice, or has actually prejudiced
the defendant, in respect to a substantial right.
1, 2. There was no error in instructing the jury that it was not bound to use the identical
forms of verdict handed it by the court when it first retired for deliberation. In the first place,
the instruction was correct; in the second place, not only was the instruction not objected to,
but it was expressly suggested and approved by the defense. The contention that the trial
court, in giving that instruction, invited a verdict such as was first returned, is without merit.
There was nothing in the question asked by the jury which would indicate that it was
considering such a verdict.
3, 4. Appellant is in no position to complain of the action of the trial court in not
accepting the first verdict.
action of the trial court in not accepting the first verdict. State v. Lewis, 59 Nev. 262, 91
P.(2d) 820; 26 Am. Jr. 564, sec. 575; 30 C.J. 455, n. 90; 17 A.L.R. 1117, 1118 (top of first
column, p. 1118). Under sec. 11019 N.C.L. 1929, it was proper for the court to direct the jury
to reconsider its first verdict. Such action was favorable, not prejudicial, to defendant,
because it gave the jury an opportunity, if it so desired, to fix the penalty at life imprisonment.
Accused did not object or except to the court's action in refusing to accept this verdict. It was
counsel's own suggestion that the jury be instructed that a recommendation of leniency is no
part of a verdict and cannot be considered by the court. In State v. Stewart, 9 Nev. 120, 134, it
was held that the recommendation of mercy constituted no part of the verdict, and should not
have been recorded with it. Counsel assails this ruling as barbarous, inhumane, cruel and
implacable. This criticism is wholly unwarranted, for the simple reason that when that case
was decided, as well as when the crime there under consideration was committed, the only
penalty for first degree murder was death, neither court nor jury having any discretion in the
matter. That being so, it is perfectly clear that the recommendation for mercy, in the absence
of statute, could not be considered by the court. In some states there are statutes expressly
authorizing the jury in a murder case to accompany its verdict with a recommendation for
mercy. But there is no such statute in Nevada, nor, so far as we are advised, has there ever
been one.
5, 6. When the jury asked the court to use the form whereby we don't have to stipulate
the sentence of the defendant, the court should have given an instruction to the effect that
such form could be used, but that if the jury should return a verdict of guilty of murder in the
first degree without saying anything as to the punishment, then the court would be bound to
inflict the death penalty. Such is the law in Nevada (State v. Russell, 47 Nev. 263, 271
47 Nev. 263, 271, 274, 220 P. 552, 222 P. 569), and such has been the law in California for
more than fifty years. The jury should have been so instructed before first retiring for
deliberation. But, though it was not so instructed, the jury was handed a form of verdict of
first degree murder, with nothing stipulated as to the penalty, and at the same time was
instructed that the court would have to inflict the death penalty if the jury should return a first
degree verdict but fail to agree in fixing the penalty. This latter instruction was given after a
conference of the trial judge and counsel. No objection was made to it, nor was any
modification or other instruction asked by the defense. The jury had already been clearly
instructed that it had the discretion to fix the penalty at life imprisonment, and one of the five
forms of verdict first handed to the jury expressly fixed the penalty at confinement in the state
prison for life. While it would have been more responsive to instruct the jury that if it
returned a verdict of first degree murder without saying anything as to the punishment the
court would be compelled to inflict the death penalty, we cannot, in view of what has been
said, see how the failure to give such an instruction was prejudicial to the defendant.
The provision that Every person convicted of murder in the first degree shall suffer death
or confinement in the state prison for life, at the discretion of the jury trying the same has
been the subject of much controversy, not only in this state, but in the State of California
from whose penal code the provision was adopted by the legislature of Nevada. The
construction placed upon this provision by the supreme court of California in recent years
differs from the interpretation which had been given it by that court at the time the provision
was adopted by our legislature in the year 1907. 13 Cal. Jur. 746, sec. 110, n. 5.
In People v. Welch, 49 Cal. 174, 179, the court said, in part: But the Act amending
Section 190 of the Penal Code does not give the general discretion which juries exercised
under the Virginia statute.
Penal Code does not give the general discretion which juries exercised under the Virginia
statute. Here their discretion is limited, at most, to determining which of two punishments
shall be inflicted; and we think that it is still more restricted, and is to be employed only
where the jury is satisfied that the lighter penalty should be imposed.
Again, in the same opinion, the court, after referring to People v. Littlefield, 5 Cal. 355,
used this language: By parity of reasoning we may say, in view of the former punishment for
the crime of murder of the first degree, and the history of legislation on the subject in this
State and elsewhere, that it was the purpose of the Legislature (by the amendment of section
190) to permit the jury, in a case where the facts proved brought the crime of the defendant
within the statutory definition of the higher offense, but they believed the punishment of
death too severe, to declare that he should be imprisoned for life. We think, therefore, the
statute should be construed as if it read: Shall suffer death, or (in the discretion of the jury)
imprisonment in the State prison for life.'
On petition for rehearing, in People v. Welch, supra, the court (49 Cal. at 185) further said:
It results from the construction we have given to section 190 of the Penal Code (as amended)
that a jury mayin the exercise of its discretiondeclare that a defendant guilty of murder of
the first degree shall be punished by confinement in the State Prison for life. If a jury shall
agree that a defendant is guilty of murder of the first degree, but cannot agree that the
punishment shall be imprisonment for life, or shall not declare that the punishment shall be
such imprisonment, it will be the duty of the Court to pronounce judgment of death. The jury
need not declare that death shall be inflictedin cases where they cannot agree on
imprisonmentsince, if the verdict is silent in respect to the penalty, the Court must sentence
the defendant to death.
The rule laid down in People v. Welch, supra, was followed in People v. French, Cal. sup.,
7 P. 822, rehearing, 69 Cal. 169, 10 P. 378, 384. On the rehearing the court, in concluding its
opinion, said: In other words, a person convicted of murder in the first degree shall not
escape punishment because the jury that convicted him by a valid verdict may have disagreed
upon the question of punishment, or, which is equivalent to the same thing, returned a verdict
which was silent as to the penalty. More than thirty-five years after People v. Welch, supra,
and several years after the provision under discussion was adopted in Nevada, we still find
the supreme court of California, in People v. Luis, 158 Cal. 185, 110 P. 580, 583, saying that:
Section 190, Pen. Code, makes death the punishment for murder in the first degree, but give
the jury the power, in its discretion, to substitute life imprisonment therefor. People v.
Welch, 49 Cal. [174], 178; People v. French, 69 Cal. [169], 176, 10 P. 378. See also People
v. Rollins, 179 Cal. 793, 179 P. 209. And it was more than fifty years after People v. Welch
and People v. French before that court announced a different rule in People v. Hall, 199 Cal.
451, 249 P. 859, and in subsequent decisions.
7. This court is not absolutely bound by either the earlier or more recent decisions of the
supreme court of California construing said provision. But in this state, as well as by the great
weight of authority, it is the general rule that a statute adopted from another state will be
presumed to have been adopted with the construction placed upon it by the courts of that state
before its adoption. McLane v. Abrams, 2 Nev. 199, 206, 207; State v. Robey, 8 Nev. 312,
320, 321; O'Brien v. Commissioners, 41 Nev. 90, 101, 102, 104, 167 P. 1007; In re Walker
River Irr. Dist., 44 Nev. 321, 332, 195 P. 327; Menteberry v. Giacometto, 51 Nev. 7, 14, 267
P. 49; Hard v. Depaoli, 56 Nev. 19, 30, 41 P.(2d) 1054; Minden B. M. Co. v. District Court,
57 Nev. 29, 33, 56 P.(2d) 1209; Johnson v. Garner, D. C., 233 F. 756, 765; Lewis'
Sutherland, Statutory Construction, 2d Ed., sec.
765; Lewis' Sutherland, Statutory Construction, 2d Ed., sec. 404, pp. 783-786; Crawford,
Statutory Construction, sec. 235, p. 444; 59 C.J. pp. 1065-1069, sec. 627, p. 1072, sec. 629;
25 R.C.L., 1069, sec. 294. Upon the basis of these authorities we are of the opinion that the
rules laid down in the early California cases hereinbefore cited should prevail in this state
until such time as our legislature may see fit to change them.
8. Appellant urges that when the verdict recommending leniency was returned, it was the
trial court's duty to inquire and ascertain what was meant and intended by that verdict, and to
assist the jury in preparing an acceptable form of verdict which would clearly express the
jury's intent. He claims that instead of doing this the court, by contradictory instructions,
confused and misled the jury, and compelled it to render a verdict contradicting the meaning,
purpose, and intent of the original verdict. While, as we have said, one of the instructions
could and should have been more responsive than it was to the jury's inquiry, we do not think
that any of the instructions complained of were either contradictory or contrary to law. In the
original instructions, handed to the jury when first retiring for deliberation, that body was
told, more than once, in clear and unmistakable language, that it could, in its discretion, fix
the punishment at life imprisonment if if should return a verdict of murder in the first degree.
No other instruction was given at any time which in any respect conflicted with that original
instruction.
When the first verdict was returned, the trial court did not accept it, order it recorded and
proceed to sentence the defendant to death, as was done in Smith v. State, 75 Miss. 542, 23
So. 260. On the contrary it declined to accept the verdict, and defendant's own counsel
expressly suggested that the jury be advised that a recommendation of leniency is no part of a
verdict and could not be considered by the court. The court thereupon stated that such was the
law, and directed the jury to retire for further deliberation. It had already been made clear to
the jury that it had the right to relieve defendant from the death penalty, and an
appropriate form of verdict had been placed in its hands to be used in the event the jury
should decide to fix the penalty at life imprisonment.
already been made clear to the jury that it had the right to relieve defendant from the death
penalty, and an appropriate form of verdict had been placed in its hands to be used in the
event the jury should decide to fix the penalty at life imprisonment. The jury had also been
instructed after a conference with both counsel, that the court would have to sentence the
defendant to death if the jury found him guilty of murder of the first degree and failed to
agree on the penalty. This instruction does not accord with recent California decisions, but is,
in our opinion, the law of this state, for reasons hereinbefore stated.
The record indicates that the law was stated with sufficient clarity to satisfy counsel for the
accused, who made no objection to any written instruction given or any oral statement made
by the court, and whose every suggestion regarding the law to be given the jury was adopted
by the court. The action of the jury in this case is inexplicable; but we can find nothing in the
record to indicate that it did not understand what it was doing when the second verdict was
returned. On the contrary, that verdict indicates that the jury decided not to fix the lighter
penalty, or was unable to agree on the penalty.
The seventh assignment of error is based chiefly upon appellant's contention that the
instructions complained of were erroneous and contradictory. In our opinion they were
neither. The record clearly shows that when the jury returned the first verdict, the trial court,
the district attorney, and the attorney for defendant all were fully aware that the words
recommending leniency constituted no part of the verdict, and in no wise qualified its legal
effect. State v. Lewis, supra. The jury was so informed, pursuant to the express suggestion of
defense counsel. It was clearly the purpose of the court to make this plain to the jury and, by
directing it to retire for further deliberation, to afford it full opportunity to fix the penalty at
life imprisonment or to return such other verdict as would clearly show its real intent.
intent. If we could agree with appellant that the jury was confused and misled, and gave up
in despair, and that, though not wishing to bring in a verdict requiring the death penalty, it
was compelled to do so by erroneous, contradictory and unresponsive instructions, it would
obviously be the duty of this court to set the judgment aside. But the record, in our opinion,
does not support counsel's contention, and, as already stated, we are confirmed in this view
not only by reason of the fact that defendant's attorney was evidently not in anywise confused,
but by the further fact that in instructing the jury the trial court acceded to every suggestion
made by him.
9. The eleventh assignment of error is without merit, because the jury did not persist in
bringing in any formal verdict. The second verdict was not informal in any sense of the word,
and the bringing in of the only other verdict, the first one, was certainly not persisting in
finding an informal verdict. People v. Throop, 277 Ill. App. 1, 5, 6; 48 C.J. 1037; and leading
English dictionaries.
10, 11. What has been said sufficiently covers all assignments of error except the
thirteenth. Counsel is correct in stating that the court will take judicial notice of the fact that
the state prison of Nevada is not situated within the city limits of Carson City. The court will
also judicially notice that Nevada has but one state prison and but one Carson City, and that
the state prison is located approximately one mile from the city limits of said Carson City,
which is the capital city of Nevada and the county seat of Ormsby County, within the
boundaries of which it is situated. 20 Am. Jur. 77, 101, secs. 53, 82.
12. In Howell v. State, 164 Ga. 204, 138 S. E. 206, 209, the defendant had been sentenced
to be executed within the walls of the penitentiary at Milledgeville, Georgia. The defendant
moved to set aside the sentence upon the ground, among others, that there was no state
penitentiary at Milledgeville, Georgia.
no state penitentiary at Milledgeville, Georgia. The supreme court of that state, in its opinion,
said: This brings us to decide whether the state has a penitentiary at Milledgeville. The word
at,' as used in this statute, does not mean within the corporate limits of the city of
Milledgeville. As used in this statute, it is the equivalent of the word near.' * * * So the word
at,' as used in the first section of this act, means near'; and if the state has a penitentiary near
Milledgeville, such penitentiary falls within the meaning of this section. See also Board of
Trustees of Albany College v. Monteith, 64 Or. 356, 130 P. 633, 636; Old Ladies' Home of
Muscatine v. Hoffman, 117 Iowa 716, 89 N. W. 1066; Rogers v. Galloway Female College,
64 Ark. 627, 44 S. W. 454, 455, 39 L.R.A. 636. We hold that the state prison of Nevada is at
Carson City within the meaning of that expression as used in the death warrant.
Finding no prejudicial error in the record, the judgment appealed from is affirmed, and the
district court is directed to make a proper order for the carrying into effect, by the warden of
the state prison, of said judgment.
____________
60 Nev. 280, 280 (1940) In Re Waters of Manse Spring
IN THE MATTER OF THE DETERMINATION OF THE RELATIVE RIGHTS IN AND
TO THE WATERS OF MANSE SPRING AND ITS TRIBUTARIES IN NYE COUNTY,
STATE OF NEVADA.
EDDIE BARRY, Appellant, v. MERICKEL HOLDING CORPORATION, a Corporation,
and HAROLD D. CORNELL, Respondents.
No. 3306
December 18, 1940. 108 P.(2d) 311.
All water within the state, whether above or beneath the surface of the ground, belongs to the state, which
authorizes its use, and there is no ownership in the corpus of the water but the use thereof may be acquired
and the basis of such acquisition is beneficial use.
To constitute a valid appropriation of water, there must be an actual diversion of it with intent to apply
it to beneficial use, followed by an application to such use in a reasonable time.
The doctrine of appropriation of water is applicable in Nevada.
If one voluntarily abandons his right to use water, the water becomes a part of the natural stream or
source and again reverts to the state absolutely without any title to its use outstanding against the state.
Abandoned water is subject to appropriation immediately upon its abandonment.
The state as owner of water has right to prescribe how it may be used.
The state which has right to designate method of appropriation of water may also provide how long water
may be permitted to run idly by and not be beneficially used.
Abandonment of water right is the relinquishment of the right by the owner with the intention to
forsake and desert it, and "forfeiture" of the right is the involuntary or forced loss of the
right caused by the failure of the appropriator to do or perform some act required by
statute.
and forfeiture of the right is the involuntary or forced loss of the right caused by the failure of the
appropriator to do or perform some act required by statute. Comp. Laws, sec. 7897.
9. Forfeitures.
Forfeiture is a punishment annexed by law to some illegal act or negligence in the owner of lands,
tenements or hereditaments whereby he loses all of his interests therein.
10. Forfeitures.
The element of intent which is necessary in case of an abandonment is not a necessary element in the
case of a forfeiture, and the latter may be worked directly against the intent of the owner of the right to
continue in the possession and the use of the right.
Forfeiture as applied to water rights is the penalty fixed by statute for the failure to do, or the
unnecessary delay in doing certain acts tending toward the consummation of a right within a specified time,
or after the consummation of the right, the failure to use the same for the period specified by the statute.
The legislature had right to provide that right to use of water would be lost and forfeited by five years of
continuous nonuse insofar as rights thereafter acquired were concerned and in relation to rights acquired
prior to the enactment, providing such prior and vested rights were not thereby impaired. Comp. Laws,
secs. 7897, 7970.
The 1913 statute providing for forfeiture of water rights upon failure to use the water for beneficial
purposes for which the rights exist during any five successive years was inapplicable to rights which had
become vested prior to 1913, in view of section of statute providing that the statute should not impair
vested rights, since the provision for forfeiture of the rights would impair the rights which prior to 1913
might have been lost only by abandonment. Comp. Laws, secs. 7897, 7970.
In determining whether there has been an abandonment of a water right which vested prior to
enactment of 1913 statute authorizing forfeiture of water right for failure to use the right for beneficial
purposes for five successive years, which by statute was made inapplicable in cases where its application
would impair vested rights, the court may take into consideration all circumstances, including nonuse and
will check a continued wanton and willful waste of water. Comp. Laws, secs. 7897, 7970. 15.
Circumstances preventing a loss of water right because of nonuse should be much stronger where the
statute relating to forfeiture of water rights for failure to use water for beneficial purposes for five
successive years, applies than in cases where it does not. Comp. Laws, secs. 7897, 7970.
The supreme court would not disturb trial court's finding that there was no abandonment of waters by
parties whose rights had vested prior to enactment of 1913 statute providing for forfeiture of water rights
for failure to use the water for the beneficial purposes during any five successive years which, under
statute, could not impair vested rights, where there was substantial evidence in the record upon which to
base the finding. Comp. Laws, secs. 7897, 7970.
17. Judgment.
Where court having jurisdiction made statutory compromise settlement under which land owned by an
estate was transferred to corporation, a party who was a stranger to the title and had no rights under the
estate could not, in proceeding involving adverse claims to water rights, question regularity of the transfer
on ground that statute relative to sale by an estate was not complied with. Comp. Laws, sec. 9771.
Appeal from Fifth Judicial District Court, Nye County; Wm. D. Hatton, Judge.
Proceeding in the matter of the determination of the relative rights in and to the waters of
Manse spring and its tributaries in Nye County, Nevada. The trial court filed findings and
decision in favor of the Merickel Holding Corporation and another and denied motion for
new trial, and from the adverse judgment and order denying motion for new trial. Eddie Barry
appeals. Affirmed.
Wm. M. Kearney and Robert Taylor Adams, for Appellant.
Frank McNamee, Jr., for Respondents.
Gray Mashburn, Attorney-General, and W. T. Mathews and Alan Bible, Deputy
Attorneys-General, for State Engineer.
OPINION
Respondents, Merickel Holding Corporation and Harold D. Cornell, filed a petition in the
office of the state engineer on April 14, 1937, requesting said state engineer to determine the
rights in and to the waters of Manse spring and tributaries, pursuant to the water law of
Nevada. Thereafter the state engineer entered an order selecting the said stream system for
adjudication, and made his order of determination June 8, 1937. On June 12, 1937, said state
engineer filed a certified copy of his order of determination in the office of the clerk of the
Fifth judicial district court, in and for the county of Nye. On the 15th of June 1937 the court
set the time for hearing said matter for July 29, 1937. Appellant, Eddie Barry, within the time
fixed by the order for filing contests, regularly filed and served his notice of exceptions to
said order of determination. The matter was subsequently heard and submitted to the court for
decision. Thereafter the court filed its findings and decision in favor of respondents. A
motion for new trial was made and denied, and appellant brings the matter before this court
on appeal from the decision and order.
Appellant assigns as error the following:
(a) The court erred in holding that five continuous years of nonuse of water did not
constitute a loss of the water right.
(b) The court erred in holding that intention to abandon is a necessary element to be
proven in determining the question of whether or not a water right is lost or forfeited by five
years' continuous nonuse as provided in section 8 of chapter 140, Statutes of 1913, as
amended in 1917.
(c) The court erred in holding that a mortgagee of a water right was not bound by section 8
of chapter 140, Statutes of 1913, as amended in 1917, as to the requirement of beneficial
use of water in order to maintain the right.
Statutes of 1913, as amended in 1917, as to the requirement of beneficial use of water in
order to maintain the right.
(d) The court erred in holding that water rights perfected prior to 1913 could not be lost by
nonuse, as provided by section 8, chapter 140, Statutes of 1913, as amended in 1917, and that
such rights could be lost only by actual intentional abandonment regardless of how long the
nonuse continues.
(e) The court erred in holding that Merickel Holding Corporation and Harold D. Cornell
had any title whatever to the waters of Manse spring.
(f) The court erred in holding that any title to either water or land passed to Merickel
Holding Corporation and Harold D. Cornell by the purported quitclaim deed given by
William F. Logan, as administrator of the estate of Jean Cazaurang, deceased, to Merickel
Holding Corporation, a California corporation, dated April 8, 1936, and filed for record in
Nye County October 8, 1936.
(g) The court erred in holding that the administrator of the estate of Jean Cazaurang,
deceased, could execute an effective deed to estate property without an actual sale and
confirmation thereof as provided by the laws of Nevada relating to the estates of deceased
persons.
(h) The court erred in admitting evidence of use of water by Daniel D. Marron on behalf of
Merickel Holding Corporation and Harold D. Cornell after intervening rights were initiated to
the waters lost by five years' continuous nonuse.
(i) The court erred in holding that 300.6 acres of land had been irrigated from Manse
spring and that said area was entitled to a water right when the original proofs showed only a
maximum of 141.4 acres ever had been irrigated.
(j) The court erred in holding that water could be beneficially used for irrigation purposes
twelve months in each year and in fixing the irrigation season as twelve months each year.
(k) The court erred in holding that water lost by nonuse or forfeiture could be reestablished
without making a new application to the state engineer, as provided by the statute to
appropriate the public waters of the state.
Joseph Yount in the year 1877 began the use of the waters of Manse springs, by diversion
and application of said waters to beneficial use for irrigation and domestic purposes. From
year to year this use was increased, resulting in 1910 with as much as 300 acres of land being
under cultivation and irrigated by the said Joseph Yount from the waters of the said Manse
springs. Down through the years from 1877 to June 5, 1929, the day of the death of Jean
Cazaurang, the successor in interest of said Joseph Yount, all of the waters of the said Manse
springs were beneficially used upon the Manse ranch. From June 15, 1929, until September
11, 1936, according to the findings of the trial court, no water was used from said springs for
irrigation or cultivation of lands except a small amount to irrigate an orchard and vineyard of
a few acres, the water for such purpose being taken from Manse spring No. 2. The court also
found that the water from said springs during the years last mentioned formed a swampy area,
on which a few head of livestock pastured, and some water was used upon the ranch for
domestic purposes by the caretaker placed there by the administrator of the estate of Jean
Cazaurang.
Appellant's main contention is that the right to the waters of Manse springs was lost by
nonuse as defined by statute, and that said waters were subject to appropriation by appellant.
The section of the statute relied on by appellant is section 8 of the water law (sec. 7897
N.C.L. 1929), which reads in part as follows: And in case the owner or owners of any such
ditch, canal or reservoir shall fail to use the water therefrom for beneficial purposes for which
right exists during any five successive years, the right to use shall be considered as having
been abandoned, and they shall forfeit all water rights, easements and privileges
appurtenant thereto, and the water formerly appropriated by them may be again
appropriated for beneficial use, the same as if such ditch, canal or reservoir had never
been constructed."
rights, easements and privileges appurtenant thereto, and the water formerly appropriated by
them may be again appropriated for beneficial use, the same as if such ditch, canal or
reservoir had never been constructed.
The much greater part of the arguments presented by respective counsel deal with the
construction to be placed on said section 8, appellant contending that the five years' nonuse
works an absolute forfeiture, respondent answering with the contention that five years' nonuse
as defined in the statute does no more than to shift the burden of proof as to the question of
abandonment, and that abandonment, as distinguished from forfeiture, still must obtain in
order to cause the loss of a water right.
1, 2. We find ourselves in agreement with the argument of appellant that the legislature
has declared all water within this state, whether above or beneath the surface of the ground, to
belong to the state; that the use of water is authorized by law; and this court has, since the
overrruling of the riparian doctrine in the case of Jones v. Adams, 19 Nev. 78, 6 P. 442, 3
Am. St. Rep. 788, held that there is no ownership in the corpus of the water, but that the use
thereof may be acquired, and the basis of such acquisition is beneficial use. In Walsh v.
Wallace, 26 Nev. 299, 67 P. 914, 99 Am. St. Rep. 692, it is stated: To constitute a valid
appropriation of water, there must be an actual diversion of it, with intent to apply it to
beneficial use, followed by an application to such use in a reasonable time.
3. So we find the doctrine of appropriation the settled law of this state. Reno Smelting
Works v. Stevenson, 20 Nev. 269, 21 P. 317, 4 L.R.A. 60, 19 Am. St. Rep. 364; Twaddle v.
Winters, 29 Nev. 88, 85 P. 280, 89 P. 289.
4, 5. Appellant further asserts, and we further agree, that if one voluntarily abandons his
right to use water, the water becomes a part of the natural stream or source and again reverts
to the state absolutely, without any title to its use outstanding against the state.
title to its use outstanding against the state. Abandoned water is subject to appropriation
immediately.
6-11. Water being state property, the state has a right to prescribe how it may be used, and
the legislature has stated that the right of use may be obtained in a certain way. The state,
having a right to designate the method of appropriation, may also provide how long water
may be permitted to run idly by and not be beneficially used. This the state has done, in
relation to some rights, by the enactment of section 8 of the water law. In that statute both the
words abandonment and forfeiture are used, and the said terms are entirely different in
their operation. This distinction is well set out in Kinney on Irrigation and Water Rights, vol.
2, 2d ed., p. 2020, sec. 1118, as follows:
Water rights, ditches, and canals, and other works, together with the easements over the
lands of others for the same, may be lost by forfeiture. Although the terms Abandonment'
and forfeiture' are oftentimes used interchangeably, even by the courts, upon the subject of
the loss of water rights, and other rights used in connection therewith, there is a decided
distinction in their legal significance, and one which, in view of the forfeiture clauses enacted
by recent legislation, should be observed. While, upon the one hand, abandonment is the
relinquishment of the right by the owner with the intention to forsake and desert it, forfeiture,
upon the other hand, is the involuntary or forced loss of the right, caused by the failure of the
appropriator or owner to do or perform some act required by the statute. Forfeiture is a
punishment annexed by law to some illegal act or negligence in the owner of lands,
tenements, or hereditaments, whereby he loses all his interests therein.'
The element of intent, therefore, so necessary in the case of an abandonment, is not a
necessary element in the case of forfeiture. In fact, a forfeiture may be worked directly against
the intent of the owner of the right to continue in the possession and the use of the right.
right. Therefore forfeiture as applied to water rights and other rights in this connection is the
penalty fixed by statute for the failure to do, or the unnecessary delay in doing, certain acts
tending toward the consummation of a right within a specified time; or, after the
consummation of the right, the failure to use the same for the period specified by the statute.
Also in Wiel on Water Rights in the Western States, 3d ed., vol. I, p. 621, sec. 578:
As accurate conclusions of the present state of the law as the writer can form are as
follows:
(b) By the introduction of the principle of forfeiture in most States, the foregoing
becomes true only for a fixed period (usually from two to five years) after which no intention
to abandon is necessary, and non use ipso facto causes loss of right to the extent that it has
continued for the period specified to cause forfeiture.
The correct statement seems to be that the right to water by appropriation is lost in whole
or part by non use for an unreasonable time (not exceeding the period fixed by statute for loss
of right by non use) prior to the time a controversy arises.
We emphasize the distinction made above because of what we will later say in relation to
the manner of losing a water right which had vested prior to the enactment of the 1913 water
law, wherein the difference between loss by abandonment and loss by nonuse becomes
important.
12. As has been stated, there is nothing to prevent the legislature from enacting that the
right to the use of water may be lost and forfeited by five years of continuous nonuse, insofar
as rights thereafter acquired are concerned, and, further, in relation to rights acquired prior to
such an enactment, providing such prior and vested rights are not thereby impaired.
It is apparent the legislature at the time of its enactment of the 1913 statute was careful to
refrain from infringing upon rights which had accrued at that time, so as to avoid any question
of the constitutionality of the act, and as a precautionary measure wrote into the statute
section S4, Comp.
the act, and as a precautionary measure wrote into the statute section 84, Comp. Laws, sec.
7970, which expressly excluded from the operation of the provisions of the statute any vested
rights which would be impaired thereby. Section 84 reads: Nothing in this act contained
shall impair the vested right of any person to the use of water, nor shall the right of any
person to take and use water be impaired or affected by any of the provisions of this act where
appropriations have been initiated in accordance with law prior to the approval of this act.
Any and all appropriations based upon applications and permits now on file in the state
engineer's office, shall be perfected in accordance with the laws in force at the time of their
filing.
13. We direct our attention at this point to a consideration of the question of whether or
not by invoking the provisions of section 8 the rights of respondents to the waters of Manse
springs, which admittedly had vested in the predecessors in interest of the respondents long
prior to the enactment of said 1913 statute, would be affected or impaired. Of course, if the
terms of said section 8 as applied to the waters of Manse springs could in any way affect or
impair those rights, said section would not be operative and a construction thereof thereby
become unnecessary to a decision in this case. The trial court held that to apply the terms of
section 8 would have the effect of impairing rights to the waters of Manse springs which had
vested prior to the enactment of the 1913 statute, and therefore said section should be
excluded; that rights acquired before 1913 could only be lost in accordance with the law in
existence at the time of the enactment of said 1913 statute, namely, intentional abandonment.
With this conclusion we agree. Before reaching such conclusion we carefully considered the
manner in which the provisions of section 8 could affect or impair the rights in and to the
waters of Manse springs which had vested prior to 1913.
The 1913 water law left those who had acquired water rights prior to its enactment in
the enjoyment of said rights, but did undertake to provide means of ascertaining what
those rights were, and also set up other methods of control.
rights prior to its enactment in the enjoyment of said rights, but did undertake to provide
means of ascertaining what those rights were, and also set up other methods of control. Such
methods have been held by this court to be within the constitutionally delegated authority of
the legislature, some of the cases so holding being: Ormsby County County v. Kearney, 37
Nev. 314, 142 P. 803; Vineyard L. & S. Co. v. District Court, 42 Nev. 1, 171 P. 166; Pitt v.
Scrugham, 44 Nev. 418, 195 P. 1101.
14. So the simple question here is: Can a right be impaired by providing a different
method for its loss than had theretofore existed? We think it will be conceded that loss by
forfeiture presents a much stricter and more absolute procedure than loss by abandonment.
Prior to 1913 the law said that the water users of that day would have and hold the use of such
water until the same should be abandoned, and, as we have seen, in abandonment the intent of
the water user is controlling. To substitute and enlarge upon that by saying that the water user
shall lose the water by failure to use it for a period of five years, irrespective of the intent,
certainly takes away much of the stability and security of the right to the continued use of
such water. We do not wish to be understood as holding that because a person may have
established a water right prior to 1913, such acquisition insures him in the right to the use of
such water indefinitely, without regard to placing it to beneficial use. We do find that such
rights have been left in a condition where courts must determine the intent of the claimant,
and in determining such intent, as to whether abandonment has taken place, may take such
nonuse and other circumstances into consideration, and have the right to and will check a
continued wanton and willful waste of water. Courts appreciate the necessity of requiring that
water be beneficially used, because of its importance to the agricultural industry of the state.
They will, however, take into consideration the circumstances of the particular case, and will
not cause to be forfeited or taken away valuable rights when the nonuse of water was
occasioned by justifiable causes.
not cause to be forfeited or taken away valuable rights when the nonuse of water was
occasioned by justifiable causes. Especially is this true of rights which became vested prior to
1913. The trial court had this idea clearly in mind in making its findings. We fail to see any
evidence in this case of a dog-in-the-manger policy, which appellant fears will result if the
decision in this case is affirmed.
15. The State of Wyoming has a statute almost identical with section 8 of the Nevada law.
Yet, in applying the provisions of their statute the Wyoming courts have refused to take away
rights because of nonuse where circumstances were such as to prevent the beneficial use.
Morris v. Bean, C. C., 146 F. 423; Ramsay v. Gottsche, 51 Wyo. 516, 69 P.(2d) 535; Horse
Creek Conservation District v. Lincoln Land Co., 54 Wyo. 320, 92 P.(2d) 572; Scherck v.
Nichols, 55 Wyo. 4, 95 P.(2d) 74. It would seem that circumstances preventing loss because
of nonuse should be much stronger where section 8 applies than in cases where it does not.
16. The trial court, from the evidence presented, found that there was no abandonment of
the waters of Manse springs. There is substantial evidence in the record upon which to base
such a finding, and for that reason we are not disposed to disturb it.
17. Appellant challenges the title of respondents to the Manse ranch and the water right
appertaining thereto, basing his contention upon the fact that the provisions of the statute
relative to a sale by an estate were not complied with. The land was transferred to the
respondent Merickel Holding Corporation by an order of the court pursuant to a compromise
settlement under the provisions of section 9771 N. C. L. The court had jurisdiction to make
such a compromise settlement, and having jurisdiction so to do, appellant, being a stranger to
the title and having no rights under the estate, is in no position to question the regularity of
those proceedings.
those proceedings. Whether or not it was just and equitable would be for those claiming
under the estate.
As has been hereinbefore stated, the view we take of the provisions of section 84 as
applied to the facts in this case render it unnecessary to determine several additional points
which appellant has urged in connection with his theory that section 8 of the water law is
controlling in this case.
____________
60 Nev. 292, 292 (1940) Gerbig v. Gerbig
MARY GERBIG, Appellant v. OSCAR GERBIG,
Respondent.
No. 3322
December 21, 1940 108 P.(2d) 317.
Where notice of appeal from judgment and from order denying motion for new trial and an undertaking
on appeal were filed with clerk of supreme court, but neither notice of appeal nor undertaking on appeal
was filed in trial court, no appeal had been taken, since appeal must be perfected in the court where
judgment or order appealed from is entered. Comp. Laws, sec. 9385.61.
Appeal from order denying a new trial could not be taken after expiration of 60 days after service, by the
prevailing party, of written notice that order had been made and entered in minutes of court. Comp. Laws,
sec. 9385.60.
3. Divorce.
Where divorce judgment directed husband to pay wife $50 per month for period of four months and she
voluntarily accepted sum of $50 for one month, the wife was estopped from taking an appeal from
judgment or from order denying motion for new trial.
A party who voluntarily accepts the benefits of a judgment waives his right to prosecute an appeal from
it.
5. Divorce.
The general rule that a party who voluntarily accepts the benefits of a judgment waives his right to
prosecute an appeal from it is applicable in a divorce action in which a divorce is granted the
husband and alimony awarded to and accepted by the wife.
divorce is granted the husband and alimony awarded to and accepted by the wife.
Where no appeal had been taken or could be taken, motion to dismiss appeal would be denied since there
was nothing to dismiss, but notice of appeal, undertaking on appeal, and purported record on appeal would
be stricken from records of supreme court.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action for divorce by Oscar Gerbig against Mary Gerbig. From an adverse judgment, and
from an order denying a motion for new trial, defendant appeals. On motion to dismiss
appeal. Motion denied, but notice of appeal, undertaking on appeal, and purported
record on appeal stricken from records of Supreme Court.
Albert Hilliard, for Appellant.
Robert Taylor Adams and Martin Evansen, for Respondent.
OPINION
Several motions are before us, respectively, for allowances, to dismiss the appeal from the
judgment, from the order denying the motion for a new trial, and to strike all of the record on
appeal.
A divorce was granted respondent on the 1st day of June 1940, and the judgment entered
on the 18th day of June 1940. It was ordered therein that plaintiff (respondent) pay to
defendant (appellant) the sum of $50 per month for the period of four months beginning on
the 1st day of June 1940, and that defendant vacate the premises now occupied by her in the
town of Hawthorne, Nevada, on or before the 1st day of July 1940. Appellant's motion for a
new trial was denied on June 17, 1940, and notice thereof served on her on the twentieth
day of that month.
17, 1940, and notice thereof served on her on the twentieth day of that month. A notice of
appeal from the judgment and from the order denying appellant's motion for a new trial and
an undertaking on appeal were filed with the clerk of the supreme court on August 1, 1940.
The judgment roll and a transcript of the proceedings in the lower court were filed with the
clerk of the supreme court on the 4th day of September 1940. Time for filing a bill of
exceptions was not extended.
1. We will consider respondent's motion to dismiss the appeal from the judgment and
from the order denying the motion for a new trial. These motions were made upon the
grounds (1) that no appeal has been taken in either case, and (2) because appellant has waived
the right of appeal and is estopped. The first objection is clearly good. Section 9385.61
N.C.L. provides how an appeal shall be taken and perfected, which must be done in the court
where the judgment or order appealed from is entered. It appears from the affidavit of the
clerk of the court in which the judgment was entered that neither a notice of appeal nor
undertaking on appeal was filed in that court. Hence no appeal has been taken.
2. As to the order denying the motion for a new trial, no appeal can now be taken. Section
9385.60 N.C.L. specifies the time within which such an appeal can be taken, which must be
within sixty days after service by the prevailing party in the action or proceeding upon the
unsuccessful party thereto, of a written notice that the order has been made and entered in the
minutes of the court. Such notice was served on appellant, as heretofore stated, on the 20th
day of June 1940. Consequently, the time for taking an appeal from the order denying a new
trial has expired.
3. The second objection is equally good, both as to the judgment and order denying the
motion for a new trial. Appellant is estopped from taking an appeal in either instance,
because she has accepted a benefit awarded in the judgment.
either instance, because she has accepted a benefit awarded in the judgment. It appears she
has voluntarily accepted the sum of $50 for the month of June 1940, awarded her in the
judgment of divorce.
4, 5. The case on this phase falls within the general rule that a party who has voluntarily
accepted the benefits of a judgment waives his right to prosecute an appeal from it. 2 Am.
Jur. pp. 975, 976. The rule is applicable in a divorce action in which a divorce is granted the
husband and alimony awarded to and accepted by the wife. 2 Am. Jur. p. 981; 9 R.C.L. 467.
The court in Harris v. Harris, 67 App. D.C. 85, 89 F.(2d) 829, 830, quoting from the former
authority, said: It is held by the authorities without exception, so far as we can discover,
where a divorce is granted against the wife to whom an award of alimony is made, that, by
accepting the alimony, she is precluded from taking and prosecuting an appeal from the
decree of divorce.'
See, also, McCaleb v. McCaleb, 32 Cal. App. 648, 163 P. 1045; Storke v. Storke, 132 Cal.
349, 64 P. 578; Yates v. Yates, 60 Okl. 217, 159 P. 1107; Spratt v. Spratt, 140 Minn. 510,
166 N. W. 769, 167 N. W. 735; Williams v. Williams, 6 N. D. 269, 69 N. W. 47.
The instant case is distinguishable on the facts from Cunningham v. Cunningham, 60 Nev.
192, 105 P.(2d) 398, recently decided. There the wife was granted a divorce from which no
appeal had been taken, and the time for taking the same had expired. She appealed only from
property and alimony awards. The property and alimony awarded her under the facts of the
case belonged to her as a matter of right, and it was held that she was not estopped from
prosecuting her appeal for more. The case fell within an exception to the general rule which
governs this case. Here the alimony awarded and accepted by the wife was not hers as a
matter of right, as the divorce was granted the husband. She not only accepted the sum of $50
awarded for the month of June, but is desirous of receiving the balance of the alimony
awarded.
of the alimony awarded. This appears from the following in her affidavit: That the only
money of any kind that appellant now has or is in prospect of having, beyond small sums
borrowed from friends, is the sum of $200 ordered paid her by the court at the rate of $50 per
month beginning on June 1, 1940, and even of that sum the respondent has failed to pay her
the installment of $50 due on July 1, 1940.
6. She is precluded from taking and prosecuting an appeal from the judgment. It does not
follow, however, that respondent's motion to dismiss the appeal should be granted. No appeal
has been taken, or can be taken. There is, therefore, nothing to dismiss. The motion to dismiss
should be denied.
The notice of appeal, undertaking on appeal, and purported record on appeal should be
stricken from the records of this court.
It is so ordered.
____________
60 Nev. 296, 296 (1940) In Re Platz
In The Matter of ARTHUR A. PLATZ,
ATTORNEY AT LAW.
No. 3299
December 31, 1940. 108 P.(2d) 858.
The state bar was not without jurisdiction of proceedings for suspension of attorney because of fact that
the bar was not a court and could not exercise judicial functions, in view of fact that any decision of the
board of governors of the state bar would be merely recommendatory and the only orders which would
have effect of disbarment or suspension would be the final orders of the supreme court. Comp. Laws, secs.
540 et seq., 565.
2. Attorney and ClientConstitutional Law.
The statute providing for disbarment proceedings to be brought before the board of governors of the state
bar is not violative of constitutional provision relating to distribution of governmental powers, in view of
fact that the statute does not invest the board with judicial powers and any decision of the board is merely
recommendatory in character and the orders which effectuate disbarment or suspension are
the final orders of the supreme court.
60 Nev. 296, 297 (1940) In Re Platz
orders which effectuate disbarment or suspension are the final orders of the supreme court. Comp. Laws,
565; Const. art. 3, sec. 1.
The state bar act providing for disbarment of attorneys in proceedings before the board of governors of
the state bar, the decision of which is reviewable by the supreme court, is not void as depriving attorney of
property without due process of law. Comp. Laws, sec. 565.
The supreme court had power to order suspension of attorney for failure to pay dues for membership in
the state bar. Comp. Laws, sec. 540 et seq.
5. Courts.
An opinion of the supreme court of California construing sections of a California statute which were
identical to sections of a similar Nevada statute was entitled to great weight in construction by the supreme
court of Nevada of the sections in the Nevada statute. Comp. Laws, secs. 585, 586.
The effect of statutes requiring suspension of attorneys from membership in state bar for nonpayment of
fees, and providing that only active members of the state bar may practice law, is to require suspension for
practice of law of a member of the state bar who is in default in membership fees. Comp. Laws, secs. 585,
586.
An order of the supreme court suspending attorney from membership in the state bar because of
nonpayment of membership fees suspended the attorney from the practice of law and rendered him subject
to disciplinary action for his filing and trying of a divorce action during the period of suspension. Comp.
Laws, secs. 585, 586.
The statute relating to suspension of an attorney from membership in the state bar, for failure to pay
membership fees which provides written notice and gives reasonable time for an attorney to renew his good
standing in the state bar, is not construable as affording an attorney a right of a hearing before he can be
suspended. Comp. Laws, sec. 585.
Where attorney, who was delinquent in membership fees in the state bar, received notice concerning
delinquency and notice of order of the supreme court suspending him from membership in the state bar, the
supreme court's order was not invalid on ground that it was made without notice and therefore denied the
attorney due process of law, since the attorney had no statutory right to a hearing. Comp. Laws, sec. 585.
60 Nev. 296, 298 (1940) In Re Platz
The state bar has right under police power to collect state bar membership dues from attorneys. Comp.
Laws, sec. 540 et. seq.
11. StatesStatutes.
Under the constitution, the governor is invested exclusively with power to determine what occasion shall
warrant convening of legislature in special session and to designate what legislative business shall be
transacted thereat. Const. art. 5, sec. 9.
12. Statutes.
Under constitutional provision authorizing governor on extraordinary occasions to convene legislature for
special session, and providing that legislature in such case shall transact no business except that for which
it is specially convened or such other legislative business as the governor may call to the attention of the
legislature, the quoted words were used in their natural and ordinary sense and proposed legislation that is
not of an urgent nature may be called to the attention of the legislature and transacted at special session.
Const. art. 5, sec. 9.
The presumption is always in favor of constitutionality of a statute.
14. Statutes.
Any piece of legislation should be held within the call or message of the governor to the legislature in
special session if it can be done by any reasonable construction. Const. art. 5, sec. 9.
15. Statutes.
The language of constitutional provision authorizing governor to call extra sessions of the legislature
must be strictly construed in favor of the power of the legislature to enact legislation pursuant to the
constitutional authority. Const. art. 5, sec. 9.
16. Statutes.
The state bar act, which was not included within the legislative business for which the legislature which
enacted it was convened in special session, but which was called to the attention of the legislature by the
governor in a supplemental message, was not void on ground that it was not of an urgent nature and of such
a type as to admit of no delay. Comp. Laws, sec. 540 et seq.; Const. art. 5, sec. 9.
17. Statutes.
Where the governor called to attention of special session of the legislature proposed state bar act, which
was subsequently passed by such legislature, the alleged fact that the governor did not show such interest in
the matter as to urge the passage of legislation and fact that the act did not fall within the sphere of
legislation that was circumscribed by the original executive message calling the
legislature into special session did not invalidate the act.
60 Nev. 296, 299 (1940) In Re Platz
within the sphere of legislation that was circumscribed by the original executive message calling the
legislature into special session did not invalidate the act. Comp. Laws, sec. 540 et seq.; Const. art. 5,
sec. 9.
The sections of the state bar act relating to creation and membership of the state bar, to membership fees,
to requirement that only active members practice law, and to unlawful practice, are not unconstitutional on
ground that they are mandatory and coercive and consequently deprive attorneys of vested rights and
privileges in the practice of law. Comp. Laws, sec. 541-547, 581, 582, 584, 586, 588.
The legal profession is a proper subject of legislative regulation and control.
20. Statutes.
to requirement that only active members practice law, and to unlawful practice, are not unconstitutional on
ground that they are not uniform and equal as to the classes affected thereby. Comp. Laws, secs. 541-547,
581, 582, 584, 586, 588.
to requirement that only active members practice law, and to unlawful practice, are not void on ground that
they operate as a bill of attainder. Comp. Laws, secs. 541-547, 581, 582, 584, 586, 588.
Where attorney filed and tried divorce action while he was suspended from membership in state bar for
failure to pay membership fees, but subsequently he paid the fees and was reinstated, and the board of
governors of the state bar recommended suspension of attorney because of his unlawful practice of law but
did not recommend definite period of suspension, the attorney, who had been under cloud of suspension
proceedings for some time, was suspended from membership in the state bar for period of two months, and,
until reinstated by order of the supreme court, his license to practice law was revoked and he was enjoined
from practicing until he should be reinstated. Comp. Laws, secs. 565, 585, 586.
Original proceeding in the matter of the petition of Arthur A. Platz, attorney at law, to
review the recommendation of the Board of Governors of the State Bar of Nevada that the
petitioner be suspended until further order of the Supreme Court, that his name be stricken
from roll of attorneys of the State Bar and from the roll of members of the State Bar, and
that he be prohibited from practice of law during period of his suspension.
60 Nev. 296, 300 (1940) In Re Platz
from the roll of members of the State Bar, and that he be prohibited from practice of law
during period of his suspension. Order in accordance with opinion suspending petitioner
for period of two months.
Arthur A. Platz, pro se, and D. W. Priest, for Petitioner.
Alan Bible, for State Bar of Nevada.
OPINION
This is a proceeding to review the action of the board of governors of the state bar of
Nevada. Petitioner was an attorney at law licensed to practice law in the courts of this state
when the state bar act, Comp. Laws, sec. 540 et seq., went into effect. By virtue of the
provisions thereof he became a member and for a time after its organization paid dues as an
active member. He became delinquent in the payment of dues, and on the 18th day of
September 1937, by an order of the supreme court, was suspended from membership in the
state bar for failure to pay the same. He paid these dues and on March 29, 1939, was duly
reinstated by order of the court. During his suspension, on October 18, 1938, he filed and
tried a divorce action in the first judicial district court of the state of Nevada, in and for
Storey County. On this account the local administrative committee of the proper district took
action against him for a violation of section 47 of the state bar act. Petitioner filed an answer
to the notice to show cause and appeared before the committee. In his answer he admitted,
among other things, his failure to pay dues, his suspension therefor by order of the supreme
court, and his conduct in filing and trying the divorce action during the time of his
suspension. In his answer he questioned the jurisdiction of the state bar and also set up
matters in extenuation.
60 Nev. 296, 301 (1940) In Re Platz
the jurisdiction of the state bar and also set up matters in extenuation. After a full hearing the
local administrative committee concluded that his conduct in reference to the divorce action
was in violation of said section and recommended that the board of governors institute the
proper proceedings for the suspension of petitioner for six months, or for his punishment for
contempt in practicing law in violation of the court's order and in violation of said section. At
a meeting of the board of governors held on November 18, 1939, petitioner appeared and was
heard orally. The board of governors concluded that petitioner's said conduct violated said
section 47 of the state bar act of Nevada, and recommended that he be suspended until the
further order of this court; that his name be stricken from the roll of attorneys of the state bar
of Nevada and from the roll of members of the state bar of Nevada; ; that he be prohibited
from the practice of law during the period of his suspension. This proceeding is before us by
his petition for review.
It is conceded by petitioner that no questions of fact are involved. He bases his defense
upon issues of law.
1. Petitioner raises many questions which have been elaborately argued in briefs and
orally. Some of them have been foreclosed by decisions of this court, such as the contention
that the state bar had no jurisdiction to take the proceedings against him because it is not a
court and cannot exercise judicial functions. See In re Scott, 53 Nev. 24, 292 P. 291; State ex
rel. McCloskey v. Greathouse, 55 Nev. 409, 36 P.(2d) 357; Haviland v. Foley et al., 55 Nev.
455, 39 P.(2d) 198.
2. In the former case we held on the authority of In re Shattuck, 208 Cal. 6, 279 P. 998,
construing section 26 of the state bar act of California, identical in language of that of section
26 of our bar act, that any decision which the board of bar governors may be empowered to
make in a proceeding pending before it is merely recommendatory in character, and the only
orders which have the effect of disbarment or suspension of a person are the final orders
of the supreme court, and that the section does not violate article 3, section 1, of the
constitution relative to the distribution of governmental powers, as the statute does not
invest the board with judicial powers.
60 Nev. 296, 302 (1940) In Re Platz
orders which have the effect of disbarment or suspension of a person are the final orders of
the supreme court, and that the section does not violate article 3, section 1, of the constitution
relative to the distribution of governmental powers, as the statute does not invest the board
with judicial powers. The subsequent decisions of this court cited above recognized and
affirmed the holding in Re Scott, supra. We find nothing in the argument of petitioner or his
counsel to induce us to reexamine these cases, or the case of In re Shattuck, supra. In addition
we cite Brydonjack v. State Bar, 208 Cal. 439, 281 P. 1018, 66 A.L.R. 1507. See State Bar v.
McGhee, 148 Okl. 219, 298 P. 580.
3. The same authorities are conclusive against the contention that the power to discipline,
suspend or disbar attorneys from the practice of the law has been unlawfully conferred upon
the state bar contrary to article 3, section 1 of the state constitution. No such power is
conferred or could be conferred. It rests with the supreme court alone, as has been repeatedly
held by this and other courts. The contention that the state bar act is unconstitutional in that it
deprives petitioner of a valuable property right without due process of law, may be similarly
disposed of. In re Scott, supra; In re Petersen, 208 Cal. 42, 280 P. 124.
In the former case we held, in reply to the contention that the state bar act was
unconstitutional in that it deprived the petitioner of his property without due process: But, if
for the purpose of the State Bar Act, the right to practice law is to be regarded as a property
right, the statute meets every requirement of the constitution. Provision is made for a full and
complete hearing of all complaints lodged against a member of the bar, and for review before
the Board of Governors, coupled with a review by the Supreme Court. The facts and the law
both being subject to review and final decision by the supreme court, we do not consider that
the petitioner was denied due process of law. [53 Nev. 24, 292 P.
60 Nev. 296, 303 (1940) In Re Platz
292 P. 295.] Citing In re Petersen, supra; In re Edwards, 45 Idaho 676, 266 P. 665; In re
Bruen, 102 Wash. 472, 172 P. 1152; McVicar v. State Board of Law Examiners, D. C., 6
F.(2d) 33, 35. In Re Petersen, supra [280 P. 125], the court said: By section 26 of the State
Bar Act * * * the power of disbarment rests finally and solely with this court. * * * Nor does
a proceeding under the State Bar Act deprive any one of property or right without due process
of law, since notice and hearing are provided for, and a hearing is given in the court of last
resort.
Petitioner contends that the notice to show cause upon which the proceedings before the
local administrative committee was based does not state facts sufficient to constitute an
offense under the laws of Nevada, which the state bar could have jurisdiction and power to
determine. His first point in this regard is based on an assumption that he committed no
offense rendering him liable to disciplinary action in filing and trying the divorce case
because the order of the supreme court suspending him from membership in the state bar did
not carry with it suspension from the practice of law. This position cannot be sustained.
Section 47 of the state bar act provides: No person shall practice law in this state subsequent
to the organization meeting of the state bar unless he shall be an active member thereof as
hereinbefore defined.
4. By force of the supreme court's order petitioner ceased to be a member of the state bar.
The power of the supreme court to make the order cannot be questioned. Petitioner then was
not a member when he did practice law as charged, and consequently came within the
prohibition of the section. That such would be the effect of a valid suspension from
membership was recognized by this court in State ex rel. McCloskey v. Greathouse, supra.
We held the order of suspension in that case ineffective to deprive the intervener therein of
membership because made only by the state bar. In the course of the opinion the court said
[55 Nev. 409, 36 P.{2d) 35S]: "The order of suspension made by the State Bar was never
called to the attention of this court, and consequently no order of suspension was made
thereon or at all in this court.
60 Nev. 296, 304 (1940) In Re Platz
the course of the opinion the court said [55 Nev. 409, 36 P.(2d) 358]: The order of
suspension made by the State Bar was never called to the attention of this court, and
consequently no order of suspension was made thereon or at all in this court. The action of
the State Bar in this respect, if effective, would amount to a suspension of intervener's right to
practice law. This would follow as of course by reason of section 47 of the State Bar Act,
section 586 N.C.L., which reads: [Section quoted].
Section 46 of the state bar act provides in part: Any member * * * failing to pay any fees
* * * and after two months' written notice of his delinquency, must be suspended from
membership in the state bar.
5. As we pointed out in the case supra, sections 46 and 47 of the state bar act of California
are identical in language with the same sections of our state bar act. We further pointed out
that the supreme court of California in Carpenter v. State Bar of California, 211 Cal. 358, 295
P. 23, was of the opinion that the effect of those sections was to suspend a member in default
in membership fees from practicing law. As these sections are the same as the sections of the
state bar act of California, the opinion of the supreme court of that state is of great weight.
6, 7. The fact that the court in its order suspended petitioner from the practice of law
instead of from membership in the state bar or from both, is of no importance. Its order was
merely its ultimate conclusion as to the effect of the section quoted. If such is the true effect
of the sections, and we are convinced that it is, the order of the supreme court in the instant
case suspending petitioner from membership in the state bar suspended him from the practice
of law.
A different effect cannot be given sections 46 and 47 by the fact stressed by counsel for
petitioner, that in decisions of the supreme courts of California and Nevada under their
respective bar acts, orders were made suspending or disbarring attorneys from the practice
of law for derelictions other than for the nonpayment of membership fees.
60 Nev. 296, 305 (1940) In Re Platz
made suspending or disbarring attorneys from the practice of law for derelictions other than
for the nonpayment of membership fees. There is nothing in the case of In re Pilkington, 56
Nev. 295, 49 P.(2d) 965, and In re Alward, 59 Nev. 102, 86 P. (2d) 27, in which orders were
made suspending the accused both from membership in the state bar and from the practice of
law for such other derelictions, that supports petitioner's contention. Those cases did not
decide or intimate that suspension from membership for the nonpayment of membership fees
does not suspend from the practice of law.
8, 9. There is no merit in the claim that the order of the supreme court was invalid because
made without notice and therefore denied petitioner due process of law. We are satisfied that
section 46 cannot be construed as affording a delinquent the right of a hearing before he can
be suspended. The statute provides written notice and gives a reasonable time thereafter for
one in default to renew his good standing in the state bar. A hearing would not be of any
advantage to the delinquent, and the statute itself preserves to him the right of reinstatement.
In the instant case petitioner admits his delinquency and that he received the statutory notice
as to such delinquency. He also admits that he received notice of the order of the supreme
court suspending him from membership in the state bar, and that he did thereafter practice
law. Under such circumstances the case is clearly in point with Hoodenpyl v. State Bar of
Oklahoma, 178 Okl. 264, 62 P.(2d) 980, cited by respondent. The state bar act of that state is
very like the state bar act of California. It provides an annual membership fee of $5 for active
members. A section corresponding to section 46 of our bar act provides: Any member,
active or inactive, failing to pay any fees after the same become due, and after two months'
written notice by registered mail of his delinquency, must be suspended from membership in
The State Bar. 5 Okl. St. Ann., sec. 65. In the course of its opinion the court said: "In this
appeal, however, the accused does not claim to have paid the annual dues; neither does
he deny that he received the notice provided by statute, nor does he deny that he
engaged in the practice of law in the interim between the date of his suspension and his
application for and reinstatement, but bases his contention upon highly technical
grounds, one of which is that he had no trial or hearing before he was suspended."
60 Nev. 296, 306 (1940) In Re Platz
In the course of its opinion the court said: In this appeal, however, the accused does not
claim to have paid the annual dues; neither does he deny that he received the notice provided
by statute, nor does he deny that he engaged in the practice of law in the interim between the
date of his suspension and his application for and reinstatement, but bases his contention
upon highly technical grounds, one of which is that he had no trial or hearing before he was
suspended.
In construing the section corresponding to section 46, the court said: As we view it, the
language of the statute is not susceptible of the construction that a delinquent member of the
Bar may demand and be granted a hearing before he is suspended for nonpayment of his
annual dues.
We are in accord with this view.
10. Petitioner challenges the power of the state bar to collect membership dues, in the
exercise of police powers. The claim is not supported by any authority. All authority is to the
contrary. Carpenter v. State Bar of California, supra, and cases cited therein. The court said
[211 Cal. 358, 295 P. 24]: It is true that petitioner disclaims liability and denies the power of
the board of governors to fix or collect membership dues or assess penalties, but he offers no
argument or authority germane to the subject. The validity of the State Bar Act as a regulatory
measure under the police power has been repeatedly upheld by this court. When that fact is
conceded, it follows as a matter of course that the reasonable expenses necessary to pay the
costs of enforcement of the act, in furtherance of the purposes thereof, may be imposed upon
the membership in the form of fees or dues. (Citing cases.)
The state bar act was enacted at a special session of the legislature in January 1928. Both
petitioner and his counsel assert that the act is void in its entirety because not within the
purview of article V, section 9, of the state constitution by which the governor is empowered
to convene the legislature in special session.
60 Nev. 296, 307 (1940) In Re Platz
The section reads: The governor may, on extraordinary occasions, convene the legislature by
proclamation, and state to both houses, when organized, the purpose for which they have
been convened, and the legislature shall transact no legislative business except that for which
they were especially convened, or such other legislative business as the governor may call to
the attention of the legislature while in session.
A call for enactment of a state bar act was not included within the legislative business for
which the legislature was convened. It was called to the attention of the legislature in a
supplemental message, which was as follows: I have been asked to recommend the passage
of laws incorporating the American Legion and the State Bar Association, and bills for these
purposes will be introduced.
11. It is contended by counsel for petitioner that the act was not within the scope of other
legislative business which the governor may call to the attention of the legislature in special
session for these reasons, (1) the act was not of an urgent nature and of such a type as to
admit of no delay; (2) the governor in his message did not show such an interest in the matter
as to urge the passage of legislation upon it; (3) the act did not fall within the sphere of
legislation that was circumscribed by the original executive message calling the legislature
into special session. As to the urgency of the legislation, we think it was to be determined
solely by the governor. The section of the constitution invests him with extraordinary powers.
He is invested exclusively with the power to determine what occasion shall warrant the
convening of the legislature in special session and to designate what subject of legislative
business shall be transacted thereat. In re Governor's Proclamation, 19 Colo. 333, 35 P. 530.
The language such other legislative business as the governor may call to the attention of the
legislature is not susceptible of a construction that would negate these powers.
12. Counsel for petitioner relies on Jones v. Theall, 3 Nev. 233
60 Nev. 296, 308 (1940) In Re Platz
3 Nev. 233, to sustain his position that only legislation of an urgent nature may be transacted
at a special session, and such as would admit of no delay, and quotes freely therefrom. It is
true the court in that case did state that such was the character of proposed legislation which
would authorize the governor to invoke a special session, but it did not hold, or say, or
intimate, that such must be the nature of other legislative business the governor might deem
proper to call to the attention of the legislature while in session. On the other hand, the court
said: The powers of the Legislature at its special sessions are expressly and clearly limited to
the transaction of the business for which it may be convened, or such other business as the
Executive may call to its attention whilst it is in session. And again: * * * we are confirmed
in the opinion that it is the purpose of the Constitution to forbid consideration of any but such
business as the Governor may deem necessary to be transacted at such sessions * * *.
13-16. We are also of that view and presume the words such other legislative business as
the Governor may call to the attention of the Legislature have been employed in their natural
and ordinary meaning. The general rule that the presumption is always in favor of the
constitutionality of an act is applicable here, and any piece of legislation should be held
within the call or message of the governor to the legislature in special session if it can be done
by any reasonable construction. 25 R.C.L. 806. The language must be strictly construed in
favor of the power of the legislature to enact the legislation under it. As declared in Baldwin
v. State, 21 Tex. App. 591, 3 S. W. 109, 111: Legislative power, except when the
constitution has imposed limits upon it, is practically absolute; and, when limitations upon it
are imposed, they are to be strictly construed, and are not to be given effect as against the
general power of the legislature, unless such limitations clearly inhibit the act in question.
Cooley, Const. Lim. 204. 17.
60 Nev. 296, 309 (1940) In Re Platz
17. As to the second contention, it is sufficient that the governor called the proposed
legislation to the attention of the legislature. It is equally so as to the third contention.
Legislation enacted under the latter clause of the section of the constitution need not be the
same general nature or have any relation to the type of legislation for which the legislature
was especially convened. State v. Dishman, 64 Mont. 530, 210 P. 604. The language is too
plain and too comprehensive in its scope, to be restricted by the qualification contended for.
The doctrine of ejusdem generis, elaborately discussed by counsel in that connection, has no
application.
18, 19. Petitioner contends that sections 2, 3, 4, 5, 6, 7, 8, 42, 43, 45, 47, and 49 of the
state bar act are unconstitutional. The first contention in this respect is that they are
mandatory and coercive and consequently deprive petitioner of his vested rights and
privileges in the practice of law. This contention was decided adversely to petitioner's view in
Re Scott, supra, and we will not reiterate or amplify the ruling of that case. Suffice it to say
that the legal profession has long been held a proper subject of legislative regulation and
control. Carpenter v. State Bar, supra; In re Gibson, 35 N. M. 550, 4 P.(2d) 643, and Kelley v.
State Bar of Oklahoma, 148 Okl. 282, 298 P. 623, are likewise referred to as ruling on this
subject.
20, 21. The sections referred to are not unconstitutional as claimed, because they are not
uniform and equal as to the classes affected thereby. See State Bar v. Superior Court, 207 Cal.
323, 278 P. 432; In re Scott, supra. The contention that these sections deprive petitioner of a
vested property right has already been disposed of. There is no merit in the contention that
they operate as a bill of attainder. Kelley v. State Bar of Oklahoma, supra.
Petitioner makes other contentions, but they are so obviously without merit as to require
no special mention.
22. The board of governors recommended no definite period of suspension and we are
inclined to be lenient in our judgment.
60 Nev. 296, 310 (1940) In Re Platz
period of suspension and we are inclined to be lenient in our judgment. Petitioner has paid his
dues and has been reinstated to the practice of the law. He has been under the cloud of these
proceedings for some time and we feel that suspension for a short time will be sufficient
punishment.
It is therefore ordered that petitioner be and he is hereby suspended from membership in
the state bar of Nevada for a period of two months, and until he be reinstated by order of this
court; that his license to practice law in this state be and is hereby revoked; and that he be
enjoined from practicing law, directly or indirectly, until he is ordered reinstated by this court.
____________
60 Nev. 310, 310 (1940) Nev.-Cal. Transp. Co. v. Public Serv. Comm'n
NEVADA-CALIFORNIA TRANSPORTATION COMPANY, INC., a Corporation,
Petitioner, v. THE PUBLIC SERVICE COMMISSION OF THE STATE OF NEVADA, Et
Al., Respondents.
No. 3297
June 5, 1940. 103 P.(2d) 43.
1. Automobiles.
An action to vacate an order of public service commission granting a certificate of convenience and
necessity can be maintained in district court under provisions of statute authorizing a dissatisfied party in
interest to maintain district court action to vacate an order of the public service commission. Comp. Laws,
secs. 6133, 6137, subd. 5.
2. Public Service Commission.
The provision in statute requiring transmission of evidence produced at trial to vacate order of public
service commission by district court to commission, unless otherwise stipulated by parties, which
prescribes period of time within which commission shall report its action thereon to the court, is not
mandatory, but only directory. Comp. Laws, sec. 6133(b).
3. Automobiles.
In action to vacate public service commission's order granting transportation company certificate of
convenience and necessity, where evidence was transmitted by trial court to the commission, as
provided by statute, trial court did not act arbitrarily in allowing commission more
than 10 days from transmission of evidence to report its action thereon to trial court,
and in staying proceedings beyond 15 days, where commission within 10 days
informed court that it was unable to report its action on order because one of
members was out of the state on state business, and company made no objection.
commission, as provided by statute, trial court did not act arbitrarily in allowing commission more than 10
days from transmission of evidence to report its action thereon to trial court, and in staying proceedings
beyond 15 days, where commission within 10 days informed court that it was unable to report its action on
order because one of members was out of the state on state business, and company made no objection.
Rescission by public service commission of a certificate of convenience and necessity, after evidence
produced at trial of action to set aside order was transmitted by district court to commission, without giving
holder of certificate due notice and opportunity to appear, did not deprive holder of due process, where
holder was one of defendants in action in district court, and did not offer to stipulate that court proceed to
judicial determination of issues involved without transmitting evidence to commission. Comp. Laws, sec.
6133.
Original proceeding by the Nevada-California Transportation Company, Inc., against the
Public Service Commission of the State of Nevada, and C. B. Sexton and others, as members
of the Public Service Commission of the State of Nevada, for a writ of certiorari to review
action of respondents in rescinding a previous order granting petitioner a certificate of
convenience and necessity. Writ denied.
James T. Boyd and Harley A. Harmon, for Petitioner.
Gray Mashburn, Attorney-General and W. T. Mathews and Alan Bible, Deputy
Attorneys-General, for Respondents.
Brown & Belford and Walter Rowson, Amici Curiae.
OPINION
In February 1938 petitioner obtained from the public service commission a certificate of
convenience and necessity, authorizing it to transport freight as a common carrier on the
state highway between Reno and Tonopah and certain intermediate points. In May of the
same year, Tonopah & Goldfield Railroad Company, Railway Express Agency, Inc., Pacific
Motor Transport Company, and Southern Pacific Company commenced an action in the
First judicial district court, Ormsby County, against the public service commission, the
members of that commission, and said Nevada-California Transportation Company, Inc.,
praying that the order granting petitioner said certificate of convenience and necessity be
vacated and set aside.
necessity, authorizing it to transport freight as a common carrier on the state highway
between Reno and Tonopah and certain intermediate points. In May of the same year,
Tonopah & Goldfield Railroad Company, Railway Express Agency, Inc., Pacific Motor
Transport Company, and Southern Pacific Company commenced an action in the First
judicial district court, Ormsby County, against the public service commission, the members
of that commission, and said Nevada-California Transportation Company, Inc., praying that
the order granting petitioner said certificate of convenience and necessity be vacated and set
aside. Defendants demurred to the complaint upon the ground that it did not state facts
sufficient to constitute a cause of action, and upon the further ground that said district court
had no jurisdiction of the subject matter of the action. The demurrer was overruled, and the
commission and petitioner then petitioned this court for a writ of prohibition, which was
denied. Public Service Commission v. First Judicial District Court of Ormsby County, 59
Nev. 91, 85 P.(2d) 70. Defendants, in said district court action, then answered the complaint.
The cause came on for trial on April 17, 1939.
When the taking of evidence had been concluded, the district court found that evidence
introduced by the plaintiffs was different from and additional to that offered upon the hearing
before the commission, and transmitted a copy of such evidence to the commission, pursuant
to subdivision (b) of section 6133 N.C.L. 1929. Section 6133 is the section under which said
district court action was commenced, and subdivision (b) reads as follows: If, upon the trial
of such action, evidence shall be introduced by the plaintiff which is found by the court to be
different from that offered upon the hearing before the commission, or additional thereto, the
court, before proceeding to render judgment, unless the parties of such action stipulate in
writing to the contrary, shall transmit a copy of such evidence to the commission, and shall
stay further proceedings in said action for fifteen {15) days from the date of such
transmission.
commission, and shall stay further proceedings in said action for fifteen (15) days from the
date of such transmission. Upon receipt of such evidence the commission shall consider the
same, and may alter, modify, amend, or rescind its orders relating to such rate or rates, fares,
charges, classifications, joint rate or rates, regulation, practice, or service complained of in
said action, and shall report its action thereon to said court within ten days from the receipt of
such evidence.
After receiving said evidence the commission, having considered the same, rescinded its
previous order granting a certificate of convenience and necessity to petitioner, and reported
its action to said district court on June 13, 1939. Thereupon the court, upon motion of the
plaintiffs, and in compliance with the provisions of subdivision (c) of section 6133 N.C.L.
1929, dismissed the action. Defendants moved for a new trial, which was denied. Defendants
then appealed to this court, but the appeal was dismissed on January 4, 1940.
Nevada-California Transp. Co. v. Tonopah & Goldfield R. Co., 60 Nev. 14, 97 P.(2d) 433.
While the appeal was pending, Nevada-California Transportation Company, Inc., on
November 13, 1939, petitioned this court for a writ of certiorari, basing its petition upon the
grounds: (1) that in rescinding the order granting petitioner a certificate of convenience and
necessity, the commission exceeded its jurisdiction; (2) that in rescinding said order, the
commission was exercising judicial functions; and (3) that there was no appeal from the
commission's order of rescission, nor any plain, speedy and adequate remedy.
Respondents have moved this court to quash the writ and dismiss this proceeding, upon
the ground that the commission, in entering the order complained of, was not exercising
judicial functions.
As this court is of the opinion that the commission, in making the order of rescission, did
not exceed its jurisdiction, and regularly pursued its authority, it becomes unnecessary to
rule on the motion to quash and dismiss or to decide whether petitioner had or has any
plain, speedy and adequate remedy.
becomes unnecessary to rule on the motion to quash and dismiss or to decide whether
petitioner had or has any plain, speedy and adequate remedy.
1. Some of the contentions made by petitioner have heretofore been passed upon by this
court in the case of Public Service Commission v. First Judicial District Court of Ormsby
County, 59 Nev. 91, 85 P.(2d) 70, in which it was held that an action to vacate an order of the
public service commission granting a certificate of convenience and necessity may be
maintained in the district court under the provisions of section 6133 N.C.L. 1929. The first
part of the second sentence in the fifth paragraph of section 6137 N.C.L. 1929 should be read
in connection with said section 6133. It reads as follows: Every order refusing or granting
any certificates of public convenience, or granting or refusing permission to discontinue,
modify, or restrict service, as provided in this section, shall be prima facie lawful from the
date of the order until changed or modified by the order of the commission or in pursuance of
section 33 of this act; * * *.
Petitioner contends that the order of rescission was invalid because the clear provisions of
subdivision (b) of section 6133 N.C.L. 1929 were not complied with, the commission having
failed to report its action to the trial court within ten days from the receipt of the copy of
evidence transmitted to it by said court. The record discloses that within said time, and on
May 5, 1939, the commission made and transmitted to that court an order from which we
quote the following:
It Now Appearing, That the present Commission has read and considered all of the above
transcript; and
It Further Appearing, That one of the members of the Commission, namely Alfred Merrit
Smith, who was one of the Commission signing the original order granting Nevada-California
Transportation Company, Inc., a certificate of public convenience and necessity, is now in
Washington, D. C. on other state business; and, "It Further Appearing, That Commissioner
Smith has stated that he could not return to Nevada within the time provided by law for
the Commission to return its report herein to the Court; and
It Further Appearing, That Commissioner Smith has stated that he could not return to
Nevada within the time provided by law for the Commission to return its report herein to the
Court; and
It Now Appearing, That the two Commissioners present cannot come to an agreement
whether they shall sustain, rescind, alter or amend the former order of said Commission.
It Is Ordered, That a copy of this order, together with the transcript of the evidence
submitted to the Court, be transmitted forthwith to the Honorable Clark J. Guild, Judge of the
First Judicial District Court of the State of Nevada, in and for the County of Ormsby, to there
be dealt with as to said Judge shall be deemed meet.
On May 29, 1939, on motion of the attorney-general, the court again ordered the evidence
transmitted to the commission. Petitioner made no objection, nor did it take any exception, to
this action of the court, though its counsel was present when the order was made. On June 5,
1939, by reason of further absence on state business of one of the members of the
commission, the court, on application of the commission, stayed all proceedings in the action
and allowed the commission to and including June 19, 1939, within which to report its action
to the court. The commission, as we have seen, made its report on June 13, 1939. The record
does not show that petitioner was represented when the order of June 5 was made. However,
that order was not thereafter complained of by petitioner otherwise than by its objection,
taken at other stages of the proceedings, to the jurisdiction of the court to proceed at all under
said section 6133.
2, 3. We are satisfied that the provision of subdivision (b) of section 6133 N.C.L. 1929,
prescribing the period of time within which the commission shall report to the court is not
mandatory, but only directory. It seems unreasonable to attribute to the legislature, under
such circumstances as were made to appear in the court below, an intent to nullify the
action of the commission because its action and report, taken and made within the time
allowed by the court, were not so taken and made within ten days after its first receipt of
the copy of evidence.
such circumstances as were made to appear in the court below, an intent to nullify the action
of the commission because its action and report, taken and made within the time allowed by
the court, were not so taken and made within ten days after its first receipt of the copy of
evidence. 59 C.J. 1078, 1079, sec. 634; 25 R.C.L. 766, 767, 769, secs. 14, 16. We think the
court was authorized, under the circumstances, to stay proceedings beyond fifteen days from
the original date of transmission, and that in doing so it acted reasonably, not arbitrarily.
4. Petitioner contends that under the due process clause it was entitled to notice and
hearing before the public service commission before that body could lawfully issue an order
revoking its certificate, and that the commission gravely erred in not giving due notice and
affording petitioner an opportunity to appear and be heard. But this court has decided that the
action brought by plaintiffs in the district court was maintainable under the provisions of
section 6133 N.C.L. 1929. In that action the petitioner, as one of the defendants, was duly
served with process, appeared and participated in the trial. When the taking of evidence was
completed, petitioner did not offer, and plaintiffs did not refuse, to stipulate that the trial court
proceed to determine whether the order granting petitioner a certificate of convenience and
necessity should be vacated. Under the express provisions of subdivision (b) of section 6133
N.C.L. 1929, the parties could have stipulated that the trial court proceed to a judicial
determination of the issues involved without transmitting the evidence to the commission. As
petitioner did not offer, and the plaintiffs in said action did not refuse, so to stipulate,
petitioner is in no position to urge want of due process.
The court is not to be understood as holding that petitioner was or is without any remedy
in seeking relief from the order of rescission.
It is ordered and adjudged that the writ be denied.
August 24, 1940.
Petition for rehearing granted.
James T. Boyd and Harley A. Harmon, for Petitioner.
Gray Mashburn, Attorney-General, and W. T. Mathews and Alan Bible, Deputy
Attorneys-General, for Respondents.
Per Curiam:
Upon reading and considering the petition for rehearing filed herein on July 3, 1940, the
reply of respondents to said petition filed on July 25, 1940, and the reply of amici curiae to
said petition filed July 24, 1940, it is ordered that the petition for rehearing be, and the same
is hereby, granted; it is further ordered that said rehearing be, and the same is hereby, set for
Tuesday, the 24th day of September 1940 at the hour of 10 o'clock a.m.
On Rehearing
January 3, 1941. 108 P.(2d) 850.
1. Courts.
Where petitioner, in proceeding to prohibit district court from taking further
proceedings in an action to vacate an order of public service commission granting a
certificate of convenience and necessity, expressly stated that provisions of 1919 public
utilities act authorized a review by district court of an order of commission granting such
a certificate but that provisions had no application to motor vehicle carriers because they
were superseded as to that kind of carriers by motor vehicle act of 1933, petitioner could
not complain of supreme court's action in accepting the statements when considering the
prohibition proceedings. Comp. Laws, sec. 6133; Stats. 1933, c. 165, sec. 14.
2. Courts.
Points once determined by supreme court should not be unsettled except for very
weighty reasons.
3. Courts.
On an original certiorari proceeding to annul an order of public service commission
rescinding a previous order granting petitioner a certificate of convenience and necessity,
supreme court under doctrine of "stare decisis" would not unsettle its previous
decision rendered in a prohibition proceeding that provision in public utility act of
1919 authorizing a dissatisfied party in interest to maintain district court action to
vacate public service commission order fixing regulations was not repealed by
provision in motor carrier act of 1933 authorizing persons aggrieved by commission's
revocation of certificates of convenience and necessity to maintain district court
action to set aside such order of revocation, where supreme court was not convinced
that its former ruling was clearly wrong.
supreme court under doctrine of stare decisis would not unsettle its previous decision
rendered in a prohibition proceeding that provision in public utility act of 1919
authorizing a dissatisfied party in interest to maintain district court action to vacate
public service commission order fixing regulations was not repealed by provision in
motor carrier act of 1933 authorizing persons aggrieved by commission's revocation of
certificates of convenience and necessity to maintain district court action to set aside
such order of revocation, where supreme court was not convinced that its former ruling
was clearly wrong. Comp. Laws, sec. 6133; Stats. 1933, c. 165, sec. 14.
4. Certiorari.
Certiorari is not granted as a matter of right, but in sound discretion of a court.
On rehearing. Former opinion adhered to.
Harley A. Harmon, for Petitioner.
Attorneys-General for Respondents.
OPINION
By the Court, Taber C.J.:
Petitioner was granted a certificate of public convenience by the public service
commission of Nevada. The order granting the certificate was later set aside; the present
proceeding in certiorari seeks to have this order annulled. These matters are set forth more
fully in Public Service Comm. v. Dist. Ct. 59 Nev. 91, 85 P.(2d) 70; Nevada-California
Transp. Co. v. Tonopah, etc., R. Co., 60 Nev. 14, 97 P.(2d) 433; Nevada-California Transp.
Co. v. Public Service Comm., 60 Nev. 310, 103 P.(2d) 43.
Following the decision in the last case cited, a rehearing was granted. In this paragraph a
summary is given of the position taken by petitioner on the rehearing: Those desiring the
setting aside of the commission's order granting petitioner a certificate of public
convenience did not apply to the commission in the first instance for an order revoking
said certificate, pursuant to the provisions of section 14 of the motor vehicle act, Stats.
of the position taken by petitioner on the rehearing: Those desiring the setting aside of the
commission's order granting petitioner a certificate of public convenience did not apply to the
commission in the first instance for an order revoking said certificate, pursuant to the
provisions of section 14 of the motor vehicle act, Stats. 1933, c. 165; without first making
such an application, they could not maintain an action in the district court for vacating, setting
aside or rescinding said order; furthermore, section 6133 N.C.L. 1929, does not authorize
such an action as that brought in the district court; the entire series of proceedings from the
time the district court erroneously assumed jurisdiction under color of said section is without
any legal foundation, and null and void; the motor vehicle act of 1933 takes precedence over
other state statutes affecting motor vehicle carriers; section 14 of the 1933 act is the only
Nevada statute authorizing the commission to revoke a certificate once granted; no such
provision is to be found in the public service commission act of 1919, Comp. Laws, section
6100 et seq.; neither the 1919 act nor the 1933 act authorizes a district court action for
rescinding an order granting a certificate of public convenience; the commission set aside its
order granting petitioner a certificate of public convenience without any notice by, or hearing
before, said commission, and without good cause shown, in violation of the provisions of said
section 14 of the 1933 act; the fact that petitioner was given the opportunity to be heard in the
district court action does not meet the requirements of due process under the constitution,
because the district court was wholly without jurisdiction to entertain that action; the words
fixing any regulations, practices or services used in section 6133 N.C.L. 1929 cannot be
stretched to include within their meaning the granting of a certificate of public convenience;
the words changed or modified, in the fifth paragraph of section 6137 N.C.L. 1929 cannot
properly be interpreted as including rescinded, or vacated, or set aside within their
meaning; in order to properly construe section 33 of the public service commission act of
1919, section 6133 N.C.L. 1929, it is necessary to read sections 25 to 33, both inclusive,
of the same act, sections 6125 to 6133 N.C.L. 1929; these sections form a distinct
subdivision of the act, dealing with the same subject and prescribing what is to be done,
step by step, from beginning to end; said section 25, section 6125 N.C.L. 1929 furnishes
the key to all that follows; the exclusive scope of complaints filed under section 25 is the
rates or charges made by a public utility, or the service given; section 33 simply provides
for the usual legal recourse in instances where a utility believes that it has good grounds
to resist an order, affecting its rates or services, which the commission has made after the
investigation and hearing provided for in section 25 and the following sections; section 33
is an appeal procedure, placed in the statute for the benefits of a utility against which an
unlawful or unreasonable order might be directed by the commission; if sufficient
grounds exist for rescinding such an order, its rescission is entirely reasonable; it leaves
the utility where it was before; its contentions have been upheld and it has suffered no
injury; but when section 33 is invoked for the purpose of rescinding a certificate already
granted, the district court action, instead of protecting the rights of the party directly in
interest, has an opposite effect; in this latter case the order of rescission made pursuant
to such court action does not leave matters as they were before, but puts the certificate
holder out of business.
their meaning; in order to properly construe section 33 of the public service commission act
of 1919, section 6133 N.C.L. 1929, it is necessary to read sections 25 to 33, both inclusive, of
the same act, sections 6125 to 6133 N.C.L. 1929; these sections form a distinct subdivision of
the act, dealing with the same subject and prescribing what is to be done, step by step, from
beginning to end; said section 25, section 6125 N.C.L. 1929 furnishes the key to all that
follows; the exclusive scope of complaints filed under section 25 is the rates or charges made
by a public utility, or the service given; section 33 simply provides for the usual legal
recourse in instances where a utility believes that it has good grounds to resist an order,
affecting its rates or services, which the commission has made after the investigation and
hearing provided for in section 25 and the following sections; section 33 is an appeal
procedure, placed in the statute for the benefits of a utility against which an unlawful or
unreasonable order might be directed by the commission; if sufficient grounds exist for
rescinding such an order, its rescission is entirely reasonable; it leaves the utility where it was
before; its contentions have been upheld and it has suffered no injury; but when section 33 is
invoked for the purpose of rescinding a certificate already granted, the district court action,
instead of protecting the rights of the party directly in interest, has an opposite effect; in this
latter case the order of rescission made pursuant to such court action does not leave matters as
they were before, but puts the certificate holder out of business.
1. After defendants' demurrer to plaintiffs' complaint in the district court action was
overruled, defendants, of whom petitioner herein was one, applied to this court for a writ
prohibiting the district court and its judge from taking any further proceedings in said action,
except to dismiss the same. Public Service Commission et al. v. District Court, supra. In their
brief in that proceeding, petitioners expressly stated that the provisions of the 1919 act
authorized a district court action for the review of an order of the commission granting a
certificate of public convenience.
provisions of the 1919 act authorized a district court action for the review of an order of the
commission granting a certificate of public convenience. We quote from that brief: Nowhere
in the Act (of 1933) are there any provisions made for a review of the Commission's action in
granting the certificate of convenience and necessity as is contained in section 36 1/2 of the
Public Utility Act (sec. 6137 N.C.L. 1929). Again, in the same brief: There is no provision
in the Public Utility Act for the revocation of the certificate of convenience and necessity by
the Commission, but there is the provision with reference to appealing to the courts from
every order refusing or granting any certificates of public convenience' (sec. 6137 N.C.L.
1929). Petitioner is in no position to complain of this court's action in accepting these
statements when considering the prohibition proceeding. In that proceeding the position taken
by the petitioners was not that there are no provisions in the public utility act of 1919
authorizing a review by the district court of an order of the commission granting a certificate
of public convenience, but that said provisions have no application to motor vehicle carriers
because they were superseded as to that kind of carriers by the motor vehicle act of 1933. We
observe further that petitioners in that case did not contend, as petitioner does in the instant
certiorari proceeding, that it was necessary for plaintiffs in the district court action to apply in
the first instance to the commission for an order revoking petitioner's certificate before
resorting to any court action. It will thus be seen that in two important particulars petitioner in
the pending proceeding has changed its position from that taken in the prohibition case.
Section 14 of the motor vehicle act of 1933 authorizes any person aggrieved by an order of
the commission revoking a certificate of public convenience to commence an action in the
district court for vacating and setting aside such order. No such right is given to any person
aggrieved by an order of the commission refusing to revoke such a permit.
person aggrieved by an order of the commission refusing to revoke such a permit. In the
prohibition case, Public Service Commission v. District Court, supra, it was held that the
legislature, in authorizing a district court action by a person aggrieved by an order of the
commission revoking a certificate of public convenience, was simply protecting such person
against any unlawful or unreasonable order of revocation. It was further held in that case that
the provisions of section 33 of the public service commission act of 1919, section 6133
N.C.L. 1929, were not superseded by the motor vehicle act of 1933.
No petition for rehearing was filed in the prohibition case; instead, defendants in the
district court action (petitioners in the prohibition proceeding) filed their answer and went to
trial. As the result of that trial, the order heretofore made granting petitioner a certificate of
public convenience was set aside by the commission, and the district court action dismissed
on application of the plaintiffs pursuant to paragraph (c) of said section 33 of the public
service commission act of 1919, section 6133 N.C.L. 1929. An appeal was taken to this court
from the judgment of dismissal, but the appeal was dismissed. Nevada-California Transp. Co.
v. Tonopah, etc., R. Co., supra. Thereupon the instant proceeding in certiorari was instituted,
based upon petitioner's contention that the commission had exceeded its jurisdiction and had
not regularly pursued its authority in setting aside its previous order granting petitioner a
certificate of public convenience. In asking this court to annul the order of the commission
setting aside its previous order granting the certificate of public convenience, petitioner is
asking the court to reverse its decision in the prohibition case, because its contention that the
commission's order was null and void is based upon the proposition that the district court was
wholly without jurisdiction of the action commenced in that court to set aside the order
granting the certificate.
2. The points determined in the prohibition case should not be unsettled except for very
weighty and conclusive reasons. Maitia v. Allied L. & L. S. Co., 49 Nev. 451, 461, 248 P.
893; Evans v. Cook, 11 Nev. 69. The situation here, though not the same, is similar in
principle to that in Barrett v. Franke, 48 Nev. 175, 177, 228 P. 306, and in Bottini v.
Mongolo, 45 Nev. 252, 254, 255, 200 P. 451.
3. We do not hold that the decision in the prohibition case absolutely deprives this court
of jurisdiction or power to reverse the rulings in that case in the proceeding at bar. If the court
were convinced that its ruling in the prohibition case was clearly and palpably erroneous, and
that the decisions in that case and the present one were inconsistent and unjust, it would be
our duty to correct rather than perpetuate the errors. Not being so convinced, the court should
not disregard the salutary rule of stare decisis. This is particularly true here, where the parties
are for the most part the same and the litigation has arisen out of practically the same facts. It
is true that, in the present proceeding, it is sought to annul an order of the public service
commission, while in the prohibition case the purpose of the proceeding was to prevent the
district court from going any further with the action commenced in that court by petitioner's
opponents; but the alleged invalidity of the commission's order sought to be nullified is based
upon the same contention as that in the prohibition case, namely, that the district court was
without any jurisdiction whatever of the action to set aside the commission's order granting
petitioner's certificate.
4. Certiorari is not granted as a matter of right, but in the sound discretion of the court.
Nevada Lincoln Co. v. Dist. Ct., 43 Nev. 396, 402, 187 P. 1006. In the prohibition case the
petitioner took a certain position. After the decision in that case, and after failing to file a
petition for a rehearing therein and answering and going to trial in the district court action,
petitioner now comes into this court in the instant proceeding taking a position materially
different from that in the prohibition case.
taking a position materially different from that in the prohibition case.
In view of what has been said it would not, in our opinion, be the exercise of a sound
discretion to grant petitioner's prayer in this proceeding. It is, therefore, again ordered and
adjudged that the writ be denied.
____________
60 Nev. 324, 324 (1941) Seavy v. I. X. L. Laundry Co.
WALTER EARL SEAVY, Respondent, v. I. X. L. LAUNDRY COMPANY, a Corporation,
NELLIE M. REED, BURT A. REED and ARTHUR F. LASHER, Appellants.
No. 3280
January 7, 1941. 108 P.(2d) 853.
1. Landlord and Tenant.
Evidence that a person, entering a laundry company's building to make a business call on a tenant, was
injured by stepping into hot water and steam in an unguarded hole cut in the concrete floor of a toilet used
in common by the company's employees and by the tenant's employees and business guests, held to support
the trial court's findings holding the company liable to the injured person.
2. Corporations.
A corporation is a creature of statute and statutory provisions control the power of corporations after
dissolution. Comp. Laws, secs. 1664-1666.
3. Corporations.
The provision in the statute continuing a dissolved corporation for three years for the purpose of
prosecuting and defending suits is in no manner controlled by the language of other provisions. Comp.
Laws, secs. 1664.
4. Corporations.
The statutes relating to suits against corporate directors as trustees are limited to the settling of the
ordinary affairs of a corporation, and to suits for debts owing by it at the time of dissolution, and hence a
personal injury action was properly brought against the corporation rather than its directors, even though
the injury occurred after the filing of a certificate of dissolution, in view of the statute continuing dissolved
corporations for three years for purposes of litigation. Comp. Laws, sec. 1664-1666.
5. Corporations.
Where the old and new business of a corporation is continued as usual under the corporate name after the
filing of a certificate of dissolution, the stockholders become personally liable, as for
injuries to a business guest on the premises, where no certificate of doing business
under a fictitious name is filed.
a certificate of dissolution, the stockholders become personally liable, as for injuries to a business guest on
the premises, where no certificate of doing business under a fictitious name is filed. Comp. Laws, sec.
1664.
A contention that damages recovered for personal injuries were excessive because of prior recovery for
certain items from the industrial commission of a sister state, not presented by motion for new trial, cannot
be raised on appeal.
7. Witnesses.
In an action for injuries caused by the defective floor of a toilet on a laundry company's premises, where
the company's principal stockholder testified that he personally placed a warning sign on the door, the court
properly permitted him to be impeached by showing that he had previously threatened to defend the action
by proving that plaintiff was intoxicated.
Where toilets on premises occupied in part by the landlord are under his control and are used in common
by the employees of both landlord and tenant, the landlord's duty to maintain the toilets in a safe condition
is owed not only to the tenant and his employees, but also to the tenant's guests and invitees.
Where a landlord furnishes toilet facilities to his tenants, an implied invitation to use the toilets is thereby
extended to persons coming on the premises intending to transact business with a tenant, as regards the
landlord's liability for a defective condition of the premises.
10. Negligence.
A customer entering premises at the proprietor's express or implied invitation has a right to use toilets
thereon on express or implied invitation from the proprietor, provided the entry on the premises was for the
purpose of transacting business with the proprietor and was made during ordinary business hours, in an
orderly manner, on business in which the proprietor was interested, as regards the proprietor's liability for
defects on the premises.
Where a landlord rents only a part of his premises and retains other parts necessary to the rented portions,
and it can fairly be implied that the retained parts are an accessory or appurtenant to the premises and were
an inducement to the tenants at the time of renting, a tenant's use of the appurtenant or accessory does not
require a formal agreement.
Contributory negligence of a tenant's business guest on a laundry company's premises, who entered an
unlighted toilet with which he was unfamiliar and did not look for the electric light switch and, being able
to see the toilet bowl, walked to it and stepped into a hole cut in the concrete floor to repair
a pipe from which steam and hot water were escaping, held for the trial court in trial
without jury, and the evidence justified the finding that the danger was not obvious.
it and stepped into a hole cut in the concrete floor to repair a pipe from which steam and hot water were
escaping, held for the trial court in trial without jury, and the evidence justified the finding that the danger
was not obvious.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Action by Walter Earl Seavy against the I. X. L. Laundry Company and others, for injuries
caused by stepping into a hole in the floor of a building owned by the defendant company.
Judgment for plaintiff, and defendants appeal. Affirmed.
Platt & Sinai, for Appellants.
L. D. Summerfield and A. R. Schindler, for Respondents.
OPINION
The respondent recovered a judgment in the Second judicial district court of the State of
Nevada, for injuries alleged to have been sustained by him by stepping into a hole in the floor
of a toilet situate on the premises of the appellant company, which said hole was filled with
hot steam and hot water which escaped from a pipe which ran beneath the floor of the said
toilet, the hole having been cut in the floor for the purpose of repairing a joint on said pipe.
The facts found by the trial court disclose that appellant company had leased to the Reno
Towel and Linen Service, Incorporated, a portion of the building occupied by the said
appellant company; that incident to such occupancy of said building and appurtenant to the
facilities of the Reno Towel and Linen Service, Incorporated, the employees and business
guests of said Reno Towel and Linen Service had use of the toilets, in common with the
employees of said appellant company. Respondent, in making a business call on the Reno
Towel and Linen Service, Incorporated, indicated that he desired to use a toilet, and was
directed by a Mr.
in making a business call on the Reno Towel and Linen Service, Incorporated, indicated that
he desired to use a toilet, and was directed by a Mr. McPherson, manager of the Reno Towel
and Linen Service, to the place. The room was poorly lighted, according to the testimony of
respondent, although the white toilet bowl was visible, and he walked over to the said bowl,
and his left leg fell into an open, uncovered hole which was filled with hot water and steam,
and as a result his leg was badly burned. Respondent was a stranger in the building, it being
the first time he had been in the said toilet room.
The I. X. L. Laundry Company was incorporated under the laws of the State of Nevada on
March 25, 1927. On the 29th of April 1937 the written consent of the stockholders to the
dissolution of the said corporation was filed, but following the filing of the certificate of
dissolution the said corporation continued as the record owner of the real estate and building
where the laundry business was conducted under the name of I. X. L. Laundry Company.
No certificate was filed with the county clerk giving notice that individuals were conducting
the business under said name of I. X. L. Laundry Company.
Reno Towel and Linen Service, Incorporated, reserved quarters in the said I. X. L. Laundry
Company building before it was erected, and as soon as the building was completed they
moved in. The tenancy was from month to month. The business conducted by the Reno
Towel and Linen Service was a rental service to commercial concerns of linens, etc. Said
Towel and Linen Service called for the linens and had them laundered by the I. X. L. Laundry
Company, and then delivered them. About seven people were employed by said Reno Towel
and Linen Service.
Before the building was completed and at the time the Linen Service was negotiating for
space in the I. X. L. Laundry Company's building, the toilet facilities were indicated and
pointed out to the representative of the said Linen Service.
were indicated and pointed out to the representative of the said Linen Service. Two toilet
rooms were provided, one for men and one for women. After the Linen Service moved into
the said I. X. L. Laundry Company's building, the toilets were used in common by the
employees of the I. X. L. Laundry Company and of the Linen Service, and on some occasions
by people transacting business with the said Linen Service. The toilet rooms were under the
exclusive control of the I. X. L. Laundry Company. At the start the tenant furnished towels
and a cabinet for towels, and said towels were laundered by the I. X. L. Laundry Company,
but later on all of this service was performed by the landlord. No formal understanding
between the landlord and tenant as to the use of the toilet rooms was had.
As hereinbefore stated, a hole was cut in the concrete floor of the toilet room, alongside
the toilet bowl, for the purpose of permitting the repacking of an expansion joint of a pipe
which carried steam under that part of the floor. The hole was there from the time of the
erection of the building, but was ordinarily covered with a piece of board laid loosely over it.
As time went on this hole was enlarged, in order to permit further work to be performed on
the pipe.
There was a light in the toilet room, which could be turned on by means of a switch near
the door, which was customarily done by a person entering the said toilet room, and turned
off upon his leaving. The light was used to indicate whether the toilet room was in use.
There is evidence to the effect that during the spring of 1937 and prior to the accident in
this case this hole in the floor was uncovered and unprotected on several different occasions.
At the time the respondent entered the toilet room in May 1937, the door was already
open, and there was no steam in the room sufficient to affect visibility or to indicate the
presence of hot water.
1. Two of the assignments of error made by appellant, namely, that the findings are not
supported by the evidence, and that the findings proffered by appellant should have been
adopted, can be disposed of by saying that there is substantial evidence in the record
supporting the findings of the trial court, and for that reason the said findings should be
sustained, and that the findings proposed by the appellant were pursuant to his theory of
the case, which theory was rejected by the trial court.
namely, that the findings are not supported by the evidence, and that the findings proffered by
appellant should have been adopted, can be disposed of by saying that there is substantial
evidence in the record supporting the findings of the trial court, and for that reason the said
findings should be sustained, and that the findings proposed by the appellant were pursuant to
his theory of the case, which theory was rejected by the trial court. However, this rule does
not apply to the question of whether or not the evidence establishes, as a matter of law, that
the appellant was contributorily negligent. We have examined the evidence to determine that
point.
The action of the trial court in overruling the demurrer should be sustained, for the reason
that respondent's theory of the law as applied to the facts in the case is correct.
2. It is contended that inasmuch as the I. X. L. Laundry Company filed a certificate of
dissolution with the secretary of state before the accident occurred, the corporation was not a
proper party defendant; that a judgment could not be rendered against it; and that the directors
only could be sued as trustees of the corporation; further, that defendants Nellie M. Reed and
Burt A. Reed could not be sued personally. Respondent, answering this contention,
distinguishes between what the corporation itself may do after dissolution and what a third
person may do with reference to suing such a corporation, and we think the distinction made
is logical. A corporation is a creature of statute, and statutory provisions control the power of
corporations after dissolution. Such a situation must be held in mind in giving the necessary
weight to the general statements from other jurisdictions.
3. The Nevada statutes which control are sections 1664, 1665 and 1666, N.C.L. 1929.
More than one provision is made in section 1664, and the provision contained therein that for
three years after dissolution a corporation shall continue as a body corporate for the
purpose of prosecuting and defending suits is in no manner controlled by the language in
the section which deals with other matters.
corporation shall continue as a body corporate for the purpose of prosecuting and defending
suits is in no manner controlled by the language in the section which deals with other matters.
4. As to the contention that the action could only be brought against the directors as
trustees, under sections 1665 and 1666, we think said sections are limited to the settling of the
ordinary affairs of a corporation, and that section 1666 expressly limits suits against the
directors as trustees to debts owing by such corporation at the time of its dissolution. The
respondent had a claim for unliquidated damages, and this claim arose after the filing of the
certificate of dissolution. But the filing of the certificate of dissolution does not mean the
complete dissolution of the corporation, because of the fact of its being continued for the
period of three years for certain purposes, and it is after the expiration of the three years that
the corporation no longer exists for any purpose. Such is the time the authorities cited by
appellants refer to when they state that after dissolution the corporation has no powers
whatsoever.
The dissolution of a corporation implies its utter extinction and obliteration as a body
capable of suing or being sued, or in whose favor obligations exist or upon which liabilities
are imposed. 7. R.C.L. 735.
When a corporation is dissolved * * * it no longer exists for any purpose, unless there is
some statutory provision continuing its existence * * *. 8 Fletcher Cyc. Corp. 9173, sec.
5564.
The legislature has power to authorize the prosecution of suits in the corporate name after
a corporation has ceased to exist for general purposes, and may even authorize an action on
an obligation taken after dissolution. 7 R.C.L. 743.
The conflict of opinion which appears in the authorities is in jurisdictions where there is
no statute continuing the existence of the corporation and providing how such suits shall be
prosecuted, such as we find in section 1664 N.C.L. See S Fletcher Cyc.
1664 N.C.L. See 8 Fletcher Cyc. Corp. 9200, sec. 5605; Porter et al. v. Tempa Mining &
Milling Co., 59 Nev. 332, 93 P.(2d) 741.
A corporation or those representing it have been held liable after dissolution for torts
committed prior to dissolution, where the statute continued the existence of the corporation
for the purpose of settling and winding up its affairs. 14a C.J. 1159; 19 C.J.S., Corporations,
sec. 1732.
5. As to the contention that the defendants Nellie M. Reed, and Burt A. Reed could not be
sued personally in this action, we find that after the filing of the certificate of dissolution, and
contrary to the provisions of section 1664, the I. X. L. Laundry Company continued to operate
as usual, and no certificate of doing business under a fictitious name was ever filed. Where
the business of a corporation, old and new, is continued as usual, and is not limited to settling
the affairs of the corporation, then the stockholders become personally liable. 14a C.J. 1189;
19 C. J. S., Corporations, sec. 1760; 8 Fletcher Cyc. Corp. 9188, sec. 5589.
6. The appellant further contends that the judgment is excessive for the reason that double
payments were made, certain items having been recovered from the California industrial
commission. We do not think that appellants are entitled to be heard on this point, because no
motion for a new trial was made on the ground that the damages were excessive. Such a point
not having been presented by motion for new trial, it cannot be raised here on appeal. Hilton
v. Hymers, 57 Nev. 391, at pages 405, 406, 65 P.(2d) 679.
7. Appellant complains of the action of the trial court in permitting impeachment of the
witness Burt A. Reed. The witness was the largest stockholder in the corporation, and
claimed that he personally placed a warning sign on the door to the toilet prior to the accident.
But it was shown that prior to the trial the witness had threatened to defend the action by
showing that the respondent was drunk and stepped into the hole, and that he, said Reed,
attempted to secure testimony along that line, but on the trial failed to rely on said
defense.
respondent was drunk and stepped into the hole, and that he, said Reed, attempted to secure
testimony along that line, but on the trial failed to rely on said defense. This conduct was
inconsistent with the defense and testimony that he, said Reed, had placed a warning sign on
the door, and was a proper subject of cross-examination and within the rules.
A witness may be impeached as to credibility by showing conduct on his part inconsistent
with his testimony. 70 C.J. 771. See also, 70 C.J. 782; 70 C.J. 813; 28 R.C.L., pp. 614, 633.
8. It is appellants' position that the respondent was a licensee or mere trespasser, and that
appellants owed him no further duty than not to willfully injure him. The evidence clearly
establishes that the relation of landlord and tenant existed between the I. X. L. Laundry
Company and the Reno Towel and Linen Service, Incorporated; that the toilets were to be
used in common by both companies, the toilets being under the control of the landlord. The
law is that in this situation the landlord owed a duty not only to the tenant and its employees,
in the maintenance of the toilets in a safe condition, but also to the guests and invitees of the
tenant. 36 C.J. pp. 212, 224; 16 R.C.L., 1037, sec. 557; 16 R.C.L., 1039, sec. 558.
9. A landlord having furnished toilet facilities to his tenants, sets up an implied invitation
to those coming upon the premises, with the intention of transacting business with the
tenants, to use the toilets, and the obligations in connection with said implied invitation are
well covered in the following case: Peebles et al. v. Exchange Bldg. Co., 6 Cir., 15 F.(2d)
335, at page 338.
Cases dealing with the liability of a proprietor to a customer, or of a landlord to his own
guest, or a tenant to his own guest, do not come under the same rule of law as that making a
landlord liable to the guests of his tenant. Restatement of the Law, 2 Torts, Negligence, sec.
360, p. 978.
Older cases held that a proprietor was not liable to a customer for injuries received in a
toilet, but the conditions which controlled in the formulation of the opinions therein
expressed have been outmoded, and new business methods, in striving for the patronage of
customers, hold out many attractions, and, as said by counsel for respondent, not the least of
which is the use of clean and attractive toilets. These changed conditions are reflected in the
decisions. See M. N. Bleich & Co. v. Emmett, Tex. Civ. App., 1927, 295 S.W. 223, at page
227; Main v. Lehman, 294 Mo. 579, 243 S.W. 91; Thistlewaite v. Heck, 75 Ind. App. 359,
128 N.E. 611; Glaser v. Rothschild, 221 Mo. 180, 120 S.W. 1, at page 5, 22 L. R. A. (N. S.)
1045, 17 Ann. Cas. 576.
10. From a consideration of the cited cases we deduce the rule to be that if a customer
comes upon the premises of a proprietor at either his express or implied invitation, he has a
right to use the toilets on the premises if he receives an invitation, either express or implied,
from the proprietor, employee or the agent of the proprietor, providing the entry was made by
the customer for the purpose of transacting business with the proprietor; that the entry was
made at a reasonable hour, when business transactions are ordinarily conducted; and that the
entry was made in an orderly manner and on business that the proprietor was interested in.
11. Where the landlord has leased or rented certain portions of his premises to tenants and
has retained other portions of the premises under his possession and control, such as appears
in this case, and the portions retained by the landlord are absolutely necessary to the portions
leased or rented, and it can fairly be implied that the retained portions are an accessory or
appurtenant to the premises, and were an inducement to the tenants at the time of leasing or
renting said premises, under such circumstances the use of the appurtenant or accessory
would not require a formal agreement, and the courts imply the use of these things to be such
that they form and become a part of the agreement to lease or rent that part of the
premises actually leased or rented.
be such that they form and become a part of the agreement to lease or rent that part of the
premises actually leased or rented. It will be seen from the following cases that the courts
were guided by the foregoing considerations as the underlying reason for holding the landlord
responsible to the tenant's guests or invitees. Patten v. Bartlett, 111 Me. 409, 89 A. 375, 49 L.
R. A. (N. S.) 1120; Crudo v. Milton, 233 Mass. 229, 124 N. E. 30; Hess v. Hinkson's Adm'r,
96 S. W. 436, 29 Ky. Law Rep. 762; Phillips v. Library Co., 55 N. J. L. 307, 27 A. 478.
All the circumstances in this case point to the fact that the I. X. L. Laundry Company
intended that the Reno Towel and Linen Service, Incorporated, should have the use of the
toilets located on its premises. No express provision was contained in the lease for the use of
toilets, but the circumstances were such that it can be said the necessity was so strong as to
make the demands of Reno Towel and Linen Service, Incorporated, for the use thereof appear
reasonable, which brings the case within the exception noted in the cases cited by appellants.
Those cases hereinbefore cited which deal with apartment houses and office buildings are
held by appellants not to be applicable in this case, presumably upon the ground that a
number of tenants were involved therein. We do not think the number of tenants to be
controlling; it is the situation and circumstances involved in the particular case. Toilet
facilities were necessary for the management and employees of the Reno Towel and Linen
Service. It is fair to presume that the use thereof was an important factor in the decision to
lease the premises and they were considered appurtenant thereto.
12. We next consider whether respondent, in going into an unlighted toilet room, was
thereby contributorily negligent, as a matter of law. As to the condition of the room,
respondent testified as follows:
Direct examination: "Q.
Q. You say you walked into it what did you do in the way of use of it? A. I went inI
walked into it and I could see the white bowl of the lavatory, and I walked up and put my
right foot down and I went to put my left foot along side of the bowl by the side of it as you
naturally would do and it went down somewhere pretty close to my knee.
Q. How did you make your entrance into that rest room? A. Yeshow do you meanin
what way?
Q. Did you unlock any doors? A. No, there was no door closed the door was wide open.
Q. How large a room was that approximately? A. I would say the room was in a small L'
shape. The toilet bowl is back in the recess and straight from the toilet to the bowl I would
say was in the neighborhood of six feet.
Cross-examination:
Q. Was there any condition unusual? A. None only it was too dark.
Q. Too dark? A. Yes, sir.
Q. That was the first time you ever went into it? A. Right.
Q. When you went to the door you say the door was open? A. Yes.
Q. Was it dark in there? A. Yes.
Q. Was it so dark that you could not see anything? A. I could see the toilet bowlI could
see the white outside of the bowl and that was all I was interested in.
Q. Could you see anything else in thereanything unusual in there? A. No, sir.
Q. Did you see the wash bowl? A. No, I did not look for it. I saw what I was after and
walked straight to it.
Q. As you entered the place it was extremely dark, was it? A. It was quite dark.
Q. No light in the room? A. No, sir.
Q. Any light coming from outside or from the open door? A. What little light was
coming in through that passage way.
door? A. What little light was coming in through that passage way.
Q. Was there any steam in the room? A. No, sir, not to my knowledge, I did not notice
any.
Q. Did you see anything at all about the place that might put you on notice that there
might be some danger there? A. Not a thing in the world.
The respondent did not proceed in total darkness. The reflection of light in the room was
sufficient for him to see the toilet bowl and to proceed to it. We think, under all of the
circumstances here, that the question was one for the trial court to determine, and on the
evidence presented the court was justified in finding that the danger was not obvious. See
Nevada Transfer & Warehouse Co. v. Peterson, 60 Nev. 87, 99 P.(2d) 633, at page 638;
Totten v. Phipps, 52 N. Y. 354; Marwedel v. Cook, 154 Mass. 235, 28 N. E. 140; Feinstein v.
Jacobs, 15 Misc. 474, 37 N.Y.S. 345; Restatement of the Law, 2 Torts, Negligence, sec. 347,
p. 950.
Judgment affirmed.
____________
60 Nev. 337, 337 (1941) Hylton v. Reinken
J. LELAND HYLTON, Appellant, v. W. A. REINKEN, as Receiver of and for the Properties
Involved in the Mortgage of J. LELAND HYLTON and Others to Henderson Banking
Company Mortgage Corporation, a Corporation, and to Reconstruction Finance Corporation,
a Corporation, Respondent.
No. 3152
January 23, 1941. 109 P.(2d) 271.
1. Agriculture.
Since a seller, to possess the right to contract with the government under the agriculture adjustment act,
must be the owner and producer, a sheep raiser, who filed a voluntary petition in bankruptcy, parted with
legal title to and right of possession of ewes, and could not enter into emergency livestock agreement with
the secretary of agriculture under the agricultural adjustment act for the sale of ewes, and hence could not
enforce agreement with receiver whereby sheep raiser was to have the right to sell the ewes to the secretary
of agriculture. Agricultural Adjustment Act. 7 U.S.C.A., sec. 601 et seq.; Bankr. Act sec. 4, as amended
and sec. 70, subd. a(5), 11 U.S.C.A., sec. 22, and sec. 110, subd. a(5).
Appeal from Fourth Judicial District Court, Elko County; James Dysart, Judge.
Action by J. Leland Hylton against W. A. Reinken, as receiver of and for the properties
involved in the mortgage of J. Leland Hylton and others to Henderson Banking Company
Mortgage Corporation and to the Reconstruction Finance Corporation, with respect to an oral
agreement between the plaintiff and the receiver, to the end that the plaintiff with the consent
of the receiver might sell to the Secretary of Agriculture ewes and that the proceeds should be
divided. From a judgment in favor of the defendants on the pleadings, the plaintiff appeals.
Judgment affirmed.
Milton B. Badt, for Appellant.
Morley Griswold and Milton J. Reinhart, and McNamara & Robbins, for Respondent.
OPINION
On the 31st day of July 1934 W. A. Reinken, a defendant in the court below and a
respondent here, who will be hereinafter referred to as defendant, was appointed receiver by
the Fourth judicial district court of the State of Nevada, in and for the county of Elko, in an
action wherein Henderson Banking Company Mortgage Corporation, a corporation, and
Reconstruction Finance Corporation, a corporation, were plaintiffs, and John Leland Hylton
et ux. were defendants. The action was brought to foreclose a mortgage, and the property
involved included 1,000 head of sheep mentioned in the alleged oral contract upon which this
proceeding is based. W. A. Reinken qualified as such receiver on the 31st day of July 1934,
and took into his possession the said sheep. On the 7th day of August 1934 J. Leland Hylton,
one of the plaintiffs in the court below and the appellant here, filed in the United States
district court for the district of Nevada his voluntary petition in bankuptcy. On August 10,
1934, said Hylton was adjudicated a bankrupt, and the usual order of reference was made.
Blanche Howell was, on the 1st day of September 1934, elected trustee, and duly qualified,
and was such trustee during the time involved in these proceedings. On November 24, 1934,
J. Leland Hylton, hereinafter referred to as plaintiff, filed an action in the Fourth judicial
district court alleging, in paragraph III, as follows: That on or about the 16th day of
September, 1934, at and in Elko County, Nevada, defendant herein, as Receiver aforesaid,
entered into an oral agreement with plaintiff, wherein it was agreed by plaintiff and defendant
that plaintiff should execute his certain Emergency Livestock Agreement with the Secretary
of Agriculture of the United States of America, to the end that plaintiff, with the consent of
said defendant, might sell to the Secretary of Agriculture about 1000 ewes for the sum of
$2.00 per head, and that said defendant should receive from such proceeds the sum of
$1.00 per head, and that plaintiff should receive from such proceeds the sum of $1.00 per
head, and that plaintiff should pay to said defendant the sum of fifteen cents per head for
all ewes thus sold to the Secretary of Agriculture under said agreement."
ewes for the sum of $2.00 per head, and that said defendant should receive from such
proceeds the sum of $1.00 per head, and that plaintiff should receive from such proceeds the
sum of $1.00 per head, and that plaintiff should pay to said defendant the sum of fifteen cents
per head for all ewes thus sold to the Secretary of Agriculture under said agreement.
Later, defendant filed his answer, wherein two affirmative defenses were set up, as
follows:
(Second affirmative defense).
That said plaintiff above-named, on or about the 7th day of August, 1934, filed his
verified petition with the Clerk of the District Court of the United States, for the District of
Nevada, entitled in said Court: In the Matter of John Leland Hylton, Bankrupt. In
Bankruptcy, No. 535,' under Section 4 of an Act of Congress of the United States of America,
approved July 1, 1898, as amended [11 U.S.C.A., sec. 22], praying that he, the said plaintiff
herein, be duly adjudged a voluntary bankrupt, and that in pursuance of said petition said
plaintiff was duly adjudged a voluntary bankrupt on the 10th day of August, 1934, and that he
was not discharged as a bankrupt in such proceedings until the 7th day of November, 1934;
and that by reason thereof, the said plaintiff was, on the 16th day of September, 1934, and at
all times between the 10th day of August and the 7th day of November, 1934, a bankrupt, and
as such bankrupt and by reason of the said adjudication as such, your defendant is informed
and believes, and upon such information and belief alleges the fact to be, divested himself of
all right, title, interest and equity of every nature, kind and description whatsoever, in and to
the sheep mentioned and described in said complaint, said plaintiff having claimed to be the
owner of said sheep at the time he filed his petition in bankruptcy aforesaid, and at the time
he was adjudged a bankrupt as aforesaid; that on the 1st day of September, 1934, Blanche
Howell, of the County of Elko, State of Nevada, was elected Trustee in said matter of John
Leland Hylton, Bankrupt, and thereupon duly qualified as required by law, and has been
ever since said time and is now the duly elected, qualified and acting Trustee in
Bankruptcy in said matter; that by reason of such proceedings and his status as a
bankrupt on or about the 16th day of September, 1934, said plaintiff, so defendant is
informed and believes, and, therefore, alleges the fact to be, did not have any legal right,
power, capacity, andJor authority to contract with said defendant with reference to any
sale, andJor the alleged agreement for the sale of the sheep mentioned and described in
the complaint of plaintiff, and that by reason thereof the agreement mentioned and
described in said complaint of plaintiff as having been entered into between plaintiff and
defendant, if entered into, would, so defendant has been informed, and believes, and,
therefore, alleges the fact to be, have been and is void and of no force or effect and
unenforceable against additional allegations:
of Nevada, was elected Trustee in said matter of John Leland Hylton, Bankrupt, and
thereupon duly qualified as required by law, and has been ever since said time and is now the
duly elected, qualified and acting Trustee in Bankruptcy in said matter; that by reason of such
proceedings and his status as a bankrupt on or about the 16th day of September, 1934, said
plaintiff, so defendant is informed and believes, and, therefore, alleges the fact to be, did not
have any legal right, power, capacity, and/or authority to contract with said defendant with
reference to any sale, and/or the alleged agreement for the sale of the sheep mentioned and
described in the complaint of plaintiff, and that by reason thereof the agreement mentioned
and described in said complaint of plaintiff as having been entered into between plaintiff and
defendant, if entered into, would, so defendant has been informed, and believes, and,
therefore, alleges the fact to be, have been and is void and of no force or effect and
unenforceable against additional allegations:
The third affirmative defense contained the following additional allegations:
That the estate of said bankrupt has never been settled, and the same is now pending in
the District Court of the United States, for the District of Nevada, and that claims for
creditors filed against the estate of said bankrupt have never been paid or discharged; that by
reason thereof, and the matters and things hereinabove, set forth, said plaintiff, so defendant
is informed and believes, and, therefore, states the fact to be, neither on or about the 16th day
of September, 1934, or at any time alleged in his complaint, had or does now have any
interest, right, title or equity in and to the sheep mentioned and described in the said
complaint as the subject of the alleged oral agreement mentioned and described in the said
complaint, but that on the contrary all of the right, title, interest, and/or equity which the said
plaintiff may have owned, had or enjoyed in and to said property became and is vested in the
trustee in bankruptcy in said proceedings by operation of law from and after the said 10th
day of August, 1934, the date upon which said plaintiff was adjudged a bankrupt, as
aforesaid, subject, however, to the interest, equity, right of possession and sale of
defendant herein as Receiver in said Action No.
in said proceedings by operation of law from and after the said 10th day of August, 1934, the
date upon which said plaintiff was adjudged a bankrupt, as aforesaid, subject, however, to the
interest, equity, right of possession and sale of defendant herein as Receiver in said Action
No. 4351; and that by reason thereof said plaintiff has not the legal capacity to sue, and/or
commence, and/or prosecute this action, having, so your defendant is informed and believes,
and, therefore, states the fact to be, no right, title, interest, and/or equity in and to said sheep,
since the said 10th day of August, 1934, and/or the right, and/or power, and/or capacity to
contract with reference thereto at the times mentioned and described in said complaint of
plaintiff with reference to the making of said alleged agreement with defendant, and that by
reason thereof said plaintiff is not the real party in interest as provided for and contemplated
by Section 8543, N.C.L. 1929; that by reason of the foregoing facts, and particularly the fact
that said plaintiff was duly adjudged a bankrupt in said proceedings on the 10th day of
August, 1934, and was and remained such bankrupt until the 7th day of November, 1934, all
of the right, title, interest and equity which said plaintiff may have had in and to said sheep
mentioned and described in said complaint became vested in the trustee in bankruptcy in said
proceedings, so defendant is informed and believes, and, therefore, states the fact to be, by
operation of law, and that by such operation of law said plaintiff was without right, power,
capacity, and/or authority to contract with reference to said sheep on or about the 16th day of
September, 1934, and/or at any time after the said 10th day of August, 1934, up to and
including the present time.
Plaintiff demurred to the affirmative defenses and moved to have them stricken. The trial
court overruled the demurrer and denied the motion to strike. Plaintiff declined to reply or
otherwise plead to said answer, and the court entered judgment on the pleadings. Plaintiff has
appealed from that judgment.
Plaintiff conceives a solution of the issues in this case to be contained in a negative answer
to the following questions: Was the right which the Government, on September 4, 1934,
gave to a person as the producer' to receive certain benefit payments such an asset or such a
property or property right as passed to the trustee in bankruptcy on August 7, 1934? We are
not persuaded that such is the correct conclusion to be reached.
Under the emergency livestock agreement with the department of agriculture, which the
plaintiff attempted to execute, he was required to and did represent and warrant:
Representations and Warranties:
The producer represents:
(a) That he is operating the ranch or farm described on the reverse hereof.
(b) That he has owned and been in possession of the livestock described in table 1 since
April 1, 1934.
(c) That he has the right to sell such animals.
No ranch or farm is mentioned or described on the reverse side of said agreement; and
because of the bankruptcy proceedings plaintiff had been divested of the title to the sheep in
question, by operation of law, and he no longer owned or was in possession thereof.
Section 70 of the United States bankruptcy act, 11 U.S.C.A. sec. 110, specifically
designates the property which vests in a trustee in bankruptcy upon his qualifying.
Subdivision a(5) reads: property which prior to the filing of the petition he could by any
means have transferred or which might have been levied upon and sold under judicial process
against him.
Upon the filing of the said petition in bankruptcy, plaintiff parted with all legal title to and
right of possession of the sheep. This was prior to the time plaintiff entered into the contract
with the said receiver for the sale of the sheep. See 11 U.S.C.A. sec. 101 to end, Bankruptcy,
page 490, note 70: Subdivision (5) is clearly the most comprehensive clause of paragraph (a)
of this section, and the decisions thereunder are unanimous to the effect that this clause
means precisely what its language imports, namely, that the trustee in bankruptcy is
vested, by operation of law, with the title of the bankrupt to all property which, prior to
the filing of the petition, the bankrupt could by any means have transferred, or which
might have been levied upon and sold under judicial process against such bankrupt."
of this section, and the decisions thereunder are unanimous to the effect that this clause
means precisely what its language imports, namely, that the trustee in bankruptcy is vested,
by operation of law, with the title of the bankrupt to all property which, prior to the filing of
the petition, the bankrupt could by any means have transferred, or which might have been
levied upon and sold under judicial process against such bankrupt.
Also 7 C.J., page 114, article 187: In addition to providing for the transfer of title to
particular classes of property, the Bankruptcy Act, in general terms, vests the trustee with title
to all property which, prior to the filing of the petition, the bankrupt could by any means have
transferred, or which might have been levied upon and sold under judicial process against
him. Accordingly the title of the trustee is not limited to property which belongs absolutely to
the bankrupt, but also extends to property which, by reason of state statutes, is considered as
belonging to him as far as the rights of his creditors are concerned, or in which he has a
transferable interest. 8 C.J.S., Bankruptcy, sec. 169.
Plaintiff stresses the proposition that property acquired after the bankruptcy proceedings
does not pass to the trustee, as is also the case with certain rights or privileges which are
purely personal to the bankrupt, as, in this instance, the status of plaintiff as a producer. We
agree that at the time of the adjudication of plaintiff as a bankrupt and of the passing of the
legal title to the sheep to the trustee, the rights which plaintiff may have been given under the
agricultural adjustment act, 7 U.S.C.A. sec. 601 et seq., as a producer did not pass. But it
seems also apparent that when the title to the sheep did pass to the trustee, such a situation
left the plaintiff's rights as a producer drained of all opportunity to realize thereon, either by
said producer or any other person. It is our construction of the terms of the agricultural
adjustment act that in order to possess the right to contract with the government thereunder
two things must coexist in the seller, namely; Ownership and the status of producer.
thereunder two things must coexist in the seller, namely; Ownership and the status of
producer. The situation existing at the time of the enactment of the agricultural adjustment act
was such that in many instances livestock were mortgaged for a greater amount than could
ordinarily be realized from a sale thereof, hence the government provided a fixed amount for
the producer, in order that he might continue in business. The government purchased
livestock in order to benefit the producer, but in the instant case the producer, having, before
the contemplated sale, divested himself of title, how could he sell to the government or
anyone else? Being adjudged a bankrupt placed the plaintiff in the same position in relation to
the ownership of the sheep as if he had sold to a third party. Such being the case, it seems
obvious that if A produces a thousand head of sheep and sells said sheep to B, that A is then
in no position to again sell said sheep to C, in order to receive certain benefits, because if C
makes the purchase he can neither receive title or possession. So in this case Hylton, the
producer, because of the bankruptcy proceeding, was in no position to deliver to the
government either title or possession. Being thus unable to deliver either title or possession,
he was incapable of contracting for the sale of the sheep.
The second and third separate affirmative defenses state a complete bar to a recovery by
plaintiff, and the plaintiff having refused to plead to the said defenses, they must be deemed
admitted, and the trial court was correct in entering judgment on the pleadings.
The said judgment is hereby affirmed.
____________
60 Nev. 345, 345 (1941) Bd. of School Trustees v. Bray
BOARD OF SCHOOL TRUSTEES OF LAS VEGAS UNION SCHOOL DISTRICT No. 12,
Et Al., Petitioners, v. MILDRED BRAY, as Superintendent of Public Instruction of the State
of Nevada, Respondent.
No. 3321
January 24, 1941. 109 P.(2d) 274.
In construing school statutes, reviewing court could not decide which is the better or wiser method for
distributing school funds, in absence of constitutional provision for distribution. Comp. Laws, secs.
5650-5867.
The reviewing court should not substitute its judgment for that of a coordinate branch of the government
working within its constitutional limits.
3. Statutes.
The prime concern in construing statutes is to ascertain intent of legislature, and if possible, and if
consistent with intention of legislature, to give effect to every part of the statutory provisions in
controversy, and so far as practicable, reconcile the various provisions so as to make them consistent,
having in mind the purposes sought to be accomplished and the benefits intended to be attained. Comp.
Laws, secs. 5787, 5798, 5799.
4. Statutes.
Where two sections of compiled laws, in their present form, became the law at the same time, by the same
legislative act, there was a strong presumption that neither provisions was intended to override the other.
Comp. Laws, secs. 5798, subd. 4(a); sec. 5799, subd. 2.
5. Statutes.
Only where there is an irreconcilable conflict and all other means of ascertaining legislative intent have
been exhausted, a later statutory provision will control an earlier one.
6. Schools and School Districts.
The statutory provision governing apportionment of money from state school reserve fund was not so
conflicting with later provision, adopted by the same legislative act, prescribing amount of county school
tax to be levied, as to make the later provision control the earlier one. Comp. Laws, sec. 5798, subd. 4(a);
sec. 5799, subd. 2.
7. Constitutional LawStatutes.
The court has power to construe an ambiguous statute, but cannot substitute a different one, no matter
how unwise or unreasonable the statute under consideration may seem to be, but where true intention of the
lawmaking body is not expressed by the language employed when that language is given
literal meaning, court should adopt construction which will carry out legislative
intention.
expressed by the language employed when that language is given literal meaning, court should adopt
construction which will carry out legislative intention.
8. Statutes.
Where meaning of statute is doubtful, courts consider the effect or consequences of proposed
constructions, and if the language fairly permits, will avoid construing it in a manner which will lead to an
unreasonable result.
Under statute providing that whenever county shall have levied 35 cents on the $100 assessed valuation
for elementary school purposes, superintendent of public instruction shall apportion to said county from the
state school reserve fund a sum sufficient, with the amount raised by the levy, to make the sum required by
law for elementary school purposes, and statute prescribing minimum levy to be made by board of county
commissioners, a county required to levy more than 35 cents on the $100 is nevertheless entitled to
apportionment from school reserve fund on basis of 35-cent levy. Comp. Laws, sec. 5798, subd. 4(a); sec.
5799, subd. 2.
There is a difference between assessment or levy of school tax and apportionment or distribution
thereof, and hence provision requiring higher levy of school tax than 35 cents on the $100 is not
necessarily repugnant to or in conflict with provision granting state aid on basis of 35-cent levy. Comp
Laws, sec. 5798, subd. 4(a); sec. 5799, subd. 2.
The statutory provision for giving special apportionment to school district from state school reserve fund,
under special and limited conditions, does not override previous provision for state aid to counties under
other conditions, when county levy is insufficient. Comp. Laws, sec. 5798, subds. 4(a), 5(a).
12. Statutes.
Executive and administrative constructions of statutes are inapplicable in construing the statutes where
statutes are so clear, certain, and free from ambiguity as to require construction, but where their meaning is
not clear and court must endeavor to construe them in conformity with real intention of legislature,
construction uniformly adopted for at least nine years by officials entrusted with administration of the
provisions in question, while not conclusive, is of much persuasive force. Comp. Laws, sec. 5798, subd.
4(a); sec. 5799, subd. 2.
Original proceeding in mandamus by the Board of School Trustees of Las Vegas Union
School District No. 12, and the members thereof, against Mildred Bray, as Superintendent of
Public Instruction of the State of Nevada, to compel apportionment of specified sums from
state school reserve fund to Clark County.
Nevada, to compel apportionment of specified sums from state school reserve fund to Clark
County. Mandamus granted as prayed.
Roland H. Wiley, District Attorney, for Petitioners.
OPINION
By the Court, Taber, J.:
An act concerning public schools, and repealing certain acts relating thereto was
approved March 20, 1911. Stats. of Nevada, 1911, 183. It will sometimes be referred to
herein as the public school act. As amended, it appears in vol. 3, N.C.L. 1929, secs.
5650-5867.
Subdivision 4(a) of amended sec. 151 of said act (sec. 5798 N.C.L. 1929) reads:
Whenever any county shall have levied 35 cents on the hundred dollars assessed valuation of
the county for elementary school purposes, if such levy does not bring in an amount of money
equal to that required by law of such county for elementary school purposes, exclusive of
bonds and interest thereon, the superintendent of public instruction shall apportion to said
county from the state school reserve fund a sum of money such that taken with the amount
raised by the levy of 35 cents on the hundred dollars by the county will be sufficient to make
the sum required by law of such county for elementary school purposes; provided, that in the
apportionment for July, 1925, said rate shall be 30 cents on the hundred dollars in counties
having county high schools and said rate shall be 50 cents on the hundred dollars for
combined elementary and high school purposes in counties levying a rate for such combined
purposes.
Subdivision 5(a) of said amended section 151 is as follows: "The superintendent of
public instruction shall then apportion to any district in the state which, after receiving
the regular state and county apportionment provided for above, shall lack the necessary
funds to maintain its school properly, a special district relief apportionment from the state
school reserve fund, whenever such district shall have levied {and there shall have been
collected the first half of) a special district tax of not less than 15 cents on the hundred
dollars of assessed valuation of the district.
follows: The superintendent of public instruction shall then apportion to any district in the
state which, after receiving the regular state and county apportionment provided for above,
shall lack the necessary funds to maintain its school properly, a special district relief
apportionment from the state school reserve fund, whenever such district shall have levied
(and there shall have been collected the first half of) a special district tax of not less than 15
cents on the hundred dollars of assessed valuation of the district. If the county in which such
district is located has levied a total tax for county school purposes, exclusive of school bonds
and interest thereon, amounting to 65 cents, but for the apportionment in July, 1925, 50 cents
on the hundred dollars of assessed valuation of such county, the state shall provide from the
state school reserve fund a sum of money equal to not more than $5 per census child, for such
relief apportionment to such district; provided, that if the state school reserve fund is
sufficient, no district shall receive less than $50 relief apportionment under the provisions of
this act. In case the county levy for school purposes in the county in which such district is
located is less than 65 cents; but for the apportionment in July, 1925, 50 cents on the hundred
dollars of assessed valuation for county school purposes, exclusive of school bonds and
interest thereon and any county relief rate, the county shall provide from its county general
fund such special relief apportionment to be made by the superintendent of public instruction;
provided, such district has submitted a budget as now required by law for such year, and the
moneys provided from this and other sources and taxes shall not exceed such budget
requirements.
Subdivision 5(b) of said amended section provides that said subdivision 5(a) shall apply to
any district having more than 200 pupils in average daily attendance as shown by the last
preceding annual school report, only to the extent of 200 pupils.
Subdivision 2 of amended section 152 of the public school act (sec. 5799 N.C.L. 1929)
provides that: It shall be the duty of the board of county commissioners of each county, not
later than the April meeting, 1925, so as to provide funds under this act for the school year
1925-1926, and annually thereafter at the time of levying their county taxes, after considering
the needs of the several school districts within their county as shown by the school budgets
submitted as required by law, to levy a county school tax sufficient to provide $625 per
apportionment teacher and not less than $2 per pupil in average daily attendance, subject,
however, to the provisions of paragraph 5(a) in section 151 of this act.
With reference to the provision last quoted, we note that by an earlier section of the public
school act the board of county commissioners of each county is required, annually, at the time
of levying other county taxes, to levy a county school tax, not to exceed 50 cents on each
$100 valuation of taxable property. Section 139, as amended (sec. 5787 N.C.L. 1929). This
section has not been discussed, nor any mention of it made by either petitioners or
respondent.
Pursuant to the provisions of subdivision 2 of section 152, in order to provide funds for the
schools of Clark County's twenty-three school districts for the school year 1939-1940, the
board of county commissioners of that county, at its April meeting in 1940, levied a county
school tax of 50 cents on each $100 of the assessed valuation of the taxable property in said
county. The amount raised by this levy, on the assumption of a 100 percent payment of the
tax, would be $80,375. The amount of funds required to be raised for said school year under
the provisions of said subdivision 2 amounted to $72,794. The amount which would be raised
by the levy of 35 cents on each $100 assessed valuation in Clark County for said school year
would be $56,262.55, being $16,531.45 less than said required sum.
The superintendent of public instruction is required to make a semiannual apportionment
from the state distributive school fund to the state school reserve fund of a sum of not
more than $30,000.
to make a semiannual apportionment from the state distributive school fund to the state
school reserve fund of a sum of not more than $30,000. This apportionment, under the
provisions of said section 151 (sec. 5798 N.C.L. 1929), is required to be made immediately
after the state controller makes his semiannual report in January and July of each year. When
the petition in this proceeding was filed, and after the July 1940 apportionment to the state
school reserve fund, there were sufficient moneys in the latter fund for the apportionment to
Clark County, as well as to other counties of the state entitled to said elementary school
apportionment, such sums of money as, taken with the amounts raised by the 35-cent levies,
would be sufficient to make up the sums required by law of such counties for elementary
school purposes.
On January 9, 1940, respondent declared in writing that commencing in July 1940 she
would apportion to Clark County its share of the state school reserve fund by using as a basis
the actual amount collected by the 50-cent levy hereinbefore mentioned. In this proceeding
petitioners pray that respondent be required to use, as the basis for apportioning Clark
County's share of the state school reserve fund, the amount raised by the levy of 35 cents on
the hundred dollars assessed valuation of the county for elementary school purposes, as
provided in said subdivision 4(a) of section 151 (sec. 5798 N.C.L. 1929).
It does not appear how the statutory provisions here in controversy were construed by the
superintendent of public instruction prior to 1931; but since that year, and until 1940, it has
been the practice of the three persons, including respondent, who have held the office of
superintendent of public instruction, to apportion the state school reserve fund on the basis of
the 35-cent levy, irrespective of the actual levy.
The first amendment to section 152 was in 1915, the last in 1925. The first amendment to
section 151 was in 1917, the last in 1929.
in 1917, the last in 1929. Both sections were amended in 1917, 1919, 1921, 1923 and 1925.
Stats. of Nevada, 1917, 234-237; 1919, 154-157; 1921, 268-273; 1923, 328-332; 1925,
280-284. At the five sessions just mentioned, the changes in these two sections were in each
instance made by one amendatory act. The language of subdivisions 4(a), 5(a) and 5(b) of
section 151, and that of subdivision 2 of section 152, have remained the same from 1925 to
the present time. No change was made in subdivision 4(a), subdivision 5(a), or subdivision
5(b) of section 151 when that section was amended in 1929.
It is agreed that subdivision 4(a) of section 151 and subdivision 2 of section 152 of the
public school act are the statutory provisions chiefly involved in this controversy. The
respective parties assert that these provisions are so plain, certain and unambiguous, and their
meaning so clear and unmistakable, that there is no occasion for construction. Nevertheless,
they differ widely as to their meaning. The court is of opinion that the case is one requiring
statutory construction.
Petitioners contend that their interpretation of the statutory provisions under discussion
should be upheld because (1) of the common usage and practice by the several executive
heads of the school department, acquiesced in by governing bodies of every board of school
trustees and every board of county commissioners in the state for a period of at least nine
years; (2) of implied legislative endorsement in that the legislature, presumed to be familiar
with the aforesaid executive practice, has not at any time modified the statute to provide a
different rule of apportionment; (3) of the maxim Expressio unius est exclusio alterius; (4)
of the rule that where one section of a statute treats specifically of a matter, it will prevail
over other sections in which incidental or general reference is made to the same matter; and
(5) because the construction placed upon this legislation by the attorney-general would defeat
its main purpose, which is to give additional state aid to the poorer counties having low
assessed valuations.
defeat its main purpose, which is to give additional state aid to the poorer counties having low
assessed valuations.
Respondent, on the other hand, takes the position that her interpretation should be adopted
for the reasons: (1) that the language of subdivision 2 of section 152 is clear, that there is no
limitation on the rate of taxation contained in that provision, that petitioners admit, by reason
thereof, that Clark County was required to raise $72,794 by taxation for elementary school
purposes for the school year 1939-1940, and that a greater amount of money would be raised
for that school year by the 50-cent levy than required by said subdivision 2; (2) that if the
legislature had intended by subdivision 4(a) of section 151 to provide that the tax rate of 35
cents on the $100 of assessed valuation was to be the basis upon which the right to participate
in apportionments of the state school reserve fund was to be premised, irrespective of a higher
rate of taxation and the raising of more money than required by law by any county, such
intent would not have been hidden away in express language clearly providing in specific
terms the condition precedent to the right of apportionment; (3) that it would be judicial
legislation if the court should uphold petitioners' contention; (4) that there is no limitation on
the amount of money to be raised by county taxation save as to the minimum amount as
provided in said subdivision 2 of section 152, and the board of county commissioners of
Clark County, having levied a tax more than ample to meet the requirements of that
provision, has by its own act placed that county without and beyond the purview of said
subdivision 4(a) of section 151 with respect to its right to now participate in the
apportionment of the state school reserve fund; (5) that if there is an irreconcilable
repugnancy between the provisions under discussion, the one later in position in the statute
should control; (6) that if said provision in section 151 is to be construed as contended for by
petitioners, then subdivision 2 of section 152 is meaningless; {7) that if said provision of
section 152 should not produce sufficient money for some particular school district, such
district could and would have recourse to the state school reserve fund, or to the county
general fund, under the provisions of subdivision 5{a) of section 151; {S) that if the board
of county commissioners of Clark County desired to take advantage of subdivision 4{a) of
section 151, it had ample notice of the superintendent's change in the method of
apportionment; {9) that the rule of implied legislative indorsement and long-continued
administrative practice have no application where the language of the statute is clear and
explicit; {10) that 4{a) of section 151 applies only where the board of county
commissioners levies a specific tax of 35 cents on the $100, not where a levy of more
than 35 cents on the $100 is made.
subdivision 2 of section 152 is meaningless; (7) that if said provision of section 152 should
not produce sufficient money for some particular school district, such district could and
would have recourse to the state school reserve fund, or to the county general fund, under the
provisions of subdivision 5(a) of section 151; (8) that if the board of county commissioners of
Clark County desired to take advantage of subdivision 4(a) of section 151, it had ample notice
of the superintendent's change in the method of apportionment; (9) that the rule of implied
legislative indorsement and long-continued administrative practice have no application where
the language of the statute is clear and explicit; (10) that 4(a) of section 151 applies only
where the board of county commissioners levies a specific tax of 35 cents on the $100, not
where a levy of more than 35 cents on the $100 is made.
1, 2. No constitutional questions are presented for the court's consideration. It may also be
observed that it is not within our province to decide which is the better or wiser method for
distributing school funds; that is a responsibility of the legislature. Our constitution contains
no provisions for the distribution of school funds, and it is not for the court to say that one
method should be adopted in preference to another. We are not to substitute our judgment for
that of a coordinate branch of the government working within its constitutional limits. Sawyer
v. Gilmore, 109 Me. 169, 83 A. 673.
3. The statutory provisions we are called upon to construe are all contained in the chapter
relating to school funds, being chapter 10 of the public school act. Our prime concern is to
ascertain the intent of the legislature. The court must, if possible, and if consistent with the
intention of the legislature, give effect to all the statutory provisions in controversy, and to
every part of them. It is our duty, so far as practicable, to reconcile the various provisions so
as to make them consistent and harmonious.
consistent and harmonious. The court, in interpreting these provisions, must also have in
mind the purposes sought to be accomplished and the benefits intended to be attained.
4-6. In view of the fact that subdivision 4(a) of section 151 and subdivision 2 of section
152, in their present form, became the law at the same time, by one and the same legislative
act, there is a strong presumption that neither provision was intended to override the other. It
is only where there is an irreconcilable conflict, and all other means of ascertaining the
legislative intent have been exhausted, that a later provision will control an earlier one. The
court does not discern such conflict here, even if petitioners' interpretation of section 151,
4(a), be adopted.
7. But should petitioners' construction of that provision be upheld? It should not if, as
contended by respondent, the levy therein mentioned means a specific levy of exactly 35
cents, and that only. If it were reasonably clear that such was the intention of the legislature,
that would be the end of the matter, and this proceeding would have to be dismissed; for,
while the court has the power to construe an uncertain or ambiguous statute, it cannot
substitute a different one, no matter how unwise or unreasonable the legislative enactment
under consideration may seem to be. But where the true intention of the lawmaking body is
not expressed by the language employed in a statute when that language is given its literal
meaning, it is the duty of the court to adopt a construction which will carry out the legislative
intention, in order that the real purpose and intent of the legislature may prevail over the
literal import of the words. 25 R.C.L. 967-970, sec. 222; 59 C.J. 952-958, sec. 569.
8. When the meaning of a statutory provision is doubtful the courts, in endeavoring to
discover the meaning intended by the legislature, give consideration to the effect or
consequences of proposed constructions. If the language fairly permits, the courts will avoid
construing it in a manner which will lead to an unreasonable result.
construing it in a manner which will lead to an unreasonable result. 59 C.J. 969-971, sec. 574;
Crawford on Statutory Construction, sec. 177; 25 R.C.L. 10171019, secs. 255, 256.
9. It is clearly the purpose of subdivision 4(a) of section 151 to give additional aid to some
counties. What would be the effect of adopting respondent's construction of that provision?
Only those counties which levy exactly 35 cents on the $100 for elementary school purposes
would be entitled to its benefits. This would mean that few, if any, counties would ever
receive such aid. It would also mean that the counties most in need of aid would be unable to
obtain it under the provisions of said subdivision 4(a). That the legislature intended such
results seems unreasonable.
Respondent says that if the board of county commissioners of Clark County desired to take
advantage of section 151, 4(a), it had ample notice of the superintendent's change in the
method of apportionment. It is true that such notice was given some three months before the
board made its 50-cent levy; but it is also true that this announced change could not change
the law. Furthermore, if respondent's construction of section 151, 4(a), is correct, Clark
County could not obtain any relief under it, because if the board of county commissioners had
made a levy of exactly 35 cents, it would have violated the provisions of section 152, 2. We
cannot believe it was the legislative intent that a county could obtain aid under the provisions
of one section by violating those of another.
10. Respondent argues that if petitioners' construction of section 151, 4(a) is correct, then
section 152, 2, is meaningless. In the court's opinion this is not necessarily so. The latter
provision is one for the levy of a school tax, the former one for the apportionment of school
funds. There is a difference between assessment or levy on the one hand, and apportionment
or distribution on the other. Sawyer v. Gilmore, supra; Miller v. Korns, 107 Ohio St. 287, 140
N.E. 773. A provision requiring a higher levy than 35 cents on the $100 is not necessarily
repugnant to or in conflict with one granting state aid on the basis of a 35-cent levy.
requiring a higher levy than 35 cents on the $100 is not necessarily repugnant to or in conflict
with one granting state aid on the basis of a 35-cent levy. Effect can be given to both
provisions.
11. Respondent makes the further contention that if section 152, 2, should not produce
sufficient money for a particular school district, such district could obtain aid under the
provisions of subdivision 5(a) of section 151. If that be true, it by no means follows that
section 151, 4(a), must be subordinated to 5(a) of the same section and subdivision 2 of
section 152. We perceive no good reason why the provisions of 5(a), section 151, for giving
state aid to school districts under certain special and limited conditions, should be held to
override 4(a) of that section, which provides for state aid to counties under other and different
conditions. The legislature could have omitted 4(a) of section 151 when the amendatory act
of 1925 was enacted, but it did not see fit to do so; nor has any of the seven succeeding
legislatures done so. Even when section 151 was amended in 1929, subdivision 4(a) of
section 151, as we have seen, was retained without change.
Finding no irreconcilable repugnance in the provisions of 4(a), section 151, and those of
5(a), section 151, and subdivision 2 of section 152; having also in mind our duty to give
effect to and harmonize, if reasonably possible, all these provisions, and every part of them;
and being of the opinion that the construction of 4(a), section 151, contended for by
respondent does not conform to the intent and purpose of the public school act, particularly
chapter 10 thereof: we hold that the 50-cent levy made by the board of county commissioners
in April 1940 included the 35-cent levy spoken of in 4(a), section 151, and that Clark County
was and is entitled to have apportioned to it, out of the state school reserve fund, the sum of
$16,531.45, as prayed in the petition.
12. In reaching the conclusion that petitioners' construction of 4(a), section 151, is correct,
the court has been influenced in no small measure by the construction given the statutory
provisions here in controversy during past years.
been influenced in no small measure by the construction given the statutory provisions here in
controversy during past years. From as far back as 1931, at least, these provisions have been
administered upon the basis of the construction contended for by petitioners, and since 1925
no changes have been made in them by the legislature. Respondent is right in saying that the
rules concerning executive and administrative construction have no application where the
statutory provisions are so clear, certain and free from ambiguity as not to require
construction; but where, as here, their meaning is not clear or certain, and the court must
perforce endeavor to construe them in conformity with the real intention of the legislature, the
construction uniformly adopted over a period of at least some nine years by the officials
entrusted with the administration of the provisions in question, while not conclusive, is of
much persuasive force. State v. Glenn, 18 Nev. 34, 1 P. 186; State v. Grey, 21 Nev. 378, 32
P. 190, 19 L.R.A. 134; State v. Brodigan, 35 Nev. 35, 126 P. 680; State v. Cole, 38 Nev. 215,
148 P. 551; Seaborn v. Wingfield, 56 Nev. 260, 48 P.(2d) 881; Crawford on Statutory
Construction, section 219; 59 C.J. Statutes, secs. 608, 609; 25 R.C.L., Statutes, sec. 274.
Whether any changes should be made in the statutory provisions here construed is a
question for the consideration of the legislative branch of our state government.
The prayer of the petition is granted, and it is ordered and adjudged that the peremptory
writ of mandamus be issued herein commanding respondent, upon receipt of the writ, to
forthwith apportion to the county of Clark, out of the state school reserve fund, the sum of
$16,531.45 as prayed in the petition.
____________
60 Nev. 358, 358 (1941) Montgomery Ward & Co. v. Stevens
MONTGOMERY WARD & CO., INC., a Corporation, Appellant,
v. STEVE J. STEVENS AND ANNA S. STEVENS, Respondents.
No. 3310
February 3, 1941. 109 P.(2d) 895.
In an action for damages against a dealer for negligent installation of automatic oil burning stove in
plaintiffs' home, as result of which oil overflowed from tank and ran over floor and about furniture and
furnishings, evidence held sufficient to sustain finding that person who installed the stove was dealer's
agent and not an independent contractor.
Trial court's finding of facts, in an action at law tried without a jury, supported by substantial evidence
must be accepted by appellate court.
The weight of testimony introduced to explain a certain transaction was for the trial court.
An agreement between corporate dealer and person employed by it to install oil burning stove that such
person should be an independent contractor and not agent of dealer did not relieve dealer from
responsibility to buyers of stove for negligent installation causing damage, where buyers had been led to
believe that agency existed between the parties.
One who represents that another is his servant or other agent and thereby causes third person justifiably to
rely on the care or skill of such apparent agent is liable to third person for harm caused by the lack of care
or skill of the one appearing to be servant or other agent as if he were such.
6. Damages.
In action for damages sustained by buyers of automatic oil burning stove from negligent installation of
stove caused by oil overflowing from tank and running over floor, the fact that court awarded the damaged
building to defendant if defendant desired to remove it from premises in a given time was not error, on
theory that court thereby granted equitable relief in an action at law, where damages were awarded on basis
of cost of replacement of building as a residence which was totally ruined.
7. Damages.
In action for damages resulting from negligent installation of automatic oil burning stove, trial court had
discretion to award damages to buyers of stove for value of their dwelling less the salvage value, or to
award damages on basis of cost of replacement of dwelling as a residence which was totally
ruined.
of replacement of dwelling as a residence which was totally ruined.
8. Damages.
In action for damages for negligent installation of automatic oil burning stove, burden was on seller to
prove salvage value of dwelling in mitigation of damages.
Action by Steve J. Stevens and another against Montgomery Ward & Co., Inc., to recover
damages for the negligent installation of an automatic oil burning stove. From a judgment for
plaintiffs, and from an order denying its motion for a new trial, defendant appeals. Affirmed.
Miles N. Pike, for Appellant.
L. D. Summerfield and A. R. Schindler, for Respondents.
OPINION
By the Court, Ducker, C.J.:
This action was brought to recover damages alleged to have been sustained by plaintiffs on
account of the negligent installation of an automatic oil burning stove. The parties will be
referred to as in the court below.
Plaintiffs purchased an automatic oil burning stove from the defendant and shortly after its
installation in their home in Sparks, oil overflowed from a tank connected with the stove
running over the floor and about the furniture and furnishings, causing the damages alleged.
The action was tried by the court without a jury and it was found the stove was negligently
installed by the defendant through its agents and employees. Defendant has appealed from the
judgment in favor of plaintiffs in the sum of $2,262.64, and from an order denying its motion
for a new trial. It is admitted by defendant that the stove was negligently installed and
that damages to plaintiffs resulted therefrom.
It is admitted by defendant that the stove was negligently installed and that damages to
plaintiffs resulted therefrom. It contends, however, that it is not responsible because one
Harry Blanchard, who actually installed the stove, was not acting as its servant, but was
acting either as an independent contractor, or the servant of plaintiffs.
1, 2. We have examined the evidence with due care. There is none tending to prove that
Blanchard was employed by plaintiffs. Both of them testified that they had never known or
seen him before he arrived at their home to do the installing, and that they did not employ
him. This is not denied.
Blanchard, who was a witness on behalf of defendant, did not testify that plaintiffs
engaged him to do the installing. His arrangements for the installing were all made with a Mr.
Dixon, branch manager for defendant, and he was paid for the work by it. A Mr. Wallner,
appliance salesman for defendant, who made the sale, testified in its behalf, and said: I told
her if she wanted the heater installed I could suggest some one to install that heater for us that
was capable of doing a good job, and that I suggested Mr. Blanchard to her * * * and I told
her if she wanted this heater installed that she could either call Mr. Blanchard or let me call
him, and I could send him out there to see her regarding the installation. In regard to the
price for installing, he testified: I told her if she wished, it was purely optional whether she
paid Mr. Blanchard or whether she added it to the contract and she could pay it with the
heater. * * * She preferred later to adding it on to her contract and paying it on the installment
plan.
Nowhere did he testify that she agreed to employ Blanchard to do the installing.
Some of the testimony given by defendant's witnesses tends to show that Blanchard was
not acting as an employee of defendant in the installation of the stove. Mrs. Cowen, office
manager for defendant, testified that he "does not appear on any pay roll for Montgomery
Ward at any time."
he does not appear on any pay roll for Montgomery Ward at any time.
Mr. Dixon, branch manager of defendant's local store in Reno, testified that it was his duty
to hire the employees of defendant and that he never hired Blanchard to work for it and that
Blanchard was never paid any wages or salary by defendant. The company had an
arrangement with Blanchard whereby, in the event customers bought oil heaters from the
store and did not wish to do the work of installation themselves, Blanchard would be
recommended. If the customer wished Blanchard's charges for the work would be added to
the customer's account at the store and Blanchard paid by the company at the completion of
the job when and if he presented a signed statement by the customer that the work had been
completed in a satisfactory manner; that the work of installation for the plaintiffs was handled
in that manner. The witness testified that he gave no instructions to Blanchard or told him
how to install the stove for plaintiffs. The witness further testified that Blanchard furnished
all materials required for the installation of stoves; all the tools, labor and means for
transportation of the same to the place of installation.
Blanchard, who was a witness for defendant, corroborated Dixon in all respects as to said
agreement. He testified that he was never employed by defendant; that he had an arrangement
with Dixon with reference to oil heaters sold by defendant, to install such heaters where the
customers did not do the work themselves; that he submitted in writing to Dixon a standard
installation charge; that under this arrangement defendant's salesman would tell customers he
could supply them with somebody to do the work and witness could go and see them. In
doing the work witness furnished all materials to install the heaters, all of the tools and means
of transportation for hauling same to the place of installation. Blanchard testified to
considerable conversation with plaintiffs at their home when he was installing the heater,
but as none of it is inconsistent with plaintiffs' claim that he was acting for defendant, it
is unnecessary to detail or summarize it.
plaintiffs at their home when he was installing the heater, but as none of it is inconsistent with
plaintiffs' claim that he was acting for defendant, it is unnecessary to detail or summarize it.
On the other hand, testimony given by plaintiffs and other circumstances in evidence furnish
substantial support for the court's finding that the installation was done by defendant's agent
and therefore must be accepted here. Mrs. Stevens testified that the salesman, Wallner, never
suggested the name of Blanchard to her for installing the stove, but told her that they had
engineers that does that; that she never knew or heard of Blanchard until he came to her
home with his assistant, Jeffers, to install the stove; that at that time a Mr. Saxby (an
employee of defendant) brought the two men into the back porch and introduced them and
said they were to install the stove and were from Montgomery Wards. She testified that she
did not know that Blanchard was coming down to install the stove and had no business with
him at all. It further appears from her testimony that after the accident she notified defendant
and Saxby came down. He said he could not fix the heater because it was not his work. She
then contacted Mr. Dixon and he and Blanchard came down. Saxby then disconnected the
pipes; drained the oil and they tried to clean things up as best they could. During this time
Dixon said to Blanchard, It was up to you and me and we will have to straighten this out and
fix it. We will have to bring sand and put it in the cellar and then lime to take the odor out.
We have to go ahead and fix up this place. You will have to go half and I will go half, and I
will take so much out of your wages each week.
She testified that they (Dixon and others) sent down two carpenters who endeavored to
repair the damage by putting in some new flooring; that in a controversy she had with
Blanchard over an extra charge of $4 on the installation, he said: You don't have to pay me.
That will go into your contract when you pay Montgomery Ward.
3. Plaintiff Steve Stevens testified that he had never known Blanchard or Jeffers prior to
their coming to the house to install the stove and had nothing to do with their employment.
He corroborated his wife as to Blanchard, Jeffers and Saxby coming to their home to install
the stove and as to Saxby, Dixon and Blanchard coming to the place shortly after she reported
the accident to Montgomery Ward; and as to their efforts to repair the damage including their
sending down carpenters and replacing flooring. After the flooring was replaced, he said
Dixon came down again and looked it over and showed some anger when the witness said he
was not satisfied with the work. We need not detail further circumstances in evidence which
the court could rightfully consider had some tendency to establish the relation of agency
between defendant and Blanchard. However, a circumstance of this character appears from
the conditional sales contract under which the stove was purchased, which contains a charge
for installation added to the purchase price of the heater. The weight of the explanation which
defendant's witnesses gave to this was, of course, for the trial court. There is no statement in
the contract that the customer was to install the stove.
4. The trial court having found on this issue in favor of plaintiffs on evidence legally
sufficient to support its finding, it is immaterial whether the evidence establishes that
Blanchard was an independent contractor. The plaintiffs were not bound by the agreement to
that effect between Blanchard and defendant. There is no evidence tending to show that
plaintiffs had any knowledge of this agreement. Plaintiffs denied any such knowledge and
their evidence shows that Blanchard was held out to them as the agent of defendant. Wallner
testified that he did not know what kind of a contract or arrangement Blanchard had with
Montgomery Ward. From his statement: I told her if she wanted the heater installed I would
suggest some one to install that heater for us that was capable of doing the job; and "that
they had engineers that does that," she was justified in concluding that Blanchard was to
act as the agent of defendant.
that they had engineers that does that, she was justified in concluding that Blanchard was to
act as the agent of defendant. As counsel for plaintiffs points out, defendant recognized this
agency and responsibility for it by putting in new flooring to replace some damaged by the
overflowing oil.
That the interest and activity of defendant's employees in this and other respects on being
informed of the accident were due solely to the desire to keep plaintiffs' good will, could have
been reasonably rejected by the trial court, for the more logical deduction that they manifested
a sense of responsibility.
The agreement between defendant and Blanchard had no effect in relieving it from
responsibility to plaintiffs because they had been led to believe that an agency existed
between the former. Jensen v. Lewis Investment Co., 39 Neb. 371, 58 N. W. 100. See
Harding et ux. v. Home Investment & Sav. Co. et al., 49 Idaho 64, 286 P. 920, 297 P. 1101,
where a written stipulation between the principal and apparent agent that no agency existed,
was held not to be binding on one who had been led to believe that an agency existed.
5. The principle of law applicable in the situation presented here is thus stated: One who
represents that another is his servant or other agent and thereby causes a third person
justifiably to rely upon the care or skill of such apparent agent is subject to liability to the
third person for harm caused by the lack of care or skill of the one appearing to be a servant
or other agent as if he were such. Restatement of the Law, 1 Agency, p. 590, sec. 267; 2 C.J.
p. 461, sec. 70; 2 C.J.S., Agency, p. 1063, sec. 29; 2 Am. Jur. p. 86, sec. 104. We have
examined the authorities cited by defendant and find that none fits the facts of this case.
6-8. In its judgment the court awarded the damaged building to defendant if it desired to
remove it from the premises in a given time. This is assigned as error and it is contended that
the court thereby granted equitable relief in an action at law. It is insisted that the court
should have found the salvage value and have deducted it from the damages awarded;
that in proceeding illegally as it did it placed an undue burden on defendant.
court should have found the salvage value and have deducted it from the damages awarded;
that in proceeding illegally as it did it placed an undue burden on defendant. We think the
court exercised a proper discretion in the method employed. The court could, it is true, have
awarded damages to the plaintiffs for the value of the house less the salvage value. But the
court did not do that. Damages were awarded on the basis of cost of replacement of the
building as a residence, the same having been totally ruined. Having so held, it would have
been inconsistent to have charged the plaintiffs with the salvage value, which would have
been the effect to have ascertained it and have deducted it from the damages awarded.
Defendant has not been injured and is in no position to complain on account of the salvage
value, if any, having been awarded to it. Defendant was not required to take the ruined
tenement. It could take it or leave it. The burden was on defendant to prove the salvage value
in mitigation of damages and was not sustained.
We have examined the other assignments of error and find them to be without merit.
Judgment and order denying new trial affirmed.
____________
60 Nev. 366, 366 (1941) Matyasovich v. Petricciani
MIKE MATYASOVICH, Appellant, v. JOHN
PETRICCIANI, Respondent.
No. 3270
February 13, 1941. 110 P.(2d) 206.
Where tenant had voluntarily relinquished possession of leased premises under written agreement with
landlord whereby tenant was to be given possession again on a specified date, landlord's failure to restore
leased premises on that date constituted a breach of contract to deliver possession but not a constructive
eviction.
Where tenant relinquished possession of leased premises pursuant to agreement with landlord whereby
tenant was to be given possession on specified future date, but possession was not given on that date by
landlord, who subsequently set another date when premises would be ready for occupancy, the tenant by
accepting subsequent offer would not have waived right to damages suffered by him between date
originally set for repossession and the subsequent date.
A landlord's failure to restore tenant to possession of leased premises on date set by agreement under
which tenant temporarily relinquished possession of premises constituted a breach of agreement giving
tenant, if he so elected, right to consider lease abrogated and to sue for damages.
Where tenant voluntarily relinquished possession of leased premises pursuant to written agreement with
landlord under which premises were to be restored October 1, but landlord failed to restore premises on
specified date, although on October 19 he notified tenant in writing that premises would be ready on
October 26, tenant, who was unable to find another suitable location, was not entitled to damages in
amount of value of remainder of term, but was bound either to accept premises on October 26, or have
damages limited to period from October 1 to not later than October 20.
The reviewing court in considering tenant's right to refuse landlord's offer to restore premises to tenant
could not consider testimony which was squarely denied, was not corroborated, and concerning which trial
court made no finding.
Where landlord had breached agreement to restore leased premises to tenant on October 1, but on
October 19 had informed tenant in writing that premises would be ready for occupancy on October 26,
tenant, who refused the offer, was not entitled to damages for 26 days, but for not more than
20 days.
not entitled to damages for 26 days, but for not more than 20 days.
A landlord's breach of agreement under which tenant's equipment was to be reinstalled on specified date
in same condition furnished no basis for award of special damages to tenant on ground that equipment had
become valueless, in absence of evidence of deterioration of equipment up to date of landlord's subsequent
offer to reinstall equipment by later date.
Action by Mike Matyasovich against John Petricciani to recover damages for breach of a
lease. Judgment for plaintiff, whose motion for new trial was denied, and the plaintiff appeals
from the judgment and the order denying a new trial. Judgment and order affirmed.
E. P. Carville and Thomas O. Craven, for Appellant.
Platt & Sinai, for Respondent.
OPINION
Appellant and respondent were plaintiff and defendant, respectively, in the trial court; they
will sometimes be so designated herein.
Respondent is the owner of the premises in which he conducts a gambling and liquor
establishment known as the Palace Bar, or Palace Club, in the city of Reno. On May 31,
1935, appellant took a five-year lease on the rear portion of said club, went into possession on
the following day and conducted a restaurant business there until June 15, 1936. The agreed
rental for the five-year term was $11,400, to be paid in sixty monthly payments, $175
monthly in advance for the first two years, and $200 monthly in advance for the remainder of
the term.
term. The five-year term was to and did commence on the first day of June 1935, at which
time appellant paid respondent $375, being $175 for the first month and $200 for the last
month.
When appellant took the lease, he purchased from respondent certain equipment and
utensils, paying therefor $1,170. He also claims to have expended at that time the further sum
of $4,600 in equipping and preparing the leased premises for use as a restaurant and
lunchroom. He testified that from June 1, 1935, to June 15, 1936, the business netted him
approximately $11,500.
The lease, though reduced to writing on May 31, 1935, was not actually executed until
June 11, 1936. On this latter date the parties executed a new written agreement by the terms
of which appellant released and relinquished to respondent the premises described in the
original lease, for the period from June 15, 1936, to September 30, 1936. Respondent agreed
to pay appellant, during this period, $10 a day, and released appellant from payment of any
rentals in the meantime. It was further agreed that respondent, at his own expense, would
remove appellant's equipment, store it in a warehouse, and cause it to be returned to the
premises immediately after September 30, 1936, and reinstalled therein in the same condition
and in the same manner as it was at the time the new agreement was entered into, so that
appellant might recommence a restaurant business in said premises on October 1, 1936. By
the provisions of this new agreement it was understood that, except as therein provided, all
the terms and provisions of the lease of May 31, 1935, should remain in full force and effect
and that the rentals therein provided should recommence upon the 1st day of October, 1936,
at which time all the terms and provisions of said lease should again become operative as to
both parties.
Pursuant to the new agreement, respondent took possession, caused appellant's equipment
to be removed and stored, and proceeded to use the premises in connection with his
gambling business.
and stored, and proceeded to use the premises in connection with his gambling business.
While not mentioned in the new agreement, it appears that, in addition to the $10 per day
to be paid appellant, he was also to be allowed the use of two gambling tables, the profit from
which was to be divided three ways among appellant, respondent, and a third party associated
with appellant. The record does not show what, if any, profit was made from these two tables,
either before or after October 1, 1936. If any profit was made, there is nothing in the record to
show that appellant did not receive his share.
About the middle of September 1936, or shortly thereafter, negotiations took place
between the parties concerning a proposed sale by appellant to respondent of the remainder of
the term. Appellant testified that he told respondent those negotiations would have to be
concluded one way or the other not later than about a week before October 1, 1936, so that in
the event they broke down, appellant would have time to prepare for resuming his restaurant
business on that day. No agreement was reached on the proposed sale by October 1, and on
September 30 and again on October 1 appellant tendered to respondent the rent for October,
at the same time demanding to be put in possession in accordance with the terms of the
agreement of June 11. Respondent did not accept the rent money, and testified that when it
was tendered, he told appellant it would be impossible to reinstall the equipment and give
him possession in one day. He further testified that the negotiations for sale continued util
about the middle of October, at which time, the negotiations having failed, appellant was
orally notified that he would be restored to possession. At the request of respondent,
appellant's books were turned over to the former. They were gone over, after October 1, by an
accountant employed by respondent. The latter testified that the purpose in examining the
books was to endeavor to agree upon a price for the sale by appellant to respondent of the
remainder of the term.
price for the sale by appellant to respondent of the remainder of the term. Appellant, however,
testified that the sole purpose of the examination was to arrive at the amount of damages
resulting to him by reason of respondents failure to give him possession on October 1. It is
undisputed that on October 19, 1936, respondent notified appellant, in writing, that the leased
premises would be ready for occupancy by the latter on October 26, 1936, and that the
restaurant equipment would be returned and reinstalled under the terms and conditions of the
new agreement of June 11, 1936. On October 20, 1936, appellant notified respondent, in
writing, that the former considered the original lease, as well as the new agreement,
terminated, and that the lease and subsequent agreement had both been breached and violated
by respondent. Thereafter, on November 2, 1936, appellant, as plaintiff, commenced this
action in the Second judicial district court, Washoe County, and demanded judgment against
respondent, as defendant, for damages in the total sum of $47,937.66, being $42,167.66
general damages, and a further $5,770 by reason of his equipment having become valueless.
In his answer defendant, among other things, denied that plaintiff while in possession had
realized net profits in the amount alleged in the complaint or any other amount; he further
denied that he had breached or violated in any respect or at all either the original lease or the
agreement of June 11, 1936, or any provision of either of them; he denied that plaintiff had
expended $4,600 or any other sum in equipping and preparing the leased premises for use as a
restaurant and lunchroom; and denied that plaintiff had been damaged in any sum or at all. In
his said answer defendant alleged that his failure to restore the leased premises to plaintiff's
possession on October 1, 1936, was through no fault of his own, but was the direct result of
the negotiations between the parties looking to a sale of the remainder of the term, which
negotiations continued with the full consent and approval of plaintiff beyond the said 1st
day of October; he further alleged that as soon as it was found the parties could not agree
on a sale price, defendant, about October 15, 1936, notified plaintiff orally that his
equipment would be reinstalled at defendant's expense, and further notified plaintiff, in
writing, on October 19, 1936, that the leased premises would be ready for plaintiff's
occupancy as a restaurant business on October 26, 1936, and that the equipment
theretofore removed and stored under the terms and conditions of the agreement of June
11, 1936, would be returned to the leased premises and reinstalled therein under the
terms of said agreement in the same condition and in the same manner as when removed,
and at defendant's expense; he alleged also that on October 20, 1936, plaintiff without
cause rejected defendant's written offer of the preceding day, refused to reenter the
leased premises, and notified defendant that he, plaintiff, considered the lease of May 31,
1935, and the agreement of June 11, 1936, terminated.
with the full consent and approval of plaintiff beyond the said 1st day of October; he further
alleged that as soon as it was found the parties could not agree on a sale price, defendant,
about October 15, 1936, notified plaintiff orally that his equipment would be reinstalled at
defendant's expense, and further notified plaintiff, in writing, on October 19, 1936, that the
leased premises would be ready for plaintiff's occupancy as a restaurant business on October
26, 1936, and that the equipment theretofore removed and stored under the terms and
conditions of the agreement of June 11, 1936, would be returned to the leased premises and
reinstalled therein under the terms of said agreement in the same condition and in the same
manner as when removed, and at defendant's expense; he alleged also that on October 20,
1936, plaintiff without cause rejected defendant's written offer of the preceding day, refused
to reenter the leased premises, and notified defendant that he, plaintiff, considered the lease of
May 31, 1935, and the agreement of June 11, 1936, terminated.
Plaintiff having filed his reply to defendant's answer, the case proceeded to trial, and the
district court awarded plaintiff judgment against defendant in the sum of $400, being $200
damages ($10 per day) sustained by plaintiff from October 1 to October 20, 1936, and a
further $200 by reason of the amount paid at the beginning of the lease as rental for the last
month of the term. Plaintiff has appealed from said judgment, and from an order denying a
new trial.
It is appellant's contention that respondent's failure to restore him to possession on October
1, 1936, amounted to constructive eviction of appellant, and that the latter was not only
legally justified in terminating the lease, but was also entitled to recover as damages the value
of the remainder of the term, besides special damages. In arriving at such value, appellant
argues that the profits realized by him should be used as a basis; or if not, that the amount of
general damages should be the market value of the remainder of the term, which he
testified was $35,000.
should be the market value of the remainder of the term, which he testified was $35,000.
There is a sharp conflict in the testimony, both as to the amount of plaintiff's profits and the
market value of the remainder of the term. As against plaintiff's testimony that his net profits
averaged nearly $1,000 a month and that the market value of the remainder of the term was
$35,000, the testimony given in behalf of defendant was to the effect that, because of the high
rent and other overhead, plaintiff's profits, if any, were small, and the remainder of the term
of little if any value.
Was the trial court right in limiting plaintiff's damages to the first twenty days of October
1936? Appellant admits that the law required him to do what he reasonably could in the way
of minimizing his damages; and this he claims to have done by endeavoring, though
unsuccessfully, to secure another suitable location. He contends that the law did not require
him to mitigate his damages by accepting defendant's written offer of October 19, 1936. In
support of this position, he argues: (1) That defendant's failure to reinstall plaintiff's
equipment and give him possession on October 1, 1936, constituted a constructive eviction,
and had plaintiff accepted the offer of October 19, 1936, he would have waived the eviction
entirely, leaving him only a cause of action for simple trespass with damages limited to the
actual time he was deprived of the leased premises; (2) that it was plaintiff's legal right to
consider the lease completely abrogated by defendant's act in refusing him possession at the
time agreed, and to sue for eviction, his damages being the value of the remainder of the
term; (3) that plaintiff could not be forced to enter contractual relations against his will, or to
abandon his right of action for the eviction; (4) that it would not have been prudent for
plaintiff to accept the offer of October 19, because he had been previously informed by
defendant's attorney that he would be allowed to return to the premises only on condition that
he remove from the basement his refrigeration plant, which he had theretofore installed
at an approximate cost of $1,200.
from the basement his refrigeration plant, which he had theretofore installed at an
approximate cost of $1,200.
1. Defendant's failure to restore the leased premises on October 1, 1936, constituted a
breach of contract to deliver possession, not a constructive eviction. Plaintiff, though entitled
to be put in possession on October 1, was not in possession at that time and had not been
since the middle of June when, without any fault or wrong doing on the part of defendant, he
voluntarily and completely relinquished possession. Vanderpool v. Smith, 4 Abb. Ct. App.
Dec. 461, 464; Dunn v. Di Nuovo, 3 M. & G. 105, 42 E.C.L. 63, 133 Reprint 1075; McAdam
on Landlord and Tenant, vol. 2, sec. 328, p. 391; 36 C.J. 258, 259, n. 7; 11 Am. & Eng.
Encyc. of Law 460; 62 A. L. R. 1309, 2d column, lines 7-13. In support of his contention that
there was a constructive eviction in this case, and not merely a breach of contract for failure
to deliver possession, appellant has cited three California cases: Morse v. Tochterman, 21
Cal. App. 726, 132 P. 1055; Coen v. Los Angeles, 70 Cal. App. 752, 234 P. 426; Tregoning
v. Reynolds, 136 Cal. App. 154, 28 P.(2d) 79. An examination of these cases discloses that in
each instance the party evicted, or claiming to have been evicted, was in possession
immediately preceding and up to the time when the eviction, or alleged eviction, took place.
2. Plaintiff, had he accepted respondent's offer of October 19, 1936, would not have
waived his right to damages suffered by him from October 1 to October 26. Huntington Easy
Payment Co. v. Parsons, 62 W. Va. 26, 57 S. E. 253, 9 L.R.A. (N.S.) 1130, 125 Am. St. Rep.
954; Cleveland, C., C. & St. L. Ry. Co. v. Joyce, 54 Ind. App. 658, 103 N.E. 354; 36 C.J. 53,
note 33; 16 R.C.L. 726, note 3; Monographic Note, 134 Am. St. Rep. 922.
3. Defendant's failure to restore plaintiff to possession on October 1 was a breach of the
agreement of June 11, justifying plaintiff, if he so elected, to consider the lease abrogated, and
sue for damages; and such was the holding of the trial court.
the holding of the trial court. In holding that by declining to accept defendant's offer of
October 19 plaintiff's recovery of general damages was limited to the period from October 1
to October 20, the district court did not decide that plaintiff could be forced to enter
contractual relations against his will or to abandon his right of action for damages. Plaintiff
was at liberty, if he could, to find some other equally suitable location or to mitigate his
damages in any other reasonable way.
4. As there was no change in conditions during the month of October, and no lessening in
value of plaintiff's equipment, the premises would have been worth as much to plaintiff on
October 26 as on October 1. Appellant admits that it was his duty to minimize his damages,
but according to his own testimony, he was unable to find another suitable location. In view
of the fact that respondent offered to restore appellant to possession under the precise
conditions as those under which he had held the premises until June 15, 1936, and as
appellant was unable to secure another suitable location, he was bound either to accept the
premises on October 26, or have his damages limited to the period from October 1 to not later
than October 20. Huntington Easy Payment Co. v. Parsons, supra; Hahn v. Mackay, 63 Or.
100, 126 P. 12, 991; Hodges v. Fries, 34 Fla. 63, 15 So. 682; 36 C.J. 59, n. 18; 8 R.C.L. 442,
section 14; Annotation, 104 A.L.R. 166, 167.
5. Appellant strenuously urges that it is unreasonable to say he should have taken the
premises back on October 26, because defendant's attorney had told him that, while he would
be allowed to return to the premises, it would only be on condition that plaintiff remove his
refrigeration plant from the basement. Plaintiff testified that defendant's attorney, Mr. Sinai,
did so inform him, but this testimony was squarely denied by that of Mr. Sinai, and was not
corroborated by any other testimony or evidence. The trial court made no finding with respect
to this particular matter, and we do not find in the record any objections to the findings or
any proposed additions or modifications thereto.
the record any objections to the findings or any proposed additions or modifications thereto. It
is not claimed that defendant's offer of October 19, 1936, contained or was accompanied by
any such condition, nor does it appear that before or at the time of refusing said offer plaintiff
indicated his willingness to accept it, provided his refrigeration be allowed to remain in the
premises. We do not say that plaintiff's testimony regarding this particular matter is untrue,
nor that of Mr. Sinai denying it. It would not be proper for this court, under the
circumstances, to make a finding on this issue, one way or the other. We cannot, therefore,
consider as a reason for plaintiff's not accepting the premises on October 26, the alleged fact
that defendant's attorney made the statement attributed to him by plaintiff.
6. Appellant suggests that, even on the assumption that the trial court was right in limiting
his damages to a portion of the month of October 1936, the $10 per day allowance should
have been for twenty-six, not twenty, days. Had defendant taken the premises back on
October 26, he would have been entitled to damages for twenty-five days; but as he refused,
on October 20, the offer made him on October 19, we think the district court was right in not
allowing damages for more than twenty days. 16 R.C.L. 728, note 18; 36 C.J. 59, 60, note 19.
7. There was no basis for awarding special damages, because defendant, on October 19,
offered to reinstall plaintiff's equipment by October 26, in the same condition it had been
prior to June 15, and there was no evidence showing any deterioration in value of the
equipment up to that time.
____________
60 Nev. 376, 376 (1941) In Re Arnold's Estate
In The Matter of the Estate of LEWIS R. ARNOLD, Also Known
as Lewis Richard Arnold, and L. R. Arnold.
No. 3328
February 13, 1941. 110 P.(2d) 204.
1. Wills.
Implied revocations of wills are founded on reasonable presumption of an alteration of testator's mind,
arising from circumstances since making of the will, producing a change in his previous obligations and
duties, or on presumption that will would have been different if executed under the altered circumstances.
2. Wills.
A divorce, after execution of will, will not alone work an implied revocation of will. Comp. Laws, sec.
9912.
3. Wills.
Where husband and wife were divorced without formal property settlement agreement or allowance of
alimony, after husband had executed will in favor of wife, and will remained in husband's possession until
his death 11 months later, without formal revocation, implied revocation of will could not be inferred.
4. Evidence.
Where a man retains a revocable instrument with full opportunity of revoking it, and does not revoke it,
there is a strong presumption that he wishes it to stand.
5. Wills.
The fact that husband has ample time and opportunity after divorce to revoke will previously executed in
wife's favor, but does not do so, is persuasive against a presumption of altered intention of husband,
particularly where husband had notice of the divorce. Comp. Laws, sec. 9912.
6. Wills.
Implied revocations of wills are not favored, and statutory provision dealing with such revocations must
be strictly construed. Comp. Laws, sec. 9912.
7. Wills.
Where wife obtained divorce without formal property settlement, alimony was waived and there was no
community property, there was no property settlement by operation of law that could have result of
revoking will previously executed by husband in wife's favor. Comp. Laws, sec. 9912.
Appeal from Eighth Judicial District Court, Clark County; Roger Foley, Judge.
Proceeding in the matter of the estate of Lewis R.
Arnold, also known as Lewis Richard Arnold and L. R. Arnold, on petition by Frances Lillian
Arnold for letters of administration with will annexed, to which Frank G. Arnold and another
filed objections. From a judgment and order admitting will to probate and denying a new
trial, Frank G. Arnold and another appeal. Affirmed.
A. W. Ham and Ryland G. Taylor, for Petitioner.
Leo A. McNamee and Frank McNamee, Jr., for contestants.
OPINION
By the Court, Ducker, C. J.:
On April 23, 1931, Lewis R. Arnold executed his holographic will making his wife,
Frances Lillian Arnold, his sole beneficiary. On October 7, 1938, she obtained a divorce from
him. She sought no alimony in the action. The sole heirs at law of the deceased are a brother
and sister.
Shortly after the death of Lewis R. Arnold, respondent produced the will and petitioned
the lower court that letters of administration with the will annexed, upon the estate, be issued
to her. The said brother and sister, Frank G. Arnold and Mollie Hiatt Arnold, filed objections.
The objections were overruled and the will was by order of the lower court admitted to
probate. A motion for a new trial was denied. Hence their appeal.
There are two assignments of error and they may be considered together because they
present the single question: Is the will the valid holographic will of the decedent? Appellants
contend that it is not, because it was revoked by the divorce. The court found, inter alia, that
there was no community property belonging to the decedent and the said Frances Lillian
Arnold at the time of the divorce; that subsequent to the 23d day of April 1931, and prior to
the 7th day of October 1938, there was no property settlement agreement entered into
between the said Frances Lillian Arnold and decedent; that the will had never been
revoked and was the good and lawful will of decedent.
between the said Frances Lillian Arnold and decedent; that the will had never been revoked
and was the good and lawful will of decedent.
Section 9912 N.C.L. provides: No will in writing shall be revoked unless by burning,
tearing, canceling or obliterating the same, with the intention of revoking it, by the testator, or
by some person in his presence, or by his direction, or by some other will or codicil in
writing, executed as prescribed by this act; but nothing contained in this section shall prevent
the revocation implied by law from subsequent changes in the condition or circumstances of
the testator.
The will was not revoked in any of the modes stated above. Appellants contend, however,
that by reason of the last sentence in that section the will was revoked by implication of law.
1. The statute contains in the last sentence the doctrine of implied revocation of a will
which has long existed. The reasons for the rule and the extent of its recognition are thus
stated in 4 Kent's Commentaries 421-2: They (implied revocations) are founded upon the
reasonable presumption of an alteration of the testator's mind, arising from circumstances
since the making of the will, producing a change in his previous obligations and duties, * * *.
There is not, perhaps, any code of civilized jurisprudence in which this doctrine of implied
revocations does not exist and apply when the occurrence of new social relations and moral
duties raises a necessary presumption of a change of intentions in the testator.
The reasons for the rule of implied revocations is thus stated in Baacke v. Baacke, 50 Neb.
18, 69 N. W. 303, 304: The doctrine of revocation by implication of law is based upon a
presumed alteration of intention arising from the changed conditions and circumstances of the
testator, or on the presumption that the will would have been different had it been executed
under the altered circumstances.
2. What will be found sufficient to give rise to a reasonable presumption of alteration of
intention by a testator must be determined from the facts of each particular case.
reasonable presumption of alteration of intention by a testator must be determined from the
facts of each particular case. But by the great weight of authority the general rule has been
established that a divorce alone after the execution of a will by a testator will not work an
implied revocation. Card v. Alexander, 48 Conn. 492, 40 Am. Rep. 187; Cunningham's
Succession, 142 La. 701, 77 So. 506; Baacke v. Baacke, 50 Neb. 18, 69 N. W. 303; Charlton
v. Miller, 27 Ohio St. 298, 22 Am. Rep. 307; In re Jones' Estate, 211 Pa. 364, 60 A. 915, 69
L.R.A. 940, 107 Am. St. Rep. 581, 3 Ann. Cas. 221; In re Brown's Estate, 139 Iowa, 219, 117
N.W. 260; 68 C.J. 841 and cases cited in note 50 on that page.
3, 4. We are in accord with the rule thus established and this case seems to fall within it.
The record before us presents nothing but a divorce from which an implied revocation may be
inferred. It is not enough. A strong circumstance against the theory of implied revocation is
that the will, from the time of the divorce to the death of the testator, remained in his
possession a period of eleven months. This principle should therefore apply: Where a man
retains a revocable instrument with full opportunity of revoking it, and does not revoke it,
there is a strong presumption that he wishes it to stand. In re Jones Estate, supra [211 Pa.
364, 60 A. 922, 69 L.R.A. 940, 107 Am. St. Rep. 581, 3 Ann. Cas. 221].
Defendant had ample time and opportunity to revoke the will and it is reasonable to
believe if he had wished to revoke it he would have done so.
5. This situation is always regarded as persuasive against a presumption of altered
intention of the testator.
In Card v. Alexander, supra, the court said: * * * That he lived nearly five years after the
divorce making no change in his will, and the conclusion is well nigh irresistible that he did
not intend to deprive his former wife of the provision he had made for her.
In Charlton v. Miller, supra, it was said: The probable correctness of this view [no
revocation by reason of divorce] is strengthened by the fact that while he might easily have
expressly revoked the will, though not in his possession, and wherever it might be, either
before or after the divorce, for some reason, satisfactory to himself, it was never done. See
Sharpe's Estate, 15 W.N.C. 419.
Any considerable lapse of time from a divorce to the death of the testator, without change
in a will executed prior to the divorce, is stressed by annotators as of great weight against any
presumption of altered intention on his part. Notes, 69 L.R.A. 940, 942, 943; 25 A.L.R. 52.
6. We so regard it, particularly where, as here, the testator had notice of the divorce.
Implied revocations are not favored and this court is committed to a strict construction of
that part of section 9912 N.C.L. dealing with such revocations. We said: In considering the
provisions of Section 9912, N.C.L., we must keep in mind that revocations by implication are
not favored. In re Adler's Estate, 52 Wash. 539, 100 P. 1019, 1023. And, also, that a proviso
such as is found in Section 9912 should be strictly construed. 59 C.J. 1089. In re Walters'
Estate, 60 Nev. 172, 104 P.(2d) 968, 972.
There are cases in which a divorce, coupled with a property agreement settlement, have
been held to work a revocation of a will but we need not discuss them because this case does
not fall within that class. The court found, as previously stated, that no property settlement
was entered into between decedent and the beneficiary under the will.
7. But counsel for appellants contend that, notwithstanding the deceased and his then wife
did not, prior to the divorce, enter into any formal property settlement agreement, that there
was a property settlement by operation of law which had the effect of revoking the will.
the will. Without intimating that a property settlement agreement coupled with a divorce may
be sufficient to revoke a will previously executed, by implication of law, we hold that there
was in this case no settlement by operation of law that could possibly have such result. The
contention that there was a property settlement by operation of law is in turn based on the fact
that there was a waiver of alimony, and the fact that there was no community property. Had
alimony been asked for and allowed and a community property award made to the wife, she
would had received no more than what was her own under the law. Giving a wife her own as
a matter of right could afford no basis for a reasonable inference that the testator did thereby
alter his intention to make her the object of his bounty. In Cunningham's Succession, supra, it
was held that a divorce and settlement of community rights did not revoke a will previously
made by the husband. In respect to the settlement the court said [142 La. 701, 77 So. 510]:
By the act of settlement of the community, [she] received only what was hers. Her
acceptance of $4,500 in payment of all rights, title and interest she had or might have had in
the assets of the community was not a renunciation of any bounty which her husband (for she
was still his wife) had chosen to bestow or might choose to bestow on her out of those same
assets. Her husband might still have continued to cherish her, notwithstanding the
separation.
The case of In re McGraw's Estate, 228 Mich. 1, 199 N.W. 686, 37 A.L.R. 308; Id. 233
Mich. 440, 207 N.W. 10, 42 A.L.R. 1283, relied on by appellants, represents a decidedly
minority opinion and does not influence us.
The judgment and order denying a new trial should be affirmed.
It is so ordered.
____________
60 Nev. 382, 382 (1941) McKaig v. Board of Directors
STATE OF NEVADA, on Relation of GEORGE McKAIG, Petitioner, v. BOARD OF
DIRECTORS OF H. F. DANGBERG LAND & LIVE STOCK COMPANY, a Corporation,
Et Al., Respondents.
No. 3326
February 18, 1941. 110 P.(2d) 212.
1. Corporations.
Instrument granting the right to vote stock by proxy will be strictly construed.
2. Corporations.
An instrument granting the right to vote stock by proxy limited the authority of the holder of the
instrument to voting of stock at a convened meeting and did not authorize the holder of the instrument to
require the directors of the corporation to call a meeting for the purpose of electing a director.
3. Corporations.
A stockholder may require board of directors to be maintained at three and such right can be invoked in
all instances where disregard of such requirement would be detrimental to the interests of the corporation.
4. Mandamus.
Where stockholder pledged stock to secure a loan and in addition executed a proxy in favor of third
party, who assigned instrument to the pledgee to protect the interest of pledgee, and proxy did not authorize
pledgee to request calling of a special meeting to elect a third member of board of directors, and affairs of
corporation were such that it would not be expedient or proper to compel a special meeting of stockholders
shortly before regular annual meeting to elect third director, and internal affairs of corporation and security
held by pledgee would be amply safeguarded until annual meeting, mandamus would not lie to compel
directors to call a special meeting for election of third director.
Original mandamus proceeding by the State, on relation of George McKaig, against the
Board of Directors of H. F. Dangberg Land & Live Stock Company and others. Petition
denied.
Harlan L. Heward, for Petitioner and Relator.
George L. Sanford, for Respondent John B. Dangberg.
OPINION
The petition filed herein represents that the respondents John B. Dangberg and H. F.
Dangberg are the directors of the H. F. Dangberg Land & Live Stock Company, a
corporation; that since August 12, 1940, they have been the only directors thereof. It is further
alleged that the petitioner and relator is and has been since September 10, 1940, a stockholder
in said corporation, owning and holding one hundred shares of the capital stock; that all the
shares of said capital stock is common stock; that each share of said stock is entitled to be
represented and voted at all meetings of the stockholders of the said corporation, whether the
same be an annual or special meeting. Said petition further alleges that the bylaws provide the
method of calling a special meeting of said corporation, such method being a written request
of persons representing one-third of the capital stock.
At the annual meeting of the stockholders held in March 1939, John B. Dangberg, H. F.
Dangberg and John V. Mueller were elected directors, and on August 12, 1940, John V.
Mueller resigned. The regular meeting of the board of directors was held at Minden, Nevada,
on September 10, 1940, at which time the resignation of the said John V. Mueller was
accepted. On the 10th of September 1940, the remaining directors attempted to elect a
successor to fill the vacancy, but directors John B. Dangberg and H. F. Dangberg were unable
to agree upon a person to fill said vacancy. On September 10, 1940, petitioner and relator
filed with the secretary of the corporation and presented to the board, while in session as a
board of directors, a written request that the said directors call a special meeting of the
stockholders. Said board of directors refused and neglected to call a special meeting of the
stockholders, and has continued to so refuse since September 10, 1940. Petitioner and
relator alleges that in addition to being a stockholder in the said corporation he
represents approximately fifty-six per cent of the capital stock, by reason of a proxy and
voting power given by H. F. Dangberg, Gertrude Dangberg and Grace S.
Petitioner and relator alleges that in addition to being a stockholder in the said corporation he
represents approximately fifty-six per cent of the capital stock, by reason of a proxy and
voting power given by H. F. Dangberg, Gertrude Dangberg and Grace S. Dangberg to Noble
H. Getchell, and later assigned to him; that the existence and contents of said substitution
were known to the officers of said corporation prior to September 10, 1940. Petitioner further
alleges that his request that a meeting of the stockholders be called continued to be ignored;
that under the bylaws of the said corporation it was the legal duty of the respondents to call a
special meeting of the stockholders of said corporation in compliance with said written
request.
The relief asked herein by petitioner is that a writ of mandate issue commanding the
respondents to call a special meeting of the stockholders of the said corporation to consider
the matters set forth in the written request of petitioner and relator, and that notice of such
meeting be given and a date for same fixed.
On the 25th of October 1940, the respondent John B. Dangberg made his return and
answer, in which he alleges that the petitioner and relator is not a stockholder owning one
hundred or any shares of the capital stock of said corporation, and further alleges that the
petitioner's claim to be a stockholder or holder of stock in said corporation is by reason of the
fact that Gertrude Dangberg, wife of H. F. Dangberg and one of the stockholders of said
corporation, pledged one hundred shares of stock to petitioner as collateral security for an
indebtedness owing to the petitioner; that the actual title and ownership of the stock did not
pass and has not passed to the petitioner; that the petitioner holds title to the same in trust and
as collateral security.
Relative to the alleged deadlock existing between directors John B. Dangberg and H. F.
Dangberg, respondent John B. Dangberg alleges that at the meeting held on September 10,
1940, John B. Dangberg nominated Doris Dangberg for said office of director, H. F.
Dangberg nominated George McKaig for said office, and that the votes cast thereon resulted
in a tie, and no person was thereafter nominated or elected to fill said vacancy; that in all
other respects the management and conduct of the affairs, enterprises and business of the
corporation has proceeded normally, efficiently and safely, that the transactions of the
company were conducted by the officers of said corporation under the authority and with the
ratification and approval of the board of directors of said corporation, without dissent; that
business transactions involving large sums of money have proceeded normally, and no dissent
has been registered by any director to such transactions; that the only matter concerning said
corporation which has been presented for the said remaining directors to consider, in which
disagreement has occurred, is the selection of a third director.
Respondent John B. Dangberg further alleges that the so-called proxy and voting power
claimed by petitioner and relator was given and granted as a part of the agreement and as
security for and in furtherance of a loan of $26,560 made by the predecessor and assignor of
the petitioner to H. F. Dangberg and Gertrude Dangberg, his wife, and involved voting power
at the stockholders' meetings of said corporation amounting to more than half of all the
outstanding stock of said corporation, for a period until said loan should be repaid and in any
event not to exceed three years; that the said agreement is against H. F. Dangberg as a
stockholder and as a director of said corporation, and equity and justice should not be
enforced further than to afford petitioner security for the repayment of the loan; that the
corporation is amply financed, is solvent and in a going condition; that the petitioner has no
equitable or other right to control or manipulate the control of said corporation to any extent
other than or further than to enforce or protect his said security; that his security is not
endangered and control of the corporation is not necessary to the petitioner. Respondent John
B.
B. Dangberg further sets up that the demand or written request made by petitioner and relator
is insufficient.
Respondent H. F. Dangberg filed an answer admitting that petitioner and relator is entitled
to the relief asked.
Petitioner and relator bases his right to the issuance of a permanent writ on two reasons
and upon two grounds, to wit: (a) the relator represents more than one-third of the stock of H.
F. Dangberg Land & Live Stock Company, a corporation; he has made his demand for a
meeting of stockholders, in accordance with the bylaws; and the directors failed, neglected
and refused to call a meeting of the stockholders; (b) independent of the question of
representation, the relator is a stockholder, has made his demand for a special meeting, and is
entitled to have the same held, so that the board of directors shall consist of three directors, in
accordance with the statute of this state. Comp. Laws, sec. 1632.
It is contended by respondent John B. Dangberg that the right to vote by proxy is not a
common-law right, and this the petitioner and relator admits. It is further admitted that such
right in this case is conferred by the statutes of this state and by the bylaws of the corporation.
1. The instrument granting the right to vote by proxy will be strictly construed. 2 C.J.S.,
Agency, sec. 98, page 1223; Fletcher Cyc. Corporations (permanent edition), vol. 5, p. 185.
2. Respondent John B. Dangberg contends that the instrument executed by H. F.
Dangberg et al., and which is appended to the petition as Petitioner's Exhibit B, limits the
authority of petitioner and relator to the voting of the stock at a convened meeting, and that
no authority exists therein authorizing petitioner and relator to require the directors to call
such a meeting. An inspection of the said instrument discloses that in so many words such a
limitation appears. But petitioner asserts that such a limitation is entirely too narrow, and if
enforced would leave the petitioner without adequate authority to protect his loan, and he
would be in much the same position as is pointed out in People v. Cohn, 339 Ill.
adequate authority to protect his loan, and he would be in much the same position as is
pointed out in People v. Cohn, 339 Ill. 121, 171 N.E. 159, 161: Unless the shareholders
possess the power to fill the directors' places the predicament would be serious.
The condition in the instant case, as presented by the issues, is much different than that in
the case of People v. Cohn, supra. There is no showing from which it can be reasonably
concluded that the position of the petitioner is in any way jeopardized. The value of the stock
held as security is many thousands of dollars more than the amount loaned thereon, and the
party to whom most of this stock belongs, and who has a much greater interest therein than
does the petitioner, is one of the board of directors. H. F. Dangberg, the owner of the stock,
will not be a party to a transaction which would permit the value of his stock to deteriorate or
to be so jeopardized as not to be ample security for the loan, for to do so would cause great
loss to him before the amount of the loan was reached. Again, a significant fact appears: H. F.
Dangberg filed an answer herein stating that he believed the petitioner was entitled to the
relief requested, it thus appearing that H. F. Dangberg and petitioner are not antagonistic one
to the other, and it lies within the power of the two to join in a request for a meeting, which
would eliminate any of the questions here presented as to the limitation of the authority
conferred by the proxy. The entire picture does not present a situation wherein this court
would be justified in relaxing the rule as to strict construction. Further, said picture does
incline us to the view that we should hold the petitioner to the plain wording of the said
proxy; that it does not appear to have been the intention of the pledgor to place in the hands
of the pledgee the power to dominate the affairs of the corporation in all respects; that there is
no such power held by petitioner incident to the authority conferred by the said proxy, in
order to protect the interests of the pledgee.
pledgee. We are aware that in some cases such action has been held necessary in order to
protect the rights of a pledgee of stock, to enforce rights termed incidental. In such cases it
seems that the circumstances of each particular case required such relaxation of the general
rule. We find no such situation here.
3, 4. The assertion made by petitioner in subdivision (b), supra, to the effect that a
stockholder, under the laws of this state, may require a board of directors to be maintained at
three, is sound, and such right can be invoked in all instances where disregard of such
requirement would be detrimental to the interests of the corporation. It appears that the
bylaws of the corporation require the annual meeting of the stockholders be held in the latter
part of March 1941, at which time directors are to be elected. We are of the opinion that the
interests of the corporation, as well as those of petitioner and relator, can well await that
event. We decline to issue the writ, because: (1) the proxy given by H. F. Dangberg et al. to
the predecessor in interest of petitioner does not authorize or empower petitioner to request
the calling of a special meeting; (2) the affairs and condition of the corporation, as appears
from the pleadings, are such that it would not be expedient or proper to compel a special
meeting of the stockholders at the instance of a stockholder at this time, in view of the
comparatively short time before the annual meeting. We are convinced that during the
interval the affairs of the corporation and the security held by petitioner will be amply
safeguarded. It is unnecessary to decide the question of the sufficiency of the request for the
meeting.
Petition denied.
____________
60 Nev. 389, 389 (1941) Estes v. State Board of Pharmacy
DURWOOD EUGENE ESTES, Petitioner, v. NEVADA
STATE BOARD OF PHARMACY, Respondent.
No. 3332
March 11, 1941. 111 P.(2d) 48.
1. Druggists.
Under statutes describing qualifications of a licentiate in pharmacy or practicing pharmacist, board of
pharmacy is not empowered to prescribe qualifications other than those expressly prescribed by legislature
for licentiate in pharmacy, since legislature intended to reserve that power to itself and not to confer it upon
the board. Comp. Laws, secs. 5041, 5042, 5046, subd. 1(a, b, d) 5047.
2. Mandamus.
Where petitioner made application upon regular form furnished by state board of pharmacy to take an
examination to become a licentiate in pharmacy and form was correctly filled out and sworn and
application was denied on ground that applicant did not have four-year college education notwithstanding
that statute did not prescribe such qualification, mandamus would lie to compel state board of pharmacy to
accept petitioner's application and to accept his proper fee and to otherwise proceed in accordance with
provisions of pharmacy act. Comp. Laws, secs. 5041, 5042, 5046, subd. 1(a, b, d) 5047.
Original mandamus proceeding by Durwood Eugene Estes against the Nevada State Board
of Pharmacy. Writ granted.
Albert Hilliard, for Petitioner.
Respondent not represented.
OPINION
In order to be a registered pharmacist in this state, one must be a licentiate in pharmacy or
a practicing pharmacist. Section 5041 N.C.L. 1929. Section 5042 N.C.L. 1929, reads in part
as follows: Licentiates in pharmacy must be such persons as possess the fundamentals of a
high-school education and who have had at least five {5) consecutive years' actual
experience in drug stores where the prescriptions of medical practitioners have been
compounded, and who have passed a satisfactory examination before the state board of
pharmacy * * *."
least five (5) consecutive years' actual experience in drug stores where the prescriptions of
medical practitioners have been compounded, and who have passed a satisfactory
examination before the state board of pharmacy * * *. The foregoing statutory provisions are
from the 1913 act regulating the practice of pharmacy. Statutes of Nevada 1913, c. 286, p.
569. By section 8 of this act, section 5047 N.C.L. 1929, all applicants for certificates as
registered pharmacists were required to pay a fee of $10.
In January 1939 a new bill to regulate the practice of pharmacy was introduced in the
assembly, but failed of passage. Section 4 of this bill provided in part that every applicant for
examination and registration as a pharmacist must, among other things, be a graduate of a
school or college of pharmacy or department of a university recognized and approved by the
Nevada state board of pharmacy, and must have had at least four years of pharmaceutical
training in said college of pharmacy or department of a university, and shall pass an
examination by the Nevada state board of pharmacy.
On May 25, 1939, the state board of pharmacy passed a resolution, to take effect July 1,
1940, which reads: Every applicant for examination and registration as a pharmacist must be
a citizen of the United States and shall not be less than twenty-one (21) years of age, of good
moral character and temperate habits, a graduate of a school or college of pharmacy or
department of a university recognized and approved by the Nevada State Board of Pharmacy,
and must have had at least four (4) years of pharmaceutical training in said college of
pharmacy or department of a university, and shall pass an examination by the Nevada State
Board of Pharmacy; provided, that all applications for examinations shall be made on a form
to be supplied by the Nevada State Board of Pharmacy and shall be filed with the said board
at least fifteen (15) days before any stated meeting of the board at which examinations are to
be held.
held. Each application must be accompanied by an examination fee of fifteen dollars ($15).
About November 1, 1940, petitioner made application, upon the regular form furnished by
the respondent, to take an examination to become a licentiate in pharmacy. The form was
correctly filled out and sworn to as required, and was accompanied by a United States postal
money order in the sum of $10. On November 4, 1940, respondent's secretary telegraphed
petitioner as follows: Cannot accept application. Four years college required. Application
returned today. Petitioner's application and said money order were forthwith returned to him.
On January 21, 1941, petitioner filed herein a petition for writ of mandate. Pursuant to
order of court, an alternative writ was thereupon issued, commanding respondent to accept
petitioner's said application and fee and thereafter proceed as provided by the statute, or show
cause, at the opening of court on February 7, 1941, for not so doing. The alternative writ was
duly served on respondent, but the latter failed to show cause on said return day or at all, and
has made no appearance whatever in this proceeding.
Our statute provides that the writ of mandate shall not be granted by default, and that the
case shall be heard by the court, whether the adverse party appear or not. Section 9245 N.C.L.
1929. The case was accordingly heard, at the time set, on the papers of petitioner. Section
9251 N.C.L. 1929. We regret that we have not had the benefit of written or oral argument on
behalf of respondent.
If respondent was authorized by law to require that applicants for examination must have
four years college, as more fully set out in its resolution of May 25, 1939, this proceeding
should be dismissed; if it was not authorized by law to impose such requirements, it is the
court's opinion that mandamus is the proper remedy and that the writ should be made
peremptory.
Any claim of authority to require graduation and four years of pharmaceutical training, as
specified in respondent's said resolution, must be based on section 5046 N.C.L. 1929, which
contains the following provisions: The state board of pharmacy shall have power: (a) To
make such by-laws and regulations, not inconsistent with the laws of this state, as may be
necessary for the protection of the public, appertaining to the practice of pharmacy and the
lawful performance of its duties; (b) To regulate the practice of pharmacy; * * * (d) To
examine and register as pharmacists and assistant pharmacists all applications [applicants]
whom it shall deem qualified to be such; * * *.
1. If the legislature, instead of fixing the standards of education and experience for
licentiates, had employed language purporting to confer full and complete authority on the
board of pharmacy to establish such standards, it would then be necessary for the court to
decide whether the legislature could lawfully delegate such power to the board; but the fact
that the legislature saw fit itself to establish such standards, leads us to conclude that the
legislative intent was to reserve that power to itself, and not to confer upon the board, by the
provisions of section 5046 N.C.L. 1929 the authority either to diminish or add to the
standards of education and experience established by the legislature in section 5042 N.C.L.
1929.
It is important that pharmacists possess such qualifications as the public safety demands.
The pharmacy act was passed twenty-eight years ago. If, under present conditions, it is
deemed advisable to impose higher qualifications than those prescribed by said section 5042,
the legislative department has full power to require such qualifications as may be necessary
for the protection of the public.
2. The prayer of the petition is granted, and it is ordered and adjudged that the peremptory
writ of mandamus be issued herein commanding respondent, upon receipt of the writ, to
forthwith accept petitioner's application to take an examination for licentiate in
pharmacy, also to accept his proffered fee of $10, and to otherwise proceed in accordance
with the provisions of said pharmacy act.
receipt of the writ, to forthwith accept petitioner's application to take an examination for
licentiate in pharmacy, also to accept his proffered fee of $10, and to otherwise proceed in
accordance with the provisions of said pharmacy act.
____________
60 Nev. 393, 393 (1941) In Re Porep
In the Matter of CHARLES L. POREP,
Attorney at Law.
No. 3300
March 21, 1941. 111 P.(2d) 533.
The supreme court was not without jurisdiction of proceedings involving the suspension of attorney for
soliciting employment in divorce cases by advertisement, merely because the advertisement in question was
published in another state. Comp. Laws, secs. 577, 10145.
2. Judgment.
The fact that a local administrative committee in California, after considering the fact that Nevada
attorney advertised in a California newspaper for the purpose of soliciting divorce cases, concluded that the
facts did not justify disciplinary action by the California state bar, would not bar disciplinary proceedings
under the doctrine of res judicata in Nevada because of the same advertisement, nor make disciplinary
proceedings in Nevada a violation of the full faith and credit clause of the federal constitution. Comp.
Laws, secs. 577, 10145; U.S.C.A. Const. art. 4, sec. l.
3. Judgment.
Even between the same parties, a judgment of nonsuit in one state is not a bar to a new suit on the same
cause of action in another state.
4. Judgment.
The full faith and credit clause of the federal constitution, and federal legislation pursuant thereto, do
not purport to give to a judgment any extraterritorial effect, nor do those provisions have anything to do
with the recognition of foreign judgments as precedents, and they come into effect only in connection with
the doctrine of res judicata, not with that of stare decisis. U.S.C.A. Const. art. 4, sec. 1.
The supreme court alone has power to suspend or disbar a member of the state bar. Comp. Laws, secs.
577, 10145.
60 Nev. 393, 394 (1941) In Re Porep
The rule of procedure of the state bar providing that the board of governors or a local administrative
committee may of its own motion initiate proceedings for disbarment, suspension, or discipline of a
member of the state bar, and providing for notice and hearing, is not unconstitutional on ground that under
it a local administrative committee assumes the three separate functions of filing charges, hearing the
charges, and rendering judgment. Comp. Laws, secs. 577, 10145.
7. Evidence.
It is common knowledge that in Nevada one may file suit for divorce after residing in the state for six
weeks, and that most Nevada divorce cases are commenced, heard, and determined in the city of Reno.
In proceeding involving the disciplining of a Nevada attorney for soliciting divorce cases in California by
an advertisement in a California newspaper concerning Reno Cases, supreme court of Nevada would
assume that the advertisement referred to divorce cases. Comp. Laws, secs. 577, 10145.
Attorney who advertised for divorce cases in newspaper, would be suspended for nine months. Comp.
Laws, secs. 577, 10145.
Proceeding in the matter of Charles L. Porep, attorney at law, petitioner, to review action
of the Committee of the State Bar of Nevada, District No. 5, and the Board of Governors of
the State Bar, suspending petitioner from the practice of law for a period of twelve months.
Petitioner suspended for nine months.
Melvin E. Jepson and Charles E. Porep, in Propria Persona, for Petitioner.
John R. Ross, Special Prosecutor, for State Bar of Nevada.
OPINION
By the Court, Taber J.:
Petitioner has been a member of the state bar of California since 1918, and of the state bar
of Nevada since the latter part of 192S.
60 Nev. 393, 395 (1941) In Re Porep
the latter part of 1928. He caused to be published in the San Francisco Examiner, issues of
May 29, July 3, and October 26, 1938, an advertisement worded as follows: Reno Cases. C.
Porep, Nev. atty., S.F. ofc. 903 de Young bld. YU 0960. After due notice and hearing, the
local administrative committee of the state bar of Nevada, district No. 5, in and for Washoe
County, found that said advertisement was inserted for the purpose of securing divorce cases,
and as conclusions of law, decided that petitioner's said conduct constituted a violation of
canon 27 of the canons of ethics of the American bar association, and of rule II of the rules of
professional conduct of the state bar of Nevada. The committee recommended to the board of
governors of the state bar that petitioner be suspended from practice for a period of twelve
months.
The board of governors, after due notice and hearing, found the same facts as did the
committee, and arrived at the same conclusions of law. The board recommended to this court
that petitioner be suspended from the practice of law of a period of twelve months, that his
name be stricken from the roll of attorneys of the state bar of Nevada and from the roll of
members of said bar, that he be prohibited from the practice of law, either directly or
indirectly, during the period of his suspension, and that he be suspended until the further
order of this court. This proceeding is a review of the action of said committee and board,
under the provisions of sec. 577 N.C.L. 1929.
Canon 27 of the canons of ethics of the American bar association is well known to the
profession and available everywhere, so the court will not extend this opinion by quoting it
here. The first sentence of rule II of the rules of professional conduct of the state bar of
Nevada reads: A member of the state bar shall not solicit professional employment by
advertisement or otherwise.
Section 10145 N.C.L. 1929 provides: Every person who shall cause to be published in
any newspaper, magazine or other publication, or who shall cause or allow to be posted
or distributed in any place frequented by the public any card or notice offering to procure
or obtain, or to aid in procuring or obtaining any divorce or the dissolution or nullification
of any marriage, or offering to appear or act as attorney or counsel in any suit for divorce,
alimony, or the dissolution or nullification of any marriage, either in this state or
elsewhere, shall be guilty of a misdemeanor."
60 Nev. 393, 396 (1941) In Re Porep
who shall cause to be published in any newspaper, magazine or other publication, or who
shall cause or allow to be posted or distributed in any place frequented by the public any card
or notice offering to procure or obtain, or to aid in procuring or obtaining any divorce or the
dissolution or nullification of any marriage, or offering to appear or act as attorney or counsel
in any suit for divorce, alimony, or the dissolution or nullification of any marriage, either in
this state or elsewhere, shall be guilty of a misdemeanor.
1. Petitioner contends that this court is without jurisdiction, for the reason that the
advertisement in question was not published in Nevada. This contention is without any merit
whatsoever. In re Lamb, 105 App. Div. 462, 94 N.Y.S. 331; People v. Lindsey, 86 Colo. 458,
283 P. 539; 7 C.J.S., Attorney and Client, sec. 18, p. 730, n. 68; 5 Am. Jur. 433, n. 6;
Annotation, 17 Am. and Eng. Ann. Cas. 599.
2, 3. It appears that an attempt was made to have the state bar of California take
disciplinary action against petitioner because of his having caused to be published the
advertisements involved in this proceeding, but that local administrative committee No. 2, for
San Francisco, after considering the facts brought to its attention, concluded that they did not
justify disciplinary action by the state bar. Petitioner maintains that this action of the San
Francisco administrative committee operated as a bar to any disciplinary proceeding by the
state bar of Nevada, based upon the same facts. In the opinion of this court the action of the
San Francisco committee would not operate, even in California, as a legal bar to further
disciplinary proceedings based upon the same facts. Certainly said action could not operate,
under the doctrine of res adjudicata relied on by petitioner, to bar disciplinary proceedings by
the state bar of Nevada, though based on the same facts. The California proceedings
apparently never came before the board of governors of the California state bar, nor any
California court. In the Nevada proceedings the question was not whether the facts called
for disciplinary proceedings in California, but whether they constituted professional
misconduct under the rules of the Nevada state bar.
60 Nev. 393, 397 (1941) In Re Porep
was not whether the facts called for disciplinary proceedings in California, but whether they
constituted professional misconduct under the rules of the Nevada state bar. Even between
the same parties a judgment of nonsuit in one state is not a bar to a new suit on the same
cause of action in another state. 17 Am. Jur. 94, n. 3. Here we have not the identity of parties
essential to res adjudicata, for, while petitioner is the party complained against in both the
California and Nevada proceedings, the complainants were not the same.
4. Petitioner contends that the Nevada proceedings violated the full faith and credit clause
of the federal constitution (art. IV, sec. 1). All that we have before us concerning the action of
local administrative committee No. 2 for San Francisco is a letter from it to petitioner,
reading: The matter in which it was sought to have the State Bar proceed against you came
regularly before this committee at its meeting on November 7, 1938. The committee has
carefully considered the facts brought to its attention and has concluded that they do not
justify disciplinary action by the State Bar. Viewing the committee's action in the light most
favorable to petitioner, it is a decision that the facts did not justify disciplinary action by the
state bar of California. It is not a determination or adjudication that the facts are legally
insufficient to constitute unprofessional conduct under the rules of the state bar of Nevada
which, as we have seen, forbid the solicitation of professional employment by advertisement
or otherwise. Article IV, section 1, of the constitution of the United States, and federal
legislation pursuant thereto, do not purport to give to a judgment any extraterritorial effect,
nor do these constitutional and statutory provisions have anything to do with the recognition
of foreign judgments as precedents; they come into effect only in connection with the doctrine
of res judicata, not with that of stare decisis. 34 C.J. 1127, nn. 55, 57. The action of the San
Francisco committee did not constitute a bar to the Nevada proceedings under the doctrine of
res judicata, and the Nevada proceedings did not violate the full faith and credit clause of
the federal constitution.
60 Nev. 393, 398 (1941) In Re Porep
and the Nevada proceedings did not violate the full faith and credit clause of the federal
constitution.
5. Petitioner contends that rule XXIV (a) of the rules of procedure of the state bar of
Nevada is unconstitutional. This rule provides that the board of governors or a local
administrative committee may of its own motion initiate proceedings for disbarment,
suspension or discipline of a member of the state bar, and further provides for notice and
hearing. Neither the petition nor petitioner's points and authorities inform the court what
clause or provision of either federal or state constitution is violated by this rule; but petitioner
asserts that under it the local administrative committee assumes three separate
functionsfiling charges, hearing the charges, and rendering judgment. Under such
procedure petitioner claims that the committee cannot be impartial. The only decision the
local administrative committee is authorized to make consists of its findings, accompanied by
its recommendations to the board of governors. This board also has no power, besides making
findings, to do more than recommend to this court such disciplinary measures as it considers
proper and just. This court alone has power to suspend or disbar a member of the state bar. In
re Scott, 53 Nev. 24, 26, 292 P. 291; Dignan v. State Bar, 58 Nev. 82, 70 P.(2d) 774.
The case of In re Shattuck, 208 Cal. 6, 279 P. 998, holding that any decision which the
board of bar governors may be empowered to make in a proceeding pending before it is
merely recommendatory, was expressly approved by this court in Re Scott, supra. In the latter
case it was further held that the state bar act (secs. 540-590 N.C.L. 1929) is not void insofar
as it authorizes a member of any local administrative committee, or a member of the board of
governors, to prefer charges against an attorney, and then to sit as a member of the
committee, or board, for the consideration of the charges so preferred. It was held in the same
case that section 34 of said act {sec.
60 Nev. 393, 399 (1941) In Re Porep
34 of said act (sec. 573 N.C.L. 1929) is not void because it confers power on the board of
governors or local administrative committee to initiate and conduct investigations of charges
against attorneys without the filing and presentation of a complaint.
6. In view of the foregoing authorities, and in the absence of any pertinent authorities
advanced by petitioner, the court declines to hold rule XXIV (a) of the rules of procedure of
the state bar of Nevada unconstitutional or void.
7, 8. Petitioner complains of the finding that said advertisement was inserted for the
purpose of securing divorce cases. He contends that neither the committee nor the board had
the power to write in the word divorce to suit such a finding. If petitioner were correct in
this, it is clear that he would nevertheless be guilty of professional misconduct under rule II of
the rules of professional conduct of the state bar of Nevada and canon 27 of the canons of
ethics of the American bar association. In the opinion of the court, however, the committee
and board were warranted in making the finding complained of. It is a matter of common
knowledge, not only in California and Nevada, but throughout the United States and at least
some foreign countries, that in Nevada one may file suit for divorce after residing in the state
for six weeks, and that most Nevada divorce cases are commenced, heard, and determined in
the city of Reno. It will be noted that while petitioner, in the advertisement, refers to himself
as a Nevada attorney, he does not advertise Nevada cases, but Reno cases, and has the
latter words printed in all capital letters. Petitioner does not, and never has, resided in this
state, and there is nothing in the record to show or intimate that during his twelve year
membership in the state bar of Nevada he ever handled any other than divorce cases in the
Nevada courts. While disciplinary proceedings were pending against him, he wrote the
administrative committee that he had been unable to attend one of its meetings because he
had "found it impossible to synchronize everything pertaining to an insanity divorce case
which I have pending in the Reno court."
60 Nev. 393, 400 (1941) In Re Porep
unable to attend one of its meetings because he had found it impossible to synchronize
everything pertaining to an insanity divorce case which I have pending in the Reno court.
Finally, we have to consider whether suspension for twelve months is too severe.
Petitioner represents to the court that he is sixty years of age; has never been in trouble
before; has a devoted family dependent upon him for support; no rules of professional
conduct or canons of the American bar association were ever received by him; had the
impression that the advertisement was not objectionable; regrets that it offended; it was
discontinued before he received notice to show cause; it was published in good faith; in the
Los Angeles office of a Nevada attorney, the latter told him that such an advertisement was
permissible; has never had a complaint from a client; the San Francisco committee dismissed
charges based on the same advertisement; promises observance of the ethics of the profession
in the future; has already suffered severe punishment by being under this cloud ever since
1938, when these charges originated.
Counsel for the state bar takes the position that suspension for twelve months is
exceptionally lenient. He points out that both the committee and the board considered their
recommendation reasonable. He contends that petitioner was not only guilty of
unprofessional conduct, but that he committed a misdemeanor by violating the provisions of
section 10145 N.C.L. 1929, hereinbefore quoted.
9. We are unable to concur in petitioner's view that the offense was trivial, and that the
charges should be dismissed or petitioner be simply reprimanded and permitted to apologize.
After careful consideration the court has concluded that petitioner should be suspended from
practice from April 1, 1941, until December 31, 1941, both dates inclusive.
It is therefore ordered and adjudged that petitioner be, and is hereby, suspended from the
practice of law in any and all courts of this state during the period from April 1, 1941,
until December 31, 1941, both dates inclusive; that his name be stricken from the roll of
attorneys of the state bar of Nevada and from the roll of members of the state bar of
Nevada; and that he be not reinstated as a member of the state bar of Nevada except
upon order of this court.
60 Nev. 393, 401 (1941) In Re Porep
be, and is hereby, suspended from the practice of law in any and all courts of this state during
the period from April 1, 1941, until December 31, 1941, both dates inclusive; that his name
be stricken from the roll of attorneys of the state bar of Nevada and from the roll of members
of the state bar of Nevada; and that he be not reinstated as a member of the state bar of
Nevada except upon order of this court.
____________
60 Nev. 401, 401 (1941) State v. Lincoln County Power Dist. No. 1
THE STATE OF NEVADA, Et Al., Appellants, v. LINCOLN
COUNTY POWER DISTRICT No. 1, Respondents.
No. 3313
March 21, 1941. 111 P.(2d) 528.
Every presumption is in favor of the validity of a statute and a statute will always be sustained if there is
any reasonable doubt of its unconstitutionality.
2. Statutes.
The statute providing for creation of power districts is not unconstitutional on ground that it embraces
more than one subject not expressed in its title. Stats. 1935, c. 72; Const. art. 4, sec. 17.
An act authorized by the constitution is not against the public policy of the state.
The legislature possesses the whole legislative power of the people except so far as its power is limited
by the constitution and the legislature has plenary power to legislate upon every subject unless there is a
denial of that right by the constitution.
There is no constitutional limitation on the power of the legislature to create municipal corporations and
confer on them such functions as it considers necessary or expedient.
6. Electricity.
The power districts created pursuant to statute are municipal corporations. Stats. 1935, c. 72.
7. Taxation.
The general rule is that while in the absence of any constitutional prohibition the state may tax its own
property, the presumption is always against an intention to do so, and such property is
impliedly immune from taxation unless an intention to include is clearly manifested.
the presumption is always against an intention to do so, and such property is impliedly immune from
taxation unless an intention to include is clearly manifested.
8. Taxation.
When public property is involved, exemption is the rule and taxation the exception.
9. Electricity.
Power districts as provided for by statute are political subdivisions of the state, created to make
available an abundant supply of electricity at the lowest cost consistent with sound economy and prudent
management for the purpose of raising the standard of living, promoting more efficient development and
use of mineral resources of the state and reducing unemployment. Stats. 1935, c. 72.
10. CountiesMunicipal CorporationsStates.
The supplying of electric energy to the inhabitants of a state, county or municipal corporation is a
legitimate municipal or public purpose. Stats. 1935, c. 72.
Irrigation districts are organized primarily to promote the material prosperity of the few owning lands
within their boundaries, and are not organized for the discharge of governmental functions in addition to or
in aid of the usual governmental departments or agencies.
12. Electricity.
Power districts authorized by statute are created for the sole purpose of assisting the state in the
performance of its governmental function of distributing heat, light and power among its people without
profit. Stats. 1935, c. 72.
13. DrainsMunicipal CorporationsTaxationWaters and Water Courses.
Irrigation districts, drainage districts, utilities districts and other similar organizations are not municipal
corporations but are public agencies exercising governmental functions and under theory that their
properties are in effect properties of the state, they are not subject to taxation.
14. Taxation.
The property of power district created pursuant to statute is exempt from taxation. Stats. 1935, c. 72;
Comp. Laws, sec. 6418; Const. art. 8, sec. 2; art. 10, sec. 1.
Appeal from Eighth Judicial District Court, Clark County; Wm. D. Hatton, Judge.
Action by Lincoln County Power District No. 1 against the State of Nevada and others for
a judgment that plaintiff's property is exempt from taxation and enjoining defendants from
attempting to collect taxes thereon.
enjoining defendants from attempting to collect taxes thereon. From a judgment for the
plaintiff, the defendants appeal. Judgment affirmed.
Gray Mashburn, Attorney-General, W. T. Mathews, and Alan Bible, Deputy
Attorneys-General, and Roland H. Wiley, District Attorney, and Paul Ralli, Deputy District
Attorney, for Appellants.
H. Van Dam, Jr., and Harold M. Morse, for Respondent.
Ham & Taylor, Amici Curiae.
OPINION
Appellant Clark County is a duly constituted political subdivision of the State of Nevada;
the individual appellants are officials of said county as designated in the title; and appellant
Nevada Tax Commission is an agency of appellant State of Nevada.
Respondent Lincoln County Power District No. 1 is a corporation organized and existing
under chapter 72, laws of Nevada 1935, with its office at Pioche, Lincoln County, Nevada, is
now and at all times since September 1, 1937, has been the owner of valuable property
located in said Clark County and the adjoining county of Lincoln, consisting mainly of an
electric power transmission line extending from Boulder dam across Clark County to the
Pioche mining district in Lincoln County, Nevada; engaged in distributing, through the
medium of said transmission line, hydroelectric energy, at cost, to said mining district and
elsewhere in said Lincoln County.
On October 25, 1937, appellant DeVinney, as directed by appellant Nevada tax
commission, levied an assessment on respondent's property in Clark County for taxes for the
year 1937, on an assessed valuation of $40,000, in the amount of $1,362.79, and
demanded payment of said tax.
for the year 1937, on an assessed valuation of $40,000, in the amount of $1,362.79, and
demanded payment of said tax. Instead of paying the tax respondent brought an action in the
district court of said Clark County against appellants, praying for a judgment that its property
is exempt from taxation and appellants be enjoined from attempting to collect taxes thereon.
Issues were joined in the action, a trial was had thereof and the court rendered judgment
that the property of the power district is exempt from taxation, and enjoined appellants from
seeking to collect any taxes thereon. From that judgment appellants have appealed, and assign
as errors committed by the trial court:
1. That the opinion and decision is contrary to and against law.
2. That the judgment is contrary to and against law.
3. That finding of fact No. 1 is contrary to and against fact and law.
4. That finding of fact No. 3 that plaintiff is in fact a municipal corporation is contrary to
and against fact and law.
5. That conclusion of law No. 1 is contrary to and against law; and
6. That conclusion of law No. 3 is contrary to and against law.
There is only one question presented to the court for determination by the assignments of
error, namely, is the property of respondent exempt from taxation? Although appellants claim
two issues were raised by the pleadings: one, whether chapter 72, laws of 1935, provides for
the creation of municipal corporations; and two, if so, is the property of such corporations
exempt from taxation? In their argument appellants contend such statute is unconstitutional,
being obnoxious to article IV, section 17 of the constitution of Nevada, in that two separate
and distinct matters, not germane to each other, are included in the act, and that the title of the
act fails to disclose an intent to provide for the creation of municipal corporations.
for the creation of municipal corporations. Section 17 provides: Each law enacted by the
legislature shall embrace but one subject, and matters properly connected therewith, which
subject shall be briefly expressed in the title * * *.
1. Every presumption is in favor of the validity of a statute, Ex parte Goddard, 44 Nev.
128, 190 P. 916, and a statute will always be sustained if there by any reasonable doubt of its
unconstitutionality. State v. Westerfield, 24 Nev. 29, 49 P. 554.
2. In State v. Ruhe, 24 Nev. 251, 52 P. 274; In re Walker River Irr. Dist., 44 Nev. 321,
195 P. 327; and Tonopah & Goldfield R. R. Co. v. Nevada-California Trans. Co., 58 Nev.
234, 75 P.(2d) 727, this court considered at length article IV, section 17 and statutes alleged
to violate its provisions. We see no reason to review the authorities cited in those cases, or
restate the conclusions reached therein, and are content to say that upon the reasoning and
authority of those cases we hold chapter 72, laws of 1935, is constitutional.
3, 4. No act authorized by the constitution can be said to be against the public policy of
the state. State v. Preble, 18 Nev. 251, 2 P. 754; the legislature possesses the whole legislative
powers of the people, except so far as its power is limited by the constitution. State v.
Williams, 46 Nev. 263, 210 P. 995; and it has plenary power to legislate upon every subject
unless there is a denial of that right by constitution. Moore v. Humboldt County, 48 Nev. 397,
232 P. 1078.
5. There is no constitutional limitation on the power of the legislature of Nevada to create
municipal corporations and confer on them such functions it considers necessary or
expedient. Harris v. William R. Compton Bond & Mortgage Co., 244 Mo. 664, 149 S. W.
603; Gaynor v. Marohn, 268 N.Y. 417, 198 N. E. 13; Wertz v. City of Ottumwa, 201 Iowa
947, 208 N. W. 511; State v. Town of Boynton Beach, 116 Fla. 534, 156 So. 539; Wilson v.
Board of Trustees of Sanitary Dist., 133 Ill.
443, 27 N.E. 203; In re Tillamook People's Utility Dist., 160 Or. 530, 86 P.(2d) 460.
6. Therefore, power districts created pursuant to the provisions of chapter 72, laws of
1935, are municipal corporations. However, the act contains no provisions exempting, or
providing for the taxation of, the property of such power districts, and whether such property
is exempt from taxation is governed by the general laws of the state on taxation.
Section 6418 N.C.L., as amended, so far as applicable reads:
All property of every kind and nature whatsoever within this state shall be subject to
taxation except:
FirstAll lands and other property owned by the state, or by the United States, or by any
county, incorporated farm bureau, municipal corporation, irrigation, drainage or reclamation
district, town or village in this state, and all public school houses, with lots appurtenant
thereto, owned by any legally created school district within the state; also, nonprofit private
schools, with lots appurtenant thereto, and furniture and equipment.
Article VIII, section 2, and article X, section 1, of the constitution provide what property
shall be taxed and what may be exempted by law from taxation. Said section 2 of article VIII
provides: All real property and possessory rights to the same, as well as personal property in
this state, belonging to corporations now existing or hereafter created, shall be subject to
taxation the same as property of individuals; provided, that the property of corporations
formed for municipal, charitable, religious, or educational purposes may be exempted by
law.
Section 1 of article X is: The legislature shall provide by law for a uniform and equal rate
of assessment and taxation, and shall prescribe such regulations as shall secure a just
valuation for taxation of all property, real, personal and possessory, except * * * and, also
excepting such property as may be exempted by law for municipal, educational, literary,
scientific or other charitable purposes."
municipal, educational, literary, scientific or other charitable purposes.
7. In 61 C.J., taxation, page 366, section 359, it is stated to be the general rule that while
in the absence of any constitutional prohibition the state may tax its own property, the
presumption is always against an intention to do so, and such property is impliedly immune
from taxation unless an intention to include it is clearly manifested; which immunity rests
upon public policy and the fundamental principles of government.
Some things are always presumptively exempted from the operation of general tax laws
because it is reasonable to suppose they were not within the intent of the legislature in
adopting them. Such is the case with property belonging to the state and its municipalities,
and which is held by them for public purposes. Cooley on Taxation, 4th Ed. vol. 2, sec. 621.
The words all property as used in article XI, section 13, constitution of California,
wherein it is provided: All property in this State shall be taxed in proportion to its value
* * * were construed in People v. McCreery, 34 Cal. 432, and it was said: The meaning of
taxation must be kept in view, and that is: a charge levied by the sovereign power upon the
property of its subject. It is not a charge upon its own property, nor upon property over which
it has no dominion.
It was held in People v. Doe G. 1,034, 36 Cal. 220, that the constitution and laws on the
subject of taxing property refer to private property and persons, not public property of the
state, or any subordinate part of the state government such as counties, towns, and municipal
corporations. The cases of Penick v. Foster, 129 Ga. 217, 58 S.E. 773, 12 L.R.A. (N.S.) 1159,
12 Ann. Cas. 346, and Foster v. Duluth, 120 Minn. 484, 140 N.W. 129, 48 L.R.A., (N.S.)
707, are to the same effect.
8. When public property is involved, exemption is the rule and taxation the exception.
National Surety Co. v. Starkey, 41 S.D. 356, 170 N.W. 582; Egan School Dist. v. Minnehaha
County, 65 S.D. 32, 270 N.W. 527, 10S A.L.R. 572; State v. Snohomish County, 71 Wash.
Dist. v. Minnehaha County, 65 S.D. 32, 270 N.W. 527, 108 A.L.R. 572; State v. Snohomish
County, 71 Wash. 320, 128 P. 667.
Appellants contend respondent is not a municipal corporation, as those words are used in
the constitution and statutes exempting the property of such corporations from taxation, and
therefore its property is subject to taxation.
Many and varied are the definitions of the words municipal corporation, some of which
are collected in the case of City of Louisville v. Babb, 7 Cir., 75 F.(2d) 162, and many others
in Words and Phrases, Permanent Edition, vol. 27, beginning at page 749.
In certain of those authorities it is held the words include only cities and incorporated
towns, while in others they are held to include not only the pure municipal corporations of
cities and towns but also all municipal and quasi municipal corporations, organized for public
governmental purposes, and the words political, municipal, and public are used
interchangeably.
In Cook v. Port of Portland, 20 Or. 580, 27 P. 263, 264, 13 L.R.A. 533, it is stated:
The word municipal' is defined by the lexicographers as belonging to a city, town, or
place; having the right of local government; belonging to or affecting a particular state or
separate community; local; particular; independent. It is usually applied to what belongs to a
city, but has a more extensive meaning, and is in legal effect the same as public or
governmental, as distinguished from private. * * *
A corporation, therefore, created for municipal purposes, is a corporation created for
public or governmental purposes, with political powers to be exercised for the public good in
the administration of civil government, whose members are citizens, not stockholders; an
instrument of the government, with certain delegated powers, subject to the control of the
legislature and its members, officers, or agents of the government for the administration or
discharge of public duties.
In O'Berry v. Mecklenburg County, 198 N.C. 357, 151 S.E. 880, 882, 67 A.L.R. 1304, the
question was whether the county was liable for a tax upon the gasoline used by it in the
discharge of its governmental functions. The county contended it was not liable for the tax by
reason of article V, section 5, of the constitution, which provided: Property belonging to the
State or to municipal corporations, shall be exempt from taxation.
The court cited decisions holding that counties are not, in a strictly legal sense, municipal
corporations, like cities and towns, but rather instrumentalities of government, or agents of
the state, constituted for the convenience of local administration in certain portions of the
state's territory, and then stated:
The weight of authority is to the effect that all the powers and functions of a county bear
reference to the general policy of the state, and are in fact an integral portion of the general
administration of state policy. Citing authorities.
Therefore, property held by a county is held for the express purpose of aiding or
facilitating the discharge of governmental functions. For this reason the property of the state
and the property of counties is exempt from taxation by express provisions of the
Constitution in article 5, sec. 5, thereof.
9. Power districts, as provided for in chapter 72, laws of 1935, are also political
subdivisions of the state, created to make available to the public, to any municipality, the
state, and any public institution, an abundant supply of electricity at the lowest cost consistent
with sound economy and prudent management for use for the purpose of raising the standard
of living, promoting more efficient development and use of the mineral resources of the state,
and reducing unemployment. Furthermore, the legislature declared in the act that the
procedure provided by it was the only feasible and practicable method to make available to
the state federal assistance in carrying out the purposes of the act.
10. The supplying of electric energy to the inhabitants of a state, county, or municipal
corporation is a legitimate municipal or public purpose. Brush v. Commissioner, 300 U.S.
352, 57 S. Ct. 495, 81 L. Ed. 691, 108 A.L.R. 1428; Pacific Gas & Electric Co. v. Sacramento
Municipal Utility Dist., 9 Cir., 92 F.(2d) 365.
Appellants rely on authorities holding irrigation districts are not municipal corporations to
sustain their contention respondent is not a municipal corporation and that its property is
subject to taxation.
11, 12. Irrigation districts are organized primarily to promote the material prosperity of
the few owning lands within their boundaries, just as manufacturing plants are established to
produce profits for their stockholders, and are not organized for the discharge of
governmental functions in addition to, or in aid of, the usual governmental departments or
agencies. Power districts, authorized by chapter 72, laws of 1935, are created for the sole
purpose of assisting the state in the performance of its governmental function of distributing
heat, light and power among its people without profit. Buffalo Rapids Irr. Dist. v. Colleran,
85 Mont. 466, 279 P. 369; Holbrook Irr. Dist. v. First State Bank, 84 Colo. 157, 268 P. 523;
City of Nampa v. Nampa & Meridian Irr. Dist., 19 Idaho 779, 115 P. 979; State v. Hunt, 49
Wyo. 407, 57 P.(2d) 793.
The case of State v. Yuma Irr. Dist., 55 Ariz. 178, 99 P.(2d) 704, 705, cited, and relied on
by appellants, supports, rather than is contrary to, the judgment of the trial court. In that case
the court held the constitution authorized the legislature to exempt from taxation only the
property of educational, charitable and religious associations or institutions not used or held
for profit, and that such power to exempt did not extend to the property of irrigation
districts; that the constitution in Arizona also exempts from taxation all Federal, state,
county and municipal property, article 9, sec. 2, but by the provisions of the constitution it
clearly appears the words "municipal corporations" pertained only to cities and towns,
and that according to such constitutional definitions irrigation districts are not municipal
corporations, neither is their property.
clearly appears the words municipal corporations pertained only to cities and towns, and
that according to such constitutional definitions irrigation districts are not municipal
corporations, neither is their property.
Section 6418 N.C.L. exempts the property of irrigation districts from taxation; although in
Re Walker River Irr. Dist., supra, they are declared not to be municipal corporations, but
public corporations for municipal purposes. So, also, is McLean v. Truckee-Carson Irr. Dist.,
49 Nev. 278, 245 P. 285, 286. California courts have held irrigation districts are political
subdivisions or agencies of the state, and their property is exempt from taxation under that
section of the constitution exempting from taxation property belonging to the state.
Glenn-Colusa Irr. Dist. v. Ohrt, 31 Cal. App. (2d) 619, 88 P.(2d) 763.
In the California case of In re Bonds of Orosi Public Utility District, 196 Cal. 43, 235 P.
1004, the court distinguishes between districts organized for the purpose of draining,
irrigating, reclaiming or otherwise directly benefiting privately owned property, and public
utility districts organized for the sole purpose of supplying the inhabitants of the district with
light and power, or similar purposes.
Pacific Gas & Electric Co. v. Sacramento Municipal Utility District, supra, was an action
brought by a private utility corporation to enjoin the public utility district from issuing bonds
to finance the construction and operation of a light, power and heating system to serve the
district. It is a well considered case, cites many authorities to support its conclusions that
there is a difference between such districts and irrigation districts, that such utility district was
a validly constituted political subdivision of the state and duly authorized to finance the
public function of supplying its inhabitants with light, heat and power through general
taxation.
The Board of Directors of Tillamook People's Utility District, 160 Or. 530, S6 P.{2d) 460,
464, petitioned the court for a judgment establishing the legality of the proceedings in
connection with the creation of the district.
District, 160 Or. 530, 86 P.(2d) 460, 464, petitioned the court for a judgment establishing the
legality of the proceedings in connection with the creation of the district. It appears from the
parts thereof cited in the opinion that the constitutional and statutory provisions under which
the district was organized are quite similar to chapter 72, laws of 1935, and in its opinion the
court said: The intention of the framers of the constitutional and statutory provisions
authorizing the creation of people's utility districts is manifestly that such districts shall be
municipal corporations with wide powers to provide general benefits.
13. Irrigation districts, drainage districts, utilities districts, and other similar organizations
are not municipal corporations, but are public agencies exercising governmental functions,
and, under theory that their properties are in effect properties of the state, they are not subject
to taxation. Laguna Beach County Water Dist. v. Orange County, 30 Cal. App.(2d) 740, 87
P.(2d) 46.
In State of Alabama v. United States, Ct. Cl., 38 F.(2d) 897, 899, the question before the
court was whether the State of Alabama could tax the surplus hydroelectric power, generated
at the federal power plant, erected at Wilson dam, which the government sold to the Alabama
Power Company, a private corporation, engaged in the manufacture, transportation and sale
of electricity for private gain.
The court held that a tax on property is * * * a tax on the thing called ownership, which is
merely a persons' legally protected interest in the thing owned, and that when an agency is
created by Congress as a means of exercising its constitutional functions, it cannot be taxed
by a state, for the reason it is an instrument of the United States; as it is the taxation of the
means employed by the government to perform a constitutional function.
In the instant case the power transported and disposed of without profit by respondent,
over the power line sought to be taxed, is purchased from the federal government, which
generated the same at a plant constructed with public funds, is transported over a power
line, also constructed with public funds, by a governmental agency, created by the State
of Nevada for the sole purpose of making electric energy generated at Boulder dam
available at cost to the people of Nevada, and enable the state to avail itself of federal
assistance in carrying out the purposes for which respondent was created.
line sought to be taxed, is purchased from the federal government, which generated the same
at a plant constructed with public funds, is transported over a power line, also constructed
with public funds, by a governmental agency, created by the State of Nevada for the sole
purpose of making electric energy generated at Boulder dam available at cost to the people of
Nevada, and enable the state to avail itself of federal assistance in carrying out the purposes
for which respondent was created.
14. Whether the property sought to be taxed by appellants is property of the respondent, or
whether it holds the same in trust for the State of Nevada, or as an agency of the federal
government, is immaterial, since in either event it is property exempt from taxation, as the
trial court found and decreed.
Finding no reversible error in the record, the judgment is affirmed.
NoteOrr, J., being disqualified, the Governor designated Honorable L.O. Hawkins,
Judge of the Sixth Judicial District, to sit in his stead.
____________
60 Nev. 414, 414 (1941) Sarrazin v. First Nat'l Bank
ALBERT SARRAZIN and ELAINE SARRAZIN, Appellants, v. FIRST NATIONAL BANK
OF NEVADA, RENO, NEVADA, a Corporation, as Executor and as Trustee of the Estate of
Emilie Sarrazin, Et Al., Respondents.
No. 3308
March 10, 1941. 111 P.(2d) 49.
1. Wills.
Under testamentary trust to pay monthly sums to daughter and son for life provided that if either died
before the other without children, the payments should be made to the survivor, the monthly payments were
to continue so long as the son and daughter or either of them lived but no longer.
2. Perpetuities.
Will which failed to dispose of residue of the estate in certain contingencies did not violate the rule
against perpetuities on theory that the vesting of the estate depended upon the time the will should be
probated which might be more than 21 years after the death of the testatrix, where all the property of
testator was left to trustee in trust and vested in trustee upon testatrix' death. Const. art. 15, sec. 4.
3. Perpetuities.
The fact that will did not dispose of residuary estate in certain contingencies and that proceeding might
be necessary at some remote date to determine in whom the corpus of the estate might ultimately vest did
not render will invalid as contrary to the rule against perpetuities since the residue would immediately
vest as intestate property in testatrix' heirs, or if there were no heirs, in the state by escheat. Const. art.
15, sec. 4.
4. Wills.
Where will clearly showed the intention of testatrix that neither of her children was to take anything
under the will except the monthly payments therein provided, court could not set the will aside on the
ground that it was unwise, unfair or unjust.
Action by Albert Sarrazin and Elaine Sarrazin against the First National Bank of Nevada,
Reno, Nevada, as executor and as trustee of the estate of Emilie Sarrazin, and others, to have
will declared void and to set aside probate proceedings and have trust terminated. From a
judgment for defendants, the plaintiffs appeal.
a judgment for defendants, the plaintiffs appeal. Judgment affirmed.
J. M. Frame and Harry G. Pray, for Appellants.
Nash P. Morgan, for Respondent.
OPINION
On October 29, 1935, Emilie Sarrazin executed her last will, which contains the following
provisions:
Second: I hereby give, devise and bequeath unto my Trustee, hereinafter named, all of my
estate, real, personal and mixed, of every nature, kind and description, wherever situate and
however held, which is or may be subject to my testamentary disposition at the time of my
death, to have and hold the same, in trust nevertheless, for the uses and purposes, with the
powers and in the manner hereinafter mentioned, namely, to wit:
(a) To pay over to my daughter, Elaine Sarrazin, now a resident of Reno, Nevada, and
who is thirty-seven years of age, the sum of $35 a month until my said daughter shall reach
the age of forty-five years, and thereafter to pay her the sum of $45 a month during the
remainder of her life time,
(b) To pay over to my son, Albert Sarrazin, who is now a resident of Reno, Nevada, and
who is thirty-eight years of age, the sum of $25 a month during his life time,
(c) In the event of the death of my said daughter before the death of my said son, the
payments herein authorized to be made to my said daughter will be paid to her children, if she
leaves any, and if not, shall be paid to my son,
(d) In the event of the death of my said son before the death of my said daughter, the
payments herein authorized to be made to my said son will be paid to his children, if he
leaves any, and if not, shall be paid to my said daughter.
children, if he leaves any, and if not, shall be paid to my said daughter.
(e) Upon the death of both of my son and daughter, without children of either living, I
direct that my Executor and Trustee, hereinafter named, shall convey all of my estate, real,
personal and mixed, if any then remains in its possession, to my niece, Honorine Gauthier,
who resides at Connune, Saint Euzebe, Canton, Saint Bonnet, Hauter Alpes, France, or in
case of her death to her children then living,
Third: I hereby authorize and empower my Trustee, hereinafter named, to invest and
reinvest the trust funds hereinbefore provided for in any securities which said Trustee deems
best, whether the same are or are not investments to which Executors and Trustees are by law
limited in making investments, and to change or vary investments from time to time as it
deems best,
Fourth: I authorize and empower my said Trustee, hereinafter named, to hold and
continue in its discretion, any securities in which any of my property may be found invested
at the time of my death, my intent being that my said Executor and Trustee shall be absolved
and discharged from the absolute legal duty of converting my estate into money, and that it
shall not be responsible for any shrinkage in value by reason of the exercise of the discretion
hereby reposed in it.
Fifth: I authorize and empower my Executor and Trustee, hereinafter named, in its
discretion, to sell and dispose of any and all of my property, real or personal, wherever situate
and however held, either at public or private sale, and at such time or times and upon such
terms as may seem to it proper and advisable and to give to the purchaser or puchasers of my
said property all deeds, bills of sale, and other evidences of title which may be expedient or
necessary.
Sixth: I nominate, constitute and appoint the First National Bank of Reno, Nevada, as my
Executor of this, my last Will and Testament, and as Trustee of any and all trusts herein
created * * *.
When testatrix died, neither Albert nor Elaine had any children, but a child was born to
Albert on October 16, 1937. The will was admitted to probate in the Second judicial district
court, Washoe County, November 25, 1935, and respondent bank appointed executor and
trustee. The estate, consisting of real estate, promissory notes and other indebtedness to
deceased, cash, and household furniture and effects, was appraised at $42,214.77. Most of the
promissory notes were secured by mortgage or trust deed.
In January 1940 appellants, as plaintiffs, commenced an action in said district court against
respondents, as defendants, praying that the purported will be held void, and the probate
proceedings theretofore had thereunder set aside; that all the property of the estate be awarded
to plaintiffs with the right of administration thereon; that the trustee be required to make a full
accounting; that the trust be terminated, and said trustee and executor discharged; that the
court construe said purported will, and if it be held void, then to distribute the estate to
plaintiffs in the proportions they would receive under the law of descent and distribution,
subject to such further administration as may be necessary. Said relief was asked upon the
grounds and for the reasons following: (a) That said purported will violates the rule against
perpetuities, for the reason that it may not and will not necessarily vest said estate within a
life or lives in being and twenty-one years thereafter from the death of the said Emilie
Sarrazin, deceased, or at all; (b) that the vesting of said estate under said purported will is
remote for the same reason that it violates the rule against perpetuities and is therefore
contrary to public policy; (c) that the vesting of said estate, under said purported will, is
uncertain and indefinite as to which person, or persons, or class of persons, if any, in which it
may ultimately vest, if it vests at all, and the determination thereof, if the same can be
determined, may have to await a period of time greater than a life or lives in being and
twenty-one years thereafter from the death of the said Emilie Sarrazin, deceased, and there
were no persons, person, or class of persons in being at the death of said testatrix in
which said estate must necessarily vest within the said rule against perpetuities, or at all;
{d) that the vesting of the same is contingent upon uncertain events, and the person,
persons, or class of persons who may ultimately take said estate is dependent upon
possibilities based upon possibilities and not upon any event or events certain to happen;
{e) that said purported will unduly restrains the alienation of said estate, and creates an
absolute, indestructible trust therein which may last longer than a life or lives in being
and twenty-one years thereafter from the death of the said testatrix."
of the said Emilie Sarrazin, deceased, and there were no persons, person, or class of persons
in being at the death of said testatrix in which said estate must necessarily vest within the said
rule against perpetuities, or at all; (d) that the vesting of the same is contingent upon uncertain
events, and the person, persons, or class of persons who may ultimately take said estate is
dependent upon possibilities based upon possibilities and not upon any event or events certain
to happen; (e) that said purported will unduly restrains the alienation of said estate, and
creates an absolute, indestructible trust therein which may last longer than a life or lives in
being and twenty-one years thereafter from the death of the said testatrix.
Section 4 of article XV of the constitution of Nevada reads: No perpetuities shall be
allowed except for eleemosynary purposes. There is no Nevada statute defining the rule
against perpetuities. The common-law rule is usually stated thus: No interest is good unless
it must vest, if at all, not later than twenty-one years after some life in being at the creation of
the interest. Gray, The Rule against Perpetuities, 3d Ed., p. 174, sec. 201. And see 48 C.J.
937, sec. 4; 21 R.C.L. 282, sec. 2. Other than the constitutional provision above quoted, there
have not been called to our attention any other provisions, either constitutional or statutory,
invalidating interest which vest too remotely, or forbidding restraints on alienation.
1. Appellants contend that subdivisions (c) and (d) of the second clause of the will
contemplate continuance of the monthly payments not only while testatrix' children, or either
of them, lives, but beyond that and until the death of her last surviving grandchild, should
such grandchild survive Albert and Elaine. According to the construction put upon these
subdivisions by respondents, the monthly payments are to cease upon the death of whichever
of testatrix' two children survives the other. It will be noted that the monthly payments
provided for in subdivision (c) are to be made in the event of the death of testatrix' daughter
"before the death of my said son," and those provided for in subdivision {d) are to be
made in the event of the death of testatrix' son "before the death of my said daughter."
death of testatrix' daughter before the death of my said son, and those provided for in
subdivision (d) are to be made in the event of the death of testatrix' son before the death of
my said daughter. In view of the quoted phrases, it will be seen that if Elaine should die
before Albert, the monthly payments provided in subdivision (c) would begin upon her death;
but no monthly payments could in that event be made under subdivision (d) upon the death of
Albert, because he would not have died before the death of my said daughter. So, if Albert
should die before Elaine, no monthly payments under subdivision (c) could be made upon the
death of Elaine, because she would not have died before the death of said my son. We can
perceive no basis for attributing to testatrix an intention that, should any of her grandchildren
survive both Albert and Elaine, payments should continue under one of said subdivisions, but
not under the other. There is nothing in the will to indicate an intention on the part of testatrix
to prefer one grandchild or group of grandchildren to another. Testatrix could not know
which of her children would predecease the other, and if she had intended to discriminate,
appropriate language would naturally have been employed showing what person or group was
to be preferred. We therefore hold that under the provisions of the will the monthly payments
are to continue as long as Albert and Elaine, or either of them, lives, but no longer.
Respondents take the position that said construction of subdivisions (c) and (d) is decisive
of this case, because under such construction it is apparent, they say, that the will violates
neither the rule against perpetuities nor any other rule of law. But appellants contend that,
whatever construction may be put on said subdivisions, it does not affect the question of
perpetuities or the vesting of the estate that would pass by the will; in other words it does not,
they argue, materially affect the time that the estate, or any portion of it, might vest under the
will.
It is undisputed that the will does not, at least expressly, dispose of the residue of the
estate, if any, in the event that any grandchild or grandchildren of testatrix should survive
both of her children; nor does it provide what is to become of the residue of the estate, if any,
in the event that no grandchildren of testatrix, nor her niece, nor any of the latter's children,
shall survive both Albert and Elaine. In either event, say respondents, it would become
necessary to institute a probate proceeding to determine what disposition to make of the
corpus of the estate and to determine who, at that time, would be entitled to take as heirs of
the testatrix.
2. Appellants contend that this invalidates the will, as the vesting of an estate which
depends upon the time that a will is probated is violative of the rule against perpetuities,
because there is a possibility that the will might not be probated for more than twenty-one
years after the death of the testatrix. On this point they cite the following cases: In re
Campbell's Estate, 28 Cal. App. (2d) 102, 82 P.(2d) 22; Johnson v. Preston, 226 Ill. 447, 80
N.E. 1001, 10 L.R.A. (N.S.) 564; Husband v. Epling, 81 Ill. 172, 25 Am. Rep. 273; Miller v.
Weston, 67 Colo. 534, 189 P. 610. None of these cases is applicable here, because in them
the wills or other instruments provide, respectively, for the vesting of the interest or estate
when the estate of the said Thomas Mason is settled up, twenty-five (25) years from and
after the date of the probate of this will, [226 Ill. 447, 80 N.E. 1003, 10 L.R.A. (N.S.) 564],
on the admission of this will to probate, [67 Colo. 534, 189 P. 611], and at the time of
distribution of my estate. In the case at bar, title in the trustee is made to vest upon the death
of testatrix. The distinction is pointed out in Miller v. Weston, supra, one of the cases relied
on by appellants.
3. Appellants, however, make the further contention that while the will in this case does
not specially provide that the vesting depends upon a time when a probate proceeding will
take place, still by its terms it is possible for circumstances to occur which will create the
necessity for a probate proceeding at some remote date to determine in whom the corpus
of the estate will ultimately vest; this they maintain, violates the rule against perpetuities,
and invalidates the will and the trust it attempts to create.
proceeding will take place, still by its terms it is possible for circumstances to occur which
will create the necessity for a probate proceeding at some remote date to determine in whom
the corpus of the estate will ultimately vest; this they maintain, violates the rule against
perpetuities, and invalidates the will and the trust it attempts to create. The court cannot agree
with this position, for the reason that upon the death of whichever of testatrix' two children
survives the other, the residue of the estate, if any, will immediately vest as intestate property
in testatrix' heirs, or, if there be no heirs, then in the State by escheat. Thus the vesting of any
residue will be well within the period of perpetuities.
It may be observed here that testatrix herself does not appear to have contemplated that
there should necessarily be a specific corpus to be maintained intact during the lives of her
two children. The will does not so provide, and in subdivision (e) of the second clause she
directs her executor and trustee, upon the death of both her son and daughter without children
of either living, to convey all of her estate, if any then remains in its possession, to her niece
or, if the latter be then dead, to her children.
4. Whether the provisions made for Albert and Elaine are wise, fair, or just, is not for the
court to say; they are valid, and clearly show the intention of testatrix that neither of her two
children is ever to take anything under the will except the monthly payments therein
provided.
The court being of opinion that neither the will nor the trust nor any provision of either is
invalid, the judgment appealed from must be, and is hereby, affirmed.
May 26, 1941.
Per Curiam:
Rehearing denied.
____________
60 Nev. 422, 422 (1941) Curti v. Franceschi
PHILIP CURTI, Appellant, v. ALFRED
FRANCESCHI, Respondent.
No. 3323
March 15, 1941. 111 P.(2d) 53.
Defendant could, on appeal, raise question of sufficiency of evidence to support decision, as against
contention no additions or modifications to findings were proffered, where notice was given, objections
were made to proposed findings, and additional findings were proffered, which, had they been adopted,
would have changed decision so as to defeat any recovery by plaintiff, and defendant also contended before
trial court that findings objected to had no place in record. Stats. 1931, c. 25; Stats. 1937, c. 32 sec. 15.
Where trial court's finding in assault and battery case that defendant did not act in self-defense rested on
substantial evidence, finding must stand on appeal.
Trial court was judge of credibility of witnesses, and supreme court could not disturb trial court's decision
in that respect.
4. Damages.
In order to make award for future pain and discomfort, it must be substantially supported by expert
testimony to effect that future pain and suffering is probable, as contrasted to possible, result, where results
of injury are subjective.
5. Damages.
Plaintiff's testimony that he had been suffering and was suffering at the time of trial with headaches and
dizziness was not competent evidence to support finding of future pain and suffering.
6. Assault and Battery.
In action for damages for assault and battery, where testimony of experts did not deal with question of
future pain and suffering, but dealt with results that might occur from injuries such as plaintiff sustained at
time of injury, and was not connected with what future result to plaintiff might be from time of trial, there
was no competent evidence to sustain findings of damages for future pain and suffering.
In action for assault and battery, award of $500 for pain, suffering, and humiliation from time of injury to
date of trial held supported by substantial evidence.
8. Evidence.
Judicial knowledge can be taken of fact that board and room has value, but not as to what that value is.
In action for assault and battery, where plaintiff testified he had been working on ranch and had received
$1.75 per day and board and room, but there was no evidence as to value of board and room, award of
$1.50 per day for 109 days for board and room while plaintiff was unable to work would be disallowed on
appeal, since there must be some evidence as to value before award for board and room can be sustained.
In action for assault and battery, where attending physician testified as to what he had charged, that he
believed charges were reasonable, and that he had no usual and customary fee, such testimony was
sufficient to support award for medical services.
In action for assault and battery, which occurred after collision of automobiles, in which evidence showed
defendant struck plaintiff with his fist knocking him to sidewalk and then grabbed plaintiff and beat his
head on sidewalk and afterwards attempted to kick him, but was restrained by bystanders, evidence
sustained award of $200 for punitive damages.
Appeal from Second Judicial District Court, Washoe County; Wm. D. Hatton, Presiding
Judge.
Action for damages for assault and battery by Alfred Franceschi against Philip Curti. From
a judgment for plaintiff, defendant appeals. Judgment modified and, as modified, affirmed.
Wm. M. Kearney and Robert Taylor Adams, for Appellant.
Harold O. Taber, for Respondent.
OPINION
On the 15th of April 1939, at the city of Reno, Washoe County, Nevada, a collision
occurred between a car driven by appellant and one driven by respondent. Following the
collision, each of the parties got out of his car, and they engaged in conversation.
car, and they engaged in conversation. Later appellant struck respondent with his fist,
knocking him to the sidewalk, Respondent's head struck the sidewalk, and he was rendered
unconscious. Respondent was lifted from the sidewalk by certain bystanders, and was by
them leaned against a telephone pole, where he remained until picked up by the police.
Respondent was taken to a hospital, later incarcerated in the city jail, and still later
hospitalized for several days. After leaving the hospital he was under the care of a physician
for a considerable length of time.
Respondent brought an action to recover damages for assault and battery. Appellant
answered, admitting striking the blow but setting up self-defense in extenuation. The case
was tried before the court without a jury, and after trial judgment was rendered in favor of
respondent in the sum of $1,664.25, being made up of the following items: ten days in the
Washoe County Hospital at $4 per day, $40; cost of X-rays $20; doctor bills $250; loss of
employment $354.25; pain, suffering and humiliation $500; future pain and discomfort $300;
punitive damages $200.
1. The judgment is attacked principally upon the ground that there is no substantial or
credible evidence in the record to support it. Respondent answers this contention by stating
that appellant is attempting to secure a second decision on the facts, and, further, the decision
of the trial court cannot be disturbed where there is substantial evidence to support it, citing;
Strattan v. Raine, 45 Nev. 10, 197 P. 694, 200 P. 533; Roberti v. Anderson, 27 Nev. 396, 76
P. 30; and McGurn v. McInnis, 24 Nev. 370, 55 P. 304, 56 P. 94.
Appellant recognizes the rule set forth in the above-cited cases, but, as hereinbefore stated,
insists there is not substantial evidence to support the decision, and, as relates to certain
specific awards, insists there is no evidence to support them.
Respondent further takes the position that appellant cannot in this case raise the question
as to the sufficiency of the evidence, for the reason that no additions or modifications to
the findings were proffered, and relies on the case of Richards v. Steele, 60 Nev. 66, 99
P.{2d) 641, Id., Nev., 100 P.{2d) 72.
cannot in this case raise the question as to the sufficiency of the evidence, for the reason that
no additions or modifications to the findings were proffered, and relies on the case of
Richards v. Steele, 60 Nev. 66, 99 P.(2d) 641, Id., Nev., 100 P.(2d) 72.
There is a wide difference between the procedure taken in the instant case and that in the
case of Richards v. Steele. Here notice was given, also objections made to the proposed
findings, and additional findings proffered, which, had they been adopted by the court, would
have changed the decision so as to defeat any recovery by respondent and make further
examination of the special awards unnecessary.
Appellant also contended before the trial court that the findings objected to had no place in
the record in any form, modified, corrected or otherwise. Appellant followed very closely the
requirements of Statutes of Nevada 1931, chapter 25, page 28, and Statutes of Nevada 1937,
section 15, c. 32, page 57. The objection is without merit.
2. The trial court found that appellant did not act in self-defense. This finding rests on
substantial evidence and must stand.
We now proceed to consider the following question: Does the record disclose substantial
evidence supporting the several awards made by the trial court?
We have concluded that it would serve no useful purpose to quote the evidence in this
case, in that it would not be helpful in the consideration of future cases.
3. Appellant makes much of the proposition that he proved at the trial that the reputation
of respondent for truth and veracity and for peace and quiet was bad. However, without
reliance on the testimony of respondent to any great degree, there is ample evidence from
which the trial court could draw the conclusion that the assault was unprovoked and was
malicious. One witness, Ford, testified that after the respondent was knocked to the sidewalk
by appellant, appellant grabbed respondent and beat his head on the sidewalk, and
afterwards attempted to kick him, but was restrained from so doing by bystanders.
respondent and beat his head on the sidewalk, and afterwards attempted to kick him, but was
restrained from so doing by bystanders. The trial court accepted this testimony, and it being
the judge of the credibility of the witnesses, we cannot disturb its decision in that respect.
Appellant urges that the surrounding circumstances were such as to demonstrate the
testimony of said witness Ford to be so incredible as to be unworthy of belief. Doubtless
appellant urged this contention on the trial court, and the trial court rejected it.
4. The first award discussed in appellant's brief is that made for future pain and
discomfort. Appellant asserts that there is no legal basis for this award because the rule has
been definitely established that in order to make such an award it must be substantially
supported by expert testimony to the effect that future pain and suffering is a probable, as
contrasted to a possible, result. We think such is a correct statement of the rule. See Pine v.
Rogers, 182 Okl. 276, 77 P.(2d) 542, 115 A.L.R. 1149; Shawnee-Tecumseh Traction Co. v.
Griggs, 50 Okl. 566, 151 P. 230.
Of course the rule has application only in cases where the results of the injury, as in the
case here, are subjective, that is, not such as the court or jury can observe for themselves and
determine as to whether permanent injury or pain and suffering may result.
We have examined with care the evidence quoted by respondent to support his contention
that there is in the record expert testimony to support the finding of future pain and suffering.
This quoted testimony is found on pages 17 to 20 of respondent's brief, and embraces the
testimony of two physicians. This testimony, as we read it, deals with results that might occur
from injuries such as respondent sustained, from time of the injury, and is not connected with
what the future result to respondent may be from the time of trial. Indeed, Dr. Lambird, who
attended the respondent at the time of the injury and subsequent thereto, testified that he was
unable to say whether the respondent had entirely recovered or not.
unable to say whether the respondent had entirely recovered or not. This testimony will be
found reported on page 19 of respondent's brief and at page 270, lines 29 and 30, of the
transcript; also at page 271 of the transcript, lines 1 to 5.
5, 6. The respondent testified that he had been suffering and was suffering at the time of
the trial with headaches and dizziness. This is not competent evidence to support a finding of
future pain and suffering. As we have said, the testimony of the experts does not deal with
that question, hence there is no competent evidence in the record to sustain the finding on that
point. The award of $300 for future pain and discomfort is disallowed.
7. The award of $500 for pain, suffering and humiliation from the time of injury to the
date of trial is, in our opinion, supported by substantial evidence. Appellant contends there is
nothing in the record to show that a man of the proven reputation of respondent would be
humiliated by his experiences on the night the collision occurred. A man subjected to the
punishment which the trial court found was inflicted upon respondent would indeed be
entirely devoid of all human instincts and sensibilities were he to feel no humiliation. The
facts conclusively demonstrate that he must have felt deeply humiliated, and justifiably so.
8, 9. The next award objected to is the amount for loss of employment. The court found
that the injury caused respondent to be unable to work for 109 days. Prior to the injury he had
been working on the Capurro ranch near Sparks, and he testified that he had received $1.75
per day and board and room. The court fixed the value of the board and room at $1.50 per
day. We have failed to find any evidence in the record as to the value of the board and room.
Judicial knowledge can be taken of the fact that board and room has value, but not as to what
that value is. There must be some evidence as to the value before an award for board and
room can be sustained.
sustained. Hence, the award of $1.50 a day for 109 days for board and room is disallowed.
10. The award for medical services we believe is supported by substantial evidence. The
attending physician testified as to what he had charged, that he believed the charges were
reasonable, and that he had no usual and customary fee. We think that such testimony is
sufficient. Houston, etc. v. Charwaine, 30 Tex. Civ. App. 633, 71 S. W. 401; Missouri, etc. v.
Dickey, Tex. Civ. App., 48 S. W. 626; McNaier v. Manhattan R. Co., 51 Hun 644, 4 N.Y.S.
310. Appellant cites a number of cases which he claims are opposed to the cases we cite. We
have read them, and find they hold that evidence of reasonable value is required, but do not
say that an attending physician cannot testify as to the reasonable value of his services and
that such evidence is not sufficient to support an award.
11. The next objection is to the allowance of punitive damages. As we have stated, the
trial court accepted the testimony of the witness Ford, and basing the award on that evidence
we think there is ample and substantial evidence to sustain the finding of the court.
The award of $300 for future pain and suffering is disallowed, and the award of $163.50
for board and room is disallowed; the judgment is reduced to the sum of $1,200.75, and as so
modified the judgment is affirmed.
On Costs
April 28, 1941. 112 P.(2d) 819.
1. Costs.
Statutes relating to costs should be strictly construed.
2. Costs.
Under supreme court rule stating that when a certified transcript of proceedings is
included in or constitutes the bill of exceptions, reporter's statutory fees for transcription
shall determine expense of transcript, the word transcript refers to the original, and
strict construction does not permit a reading into the rule of a provision for allowance to
a reporter of fees for copies made and furnished, even though payment may be required
of the party securing them. Comp. Laws, sec. 8460; rules of the Supreme Court, rule 6.
3. Costs.
The supreme court rule provision stating that when a certified transcript of proceedings
is included in or constitutes the bill of exceptions, reporter's statutory fees for
transcription shall determine expense of transcript is for the purpose of allowing the
actual charge made by the reporter for a transcript as provided by law, rather than the
arbitrary figure of 15 cents per folio as set forth in the body of the rule, and the charge for
a single copy only, which the rule theretofore provided for remains unchanged. Rules of
the Supreme Court, rule 6.
Appeal from Second Judicial District Court, Washoe County; Wm. D. Hatton, Judge.
Action by Alfred Franceschi against Philip Curti. A judgment for plaintiff was modified
and, as modified, affirmed by the Supreme Court, and defendant filed with the clerk of the
Supreme Court his memorandum of costs against plaintiff. From a ruling of the clerk
reducing the amount of the cost bill, Philip Curti appeals. Affirmed.
William M. Kearney and Robert Taylor Adams, for Appellant.
Harold O. Taber, for Respondent.
OPINION
On the 18th of March 1941 appellant filed with the clerk of this court his memorandum of
costs against respondent. One of the items contained in said memorandum is: Cost of typing
record and transcript on appeal, 1634 folios at 15 cents per folio, $245.10. On March 26,
1941, respondent filed objections to said item in the cost bill, for the following reasons: That
the record on appeal includes a transcript of the proceedings certified by the official court
reporter, which said transcript constitutes the bill of exceptions; said transcript contains 1141
folios and is computed at the rate of 15 cents per folio, whereas Rule VI of the Rules of
the Supreme Court provides that: 'When a certified transcript of the proceedings shall be
included in or shall constitute the bill of exceptions, the reporter's statutory fees for
transcription shall determine the expense of such transcript and shall determine the
costs.' Rule VI of the Rules of the Supreme Court also provides that the expense of
typewriting a transcript shall be for one copy only.
contains 1141 folios and is computed at the rate of 15 cents per folio, whereas Rule VI of the
Rules of the Supreme Court provides that: When a certified transcript of the proceedings
shall be included in or shall constitute the bill of exceptions, the reporter's statutory fees for
transcription shall determine the expense of such transcript and shall determine the costs.'
Rule VI of the Rules of the Supreme Court also provides that the expense of typewriting a
transcript shall be for one copy only. Section 8460, N.C.L. 1929, provides that the official
reporter's statutory fee for a transcript shall be 10 cents per one hundred words for the first
copy, and, accordingly, the cost of the record on appeal should be reduced in the sum of
$57.05, which is 5 cents per folio for the 1141 folios in said transcript.
On the 29th of March 1941 the clerk of this court made her ruling on said objections,
sustaining the contention of respondent and reducing the amount of said cost bill in the sum
of $57.05. From said ruling of the clerk, the appellant appealed to this court.
A reading of the item in the cost bill leaves the conclusion that appellant had charged 15
cents per folio for a certified transcript of the proceedings, which constitutes the bill of
exceptions in this case, and under the provisions of section 8460 N.C.L., but 10 cents is
allowed for such transcription. However, appellant explains this charge by saying that it was
intended to cover an original and one copy of the transcript.
1. In construing rule VI we start with the proposition that statutes relating to costs are to
be strictly construed. 20 C.J.S., Costs, p. 263, sec. 3; 14 Am. Juris., p. 8, par. 8.
2. From a reading of the following provision of rule VI, viz: when a certified transcript
of the proceedings shall be included in or shall constitute the bill of exceptions, the reporter's
statutory fees for transcription shall determine the expense of such transcript, we conclude
that the word transcript as used therein refers to the original, no mention being made of a
copy.
refers to the original, no mention being made of a copy. Further, the reference is to the
certified transcript which constitutes the bill of exceptions filed in the clerk's office, and not
to a copy which is required to be served on the opposite party. Strict construction will not
permit a reading into rule VI of a provision for allowance to a reporter of fees for copies
made and furnished, even though payment may be required of the party securing them.
Appellant has furnished us with citations from other states where fees for copies have been
allowed as costs, but an inspection of the statutes and rules of those states discloses that
provision is made for payment therefor.
3. The exception contained in rule VI, quoted supra, is for the purpose of allowing the
actual charge made by the reporter for a transcript as provided by law, rather than the
arbitrary figure of 15 cents per folio as set forth in the body of the rule, and the charge for a
single copy only, which the rule theretofore provided for, remains unchanged and is the
evident intent thereof.
The ruling of the clerk is affirmed.
____________
60 Nev. 432, 432 (1941) Stanley v. Levy & Zentner Co.
B. F. STANLEY, Appellant, v. A. LEVY &
J. ZENTNER COMPANY, Respondent.
No. 3289
May 1, 1941. 112 P.(2d) 1047.
1. Frauds, Statute Of.
In action by trucker against farm produce company for breach of alleged oral contract whereby trucker
was to haul 600 tons of grapes for company, evidence sustained finding that alleged oral contract was not
to be performed within one year from the making thereof and was, therefore, void under the statute of
frauds. Comp. Laws, sec. 1533.
An oral contract which is capable of being fully performed within a year from its execution is not void
under the statute of frauds but if, from the terms used, agreement is not to be performed within a year, it is
void under the statute. Comp. Laws, sec. 1533.
An oral agreement which is merely unlikely to be performed, or simply not expected to be performed
within a year from its execution, is not void under statute of frauds, but any agreement which, by fair
interpretation and in view of all circumstances existing at the time, does not admit of performance within a
year from the time of its making is void under the statute. Comp. Laws, sec. 1533.
The possibility of the performance within one year, which will take an oral agreement out of the statute of
frauds, must be such as can fairly and reasonably be said to have been within the contemplation of the
parties, and an unforeseen or remote possibility will not rescue the agreement from invalidity. Comp. Laws,
sec. 1533.
A note or memorandum within meaning of the provision of the statute of frauds that every agreement
shall be void, unless such agreement, or some note or memorandum thereof, expressing the consideration,
be in writing, and subscribed by the party charged therewith, if the agreement, by the terms, is not to be
performed within one year from the making thereof, must contain all the essential elements of the contract,
and the substantial parts of the contract must be embodied in the writing with such a degree of certainty as
to make clear the intention of the parties without resort to oral evidence. Comp. Laws, sec. 1533.
Under the statute of frauds, a memorandum, in order to make enforceable an oral contract not to be
performed within one year from the making thereof, may be any document or writing,
formal or informal, signed by the party to be charged, or by his agent actually or
apparently authorized thereunto, which states with reasonable certainty, each party
to the contract, either by his own name, or by such a description as will serve to
identify him, or by the name or description of his agent, and the land, goods or other
subject matter to which the contract relates, and the terms and conditions of all the
promises constituting the contract, and by whom and to whom the promises are
made.
one year from the making thereof, may be any document or writing, formal or informal, signed by the party
to be charged, or by his agent actually or apparently authorized thereunto, which states with reasonable
certainty, each party to the contract, either by his own name, or by such a description as will serve to
identify him, or by the name or description of his agent, and the land, goods or other subject matter to
which the contract relates, and the terms and conditions of all the promises constituting the contract, and by
whom and to whom the promises are made. Comp. Laws, sec. 1533.
A letter written by manager of farm produce company to dealer in trucks, that in reference to purchase of
a truck by trucker, produce company could assure dealer that trucker would have the hauling of 600 tons of
wine grapes for company, that proceeds of hauling, less allowance of $700 to trucker for operating
expenses, would be paid to dealer, and that trucker was to be paid $6 a ton, was not a sufficient note or
memorandum within the statute of frauds, to prevent alleged oral agreement between company and trucker
for hauling grapes, which was not to be performed within one year from the making thereof, from being
void under the statute of frauds. Comp. Laws, sec. 1533.
Generally, a party may rely on the statute of frauds under a general denial in the answer. Comp.Laws, sec.
1533.
The general rule that a party may rely on the statute of frauds under a general denial in his answer was
applicable, notwithstanding that complaint did not show that alleged oral contract sued on, was not to be
performed within a year. Comp. Laws, sec. 1533.
10. Courts.
Where statement in supreme court's opinion was unnecessary to determination of the questions involved
in the case, the statement was of no value as a precedent.
The rule that if the party relying on the statute of frauds fails to set it up specially in his pleadings, he
cannot have the benefit of the statute, was not applicable in action for breach of alleged oral contract,
where the alleged contract was denied by defendant in the answer. Comp. Laws, sec. 1533.
Where defendant in action for breach of alleged oral contract, by proper pleading denied existence of
alleged oral agreement, defendant's failure to claim benefit of the statute of frauds until both plaintiff and
defendant had presented all their evidence, was not a waiver of right to rely on the statute. Comp. Laws,
sec. 1533.
Action by B. F. Stanley against the A. Levy and J. Zentner Company, to recover damages
for breach of an alleged oral contract, wherein the defendant set up a counterclaim and
cross-complaint. From a judgment in favor of the defendant, and from an order denying
plaintiff's motion for a new trial, the plaintiff appeals. Judgment and order affirmed.
Clel Georgetta and Clyde D. Souter, for Appellant.
Platt & Sinai, for Respondent.
OPINION
By the Court, Ducker, C.J.:
This is an action for damages for breach of an oral contract. Appellant and respondent will
be called plaintiff and defendant.
Plaintiff is a truck operator and defendant is a California corporation which deals in farm
produce and maintains its principal office in the city of Reno, Nevada.
It is, among other things, alleged in the complaint: That plaintiff and defendant, on or
about the 30th day of August 1936 at Reno, Nevada, entered into a verbal contract by which
plaintiff was to transport by motor truck 600 tons of grapes. That the hauling was to be done
within a period of approximately 60 days from the date of the first load, which defendant
agreed to have ready at Roseville as soon as possible after the execution of the agreement.
That defendant agreed to have approximately 10 tons of grapes at one place in Roseville
available for loading each day during the 60-day period and to have employees available to
assist in loading and unloading the grapes at Roseville and Reno to enable plaintiff to make
one trip each day from the former to the latter city and return until the total of 600 tons
of grapes had been hauled.
enable plaintiff to make one trip each day from the former to the latter city and return until
the total of 600 tons of grapes had been hauled. That the weight of grapes transported would
be computed upon the gross weight of grapes and boxes or other containers. That plaintiff
was to be paid $6 per gross ton or a total of $3,600, of which total amount the sum of $700
was to be paid by defendant directly to the plaintiff, and the balance of approximately $2,900
would be paid by defendant to R. D. Jenkins of said Reno for and on behalf of plaintiff to
apply upon the purchase price of a motor truck which it was necessary for plaintiff to buy in
order to comply with the terms of the contract. That pursuant to the agreement plaintiff began
the transportation of the grapes on September 9, 1936, and from that date to October 15,
1936, both inclusive, hauled 317,555 pounds or approximately 158.75 tons, for which
defendant became indebted to the plaintiff in the sum of $952.50, of which $815.44 has been
paid, leaving a balance due of $137.06 for grapes hauled. That on divers dates during the
60-day period of the contract alleged defendant failed to have available approximately 10 tons
of grapes each day as agreed and plaintiff was compelled to make some trips unloaded, and
on 21 days during that time failed to have any grapes available for transportation; in
consequence plaintiff and his truck were compelled to remain idle on those days. That
defendant failed to have other employees in loading and failed to have a full load at one place
in Roseville, causing plaintiff loss of much time and additional expense. That on or about the
16th day of October 1936 defendant notified plaintiff that there would be no more grapes to
haul. That of the total of 600 tons of grapes to be transported, there remained 441.25 tons.
That the profit to plaintiff, had be been allowed to complete the transportation, would have
been the sum of $2,152.50, for which, together with the balance due of $137.06 for grapes
hauled, judgment was prayed for the first cause of action.
action. Judgment was also prayed for on a second cause of action for loss of time while the
truck was underloaded and idle and for additional services and expenses in the amount of
$1,179. Defendant answered denying the contract alleged, and set up a counterclaim and cross
complaint for $444.01 as a balance due upon an account for goods, wares and merchandise,
which was not denied in the reply. The action was tried to the court without a jury. The court
found as follows:
II. That the oral contract alleged to have been entered into between plaintiff and defendant,
as set out in plaintiff's complaint, has not been proven to the satisfaction of the court, and is
not supported by the evidence.
III. That said oral contract, if the same did exist, by its terms was not to be performed
within one year from the making thereof, and the contingencies affecting the performance are
such that it could not be performed within a year. That neither said contract, if the same
existed, nor any other contract whatsoever between plaintiff and defendant, nor any note or
memorandum thereof, expressing the consideration therefor, was or is in writing and
subscribed by defendant or any of its officers, agents or employees, or by any other person
authorized thereunto. The said alleged contract is void under the provisions of the statute of
frauds. It is unnecessary to set out other findings.
Judgment was rendered that plaintiff take nothing by reason of the cause of action set forth
in the complaint and that defendant be awarded judgment against plaintiff for $441.01.
Plaintiff appeals from this judgment and the order denying his motion for a new trial.
A number of errors have been assigned, but we think the questions of law to be determined
are presented by the first four. In their order they are: First, that it was error for the trial court
to hold that the verbal contract sued upon was void under the statute of frauds. Sec. 1533
N.C.L. Second, that it was error for the court to hold that defendant could rely upon the
statute of frauds as a defense under the general denial, when the complaint on its face
did not show that the contract was not to be performed within a year, and on the
contrary, specifically alleged that the contract was to be performed in less than a year, to
wit, approximately 60 days.
court to hold that defendant could rely upon the statute of frauds as a defense under the
general denial, when the complaint on its face did not show that the contract was not to be
performed within a year, and on the contrary, specifically alleged that the contract was to be
performed in less than a year, to wit, approximately 60 days. Third, that it was error for the
court to hold that the defendant had not waived its right to rely upon the statute of frauds
under a general denial, when the defendant did not plead the statute, remained silent
throughout all the taking of evidence, and gave no notice whatever that it intended to rely
upon the statute of frauds until both plaintiff and defendant had presented all their evidence in
chief. Fourth, that it was error for the court to hold that the contract sued upon was within the
prohibition of the statute of frauds when there was in evidence a note or memorandum
thereof, expressing the consideration, be in writing, and subscribed by the party charged
therewith.
1. A careful study of the evidence convinces us that the trial court was justified in
concluding that the contract proved was invalidated by the statute. Plaintiff testified on direct
that the oral contract was as alleged in the complaint. His version of it was substantially that
on or about the 30th day of August 1936 he and a partner were indebted to defendant in an
amount between five and six hundred dollars and that at that time in Reno, Kenneth Watt,
general manager for defendant proposed to him that he haul 600 tons of grapes from the
vicinity of Roseville, California, to Reno, telling him that if plaintiff could get a truck he
would give him a contract for the hauling at $6 per ton. At Watt's suggestion plaintiff opened
negotiations with one Jenkins in Reno, a dealer in trucks, for the purchase of one. He was
unable to make the required down payment and finally Watt was induced to write the
following letter to Jenkins: "A.
A. Levy & J. Zentner
Receivers, Jobbers, Distributors
Fruits and Vegetables
Home Office
San Francisco, Calif.
Reno, Nevada, Sept. 1, 1936.
R. D. Jenkins
Reno, Nevada.
Attention Mr. Jenkins:
In reference to the purchase of International Truck by B. F. Stanley, of the City of Reno,
we can assure you that he will have the hauling of 600 tons of wine grapes, the proceeds of
which shall be paid to you, less $700 allowance for Mr. Stanley's operating expenses. For
your information Mr. Stanley will be paid at the rate of $6 a ton.
Hoping the above meets with your approval, we remain,
Very truly yours,
A. Levy and J. Zentner Company
K. Watt, Manager.
Whereupon Jenkins executed a conditional contract to plaintiff for the purchase of a truck
extending over a period of 18 months and plaintiff began hauling grapes under that oral
contract on September 9, 1936. The hauling continued on the dates and in the amounts per
load as alleged in the complaint until the 16th day of October when defendant notified
plaintiff that there would be no more grapes to haul as alleged therein.
Testifying directly as to the terms of the oral contract plaintiff said: I was to get 600 tons
of grapes from Roseville vicinity, they was not to be right in town, but they were to be 10
tons in a place where I could get a load in one place without traveling around over the country
to get it. I was to have help down there to load them. They would pay $6 a ton. We figured it
out that I would have 10 tons a day, take me about 60 days to haul them. * * * $700 was to be
paid me for expenses and the balance of $3600 was to go to Mr.
and the balance of $3600 was to go to Mr. Jenkins for payment on the truck.
On the other hand, Watt, acting for defendant and testifying in its behalf said: Mr. Stanley
was hauling grapes, trucking grapes from Roseville to Reno for us, and later on he hauled
from Los Angeles. * * * It was understood that he was to haul the next season. * * * He came
to my office on several different occasions (August 1936) and asked me if we couldn't work
out something where he could do some hauling for us. * * * And the subject came up in
regard to the grape haul and that possibly we could work it out so it would be possible for
him to haul from Los Angeles and then the next year haul grapes again.
In reference to the letter Watt wrote Jenkins the former testified as follows: A. The reason
that letter was written was due to the fact that Mr. Jenkins wishes to establish Mr. Stanley's
credit with the finance people, and that is the reason that letter was written.
Q. Did he ask you to do this for him? A. He absolutely did. * * *
Q. What do you mean when you state then, We can assure you that he will have the
hauling of 600 tons of wine grapes? A. That was based upon the period of his contract, his
automobile contract.
Q. Did you have that in mind also? A. I did, if I recall he had an 18 month contract with
Mr. Jenkins, or with the finance corporation.
Q. You felt that during the 18 months period or term of that contract that he should haul
the 600 tons? A. I thought so, yes.
Q. Do you know of any reason why he should not have had 600 tons during that period?
A. Not to my knowledge.
Q. Did you feel confident that you would have 600 tons for him to haul during that period
of time? A. I did, barring any unfortunate conditions or such as that.
Q. But I have reference to the entire period, the 18 months, or whatever the term of the
contract? A. We had no contract.
months, or whatever the term of the contract? A. We had no contract.
Q. What is that? A. I had no contract.
Q. I have reference to the conditional sales contract with the automobile company. A.
What is the question again?
Q. You felt that you could safely and reasonably assure him 600 tons of hauling during
that period of time? A. Yes * * *
Q. As I understood from your testimony, Mr. Stanley would be permitted to haul in the
International truck for an indefinite period of time? A. That is correct.
Q. Extending over several grape seasons, depending upon how long he wanted to work?
A. That is right. * * *
The following was elicited on cross-examination: A. I stated that Mr. Jenkins wanted this
letter to establish Mr. Stanley's credit. I did it as a favor to Mr. Stanley and that is the reason
that letter was written.
Q. How long did you expect the grape haul, 600 tons, to last? Over a period of how long?
A. Well, there is no definite time stated, because if there had been a definite time I would
have stated it in the letter.
Q. But I am asking you now, how long did you expect to get the 600 tons hauled? A. Our
object was for him to haul the wine grapes the season of 36, go into the Los Angeles haul,
and then back to the grape haul, and then continue on with the Los Angeles haul for an
indefinite period.
Q. How long a period then did you expect the grape haul to last? A. This particular one?
Q. Yes. A. It never did last any longer than the 15th, to the 1st of November. * * *
Q. I am asking you how long did you expect to take to get 600 tons of grapes hauled? A. I
figured it would take two seasons at least.
We think Watt's testimony and other legitimate inferences which the trial court could draw
from the evidence, form a substantial basis for the finding that the oral contract, if any
existed, by its terms was not to be performed within one year from the making thereof.
contract, if any existed, by its terms was not to be performed within one year from the making
thereof. His testimony tends to prove that the hauling contemplated was to be extended over
two grape seasons, with intermediate hauling to and from Los Angeles. The oral contract
pleaded in the complaint rests entirely on the testimony of plaintiff, but testimony elicited
from him on cross examination lends credence to the other view. We quote:
Q. Did you ever discuss about any other hauling? A. We had a discussion about hauling
later, but that had nothing to do with this contract. * * *
Q. Well, did you have any such conversation at the time you are speaking about until
about August 30, 1936? A. About the Los Angeles hauling?
Q. Yes, about other hauling? A. Yes, we did.
Q. Well, what was that? What did you say and what did Mr. Watt say? A. He said that
after the grape hauling was finished that he would have hauling for me from Los Angeles
through the winter. He said it might not start until the grapes were over and then when it did
it would last until about the month of June.
Q. After that? A. Wouldn't be anything come after June. Might be a couple of months
there wouldn't be anything until another grape season.
Q. Then what conversation, if any, did you have as to other hauling in the fall, after this
lull of a couple of months? A. Until fall, the Los Angeles haul, that is all we talked about.
Q. Have any further discussion as to the grape haul in the fall, following the Los Angeles
haul? Answer that yes, or no. A. The Los Angeles haul wouldn't wind up until in the spring
after it started.
Q. In the spring? A. Yes.
Q. Then did you discuss anything further with him after the Los Angeles haul? A. No, he
said there would be a couple of months between the Los Angeles haul and the grape haul that
he wouldn't have any work to speak of.
Q. When was that conversation held about the Los Angeles haul? A. I can't exactly say
when it was had, I talked with Mr. Watt so many times, practically every day for a couple of
months.
Q. Now, talking about August 30th of 1936; fix exact date in your mind, now when did
you talk to Mr. Watt about a Los Angeles haul? A. I think he mentioned the Los Angeles haul
at the time we talked about the grape contract, because I asked him what I was going to do
with the truck after we got through with the grapes.
Q. Did you ask him what you were going to do with the truck after you got through with
the Los Angeles haul? A. No, I figured that it would be a short time between that and the
grape haulthat I could get through for a couple of months.
Testimony of the same tenor was given by Jenkins, the truck dealer who was a witness for
plaintiff. On cross examination he testified as follows:
Q. Did he say that he would take care of the payments for the entire period of this
contract? A. Well, according to the earning capacity of the truck it would be very easy, he
wouldn't have to have a great deal of hauling to make those payments.
Q. Who did he (plaintiff) say would give him the hauling for that period of time. A.
Levy-Zentner.
Q. When did he say that Levy-Zentner company, through Mr. Watt, or any one else, told
him that he would have the hauling for at least that period of time? A. Mr. Watt told me he
would have the hauling.
Q. What about hauling after the grape contract was over? Was anything said about that?
A. We discussed the hauling generally. Mr. Watt said that Levy-Zentner Company had
hauling from Los Angeles in the season, and probably some from Sacramento and that there
would doubtless be enough hauling to take care of those payments until the grape season
commenced again in the fall. "Q.
Q. Did he promise to give him the grapes again in the fall? A. Yes.
Q. When did he tell you that? A. When we were discussing the possibility of paying for
this truck. We went over this very thoroughly from one end to the other, specifically to see
that Mr. Stanley could make these payments and we would get our money for the truck.
We have not undertaken to set out in detail the evidence bearing on the issue, but enough
has been stated to show the binding nature of the findings of the lower court. Its conclusion as
to the applicability of the statute was not erroneous.
In the following cases every agreement shall be void, unless such agreement, or some
note or memorandum thereof, expressing the consideration, be in writing, and subscribed by
the party charged therewith: First, every agreement that, by the terms, is not to be performed
within one year from the making thereof. * * * Sec. 1533 N.C.L.
This court in Girton v. Daniels, 35 Nev. 438, 129 P. 555, laid down the rule that an oral
agreement to bear one-third of the expenses of developing a mining claim covered by a
two-year lease, was not void under the statute of frauds, where the lease could have been
terminated by the act of the parties within one year according to its specific provisions and
without violation of its terms.
2, 3. Plaintiff contends that the rule announced is established by universal authority and is
applicable to the facts of this case. We agree that an oral contract which is capable of being
fully performed within a year from its execution, is not within the statute of frauds. If, from
the terms used, however, the agreement is not to be performed within a year, the statute
renders the contract void. This is the exact import of the statute. This intention may appear
affirmatively either by express agreement or by necessary implication from the character or
subject matter of the contract and surrounding circumstances.
character or subject matter of the contract and surrounding circumstances. The former rule
needs no citation of authority for its existence, and the latter needs but little. We concede, as
plaintiff contends, that the great weight of authority holds that an oral agreement which is
merely unlikely to be performed, or simply not expected to be performed within a year from
its execution, is beyond the reach of the statute. The rule is clearly stated in Browne on the
Statute of Frauds, page 327, sec. 273, 4th Ed., where the author says:
The result (of decisions) seems to be that the statute does not mean to include an
agreement which is simply not likely to be performed, nor yet one which is simply not
expected to be performed, within the space of a year from the making; but that it means to
include any agreement which, by a fair and reasonable interpretation of the terms used by the
parties, and in view of all the circumstances existing at the time, does not admit of
performance according to its language and intention, within a year from the time of its
making.
4. Plaintiff cites cases to the effect that if it is possible for an oral agreement to be
performed within a year it is not within the statute and claims that the agreement involved is
subject to that contingency. We think that the possibility of performance which would take an
agreement out of the statute of frauds must be such as could fairly and reasonably be said to
have been within the contemplation of the parties. An unforeseen or remote possibility will
not rescue the agreement from invalidity. Answering plaintiff's claim in this regard, we quote
again from the above authority:
Where the manifest intent and understanding of the parties, as gathered from the words
used and the circumstances existing at the time, are that the contract shall not be executed
within the year, the mere fact that it is possible that the thing to be done may be done within
the year, will not prevent the statute from applying. Physical possibility is not what is meant
when it is said that if the verbal contract may be performed within the year it is binding.
said that if the verbal contract may be performed within the year it is binding. Or, to speak
exactly, it is not enough that the thing stipulated may be accomplished in a less time; but such
an accomplishment must be an execution of the contract according to the understanding of
the parties. Browne on Statutes of Frauds, supra, 334, sec. 281.
See, also, White v. Fitts, 102 Me. 240, 66 A. 533, 15 L.R.A. (N.S.) 313, 120 Am. St. Rep.
483; Herrin v. Butters, 20 Me. 119; Kentucky Utilities Co. v. Hurst, 207 Ky. 448, 269 S.W.
525; 27 C.J. 180 and cases cited in note 2. In Herrin v. Butters, supra, the court said: We are
not to inquire what, by possibility, the defendant might have done, by way of fulfilling his
contract. We must look to the contract itself, and see what he was bound to do; and what,
according to the terms of the contract, it was the understanding that he should to. Was it the
understanding and intention of the parties, that the contract might be performed within one
year? If not, the case is clearly with the defendant.
Plaintiff's testimony to the effect that it was possible to haul the 600 tons of grapes in
approximately 60 days, if defendant had lived up to his agreement, was rejected by the trial
court. Watt's version was accepted. From the latter's testimony it was apparent that it was the
understanding that the contract was not to be performed within one year from the time it was
made. It contemplated, as heretofore pointed out, at least two grape seasons. This, perforce,
by the laws of nature would require more than one year for completion. Moreover, Watt's
testimony tended to show that it was impossible to complete the hauling of 600 tons of grapes
in less than two grape seasons.
The contract proved was void under the statute unless validated by the said letter written
by Watt to Jenkins.
5. The letter was written by defendant's authorized agent and there is no controversy over
its being addressed to a third party. The question is as to its sufficiency as a note or
memorandum to prevent the interposition of the statute.
sufficiency as a note or memorandum to prevent the interposition of the statute. It is the
consensus of judicial opinion that such writing must contain all the essential elements of the
contract. The substantial parts of the contract must be embodied in the writing with such a
degree of certainty as to make clear and definite the intention of the parties without resort to
oral evidence. Manufacturer's Light & Heat Co. v. Lamp et al., 269 Pa. 517, 112 A. 679;
Seymour v. Oelrichs, 156 Cal. 782, 106 P. 88, 134 Am. St. Rep. 154; Mentz v. Newwitter,
122 N. Y. 491, 25 N.E. 1044, 11 L.R.A. 97, 19 Am. St. Rep. 514; Snow v. Nelson, C.C., 113
F. 353; 25 C.J. sec. 318; 25 R.C.L. 645, sec. 276; 2 Williston on Contracts, Rev. Ed. 1619,
1622.
6. The following formula is stated in Restatement of Law Contracts, sec. 207:
A memorandum, in order to make enforceable a contract within the statute, may be any
document or writing, formal or informal, signed by the party to be charged or by his agent
actually or apparently authorized thereunto, which states with reasonable certainty, (a) each
party to the contract either by his own name, or by such a description as will serve to identify
him, or by the name or description of his agent, and (b) the land, goods or other
subject-matter to which the contract relates, and (c) the terms and conditions of all the
promises constituting the contract and by whom and to whom the promises are made.
7. Tested by the rule stated it will be seen that the letter is deficient in several respects.
For instance, it is alleged in the complaint and plaintiff sought to prove, that the weight of the
grapes transported would be computed upon the gross weight of the grapes and boxes or their
containers. This was contradicted by defendant, and Watt testified that the $6 per ton was to
be paid on the net weight. Whether it was to be net or gross would have considerable bearing
on the profits and was an essential element of which no mention is made in the letter.
letter. No mention is made in the letter that part of the price for the hauling was to be made to
a third party. Further, the time of performance was a substantial part of the agreement as to
this the letter furnishes no evidence. The note or memorandum must evidence the agreement
of the parties. We hold that the letter in this case does not take the agreement out of the
statute of frauds.
Now as to the contention that defendant was not entitled to rely on the statute of frauds as
a defense.
8. We do not understand plaintiff to deny, and indeed he could not, that, as a general rule
a party may rely upon the statute of frauds under a general denial in the answer. This court
recognized this general rule in Dixon v. Pruett, 42 Nev. 345, 177 P. 11, 13, declaring: The
statute of frauds may be relied upon as a defense under a general denial.
This statement is supported by ample authority. 25 R.C.L. 745, 746, sec. 397. 27 C.J. 369,
370, sec. 370 and cases cited in note 14 on latter page. Dunphy v. Ryan, 116 U. S. 491, 495, 6
S. Ct. 486, 26 L. Ed. 703.
9. Plaintiff's position in this respect is that such defense is not available because the
complaint does not show the contract was not to be performed within a year. In this situation,
he claims, that to be available it must be specially pleaded. He cites authority in support of his
position. We do not agree. No good reason appears why a denial of the agreement would be
more efficacious to invoke the rule of the statute appearing on the face of the complaint, than
when it does not. In fact, the logic of the situation would seem to be otherwise, for denying
facts in the complaint which state a contract within the statute of frauds would be in effect
denying the defense. A demurrer would seem more appropriate.
It is claimed that the case of Dixon v. Pruett, supra, sustains plaintiff's position in this
regard. And the following language on page 354 of the opinion in 42 Nev., on page 13 of
177 P., is relied on: "If the illegality of the contract sued on appears on the face of the
pleading counting on it, its illegality is left a live question to be dealt with by the trial
court without a formal plea of facts showing its illegality."
on page 13 of 177 P., is relied on: If the illegality of the contract sued on appears on the face
of the pleading counting on it, its illegality is left a live question to be dealt with by the trial
court without a formal plea of facts showing its illegality.
10. We are convinced that the above statement was unnecessary to a determination of the
questions involved. It is therefore of no value as a precedent on this point. Moreover, the case
of Coppell v. Hall, 7 Wall. 542, 19 L. Ed. 244, cited in support of the statement does not
sustain it. On the contrary the court said, 7 Wall, on page 558; 19 L. Ed. 244: Whenever the
illegality appears, whether the evidence comes from one side or the other, the disclosure is
fatal to the case.
11. The case of Levy v. Ryland, 32 Nev. 460, 109 P. 905, is not in point on the question.
In that case there was no answer. A resulting trust was alleged in the complaint and the
contract showing the same was admitted by the demurrer. In this situation the court was of the
opinion that the statute of frauds could not be raised by demurrer, but to be successfully
invoked must be pleaded in the answer. The case is cited in 27 C.J. 371 in note 17, as
authority for a rule that where the making of a contract is expressly admitted, or there is a
failure to deny the same, the rule as generally stated is that, if the party relying upon the
statute fails to set it up specially in his pleadings, he cannot have the benefit of the statute. No
such rule is applicable in the instant case, for the contract is denied in the answer.
12. There is no merit in the contention that defendant waived its right to rely upon the
statute of frauds by not claiming its benefit until both plaintiff and defendant had presented
all their evidence. It was invoked by a proper pleading, to wit, a denial of the oral agreement
alleged. The defendant was not called upon to object to plaintiff's testimony tending to prove
such an agreement. Objections would have been vain acts. It was not until all of its testimony
tending to prove a contract within the statute was in that defendant was in a position to
urge the defense of the statute.
within the statute was in that defendant was in a position to urge the defense of the statute.
Chambers v. Kirkpatrick, 142 Wash. 630, 253 P. 1074, 1076. In the above case the court held
that the defense of the statute was not waived by failure to raise the question until the
testimony of an oral agreement had all been received. The court said:
Appellant further contends that if the statute applies, the respondent had a right to waive
it, and by his conduct at the trial did waive it. He bases this argument upon the fact that the
question of the statute of frauds was not raised by respondent until all the testimony was
received showing the oral agreement, and that he made no objection to the receipt of such
testimony. It is possible that the rule contended for by appellant might apply under statutes
which provide that contracts such as that involved here shall not be enforceable unless in
writing; but our statute is broader than most others and says that any such agreement shall be
void' unless in writing. * * * This being the situation, the respondent had a right to raise the
statute of frauds at any time during the trial.
How could the defendant have objected to plaintiff's testimony to prove an oral contract on
the ground that it tended to prove a contract within the statute? A different situation would
have existed if the prohibition of the statute appeared on the face of the complaint and the
defendant made no objection to the proof of the agreement by parol. Most of plaintiff's cases
cited on this contention involved the latter situation. Plaintiff's other assignments of error are
without merit.
The judgment and order denying the motion for a new trial are affirmed.
June 24, 1941.
Per Curiam:
Rehearing denied.
____________
60 Nev. 453, 453 (1940) Rules of the Supreme Court
RULES OF THE
SUPREME COURT OF THE STATE OF NEVADA
____________
RULE I
1. Attorneys and Counselors.
Applicants for initial license to practice as attorneys and counselors will be examined
annually by a board as hereinafter provided. Such examinations shall be held at places to be
fixed by the order of said board at meetings commencing on the second Monday in
September of each year. As amended April 20, 1940.
2. Affidavit of Applicants.
Such applicants must be bona fide residents of this state for a period of at least six months
next preceding the examination mentioned in the preceding paragraph; and applicants must at
least forty-five days before the date of examination file with the secretary of the state bar of
Nevada an affidavit in triplicate, one copy of which shall be transmitted immediately by such
secretary to the clerk of the court on forms furnished by the secretary of the state bar, stating:
(a) When and where the applicant was born, the various places of his residence, and giving
at least two references, and giving at least two references in each place in which he has
resided since attaining the age of twenty-one years.
(b) Whether or not he has been engaged in business at any time; and, if so, when, where
and the kind of business.
(c) The names and post-office addresses of all persons by whom the applicant has been
employed, for a period of five years immediately preceding the making of his
application.
(d) The applicant's general and legal education, what schools he has attended, the length of
time in attendance at each, and whether or not he is a graduate of any school or schools.
(e) Whether or not applicant has ever applied to any court for admission.
any court for admission. If so, when and where, and the results thereof.
(f) If a naturalized citizen, when and where naturalized.
(g) How long applicant has resided in the State of Nevada, which in any event must be not
less than six months next preceding the examination as above provided; whether he is a
bona fide resident, or whether he came into the state for the sole purpose of being
admitted to practice law. As amended April 20, 1940.
3. Examination to Embrace.
The examination shall be of such type as shall be determined by the board of bar
examiners, including one or more research problems, and shall embrace the following
subjects: Constitutional law, jurisdiction of courts, equity, and evidence, and may also include
questions upon all or any of the following optional subjects:
Administrative law
Agency
Bankruptcy
Bills and notes
Community property
Conflict of laws
Construction and interpretation of state and federal statutes, but no questions will be asked
calling for memorized knowledge of statutes or local law
Contracts
Corporations
Criminal law
Insurance law
Mortgages and other security transactions
Persons and domestic relations
Personal property
Practice and procedure not involving knowledge of local law
Real property
Sales
Taxation Torts
Trusts
Torts
Torts
Trusts
Wills and administration of estates,
and such other subjects as the board of bar examiners may determine. The board of bar
examiners is not obligated to adhere to any of the above optional subjects; but no substantial
change in, or addition to, any of the subjects of examination shall be made until such notice
thereof as shall be prescribed by the supreme court be first given. As amended April 20, 1940.
4. Applicant Eligible, When.
No applicant shall be eligible for examination until his application shall have been referred
to the state bar of Nevada, and shall have received the written approval of the board of state
bar examiners; and all applicants for admission on examination, who commence the study of
law after April 15, 1934, and all applicants applying for permission to take the state bar
examination after January 1, 1936, shall present sufficient evidence to establish to the
satisfaction of the supreme court that said applicant has received a high school diploma, or its
equivalent, and has completed two years of college work, or its equivalent, and has spent
three years studying law in a law school, or has spent an equivalent amount of time in private
or office study of law.
5. Examination by Board of State Bar Examiners.
The supreme court hereby confers upon the board of state bar examiners the power to
examine applicants, pursuant to section 24 of the state bar act of 1928. Said board so
empowered shall conduct a written and oral examination of the applicant, the questions and
answers to be reduced to writing.
6. Reports of Board.
When the examination has been completed and reduced to writing the board shall return it
to this court, accompanied by their certificate showing whether or not the applicant is of good
moral character, has attained his majority, and is a bona fide resident of this state. Such
certificate shall also contain the fact that the applicant was examined by the board; that he
had no knowledge or intimation of the nature of any of the questions to be propounded to
him before the same were asked by the board; that the answers to each and all of the
questions were taken down as given by the applicant without reference to any books or
outside aid; and if the board believes that the applicant fulfills the requirements for
admission to practice, a recommendation for such admission.
was examined by the board; that he had no knowledge or intimation of the nature of any of
the questions to be propounded to him before the same were asked by the board; that the
answers to each and all of the questions were taken down as given by the applicant without
reference to any books or outside aid; and if the board believes that the applicant fulfills the
requirements for admission to practice, a recommendation for such admission.
7. Admission of Attorneys from Other Jurisdictions.
A member of the bar of a sister state shall be licensed to practice law in this state upon
filing with the clerk of this court and with the secretary of the state bar of Nevada an affidavit
showing that he is a citizen of the United States, or a resident of this state who has bona fide
declared his intention to become a citizen; that he has been engaged in actual practice in such
other state for at least three years within the five years immediately preceding the filing of his
application; or has resided in this state continuously for three years last past and during all of
said time has been and still is employed by the United States in a legal capacity and actually
appearing and conducting legal matters for and on behalf of the United States which have
required his appearance in courts of this state on behalf of said government; that he is a bona
fide resident of, and has actually resided and been in this state at least the six months next
preceding such application, and also that he bona fide intends to remain in this state
indefinitely; and whether any disbarment or other proceedings of a like nature have ever been
instituted against him, or whether by resignation, withdrawal, or otherwise, applicant has
terminated or attempted to terminate his office as an attorney, and in either or any of the cases
above referred to, giving full particulars. Also, said applicant shall present a certificate of the
clerk of the court in the state in which the applicant last practiced, certifying that the applicant
is a member in good standing of the bar of that state or district, and that no disbarment or
other proceedings affecting his standing as an attorney are pending and undisposed of
before the court; which certificate shall be supplemented by a letter from the secretary of
the local bar association of the city or county in which such applicant last resided {or in
case there be no local bar association, from the secretary of the state bar association),
certifying to his good moral character, and by a letter of recommendation from the judge
of the court of record before which he last practiced, together with such other evidence of
good moral character and fitness as may be required by the court; provided, that no
practitioner shall be licensed to practice in this state without examination, unless
attorneys who have been licensed to practice in this state are licensed to practice without
examination in the state from which the applicant holds his license; and provided further,
that when by the laws of any other state any greater requirements are imposed upon
attorneys of this state to become practitioners in such other state, than the laws of this
state impose upon attorneys of such other state to become practitioners in this state, so
long as such laws continue in force in such other state, the same requirements shall be
imposed upon all attorneys of such other state to become practitioners in this state, and it
shall be the duty of the applicant to state in his application all the material requirements
on said subject of the laws of the state in which he last practiced; and provided further
that in no event shall members of the bar of a sister state which does not require an
examination as to legal qualifications of an applicant as a prerequisite for admission to
the bar receive a license to practice law in this state, except upon taking the regular
examination; and provided further, that in no event shall a member of the bar of a state
where the common law of England is not the basis of its jurisprudence be licensed to
practice law in this state without taking the regular examination; and provided further,
that in all cases of doubt as to any applicant's fitness, the board of bar examiners may
require such applicant to take the regular bar examination.
attorney are pending and undisposed of before the court; which certificate shall be
supplemented by a letter from the secretary of the local bar association of the city or county in
which such applicant last resided (or in case there be no local bar association, from the
secretary of the state bar association), certifying to his good moral character, and by a letter of
recommendation from the judge of the court of record before which he last practiced, together
with such other evidence of good moral character and fitness as may be required by the court;
provided, that no practitioner shall be licensed to practice in this state without examination,
unless attorneys who have been licensed to practice in this state are licensed to practice
without examination in the state from which the applicant holds his license; and provided
further, that when by the laws of any other state any greater requirements are imposed upon
attorneys of this state to become practitioners in such other state, than the laws of this state
impose upon attorneys of such other state to become practitioners in this state, so long as such
laws continue in force in such other state, the same requirements shall be imposed upon all
attorneys of such other state to become practitioners in this state, and it shall be the duty of
the applicant to state in his application all the material requirements on said subject of the
laws of the state in which he last practiced; and provided further that in no event shall
members of the bar of a sister state which does not require an examination as to legal
qualifications of an applicant as a prerequisite for admission to the bar receive a license to
practice law in this state, except upon taking the regular examination; and provided further,
that in no event shall a member of the bar of a state where the common law of England is not
the basis of its jurisprudence be licensed to practice law in this state without taking the
regular examination; and provided further, that in all cases of doubt as to any applicant's
fitness, the board of bar examiners may require such applicant to take the regular bar
examination. This rule is not intended to prevent any court of this state from permitting a
member of the bar of a sister state to appear upon motion and act as counsel in a
particular case or matter before such court.
intended to prevent any court of this state from permitting a member of the bar of a sister
state to appear upon motion and act as counsel in a particular case or matter before such
court. For the purposes of this section, the District of Columbia shall be considered a sister
state. As amended May 11, 1941.
8. Requirements Waived, When.
(Repealed; effective November 17, 1934.)
9. No Action To Be Taken Without Approval of Board.
No action shall be taken upon any application filed under subdivision 7 until the board of
state bar examiners has had ample time to investigate and report thereupon.
10. Deposit Required by Applicants.
Applicants for examination by the state board of bar examiners shall pay to the treasurer of
the state bar of Nevada the sum of fifteen ($15) dollars before being entitled to have their
applications further considered. Attorneys of other jurisdictions applying to be admitted to
practice law in Nevada on motion shall pay to the treasurer of the state bar of Nevada the sum
of sixty-five ($65) dollars, before being entitled to have their applications further considered.
Said payments shall not in any event be refunded. In all cases where an applicant has been
denied admission but shall be permitted to again apply for admission to practice he shall be
required at the time of such further application to make the same payments as on an original
application. As amended April 20, 1940.
11. Procedure When Attorneys Represent Federal Government.
Attorneys employed by or representing the government of the United States in matters
before the courts of this state in which the United States has a direct interest, shall be
permitted by the courts of this state to appear on behalf of the government and to represent
the interests thereof in any litigation in which the government of the United States is
interested. At the time of appearing in any such suit on behalf of the government such
attorney shall file with the clerk of the court, if there be one, and if there shall not be one,
then with the judge or justice of such court, an affidavit to the effect that the government
of the United States is interested in the matter before the court in which such appearance
is being entered; that such person represents the government and that his appearance is
made in performance of his duties as such representative of the government and is made
in pursuance of this section of this rule of the supreme court.
if there be one, and if there shall not be one, then with the judge or justice of such court, an
affidavit to the effect that the government of the United States is interested in the matter
before the court in which such appearance is being entered; that such person represents the
government and that his appearance is made in performance of his duties as such
representative of the government and is made in pursuance of this section of this rule of the
supreme court.
RULE II
Filing Transcript.
The transcript of the record on appeal shall be filed within thirty days after the appeal has
been perfected, and the bill of exceptions, if there be one, has been settled.
Skaggs v. Bridgman, 39 Nev. 310; Miller v. Walser, 42 Nev. 497; Joudas v. Squire, 50
Nev. 42; Bowers v. Charleston Hill Nat. Mines, 50 Nev. 100; American Sodium Co. v.
Shelley, 50 Nev. 416; Lovelock Lands Inc. v. Lovelock L. & D. Co., 54 Nev. 1; Sullivan v.
Nevada Industrial Commission, 54 Nev. 301; Baer v. Lilenfeld, 55 Nev. 194; Taylor v.
Nevada Gas Co., 55 Nev. 329; Lamb v. Lamb, 55 Nev. 437; First National Bank v. Abel, 56
Nev. 6; Boyd v. Hough, 56 Nev. 123; In re McGregor, 56 Nev. 407; Fallon v. Churchill
County Bank Mortgage Corp., 57 Nev. 50; Squires v. Mergenthaler Linotype Co., 60 Nev. 63.
RULE III
1. Appeal May Be Dismissed.
If the transcript of the record be not filed within the time prescribed by Rule 11, the
appeal, after five days' notice in writing to the appellant, specifically stating the grounds
thereof, may be dismissed on motion of the respondent.
Copies of all documentary evidence and affidavits to be relied upon on the hearing of said
motion, other than the transcript of the record, shall be served with said notice. If witnesses
are to be called upon said hearing, their names must be stated in said notice, as well as the
substance of what they are expected to testify to.
2. May Be Restored.
(Repealed; effective January 16, 1935.)
3. Unless Restored, Dismissal a Bar.
(Repealed; Effective January 16, 1935.)
Joudas v. Squire, 50 Nev. 42; Bowers v. Charleston Hill Nat. Mines, 50 Nev. 100;
Lovelock Lands, Inc., v. Lovelock L. & D. Co., 54 Nev. 1; First National Bank v. Abel, 56
Nev. 6.
RULE IV
1. Printed Transcripts.
All transcripts of record in civil cases, when printed, shall be printed on unruled white
paper, ten inches long by seven inches wide, with a margin on the outer edge of not less than
one inch. The printed page shall not be less than seven inches long and three and one-half
inches wide. The folios, embracing ten lines each, shall be numbered from the
commencement to the end, and the numbering of the folios shall be printed between lines or
on the margin. Nothing smaller than minion (7-point) type leaded shall be used in printing.
2. Transcripts in Criminal Cases.
Transcripts in criminal cases may be printed in like manner as prescribed for civil cases.
3. Transcripts May Be TypewrittenTo Be Bound in Boards with Flexible Backs.
All transcripts of the record in any action or proceeding may be typewritten. The
typewriting shall be the first impression, clearly and legibly done, with best quality of black
ink, in type not smaller than small pica, upon a good quality of typewriting paper, thirteen
inches long by eight inches wide, bound in boards with flexible backs, in volumes of a size
suitable for convenient handling and ready reference, and arranged and indexed as required
by the rules of this court. When so typewritten, such transcript, in the discretion of the party
appealing, need not be printed, but, if printed, all the rules concerning the same shall still
apply thereto.
Nellis v. Johnson, 57 Nev. 18; Union Indemnity Co. v. Drumm, 57 Nev. 242.
4. To Be Indexed.
The pleadings, proceedings, and bill of exceptions shall be chronologically arranged in the
transcript; and each transcript shall be prefaced with an alphabetical index, specifying the
folio of each separate paper, order, or proceeding, and of the testimony of each witness;
and the transcript shall have at least one blank fly-sheet cover.
transcript shall be prefaced with an alphabetical index, specifying the folio of each separate
paper, order, or proceeding, and of the testimony of each witness; and the transcript shall
have at least one blank fly-sheet cover.
5. Record Not Conforming to Rules May Be Struck Out on Motion.
Any record which fails to conform to these rules may, upon motion and good cause shown,
be ordered to be struck from the files.
Robinson v. Kind, 25 Nev. 274; Segale v. Pagni, 49 Nev. 313.
RULE V
Printing Transcripts.
The written transcript in civil causes, together with sufficient funds to pay for the printing
of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof
shall file the same and cause the transcript to be printed, and to a printed copy shall annex his
certificate that the said printed transcript is a full and correct copy of the transcript furnished
to him by the party; and said certificate shall be prima-facie evidence that the same is correct.
The said printed copy so certified shall also be filed, and constitute the record of the cause in
this court, subject to be corrected by reference to the written transcript on file.
RULE VI
1. Cost of Typewriting or Printing Transcripts.
The expense of printing or typewriting transcripts, affidavits, briefs, or other papers on
appeal in civil causes, and pleadings, affidavits, briefs or other papers constituting the record
in original proceedings upon which the case is heard in this court, required by these rules to
be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual
mode; provided, that no greater amount than fifteen cents per folio of one hundred words, and
for one copy only, shall be taxed as costs for either printing or typewriting, except that when a
certified transcript of the proceedings shall be included in or shall constitute the bill of
exceptions, the reporter's statutory fees for transcription shall determine the expense of
such transcript and be taxed as costs; all other costs to be taxed by the clerk in
accordance with the fee bill.
exceptions, the reporter's statutory fees for transcription shall determine the expense of such
transcript and be taxed as costs; all other costs to be taxed by the clerk in accordance with the
fee bill.
For the purpose of computing the number of folios under this rule, each numerical figure
shall be deemed to constitute one word.
Brandon v. West, 28 Nev. 500; Richards v. Vermilyea, 42 Nev. 294; State v. Sadler, 25
Nev. 134; Sugarman v. Morse Bros., 50 Nev. 202; Curti v. Franceschi, 60 Nev. 429.
2. To Serve Cost Bill, When.
Either party desiring to recover as costs his expenses for printing or typewriting in any
cause in this court shall, within five days after the publication or notice of the decision of the
cause, file with the clerk and serve upon the opposite party a verified cost bill, setting forth or
stating the actual cost of such printing or typewriting, and no greater amount than such actual
cost shall be taxed as costs.
Candler v. Ditch Co., 28 Nev. 422; Zelavin v. Mining Co., 41 Nev. 1; Siebert v. Smith, 49
Nev. 312.
3. Mode of Objecting to Costs.
If either party desires to object to the costs claimed by the opposite party, he shall, within
ten days after the service upon him of a copy of the cost bill, file with the clerk and serve his
objections. Said objections shall be heard and settled and the costs taxed by the clerk. An
appeal may be taken from the decision of the clerk, either by written notice of five days, or
orally and instanter, to the justices of this court, and the decision of such justices shall be
final. If there be no objections to the costs claimed by the party entitled thereto, they shall be
taxed as claimed in his cost bill.
In re Hartung's Estate, 39 Nev. 200; State v. Sadler, 25 Nev. 134; Lovelock Lands Inc., v.
Lovelock L. & D. Co., 54 Nev. 465.
Query: Can cost bill be amended? State v. District Court, 26 Nev. 253.
4. Endorsed Upon Remittitur.
In all cases where a remittitur or other final order is sent to a district court or other
inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be
endorsed upon such remittitur or order, and shall be collected as other costs in such
district court, or other inferior court or tribunal, and shall not be subject to retaxation in
such district court or other tribunal.
sent to a district court or other inferior tribunal, the costs of the party entitled thereto as taxed
by the clerk shall be endorsed upon such remittitur or order, and shall be collected as other
costs in such district court, or other inferior court or tribunal, and shall not be subject to
retaxation in such district court or other tribunal.
RULE VII
To Correct Error in Transcript.
For the purpose of correcting any error or defect in the transcript from the court below,
either party may suggest the same, in writing, to this court, and, upon good cause shown,
obtain an order that the proper clerk certify to the whole or part of the record as may be
required, or may produce the same, duly certified, without such order. If the attorney of the
adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,
except when a certified copy is produced at the time, must be accompanied by an affidavit
showing the existence of the error or defect alleged.
State v. Bouton, 26 Nev. 34, 39; Christensen v. Floriston P. Co., 29 Nev. 552; Kirman v.
Johnson, 30 Nev. 150; State v. Hill, 32 Nev. 187; Botsford v. Van Riper, 32 Nev. 214; City of
Fallon v. Churchill County Bank Mortgage Corp., 57 Nev. 1.
RULE VIII
ExceptionDiminution of Record.
Exceptions or objections to the transcript, bill of exceptions, the undertaking on appeal,
notice of appeal or to its service or proof of service, or any technical exception or objection to
the record affecting the right of appellant to be heard on the points of error assigned, which
might be cured on suggestion of diminution of the record, must be taken at the first term after
the transcript is filed, and must be noted in the written or the printed points of the respondent,
and filed at least one day before the argument, or they will not be regarded.
Alderson v. Gilmore, 13 Nev. 85; State v. Cal. M. Co., 13 Nev. 203, 209, 210; Truckee
Lodge v. Wood, 14 Nev. 310; Brooks v. Nevada Nickel Syndicate, 24 Nev. 264, 271
Brooks v. Nevada Nickel Syndicate, 24 Nev. 264, 271; State ex rel. Launiza v. Justice
Court, 29 Nev. 192, 200; Smith v. Wells Estate Co., 29 Nev. 411, 416; Kirman v.
Johnson, 30 Nev. 146, 150; State v. Hill, 32 Nev. 185, 187; Botsford v. Van Riper, 32
Nev. 214, 225; Skaggs v. Bridgman, 39 Nev. 310; Zelavin v. Tonopah Development
Co., 41 Nev. 1; Sugarman Co. v. Morse Bros., 50 Nev. 191, See section 8905 Nevada
Compiled Laws 1929.
RULE IX
Substitution in Case of Death.
Upon the death or other disability of a party pending an appeal, his representative shall be
substituted in the suit by suggestion in writing to the court on the part of such representative,
or any party on the record. Upon the entry of such suggestion, an order of substitution shall be
made and the cause shall proceed as in other cases.
Robinson v. Kind, 25 Nev. 278; Twaddle v. Winters, 29 Nev. 89.
RULE X
1. Calendar.
The calendar of each term shall consist only of those cases in which the transcript shall
have been filed on or before the first day of the term, unless by written consent of the parties;
provided, that all cases, both civil and criminal, in which the appeal has been perfected and
the bill of exceptions settled, as provided in Rule 11, and the transcript has not been filed
before the first day of the term, may be placed on the calendar, on motion of either party, after
ten days' written notice of such motion, and upon filing the transcript.
2. Causes Placed Consecutively on Calendar.
Causes shall be placed on the calendar in the order in which the transcripts are filed by the
clerk.
3. Calendar Called on First Day of Term.
The calendar shall be called on the first day of each term and cases set for oral argument
upon a day certain, upon request of counsel upon either side of the case, or upon stipulation,
subject to the approval of the court. Requests for settings may be made by counsel in open
court or by written communication addressed to the clerk.
the clerk. Upon stipulation of counsel, subject to the approval of the court, cases may be
submitted on briefs filed without oral argument. Where no request is made by stipulation or
otherwise for the setting of a case, the same may be passed or be set by the court of its own
motion.
RULE XI
1. Time for Appellant to Serve BriefRespondent.
Within fifteen days after the filing of the transcript on appeal in any case, the appellant
shall file and serve his points and authorities or brief; and within fifteen days after the service
of appellant's points and authorities or brief, respondent shall file and serve his points and
authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points
and authorities or brief in reply, after which the case may be argued orally. A brief must
designate the page and line, or the folio, in the record where the evidence or matter referred to
may be found, and in case of failure to do so the court may ignore the point made. As
amended April 20, 1940.
For failure to comply with the above rule, judgment may be affirmed: Goodhue v.
Shedd, 17 Nev. 140; Gardner v. Pacific Power Co., 40 Nev. 343.
But see: Smith v. Wells, 29 Nev. 415; Adams v. Rogers, 31 Nev. 161.
Errors assigned, but not briefed or orally argued, waived; Candler v. Ditch Co., 28
Nev. 164. See, also, 94 Atl. Rep. 501; 109 N. E. 365; 92 Pac. 401; 72 Pac. 607; 94 Pac. 452.
Failure of respondent to file brief, see: Durant Nat. Bank v. Commins, 148 Pac.
1022; Padilla v. Mason, 53 Nev. 226.
2. What Points and Authorities to Contain.
The points and authorities shall contain such brief statement of the facts as may be
necessary to explain the points made.
3. Oral Argument.
The oral argument may, in the discretion of the court, be limited to the printed or
typewritten points and authorities or briefs filed, and a failure by either party to file points and
authorities or briefs under the provisions of this rule and within the time herein provided.
shall be deemed a waiver by such party of the right to orally argue the case, and such party
shall not recover cost for printing or typewriting any brief or points and authorities in the
case. Counsel shall not read from decisions nor argue more than one hour on each side
without permission of the court.
4. Counsel Limited in Oral Argument.
No more than two counsel on a side will be heard upon the oral argument, except by
special permission of the court, but each defendant who has appeared separately in the court
below may be heard through his own counsel.
5. Optional in Criminal Cases.
In criminal cases it is left optional with counsel either to file written, printed, or
typewritten points and authorities or briefs.
6. When Submitted.
When the oral argument is concluded, the case shall be submitted for the decision of the
court.
7. Stipulation as to Time.
The times herein provided for may be shortened or extended by stipulation of parties or
order of court, or a justice thereof.
RULE XII
Printing and Paper To Be Uniform.
In all cases where a paper or document is required by these rules to be printed, it shall be
printed upon similar paper, and in the same style and form (except the numbering of the
folios in the margin) as is prescribed for the printing of transcripts.
RULE XIII
1. Number of Copies To Be Filed.
Besides the original, there shall be filed five copies of all printed transcripts, briefs, and
points and authorities, which copies shall be distributed by the clerk.
2. Briefs May Be Typewritten.
Briefs and points and authorities, instead of being printed, may be typewritten upon the
same paper and in the same style and form as is prescribed for typewritten transcripts.
the same style and form as is prescribed for typewritten transcripts.
3. Number of Copies of Typewritten Transcripts and Briefs to Be Filed and Served.
When typewritten, but one copy of the transcript of the record need be filed in the case, but
a copy thereof shall be served upon the opposite party; provided, that when the official
reporter's certified transcript of the proceedings at the trial is a part of the settled bill of
exceptions, no copy of such transcript need be served as a part of the copy of the transcript on
appeal. Two copies of the briefs and points and authorities, viz., the first impression and a
copy thereof, shall be filed with the clerk, and a copy shall be served on each opposite party
who appeared separately in the court below.
Zelavin v. Tonopah Development Co., 41 Nev. 1; Gardner v. Pacific Power Co., 40 Nev.
343; Guisti v. Guisti, 41 Nev. 349; Lovelock Lands, Inc., v. Lovelock L. & D. Co., 54 Nev. 1.
RULE XIV
Opinions Recorded.
All opinions delivered by the court, after having been finally corrected, shall be recorded
by the clerk.
RULE XV
RehearingRemittitur to Issue, WhenTime May Be Shortened or Extended.
All motions for a rehearing shall be upon petition in writing, and filed with the clerk
within fifteen days after the final judgment is rendered, or order made by the court, and
publication of its opinion and decision. Personal service or service by mail upon counsel of a
copy of the opinion and decision shall be deemed the equivalent of publication. The party
moving for a rehearing shall, 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. No remittitur or mandate to the
court below shall be issued until the expiration of the fifteen days herein provided, and
decision upon the petition, except upon special order.
The time herein provided for may be shortened or extended, for good cause shown, by order
of court.
The court may, on its own motion, recall a remittitur in any case, for good cause, and may
recall such remittitur, for good cause, upon application noticed or made within fifteen days
after the filing of the same in the trial court.
Case in which second petition for rehearing will not be granted: Ward v. Pittsburg
Silver Peak, 39 Nev. 193.
Questions raised for first time on petition for rehearing will not be considered: Nelson
v. Smith, 42 Nev. 302; In re Forney's Estate, 43 Nev. 227, 186 Pac. 678.
Exception: 4 Corpus Juris. 642.
It has been held that court loses jurisdiction to grant rehearing where petition is filed
after remittitur issues: Fisher v. Lukens, 178 Pac. 302.
No other argument will be heard on a motion for rehearing except such as may be
contained in petition therefor and the reply to said petition: Stockgrowers and Ranchers
Bank of Reno v. Milisich, et ux., 52 Nev. 475; State v. Ceja, 53 Nev. 281; Wood v.
State, 60 Nev. 140.
RULE XVI
Opinion To be Transmitted.
Where a judgment is reversed or modified, a certified copy of the opinion in the case shall
be transmitted, with the remittitur, to the court below.
RULE XVII
No Paper To Be Taken Without Order.
No paper shall be taken from the courtroom or clerk's office except by order of the court or
of one of the justices. No order will be made for leave to withdraw a transcript for
examination except upon written consent, to be filed with the clerk.
RULE XVIII
Concerning Change of VenueAdditional Notice Given.
Appeals from orders granting or denying a change of venue or any other interlocutory
order made before trial will be heard at any regular or adjourned term upon three days' notice
being given by either appellant or respondent when the parties live within twenty miles of
Carson City.
of Carson City. When the party served resides more than twenty miles from Carson City, an
additional day's notice will be required for each fifty miles, or fraction of fifty miles, from
Carson City.
Peters v. Jones, 26 Nev. 267.
RULE XIX
Notice of Motion.
except as otherwise provided, in all cases where notice of a motion is necessary, unless,
for good cause shown, the time is shortened by an order of one of the justices, the notice shall
be five days.
RULE XX
Payment of Advance Fee RequiredClerk Prohibited from Filing.
No transcript or original record shall be files or cause registered, docketed, or entered until
an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of
suit. The clerk of the court is prohibited from filing or registering any record without first
having received as a deposit the aforesaid fee.
RULE XXI
Extending or Shortening Time.
Except as otherwise provided in any of the foregoing rules, or when not otherwise
controlled by statute, the time provided in any of these rules within which an act shall be
done, may be extended or shortened by stipulation of the parties, or, upon good cause being
shown, by order of the court or a justice thereof.
American Sodium Co., v. Shelley, 50 Nev. 416.
RULE XXII
1. Procedure on Review.
When a review by the supreme court of the action of the board of governors of the state
bar of Nevada, or of any committee authorized by it to make a determination on its behalf,
pursuant to the provisions of the state bar act, is sought by a person complained against,
application for such review shall be filed with the clerk of the court within sixty days after the
filing in the court of a certified copy of the decision complained of.
court of a certified copy of the decision complained of. The application shall be verified and
shall be accompanied by proof of service of a copy thereof upon the board of governors of the
state bar.
Such application must be based upon the record alone, and must contain sufficient
averments to establish a prima facie case in favor of the party complained against, and, if
based upon a want of evidence sufficient to warrant the determination of the board of
governors, or the committee, it must fairly state all the material evidence relative to the point
as to which such want of evidence is claimed to exist.
The board of governors, or its representative, may, within ten days after said service upon
it of such copy of the application, or within such further time as the court may grant, serve
upon the applicant and file in this court an answer, which shall be limited to a brief statement
of the grounds of the order or determination, and matters in justification thereof; provided,
that it may also supply any evidence omitted or misstated in the application. If any such
answer be served and filed, the petitioner may, within five days thereafter, or within such
further time as the court may grant, serve and file a reply thereto.
The court will thereupon consider the matters so presented, and, good cause appearing,
will make an appropriate order to enable it, by hearing, reference, or otherwise, to review the
action complained of in whole or in such part as it may consider necessary. No good cause
appearing, the application will be denied. Adopted April 20, 1940.
____________
60 Nev. 471, 471 (1940) Rules of the District Court
RULES OF THE
DISTRICT COURT OF THE STATE OF NEVADA
____________
The following rules were approved in 1887 by all the district judges and by the supreme
court when the state was in one judicial district, under the act of March 4, 1885
(Stats. 1885, 60), and are still in force, excepting the amendments of October 25,
1911, which became effective April 1, 1912.
RULE I
The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.
RULE II
Calendars.
1. The clerk of each county of the state shall make three calendars for the district court of
his county, upon one of which he shall place all civil causes at issue upon questions of fact as
soon as the issue is made; upon another he shall place all civil causes at issue upon a question
of law, and all motions of every nature, except ex parte motions, as soon as the issue is made,
or as soon as notice of motion is filed; and upon the third of which he shall place all criminal
business of every kind. The names of the attorneys of the respective parties shall be
appropriately placed on such calendars. The clerk shall on every Saturday forward to the
presiding judge of the court and also to the judge who is to sit in his county a full statement of
all court matters filed with him during the preceding week.
2. In districts having more than one judge the judges shall, by special rules, provide for
the division of the business in their district and the calendars of their courts shall be prepared
and kept in accordance with such division.
3. On all law days the clerk shall deliver to the judge or judges holding court in his county
the calendars showing the business before such judge or judges. All law matters on said
calendars at issue shall be called by the court and disposed of in order of filing, where
possible, unless continued for good cause.
by the court and disposed of in order of filing, where possible, unless continued for good
cause.
4. Each judge shall fix at least one law day in each month for the setting of cases for trial
on issues of fact, unless the business of his district or of any county thereof requires a
different arrangement.
5. Civil cases at issue upon questions of fact may be set for trial on the issues of fact on
any law day, five days' previous written notice of such application having been given by the
moving party to the opposite party or parties. In districts having more than one judge, civil
cases ready for trial or hearing upon default may be set for trial or hearing only in open court
upon any calendar or law day.
RULE III
Notice of Time When Court Will Sit To Be Given.
The judge who is to hold court in any county, where court is not held continuously, shall
give the clerk of such county notice of the time when court will sit. The clerk shall,
immediately upon receiving such notice, give all the attorneys having business in said court,
as shown by the calendar, and also all attorneys practicing in his county, notice in writing of
the time when court will be held. He shall also give notice of the time of holding court in
some newspaper published at the county seat, provided it can be done without expense.
RULE IV
When Calendar CalledOrder.
Upon the meeting of the court, as provided in Rule III, and on law days as elsewhere
provided in these rules, the law calendar will be called and disposed of. The trial calendar
will then be called in districts or counties where a trial calendar day is not otherwise fixed as
provided in Rule II and causes at issue on questions of fact be set for trial for a time certain or
otherwise disposed of. Parties are expected to be ready to try their causes, whether at issue on
questions of law or fact, when the calendar is called, and in the order in which they are set.
They may fix the day of trial by stipulation, in writing or in open court, subject to the
approval of the court or judge.
writing or in open court, subject to the approval of the court or judge. The daily business of
the court will be disposed of in the following order:
FirstThe minutes of the previous day's business shall be read, approved, and signed by
the judge.
SecondEx parte motions.
ThirdDemurrers, motions, and questions of law.
FourthIssues arising subsequent to the calendar shall be set.
FifthProbate business, when there is no contest on questions of fact.
SixthTrial of causes as previously set.
RULE V
Law Day.
On each Saturday of any session of court held by any district judge, law questions shall
take precedence, when at issue, and be heard without previous setting or notice, unless the
court, for good cause, continue the consideration thereof. The absence of an attorney or party
shall not in itself be sufficient ground for such continuance, where the opposing attorney or
party, whether the moving party or not, has given at least five days' written notice that he will
call up the law question sought to be determined on a law day specified in said notice. When
it appears to the court that such written notice has been given, he shall not, unless the other
business of his court requires such action, further continue the matter specified in said notice
unless upon a showing, by affidavit or oral testimony, that such continuance is reasonably
necessary and is not sought merely for delay or by reason of neglect.
RULE VI
Relating to Motions.
When any mention or proceeding has been noticed, or set for a time certain, and for any
cause is not heard at the time appointed, the hearing of the same shall be continued without
further order, and the motion or proceeding shall be placed upon the calendar and disposed of
as other issues thereon.
RULE VII
Issues of LawDecision.
Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation
of the parties, at any time or place agreed on in the state, with the consent of the judge first
having jurisdiction of the cause, or such questions of law, or motions, as the case may be,
may be submitted on briefs to such judge, with his consent, and the decision may be filed
thereafter at any time, which decision shall fix the time when the decision of the court is to be
complied with; and in all such cases the party who is required to act by such decision shall
receive due written notice thereof from the opposite party. Time for complying with such
decision shall commence to run from the time when service is made in the manner required
by the statutes for service of pleadings in a case; provided, that when the parties are present
by their respective attorneys when the decision is rendered, no notice shall be required.
RULE VIII
Demurrers.
1. When a demurrer is interposed in any case, if it be made to appear to the satisfaction of
the court that such demurrer has not been interposed in good faith, but merely for delay, the
defendant shall only answer upon such terms as the court may prescribe, and upon the filing
of the answer, the case shall be set down for trial for as early a day as the business of the court
will permit.
2. In other cases, when a demurrer is sustained or overruled, the losing party shall be
allowed to amend or plead, as the case may be, as of course, within ten days from the decision
on the demurrer, if the losing party is present by his attorney when the decision is rendered,
otherwise within ten days from the receipt of written notice of the decision from the clerk or
the prevailing party. The court may by its order fix a different time.
3. Whenever a general demurrer is interposed counsel for the opposite party, by written
notice served at least three days before the hearing of the demurrer, may require the
counsel for demurrant to furnish him with a written statement of the points and
authorities upon which he expects to rely in presenting the demurrer.
three days before the hearing of the demurrer, may require the counsel for demurrant to
furnish him with a written statement of the points and authorities upon which he expects to
rely in presenting the demurrer. This settlement must be furnished at least one day before the
argument. Upon failure to do so the court may, in its discretion, overrule the demurrer
without permitting argument.
RULE IX
Documents and Pleadings.
All documents and pleadings, intended for the files of this court, shall be on paper known
as legal cap, of good quality, and without interlineations, unless noted thereon by the clerk
at the time of filing. No original pleading or paper shall be amended by making erasures or
interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all
papers issued from this court, or to be used therein, which are required by law or rule of court
to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the
party failing shall be compelled to renew the paper, or be precluded from using the original,
as the court may deem proper.
RULE X
Motions.
Motions in all cases, except ex parte motions, motions for continuance, and motions to
amend pleadings pending a trial, shall be noticed at least five days before the day specified
for a hearing, and a copy of all papers to be used by the moving party, except pleadings or
other records of the court, shall be served with the notice of motion. The notice of motion
shall be in writing, and shall specify the papers to be used and the names of witnesses to be
examined by the moving party, and the grounds upon which the motion is made; provided,
that the court may, upon good cause shown, shorten or enlarge the time for hearing. For a
failure to comply with this rule the motion shall be denied.
Whitman v. Moran, 54 Nev. 276; Abell v. District Court, 58 Nev. 89. RULE XI
RULE XI
RULE XI
Hearings of Motions.
Upon reading and filing the notice of motion, with due proof of the service of the same,
and of the papers mentioned therein, if no one appears to oppose the motion, the moving
party shall be entitled to have the motion decided. Upon the hearing, the affidavits to be used
by either party shall be endorsed and filed before the affidavits shall be used. The manner of
making motions shall be as follows:
FirstThe moving party shall read the moving papers, or state the contents thereof, or
introduce his oral evidence.
SecondThe party opposing shall then read or state the contents of his opposing papers,
or introduce his oral evidence.
ThirdThe moving party may then read his rebutting papers, or introduce oral evidence, if
admissible under the rules of practice in law or equity. The counsel for the moving party shall
make his argument, to be followed by the counsel of the opposing party, and the counsel for
the moving party may reply.
FourthNo motion once heard and disposed of shall be renewed in the same cause, nor
shall the same matters therein embraced be reheard, unless by leave of the court granted upon
motion therefor, after notice of such motion to the adverse parties.
Edwards v. Jones, 49 Nev. 342; Whitman v. Moran, 54 Nev. 276.
RULE XII
Hearings of Motion for ContinuanceTestimony of AbsenteesCounter-Affidavits.
All motions for the continuance of causes shall be made on affidavit, and, when made on
the ground of absence of witnesses, the affidavit shall state:
FirstThe names of the absent witnesses, and their present residence or abiding place, if
known.
SecondWhat diligence has been used to procure their attendance, or depositions, and the
causes of a failure to procure the same.
ThirdWhat the affiant has been informed and believes will be the testimony of each of
such absent witnesses, and whether or not the same facts can be proven by other witnesses
than parties to the suit, whose attendance or depositions might have been obtained.
FourthAt what time the applicant first learned that the attendance or depositions of such
absent witnesses could not be obtained.
FifthThat the application is made in good faith and not for delay merely.
And no continuance will be granted unless the affidavit upon which it is applied for
conforms to this rule, except where the continuance is applied for in a mining case, upon the
special ground provided by statute. A copy of the affidavits upon which a motion for a
continuance is made, shall be served upon the opposing party as soon as practicable after the
cause for the continuance shall be known to the moving party. Counter-affidavits may be used
in opposition to the motion. No amendments or additions to affidavits for continuance will be
allowed after they have been read, and no argument will be heard on motions for a
continuance, except such as relate to the sufficiency of the affidavits read on the hearing.
RULE XIII
Attorneys as Witnesses.
When a lawyer is a witness for his client, except as to merely formal matters, such as the
attestation or custody of an instrument or the like, he shall not argue the cause or sum it up to
the jury without the permission of the court. In no event shall such lawyer be permitted to
comment upon his own testimony before the court or a jury.
RULE XIV
Sureties.
No attorney will be received as surety on any bond or recognizance to be filed or entered
into in any action or proceeding in this court.
RULE XV
DepositionsAffidavitSettling Interrogatories.
A party making application for a commission to take the deposition of a witness, out of the
state, shall serve, with the notice of such application, an affidavit setting forth the grounds for
such application, and a copy of direct interrogatories; and at least one day before the hearing
of the application, the adverse party shall serve upon the moving party a copy of the
cross-interrogatories. The direct and cross-interrogatories shall be settled at the time of
hearing the application, unless the court or judge otherwise direct; provided, that the parties
may agree to the interrogatories without submission to the court or judge, or may stipulate
that the deposition may be taken without written interrogatories.
RULE XVI
Publications of Depositions.
When a deposition is received by the clerk, he shall endorse upon the envelope the time of
receiving it, and immediately file it with the papers of the case in which it was taken; and at
any time afterward, upon the application of any attorney in the case, he shall open the same,
and endorse upon the envelope the time of opening, and the name of the attorney upon whose
application it was opened, and shall then file the deposition.
RULE XVII
Amended Pleadings.
In cases where the right to amend any pleading is not of course, the party desiring to
amend shall serve, with the notice of application to amend, an engrossed copy of the
pleading, with the amendment incorporated therein, or a copy of the proposed amendment,
referring to the page and line of the pleading where it is desired that the amendment be
inserted, and, if the pleading were verified, shall verify such amended pleading, or such
proposed amendment, before the application shall be heard.
Cited, Wier v. Washoe H. & S. Co., 31 Nev. 528, 529.
RULE XVIII
To Strike Out.
The party moving to strike out any part of a pleading shall, in the notice of motion,
distinctly specify the part asked to be stricken out.
RULE XIX
Withdrawal of Papers.
No paper or record belonging to the files of the court shall be taken from the office and
custody of the clerk, except upon the special order of the judge in writing, specifying the
record or paper, and limiting the time the same may be retained; but in no case shall original
documentary evidence be taken from the office of the clerk.
RULE XX
Additional UndertakingAttachments.
If the undertaking required before issuing a writ of attachment is shown to the satisfaction
of the court or judge, upon proper notice, to be insufficient to secure the party whose property
is attached against damages, the court or judge may require an additional undertaking to be
filed, and if not filed, the attachment shall be dissolved. No attachment shall be dissolved by
reason of any defect in the attachment papers that can be amended without affecting the
substantial rights of the parties.
Ex rel. Nenzel v. District Court, 49 Nev. 145.
RULE XXI
Trials.
Upon a reference to try all the issues, both of fact and law, and to report a judgment
thereon, the referee shall set forth in his report the facts found and conclusions of law
separately, and shall, upon the day when his report is filed, serve upon the respective parties,
or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of
notice and motion for new trial shall not be deemed concluded until such notice is served.
RULE XXII
AppealsCertificate of Appeal to StateSupersedeas.
When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall
stay all further proceedings in the court below, upon the judgment or order appealed from, or
upon the matter embraced therein; and if an execution or other order shall have been issued to
the sheriff, coroner, or elisor, he shall return the same, with the cause therefor, and his
proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under
the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the
action, the filing and service of the notice of appeal and the date of such filing and service,
together with the filing and approval of the undertaking staying all proceedings, and the date
of such filing and approval; and such certificate shall operate as a supersedeas of the
execution, or a vacation of the order.
RULE XXIII
Foreclosing MortgageService by Publication.
If, in an action to foreclose a mortgage, the defendant fails to answer within the time
allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the
answer, the court may make an order referring it to some suitable person as referee, to
compute the amount due to the plaintiff, and to such of the defendants as are prior
incumbrances of the mortgaged premises, and to examine and report whether the mortgaged
premises can be sold in parcels, if the whole amount secured by the mortgage has not become
due. If any of the defendants have been served by publication, the order of reference shall also
direct the referee to take proof of the facts and circumstances stated in the complaint, and to
examine the plaintiff, or his agent, on oath, as to any payments which have been made, and to
compute the amount due on the mortgage, preparatory to the application for decree of
foreclosure.
RULE XXIV
Further Time.
When an order shall be made enlarging the time to file a statement or affidavits on motion
for a new trial, the adverse party, unless the court otherwise directs, shall have the same
number of days to propose amendments or file counter-affidavits as was allowed by such
order to file such statement or affidavit.
RULE XXV
Settled by Referee.
When a motion for a new trial is made in a cause tried before a referee, the statement shall
be settled by the referee.
RULE XXVI
UndertakingsStay of ExecutionCertificate to State.
No stay of execution upon motion for a new trial shall be granted or allowed, nor
execution or other proceeding be stayed in any case, except upon the giving of a good and
sufficient undertaking, in the manner and form as other undertakings are given, to be
approved by the judge, with at least two sureties, for the payment of the judgment or debt, or
performance of the act directed by the judgment or order, in such amount as may be fixed by
the judge. An order to stay execution, or other proceedings in an action, shall be of no effect
until a copy of notice thereof is served upon the opposite party, or his attorney, and any other
party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be
present at the time of making such order. And if an execution or other order shall have been
issued to the sheriff, coroner, elisor, or other person, he shall return the same with the cause
therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a
certificate, under the seal of the court, of the granting of the stay of execution or other
proceedings. The certificate shall state the title of the action, the order staying the execution
or other proceedings, and the date of such order, together with the filing and approval of the
undertaking above required, and the date of such filing and approval; and such certificate
shall operate as a supersedeas of the execution or a vacation of the order.
and the date of such filing and approval; and such certificate shall operate as a supersedeas of
the execution or a vacation of the order.
Cited, Fervert v. Swift, 19 Nev. 401, 402; Gottwals v. Rencher, 60 Nev. 35.
RULE XXVII
Stipulation.
No agreement or stipulation between the parties in a cause, or their attorneys, in respect to
proceedings therein, will be regarded, unless the same shall be entered in the minutes in the
form of an order, by consent, or unless the same shall be in writing, subscribed by the party
against whom the same shall be alleged, or by his attorney or counsel.
Cited, Haley v. Eureka Bank, 20 Nev. 410, 422, 425; Stretch v. Montezuma M. Co.,
29 Nev. 163, 167.
RULE XXVIII
Juror, How Excused.
No juror shall be excused except in open court; and when a juror is excused, the clerk shall
immediately withdraw his name from the box for the period for which he has been excused.
RULE XXIX
Guardians.
No person shall be appointed guardian ad litem, either upon the application of the infant or
otherwise, unless he be the general guardian of the infant, or an attorney, or other officer of
this court, or is fully competent to understand and protect the rights of the infant; has no
interest adverse to that of the infant, and is not connected in business with the attorney or
counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the
infant for any damage which may be sustained for his negligence or misconduct in defense of
the suit.
Cornbleet v. District Court, 58 Nev. 227.
RULE XXX
Attorneys as Guardians Ad Litem.
Every attorney, or officer of this court, shall act as guardian of an infant defendant
whenever appointed for that purpose by an order of the court.
guardian of an infant defendant whenever appointed for that purpose by an order of the court.
He shall examine into the circumstances of the case so far as to enable him to make the
proper defense, and shall be entitled to such compensation as the court may deem reasonable.
RULE XXXI
Guardians Ad Litem.
No guardian ad litem shall receive any money or property, or proceeds of sale of real
estate, until he has given security by bond, in double the amount of such property or money,
with two sureties, who shall justify as in other cases, approved by the judge and filed by the
clerk, conditioned for the faithful discharge of his trust.
RULE XXXII
To Furnish to the Clerk.
The counsel obtaining any order, judgment, or decree, shall furnish the form of the same to
the clerk.
RULE XXXIII
To Be Filed.
The sheriff shall file with the clerk the affidavit and order on which any arrest is made,
within five days after such arrest is made.
RULE XXXIV
Retax Costs.
The party against whom judgment is entered shall have five days after service of a copy of
the cost bill in which to move to retax costs.
RULE XXXV
Mechanics' Liens.
In actions to enforce mechanics' liens, other lien-holders coming in under the notice
published by the plaintiff shall do so by filing with the clerk and serving on the plaintiff and
also on the defendant, if he be within the state, or be represented by counsel, a written
statement of the facts constituting their liens, together with the dates and amounts thereof,
and the plaintiff and other parties adversely interested shall be allowed five days to
answer such statements.
other parties adversely interested shall be allowed five days to answer such statements.
RULE XXXVI
Notice of Order Extending Time.
No order, made on ex parte application and in the absence of the opposing party, provided
he has appeared, granting or extending the time to file any paper or do any act, shall be valid
for any purpose, in case of objection, unless written notice thereof is promptly given to such
opposing party. Such notice shall be given as other notices are given, or may be given by
registered mail sent to the last known address of the attorney for such party, or, if he has no
attorney, to such party himself. If the address of such attorney or party be not known, then the
notice may be addressed to such attorney or party in care of the clerk.
Portland Cattle Loan Co. v. Wheeler & Stoddard, Inc., 50 Nev. 205; O'Neill v. Vasilliou,
51 Nev. 236; Taylor v. Taylor, 59 Nev. 70.
RULE XXXVII
Appeal from Justice's CourtDismissed, When.
When an appeal from the justice's court to this court has been perfected, and the papers are
not filed in this court within fifteen days from the day of filing the undertaking on appeal, this
court, on the production of a certificate from the justice to the effect that an appeal has been
taken and perfected, but the papers have not been ordered up, or the proper costs not paid, or
upon showing that any other necessary steps have not been taken, shall dismiss the appeal at
the cost of the appellant.
Cited, Andrews v. Cook, 28 Nev. 268.
RULE XXXVIII
Appeal Dismissed, When.
The plaintiff shall cause the papers in a case certified to this court under the provisions of
the 539th section of the practice act, to be filed in the office of the clerk of this court within
fifteen days from the day upon which the order of the justice is made directing the transfer of
the case.
of the case. If the papers are not so filed the case shall be dismissed, upon filing a certificate
from the justice to the effect that the has certified the papers as required by said section, but
that the same have not been ordered up, or the proper costs paid; or if it shall appear that such
papers are not filed in this court by reason of the neglect of the plaintiff to pay the fees of the
clerk for filing the same.
RULE XXXIX
Duties of the Sheriff.
During the time the court remains in session it shall be the duty of the sheriff in attendance
to prevent all persons from coming within the bar, except officers of the court, attorneys and
parties to, or jurors or witnesses in, the cause or matter being tried or heard. The sheriff shall
also keep the passageway to the bar clear for ingress or egress.
RULE XL
Instructions To Be Settled and Given, When.
Before the argument begins counsel shall prepare their instructions, submit them to the
inspection of the opposite party, and deliver them to the court. The court will hear objections
to instructions and if either party request it will settle the instructions in advance of the
argument and permit counsel to use them when addressing the jury, but this shall not prevent
the giving of further instructions which may become necessary by reason of the argument.
Regarding the giving of instructions in civil cases, see sections 8766-8768; in
criminal cases, section 10958, Nevada Complied Laws 1929.
RULE XLI
Trials.
When any district judge shall have entered upon the trial or hearing of any cause or
proceeding, demurrer or motion, or made any ruling, order, or decision therein, no other judge
shall do any act or thing in or about said cause, proceeding, demurrer, or motion, unless upon
the written request of the judge who shall have first entered upon the trial or hearing, of said
cause, proceeding, demurrer, or motion; provided, that the judges in any district having
more than one judge shall adopt such rules as they deem necessary to provide for the
division and disposal of the business of their district.
demurrer, or motion; provided, that the judges in any district having more than one judge
shall adopt such rules as they deem necessary to provide for the division and disposal of the
business of their district.
Cited, Twaddle v. Winters, 29 Nev. 88, 93;
Ex rel. Stokes v. District Court, 55 Nev. 115.
RULE XLII
Writs.
When an application or petition for any writ, rule, or order shall have been made to a
district judge and is pending, or has been denied by such judge, the same application or
motion shall not again be made to the same or another district judge, unless upon the consent
in writing of the judge to whom the application or motion was first made.
RULE XLIII
Duties of Judge.
No judge except the judge having charge of the cause or proceeding, shall grant further
time to plead, move, or do any act or thing required to be done in any cause or proceeding,
unless it be shown by affidavit that such judge is absent from the state, or from some other
cause is unable to ace; provided, that this rule may be abrogated or modified in districts
having more than one judge, in the manner indicated in Rule XLI.
Cited, Twaddle v. Winters, 29 Nev. 88, 97.
RULE XLIV
Causes Certified by State Land Register.
When a cause shall have been certified by the state land register to the district court for
trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such
certification, to file and serve upon the adverse party a complaint setting forth the fact upon
which he claims to be entitled to the land. The adverse party shall, within ten days after
service of the complaint, file and serve his answer, in which answer he shall set forth the facts
upon which he relies.
RULE XLV
Vacating Judgments and OrdersTime to Amend.
No judgment, order, or other judicial act or proceeding, shall be vacated, amended,
modified, or corrected by the court or judge rendering, making, or ordering the same, unless
the party desiring such vacation, amendment, modification, or correction shall give notice to
the adverse party of a motion therefor, within six months after such judgment was rendered,
order made, or action or proceeding taken.
Lewis v. Lewis, 53 Nev. 398; Crowell v. District Court, 54 Nev. 400; Aseltine v. District
Court, 57 Nev. 269; Jones v. District Court, 59 Nev. 465; Gottwals v. Rencher, 60 Nev. 47.
RULE XLVI
Appearances Not by Attorney Must Be Acknowledged.
Unless appearing by an attorney regularly admitted to practice law in Nevada and in good
standing, no entry of appearance or initial pleading purporting to be signed by any party to an
action shall be recognized or given any force or effect by any district court unless the same
shall be acknowledged by the party signing the same before a notary public or some other
officer having a seal and authorized by law to administer oaths.
RULE XLVII
Divorce Actions To Be Reported and Transcribed.
When ordered by the court, the evidence in divorce, annulment of marriage, and separate
maintenance actions shall be reported and transcribed and the transcript thereof filed with the
pleadings in the case. The cost of such transcript shall be immediately computed by the
reporter and paid by the party ordered by the court to do so to the clerk of the court, who shall
pay the same to the reporter upon receiving from the latter the transcript of evidence, and not
otherwise.
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