Nevada Reports 1947 (64 Nev.) PDF

64 Nev.
1, 1 (1947)
REPORTS OF CASES
DETERMINED BY
THE SUPREME COURT
OF THE
STATE OF NEVADA
____________
VOLUME 64
____________
64 Nev. 1, 1 (1947) Bailey v. Butner
ARNE R. BAILEY, Appellant, v. WILLIAM R.
BUTNER, Et Al., Respondents.
No. 3464
January 16, 1947. 176 P.2d 226.
1. Vendor and Purchaser.
An equitable vendee claiming a prior equity under, and seeking specific performance of, an oral
contract to sell land which vendor has subsequently sold to another, need not allege that other is not a
bona fide purchaser, in absence of exceptional circumstances, and other must allege and prove that he is a
purchaser for value without notice of prior contract and of the equity resulting therefrom.
Where land in which an equitable vendee claims a prior equity under an unexecuted oral contract of
sale is sold to a bona fide purchaser, a subsequent purchaser with knowledge of the prior equity acquires
a superior equity provided he is guilty of no fraudulent participation or inducement in connection with
sale to the bona fide purchaser.
sale is sold to a bona fide purchaser, a subsequent purchaser could not establish superiority of his equity
as against equitable vendee upon fact alone that his vendor was a bona fide purchaser but would be
required to show, either that he did not know of the prior equity at time of sale to bona fide purchaser or
that if he then knew of it he did not induce bona fide purchaser to buy or participate, fraudulently,
to induce or encourage the transaction.
buy or participate, fraudulently, to induce or encourage the transaction.
Where an equitable vendee claims a prior equity under an unexecuted oral contract of sale, a
subsequent purchaser, in order to overcome the equitable vendee's position of superiority must plead and
prove either that he is a purchaser without notice of the prior transaction or that he took from one who is
such a bona fide purchaser.
An equitable vendee claiming a prior equity under, and seeking specific performance of, an oral
contract to sell land which vendor had subsequently sold to another did not, by his allegations that
subsequent purchase was made with knowledge of vendee's rights concede that subsequent purchaser was
a bona fide purchaser or had any superior equity except for the fact of notice, and did not thereby relieve
the subsequent purchaser from burden of pleading the element of notice or want of notice as an
affirmative defense or permit such purchaser to avail himself of such defense by demurrer to the
complaint.
6. Pleadings.
A demurrer is not effective when directed against allegations of fact which are not part of plaintiff's
cause of action and which therefore plaintiff was not required to plead.
Where vendee claiming a prior equity sought specific performance of an oral contract to sell land
which vendor had subsequently sold to another, vendee's allegation that subsequent purchase was made
with knowledge of vendee's rights was mere surplusage and did not shift burden of pleading or proof of
that defensive element to the vendee, so that his manner of pleading it, could be assailed by demurrer.
8. Specific Performance.
One purchasing property with notice that the grantor has contracted to convey to another may be
compelled to perform the contract in the same manner and to the same extent as his grantor would have
been liable to do had he not transferred the legal title.
The proper substantive defense of a subsequent purchaser against a prior equity such as that asserted
by an equitable vendee under an unexecuted oral contract to sell land is affirmatively to allege and prove
the facts essential to clothing him with the status of a bona fide purchaser including facts disclosing that
he is a subsequent purchaser of the same land for a valuable consideration and without notice of the prior
equity and without notice of facts which upon diligent inquiry would be indicated and from which notice
would be imputed to him, if he failed to make such inquiry.
10. Frauds, Statute of.
sale is sold to another, if sufficient part performance is shown to take the case out of the statute of frauds
as to vendors, it would so apply as to the purchaser, unless such purchaser had no notice of the facts
constituting part performance. Comp. Laws, sec. 1529.
11. Frauds, Statute of.
Where an equitable vendee claiming a prior equity sought specific performance of an oral contract to
sell land which vendor had subsequently sold to another, a special demurrer attempting to invoke the
statute of frauds to defeat the jurisdiction of the court as to the person of the subsequent purchaser and to
the subject matter of the action, because no contract or memorandum in writing of any transaction
between vendee and subsequent purchaser, and no part performance of any contract between them was
alleged, was insufficient. Comp. Laws, sec. 1529.
Appeal from Second Judicial District Court, Washoe County; A.J. Maestretti, Judge.
Action by Arne R. Bailey against William R. Butner and others, for the specific
performance of an oral agreement for the sale to plaintiff of certain land. From a judgment in
favor of defendant J.T. Rutherford, and against the plaintiff, to the effect that plaintiff take
nothing by his action, the plaintiff appeals. Reversed and case remanded with instructions.
Virgil H. Wedge, of Reno, for Appellant.
Donnell Richards, of Reno, for Respondents William R. Butner and Saphronia T. Butner.
Kendrick Johnson and Wilson & Skinner, all of Reno, for Respondent J.T. Rutherford.
OPINION
By the Court, Horsey, J.:
This action was brought by the appellant, Arne R. Bailey, for the specific performance of
an oral agreement for the sale to appellant of certain land described in the complaint, it
being alleged that said agreement was made between the said appellant, as the vendee,
and William R.
for the sale to appellant of certain land described in the complaint, it being alleged that said
agreement was made between the said appellant, as the vendee, and William R. Butner and
Saphronia T. Butner, his wife, as vendors, through Elmo M. Butner, as agent, on August 27,
1941. The said William R. Butner, Saphronia T. Butner, Elmo M. Butner, and the respondent
J.T. Rutherford were made parties defendant in said action.
The basis for making the said J.T. Rutherford a party defendant is disclosed in paragraph
X of the complaint, which is as follows:
X. That the plaintiff is informed and believes, and therefore alleges on said information
and belief, that the defendants William R. Butner and Saphronia T. Butner, his wife, did, on
or about the 31st day of August, 1945, agree in writing to sell part of said property
above-described to one R.D. Hopkins, who entered into said agreement with full knowledge
of plaintiff's rights in the above-mentioned land; and that the defendants William R. Butner
and Saphronia T. Butner, his wife, did, on or about the 15th day of January, 1946, agree in
writing to sell part of said property above described to one J.T. Rutherford, who entered into
said agreement with full knowledge of plaintiff's rights in the above-mentioned land; and did
thereupon and thereby abandon the contract above referred to, without just cause or reason
and without legal justification; and further, that R.D. Hopkins and Virginia Hopkins, his wife,
did, on or about January 30, 1946, agree in writing to sell the part of the above-described
property previously obtained by deed from William R. Butner and Saphronia T. Butner, his
wife, to J.T. Rutherford, who entered into said agreement with full knowledge of plaintiff's
rights in the above-described property.
The respondent, J.T. Rutherford, interposed a demurrer, which was, in form, both general
and special, to the complaint, said demurrer being as follows: "Demurrer
"Demurrer
Demurrer
Comes now the Defendant, J.T. Rutherford, by and through his attorney, Kendrick
Johnson, Esquire, and demurs to the Complaint on file in the above-entitled action, as
follows:
I. That the Court has no jurisdiction of the person of the Defendant, J.T. Rutherford, or
the subject of the action as the action is barred as to said Defendant by the Statute of Frauds:
Every contract for the sale of any lands or interest in lands shall be void unless the contract
or some note or memorandum thereof, expressing the consideration, be in writing, and be
subscribed by the party to be charged.'
II. That Plaintiff has not legal capacity to sue.
III. That there is a defect and misjoinder of parties, Plaintiff and Defendant.
IV. That the Complaint does not state facts sufficient to constitute a cause of action.
V. That the Complaint is ambiguous unintelligible and uncertain.
Wherefore, Defendant, J.T. Rutherford, prays this Court that he be discharged and
dismissed hereon and herein.
While the general demurrer is, of course, directed to the entire complaint, it is particularly
directed (as is stated by the respondent, Rutherford, in paragraph V of said respondent's brief)
to the above-quoted paragraph X of the complaint.
The lower court sustained said demurrer of the respondent (defendant), Rutherford, with
leave to appellant (plaintiff) to amend his complaint within fifteen days. The plaintiff elected
to stand upon the sufficiency of his complaint, and declined to amend. The lower court
thereupon rendered and entered judgment in favor of the respondent (defendant), J.T.
Rutherford, and against the appellant (plaintiff), to the effect that plaintiff take nothing by his
action, and that said defendant have and recover his costs.
It is from the said judgment, and the whole thereof, that the plaintiff (appellant) has
appealed to this court.
The respondent, Rutherford, in paragraph IV, on page 2, of his brief, under the caption,
The Question Involved, has stated the following: The question here presented is whether
an allegation, on information and belief, that a subsequent purchaser from the same vendor
took with full knowledge' of the rights of a prior purchaser, under an executory contract for
the sale of real estate, is good as against a general demurrer.
The said respondent has correctly stated the question here presented and to be determined
upon this appeal, provided the allegations objected to in said paragraph X, which, in two of
the three instances in which they occur (those referring, respectively, to R.D. Hopkins and
J.T. Rutherford), are in the following form and language: who entered into said agreement
with full knowledge of plaintiff's rights in the above-mentioned land, and in the other
instance (referring to J.T. Rutherford alone) are, who entered into said agreement with full
knowledge of plaintiff's rights in the above-described property, are allegations essential to
plaintiff's cause of action. If not essential thereto, a demurrer will not lie to the complaint
because of them.
In other words, in a suit by an equitable vendee claiming a prior equity by virtue of an
agreement made with his vendor, who later entered into respective agreements with other
purchasers for the sale of portions of the same land, and who may or may not be subsequent
purchasers in good faith, that is, for a valuable consideration and without notice, does it
devolve upon the equitable vendee, in suing for specific performance, to allege that the
subsequent purchasers were purchasers with notice, or, in effect, were not bona fide
purchasers, or, is the burden of pleading upon such subsequent purchasers, or those claiming
through them, to allege, by plea or answer (in the code states by answer), the fact that they
purchased without notice, as a necessary allegation of their defense? 1.
1. The authorities are practically unanimous in holding that, in a suit by one asserting a
prior equity, unless exceptional circumstances exist, the duty devolves upon the defendant,
who seeks to establish a superior equity upon the basis that he is a bona fide purchaser, to
both allege and prove all of the essential elements constituting him such bona fide purchaser,
that is to say, a purchaser for a valuable consideration without notice of the prior agreement
and the equity resulting therefrom.
The general rule is clearly stated in 55 Am.Jur., sec. 768, on p. 1124, as follows: Sec.
768. GenerallyAlthough there are cases in which the cause of action of an owner of an
equitable interest in land who brings an action against the purchaser of the legal title has been
regarded as so dependent upon circumstances which would preclude the defendant from
protection as a bona fide purchaser that the plaintiff was required to allege such
circumstances, it is ordinarily held unnecessary for the complainant to allege in his bill that
the purchaser is not a bona fide purchaser; the right to protection as a bona fide purchaser is
ordinarily regarded as an affirmative defense, and it is held that a defendant who would avail
himself of such defense must put it in issue by his pleadings. It can be set up by way of
answer, against a plaintiff asserting a prior equitable claim, as well as by a plea in bar. * * *
And in section 770, on page 1125, it is stated: Sec. 770. NoticeUnder the rule that the
right to protection as a bona fide purchaser is an affirmative defense, so that a defendant who
would avail himself of such defense must put it in issue by his pleadings, a defendant
claiming protection as a bona fide purchaser must allege that his purchase was without notice
of the outstanding interest, even though notice is not charged in the bill; it is not necessary
for the complainant to allege notice on the part of the defendant. * * * (Italics ours.)
Many cases are cited on pages 1124 and 1125, in the footnotes, in support of the text,
including: Boone v. Chiles, 10 Pet. 177, 9 L.Ed. 388; Independent Coal & Coke Co. v.
Coke Co. v. United States, 274 U.S. 640, 47 S.Ct. 714, 71 L.Ed. 1270.
Boone v. Chiles is approved and quoted from in the much later case of Wright-Blodgett
Co. v. United States, 236 U.S. 397, 35 S.Ct. 339, 59 L.Ed. 637, in the opinion by Mr. Justice
(later Chief Justice) Hughes.
At least three of the four cases cited in footnote 17 to section 768, on page 1124 of 55
Am.Jur., supra, under the qualification of the general rule because of exceptional
circumstances, to the extent of requiring the plaintiff to allege that the defendant took with
notice, do not apply to the instant case. In the two Alabama cases and the Tennessee case the
facts are entirely dissimilar. In the Colorado case of Moore v. Allen, 26 Colo. 197, 57 P. 698,
77 Am.St.Rep. 255, the court held, in effect, that the plaintiff, A, alleging a prior equity in
land which had been sold, first to A, and later by A's vendor, had been sold and conveyed to
B, and still later sold and conveyed by B to C, must plead in his complaint against C that B
took with notice, for the reason that C might not claim to be a bona fide purchaser himself,
but might assert his right to the land because of his conveyance from B, who might be shown
to be a bona fide purchaser. This is similar to the instant case, in this respect:
2. As to part of the land involved in the instant case, respondent, Rutherford, is not the
immediate purchaser from the Butners, but purchased from Hopkins, and, of course, if
Hopkins (in a position similar to B in Moore v. Allen, supra) was a bona fide purchaser,
respondent. Rutherford, standing in his shoes, could recover the portion of the land purchased
from him, even though Rutherford had notice, at the time of his purchase from Hopkins, of
the prior equity of Bailey, provided Rutherford was guilty of no fraudulent participation or
inducement in connection with the purchase by Hopkins.
3. Rutherford, however, according to the principle laid down in Independent Coal & Coke
Co. v. United States, supra, could not establish superiority of his equity as against Bailey
upon the fact, alone, of Hopkins being a bona fide purchaser, but would be required to
show, either that he did not know of the Bailey equity at the time of the Hopkins
purchase, or that, if he then knew of it, that he did not induce Hopkins to buy, or, in any
manner participate, fraudulently, to induce or encourage the transaction between Bailey
and Hopkins.
being a bona fide purchaser, but would be required to show, either that he did not know of the
Bailey equity at the time of the Hopkins purchase, or that, if he then knew of it, that he did
not induce Hopkins to buy, or, in any manner participate, fraudulently, to induce or
encourage the transaction between Bailey and Hopkins.
If Rutherford did encourage or induce Hopkins to purchase, notwithstanding his
(Rutherford's) knowledge of Bailey's prior equity, he would, of course, be guilty of fraud,
even though Hopkins would not if he purchased without notice.
This qualifying circumstance, as affecting the fact of whether or not one with notice of the
prior equity could establish a superior equity because of purchasing from a bona fide
purchaser without notice, would be peculiarly within the knowledge of the person claiming
superiority because of the innocent purchase of his immediate vendor. This circumstance
should have been taken into consideration by the court in Moore v. Allen, supra, but,
apparently, it was not. The doctrine in that case, requiring, in effect, A, the first purchaser and
claimant of the prior equity, to allege that B took with notice, and, in fact, was not a bona fide
purchaser, apparently has not been considered sound doctrine, as said case appears not to
have been followed by any other case on that point, so far as we have been able to find. C,
claiming a superior equity, by way of defense against A, on the basis of B being a bona fide
purchaser, should have been required to allege that B was such bona fide purchaser, and that
he, C, knowing of the prior equity, did not induce B to purchase, or in any manner participate
fraudulently in the transaction between A's vendor and B.
In the hypothetical illustration employed by the court in Moore v. Allen, supra, the facts
and circumstances showing notice to B, or disclosing whether or not C, knowing of A's
equity, and purchasing from B, an innocent purchaser, took any steps to induce B to purchase,
would, most likely, not be known to A, and to require A to allege facts showing that B took
with notice, or if B took without notice that C fraudulently induced B to purchase, would
be placing an unjust and inequitable burden on A, which, in many instances, one in his
position would not be able to meet.
A to allege facts showing that B took with notice, or if B took without notice that C
fraudulently induced B to purchase, would be placing an unjust and inequitable burden on A,
which, in many instances, one in his position would not be able to meet.
In the case of Rorer Iron Co. v. Trout, 83 Va. 397, 2 S.E. 713, 5 Am.St.Rep. 285 (which is
a leading case frequently cited in relation to problems involving conflicting equities), after
quoting from Boone v. Chiles, supra, the court, on page 301 of 5 Am.St.Rep., expressed itself
as follows: But nowhere does the company's answer set up the defense of purchaser for
value without notice,' whether by reason of itself being such purchaser, or by reason of its
being the grantee of such purchaser. And yet it is insisted for the appellant, and was held by
the circuit court, that the said company could avail itself of such defense, although it had not
set it up. (Italics ours.)
The above language by the Virginia court is precisely opposite to the theory in the
Colorado case of Moore v. Allen, supra.
4. It is most unlikely that the respondent, Rutherford, will at any time rest his claim of
holding a superior equity upon the lone basis that, as to the land he purchased from Hopkins,
the latter was an innocent purchaser, and admit that he, Rutherford, was not an innocent
purchaser. But if he should do so, and the facts in the instant case thus develop a further
similarity to those in Moore v. Allen, supra, upon which were predicated the doctrine set forth
in that case, we could not, in any event, approve such doctrine, which we believe to be
without support, either in principle or authority. It must be ever kept in mind, in considering
this question of the burden of pleading and proof, that the first purchaser, holding a prior
equity, is not only first in time, but equal in good faith and innocence to the subsequent bona
fide purchaser, and is in fault only for being, in a sense, negligent, in failing to have his
agreement in writing and recorded.
agreement in writing and recorded. In order to overcome the first purchaser's position of
superiority, it is absolutely essential that the subsequent purchaser be a purchaser without
notice of the prior transaction, or that he take from one which is such a bona fide purchaser.
Only the pleading and proof of facts placing him in one or the other of those positions, can
place him in the superior position of such a bona fide purchaser. Even if we assume, for the
moment, that the burden of pleading and proof were on the first purchaser (as Moore v. Allen,
supra, would require), and he succeeded in establishing that the defendant (who was the third
purchaser) took with notice, but failed to be able to establish that the defendant's immediate
grantor (who was the second purchaser) took with notice, this should not justify any
presumption that the second purchaser, who is such immediate grantor of defendant, actually
purchased without notice. It is a serious matter to take away a prior equity, unless a superior
equity is clearly established, and the overwhelming weight of authority places the burden of
pleading and proof upon the subsequent purchaser who seeks to displace the prior purchaser.
In such case, the claim of one asserting he was a bona fide purchaser, or stands in the shoes of
such a purchaser, as against a prior equity, is purely a matter of affirmative defense, and
unless the subsequent purchaser asserting it should, by sufficient pleading and proof, be able
to achieve the position of superiority in equity, by establishing clearly that he purchased
without notice, or that his immediate vendor so purchased, he should be deemed to have
failed to show a right to displace the prior equity.
5-7. We will now present and consider a few of the many authorities supporting the
principle of pleading that the element of notice or lack of notice, as entering into the question
of the good faith of the subsequent purchaser, in an action by the claimant of a prior equity, is
strictly a matter of affirmative defense to be set up in the answer, and that such defense
cannot be made available by demurrer to the complaint.
the answer, and that such defense cannot be made available by demurrer to the complaint.
In Pomeroy's Equity Jurisprudence, vol. 3, sec. 784, pages 119, 120, it is stated: Sec. 784.
By Demurrer, Plea or AnswerI shall conclude the discussion of this subject with a very
brief consideration of the manner in which the bona fide purchaser may avail himself of the
defense, the pleadings by which it may be set up, and the necessary contents of those
pleadings. Under the system of procedure and pleading peculiar to a court of chancery, and in
whatever tribunal that system is still preserved, the defense may be raised in three different
manners. If the fact that the defendant is a bona fide purchaser for value without notice is
clearly shown by the bill of complaint, the defendant may resort to a demurrer. The usual
mode of presenting the defense is by a plea; and if it contains the requisite averments, and
they are established by evidence, the suit will be dismissed without the necessity of an answer
on the merits. Instead of resorting to a plea,' the defendant may set out the facts constituting
this defense in his answer. If he neglects to put in a plea, and fails to insert the defense in his
answer, he cannot raise it or avail himself of it in any subsequent stage of the suit. Wherever
the reformed system of procedure prevails, and all remedies, equitable as well as legal, are
obtained through the single civil action,' the defense must, of course, be taken advantage of,
either by demurrer or by answer. Unless the facts appear on the face of the complaint so as to
permit a demurrer, there can be no doubt that in the new system as well as in the old the
defense must be pleaded, in order to be available.
We refer, particularly, to footnote 7, on said page 120, in which it is stated: The defense
seems plainly to be new matter' within the meaning of the codes, and therefore to be
specially pleaded, not being admissible under an answer or denials general or special. Alcorn
v. Buschke, 133 Cal. 655, 66 P. 15 (holding that the question whether defendant is a bona
fide purchaser may not be raised upon demurrer to the complaint if it does not show that
the defendant is such purchaser)."
not be raised upon demurrer to the complaint if it does not show that the defendant is such
purchaser). (Italics ours.)
Among others, the following cases are cited in support of the above statement of the text:
County Bank v. Fox, 119 Cal. 61, 64, 51 P. 11; Wilhoit v. Lyons, 98 Cal. 409, 413, 33 P. 325;
President and Presiding Elder of So. California Conference of Seventh Day Adventists v.
Goodwin, 119 Cal. App. 37, 5 P.2d 973; Ocean Shore R. Co. v. Spring Valley Water Co., 87
Cal.App. 188, 263 P. 53.
Other authorities dealing with this question of pleading, and supporting the proposition
that demurrer will not lie except when it is apparent from the complaint that the defendant is
a bona fide purchaser, are: 66 C.J. Sec. 1061 (2), p. 1195, and cases cited in footnotes 30 and
31; 25 Cal.Jur., sec. 290, pp. 844, 845, and cases cited in footnotes 7 and 8; Bancroft's Code
Pleading, vol. 5, sec. 2427, p. 4442.
Respondent, Rutherford, on pages 4 and 5 of his brief, after quoting from appellant's
opening brief, page 1, lines 3 to 12, argues as follows:
Further, the entire argument of the appellant in his opening brief is grounded on the
proposition that this respondent is a purchaser with notice.
Appellant must therefore assume that his pleading sets forth a superior equity in this
respondent, or that this respondent, except for the fact of notice, would stand in the position
of a bona fide purchaser.
If the appellant places such a construction upon his pleading, which it is submitted he
does, in his opening brief, what other interpretation can this respondent place upon an
allegation that is predicated upon information and belief; that is redundant with recitals; that
is argumentative; that is inferential, and that is ambiguous. * * *
If this respondent would have the superior equity or be a bona fide purchaser, except for
the fact of notice, it is necessary for the appellant to plead such notice as an affirmative
allegation upon which this respondent's duty arises and the appellant's right accrues."
as an affirmative allegation upon which this respondent's duty arises and the appellant's right
accrues. (Italics ours.)
We do not find that the appellant, by such statements stressing the element of notice, has
conceded that the respondent, Rutherford, has any superior equity except for the fact of
notice. Appellant has not stated, or admitted, that the said respondent's respective vendors,
Hopkins or the Butners, were, respectively, seised or possessed of the land at the time, or
times, of respondent, Rutherford's, respective agreements, nor that the respective purchase
prices were paid, nor that the considerations were valuable, nor that the said respondent has
received any conveyance or conveyances of the land. The appellant merely stated, in effect,
that J.T. Rutherford purchased from the Butners and the Hopkinses, respectively (the latter
having previously purchased from the Butners, with full knowledge of plaintiff's rights), with
full knowledge of plaintiff's contract with the Butners. And on page 2, lines 15-17, inclusive,
of his opening brief, the appellant stated: * * * the defendant J.T. Rutherford acquired the
property in question with full knowledge of the previous contract and of plaintiff's equities in
the land. (Italics ours.)
This is, in no sense, a statement as to the degree of the acquisition, whether same was
more than a mere agreement or not. It certainly is not a statement conceding the existence of
all the numerous facts of performance necessary to constitute the respondent, Rutherford, a
bona fide purchaser, except for the fact of notice.
This court has heretofore clearly held, in the case of Moore v. De Bernardi, 47 Nev. 46, at
page 55, 220 P. 544, 547, that: To entitle a party to the character of a bona fide purchaser,
without notice, he must have acquired the legal title, and have actually paid the purchase
money before receiving notice of the equity of another party. Moresi v. Swift, 15 Nev. 215.
Regardless of what the actual facts may be, there is not alleged in the complaint of the
plaintiff (appellant), nor stated in his brief, facts sufficient to show that, except for the fact
of notice the defendant is a bona fide purchaser.
nor stated in his brief, facts sufficient to show that, except for the fact of notice the defendant
is a bona fide purchaser. Therefore, it cannot be deemed that the appellant has conceded the
existence of such facts, nor that there has been any shifting from the defendant (respondent)
to the plaintiff (appellant) of the burden of pleading as to the element of notice, or want of
notice. Such burden to plead that he purchased without notice remains upon the respondent,
Rutherford. The fact of notice or lack of notice is a fact peculiarly within the knowledge of
the subsequent purchaser, it being his own notice or knowledge that is in question, or that of
his immediate vendor. And to place the burden upon the plaintiff (appellant) to plead and
prove the notice or knowledge of another, with whom he is in no contractual privity, nor in
any manner associated, would frequently prove an insurmountable burden, and lead to unjust,
inequitable and unconscionable results.
Insofar as defendant's (respondent's) demurrer was directed to the allegations in said
paragraph X of the complaint, and, particularly, to the allegation therein alleging that the
defendant (respondent) Rutherford and his vendor, Hopkins, entered into the several and
respective agreements with notice of the rights of the plaintiff in the land, such demurrer was
ineffective. Even assuming the demurrer was in perfect form and valid in substance, it could
not be effective, for the reason that it was directed against an allegation, or allegations, of fact
not part of plaintiff's cause of action, and, therefore, allegations which plaintiff was not
required to allege or plead. The effort of the plaintiff (appellant) to plead, in said paragraph X,
that the said respective vendees, Hopkins and Rutherford, took with notice, was merely an
effort to anticipate the probable defense that said vendees took without notice, and, in effect,
to negative the same. It was merely surplusage, and certainly did not operate to shift the
burden of pleading or proof of that defensive element to the plaintiff, so that his manner of
pleading it could be assailed. The defendant {respondent) was not adversely affected by
such voluntary, anticipatory pleading.
(respondent) was not adversely affected by such voluntary, anticipatory pleading. He could
deny it, but his failure to do so would not result in default against him. If he had denied it,
such denial would not, in the slightest, relieve him of pleading, affirmatively, in his answer,
all the facts essential to constitute defendant (respondent), Rutherford, a bona fide purchaser,
if such was his defense.
This principal is well stated in Bancroft's Code Pleading, vol. 1, sec. 168, pp. 287-289, as
follows:
Anticipating Defenses.
Sec. 168. In GeneralSince the only allegations essential to a complaint are those
required in stating the cause of action, it is not necessary in a complaint to anticipate or
negative any defense. Any allegations inserted for the purpose of intercepting and cutting off
a defense are superfluous and immaterial; they do not require an answer, and may render a
pleading demurrable for ambiguity or uncertainty or subject it to a motion to strike out, but a
complaint is not merely on this account bad as against a general demurrer. The only object to
be gained by a plaintiff in anticipating a defense and replying to it in advance is to put the
adverse party upon his oath without making him a witness, and the effect of allowing this
would be to establish a system of discovery in conflict with the spirit of the code or statute.
Rule appliedUnder the general rule just stated, although there is some authority to the
contrary, it is a general rule that a plaintiff need not allege freedom from contributory
negligence in his complaint; nor is it necessary for him to show affirmatively that the action is
not barred, that he performed conditions subsequent, or that he was unable to reduce the
damages. A complaint to rescind an unauthorized contract in writing for the sale of land is not
bound to anticipate a possible defense that an oral contract was partly performed by taking
possession, in connection with payments on purchase money, and need not negative the
fact of such possession.
taking possession, in connection with payments on purchase money, and need not negative
the fact of such possession. So too a plaintiff cannot by alleging in his complaint that no
payment has been made anticipate a plea of payment, and so avoid the necessity of replying to
it. See, also, Bell v. Pleasant, 145 Cal. 410, 78 P. 957, especially page 959, 104 Am.St.Rep.
61.
We are of the opinion, and hold, that the general demurrer, same being directed to
paragraph X of plaintiff's complaint, and particularly to the allegations whereby the plaintiff
attempted to plead that the defendant, Rutherford, and said defendant's vendor, Hopkins (as to
part of the land), entered into the said respective agreements with full knowledge' of
plaintiff's rights in the above-mentioned land, was futile and did not lie, said allegation being
no constituent or necessary part of plaintiff's cause of action. It follows that the said general
demurrer should have been overruled.
8. The defendant, Rutherford, on the ground of lack of jurisdiction of the person of the
said defendant, or the subject of the action, has demurred specially to the complaint, claiming,
in effect, that the action is barred, or the cause of action is unenforceable against the said
defendant, because there is no contractual relationship between the plaintiff and the said
defendant, Rutherford, as to said land, and there being no written contract or note/or
memorandum in writing evidencing any such contract between the plaintiff and the said
defendant, Rutherford. The said defendant (respondent here) has stated, in paragraph VII of
his brief: That the Statute of Frauds as delineated in Section 1529, N.C.L. 1929, as amended,
is operative as to the defendant, J.T. Rutherford, in that there is no note or memorandum in
writing between Plaintiff and Appellant and Defendant, J.T. Rutherford, and there is no part
performance of any kind or nature between these parties. That J.T. Rutherford is not a party in
interest in any manner, actually or constructively, with Plaintiff and Appellant.
That, if later evidence adduced should show that defendants, William R. Butner, Saphronia T.
Butner and Elmo M. Butner had a contractual relationship, either actual or constructive, with
Defendant, J.T. Rutherford, said relationship, if existing, would not and could not operate in
any manner to be considered as a contractual relationship between plaintiff and appellant and
J.T. Rutherford, and, therefore, the Statute of Frauds operates as a bar between the plaintiff
and appellant and defendant, J.T. Rutherford.
It clearly appears that the said respondent, Rutherford, was not made a party defendant, nor
was any attempt made to charge him with the duty to carry out the prior equity of appellant,
upon the basis of any privity of contract or of any contractual relationship existing between
them, but entirely upon the basis of privity of estate existing between the appellant and the
said respondent.
As to the portion of the land purchased by the respondent, Rutherford, from the Butners,
the appellant and said respondent take from common vendors; and as to the portion of the
land purchased from Hopkins, the respondent, Rutherford, took from an intermediate vendee
of their common vendors. There is, clearly, no privity of contract between the appellant and
the said respondent, Rutherford, it is true, but said respondent, by agreement with the
Butners, in the one instance, and by agreement with Hopkins, the Butners' vendee, in the
other instance, has taken land which, by virtue of the prior contract, and its effect, between
the appellant and the Butners, appears to be charged with a prior equity.
The law as to such a situation is stated in 49 Am.Jur., sec. 148, p. 171, and in 58 C.J. sec.
(86)2, p. 921 (the latter being cited by appellant). Said section 148 of 49 Am.Jur. is as
follows: It is well settled that one who takes a deed of land with knowledge of an
outstanding contract or title takes it subject to such contract or title, and the person who
purchases property with notice of a prior agreement by the vendor to convey to another
person is regarded as the trustee of the latter.
person is regarded as the trustee of the latter. Therefore, one purchasing property with notice
that the grantor has contracted to convey it to another may be compelled to perform the
contract in the same manner and to the same extent as his grantor would have been liable to
do had he not transferred the legal title. * * * See cases cited in footnotes 11 and 12,
including Moore v. Crawford, 130 U.S. 122, 9 S.Ct. 447, 32 L.Ed. 878.
9. The proper substantive defense of a subsequent purchaser against a prior equity such as
that claimed by appellant is affirmatively to allege and prove the facts essential to clothing
him with the status of a bona fide purchaser; that is to say, facts disclosing, among other
things, that he is a subsequent purchaser of the same land, for a valuable consideration and
without notice of the prior equity, and without notice of facts which upon diligent inquiry
would be indicated and from which notice would be imputed to him, if he failed to make such
inquiry.
10. As to the facts alleged in the complaint purporting to show part performance of the
Bailey contract, if such facts are satisfactorily proven, and if they are, in equity, held
sufficient to put the subsequent purchaser on notice, or he has actual notice of them, the
plaintiff would have the right to prevail. Such right, if it exists against respondent,
Rutherford's vendors, continues against him. Consequently, if sufficient part performance is
shown to take the case out of the statute of frauds as to the Butners, in relation to the part of
the land Rutherford purchased from them, it will so apply as to the respondent, Rutherford,
unless he had no notice of the facts constituting part performance. And such part performance
will, likewise, operate against Hopkins and Rutherford, as to the land purchased by Hopkins
from the Butners, and, in turn, from Hopkins by Rutherford, if both Hopkins and Rutherford
had such notice, actual or imputed, even though there was no note or memorandum in writing
between the appellant Bailey and the Butners. Part performance takes the place of a written
contract, or any note or memorandum thereof, and respondent, Rutherford, stands in the
shoes of his respective vendors, insofar as the statute of frauds is concerned.
a written contract, or any note or memorandum thereof, and respondent, Rutherford, stands in
the shoes of his respective vendors, insofar as the statute of frauds is concerned. Obviously,
the respondent, Rutherford, can require no note or memorandum in writing of any contractual
transaction with Bailey, the claimant of the prior equity, because there was no contract
between Rutherford and Bailey, and none was required in order to charge the land with
Bailey's equity.
11. If, under such circumstances, one not a bona fide purchaser could purchase land he
knew was contracted to another, who had done all he was required to do under his contract,
and could exact from the prior purchaser an additional contract with him, upon his own
terms, in order to satisfy the requirements of the statute of frauds, he could thus purchase the
land even though he had notice of the prior purchaser's equity, and virtually defeat it by
requiring a second purchase from him, the subsequent purchaser. Obviously, this would
involve double payment for the land, in order to supply a written memorandum of the
transaction. Thus, one not a bona fide purchaser would have all the advantages of such a
purchaser, without any justification in equity or justice. It is axiomatic that the statute of
frauds cannot be applied to aid in the perpetration of fraud.
There is absolutely no merit whatever to the contention of the respondent, Rutherford, that
the statute of frauds has any such application as he indicates; therefore, his special demurrer,
attempting to invoke the statute of frauds to defeat the jurisdiction of the court as to the
person of the respondent, Rutherford, and as to the subject matter of the action, because no
contract or memorandum in writing of any transaction between appellant and said respondent,
Rutherford, and no part performance of any contract between appellant and said respondent,
is alleged, should have been overruled, if same was submitted to the lower court. If the
special demurrer was not so submitted, and the record does not show that it was, and the
same was not ruled upon by the district court, it is not before us on this appeal, unless the
objection to the complaint embodied in the special demurrer was argued in the court
below, in support of the general demurrer.
not show that it was, and the same was not ruled upon by the district court, it is not before us
on this appeal, unless the objection to the complaint embodied in the special demurrer was
argued in the court below, in support of the general demurrer. The order of the district court,
sustaining the demurrer, does so upon the ground that the complaint failed to state facts
sufficient to constitute a cause of action. If the alleged ground of lack of jurisdiction was
argued there, as it has been here, in support of the general demurrer (and we will assume that
it was, and that said respondent's action in arguing same in this court was proper), it added
nothing in favor of said demurrer, and cannot serve to strengthen the judgment of the district
court. It is clear that the general demurrer should have been overruled, even though the
objection to the complaint, alleged in the special demurrer, be deemed included in the general
demurrer as an additional ground thereof.
What we have said above is decisive of the matter now before us. It is, of course,
unnecessary for this court to decide the questions raised by counsel for appellant, directed
against the form of the demurrer of the respondent, Rutherford, or the questions raised
concerning the merits of the various grounds or reasons urged in its support. No matter how
perfect in form, or how well grounded in substance the demurrer or demurrers would have
been if alleged against any essential element, or ingredient, of plaintiff's alleged cause of
action, same will not lie against plaintiff's complaint for any failure by plaintiff to allege that
the defendant, Rutherford, purchased with notice of plaintiff's rights in the land, or for any
defect in the complaint of the plaintiff in alleging that element. We believe we have
hereinbefore made clear that no such allegation was required of the plaintiff.
For the reasons stated, and we trust sufficiently explained, the judgment of the district
court is reversed, and the case remanded, with instructions to that court to make and enter its
order overruling the defendant {respondent) Rutherford's demurrer to plaintiff's
{appellant's) complaint, and that the defendant {respondent), Rutherford, have such
reasonable time as the district court may fix, within which to answer.
to make and enter its order overruling the defendant (respondent) Rutherford's demurrer to
plaintiff's (appellant's) complaint, and that the defendant (respondent), Rutherford, have such
reasonable time as the district court may fix, within which to answer.
____________
64 Nev. 22, 22 (1947) Hotels El Rancho v. Pray
HOTELS EL RANCHO, INC. Et Al., Appellants, v.
NEVADA PRAY, Respondent.
No. 3471
January 20, 1947. 176 P.2d 236.
1. Appeal and Error.
By failing to move to dismiss appeal before default had been cured by filing of transcript on appeal,
respondent waived her right to take advantage of failure to file transcript within thirty days after appeal
had been perfected and bill of exceptions settled and allowed. Rules of the Supreme Court, rule 2.
Motion to dismiss appeal because appellants had failed to file their record on appeal within thirty
days after appeal had been perfected and bill of exceptions had been settled was denied, where affidavit
showed that appeal had been taken and presented in good faith, that delay had not appreciably postponed
appearing of the appeal on its merits, and that failure to timely file record on appeal was excusable. Rules
of the Supreme Court, rule 2.
Rights conferred upon litigants by supreme court rules requiring briefs on appeal to be filed within
time specified are subject to power of supreme court, upon proper showing, to relieve party from his
default upon grounds of mistake, inadvertence or excusable neglect. Rules of the Supreme Court, rules 2,
11.
In determination of motions to dismiss appeals for failure to comply with supreme court rules,
supreme court favors a hearing of the case upon its merits. Rules of the Supreme Court, rules 2, 11.
A large discretion is committed to supreme court in exercise of its judgment as to whether a party
should be relieved from its default in failing to file briefs on appeal within time specified in supreme
court rules. Rules of the Supreme Court, rules 2, 11.
Supreme court would not dismiss appeal because of appellant's failure to file their opening briefs on
appeal within fifteen days after filing of record on appeal as required by supreme court rule, where
supreme court was impressed with showing made that appeal had been taken in good faith and that delay
had not appreciably postponed hearing on appeal on its merits. Rules of the Supreme Court, rule 11.
Appeal from Eighth Judicial District Court, Clark County; A.S. Henderson, Judge.
Suit by Nevada Pray against Hotels El Rancho, Inc., and others. From an adverse
judgment, the defendants appeal. On motion to dismiss appeal. Motion denied.
Leo A. McNamee and George Rudiak, both of Las Vegas, for Appellants.
Lewis & Hawkins, of Las Vegas, for Respondent.
OPINION
By the Court, Eather, C.J.:
This is a motion to dismiss an appeal. The motion is based on the ground: (1) That said
appellants did not cause to be filed their record on appeal within thirty days after the appeal
had been perfected and bill of exceptions had been settled, as required by rule II of this court.
(2) That the said appellants did not cause to be filed their opening brief within fifteen days
after the filing of the record on appeal, as required by rule XI of this court.
By stipulation the bill of exceptions was settled and allowed on August 23, 1946.
The transcript on appeal was filed in this court on September 23, 1946. The time for
appellants to file their opening brief expired, therefore, on October 8, 1946.
Notice of the presentation of this motion to dismiss was served on the appellants on
October 9, 1946, and was filed in this court on October 14, 1946.
On October 23, 1946, appellants' opening brief was filed.
It appears from the affidavit filed on behalf of the appellants in opposition to the motion:
That on the 15th day of July, 1946, Frank McNamee, Jr., Esquire, of the firm of
McNamee and McNamee of counsel for the defendants, was appointed to the Bench and took
office as Judge of Department No. 1 of the Eighth Judicial District Court of the State of
Nevada. That by reason of said appointment, the full burden of legal matters pending in the
files of the legal firm of McNamee and McNamee was placed upon Leo A. McNamee, the
remaining partner, who, in consequence thereof, was unable to devote his full time and
attention to instant case, and requested your Affiant to assume the primary obligation of
preparing the Transcript of the Record on Appeal and Appellants' briefs herein, which
obligation Affiant accepted.
That your Affiant is newly admitted to the practice of Law in the State of Nevada and has
had no previous experience in connection with the appellate procedure of this Honorable
Court. That, until served with Plaintiff's Notice of Motion to Dismiss Defendants' and
Appellants' Appeal, your Affiant was laboring under the mistaken belief that the defendants
and appellants had thirty (30) days from the date of filing of the Transcript of the Record on
Appeal within which to file and serve their points and authorities or brief.
1, 2. The transcript on appeal was filed before the motion to dismiss was noticed or made.
By her failure to move to dismiss before the fault had been cured by the filing of the transcript
on appeal, respondent waived her right to take advantage of the provisions of said rule II.
Styris v. Folk, 62 Nev. 208, 139 P.2d 614, 146 P.2d 782; Squires v. Mergenthaler Linotype
Co., 60 Nev. 62, 99 P.2d 20. Furthermore, the affidavit shows that the appeal has been taken
and presented in good faith, that the delay has not appreciably postponed the hearing of
the appeal on its merits, and that the failure to timely file the record on appeal was
excusable.
appeal has been taken and presented in good faith, that the delay has not appreciably
postponed the hearing of the appeal on its merits, and that the failure to timely file the record
on appeal was excusable.
As to the second ground of the motion that the said appellants did not cause to be filed
their opening brief within fifteen days after the filing of the record on appeal as required by
rule XI of this Court, we feel that the circumstances which occasioned the delay and
oversight of counsel were such as to appeal strongly to the discretionary power of the court,
and would, without doubt, have justified an order extending the time for filing the opening
brief if they had been brought to our attention before the motion to dismiss was made. If so,
there is no reason why we may not after the motion relieve the appellants from the
consequences of their delay.
3-6. While it is true that the rules of the court requiring briefs on appeal to be filed within
the time specified undoubtedly conferred rights which may be enforced by litigants, it is
equally certain that the rights so conferred are subject to the right and power of the court,
upon proper showing, to relieve the party from his default upon the ground of mistake,
inadvertence or excusable neglect. Brooks v. Union Trust & Realty Co., 146 Cal. 134, 79 P.
843. It has been often stated that courts, in the determination of such motions as far as
possible, should lean toward a hearing of the case upon its merits. It may be said, also, that
manifestly a large discretion is committed to the court in the exercise of its judgment as to
whether a party should be relieved from such default. Pacific Power Co. v. State, 31 Cal.
App. 719, 162 P. 641, 643. The appellants filed their brief on October 23, 1946. The motion
to dismiss the appeal was served on appellants on October 9, 1946, and was filed in this court
on October 14, 1946. We have no reason to question the good faith of appellants or their
counsel, and we are impressed with the showing made that the appeal has been taken in good
faith and the delay has not appreciably, if at all, postponed the hearing on the appeal on its
merits.
not appreciably, if at all, postponed the hearing on the appeal on its merits. Moreover, we
have previously declared it the policy of the law that cases should be disposed of in this court
on their merits wherever possible. In re McGregor, 56 Nev. 407, 48 P.2d 418, 55 P.2d 10;
Stratton v. Raine, 45 Nev. 7, 192 P. 471; Smith v. Taecker, 127 Cal.App. 78, 15 P.2d 193;
Bourne v. Root, 117 Cal.App. 618, 4 P.2d 264; Tyner v. Axt, 111 Cal. App. 187, 295 P. 97;
Righetti v. Monroe, Lyon & Miller, 106 Cal.App. 346, 289 P. 650; Fishman v. Silva et al.,
108 Cal.App. 121, 291 P. 340.
The motion should be denied and it is so ordered.
Respondent may have to and including fifteen days after receiving notice of this decision,
within which to serve and file her answering points and authorities to the appellants' opening
brief.
____________
64 Nev. 26, 26 (1947) Schneider v. District Court
VIRGINIA E. SCHNEIDER, Petitioner, v. SECOND JUDICIAL DISTRICT COURT OF
THE STATE OF NEVADA, in and for the County of Washoe Et Al., Respondents.
No. 3468
January 25, 1947. 176 P.2d 797.
1. Divorce.
Unless district court reverses jurisdiction for purpose of later modifying or changing decree of
divorce in regard to the allowance for the support, maintenance, and education of children, or alimony for
support of wife, either in decree itself or by agreement between parties to action, which agreement is
confirmed by court and made a part of decree, generally district court has no jurisdiction to modify
original decree.
2. Divorce.
Where application for modification of divorce decree with respect to support of minor children was
not made under district court rule relating to modification in certain circumstances and court did not
expressly reserve jurisdiction in decree, and there was no provision in agreement showing intent of
parties that court retain jurisdiction, district court was without jurisdiction to modify decree.
3. Divorce.
Where there was no ambiguity in divorce decree which approved settlement agreement and decree
could be enforced in its entirety and consistent with intention of parties without necessity for a
modification and neither decree nor agreement expressly reserved jurisdiction in court to modify decree,
intention to reserve jurisdiction for such purpose could not be implied.
4. Divorce.
The statute giving district court continuing jurisdiction to modify or change a divorce decree with
reference to custody of minor children does not authorize the modification of decree with respect to
support of minor children or alimony for wife. Comp. Laws, sec. 9462.
5. Mandamus.
Where district court was without jurisdiction, writ of mandamus to compel it to take jurisdiction to
hear a particular motion was denied.
Original proceeding in mandamus on the petition of Virginia E. Schneider against the
Second Judicial District Court of the State of Nevada in and for the County of Washoe and
Honorable A.J. Maestretti, Judge of Department Two thereof, to compel respondents to
assume jurisdiction and hear petitioner's motion to modify a decree of divorce. Writ denied.
Platt & Sinai, of Reno, and George I. Davor, for Petitioner.
Charles M. Merrill and Leslie B. Gray, both of Reno, for Respondents.
OPINION
By the Court, Brown, District Judge:
This matter is an original proceeding in mandamus to command the Second judicial
district court of the State of Nevada, in and for the county of Washoe, and Honorable A.J.
Maestretti, judge of department No. 2 thereof, to assume jurisdiction and hear the petitioner's
motion to modify the decree of divorce made and entered on the 12th day of April, A. D.
1943, in an action entitled Clare McD.
12th day of April, A. D. 1943, in an action entitled Clare McD. Schneider, plaintiff, versus J.
Walter Schneider, defendant, No. 75042, in said department of said court.
The pertinent facts for the determination of the question now before the court are as
follows:
In addition to the decree granting a divorce to Clare McD. Schneider, the plaintiff, on
April 12, 1943, as above stated, the judgment also provided as follows:
It is further ordered, adjudged, and decreed, that said agreement entered into by the
plaintiff and the defendant under date of February 19, 1943, a copy of which was introduced
in evidence in this case and marked Plaintiff's Exhibit A,' be, and the same is hereby
approved and adopted by the Court; that the custody of Mary Constance Schneider, Clare
Angela Schneider, Janet Schneider and J. Walter Schneider, Jr., the minor children of the
parties, be and the same hereby is awarded in accordance with the terms thereof; and that said
parties be, and they are hereby ordered and directed to comply therewith and to execute the
terms thereof.
The agreement between the parties dated February 19, 1943, which was approved and
adopted by the court, provided partially as follows:
This Agreement made this 19th day of February, 1943, by and between Clare McD.
Schneider, first party and J. Walter Schneider, second party, witnesseth:
The parties were married April 25, 1928, and since that time have been and are now wife
and husband. There are four children the issue of said marriage whose names and ages are:
Mary Constance, age 14 years; Clare Angela, age 11 years; Janet, age 8 years; J. Walter, Jr.,
age 6 years. The parties separated in or about the month of December, 1939, and since that
time have lived separate and apart. They now desire and intend hereby permanently to settle
all property and financial affairs between themselves and to provide for the custody and the
care, support and education of said minor children, all as hereinafter set out.
Now, therefore, in consideration of the premises and the mutual promises herein
contained, it is agreed as follows:
(Paragraphs 1, 2, 3, and 4) * * *
5. Second party shall pay to first party monthly, commencing on the first day of February,
1943, the sums of money as follows:
(a) For the care, support and maintenance of first party, the sum of six hundred ($600.00)
dollars per month during her lifetime; provided, however, in the event of her remarriage, such
payments shall forthwith cease.
(b) For the care, support, maintenance and education of said four minor children, the sum
of four hundred ($400.00) dollars per month, being the sum of one hundred ($100.00) dollars
for each of said children, during their minority or until they may marry prior thereto;
provided, however, when and as each of said children attains majority, or marries prior
thereto, then, said payments as to such child shall forthwith cease, and in the event of the
prior death of any one of said children, then, said payments as to such deceased child shall
forthwith cease.
(c) Said payments in this paragraph provided are conditioned upon the fact that second
party's present annual earned income, after payment of federal and state income taxes, is in
excess of twenty-five thousand ($25,000.00) dollars per year. In the event his said income
becomes substantially reduced, then, said payments shall be reduced proportionately during
the period of any such reduction of his said income; provided, however, in the event his said
income shall be reduced below the sum of twenty thousand ($20,000.00) dollars per year,
then, the reduction of said payments, as to the portion of his earnings less than said sum of
twenty thousand ($20,000.00) dollars, shall be reasonable under the circumstances rather than
arbitrarily proportionate thereto; and in the event the parties shall fail to agree as to such
reduction, then, the matter shall be settled by arbitration before a judge of the Superior
Court, or other suitable arbitrator, mutually selected by the parties, and the decision of
such arbitrator shall be conclusive and binding upon the parties with the same force and
effect as a judgment of the Superior Court.
by arbitration before a judge of the Superior Court, or other suitable arbitrator, mutually
selected by the parties, and the decision of such arbitrator shall be conclusive and binding
upon the parties with the same force and effect as a judgment of the Superior Court.
(d) Said payments are likewise conditioned upon the fact that second party remains alive.
In the event of his prior death, then, all payments provided in subparagraph (a) above to be
made for the benefit of first party shall forthwith cease, the insurance hereinafter provided
being accepted by her in lieu thereof, but the payments provided in sub-paragraph (b) above
to be made for the benefit of the children shall continue as a claim against his estate unless
and until he shall have made equally adequate provision by will, trust or otherwise for their
said care, support, maintenance, and education. * * *
The defendant in said action, J. Walter Schneider, who was the former husband of the
plaintiff, Clara McD. Schneider, and the father of the four minor children, made the payments
monthly for the support of the children, together with the $600 monthly payments for the
support of his former wife, up to and including the time of his death on December 14, 1944.
On November 30, 1935, the mother of said defendant, J. Walter Schneider, created a trust
in which the said defendant, J. Walter Schneider, was a beneficiary during his lifetime, and
upon his death his four minor children succeeded to his beneficial rights under the trust, and
ever since his death, and now are, receiving the sum of $300 per month.
On April 13, 1943, the petitioner in this proceeding, Virginia E. Schneider, and J. Walter
Schneider, said defendant, became husband and wife and were such up until the time of his
death, at which time both were residents of and domiciled in Los Angeles, California. The
petitioner was appointed administratrix of the estate of J. Walter Schneider, deceased, on
January 12, 1945, by an order duly made and entered by the superior court of the State of
California in and for the county of Los Angeles.
court of the State of California in and for the county of Los Angeles. She thereafter, and on
the same day, qualified as such administratrix and now is the duly appointed, qualified, and
acting administratrix of said estate.
On the 7th day of June, 1945, said plaintiff, Clare McD. Schneider, duly presented to the
petitioner, as administratrix of the said estate, five several verified claims, one in her
individual capacity in the sum of $1,661.78, and four in her capacity as guardian of the estates
of the said four minor children in the total sum of $44,100. These claims have been neither
rejected nor allowed, pending disposition of the proceedings in the district court.
By an order duly made by the judge of said department No. 2 of said court on January 21,
1946, the petitioner, in her capacity as administratrix of the estate of J. Walter Schneider,
deceased, was substituted as party defendant for J. Walter Schneider in action No. 75042,
hereinabove referred to. On the same day the petitioner filed in said court and cause a notice
of motion supported by an affidavit, for a modification of said decree of divorce made on
April 12, 1943. The proposed modification reads as follows:
It is further ordered, adjudged, and decreed, that said agreement entered into between
plaintiff and defendant under date of February, 1943, a copy of which was introduced in
evidence in this case, and marked Plaintiff's Exhibit A,' be, and the same is hereby approved
and adopted by the Court, except as hereinafter provided; the custody of Mary Constance
Schneider, Clare Angela Schneider, Janet Schneider, and J. Walter Schneider, Jr., the minor
children of the parties, be, and the same hereby is awarded in accordance with the terms
thereof, and that said parties be, and they are hereby ordered and directed to comply therewith
and to execute the terms thereof, except as hereinafter provided.
It is further ordered, adjudged and decreed that pursuant to notice of motion, duly
noticed, heard and submitted, it appears that the above named defendant, J. Walter Schneider,
died on the 14th day of December, 1944, and that his surviving widow, Virginia E. Schneider,
is the duly appointed, acting, and qualified administratrix of his estate, and as such
administratrix has been properly and regularly substituted for said defendant as the moving
party herein; and it further appearing that the said defendant up to the time of his death had
fully and faithfully complied with the order and decree of the court heretofore entered, and
has paid to the said plaintiff up to the time of his death the sum of $400.00 per month for the
maintenance and support of the minor children of the parties; and it further appearing that
because and on account of the death of said defendant, the said plaintiff ever since has been,
and now is, receiving for the maintenance and support of said minor children, from and out of
a trust in which said children are beneficiaries, and each of them is a beneficiary, the sum of
$300.00 per month; and it further appearing that the said plaintiff, in her capacity as guardian
of the estates of said minor children, has filed claims against the estate of the said defendant,
based upon the decree of divorce, and the agreement approved thereby, in the aggregate sum
of $44,100.00, although as said guardian she has been receiving the sum of $300.00 per
month, as aforesaid, for the maintenance and support of said children; and it further appearing
that should said claims be allowed said estate will become insolvent, and the surviving
widow of said decedent will be left substantially penniless and destitute, and the Court being
duly advised, and good cause appearing therefor,
It is further ordered, adjudged and decreed that subdivision (b), paragraph 5 of the
agreement between the parties and approved by the Court in its said Decree of Divorce, be,
and the same hereby is disapproved, and that there be substituted, and there is hereby
substituted therefor, the following:
that there be substituted, and there is hereby substituted therefor, the following:
For the care, support, maintenance and education of said four minor children, the sum of
$100.00 a month, being the sum of $25.00 per month for each of said children, during their
minority or until they may marry prior thereto; provided, however, when and as each of said
children attains majority, or marries prior thereto, then said payments as to such child shall
forthwith cease, and in the event of the prior death of any one of said children, then, said
payments as to such deceased child shall forthwith cease.
It is further ordered, adjudged and decreed that this Modified Decree shall take effect and
be in full force and effect as and from the date of the death of the said defendant, to-wit, as
and from December 14, 1944.
The plaintiff in said action, Clare McD. Schneider, thereafter and on the 16th day of April,
1946, filed her affidavit in opposition to the petitioner's motion to modify said decree of
divorce. Thereafter, and on the 19th day of April, 1946, said motion to modify was duly
made, and came on for hearing before the respondent Court and the Honorable A.J.
Maestretti, judge of department two thereof and after argument and submission the court
denied said motion upon the sole and only ground that the court had no jurisdiction under the
provisions of the Nevada statute. The proceedings were dismissed and this petition for a writ
of mandamus followed.
In applying for a writ of mandamus the petitioner relies principally upon the case of
Aseltine v. Second Judicial District Court, 57 Nev. 269, 62 P.2d 701, as authority for this
Court to grant the writ.
1. This court has on many occasions in the past laid down the settled rule of law in this
state that unless the district court reserves jurisdiction for the purpose of later modifying or
changing the decree in regard to the allowance for the support, maintenance, and education of
a minor child or children, or alimony for the support of the wife, either in the decree itself,
or by agreement between the parties to the action, which agreement is approved, ratified,
and confirmed by the court and made a part of the decree, then the district court has no
jurisdiction to modify, alter or change the original decree, except under the provisions of
rule XLV of the district court.
of a minor child or children, or alimony for the support of the wife, either in the decree itself,
or by agreement between the parties to the action, which agreement is approved, ratified, and
confirmed by the court and made a part of the decree, then the district court has no
jurisdiction to modify, alter or change the original decree, except under the provisions of rule
XLV of the district court. Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638, Dechert v. Dechert,
46 Nev. 140, 205 P. 593; Lindsay v. Lindsay, 52 Nev. 26, 280 P. 95, 67 A.L.R. 824; Lewis v.
Lewis, 53 Nev. 398, 2 P.2d 131; State ex rel. Jones v. Second Judicial District Court, 59 Nev.
460, 96 P.2d 1096, 98 P.2d 342; Lauer et al. v. Eighth Judicial District Court, 62 Nev. 78,
140 P.2d 953.
2. There is no contention in the present case that application to modify the decree was
ever made under the provisions of rule XLV of the district court. Further, the court did not
expressly reserve jurisdiction in the decree itself and there is no provision in the agreement
showing intent of the parties that the court should retain jurisdiction of the matter to later
modify or change the decree.
The petitioner contends that the facts in the Aseltine case are analogous to the facts in this
state, and, therefore, it was the intention of the court that jurisdiction be reserved by
implication.
In the Aseltine case the court came to the conclusion that the district court reserved
jurisdiction by implication in order that the intention of the parties as expressed in the
agreement should be made effective.
This case presents a different situation. The agreement which was approved and adopted
by the court and made a part of the decree expressly provides in part as follows:
* * * and in the event the parties shall fail to agree as to such reduction then the matter
shall be settled by arbitration before a judge of the Superior Court, or other suitable arbitrator,
mutually selected by the parties, and the decision of such arbitrator shall be conclusive and
binding upon the parties with the same force and effect as a judgment of the Superior
Court."
parties, and the decision of such arbitrator shall be conclusive and binding upon the parties
with the same force and effect as a judgment of the Superior Court.
The intention of the parties as expressed in the agreement itself manifests a determination
on their part that the Nevada Court should not have anything further to say or do in regard to
the matter of arbitration. If such was not their intention, then why did they designate a judge
of the superior court of California as an arbitrator in the event the parties fail to agree as to a
reduction in the payments?
The most serious question presented by petitioner arises from the trust created by Mr.
Schneider's mother, and paragraph 5(d) of the agreement of February 19, 1943. Regarding
this matter, petitioner's counsel states her position as follows: The accompanying affidavits
by both parties, made part of this record, establish that during the lifetime of the deceased
husband he was a beneficiary under a trust created by his mother, and that upon his death his
children succeeded to his beneficial rights under the trust, and ever since his death, and now
are, receiving the sum of $300 per month. The only possible escape from the effect of this
exception would be the contention that he did not personally create the trust. But in the
interest of fair dealing and reasonable interpretation, may it not be rationally concluded that it
was his main intention that his children should be supported to the extent of $400 per month,
and that if they received from a trust the sum of $300 per month, his estate should only be
bound by the difference, or $100 a month? Further, by his own death did he not accomplish
the same objective, as though he created the trust himself, and in practical effect, should not
this clause of the agreement be construed as though he did create it? From a reading of the
entire agreement, it is difficult to believe that he intended that the children be supported to the
extent of $700 per month instead of $400, and that his estate should be rendered insolvent in
order to pay this unintended amount.
The trust created by decedent's mother is dated November 30, 1935. This is more than
seven years before the agreement entered into by and between decedent and his first wife on
February 19, 1943. There is no uncertainty or ambiguity in either the trust of November 30,
1935, or paragraph 5(d) of the agreement of February 19, 1943. The provision in paragraph
5(d) of the 1943 agreement makes no reference whatever to the trust of November 30, 1935.
There is nothing in the 1943 agreement nor in the divorce decree from which it can be
inferred that it was the intention either of the court or of the parties that jurisdiction was
reserved, or to be reserved, to modify the decree with respect to the support of the children.
3. We must keep in mind the distinction between the matter of enforcement of a judgment
and decree, and the necessity of modification, alteration or change of a judgment and decree
in order to make enforcement of it possible. In the instant case the decree may be enforced in
its entirety and consistent with the intention of the parties without any necessity for a
modification, alteration, or change.
Applying the same rules used by this court in the Aseltine case to the present case, there is
no ambiguity or uncertainty in the decree made on April 12, 1943, which adopted and
approved the agreement. Therefore, there should be no implication of an intention to reserve
jurisdiction to later modify or change the decree.
4. It is true that the law in this state under section 9462, N.C.L. 1929, gives the district
court continuing jurisdiction to modify or change a decree of divorce with reference to the
custody of minor children. State ex rel. Jones v. Second Judicial District Court, 59 Nev. 460,
96 P.2d 1096, 98 P.2d 342; State ex rel. Groves v. First Judicial District Court, 61 Nev. 269,
125 P.2d 723. However, unless jurisdiction is reserved by the court in the original decree or
by agreement between the parties and made a part of the decree, with reference to support of
the minor children or alimony for the wife, the court is without jurisdiction to modify or
change the decree except under rule XLV of the district court.
the minor children or alimony for the wife, the court is without jurisdiction to modify or
change the decree except under rule XLV of the district court. This situation appears to be
anomalous. Nevertheless, it is so provided by statute and has been settled as the law by the
decision of this court on numerous occasions.
The only remedy for this unfortunate state of the law lies entirely with the legislature by
the enactment of a provision similar to sections 138 and 139 of the civil code of California
which provide that in regard to orders for the custody and support of the children the court
may at any time modify or vacate the same, and concerning orders for the permanent
support of the wife and children the court may from time to time modify its orders in these
respects.
If such legislation were enacted in this state, the district courts would then have continuing
jurisdiction not only regarding custody of minor children, but also in connection with matters
of support, maintenance, and education of the minor children and alimony for the wife.
5. The district court being without jurisdiction to hear the motion to modify or change the
original decree of divorce, the writ is denied.
Horsey and Taber, JJ., concur.
Ducker, J., being ill, the Governor appointed Hon. Merwyn H. Brown, Judge of the Sixth
Judicial District, to act in his place.
____________
64 Nev. 38, 38 (1947) Norman v. City of Las Vegas
BARBARA JEANE NORMAN Et Al., Appellants, v. CITY OF LAS VEGAS, NEVADA, a
Municipal Corporation Et Al., Respondents.
No. 3470
February 7, 1947. 177 P.2d 442.
1. Municipal Corporations.
Plaintiffs who were associated only with business of dealing in liquor could not complain of
ordinance insofar as it provided regulatory measures for taxi drivers and for employees of gambling
houses.
The board of city commissioners of city of Las Vegas could enact ordinance requiring persons of
enumerated classifications to submit to fingerprinting and photographing. Comp. Laws, secs. 3681, 3690,
3690.17, 3691; Laws 1911, c. 132, sec. 31, subds. 10, 81, as amended by Laws 1939, c. 155, sec. 10.
3. Constitutional Law.
The right to civil liberties guaranteed by the fourteenth amendment is qualified and not absolute, and
is subject to legislative restraint and regulation reasonably imposed in exercise of police powers.
U.S.C.A.Const. Amend. 14.
Plaintiffs not claiming to be persons with criminal records could not complain of ordinance insofar as
it required disseminating facts of a prior criminal record of employees in liquor business.
Court could not interfere with discretion of board of commissioners of city of Las Vegas in enacting
ordinance requiring persons of enumerated classifications to submit to fingerprinting and photographing,
or determine wisdom of the ordinance unless discretion had been exercised arbitrarily or through mere
whim or caprice or was grossly unjust or oppressive.
An ordinance of city of Las Vegas requiring persons of enumerated classifications to submit to
fingerprinting and photographing was not invalid on ground that factual or statistical basis for exercise of
such discretion by board of commissioners did not affirmatively appear, and that ordinance could not be
sustained in absence of proof tending to establish its need, in view of provision which was in effect a
finding that the safety, morals, good order and general welfare of inhabitants will be better protected
and served by enforcement of its provisions.
An ordinance of city of Las Vegas requiring fingerprinting and photographing of persons seeking
employment in establishments selling alcoholic beverages at retail for consumption on the premises
was not arbitrary because ordinance exempted those serving food with drinks,
notwithstanding exemption might permit some evasion through serving of "rubber
sandwiches" with drinks, since court must sustain classification if there is any
reasonable basis therefor.
on the premises was not arbitrary because ordinance exempted those serving food with drinks,
notwithstanding exemption might permit some evasion through serving of rubber sandwiches with
drinks, since court must sustain classification if there is any reasonable basis therefor.
An ordinance of city of Las Vegas insofar as it requires fingerprinting and photographing of persons
seeking employment in establishments selling alcoholic beverages at retail for consumption on the
premises and requires imprints to be forwarded to California and federal bureaus of identification, and
providing that information received should be treated as confidential is not unconstitutional as violating
the privileges and immunities clause of the federal constitution or the Nevada constitutional guaranties of
life, liberty, and the pursuit of happiness. Const., art. 1, sec. 1; U.S.S.A.Const. art. 4, sec. 2.
Appeal from Eighth Judicial District Court, Clark County; Frank McNamee, Judge.
Action by Barbara Jeane Norman and others against the city of Las Vegas, Nevada, a
municipal corporation and others to enjoin enforcement of a city ordinance requiring
employees of establishments where alcoholic beverages are sold at retail for consumption on
the premises, to register with the police department of the city and submit to fingerprinting
and thumbprinting and photographing, wherein defendants filed a demurrer. From an order
vacating the temporary restraining order and sustaining the general demurrer to the complaint,
the plaintiffs appeal. Affirmed.
See, also, 63 Nev. 473, 175 P.2d 429.
Morse & Graves, of Las Vegas, for Appellants.
C. Norman Cornwall, of Las Vegas, for Respondents.
OPINION
By the Court, Badt, District Judge:
Do the provisions of sections 3, 4, and 5 of ordinance No. 305 of the city of Las Vegas,
requiring the fingerprinting and photographing of all persons seeking employment in
establishments selling alcoholic beverages at retail for consumption on the premises
{excepting the employees of cafes and restaurants) and requiring the imprints to be
forwarded to the California and Federal bureaus of identification, and requiring that the
chief of police of Las Vegas be notified of the returns thereon, and making it unlawful for
the owners of establishments to employ such persons without such registration, violate
the privileges and immunities clause of the United States constitution, art.
printing and photographing of all persons seeking employment in establishments selling
alcoholic beverages at retail for consumption on the premises (excepting the employees of
cafes and restaurants) and requiring the imprints to be forwarded to the California and Federal
bureaus of identification, and requiring that the chief of police of Las Vegas be notified of the
returns thereon, and making it unlawful for the owners of establishments to employ such
persons without such registration, violate the privileges and immunities clause of the United
States constitution, art. 4, section 2, or Nevada's constitutional guarantees of life, liberty and
the pursuit of happiness, art. 1, sec. 1?
The trial court answered this question in the negative and sustained a general demurrer to
the complaint (which sought a declaratory judgment, declaring the sections void and
enjoining their enforcement) and vacated the temporary restraining order that had been issued
ex parte restraining the enforcement of the ordinance. The plaintiffs declined to plead over
and appealed from the order. No final judgment was entered, but both parties have treated the
order as a final disposition of the case in the district court. The applicable parts of the
ordinance, generally and loosely described above, are as follows:
Section 1, subdivision B: Employees of Establishments where Alcoholic Beverages are
sold at Retail on the Premises' shall mean bartenders, waiters and any other person who
serves alcoholic beverages to patrons for consumption on the premises, save and excepting
the employees of cafes and restaurants.
Section 2: It is hereby declared to be the policy of the City of Las Vegas, as herein
expressed by the Board of Commissioners of the City of Las Vegas, that the safety, morals,
good order and general welfare of the inhabitants of the City of Las Vegas will be better
protected and served, by requiring the registration with the Police Department of said City,
and the thumb, finger-printing, and photographing of all employees of gambling houses, taxi
drivers, and employees of establishments where alcoholic beverages are sold at retail and
served on the premises, as such employees and establishments are defined in Section 1 of
this Ordinance."
gambling houses, taxi drivers, and employees of establishments where alcoholic beverages
are sold at retail and served on the premises, as such employees and establishments are
defined in Section 1 of this Ordinance.
Section 3 of said ordinance provides as follows: It shall be unlawful for any person to
accept employment in any gambling house, as a driver or operator of any taxicab, or in any
establishment where alcoholic beverages, as defined in Section 1 hereof, are sold at retail and
consumed on the premises, unless such person shall first have registered his name and
address with the Police Department of the City of Las Vegas and shall have had his thumb,
fingerprints, and photograph taken and filed with the Bureau of Identification of the City of
Las Vegas.
Section 4 of said ordinance provides as follows: Upon such employee complying with the
provisions of Section 3 hereof, the Chief of Police shall issue a certificate to such employee
showing compliance therewith, and the Bureau of Identification shall forthwith send a copy
of such imprints to the Bureau of Identification of the State of California, and one copy to the
Identification Bureau of the Federal Bureau of Investigation at Washington, D.C., with the
request that all information as to the previous record, if any, of such person, be forthwith
transmitted to the Bureau of Identification at Las Vegas, Nevada. Upon receipt of such
information the Bureau of Identification at Las Vegas shall forthwith notify the Chief of
Police. The information, if any, received as aforesaid shall be treated as confidential and shall
only be made accessible to the Mayor and Board of Commissioners of the City of Las Vegas,
the employer of such person, and to law enforcement officer.
Section 5 of said ordinance provides as follows: It shall be unlawful for any person, firm
or corporation operating a gambling game, taxicab or taxicabs, or an establishment where
alcoholic beverages are sold at retail for consumption on the premises, to employ any person
required to register with the Police Department by the terms of this Ordinance, unless such
person shall have so registered with the Police Department of the City of Las Vegas and
had his thumb, fingerprints and photograph taken and filed with the Bureau of
Identification of the City of Las Vegas."
by the terms of this Ordinance, unless such person shall have so registered with the Police
Department of the City of Las Vegas and had his thumb, fingerprints and photograph taken
and filed with the Bureau of Identification of the City of Las Vegas.
Several preliminary matters require attention. Plaintiff Norman is a waitress employed in
an establishment at Las Vegas where alcoholic beverages are served to patrons at retail for
consumption on the premises, and in the course of her employment she serves alcoholic
beverages to patrons for consumption on the premises. Plaintiff McGovern is likewise an
employee of an establishment at Las Vegas where alcoholic beverages are sold at retail on the
premises, and his employment consists of dispensing alcoholic beverages at retail on the
premises to patrons of his employer for consumption on the premises. These two plaintiffs
allege that they bring this action on their own behalf and on behalf of all persons similarly
situated. Plaintiff Bartenders Union, Local 165, is an organization consisting of bartenders,
some of whom are employees of establishments in the City of Las Vegas where alcoholic
beverages are sold at retail on the premises to patrons for consumption on the premises.
Plaintiff Culinary Workers Union, Local 226, is an organization in the City of Las Vegas
whose members comprise waiters and waitresses, some of whom are duly and regularly
employed at Las Vegas in establishments where alcoholic beverages are sold at retail on the
premises to patrons for consumption. Both plaintiff unions allege that they join as plaintiffs
on their own behalf and also in a representative capacity on behalf of all of their members so
employed.
Respondent contends (1) that neither of the plaintiff associations or organizations has such
existence in law as to be capable of maintaining an action in its own name; (2) that neither is
a real party in interest; (3) that neither is a citizen of the United States and therefore not
entitled to the privileges and immunities guaranteed by the constitution of the United States;
{4) that this is not a true class suit and that the two individual personal plaintiffs may not
sue on behalf of all persons similarly situated.
(4) that this is not a true class suit and that the two individual personal plaintiffs may not sue
on behalf of all persons similarly situated. By reason of the views hereinafter expressed it
becomes unnecessary to pass upon these points.
1. Appellants go to some length in attacking the validity of the ordinance as applied to
taxi drivers and gambling house employees. Respondent also has devoted a material part of
its brief to an exposition of the reasonableness of the classification of taxi drivers and
gambling house employees as subject to the requirements of the ordinance. The learned
district judge, in dealing with this phase of the case, said: The plaintiffs, being associated in
one form or another only with the business of dealing in liquor, as appears from the
complaint, cannot legally complain of the ordinance insofar as it provides regulatory
measures for taxi drivers and for employees of gambling houses. Adams v. American
Agricultural Chemical Co., 78 Fla. 362, 82 So. 850; Murphy v. People of California, 225 U.S.
623, 32 S.Ct. 697, 56 L.Ed. 1229, 41 L.R.A.,N.S., 153. In other words, the validity of the
ordinance with respect to taxi drivers and gambling house employees is not involved in this
action.
We are in entire accord with this view. Although appellants complain that there is an
unreasonable discrimination between taxi drivers, on the one hand, and chauffeurs, bus
drivers, station wagon drivers, truck drivers, etc., on the other, none of the plaintiffs in this
case would be affected by such alleged unreasonable discrimination, would not suffer
thereby, and is not in position to complain. Murphy v. People of California, supra [225 U.S.
623, 32 S.Ct. 699].
2. It is further maintained that the board of city commissioners of the city of Las Vegas,
was without statutory authority to adopt the ordinance in question. We consider the authority
ample. N.C.L.1931-41 Sup. sec. 3681, 3690, 3691, 3690.17. Las Vegas Charter, Laws 1911,
c. 132, sec. 31, subds. 10, 81, as amended, Stats.Nev.1939, chap.
Stats.Nev.1939, chap. 155, sec. 10; State ex rel. Grimes v. Board of Commissioners, 53 Nev.
364, 1 P.2d 570.
We are confronted then with the question presented at the beginning of this opinion,
namely, whether the sections in question are valid and are not in violation of the
constitutional rights asserted, so far as these sections apply to persons accepting employment
in an establishment where alcoholic beverages are sold at retail and consumed on the
premises. Although the parties stipulated to submit their appeals without oral argument, the
opening and reply briefs of the appellants insist that no case has been cited to the court in
which an ordinance or statute goes as far as Las Vegas ordinance No. 305; that the ordinance
deprives the personal plaintiffs of their right to work; and that it invades their right of privacy,
which they maintain to be fundamental. In view of the authorities upon which the
appellants rely, attention should be called at the outset to the fact that the Las Vegas
ordinance does not require or contemplate that the photographs of the bartenders, etc., should
be forwarded for posting or publication or display in rogues' galleries. It is only the
imprints (which we take to mean the thumb and fingerprints mentioned in the ordinance)
that are required to be forwarded to the federal and California bureaus of Investigation. The
question is further narrowed by the fact that the appellants frankly concede that the part of the
ordinance requiring the thumbprinting and fingerprinting and photographing and the
registration thereof with the Las Vegas bureau of identification is not objectionable. It is the
dissemination of the prints and the dissemination of the facts of the employee's previous
criminal record, if such be the case, that is claimed to violate their right of privacy which is
asserted to be guaranteed by both the federal and state constitutions.
Appellants suggest that the subject of the right of privacy in our jurisprudence is
comparatively new and the authorities not numerous. As late as May of last year the supreme
court of Indiana (infra), confronted with a similar problem, found it necessary to decide
"this interesting question."
with a similar problem, found it necessary to decide this interesting question. Appellants
frankly place their reliance upon the case of McGovern v. Van Riper, 137 N.J.Eq. 24, 43
A.2d 514; Id., 137 N.J.Eq. 548, 45 A.2d 842, decided in July, 1945. In that case McGovern,
sheriff of Hudson County, New Jersey, was indicted for failure (contrary to the statute) to
cause certain persons to be fingerprinted and photographed after they had pleaded to an
indictment against them. He sued to enjoin the defendants from taking his fingerprints and
photograph and forwarding them to the superintendent of state police, to the rogues' galleries
in other states, to the F.B.I., to Scotland Yard, England, and to the police departments of other
countries, all in advance of conviction, contending that such distribution in advance of
conviction would violate his right of privacy, which right was claimed to be protected by the
constitution of New Jersey, as well as the constitution of the United States. The defendants
were temporarily restrained, ex parte, from taking and forwarding his fingerprints and
photograph, etc., but the court of chancery, on return of an order to show cause why the
temporary restraint should not be continued pending final hearing, lifted the restraint against
the taking of his fingerprints and photograph or other identification data, but continued the
restraint against forwarding, disseminating or publishing the same in advance of conviction
unless the complainant shall become a fugitive from justice. McGovern appealed to the
court of errors and appeals of New Jersey from the part of the order dissolving the restraint
against the taking of the fingerprints and photograph. The propriety of the restraint against the
dissemination was not involved in the appeal. The appellate court affirmed the order lifting
the restraint against the taking of the fingerprints and photographs. McGovern v. Van Riper,
137 N.J.Eq. 548, 45 A.2d 842.
In his opinion, the learned vice chancellor collected the authorities dealing with the origin
and development of the right of privacy and likewise the right to protect such privacy by
injunction.
such privacy by injunction. That such right exists independently of its connection with any
property right now seems to have received the virtually unanimous recognition of courts and
text writers, while earlier cases rejecting such right have been disapproved. The present
concern of the court, however, is not with the question as to whether such right exists (indeed
the respondent does not seriously contend that it does not) nor whether such right can be
protected by injunction, but whether under the facts alleged the ordinance in question violates
the right of privacy of the complainants, or at least of the two personal complainants
(appellants herein). The vice chancellor, after his collection of the authorities developing the
rule of the right of privacy, comes to the following conclusion [137 N.J.Eq. 24, 43 A.2d 519]:
It is now well settled that the right of privacy having its origin in natural law, is immutable
and absolute, and transcends the power of any authority to change or abolish it.
This conclusion has never received the approval of the court of last resort of the State of
New Jersey, has been severely criticized by at least one other court, and is in our opinion not
a logical conclusion from the authorities cited or from the history of the development of the
law of privacy as traced by the vice chancellor and as characterized by other courts and text
writers.
In the case of the State ex rel. Mavity v. Tyndall, Ind.Sup., 66 N.E.2d 755, 758, the
supreme court of Indiana had this to say with reference to McGovern v. Van Riper, supra:
In this opinion the Vice Chancellor, aware of the fact that in New York the common law
right of privacy is not recognized, nevertheless, relies on numerous New York cases to reach
his conclusion. We do not regard them as applicable since in that jurisdiction legislation is the
source of the right and remedy. Upon the absence of legislation is based the case of Matter of
Molineux v. Collins, 1904, 177 N.Y. 395, 69 N.E. 727, 65 L.R.A. 104, cited by appellees.
cited by appellees. In that case photographs and Bertillon measurements were described as
public records taken pursuant to a mandatory statute and as such records not subject to
surrender or destruction without a similar mandate. Where, as in the present case, fingerprints
and photographs are made in the exercise of an executive discretion and not pursuant to
legislative order it would seem that the authority to take would imply the authority to
surrender or destroy.
Turning again to the opinion of Vice Chancellor Kays it is apparent that the only way by
which he could escape the legislative mandate for immediate forwarding of identification data
was to declare the statute unconstitutional. To reach this conclusion he was required to put
the right of privacy beyond the control of the legislature. He said (137 N.J.Eq. 24, 43 A.2d
519):
It is now well settled that the right of privacy having its origin in natural law, is
immutable and absolute, and transcends the power of any authority to change or abolish it.'
This view is not shared by other writers on the subject and seems to us unsound.
Nor does the conclusion of Vice Chancellor Kays that the right of privacy having its
origin in natural law is immutable and absolute and transcends the power of any authority to
change or abolish it, find support in the classic article by Samuel Warren and Louis B.
Brandeis entitled The Right of Privacy, 4 Harvard Law Rev. 193, (1890). This article
(although Cooley, Torts, 2d Ed. 29, had referred to every man's right to be let alone) has
often been referred to as the origin of the doctrine, but even there we find a distinct
recognition of the fact that this right cannot prevail when it comes into conflict with the
public interest. Id. 214 et seq. And particularly do the learned authors admit that the right of
privacy would not prohibit any publication made by one in the discharge of some public or
private duty, whether legal or moral. * * * Id. 217; nor could they reasonably have called
the ordinance in question one that "opened wide the back door to idle or prurient
curiosity."
could they reasonably have called the ordinance in question one that opened wide the back
door to idle or prurient curiosity.
The main authority upon which the learned vice chancellor relied was Pavesich v. New
England Life Ins. Co., 1905, 122 Ga. 190, 50 S.E. 68-81, 69 L.R.A. 101, 106 Am.St.Rep.
104, 2 Ann.Cas. 561, in which Cobb, J., for the Georgia supreme court, wrote a most
scholarly opinion tracing the origin and growth of the right of privacy. The case falls far
short, however, of justifying the conclusion that such right is beyond the power of the
legislature to abridge, and abounds in clauses (unnecessary to quote here) recognizing the fact
that it must in many instances give way to the rights of the public. And in the exhaustive and
analytical annotation in 138 A.L.R. 22 by R.T. Kimbrough (1942), in which all of the cases
up to that time are gathered, it is stated: In every case involving an assertation of a right of
privacy, the court is called upon to resolve a conflict between the rights of the individual on
the one hand and the interests of society on the other. Id. 45. Nor does the vice chancellor's
conclusion that the right of privacy transcends the power of any authority to change it because
it has its origin in natural law, find logical support. It is unnecessary to enter into the lively
debate now going on between Mr. Ben W. Palmer and Mr. Charles W. Briggs, espousing
natural law on the one hand and positive law on the other,
1
but it might be well to note the
comment of Mr. Palmer, exponent of natural law. Natural law is the participation in the
eternal law of an ordered universe by man as a rational creature. Participation in that order
demands that man's conduct should be in harmony with his nature as part of that order, in
furtherance of his being.'
So it is said that, even under natural law, he may not destroy life, or the liberty that makes
life enriching to others, or the family, or the property of another.
____________________

1
Hobbes, Holmes and Hitler, 31 A.B.A.J. 569, Defense against Leviathan, 32 A.B.A.J. 328, Justice
Holmes was Not on a Ladder to Hitler, Id. 631, Reply to Mr. Briggs, Id. 635.
others, or the family, or the property of another. Blackstone, under the heading of Natural
Liberty, puts it: The absolute rights of man, considered as a free agent, are denominated the
natural liberty of mankind, which consists in a power of acting as one thinks fit, without any
restraint or control, unless by the law of nature; being a right inherent in us by birth, when
God endowed man with free will. But every man, when he enters into society, gives up a part
of his natural liberty as the price of so valuable a boon, and obliges himself to conform to
those laws, which the community has thought proper to establish. Otherwise, there would be
no security to individuals in any of the enjoyments of life. 1 Blackstone's Commentaries
125-6.
So the restrictions and restraints, even the affirmative duties, with which every free man
in America's social and economic complexity of today is burdened, though passed by
legislative bodies and printed, bound and codified, are but the outgrowth of the restrictions of
the natural law, which existed before man put a mark on bark or stone. Each normal day sees
a multitude of them. Mr. Smith leaves his home in the morningthe home that he could not
build without a building permit, set so far back from the street, with flues and wiring and
plumbing that he was compelled to install, through his door over which he was compelled to
place a number, over a sidewalk he had to construct, into a car that he must park at a certain
angle to the curb and that cannot be operated without a license plate and which he may not
drive without a driver's license, to a street intersection that he may not cross till the light
shines green. He may be served with a subpoena that compels him to lay all personal and
business matters aside and attend at once as a trial juror or a witness. When he arrives at his
office or place of business the restrictions and requirements enjoined upon him by the state
are multiplied a hundred fold. He may not negotiate freely concerning his rentals, he must
provide certain working conditions for his employees and must pay them not less than a
certain wage and not work them longer than a given number of hours per day or per
week.
than a certain wage and not work them longer than a given number of hours per day or per
week. Many apparently innocent and normal business transactions are forbidden to him, and
the profits of others would be almost entirely absorbed in taxes. Whichever way he turns
there stands at his elbow a representative of some branch of government, and possibly half of
his working day is consumed in making sundry reports to the state. But entering society, he
has given up that part of his natural liberty which these duties restrict, as the price of so
valuable a boon, because where there is no law, there is no freedom and because salus
populi est suprema lex. So the immutability and absoluteness of the right of privacy, the right
to be let alone, finds little support in the mere fact that it had its origin in natural law.
3. Although appellants insist that the rule set down in the Van Riper case is a rule of
reason and should be followed they give implied acceptance to the necessary qualification of
this rule by specifically approving respondent's contention that the right to the civil liberties
guaranteed by the Fourteenth Amendment to the constitution of the United States is qualified
and not absolute. It is subject to legislative restraint and regulation reasonably imposed in the
exercise of police powers. This conclusion is indeed well supported by the authorities.
Mickey v. Kansas City, Mo., D.C., 43 F. Supp. 739, 742;
2
Hamilton v. City of Montrose,
109 Colo. 228, 124 P.2d 757, 759;
3
West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct.
578, 81 L.Ed. 703, 108 A.L.R.
____________________

2
The Jehovah's Witness Case, in which the Court, quoting the U.S. Supreme Court, said: Civil liberties, as
guaranteed by the Constitution, imply the existence of an organized society maintaining public order without
which liberty itself would be lost in the excesses of unrestrained abuses.

3
The use of a loudspeaker at an out door religious meeting was the cause of an arrest for violation of a city
ordinance prohibiting the use of any bell, horn, bugle or other sounding instrument or any loud or offensive
device to attract any crowd or so as to disturb or annoy any person. Here then is another case involving a
conflict between liberty and authority, a conflict that is sometimes labeled civil rights v. the police powers' or
liberty of the individual
1330;
4
Hardware Dealers Mutual Fire Insurance Co. v. Glidden Co., 284 U.S. 151, 52 S.Ct.
69, 76 L.Ed. 214;
5
Jacobson v. Massachusetts, 197 U.S. 11, 25 S.Ct. 358, 361, 49 L.Ed. 643,
3 Ann.Cas. 765;
6
Morris v. Holshouser, 220 N.C. 293, 17 S.E.2d 115, 137 A.L.R. 733;
Kingston Trap Rock Co. v. International Union, etc., 129 N.J.Eq. 570, 19 A.2d 661; State ex
rel. Grimes v. Board of Commissioners, 53 Nev. 364, 1 P.2d 570, 572.
7

4, 5. Appellants further urge that even though the right of privacy may be subject to some
limitations or restrictions in the exercise of the reserved police powers of the state, when such
right runs counter to the interests of the public, the personal plaintiffs are deprived of their
privileges and immunities and their equal protection of the law because (1) their occupation
of serving drinks is a lawful one and they are unreasonably singled out by the ordinance,
{2) the exemption by the ordinance of those who serve food with drinks is unreasonable,
{3) the ordinance, if purporting to be one to regulate the liquor business, is directed not to
the regulation or control of such business, but to the plaintiffs as employees, {4) the
respondent is called upon to allege, and in due course to prove, that the ordinance is
factually and statistically warranted, and {5) "disseminating" the facts of a prior criminal
record is not a justifiable or reasonable exercise of the police power after a man has
expiated his crime and seeks to resume an honored place in society by practicing his
lawful occupation of tending bar.
____________________
v. the general welfare.' * * * The (14th) Amendment embraces two concepts,freedom to believe and freedom
to act. The first is absolute, but, in the nature of things, the second cannot be.

4
But the liberty safeguarded is liberty in a social organization which requires the protection of law against
the evils which menace the health, safety, morals, and welfare of the people. Id., 300 U.S. 379, 57 S.Ct. 581, 81
L.Ed. 708, 108 A.L.R. 1330.

5
Liberty implies only freedom from arbitrary restraint, not immunity from reasonable regulations and
prohibitions imposed in the interests of the community. Id., 284 U.S. 151, 52 S.Ct. 70, 76 L.Ed. 218.

6
But the liberty secured by the Constitution of the United States to every person within its jurisdiction does
not import an absolute right in each person to be, at all times and in all circumstances, wholly freed from
restrain. There are manifold restrains to which every person is necessarily subject for common good. On any
other basis organized society could not exist with safety to its members. Society based on the rule that each one
is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist
under the operation of a principle which recognizes the right of each individual person to use his own, whether
in respect of his person or his property, regardless of the injury that may be done to others.

7
We think the distinction drawn between a business of the latter character (dealing in intoxicating liquor)
and useful trades, occupations, or businesses is substantial and necessary for the proper exercise of the police
power of the state. Gaming as a calling or business is in the same class as the selling of intoxicating liquors in
respect to deleterious tendency. The state may regulate or suppress it without interfering with any of those
inherent rights of citizenship which it is the object of government to protect and secure.
drinks is a lawful one and they are unreasonably singled out by the ordinance, (2) the
exemption by the ordinance of those who serve food with drinks is unreasonable, (3) the
ordinance, if purporting to be one to regulate the liquor business, is directed not to the
regulation or control of such business, but to the plaintiffs as employees, (4) the respondent is
called upon to allege, and in due course to prove, that the ordinance is factually and
statistically warranted, and (5) disseminating the facts of a prior criminal record is not a
justifiable or reasonable exercise of the police power after a man has expiated his crime and
seeks to resume an honored place in society by practicing his lawful occupation of tending
bar. We might dispose of the last ground by noting that none of the plaintiffs has placed
himself in the position of a person with a criminal record, any more than he has placed
himself in the position of a taxi driver or employee of a gambling establishment, and so is not
in position to complain of the ordinance on this ground. The other grounds urged involve
matters largely within the discretion of the governing board of the city of Las Vegas. We are
not called upon to determine the wisdom of the ordinance, nor may we interfere with the
discretion of the board unless it has been exercised arbitrarily or through mere whim or
caprice or is grossly unjust or oppressive. See State ex rel. Grimes v. Board of
Commissioners, 53 Nev. 364, 1 P.2d 570 and cases therein cited. In Giozza v. Tiernan, 148
U.S. 657, 13 S.Ct. 721, 723, 37 L.Ed. 599, the court said: The privileges and immunities of
citizens of the United States are privileges and immunities arising out of the nature and
essential character of the national government, and granted or secured by the constitution of
the United States, and the right to sell intoxicating liquors is not one of the rights growing out
of such citizenship.
6. The reasoning of the foregoing cases applies with as great force to a bartender
employee as it does to the owner of the establishment. After placing the business of gambling
"in the same class as the selling of intoxicating liquors in respect to deleterious
tendency," this court said in State ex rel.
of gambling in the same class as the selling of intoxicating liquors in respect to deleterious
tendency, this court said in State ex rel. Grimes v. Board of Commissioners, supra, that the
power granted by the ordinance even to restrict the number of licenses was a very necessary
implication from the power to license and regulate * * * and necessarily incidental to such
power, and that on account of the nature of the business a very wide discretion is thus
conferred * * * to pass all reasonable rules and regulations concerning it which the city
authorities may deem necessary for the police government of the municipality. Citing with
approval Crowley v. Christensen, 137 U.S. 86-91, 11 S.Ct. 13, 34 L.Ed. 620, this court
further said: The manner and extent of regulation rest in the discretion of the governing
authority. Appellants urge with great earnestness that the factual or statistical basis for the
exercise of such discretion must affirmatively appear, and that the ordinance cannot be
sustained in the absence of proof tending to establish its need. No authorities are cited in
support of such contention and we are not impressed with its logic. Indeed the presumption
and the burden are quite the other way. Pacific States Box & Basket Co. v. White, 296 U. S.
176, 56 S.Ct. 159, 80 L.Ed. 138, 101 A.L.R. 853. Section 2 of the ordinance is in effect a
finding that the safety, morals, good order and general welfare of the inhabitants of the city
will be better protected and served by the enforcement of its provisions. The provisions of
the charter vest in the common council authority to regulate and control the sale of
intoxicating liquors within the city, and, in exercising that authority, the council is clothed
with discretionary powers, the exercise of which cannot be controlled by the courts. State ex
rel. Grimes v. Board of Commissioners, supra, citing with approval State ex rel. Howie v.
Northfield, 94 Minn. 81, 101 N.W. 1063.
7. The foregoing also disposes of appellants' contention that the ordinance does not
purport to regulate the sale of intoxicating liquors but only the individual rights of the
plaintiffs to accept employment in such establishments.
of the plaintiffs to accept employment in such establishments. The board evidently concluded
that the provisions of the ordinance constituted a reasonable method of regulating and
controlling the industry and preventing abuses. The same also applies to the contention that
the exemption of those who serve food with drinks is unreasonable. The full course dinner of
today may start with a cocktail, include a white wine with the fish, a red wine with the roast
and a liqueur or a cafe royal with a final bit of Cammenbert. There may be champagne, and
the pudding may be served, with a flaming rum sauce. Or a seafood supper may be served
with accompanying steins of pilsener or bock or ale. Although many will disapprove such
practices the city fathers of Las Vegas apparently did not find them so objectionable as to
bring them within the purview of the ordinance. That this exemption might permit some
evasion through the serving of rubber sandwiches with drinks, would hardly justify us in
holding the exemption to be so unreasonable that the entire ordinance should be struck down.
We do not consider the classification arbitrary, unreasonable, whimsical or capricious, and it
is our duty to sustain the classification if there is any reasonable basis for it. Hines v. Hook,
338 Mo. 114, 89 S.W.2d 52, and cases therein cited. State ex rel. Lawson v. Woodruff, 134
Fla. 437, 184 So.81. See also City of Wichita v. Wolkow, 110 Kan. 127, 202 P. 632.
8. One error into which we think appellants have fallen is their construction and
interpretation of section 4 of the ordinance, which appellants conceive to require the
dissemination of the employee's former criminal record if disclosed by the data received by
the Las Vegas police department. The section requires the bureau of identification of Las
Vegas to send the fingerprints to the bureau of investigation of the State of California and the
federal bureau of investigation with request for information of any previous record. The
information, if any, received as aforesaid shall be treated as confidential and shall only be
made accessible to the mayor and board of commissioners of the city of Las Vegas, the
employer of such person and {the) law enforcement officer."
and board of commissioners of the city of Las Vegas, the employer of such person and (the)
law enforcement officer. This creates a far different picture from that of disseminating the
information. Disseminate may be said to be one of the many picturesque words of our
language. Derived from the Latin semen, a seed, it is defined by Webster as to sow broadcast
or as seed, and, carrying the metaphor farther, as principles and ideas are disseminated
when they are spread abroad by propagation. The word creates the same picture as
broadcast, which Webster defines as to disseminate widely, and whose present popular
meaning is identified with radio, which disseminates information to the four corners of the
earth. While the restriction upon the furnishing of the information gained may not perfectly
accomplish the announced requirement that the information * * * shall be treated as
confidential, such restrictions would appear greatly to ameliorate the harshness which
appellants fear would attend the dissemination of the information. This situation seems to
have been in the mind of the court in State ex rel. Mavity v. Tyndall, supra [66 N.E.2d 762],
when it said: In practically all the cases we find this emphasis upon posting,' publication,'
exhibition,' in a public place called the rogues' gallery.' Without such a public display or
manifest purpose to place an innocent complainant's photograph in juxtaposition with those
of hardened criminals, we wonder if the courts would have felt justified in interfering by
injunction.
This element characterized the cases of State ex rel. Reed v. Harris, 348 Mo. 426, 153
S.W.2d 834; Schulman v. Whitaker, 117 La. 704, 42 So. 277, 7 L.R.A.,N.S., 274, 8 Ann.Cas.
1174 and Itskovitch v. Whitaker, 117 La. 708, 42 So. 228, 116 Am.St. Rep. 215, all of which
are relied on by appellants. The situation that the court found objectionable in those cases
does not exist under the Las Vegas ordinance. In State ex rel. Reed v. Harris, supra (in which
prohibition was sought against the assuming of jurisdiction by the lower court of a suit to
enjoin the officers from forwarding photographs, etc. for exhibition) the court, in denying
the writ, emphasized the fact that there was no express legislative authority for the
threatened circulation of the photographs, except in the case of persons convicted of a
felony.
In Jenkins v. McGovern, 136 N.J.Eq. 563, 43 A.2d 526, a companion case to McGovern v.
Van Riper, supra, the same learned vice chancellor had denied an application of the
attorney general of the state for leave to intervene and be made a party defendant. {The
action was one for an injunction to restrain the sheriff from taking and forwarding the
complainant's fingerprints, etc., under the same act under attack in McGovern v. Van
Riper).
officers from forwarding photographs, etc. for exhibition) the court, in denying the writ,
emphasized the fact that there was no express legislative authority for the threatened
circulation of the photographs, except in the case of persons convicted of a felony.
In Jenkins v. McGovern, 136 N.J.Eq. 563, 43 A.2d 526, a companion case to McGovern v.
Van Riper, supra, the same learned vice chancellor had denied an application of the attorney
general of the state for leave to intervene and be made a party defendant. (The action was one
for an injunction to restrain the sheriff from taking and forwarding the complainant's
fingerprints, etc., under the same act under attack in McGovern v. Van Riper). The court of
errors and appeals of New Jersey, by a unanimous court, nine justices and five judges,
reversed this order, and held that the attorney general was properly in court to represent the
state. We mention this situation simply to indicate the danger of relying upon the authority of
an intermediate court as precedent, as we here find the same learned vice chancellor, in a
companion case, but involving a different point, unanimously reversed by an appellate court
of 14 judges.
We have given the McGovern case so much attention because of the evident care with
which the opinion was written, and because, in the last analysis, the appellants are forced to a
complete reliance thereon, but whose conclusions we must reject both on reason and
authority. The order of the district court vacating the temporary restraining order and
sustaining the general demurrer to the complaint (which, under the record as it comes to us
with the approval of the parties, we must interpret as a judgment for the defendant) is hereby
affirmed with costs.
The order made by this court on September 5, 1946, staying proceedings in the lower court
until the further order of this court (and which order this court on December 30, 1946, refused
to vacate, 63 Nev. 473, 175 P.2d 429) is hereby vacated and set aside.
Eather, C.J., concurs.
Taber, J., participated in the consideration of this matter, but died on February 6, 1947, the
day before the opinion was ready for his signature.
Horsey, J., being disqualified, the Governor designated Hon. Milton B. Badt, Judge of the
Fourth Judicial District, to sit in his stead.
____________
64 Nev. 57, 57 (1947) Wells, Inc. v. Shoemake
WELLS, INC. Et Al., Appellants, v. FLORA MARIE
SHOEMAKE, Et Al., Respondents.
No. 3451
February 17, 1947. 177 P.2d 451.
1. Automobiles.
Evidence in action for wrongful death and personal injuries and property damages resulting from
motor vehicle collision showed that corporate defendant was independent contractor and employer of
individual defendant.
2. Master and Servant.
One for whom services are performed by independent contractor is not liable for the negligence or
other tort of such independent contractor.
The right of selection is the basis of the responsibility of a master or principal for the act of his agent
and no one can be held responsible, as a principal, who has not the right to choose the agent from whose
act the injury flows.
Something more than the mere right of selection on the part of the principal is essential to the relation
of master and servant, and such right must be accompanied with the power of subsequent control in the
execution of the work contracted for.
5. Death.
The common law afforded no remedy in damages for wrongful death, and the statutory remedy
therefor is exclusive. Comp. Laws, secs. 8554, 9194, 9195.
6. Death.
Action for wrongful death of a person not a minor may be maintained by the heirs or personal
representatives of the deceased. Comp. Laws, secs. 8554, 9194, 9195.
7. Action.
Action for wrongful death by heirs of decedent and by decedent's widow for personal injuries and
property damages arising out of motor vehicle collision were properly joined. Comp. Laws, sec. 8595.
8. Parties.
A party interposing a demurrer and relying upon any defects in the complaint as to nonjoinder of
parties or uncertainty must let final judgment be entered upon his demurrer if he desires to continue to
avail himself of it after the demurrer is overruled, and if he answers after demurrer is overruled he waives
his right to rely upon it.
9. Trial.
Refusing to give instructions on matters which were properly covered by instructions given was not
error.
10. Automobiles.
In action for wrongful death and personal injuries and property damage resulting from motor vehicle
collision a requested instruction that there is no liability unless a particular accident could, in the exercise
of ordinary care, be anticipated was properly refused.
11. Negligence.
In action for wrongful death and personal injuries and property damages resulting from motor vehicle
collision an instruction on comparative negligence was properly refused.
12. Negligence.
Contributory negligence is an affirmative defense which must ordinarily be specifically pleaded and
proved by a preponderance of the evidence.
13. Negligence.
Before contributory negligence can bar recovery, it must appear that it was a proximate cause of the
injury although it need not be the sole proximate cause.
14. Negligence.
Contributory negligence must be alleged in the same manner and with the same degree of particularity
that negligence is alleged as a ground for recovery, and the act or omission must be stated and
characterized as negligent and show that it contributed to the injury complained of.
15. Negligence.
Whenever a question of contributory negligence arises upon a state of facts in regard to which
reasonable men might differ, it ought to be submitted to the jury.
16. Automobiles.
In action for wrongful death resulting from motor vehicle collision, where defendants alleged and
attempted to prove that the injuries were caused solely by the negligence of the deceased, an instruction
that contributory negligence of the deceased would bar a recovery was within the issues.
17. Trial.
All instructions to a jury should be read in the light of one another and considered in their entirety
when determining whether a portion of the instruction is erroneous or, by reason of a conflict or
otherwise, is calculated to mislead the jury.
18. Trial.
Where separate instructions are sound in law, even though they may not be as complete as they might
be, but if read together they are consistent and state correct principles of law and are not calculated to
mislead the jury, they will not be disturbed as reversible error.
19. Death.
In action for wrongful death, damages are limited to pecuniary loss suffered by the heirs of the person
killed by reason of his death. Comp. Laws, sec. 8554.
20. Death.
A single lump sum finding on damages suffered by heirs from wrongful death and a single lump sum
judgment is the only proper method of assessing damages, and whether it is divided among the heirs after
recovery or how it is divided are matters of no concern to defendant. Comp. Laws, sec. 8554.
In determining whether the award of damages is excessive or not, the court should consider whether
the award is fair and reasonable and in the exercise of sound discretion under the facts of the particular
case.
The mere fact that verdict is a large one is not conclusive that it is the result of caprice, passion,
prejudice, sympathy or other consideration not found in the evidence, nor is the fact that juries in other
similar cases have fixed a much lower amount as damages controlling on the question of excessiveness.
23. Death.
In action for wrongful death, a calculation based on decedent's earning capacity for his life
expectancy furnishes a basis for an estimate to be considered, and to this should be added the proved
value of services, if any, of decedent to his beneficiaries which they might reasonably have received from
him and which can only be supplied by the services of others for compensation. Comp. Laws, sec. 8554.
24. Damages.
A statute limiting the amount of damages recoverable is a mere limitation and not a criterion as
regards excessiveness.
25. Death.
$20,000 for death of 30-year old husband and father earning $45 or more weekly was not excessive.
Comp. Laws, sec. 8554.
26. Damages.
$6,050 was not excessive in action for personal injuries and property damage where plaintiff was 24
years of age and sustained cuts over eyes, jaw and head, broken tooth, wrenched muscles in back, and
shock to her nervous system which resulted in permanent injury.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall, Judge.
Action by Flora Marie Shoemake and John Alley Shoemake, by Flora Marie Shoemake,
his guardian ad litem, against Wells Inc., and William Long for the wrongful death of
Kenneth C. Shoemake and for personal and property damages suffered by plaintiff in motor
vehicle collision. From a judgment for plaintiffs for $20,000 for wrongful death and judgment
for Flora Marie Shoemake for $6,050 for personal injuries and property damage, and from an
order denying defendant's motion for a new trial, the defendant appeals. Affirmed.
Morse, Graves & Jones, of Las Vegas, for Appellants.
V. Gray Gubler, of Las Vegas, for Respondents.
OPINION
By the Court, Eather, C.J.:
This action was instituted by the respondents, Flora Marie Shoemake and John Alley
Shoemake by Flora Marie Shoemake, his guardian ad litem, to recover damages for the death
of Kenneth C. Shoemake, who was husband and father of the respective respondents and
who, at the time of his death, was twenty-nine years of age. The death was alleged to have
been caused by the negligence of the appellants.
The parties will be referred to as in the court below, and to better appreciate the
contentions of both parties it is necessary that we briefly state the facts.
The accident in which the deceased sustained the injuries which resulted in his death
happened near the city of Las Vegas, county of Clark, State of Nevada. On the morning of the
14th day of December, 1943, defendant, Wells Inc., was engaged in operating a fleet of trucks
for the hauling of ore along and upon U.S.
highway 95, extending in a north-westerly direction from the city of Las Vegas, Nevada. On
the said 14th day of December, 1943, William Long was employed by defendant, Wells Inc.,
as a truck driver; about 6:30 o'clock a.m. of said day defendant William Long, acting within
the scope of his employment as a truck driver for the defendant Wells Inc., then and there
drove and operated a truck controlled and operated by the defendant Wells Inc., along and
upon U.S. highway 95, ten miles, or thereabouts, in a north-westerly direction from Las
Vegas, Nevada; that on the said 14th day of December, 1943, at about 6:30 o'clock a.m., the
plaintiffs, Flora Marie Shoemake and her son John Alley Shoemake, were riding with her
mother-in-law and her husband, Kenneth C. Shoemake, and were proceeding north and
north-westerly from Las Vegas, Nevada, on highway 95, at or about nine or ten miles from
the city of Las Vegas, when the 1936 Chevrolet in which they were riding was involved in a
collision with the truck driven by William Long, who was acting within the scope of his
employment as a truck driver for the defendant, Wells, Inc.
As a result of the collision Kenneth C. Shoemake suffered a badly crushed chest and
internal injuries and also suffered head injuries and a deep gash posterior to his left eye,
together with great physical and mental shock and as a result of said injuries, Kenneth C.
Shoemake died in Las Vegas, Nevada, December 14, 1943. Further as a result of the collision
Flora Marie Shoemake was thrown violently from the Chevrolet automobile in which she was
riding and suffered injuries, great shock to her nervous system, and mental pain and suffering.
The plaintiff, Flora Marie Shoemake, and plaintiff John Alley Shoemake, are respectively
the surviving wife and child of Kenneth C. Shoemake, deceased, and are the next-of-kin and
only heirs-at-law of said Kenneth C. Shoemake, deceased.
The answer sets forth that the defendants were at all times mentioned in the complaint,
and at the time of answering, agents and employees of the Defense Plant Corporation, a
subsidiary of the Reconstruction Finance Corporation of the United States and as such
were not suable as sole defendants in this action; that the parent Defense Plant
Corporation was not joined as a party defendant and for that reason the Court had no
jurisdiction of the action and for that same reason the two causes of action plead in the
complaint did not state facts sufficient to constitute a cause of action."
all times mentioned in the complaint, and at the time of answering, agents and employees of
the Defense Plant Corporation, a subsidiary of the Reconstruction Finance Corporation of the
United States and as such were not suable as sole defendants in this action; that the parent
Defense Plant Corporation was not joined as a party defendant and for that reason the Court
had no jurisdiction of the action and for that same reason the two causes of action plead in the
complaint did not state facts sufficient to constitute a cause of action. These defenses were
stricken upon demurrer and defendants answered, denying any negligence on their part, and
the defense of contributory negligence having also been stricken upon the demurrer,
defendants alleged that the accident in which the said Kenneth C. Shoemake sustained
injuries from which he died, was caused solely by the negligence of said Kenneth C.
Shoemake. Upon trial and submission of the case to the jury a verdict was returned against
defendants in the sum of $20,000 on plaintiffs' first cause of action, and $6,050 on plaintiffs,
second cause of action. Judgment was therefore entered upon the verdict plus $465.05 costs.
Defendants' motion for a new trial was denied and this appeal is prosecuted from the
judgment rendered upon the verdict of the jury and from the denial of defendants' motion for
a new trial.
A number of errors are assigned within the general one, that the trial court erred in
overruling defendants' motion for a new trial. The first two, which can be considered
together, go to the action of the court in overruling defendants' general demurrer to the
complaint, and in sustaining plaintiffs' demurrer to the answer.
(1) Defendants contend that their defense properly raised the question of suability of an
instrumentality of the federal government.
We have given careful attention to the contention of defendants that their defenses raised
the question of the suability of an instrumentality of the federal government, and in our
opinion, it clearly appears from the authorities submitted by defendants that there is no
question of the suability of Defense Plant Corporation, and no question of the suability of
the defendants, either separately or jointly with Defense Plant Corporation, assuming an
agency relationship to have existed, as alleged by defendants. We are convinced,
however, there was, in fact, no agency relationship between the defendants, or either of
them, and Defense Plant Corporation, as clearly appears from the testimony of J.W. Wells,
President of Wells, Inc., Folios 300-302 of the Transcript.
authorities submitted by defendants that there is no question of the suability of Defense Plant
Corporation, and no question of the suability of the defendants, either separately or jointly
with Defense Plant Corporation, assuming an agency relationship to have existed, as alleged
by defendants. We are convinced, however, there was, in fact, no agency relationship between
the defendants, or either of them, and Defense Plant Corporation, as clearly appears from the
testimony of J.W. Wells, President of Wells, Inc., Folios 300-302 of the Transcript. Questions
propounded by V. Gray Gubler, attorney for plaintiffs, were answered as follows:
Q. Under the agreement by which you were operating on December 14, 1943, was it or
was it not, Mr. Wells, agreed that Wells, Inc., should be wholly responsible for the conduct of
their drivers and the management of their drivers? Yes. Yes, I think that is so.
Q. Assuming, of course, that there was actionable negligence or other legal liability for
the conduct of those drivers. A. I don't know whether the contract specifically states that, but I
think that is correct.
Q. Who hired the defendant, William Long? A. He was hired originally in Reno by my
brother, R.C. Wells. He worked there for a considerable time, perhaps a month, as a student,
and before he was allowed to come to Luning where he took over one of these trucks.
Q. And as an employee of the Company he was solely responsible to and solely under the
supervision and management of the defendant, Wells, Inc.? A. That is correct.
Q. And was subject to the supervision of no other corporation, no other person other than
his employer, Wells, Inc.? A. That is correct.
1. This testimony, which was the only testimony on the point, except as further
substantiated by other testimony of the witness J.W. Wells, clearly shows that defendant
Wells, Inc., was an independent contractor, managing independently the operation of the
trucks in question, and that neither defendants, or either of them, were servants andJor
agents of Defense Plant Corporation.
were servants and/or agents of Defense Plant Corporation.
2. The law is established beyond question, that one for whom services are performed by
an independent contractor is not liable for the negligence or other delict or tort of such
independent contractor.
The rule is well stated, 35 Am.Jur. page 967, sec. 539: Power of Selection and Control as
Determining Factor:One of the tests of the existence of the relation of Master and servant
as a basis for holding the master liable to third persons for the wrongful acts of the servant, is
the power of the alleged master to select and discharge the servant. It has been held that
where a person may be compelled by law to employ a particular individual in a given matter,
he is not to be held liable for the delinquencies of the quasi employee. However, the
relationship may exist, giving rise to liability for acts of another, notwithstanding the law
restricts the employer's selection of employees to a limited class.
3. The right of selection is the basis of the responsibility of a master or principal for the
act of his agent. No one can be held responsible, as a principal, who has not the right to
choose the agent from whose act the injury flows.
The relation between parties to which responsibility attaches to one, for the acts of
negligence of the other, must be that of superior and subordinate, or, as it is generally
expressed, of master and servant, in which the latter is subject to the control of the former.
The responsibility is placed where the power exists. Having power to control, the superior or
master is bound to exercise it to the prevention of injuries to third parties, or he will be held
liable. The responsibility attaches to the superior, upon the principal qui facit per alium facit
per se. (Who acts through another acts for himself.) To determine the responsibility,
therefore, it is necessary to ascertain whether the relation existing between the party
charged and the party actually committing the injury, be in fact that of superior and
subordinate, or master and servant. 'Unless the relation of master and servant exist
between them,' said Coleridge, J., in Milligan v. Wedge, 'the act of one creates no liability
in the other.' 12 Adol. & Ellis, 737. 'The rule of respondent superior,' said the Court of
Appeals of New York, in Blake v.
between the party charged and the party actually committing the injury, be in fact that of
superior and subordinate, or master and servant. Unless the relation of master and servant
exist between them,' said Coleridge, J., in Milligan v. Wedge, the act of one creates no
liability in the other.' 12 Adol. & Ellis, 737. The rule of respondent superior,' said the Court
of Appeals of New York, in Blake v. Ferris, as its terms imply, belongs to the relation of
superior and subordinate, and is applicable to that relation, wherever it exists, whether
between principal and agent, or master and servant, and to the subjects to which that relation
extends, and is coextensive with it, and ceases when the relation itself ceases to exist.' 1
Selden, 48.
4. By applying the test thus laid down to the relation existing between Wells, Inc., on the
one hand, and Defense Plant Corporation and/or the Reconstruction Finance Corporation on
the other, the question of liability will be easily solved. The relation between them wants one
of the most essential features of the relation between master and servant. Something more
than the mere right of selection on the part of the principal, is essential to that relation. That
right must be accompanied with the power of subsequent control in the execution of the work
contracted for. In the present case, that power was wanting, and, of course, the relation to
which it was essential did not exist. In the instant case, under the agreement by which Wells
Inc. operated, it was agreed that Wells Inc. should be wholly responsible for the conduct and
management of their drivers. The driver, as an employee of Wells Inc. was solely responsible
to and solely under the supervision and management of Wells Inc. and was subject to the
supervision of no other corporation, no other person other than his employer, Wells Inc. For a
full discussion of the general doctrine above stated, see Boswell et al. v. Laird et al., 8 Cal.
469-499, 68 Am.Dec. 345; Byrne v. Kansas City, Ft. S. & M.R. Co. et al., 6 Cir., 61 F.
City, Ft. S. & M.R. Co. et al., 6 Cir., 61 F. 605, 24 L.R.A. 693.
(2) Defendants contend that the second cause of action was improperly brought. The
question presented is whether, under the facts disclosed in the complaint the action can be
maintained only by an administrator of the estate, and further that the action must be
predicated upon sec. 9194, N.C.L.1929, or not at all.
5. The common law afforded no remedy in damages for a wrongful death. Whatever
standing plaintiffs have in the present case must be found in the statutes of Nevada. The
remedy, being wholly statutory, is exclusive. The statute provides the only measure of
damages, and designates the only person who can maintain such an action. Salmon v.
Rathjens, 152 Cal. 290, 92 P. 733.
The first cause of action is an action for the wrongful death of Kenneth C. Shoemake,
brought by Flora Marie Shoemake, the surviving wife of Kenneth C. Shoemake, and as
guardian ad litem of John Alley Shoemake, the sole surviving child of Kenneth C. Shoemake,
deceased.
The second cause of action is for personal and property damages suffered by plaintiff,
Flora Marie Shoemake, resulting from defendants' negligence independent of damages
accruing by reason of her husband's death. Section 9194, N.C.L.1929 reads as follows:
Liability For Death by Wrongful Act. * * * Whenever the death of a person shall be caused
by wrongful act, neglect or default, and the act, neglect or default is such as would, if death
had not ensued, have entitled the party injured to maintain an action and recover damages in
respect thereof then, and in every such case, the persons who, or the corporation which would
have been liable if death had not ensued shall be liable to an action for damages
notwithstanding the death of the person injured; and although the death shall have been
caused under such circumstances as amount in law to a felony.
Section 9195, N.C.L. Supplement 1931-1941, reads: "The proceeds of any judgment
obtained in any action brought under the provisions of this chapter shall not be liable for
any debt of the deceased; provided, he or she shall have left a husband, wife, child,
father, mother, brother, sister, or child or children of a deceased child; but shall be
distributed as follows:
The proceeds of any judgment obtained in any action brought under the provisions of this
chapter shall not be liable for any debt of the deceased; provided, he or she shall have left a
husband, wife, child, father, mother, brother, sister, or child or children of a deceased child;
but shall be distributed as follows:
If there be a surviving husband or wife, and no child, then to such husband or wife; if
there be a surviving husband or wife, and a child or children, or grandchildren, then, equally
to each, the grandchild or children taking by right of representation; if there be no husband or
wife, but a child or children, or grandchild or children, then to such child or children and
grandchild or children by right of representation; if there be no child or grandchild, then to a
surviving father or mother; if there be no father or mother, then to a surviving brother or
sister, or brothers or sisters, if there be any; if there be none of the kindred hereinbefore
named, then the proceeds of such judgment shall be disposed of in the manner authorized by
law for the disposition of the personal property of deceased persons; provided, every such
action shall be brought by and in the name of the personal representative or representatives of
such deceased person; and provided further, the court or jury, as the case may be, in every
such action may give such damages, pecuniary and exemplary, as shall be deemed fair and
just, and in so doing may take into consideration the pecuniary injury resulting from such
death to the kindred as herein named.
Section 8554, N.C.L. Supplement 1931-1941, reads: When the death of a person not a
minor is caused by the wrongful act or neglect of another, his heirs, or his personal
representatives for the benefit of his heirs, may maintain an action for damages against the
person causing the death, or, if such person be employed by another person who is
responsible for his conduct, then also against such other person. If such adult person have a
guardian at the time of his death, only one action can be maintained for the injury to or
death of such person, and such action may be brought by either the personal
representatives of such adult person deceased for the benefit of his heirs, or by such
guardian for the benefit of his heirs as provided in section 54.
be maintained for the injury to or death of such person, and such action may be brought by
either the personal representatives of such adult person deceased for the benefit of his heirs,
or by such guardian for the benefit of his heirs as provided in section 54. In every action
under this and the preceding section such damages, pecuniary and exemplary, may be given
as under all circumstances of the case may be just.
No pretense to originality is made by the writer in the interpretation and application of the
sections quoted. They were reviewed, discussed and applied by Judge Farrington in Perry,
Administrator, v. Tonopah Mining Co. of Nevada, D.C., 13 F.2d 865, 870. Pardini v. City of
Reno, 50 Nev. 392, 263 P. 768.
The conclusion reached in Perry's case is well stated as follows:
Our Practice Act confers a right of action on the parent for the death of a minor child;
upon the guardian for the death of his ward, if of lawful age; upon the heirs or personal
representatives for the death of a person not a minor. (The italics are ours.)
These provisions, however, do not cover the whole field of injuries which may result
from wrongfully caused death. For instance, a boy of 20 years may at the same time be
maintaining a wife, supporting his parents, and assisting his brothers and sisters. In such a
case all would be suffering pecuniary injury by reason of his death, but there would be no
recovery by the widow, brothers, and sisters, except under sections [9194] and [9195] in an
action by the personal representative. Again, the death might be caused by acts so willful,
wanton, and reckless as to demand exemplary damages; such damages are provided for in
section [9195] only, and cannot be recovered unless action is brought by a personal
representative of the deceased under that section.
See note in Bond v. United Railroads, Ann.Cas.1912C, 67; Pardini v. City of Reno, supra;
Perry v. Tonopah Mining Co., supra; Nordyke v. Pastrell et al., 54 Nev. 9S
Mining Co., supra; Nordyke v. Pastrell et al., 54 Nev. 98, 7 P.2d 598.
6. The averments of the complaint in this case conform to the reasoning employed by
Judge Farrington in arriving at the conclusion that our practice act confers a right of action
upon the heirs or personal representatives for a person not a minor. A great array of
authorities might be cited in support of our conclusions, but the question as to the only
persons who can maintain an action is so well settled in Perry v. Tonopah Mining Co., supra,
that we do not consider it necessary to encumber this opinion with further citations.
7. Section 8595, N.C.L.1929, as amended, prescribes what causes of action may be united
as follows:
Plaintiff may unite several causes of action in the same complaint, when they all arise out
of: * * *
7. Injuries to property; or
8. Claims arising out of the same transaction, or transactions connected with the same
subject of action, and not included within one of the foregoing subdivisions of this section. *
* *
The action of the trial court in overruling the demurrers should be sustained and it is so
ordered.
8. Further, a party interposing a demurrer and relying upon any defect in the complaint as
to nonjoinder of parties, or uncertainty, must let final judgment be entered upon his demurrer,
if he desires to continue to avail himself of it after the demurrer is overruled. If he answers
after his demurrer is overruled, he waives his right to rely upon his demurrer. Lonkey &
Smith v. Wells, 16 Nev. 271; Robison v. Mathis, 49 Nev. 35, 234 P. 690; Peri v. Jeffers, 53
Nev. 49, 292 P. 1, 293 P. 25, 298 P. 658.
9-11. (3) We come now to assignment of error No. 4. The ten instructions proposed by
the defendants and rejected by the court. All of the rejected instructions, with the exception
of two, were properly refused for the reason that they were covered by other instructions
given by the court.
given by the court. The tendered instruction, folio 100, was properly refused. It contains an
incorrect statement of the law in that it is an instruction that there is no liability unless a
particular accident could in the exercise of ordinary care be anticipated. In Konig v.
Nevada-California-Oregon Ry. Co., 36 Nev. 181, 135 P. 141, 142, the court stated as follows:
Where the first wrong done is the probable cause of an injury or accident, and the final
injurious consequences are such as might have been foreseen, the consequence, as well as
every intervening result, is the proximate result of the first wrongful cause.
Instruction, folio 106, 107, is an instruction on comparative negligence, the rejection of
which is complained of, was properly refused. Comparative negligence is not the law of
Nevada, except in actions by a mine employee for injuries, in which cases Nevada statutes
substitute the rule of relative or comparative negligence for the common law rule of
contributory negligence. Peterson v. Pittsburg Silver Peak Gold Mining Co., 37 Nev. 117,
140 P. 519; Prescott & A.C.R. Co. v. Rees et al., 3 Ariz. 317, 28 P. 1134; Denver & R.G. Co.
v. Maydole et al., 33 Colo. 150, 79 P. 1023; 45 C. J. 1036.
Defendants' fifth assignment of error is based upon the action of the court in sustaining
plaintiffs' demurrer to defendants' allegation of contributory negligence. The allegation reads
as follows: For a further, separate and fifth defense defendants allege: That the injuries, if
any, and damages, if any, sustained by plaintiffs as plead in the complaint or otherwise, were
contributed to by the negligence of Kenneth C. Shoemake in his operation of the motor
vehicle described in plaintiffs' complaint to which was attached and was then and there being
towed a certain homemade, two-wheel, unwieldy trailer.
Plaintiffs contended that the attempted allegation of contributory negligence was
insufficient and demurrable for the reason that it did not sufficiently set forth the alleged
negligence of deceased and for the reason that it contained no allegation of proximate
causation.
alleged negligence of deceased and for the reason that it contained no allegation of proximate
causation.
Defendants elected not to replead and the case went on regularly for trial on defendants'
denial of liability, and among other defenses upon their second and further defense, as
contained in the amended answer.
12. Contributory negligence is an affirmative defense which must ordinarily be
specifically pleaded and proved by a preponderance of the evidence. Smith v. Odd Fellows
Bldg. Ass'n, 46 Nev. 48, 205 P. 796, 23 A.L.R. 38; Konig v. Nevada-California-Oregon Ry.
Co., 36 Nev. 181, 135 P. 141.
13. Before contributory negligence can bar recovery, it must appear that such negligence
was a proximate cause of the injury, although it need not be the sole proximate cause.
Crosman v. Southern Pacific Co., 44 Nev. 286, 194 P. 839.
14. Contributory negligence must be alleged in the same manner and with the same degree
of particularity, that negligence must be alleged as a ground for recovery. The act or omission
must be stated, must be characterized as negligent, and must be shown to have contributed to
the injury complained of. Freisheimer v. Missoula Creamery Co., 64 Mont. 443, 210 P. 329.
Defendants' second and further defense, folios 51-53, under the following authority might
well be held to have raised the question of contributory negligence. Contributory negligence
is sufficiently pleaded where a cross-complaint filed by defendants in which they seek
affirmative relief, alleges that the collisions referred to in the complaint and the consequent
damages were due directly and solely to the negligence of the plaintiff. All pleadings and
issues submitted by them were necessarily to be considered in their entirety. 2 Bancroft Code
Pleading, 1423; Grover et al. v. Morrison, 47 Cal. App. 521, 190 P. 1078.
5. The next assignment of error is the contention that reversible error was committed in the
giving of instruction No.
instruction No. 44, folio 1313, excepted to by defendants, folio 1024, that contributory
negligence of the deceased would bar a recovery of the plaintiffs' first cause of action. This
instruction was excepted to by the defendants as not within the issues of this case, a demurrer
thereto having been sustained.
15. Defendants alleged and attempted to prove that the injuries were caused solely by the
negligence of the deceased. The case went to trial on opposing claims of negligence and
instruction No. 44 served to greatly reduce the burden of proof placed upon defendants and
increased their chances of a successful defense. Whenever a question of contributory
negligence arises upon a state of facts in regard to which reasonable men might honestly
differ it ought to be submitted to the jury. Smith v. Odd Fellows Bldg. Ass'n, 46 Nev. 48,
205 P. 796, 798, 23 A.L.R. 38.
16-18. Entertaining the views, we do, contrary to the contention of the defendants, that
instruction No. 44 is not erroneous, we cannot say that there is any material conflict in the
instruction complained of; all instructions to a jury should be read in the light of each other
and considered in their entirety when determining whether a portion of the instruction is
erroneous, or by reason of a conflict, or otherwise, is calculated to mislead the jury; and
where separate instructions are sound in law, even though they may not be as complete as
they might be made to be, but if read together they are consistent and state correct principles
of law, and are not calculated to mislead the jury, they will not be disturbed as reversible
error. Of course, where instructions are conflicting and either is erroneous in law and
prejudicial to the rights of either party, such a conflict in instructions has been properly held
to be reversible error. No such conflict, however, in our opinion, exists in the instruction
complained of. Cutler v. Pittsburgh Silver Peak Gold Mining Co., 34 Nev. 45, 116 P. 418.
6. Defendants' sixth assignment of error is based upon the action of the court in denying
the motion for a new trial, and {2) that the court erred in admitting evidence on the
expenditures for funeral expenses, and all other testimony as to the value of the personal
property, including the automobile and trailer, and {b) that the damages awarded by the
jury, were and are excessive.
upon the action of the court in denying the motion for a new trial, and (2) that the court erred
in admitting evidence on the expenditures for funeral expenses, and all other testimony as to
the value of the personal property, including the automobile and trailer, and (b) that the
damages awarded by the jury, were and are excessive.
19, 20. Defendants are correct in their statement that the only measure of damages in an
action under a wrongful death statute is limited to pecuniary loss suffered by the heirs of the
person killed, by reason of his death. The verdict on the first cause of action was for the sum
of $20,000, and is limited to pecuniary loss suffered by heirs of the person killed, by reason of
his death. A single lump sum finding on damages suffered by heirs from wrongful death and a
single lump sum judgment is the only proper method of assessing damages, and whether it is
divided among them after recovery or how it is divided, are matters of no concern to
defendants. Rickards et al. v. Noonan, 40 Cal.App.2d 266, 104 P.2d 839. Robinson v.
Western States Gas & Electric Co., 184 Cal. 401, 194 P. 39.
The verdict on the second cause of action of the plaintiff Flora Marie Shoemake, was for
the sum of $6,050 for personal injuries. We will not prolong this opinion by further
discussion of errors assigned by defendants. We have examined all of them and find them to
be without merit. It is undisputed that Kenneth C. Shoemake, deceased, was the husband of
plaintiff Flora Marie Shoemake and the father of the plaintiff John Alley Shoemake, the only
son of deceased; and it is also undisputed that deceased was born December 23, 1913, and
that he would have been thirty years of age on the birthday next following his death. It is also
undisputed that plaintiff Flora Marie Shoemake was 23 at the date of her husband's death and
that she would be 24 years old at her next and nearest birthday. The plaintiff, John Alley
Shoemake was, at the date of his father's death, nearing 5 years of age.
nearing 5 years of age. The testimony that deceased had a life expectancy of 35.33 years, and
that Flora Marie Shoemake had a life expectancy of 39.49 years, was also undisputed.
According to the evidence of plaintiff which was undisputed, deceased was of an industrious
disposition and worked at all times during his married life with plaintiff Flora Marie
Shoemake, and contributed all of his earnings to the upkeep of his family, and to the purchase
of a farm and equipment for his family. When the parties were first married deceased was
working for a lumber company, earning $34 a week. He later worked on the farm he was
buying and worked for various companies enumerated in the testimony for wages ranging
from $45 a week and up. While working on the farm deceased was able to earn a comparable
livelihood and at the time of the collision in which he suffered the injuries from which he
shortly died, deceased was travelling with his family to the Northwest, where he expected to
work in war industry. The jury allowed the sum of $20,000, or $566.10 per year during the
life expectancy, to-wit, 35.33 years.
21-24. In determining whether the award of damages is excessive or not, the court should
consider whether the award is fair and reasonable, and in the exercise of sound discretion,
under the facts and circumstances of the particular case; and the mere fact that the verdict is a
large one is not conclusive that it is the result of caprice, passion, prejudice, sympathy or
other consideration not found in the evidence; nor is the fact that juries in other similar cases
have fixed a much lower amount as damages controlling on the question of excessiveness. A
calculation based on decedent's earning capacity for his life expectancy furnishes a basis for
an estimate to be considered, and to this should be added the proved value of services, if any,
of decedent to his beneficiaries, which they might reasonably have received from him and
which can only be supplied by the services of others for compensation. A statute limiting the
amount of damages recoverable is a mere limitation, and not a criterion as regards
excessiveness.
damages recoverable is a mere limitation, and not a criterion as regards excessiveness. 25
C.J.S., Death, sec. 116, p. 1270.
In Morgan v. Southern Pac. Co., 95 Cal. 501, 30 P. 601, the court said: (Page 508 of 95
Cal. and page 602 of 30 P.) The amount of the verdict is certainly quite large,larger than
we, if sitting as a jury, would have felt it our duty to give. But that consideration alone is not
sufficient to warrant us in disturbing the verdict. There is no absolute rule in such a case, and
about all that can be safely said on the subject may be found in the opinion of the court in
Aldrich v. Palmer, 24 Cal. 513, and the cases there cited. The general conclusion, as nearly as
can be formulated, is as there stated, namely, that a verdict will not be disturbed because
excessive, unless the amount of the damages is obviously so disproportionate to the injury
proved as to justify the conclusion that the verdict is not the result of the cool and
dispassionate discretion of the jury.' Redfield v. Oakland Consolidated St. Ry. Co., 110
Cal.277, 42 P. 822.
The personal injuries to plaintiff Flora Marie Shoemake as set forth in par. II of her second
and separate and further cause of action, were as follows:
* * * That as a further direct and proximate result of the negligence of defendants as
aforesaid this plaintiff was thrown violently from the said Chevrolet automobile in which she
was riding and suffered injuries as follows, to-wit: (a) A cut one-half inch in length, or
thereabouts, at the outer canthus of the left eye, (b) a cut one-half inch, or thereabouts, in
length above the outer edge of the left eyebrow, (c) a cut three-fourths inch, or thereabouts, in
length over the angle of the left mandible and a cut posterior to the left ear, (d) a broken upper
left incisor, (e) wrenched muscles in the costal and lumbar area of the back, (f) great shock to
her nervous system and great shock and mental pain and suffering.
That as a further direct and proximate result of the negligence of defendants as
aforesaid, plaintiff has become extremely nervous and suffers periodic attacks of vertigo
and faintness, sleeps poorly, has irregular menstrual periods, almost daily suffers
shooting pains in the frontal and temporal area of her head, has spasticity of the muscles
in her lower back and suffers pain in the lower costal and lumbar area of her back on
exertion or work of any nature; that as a direct and proximate result of the negligence of
defendants as aforesaid, plaintiff has suffered permanent injury in the following, to-wit:
negligence of defendants as aforesaid, plaintiff has become extremely nervous and suffers
periodic attacks of vertigo and faintness, sleeps poorly, has irregular menstrual periods,
almost daily suffers shooting pains in the frontal and temporal area of her head, has spasticity
of the muscles in her lower back and suffers pain in the lower costal and lumbar area of her
back on exertion or work of any nature; that as a direct and proximate result of the negligence
of defendants as aforesaid, plaintiff has suffered permanent injury in the following, to-wit:
(a) Said cuts hereinabove described have healed into permanent scars causing plaintiff
permanent disfigurement.
(b) Broken upper left incisor.
(c) Plaintiff is informed and believes and upon such information and belief alleges that
her irregular menstrual periods, loss of sleep, shock and mental and physical pain and
suffering, extreme nervousness and attacks of vertigo and faintness, and spasticity of the
lumbar muscles of the back all resulting directly and proximately from the negligence of
defendants as aforesaid will continue for an indefinite period.
These injuries were apparently proved to the satisfaction of the jury by the testimony of
Flora Marie Shoemake, and of Dr. Robert L. Meador.
25, 26. We are unable to say after a careful review of the testimony, that damages awarded
by the jury appear excessive or that they appear to have been given under the influence of
passion or prejudice, and such appears to have been the conclusion of the learned judge who
denied defendants' motion for a new trial.
The judgment and order denying the motion for a new trial should be affirmed. It is so
ordered.
Horsey, J., concurs.
Justice Taber participated in the hearing of this case but passed away before the opinion
was completed.
____________
64 Nev. 77, 77 (1947) Cauble v. Beemer
A. E. CAUBLE Et Al., Petitioners, v. ELWOOD H.
BEEMER, Respondent.
No. 3475
February 17, 1947. 177 P.2d 677.
A statute authorizing issuance of county bonds for a private purpose would be unconstitutional as
being a denial of due process of law. Const. art. 1, sec. 8.
2. Constitutional LawCounties.
Bonds issued under statute authorizing Washoe County to issue bonds for construction and
reconstruction of Washoe general hospital are for a public and not a private purpose and statute is
not unconstitutional as authorizing issuance of bonds for a private purpose, thereby depriving taxpayers
of property without due process of law. Comp. Laws, sec. 2233; St. 1945, c. 243; Const. art. 1, sec. 8.
3. Statutes.
The statute authorizing Washoe County to issue bonds for construction and reconstruction of Washoe
general hospital and levy tax to pay such bonds is not unconstitutional as embracing in its title more than
one subject and matters properly connected therewith. St. 1945, c. 243; Const. art. 4, sec. 17.
4. Statutes.
A statute which is special or local or both is unconstitutional if it comes within any of the enumerated
cases as to which enactment of special or local laws is prohibited or if a general law can be made
applicable. Const. art. 4, secs. 20, 21.
5. Statutes.
The constitutional provision prohibiting enactment of local or special laws for the assessment and
collection of taxes merely prohibits special legislation regulating those acts which assessors and
collectors of taxes generally perform in assessment and collection of taxes and does not apply to special
legislation authorizing or directing county commissioners to levy a special tax for a particular purpose.
Const. art. 4, sec. 20.
6. Statutes.
general hospital and levy a tax for payment of such bonds is not a law for the assessment and collection
of taxes within the constitutional provision prohibiting enactment of special or local laws for such
purpose. St. 1945, c. 243; Const. art. 4, sec. 20.
7. Statutes.
general hospital and levy a tax for payment thereof, is a local or special law but it is not an act
regulating county business within constitutional provision prohibiting enactment of local
or special laws of such a nature. St. 1945, c.
constitutional provision prohibiting enactment of local or special laws of such a nature. St. 1945, c. 243;
Const. art. 4, sec. 20.
8. Evidence.
The supreme court may take judicial notice of the substantial increase in population of Washoe
County during war years of 1941 to 1945 and continuing through 1946.
9. Mandamus.
County clerk of Washoe County, having admitted in answer allegations of petition for peremptory
writ of mandate requiring him to issue county bonds for construction and reconstruction of Washoe
general hospital that building was inadequate, could not deny existence of an emergency as basis for
enactment of special, local law authorizing Washoe County to issue bonds to remedy such conditions
without submitting proposed bond issue to voters pursuant to general bond elections law. St. 1933, c. 95;
St. 1945, c. 243.
10. EvidenceStatutes.
That trustees of Washoe general hospital performed their duties properly and had good reason for
waiting almost 20 months after legislature authorized Washoe County to issue bonds for construction and
reconstruction of hospital before requesting county commissioners to direct issuance of such bonds must
be presumed in absence of a contrary showing, and hence such delay did not show nonexistence of
emergency upon which such local, special legislation was predicted so as to render it unconstitutional on
ground that a general law could be made applicable. St. 1933, c. 95; St. 1945, c. 243; Const. art. 4,
sec. 21.
Whether admitted facts constitute an emergency warranting enactment of a special or local law,
notwithstanding constitutional provision prohibiting such laws if a general law can be made applicable, is
for the legislature alone to determine. Const. art. 4, sec. 21.
12. Statutes.
Existence of general law relating to subject matter of special or local law does not show that general
law could be made applicable so as to invalidate special or local law, but strong presumption exists that
legislature had good reason for determining that general law could not be made applicable to situation
covered by special or local law. Const. art. 4, sec. 21.
13. Statutes.
general hospital and levy a tax to pay such bonds is not unconstitutional on ground that existing general
bond elections law could have been made applicable, in view of the emergency existing in respect to the
condition and inadequacy of hospital building. St. 1933, c. 95; St. 1945, c. 243; Const. art. 4, sec. 21.
Original proceeding in mandamus by A. E. Cauble and others, constituting the Board of
Trustees of Washoe General Hospital, against Elwood H. Beemer, as County Clerk and ex
officio Clerk of the Board of County Commissioners of Washoe County, Nevada, to compel
respondent to issue county bonds for reconstruction of the hospital. Peremptory writ of
mandamus issued.
Springmeyer & Thompson, of Reno, for Petitioners.
Harold O. Taber, Grant L. Bowen, Gordon R. Thompson, and John C. Bartlett, all of
Reno, for Respondent.
OPINION
This is a proceeding in mandamus. The petitioners are A. E. Cauble, Leo Corvino, Curtis
Farr, A. E. Landers and O. C. Moulton, as and constituting the board of trustees of Washoe
general hospital.
In brief, the petitioners, in their petition that a writ of mandamus issue, among other
things, allege, in substance:
That by a legislative act approved March 27, 1945, St. 1945, c. 243, the board of county
commissioners of Washoe County, Nevada, were authorized to issue the bonds of said
Washoe County, not to exceed $750,000, for the construction and reconstruction of said
hospital;
That on November 4, 1946, petitioners duly requested said county commissioners to direct
respondent, Elwood H. Beemer, as the county clerk and ex officio clerk of the said county
commissioners of Washoe County, to issue such bonds, in the form and manner provided by
the said statute of March 27, 1945;
That on November 20, 1946, pursuant to said request, the said board of county
commissioners of said county, by an appropriate resolution, duly directed the said clerk, the
respondent herein, to issue said bonds, in the form and manner provided by the said
statute of March 27, 1945;
clerk, the respondent herein, to issue said bonds, in the form and manner provided by the said
statute of March 27, 1945;
That on November 21, 1946, the petitioners made written demand upon the respondent,
that he issue said bonds in accordance with such resolution and said statute;
That on November 22, 1946, the respondent refused, in writing, and still refuses, to issue
said bonds, for the reason that he doubts the constitutionality of the said statute of March 27,
1945.
In paragraph 8 of said petition, the petitioners further allege that:
The public health, safety and general welfare require the issuance of the Writ herein for
the reason that an emergency exists in that the physical facilities of the Washoe General
Hospital are insufficient and inadequate in the following particulars:
a. Said hospital because of a large increase in community and transient population is not
large enough to accommodate people entitled to hospitalization therein;
b. Said hospital was constructed many years ago; it is poorly ventilated, its lavatories are
overtaxed, and there are general unsanitary conditions.
c. Because of lack of space, indigent and semi-indigent patients are housed together; the
building is without proper isolation wards to segregate patients suffering from contagious or
infectious diseases.
d. The heating plant and the boilers are outmoded and are incapable of properly heating
the premises.
e. The construction of the building is such that a serious fire hazard exists.
f. Several Washoe County grand jury reports have directed attention to the inadequate,
dangerous and unsanitary conditions existing at the hospital. The Washoe County Planning
Commission, by resolution in form and manner provided by law, has approved plans for the
reconstruction of the hospital.
The petitioners prayed for the issuance of an alternative writ of mandate, and this court, on
December 17, 1946, duly issued such an alternative writ, requiring the respondent either to
issue said bonds or to appear and show cause, on January 17, 1947, why he had not done so.
The respondent failed to issue said bonds, but on December 19, 1946, filed an answer and
return, in which he admitted the facts alleged in the above-quoted paragraph 8 of said
petition, as well as paragraphs numbered 1, 2, 3, 4, 5, 6, and 7 thereof, and denied the
allegations of paragraph 9, in which the petitioners allege they have no plain, speedy and
adequate remedy in the ordinary course of law.
The respondent, in his answer and return, alleges four grounds upon the basis of which he
claims the said statute of March 27, 1945, to be unconstitutional. These grounds will be
hereinafter stated.
The respondent, in his brief, has presented an additional ground upon the basis of which he
claims the said statute of March 27, 1945, is unconstitutional, said additional ground being
that the said statute, is a local and special law regulating county business.
The hearing upon the petition and the answer and return was set for, and held on, January
22, 1947, the matter was argued by the respective attorneys, and thereupon duly submitted.
We will now consider, and pass upon, each of the questions presented by the respondent,
upon the basis of which he claims the said act of 1945 to be unconstitutional, but shall not
follow, precisely, the order in which respondent has presented them.
The respondent claims, in effect, that the tax levy to redeem the proposed hospital bonds
provided, by said act of March 27, 1945, to be made by the county commissioners of Washoe
County, is a tax for a private, and not a public, purpose.
The respondent, as the basis of his contention that the purpose of the proposed bond issue
is private, has cited, and relied upon, a portion of sec.
and relied upon, a portion of sec. 8 of art. I of the constitution of the State of Nevada, said
portion being as follows: * * * No person shall * * * be deprived of life, liberty, or property,
without due process of law.
1. This constitutional provision would be applicable to defeat the constitutionality of said
act, if its purpose were private, rather than public. State v. Board of Com'rs of Churchill
County, 43 Nev. 290, at page 295, 185 P. 459 (cited by respondent).
The respondent has cited, in support of his contention that the hospital is private, sec.
2233, vol. 1, N.C.L.1929, which is as follows: Every hospital established under this act shall
be for the benefit of the inhabitants of such county or counties, and of any person falling sick
or being injured or maimed within its limits, but the board of hospital trustees may extend the
privileges and use of such hospital to persons residing outside of such county or counties
upon such terms and conditions as said board may from time to time by its rules and
regulations prescribe. Every such inhabitant or person who is not a pauper shall pay to the
said board, or such officer as it shall designate, a reasonable compensation for occupancy,
nursing, care, medicine, and attendance, other than medical or surgical attendance, according
to the rules and regulations prescribed by said board; such hospital always being subject to
such reasonable rules and regulations of said board may adopt in order to render the use of
said hospital of the greatest benefit to the greatest number; and the said board may exclude
from the use of such hospital any and all inhabitants, and persons, who shall willfully violate
such rules and regulations.
Said section 2233, vol. 1, N.C.L.1929, is, also, section 9 of the certain act approved March
27, 1929, and which is entitled: An Act to enable counties to establish and maintain public
hospitals, levy a tax and issue bonds therefor, elect hospital trustees, maintain a training
school for nurses, and provide suitable means for the care of such hospitals and of disabled
persons, and repealing a certain act."
care of such hospitals and of disabled persons, and repealing a certain act.
From the title of the act, it is apparent that the legislature intended, by the act, to confer
authority upon, and to enable, counties to establish and maintain public hospitals only, and
said section 9 expressly refers, and applies only, to every hospital established under this act,
that is to say, when considered in conjunction with the title of the act, every public hospital.
So it is clear that the legislature, in stating, in said section 9, sec. 2233, vol. 1, N.C.L.1929,
the purpose of the hospital, intended to state what the members of the legislature considered
to be the appropriate purposes of a public, rather than a private, institution of that nature.
Respondent contends, in his brief, on pages 4 and 5, as follows: In the light of the above
quoted statute, it is readily apparent that the fundamental difference between the Washoe
general hospital and any so-called private' hospital is the free service afforded by the former
to paupers. To uphold the Act in question, this Court must determine that that difference
alone, places the tax for the benefit of Washoe General Hospital well within the public
purpose doctrine. Respondent contends this difference to be insignificant.
The broad scope of the first sentence of said section 9, providing, in effect, that every
hospital established under the act shall be for the benefit of the inhabitants (meaning all of the
inhabitants) of such county * * * and of any person falling sick or being injured or maimed
within its limits, far transcends the usual scope of the purposes and duties of a private
hospital, not only, because it is made the duty of the county hospital to receive, and extend its
facilities to, all the inhabitants of the county, as they may have need for them, and to any
person falling sick or being injured or maimed within its limits, regardless of the financial
ability to pay, of such inhabitants, or of such persons so falling sick or being injured or
maimed within the county limits, but, also, because such inhabitants and such persons are
absolutely, and without restrictive limitations, required to be received and extended the
benefits of the hospital.
limits, but, also, because such inhabitants and such persons are absolutely, and without
restrictive limitations, required to be received and extended the benefits of the hospital. For
instance, the county hospital, under the broad scope of said provision, cannot deny a patient
admittance or care because the facilities are overcrowded, or for the reason that they may not
be equipped or prepared to treat the particular disease with which he is suffering, or that such
disease is contagious, or, from the standpoint of the capacity, policy or convenience of the
hospital or its personnel, the particular patient is undesirable. This sort of restriction is
commonly applied and permitted in the case of a private hospital, by reason of the limited
scope of its purposes and the fact that the nature of its relationship to the public is entirely
contractual.
2. We cannot agree, therefore, with respondent's theory that the only fundamental
difference between the Washoe general hospital and a private hospital is the free service
afforded by the former to paupers. The difference above outlined, of freedom from
discriminatory restrictions on admission, is also a vital and fundamental difference, far
reaching in its scope and in its general beneficence. Neither can we agree that the difference
involved in the free service by the county hospital to paupers is insignificant. It is a usual
function of county or similar local governments, recognized in all civilized countries, and
applied to the extent that their circumstances permit. In the United States, it is of almost
universal application, as it is in practically all countries conscious of their humanitarian duties
and responsibilities. The benefits that flow from such provisions to those so unfortunate as to
be, not only physically ill, but, also poverty stricken, are not insignificant. They are of
immeasurable value, and often mean the difference between restoration to health and
confirmed invalidism, and, not infrequently, the difference between life and death.
Contributions made by local government for the proper treatment of its indigent sick and
afflicted, pay large dividends, in the enhancement of the public health, welfare and
happiness, and contribute materially to the stability and permanence of democratic
government.
for the proper treatment of its indigent sick and afflicted, pay large dividends, in the
enhancement of the public health, welfare and happiness, and contribute materially to the
stability and permanence of democratic government.
The provisions of section 9 of the said act approved March 27, 1929, sec. 2233, vol. 1,
N.C.L. 1929, are ample in their definition and statement of purpose to constitute a sufficient
basis in law for the characterization of a county hospital, established or maintained under said
act, as a public hospital. Certainly, the fact that the purposes as stated in said section are
sufficiently broad to permit the extension of the privileges and use of such hospital to persons
residing outside of such county, upon such terms and conditions as said board may from time
to time by its rules and regulations prescribe, either because of reciprocity or solely in a spirit
of comity, or for other reasons which the legislature deemed sufficient, does not, in any
degree, lessen its public character, but rather broadens the same. There has been no showing
that the purposes of the Washoe General Hospital do not conform to the purposes stated in
said section 9. We feel constrained to hold, therefore, that the proposed bond issue authorized
by the county commissioners of Washoe County, by their resolution passed November 20,
1946, is for a public and not a private purpose, and that same in no manner deprives, or will
operate to deprive, the taxpayers, or any taxpayer, of Washoe County of property without due
process of law.
3. The respondent sets up, in his answer and return, the contention that the statute of
March 27, 1945, is unconstitutional in that it violates sec. 17 of art. IV, (respondent has
inadvertently referred to art. 3, but evidently means art. IV), of the constitution of the State of
Nevada, by embracing in the title more than one subject and matters properly connected
therewith. This alleged ground of unconstitutionality is not urged or argued in respondent's
brief. We are satisfied that the title of the act embraces only one subject and matters
properly connected therewith, and that, therefore, such title complies sufficiently with
said sec.
title of the act embraces only one subject and matters properly connected therewith, and that,
therefore, such title complies sufficiently with said sec. 17 of art. IV of the constitution of the
State of Nevada, and is not violative of said section, or any requirement thereof.
In his answer and return, the respondent sets up, by way of affirmative defense, the
contention that the statute of March 27, 1945, is unconstitutional in that it violates sec. 20 of
art. 3 (meaning, doubtless, art. IV) of the constitution of the State of Nevada, by establishing
a local and special law for the assessment and collection of taxes for county purposes. In his
brief, respondent does not discuss this alleged ground, but does contend that the said act of
March 27, 1945, is unconstitutional because violative of said sec. 20 or art. IV, in that same is
a local and special law regulating county business. The respondent contends further, in his
brief, that said act of March 27, 1945, is unconstitutional in that same is a local and special
law, not providing for the submission to the vote of the electors of Washoe County, of a
proposal for the bond issue in question, whereas a general law, to-wit, an act entitled, An
Act relating to bond elections, providing for the manner of holding the same, defining the
duties of certain persons in relation thereto, and other matters properly relating thereto,
approved March 20, 1933, same being chap. 95, Stats.1933, pp. 116, 117, and providing for,
and requiring, the submission to the vote of the electors of the municipality (including
counties) proposing to issue bonds, a proposal for such bond issue, is applicable, within the
meaning of sec. 21 of art. IV of the constitution of the State of Nevada.
Sec. 20 of art. IV of the Nevada Constitution is as follows: The Legislature shall not pass
local or special laws in any of the following enumerated casesthat is to say: * * * regulating
county and township business; * * * for the assessment and collection of taxes for State,
county and township purposes; * * *.
Sec. 21 of said art. IV reads: In all cases enumerated in the preceding section, and in all
other cases where a general law can be made applicable, all laws shall be general and of
uniform operation throughout the State.
4. As this court stated in Washoe County Water Conservation District v. Beemer, 56 Nev.
104, on page 116, 45 P.2d 779, on page 782 (referred to and quoted by respondent in his
brief, on p. 5): It is a general rule, under such provisions as those of sections 20 and 21 of
article 4 of the State constitution, that if a statute be either a special or local law, or both, and
comes within any one or more of the cases enumerated in section 20, such statute is
unconstitutional; if the statute be special or local, or both, but does not come within any of the
cases enumerated in section 20, then its constitutionality depends upon whether a general law
can be made applicable.
This same contention presented by respondent in his answer and return, but not contended
for in his brief, namely, that the act in question (the statute of March 27, 1945) was a law for
the assessment and collection of taxes, was contended for in Washoe County Water
Conservation District v. Beemer, supra. In that case, the act assailed was a statute approved
February 28, 1935, authorizing (as stated in the opinion in that case, on pages 110, 111 of
56 Nev., on page 780 of 45 P.2d) the board of county commissioners of Washoe county to
aid in the acquisition and construction of such reservoirs, waterworks, and improvements by
issuing noninterest-bearing bonds of said county, delivering such bonds to petitioner, and
levying and collecting taxes for the payment thereof. Statutes of Nevada 1935, p. 22. The
said act of 1935 provided for the levy and collection of a special tax for the particular project
authorized by said act, but not as to the mode or manner of the assessment, or of the
collection of the tax. There was no substitution of a different method of either assessment or
collection than provided by the revenue laws of general application throughout the state.
This court, therefore, in the opinion by Justice Taber, on page 117 of 56 Nev., on page 7S2
of 45 P.2d, stated: "It seems clear that the act in question is not a law for the assessment
and collection of taxes, as those words are used in said section 20."
application throughout the state. This court, therefore, in the opinion by Justice Taber, on
page 117 of 56 Nev., on page 782 of 45 P.2d, stated: It seems clear that the act in question is
not a law for the assessment and collection of taxes, as those words are used in said section
20.
5. At that point, the case of Gibson v. Mason, 5 Nev. 283, 284, at pages 304, 305, was
cited. In the latter case, the court, on pages 304 and 305, of 5 Nev., makes clear the
distinction between a special or local law attempting to change or regulate acts which
assessors and collectors of taxes generally perform, and which have been denominated
assessment and collection of taxes, and a special or local law authorizing merely the levy
of a special tax. The court, in the opinion by Mr. Justice Lewis, stated:
It clearly could not have been intended by the framers of the Constitution to require a
general law for the levy of a tax for a special purpose in a county. As in a case of this kind,
when no county but that of Ormsby is required to levy a tax, and this for a special purpose,
and the amount to be levied is necessarily fixedhow could a general law be enacted to meet
the necessities of the case, without requiring all the counties of the State to levy a like tax? It
could not, with the construction which counsel for respondent place upon this section.
We are clearly of opinion that the constitutional provision simply prohibits special
legislation regulating those acts which the assessors and collectors of taxes generally perform,
and which are denominated assessment' and collection of taxes'; and that it does not inhibit
the Legislature from authorizing or directing the County Commissioners from levying a
special tax by the passage of a local law.
It could readily be seen that a special law attempting to change or infringe upon a general
system of tax assessment or collection, uniform, and which should continue uniform,
throughout the state, for reasons clearly apparent, would be most unwise, and that same
would create much confusion, and inefficiency in its operation and administration.
apparent, would be most unwise, and that same would create much confusion, and
inefficiency in its operation and administration.
6. But neither the special act involved in Gibson v. Mason, supra, nor the special act
involved in Washoe County Water Conservation District v. Beemer, supra, was applicable
except as to the single levy for a particular project. They were limited in duration to the
completion of the single project and the redemption of the particular bond issue involved, and
in no sense related to, or operated to interfere with, the general plan or methods of tax
assessment and collection. So it is in the instant case. We find, and hold, as this court held in
Washoe County Water Conservation District v. Beemer, supra, that it is clear that the special
or local act in question is not a law for the assessment and collection of taxes, as those words
are used in sec. 20, art. IV of the constitution of the State of Nevada.
7. Is the said statute of March 27, 1945, a local or special law, or both, regulating county
business? That it is a local or special law, or both, there can be no doubt, as it relates entirely
to a Washoe County project, and the tax levy to pay the bonds is confined to Washoe County
taxpayers.
This court dealt with this question, also, under the very similar situation existing in said
case of Washoe County Water Conservation District v. Beemer, supra. In that case, on page
117 of 56 Nev., on page 782 of 45 P.2d, it is stated: It will be observed that the
constitutional provision (section 20, art. 4) reads, regulating' county business, not relating
to,' pertaining to,' or concerning' county business. To regulate is (a) to govern or direct
according to rule (Webster); (b) to adjust, order, or govern by rule, method, or established
mode (Funk & Wagnall); (c) to control, govern, or direct by rule or regulations (Oxford).
These are not the only definitions of this word in the dictionaries cited, but they predominate
there, as elsewhere, and conform to the etymology of the word.
etymology of the word. The Act of February 28, 1935, does not undertake or attempt to lay
down a rule to the effect that in Washoe county proposed bond issues need not, after the
passage of the act, be submitted to the electors. It does not seek to amend, revise, or repeal the
act of 1933 hereinbefore mentioned. It is rather an act intended to meet a particular and
peculiar situation, in the nature of, or analogous to, an emergency. * * *
The same may be said in regard to the act in question in the instant case, the statute of
March 27, 1945. In the latter, there is no attempt to formulate or apply any rule or regulation.
The provisions of the act relate entirely to the particular bond issue for the single hospital
construction and reconstruction project. They provide for the issuance of bonds, and their
execution, negotiations for their sale, for the tax levy, and the bond redemptions.
It is manifest the framers of the constitutional provision prohibiting any local or special act
regulating county business had in mind maintaining essential uniformity in the laws enacted
to govern county business, in general, and its administration. For example, the general
statutory law provides for certain officers in each of the counties of the state, and defines the
duties of such officers. It would be very unwise, for example, to permit local or special laws
that would allow a county or counties to abolish the office of county assessor, and transfer his
duties to some other officer. Perhaps one county, if same were permissible, would transfer the
assessor's duties to the county auditor and recorder, another county, to the sheriff, and
another, to some other officer. It may readily be seen that to permit such divergencies and
differences in general laws regulating county business would create much confusion,
uncertainty and lack of harmony in the official administration of the laws in the various
counties, and would be very injurious, detrimental and not conducive to the public welfare. It
was such laws of general application as, for illustration, laws creating the offices of the
various county officers and defining their duties, which the framers of the constitution
intended should not be interfered with by local or special laws.
illustration, laws creating the offices of the various county officers and defining their duties,
which the framers of the constitution intended should not be interfered with by local or
special laws. It was not, manifestly, such an act as the statute of March 27, 1945, an act
without any general application whatever, which they intended to prohibit. That statute relates
and pertains to, and concerns, only a single item, or project, of county business, and cannot be
reasonably construed to be a rule or regulation regulating county business, because it has no
general application.
Now we are confronted with the remaining, and perhaps the principal, question raised by
the respondent:
Is the general law of March 20, 1933, the title of which has hereinbefore been stated,
applicable, or can said general law be made applicable, to the situation in the instant case,
within the meaning of sec. 21 of art. IV of the constitution of the State of Nevada?
The respondent seriously contends that said general law of 1933, requiring the submission
to the electors and taxpayers of the county of the question of whether or not the proposed
bond issue should be approved, is applicable, or could have been made applicable, and that
the said statute of March 27, 1945, is unconstitutional in that same dispenses with the
necessity of submission of such question to a vote of the electors of Washoe County, and is
thus in conflict with the said general act of March 20, 1933.
We have hereinbefore set forth in this opinion a statement of the various purposes of said
bond issue, as stated in paragraph 8 of the petition herein for a writ of mandate. The
respondent has, as hereinbefore stated, admitted, in paragraph I of his answer and return, all
matters contained in said paragraph 8 of the petition. We will here repeat the introductory
statement of said paragraph 8, which is: The public health, safety and general welfare require
the issuance of the writ herein for the reason that an emergency exists in that the physical
facilities of the Washoe General Hospital are insufficient and inadequate in the following
particulars: * * *."
physical facilities of the Washoe General Hospital are insufficient and inadequate in the
following particulars: * * *.
Notwithstanding this admission in the answer and return, filed December 19, 1946, which,
if strictly construed, would preclude respondent from opposing, in his brief filed January 14,
1947, and in oral argument on January 22, 1947, the issuance of the writ, he has, in such
argument and in his said brief, strongly opposed same. The admission of the necessity for the
issuance of the writ may have been inadvertent, and respondent may have intended only to
admit the condition of emergency, and we will so consider it. But his admission of the facts,
alleged in said paragraph 8 as constituting the emergency, must, from the very nature of such
facts, be deemed an admission that such emergency conditions existed on March 27, 1945,
the date of the approval of the statute in question.
8, 9. The fact that the hospital was constructed many years ago (which is one of the facts
admitted by respondent), that it is poorly ventilated, and that, because of a large increase in
population, it is overcrowded, its lavatories are overtaxed, and the general conditions are
insanitary, are conditions which, to a substantial degree, obviously had been in existence a
long timecertainly before March 27, 1945. These conditions, due, in part, to natural
deterioration through a period of years, and in part, to inadequacy to meet the demands of a
great increase in population, certainly existed to a substantial degree in 1945, and even in the
prior war years of 1942, 1943, and 1944. We would be justified in taking judicial notice of
the substantial increase in population in Washoe County during the war years, 1941-1945,
and continuing through 1946. In view of the nature of the facts admitted, the respondent is not
in a position to deny the existence of the emergency conditions at the time the legislature
passed the statute of March 27, 1945, and perhaps he does not intend to deny them. The
respondent, however, has argued, in effect, that, even admitting the conditions of
emergency, the petitioners, by their having waited from March 27, 1945, the date of the
approval of the act, until November 4, 1946, the date they requested the county
commissioners to authorize such bond issue, before taking any action pursuant to the act
of 1945, have demonstrated, either that an emergency did not, in fact, exist at the time
the said 1945 act was passed, or that the petitioners believed the general bond election
law of 1933 to afford a sufficient remedy.
respondent, however, has argued, in effect, that, even admitting the conditions of emergency,
the petitioners, by their having waited from March 27, 1945, the date of the approval of the
act, until November 4, 1946, the date they requested the county commissioners to authorize
such bond issue, before taking any action pursuant to the act of 1945, have demonstrated,
either that an emergency did not, in fact, exist at the time the said 1945 act was passed, or that
the petitioners believed the general bond election law of 1933 to afford a sufficient remedy.
Respondent's contention perhaps may be better understood if we quote, at this point, from
pages 5 and 6 of his brief. Respondent has there stated:
* * * It is true, also, that respondent has admitted in his pleadings that an emergency is
presently confronting petitioner, but it is the position of respondent that the bond election act
of 1933 was in 1945, and is at the present time, capable of meeting such emergency. The
Legislature in passing the Act of 1945 must have done so upon the assumption that it was
necessary in order to meet the emergency then existing. However, this Court must take
judicial notice of the fact that nothing had been done pursuant to the 1945 Act for a period of
two years; that the petitioner, though in a position to do so, did not request the Board of
County Commissioners to exercise its discretion under the 1945 Act until November 4, 1946,
almost two years later. In the light of these undisputed facts, respondent contends that in fact
an emergency either did not exist at the time the 1945 Act was passed, or the petitioner
believed the general bond election law of 1933 to be a sufficient remedy. Respondent urges
that the passage of the Act of March 27, 1945, was a mere trick for the purpose of evading the
Act of March 20, 1933, and that the Legislature's reasons for passing the 1945 Act were
unsubstantial and purely fanciful. As stated in Washoe County Water Conservation District v.
Beemer, 56 Nev. at page 122, 45 P.2d at page 785: "'If in the case at bar a clear showing
had been made that the passage of the act of February 2S, 1935, was a mere trick for the
purpose of evading the Act of March 20, 1933, or that the Legislature's reasons for
passing the 1935 act were unsubstantial and purely fanciful, the court would have had a
different situation presented for its consideration; * * *'
If in the case at bar a clear showing had been made that the passage of the act of
February 28, 1935, was a mere trick for the purpose of evading the Act of March 20, 1933, or
that the Legislature's reasons for passing the 1935 act were unsubstantial and purely fanciful,
the court would have had a different situation presented for its consideration; * * *'
For this reason, respondent contends that the presumption that the Legislature of 1945
had a reasonable basis for deciding the Act of 1933 to be inapplicable is overcome.
In view of the undisputed facts admitted by the respondent, from which the conclusion is
reasonable that an emergency existed in March, 1945, when the act in question was passed,
the respondent's contention that the passage of that act was a mere trick for the purpose of
evading the act of March 20, 1933, and that the legislature's reasons for passing the 1945 act
were unsubstantial and purely fanciful, is unimpressive. It is so inconsistent with
respondent's own admission, and with the undisputed facts, that it is purely speculative, and
doubtless, the outgrowth of respondent's theory that, notwithstanding the conditions of
emergency existing when the act of March 27, 1945, was passed, the act of 1933 (we now
quote respondent) was in 1945, and is at the present time capable of meeting such
emergency. As will be shown hereinafter, that was for the legislature to determine, not for
respondent, nor for any court. The fact that petitioners waited about one year and eight
months before requesting the county commissioners to direct the issuance of the bonds, does
not establish, or, fairly interpreted, even indicate any attempt to deceive or trick the
legislature into passing the act of 1945, nor render the emergency conditions which then
existed fanciful or unsubstantial, nor establish that the hospital trustees, if they requested
passage of said act, were not acting in good faith.
10, 11. The delay in requesting action by the county commissioners may have been due
to good causes or reasons, such as uncertainty as to the attitude of the county
commissioners, or unfavorable conditions as to the disposal of the bonds, or other
reasons.
commissioners may have been due to good causes or reasons, such as uncertainty as to the
attitude of the county commissioners, or unfavorable conditions as to the disposal of the
bonds, or other reasons. And we must presume the trustees performed their duties properly,
and had such good reasons, in the absence of a contrary showing. As to that, no showing has
been made of bad faith on the part of the hospital trustees, nor even of neglect or lack of due
diligence, nor that, at the time of the passage of the act, they intended any appreciable delay.
But even if the trustees had been negligent in not proceeding earlier, their procrastination
would not obliterate or negative the existence of the facts and conditions of emergency,
urgently requiring action at the time the legislature passed the act of March 27, 1945. It is
apparent that these conditions of emergency were then so dangerous and detrimental to the
public health and welfare that action for their speedy improvement was imperative. If the
hospital trustees, in March, 1945, urged action by the legislature, they were doing their duty
as such officials, and as citizens, to correct a bad and peculiarly impelling situation calling for
immediate relief, and they cannot be justly charged with having resorted to any trick or
device in so acting, merely because the respondent, in the light of the fact of delay which has
subsequently occurred in proceeding toward the issuance of the bonds, has evolved a theory
that the general act of 1933 was capable of meeting the emergency. It is, perhaps, only fair
to point out the concession of respondent on page 8, near the conclusion, of his brief, as
follows: If an emergency confronted petitioners in 1945, respondent concedes that the Act in
question must be constitutional. Assuming the existence of the emergency at the time of the
passage of the said statute of 1945 (and we must so assume, because of the existence of the
undisputed facts), it was entirely the prerogative of the Legislature to determine whether those
facts and conditions were sufficient to constitute a reasonable basis for the passage of
such special or local act.
sufficient to constitute a reasonable basis for the passage of such special or local act.
The legislature, and not the courts, is the supreme arbiter of public policy and of the
wisdom and necessity of legislative action. This court has repeatedly upheld the
constitutionality of special or local acts of the legislature, passed, in some instances, because
the general legislation existing was insufficient to meet the peculiar needs of a particular
situation, and, in other instances, for the reason that facts and circumstances existed, in
relation to a particular situation, amounting to an emergency which required more speedy
action and relief than could be had by proceeding under the existing general law. Among
Nevada cases dealing with the question of whether a general law is, or can be made,
applicable, to meet a particular situation, and whether or not a local or special law, in the
existing situation in a particular case, is unconstitutional, are: Gibson v. Mason, supra; Hess
v. Pegg, 7 Nev. 23; State ex rel. Clarke v. Irwin, 5 Nev. 111; Evans v. Job, 8 Nev. 322; State
ex rel. Rosenstock v. Swift, 11 Nev. 128, 141; Thompson v. Turner, 24 Nev. 292, 53 P. 178;
State v. Lytton, 31 Nev. 67, 99 P. 855; Quilici v. Strosnider, 34 Nev. 9, 115 P. 177, 180;
Dotta v. Hesson, 38 Nev. 1, 143 P. 305.
In State v. Lytton, supra, on page 69 of 31 Nev., on page 856 of 99 P., in the opinion by
Talbot, J., it is stated: Ever since the organization of our commonwealth it has been usual for
the Legislature to pass laws relating to particular counties providing for the issuance of bonds
in such varying amounts as the exigencies and conditions required for the erection of
courthouses and other purposes. Many of these have been enacted since this court held that
such legislation was constitutional and valid. At the last regular session of the Legislature acts
were passed for the issuance of bonds for new courthouses in three specified counties of the
state, and 15 other acts provide for the issuance of bonds for schoolhouses, and other
purposes, in different localities.
The most of the indebtedness of the various counties, cities, towns, and districts of the
state, and much of which is of long standing, rests upon enactments specially authorizing the
issuance of bonds in such instances. The validity of these acts has been considered so
extensively, and sustained so often, by this court and the supreme court of the United States
that we must consider the matter settled in favor of their constitutionality. State ex rel. Clarke
v. Irwin, 5 Nev. 111; Youngs v. Hall, 9 Nev. 212; Thompson v. Turner, 24 Nev. 292, 53 P.
178; Lincoln County v. Luning, 133 U.S. [529,] 532, 10 S.Ct. 363, 33 L.Ed. 766, following
Odd Fellows Savings [& Commercial] Bank v. Quillen, 11 Nev. 109.
And in Dotta v. Hesson, supra, Mr. Justice Norcross, in the opinion, on page 4 of 38 Nev., on
page 305 of 143 P., stated: since the passage of a special act by the legislature of 1895,
providing for the establishment of a county high school for Elko county (Stats. 1895, p. 59), a
number of similar acts have been passed authorizing the establishment of such schools in the
counties of Churchill (Stats. 1905, p. 144), Lyon (Stats. 1909, p. 145), Humboldt (Stats. 1913,
p. 45), White Pine (Stats. 1913, p. 4), and possibly others, inclusive of the act in question.
The passage of these several acts shows that the Legislature and the people generally have
regarded such acts as not violative of the Constitution as it has been interpreted by numerous
decisions of this court. It would be unfortunate indeed if we were now bound to hold this
legislation unconstitutional. Whatever room there may have been for argument when the
question was first presented as to whether this character of legislation was within the
constitutional inhibition, the question can no longer be regarded as an open one. The
constitutionality of similar legislation has been before the court repeatedly, and universally
sustained. (State v. Lytton, 31 Nev. 67, 99 P. 855, and authorities therein cited; Quilici v.
Strosnider, 34 Nev. 9, 115 P. 177.) There have been only three cases in this court dealing
with the general act of March 20, 1933, providing for submission to a vote of the electors,
of a proposal by counties, cities, etc., for the issuance of bonds, namely: State ex rel.
Cooper v. Reese, City Clerk, 57 Nev. 125, 59 P.2d 647; Ronnow v. City of Las Vegas, 57
Nev. 332, 65 P.2d 133; and Washoe County Water Conservation District v. Beemer, supra.
There have been only three cases in this court dealing with the general act of March 20,
1933, providing for submission to a vote of the electors, of a proposal by counties, cities, etc.,
for the issuance of bonds, namely: State ex rel. Cooper v. Reese, City Clerk, 57 Nev. 125, 59
P.2d 647; Ronnow v. City of Las Vegas, 57 Nev. 332, 65 P.2d 133; and Washoe County
Water Conservation District v. Beemer, supra. In State ex rel. Cooper v. Reese, supra, this
court held the general act of March 20, 1933, being a later act than the special acts of 1905
and 1913 involved in that case, and which were applicable only to the city of Reno, repealed
the special acts, to the extent of the conflict. The constitutional question of applicability was
not determined in that case.
In Ronnow v. City of Las Vegas, supra, this court upheld a special act of 1935, Stats.
1935, p. 41, amending the charter act of the city of Las Vegas. It was contended by the
respondent in that case that the said special amendatory act of 1935 was, virtually, a
reenactment of the statute of 1931 and prior statutes, and, hence, that the general act of March
20, 1933, was later and operated to repeal that portion of the amendatory act of 1935 in
conflict with the said general act. The two acts, insofar as the question of requiring a vote of
the electors as to the proposed bond issue was involved, were clearly repugnant. The act of
1935 required a submission to a vote of the electors only in the event a petition was signed by
a certain percentage of the electors, demanding a special election to pass upon a proposed
bond issue. This special act would apply to all future bond issues in the city of Las Vegas,
unless repealed, but the court disagreed that same was a mere reenactment of earlier statutes,
and held that the said special act of 1935 was the later act and must prevail, notwithstanding
the general act of March 20, 1933. The constitutional question was not directly presented to
the court in that case, but was necessarily involved. This court, in the opinion by Justice
Taber, stated, on page 369 of 57 Nev., on page 147 of 65 P.2d: "The act of 1933 cannot be
reconciled with said clause 5 as amended in 1935.
369 of 57 Nev., on page 147 of 65 P.2d: The act of 1933 cannot be reconciled with said
clause 5 as amended in 1935. The two statutes are so inconsistent and repugnant that they
cannot stand together, and it seems clear to us that the Legislature did not intend the general
act of 1933 to be applicable, in the City of Las Vegas, to such a bond issue as the one which
constitutes the subject matter of this proceeding.
Reverting again to Washoe County Water Conservation District v. Beemer, supra, that
case, unquestionably, when considered in relation to the question now confronting us, is more
similar to the instant situation than any other heretofore decided by this court.
In the instant case, the act of March 27, 1945, is a special or local law, or both; it was
passed later than the general act of March 20, 1933; the facts, circumstances and conditions
clearly indicate an emergency exists now and did exist when the said act of 1945 was passed,
and we will presume they were the basis of the action of the Legislature in passing said act of
1945; and the constitutional question of whether said general act of 1933 was, or could be
made, applicable is directly presented. All of these factors were involved in Washoe County
Water Conservation District v. Beemer, supra. In that case, the special act involved was an
act approved February 28, 1935, and not the special act of March 27, 1945, involved in the
instant case, but there was no difference in principle between the situation in the two cases.
12. We will now quote further, from Washoe County Water Conservation District v.
Beemer, supra, certain statements bearing directly upon the relative functions and powers of
the court and the legislature, in considering and determining the constitutionality of a special
or local law, when the question involved is whether a general law is, or can be made,
applicable, within the meaning of sec. 21 of art. IV of the Nevada constitution. On pages 121,
122 of 56 Nev., on page 784 of 45 P.2d, in the opinion in that case, Justice Taber stated: "We
are accordingly brought to consider whether a general act is or would be applicable.
We are accordingly brought to consider whether a general act is or would be applicable.
Where there is already a general act such as that of March 20, 1933, hereinbefore mentioned,
it is sometimes argued that that fact alone shows that a general act would be applicable; but
such is not the law. In Hess v. Pegg, supra, the court said the inference was the other way, and
that the very passage of the law raises the presumption that the general act was not and could
not be made applicable.
Whether or not a general law is or would be applicable is for this court to decide; but in
the absence of a showing to the contrary, the court seldom goes contra to the very strong
presumption that the Legislature has good reason for determining that a general law is not or
would not be applicable in some particular cases. Upon this subject the court in Hess v. Pegg,
supra, had this to say: For this court to oppose its judgment to that of the legislature,
excepting in a case admitting of no reasonable doubt, would not only be contrary to all well
considered precedent, but would be an usurpation of legislative functions. It cannot be denied
that the tendency in some states of this Union is that way, undoubtedly from good motives;
but the sooner the people learn that every act of the legislature not found to be in clear,
palpable and direct conflict with the written constitution, must be sustained by the courts,
the sooner they will apply the proper correction to unjust or impolitic legislation, if such there
be, in the more careful selection of the members of that branch of the state government to
which they have delegated and in which they have vested the legislative authority of this
state. No court should, and this court will not, step out of the proper sphere to undo a
legislative act; and therein, no court should, and this court will not, declare any statute void
because unconstitutional, without clear warrant therefor.'
If in the case at bar a clear showing had been made that the passage of the Act of
February 28, 1935, was a mere trick for the purpose of evading the Act of March 20, 1933,
or that the Legislature's reasons for passing the 1935 act were unsubstantial and purely
fanciful, the court would have had a different situation presented for its consideration;
but no such showing having been made, and the court being unable, after considering the
act of February 2S, 1935, and the record in this case, to say that it is clearly satisfied that
a general act could be made applicable, it becomes the duty of the court to abide by the
presumption that the legislative branch of the state government had a reasonable basis
for deciding that a general act would not be applicable, and that it was proper to pass the
Act of February 2S, 1935, in order to meet the particular and peculiar situation with which
it was dealing."
mere trick for the purpose of evading the Act of March 20, 1933, or that the Legislature's
reasons for passing the 1935 act were unsubstantial and purely fanciful, the court would have
had a different situation presented for its consideration; but no such showing having been
made, and the court being unable, after considering the act of February 28, 1935, and the
record in this case, to say that it is clearly satisfied that a general act could be made
applicable, it becomes the duty of the court to abide by the presumption that the legislative
branch of the state government had a reasonable basis for deciding that a general act would
not be applicable, and that it was proper to pass the Act of February 28, 1935, in order to
meet the particular and peculiar situation with which it was dealing.
13. For the reasons indicated, it is clear that we would not be justified in holding, in the
instant case, that the general act of March 20, 1933, was, or could have been made, applicable
to meet the peculiar and particular situation in the nature of, or analogous to, an emergency,
which existed March 27, 1945, and still exists, nor that the provisions of said general act of
1933 were adequate for that purpose and that the said act of 1945 is unconstitutional. To so
hold, we would have to be convinced, beyond a reasonable doubt, of the applicability of the
said general act and the unconstitutionality of the said special act, and we are not so
convinced.
It is, therefore, ordered that the peremptory writ of mandamus issue.
Eather, C. J., concurs.
Taber, J., died February 6, 1947, and successor not yet qualified.
____________
64 Nev. 102, 102 (1947) Geller v. McCown
CHARLES GELLER, Appellant, v. ALICE B.
McCOWN, Respondent.
No. 3469
February 19, 1947. 177 P.2d 461.
1. Evidence.
Courts do not take judicial notice of either the written or unwritten laws of a foreign country.
Where existence of a foreign law is an ingredient of a cause of action, formal allegation and proof of
it is necessary.
3. Statutes.
A statute of another state, if the statute is essential to the action or defense, must be pleaded, since it is
regarded as a fact, rather than a law.
Complaint by widow to recover dower in husband's realty under laws of the Yukon Territory was
insufficient where the laws of the territory were not pleaded, since it would be assumed that such laws
were the same as Nevada which abolished dower rights. Comp. Laws, sec. 3361.
Appeal from Sixth Judicial District Court, Humboldt County; Thomas J. D. Salter, Judge.
Action by Alice B. McCown against Charles Geller, as administrator with will annexed of
the estate of Malcolm S. McCown, deceased, on plaintiff's rejected claim against the
deceased's estate for alleged dower and community property. From a judgment and an order
overruling defendant's demurrer to an amended complaint, the defendant appeals. Judgment
reversed and cause remanded with directions to set aside judgment.
J. A. Langwith, of Winnemucca, and Geraldine McCown and Fred L. Berry, both of San
Francisco, Calif., for Appellant.
Anthony Turano, of Reno, and George Olshausen and Philander Brooks Beadle, both of
San Francisco, Calif., for Respondent.
OPINION
By the Court, Eather, C. J.:
This is an appeal from a judgment and from an order of the trial court overruling
appellant's demurrer to an amended complaint.
The action was commenced by Alice B. McCown, the divorced wife of deceased, Malcolm
S. McCown, against Charles Geller, as administrator with the will annexed of the estate of
said deceased, Malcolm S. McCown, on her rejected claim for $15,143.75, arising out of her
claim to alleged dower and community property now claimed as a portion of the property of
the said deceased's estate.
Defendant-appellant demurred to respondent's amended complaint, and did not answer
when the demurrer was overruled. Upon appellant's failure to so answer respondent caused
appellant's default to be entered. Whereupon, the clerk of the trial court, upon application of
respondent's attorneys, caused judgment to be entered in favor of plaintiff and respondent and
against defendant and appellant, and to be duly recorded, for the total sum of $15,143.75,
together with costs of suit as prayed for in said amended complaint.
This appeal is by the appellant from the order disallowing appellant's demurrer to the said
amended complaint and from the judgment entered therein. The appeal is upon the judgment
roll alone.
The alternative claim for a share of the community property is not made in the amended
complaint and is not involved on this appeal.
Respondent alleges that decedent, Malcolm S. McCown, in addition to items set out in
paragraph V of the amended complaint, owned undescribed realty in Yukon Territory,
Canada, at the time of the marriage of the decedent and respondent, and that at the time of
said marriage decedent, Malcolm S. McCown, also owned "other property" undescribed in
said Yukon Territory, in which respondent alleges in the amended complaint, "that
plaintiff is entitled to a one-third share by virtue of dower under the laws of said Yukon
Territory."
owned other property undescribed in said Yukon Territory, in which respondent alleges in
the amended complaint, that plaintiff is entitled to a one-third share by virtue of dower under
the laws of said Yukon Territory. While several points are advanced by appellant against the
sufficiency of the amended complaint, we think that one is decisive thereof, and we will
therefore not discuss the others.
There is no law governing the allotment of dower rights in Yukon Territory pleaded in said
amended complaint so that the trial court might know what laws existed in Yukon Territory
governing such matters. The law of Yukon Territory or of the Dominion of Canada was
nowhere pleaded in said amended complaint.
In Wickersham v. Johnson, 104 Cal. 407, 38 P. 89, 43 Am.St.Rep. 118, the court said:
There was no evidence at all tending to show what the law was in the foreign country
touching any of the questions which are raised here, and it must therefore be assumed that the
law with respect to those matters was the same there as in California, citing Norris v. Harris,
15 Cal. 226, 254, in which it was stated: It is a well settled rule, founded on reason and
authority, that the lex fori, or, in other words, the laws of the country to whose courts a party
appeals for redress, furnish in all cases, prima facie, the rule of decision; and if either party
wishes the benefit of a different rule or law, as for instance, the lex domicilii, lex loci
contractus, or lex loci rei sitae, he must aver and prove it. The courts of a country are
presumed to be acquainted only with their own laws; those of other countries are to be
averred and proved, like other facts of which courts do not take judicial notice, and the mode
of proving them, whether they be written or unwritten, has been long established.
See also cases cited therein.
1. The courts do not take judicial notice of either the written or unwritten laws of a
foreign country.
In view of the rule that courts will not take judicial notice of the laws of a foreign
country, such laws must be pleaded and proved the same as any other question of fact.
notice of the laws of a foreign country, such laws must be pleaded and proved the same as
any other question of fact. 31 C.J.S., Evidence, sec. 21, page 537; Banque de France v. Chase
Nat. Bank of City of New York, 2 Cir., 60 F. 2d 703, and cases therein cited.
Section 3361, N.C.L.1929, provides as follows:
No estate is allowed the husband as tenant by courtesy, upon the death of his wife, nor is
any estate in dower allotted to the wife upon the death of her husband.
In Buhler v. Maddison, 105 Utah 39, 140 P.2d 933, 938, the court said:
Owing to the fact that the judgment must be reversed and a new trial must be granted, in
order to properly maintain any action plaintiff will have to amend his pleadings to show
whether he seeks recovery under the Utah statutes or under the Nevada statutes. If under the
latter, he must plead the statutes on which he will rely. We do not wish to be understood as
holding that plaintiff would be entitled to recover if he were to plead the Nevada statutes, but
if such is his theory of recovery it should be shown in the pleadings.
2. Where the existence of a foreign law is ingredient of cause of action, formal allegation
and proof of it is necessary. Platner v. Vincent, 194 Cal. 436, 229 P. 24.
3. It is elementary that a statute of another state, if essential to the action or defense, must
be pleaded. It is regarded as fact, not law. Fern v. Crandell, 79 Colo. 403, 246 P. 270, and
cases cited therein.
4. The law of Yukon Territory not being adequately pleaded it would be assumed that the
law applicable to respondent's claim would be the Nevada rule of law which is provided by
the statute, section 3361, N.C.L. 1929, supra, that there is no dower law in Nevada. This rule
is sustained also in Wickersham v. Johnson, supra, and cases therein cited.
The judgment is therefore reversed and the cause remanded to the district court with
directions to set aside the judgment; respondent to be allowed to amend her pleadings.
aside the judgment; respondent to be allowed to amend her pleadings. Costs to appellant.
Mr. Justice E. J. L. Taber participated in the hearing of this matter but passed away before
this opinion was written.
On Petition for Rehearing
March 14, 1947. 178 P.2d 380.
1. Statutes.
The rule requiring foreign statutes to be pleaded is not complied with by a statement
of the supposed effect of the statute, since such a statement is no more than a
conclusion or an interpretation of the law by the party pleading.
One who relies on a foreign statute as the foundation of a cause of action or defense
must in absence of statutory provision to the contrary, not only plead and prove the
statute, but must plead the construction of the statute as interpreted by the courts of the
state in which it was enacted, except where it is otherwise proved by statute.
3. Statutes.
Statement, in complaint, that plaintiff was entitled to one-third share of deceased
husband's estate by virtue of dower under laws of Yukon Territory, was no more than a
conclusion or interpretation of the plaintiff, and court would not know what laws
existed in Yukon Territory.
Rehearings are not granted as a matter of right and are not allowed for purpose of
reargument, unless there is reasonable probability that the court may have arrived at an
erroneous conclusion.
Appeal from Sixth Judicial District Court, Humboldt County; Thomas J. D. Salter, Judge.
Rehearing denied.
J. A. Langwith, of Winnemucca, and Geraldine McCown and Fred L. Berry, both of San
Francisco, Calif., for Appellant.
Anthony M. Turano, of Reno, and George Olshausen and Philander Brooks Beadle, both
of San Francisco, Calif., for Respondent.
OPINION
We see no merit in the petition for rehearing filed in this case. It does not, in fact, call for
serious consideration. The contention made is that a rehearing is necessary because the
opinion had completely misconceived the issue. It purports to decide a matter which was
never disputed and assumes as a premise the very point on which the appeal turns. We are
amazed at this contention of counsel. We should deny the petition without comment but for
the fact that the court is charged with having misconceived the issue. Counsel for respondent
states that all that the opinion does is to quote the language of the amended complaint, that
plaintiff is entitled to a one-third share by virtue of dower under the laws of said Yukon
Territory,' and then to say The law of Yukon Territory or the Dominion of Canada was
nowhere pleaded in said complaint.'
Counsel is correct in the above quotation from our opinion. However, we further state in
our opinion, there is no law governing the allotment of dower rights in Yukon Territory
pleaded in said amended complaint so that the trial court might know what laws existed in
Yukon Territory governing such matters. The law of Yukon territory or of the Dominion of
Canada was nowhere pleaded in said amended complaint.
1. The rule requiring foreign statutes to be pleaded is not complied with by a statement of
the supposed effect of the statute, the view being taken that such a statement is no more than
a conclusion or an interpretation of the law by the party pleading, the correctness of which the
court has no means of determining in the absence of the statute; and as it involves no issues
of fact, it is not even necessary to deny it. 59 C.J. 1206, sec. 748 and cases therein cited.
2. When one relies on a foreign statute as the foundation of a cause of action or defense,
he must in the absence of statutory provisions to the contrary, not only plead and prove
the statute, but by the weight of authority he also must plead the construction of the
statute as interpreted by the courts of the state in which it was enacted, except where it
is otherwise proved by statute.
absence of statutory provisions to the contrary, not only plead and prove the statute, but by
the weight of authority he also must plead the construction of the statute as interpreted by the
courts of the state in which it was enacted, except where it is otherwise proved by statute. 59
C.J. 1207, sec. 752, and cases therein cited.
3. The portion of the amended complaint which states: That plaintiff is entitled to a
one-third share by virtue of dower under the laws of Yukon Territory, is no more than a
conclusion or an interpretation of the party pleading, therefore the foreign statute not being
pleaded in the amended complaint, the trial court would not know what laws existed in
Yukon Territory governing such matters. We do not agree with the New York case of Berney
v. Drexel, 33 Hun, N.Y., 34, which respondent so earnestly relies upon. Same is exceptional
and is not supported by weight of authority.
4. Rehearings are not granted as a matter of right (Twaddle v. Winters, 29 Nev. 88, 85 P.
280, 89 P. 289), and are not allowed for the purpose of reargument, unless there is reasonable
probability that the court may have arrived at an erroneous conclusion. State v. Woodbury, 17
Nev. 337, 30 P. 1006.
We have given the petition for rehearing due consideration but are not persuaded that our
decision is wrong.
The petition for rehearing is hereby denied.
Taber, J., participated in the original hearing of this matter, but at the time of consideration
of this petition for rehearing his successor has not qualified.
____________
64 Nev. 109, 109 (1947) Farnow v. District Court
HARRY D. FARNOW, Petitioner, v. DEPARTMENT 1 OF THE EIGHTH JUDICIAL
DISTRICT COURT OF THE STATE OF NEVADA, in and for the County of Clark Et
Al., Respondents.
No. 3465
February 24, 1947. 178 P. 2d 371.
1. Forcible Entry and Detainer.
Under statute respecting issuance of temporary writ of restitution in forcible entry and detainer
proceeding, application is for the writ and not for an order, and the customary written order of applicant
requiring that writ issue is merely incidental. Comp. Laws, sec. 9140.
2. InjunctionMotions.
Ex parte motions, or motions without notice, are frequently permissible in procedural matters, and
also in situations and under circumstances of emergency, as in case of application for injunction to
prevent irreparable injury which would result from delay and where there is no speedy, plain, and
adequate remedy at law.
3. Landlord and Tenant.
The 1939 amendment to forcible entry and detainer act respecting issuance of temporary writ of
restitution on filing of bond by applicant, was intended to partake of same summary character as original
act, and objective was to afford landlords speedy and summary dispossession of tenants, and omission of
all provisions for notice and hearing merely manifested legislative intention of immediate issuance of writ
upon application being made. Comp. Laws, secs. 9132-9152, 9140.
The statute respecting issuance of temporary writ of restitution in forcible entry and detainer
proceedings, manifests intent that proceedings are to be ex parte, and consequently notice and
opportunity to be heard and to defend, which are essential to due process, are not furnished by provisions
of civil procedure rule and court rule relating to notice. Comp. Laws, secs. 8909, 8913.01, 8921, 9140,
9150; Rules of District Court, rule 10; U.S.C.A.Const.Amend. 14; Const. Nev. art. 1, sec. 8.
5. Statutes.
The construction placed on statute by Nevada courts and legal profession generally is persuasive but
not necessarily controlling.
The constitutional requirement of notice will not be deemed implied in statute, but the statute itself
must specifically require notice. U.S.C.A.Const.Amend. 14; Const. Nev. art. 1, sec. 8.
7. Forcible Entry and Detainer.
The proceeding in unlawful detainer is a statutory proceeding and remedy, unknown to the common
law. Comp. Laws, secs. 9132-9152.
8. Action.
A statute providing summary procedures and remedies is presumably exclusive and complete as to the
procedure to be followed under such statute.
The statute respecting issuance of temporary writ of restitution on filing of bond by applicant in
forcible entry and detainer proceedings empowers landlord to dispossess tenant without notice or
opportunity to be heard and is unconstitutional as denying due process. Comp. Laws, sec. 9140; Const.
Nev. art. 1, sec. 8; U.S.C.A.Const.Amend. 14.
The minimum essentials of due process on application for writ of restitution are notice to defendant
and opportunity to be heard and fixing of amount of indemnity bond in the light of facts elicited at the
hearing. Comp. Laws, sec. 9140; Const. Nev. art. 1, sec. 8; U.S.C.A.Const.Amend. 14.
A landlord cannot dispossess a tenant without first showing by competent, relevant and material
evidence at a hearing judicially, fairly and impartially conducted, the existence of sufficient facts to
establish at least prima facie the clear right to immediate possession of property involved. Comp. Laws,
sec. 9140; Const. Nev. art. 1, sec. 8; U.S.C.A.Const.Amend. 14.
Original proceeding in prohibition by Harry D. Farnow against Department 1 of the Eighth
Judicial District Court of the State of Nevada, in and for the County of Clark and another.
Order in accordance with opinion.
Platt & Sinai, of Reno, and McNamee & McNamee, of Las Vegas, for Petitioner.
Thatcher, Woodburn and Forman, of Reno, and Morse & Graves, of Las Vegas, for
Respondents.
OPINION
Las Vegas Aerie No. 1213, Fraternal Order of Eagles, brought an action in the Eighth
judicial district court, Clark County, against Harry D.
Clark County, against Harry D. Farnow, petitioner herein, praying judgment for the restitution
of certain valuable premises in the business district of the city of Las Vegas. Farnow's
demurrer to the complaint was overruled, whereupon he answered the complaint, and
thereafter plaintiff served and filed its reply.
Plaintiff's said action was brought under the provisions of the forcible entry and detainer
chapter of the civil practice act, secs. 9132-9152, N.C.L. 1929: At any time after the filing of
complaint and issuance of summons, upon application therefor, the court may issue a
temporary writ of restitution; provided, however, that before the issuance of such writ the
party applying therefor shall execute, present for approval of the court and file a good and
sufficient bond, provided by law, in the sum of not less than five hundred ($500) dollars, to
indemnify the party or parties against whom the temporary writ may be issued. Stats. of
Nevada 1939, chap. 135, pp. 171, 172, 2 N.C.L.Supp. 1931-1941, p. 1232, sec. 9140.
After filing its said reply and before the expiration of the time allowed by law for
defendant to demur thereto, plaintiff, acting under the provisions of said amendatory
provision, made an ex parte application to the district court for a temporary writ of restitution.
That court without any notice to defendant Farnow, directed the issuance of the writ after first
requiring plaintiff to furnish a bond in the sum of $5,000. Upon being issued, the writ was
placed in the hands of the sheriff of Clark County. Thereupon Farnow applied to this court for
a writ of prohibition, and an alternative writ was issued.
In his application petitioner alleges, among other things, that he conducts a drug store
business in the premises described in the complaint; that the volume of business for several
months preceding the filing of his application had exceeded the sum of $500 gross per day;
that he believes the amount of his said gross income will increase day by day; that he employs
15 persons to handle said business; that licensed pharmacists dispense prescriptions
needed for the health of the community; and that unless the sheriff be restrained from
serving the writ, Farnow will be damaged to the extent of $25,000 or more.
handle said business; that licensed pharmacists dispense prescriptions needed for the health of
the community; and that unless the sheriff be restrained from serving the writ, Farnow will be
damaged to the extent of $25,000 or more. He further alleges that the provisions of said
amended sec. 9140, insofar as they provide for an ex parte issuance of a temporary writ of
restitution, are unconstitutional and void in that they deprive the person against whom the
writ is issued of due process of law; that the designation of a bond in the sum of $5,000.00 by
said District Court in said particular action was in excess of its jurisdiction, was
discriminatory against your petitioner, and if said writ of restitution is allowed to be enforced
said petitioner will be irreparably damaged thereby; that the amount of said bond is
inequitable. * * * that the provisions of Nevada Compiled Laws 9140, as amended, are
discriminatory and unconstitutional insofar as they provide for an ex parte issuance of a
temporary writ of restitution without an appeal therefrom.
Respondents, as a return to the alternative writ, demurred to the petition upon the ground
that it does not state facts sufficient to constitute a ground for the issuance of a writ of
prohibition. Thereafter said petition and return came on for hearing, and upon submission of
the matters argued, it was stipulated that the court might enter its ruling upon reaching a
decisionthe opinion to be filed later at the convenience of the court. After due
consideration, this court made the following order: It is now ordered and adjudged that the
alternative writ heretofore issued be, and the same is hereby, made final, upon the ground that
the lower court was without jurisdiction to make the orders complained of in the petition and
exceeded its jurisdiction in making said orders, and that petitioner has no other plain, speedy
and adequate remedy in the ordinary course of law. Said court lacked jurisdiction and
exceeded its jurisdiction because the last sentence of amended sec.
9140, N.C.L. 1929, Stats. of Nevada 1939, chap. 135, pp. 171, 172, 2 N.C.L.Supp.
1931-1941, p. 1232, is unconstitutional in that it violates the provisions of the due process
clause of the state and federal constitutions. [Const. Nev. art. 1, sec. 8; Const.U.S. Amend.
14]. It is further ordered and adjudged that the respondents be permanently restrained from
any further proceedings under said statutory provision.
Before any opinion was prepared or filed by the court, respondents filed a petition for
rehearing, to which petitioner thereafter filed his answer. We granted a rehearing, and oral
arguments thereon were subsequently presented by counsel for the respective parties. This
opinion is intended to cover both our original ruling and the rehearing.
The single sentence added to sec. 9140 by way of amendment in 1939 is the only statutory
provision in this state dealing with writs of restitution in forcible entry or unlawful detainer
proceedings. Does this amendment violate the due process clauses of the Nevada and United
States constitutions? After careful reconsideration on the rehearing we have concluded our
original decision was correct.
The amendment empowers a landlord to dispossess his tenant without notice or an
opportunity to be heard. It is the most drastic remedy we know of in cases of this kind. In
State ex rel. German Sav. & Loan Soc. v. Prather, 19 Wash. 336, 53 P. 344, 67 Am.St.Rep.
729, one of the authorities relied on by respondents, the constitutionality of a statute was
upheld, though it contained the following provision: The plaintiff, at the time of
commencing an action of forcible entry or forcible detainer or unlawful detainer, or at any
time afterwards, may apply to the judge of the court in which the action is pending for a writ
of restitution restoring to the plaintiff the property in the complaint described, and the judge
shall order a writ of restitution to issue. 2 Ballinger's Codes and Statutes, sec. 5534, pp.
1545, 1546.
1546. The statute required, as does the Nevada amendment, that plaintiff must furnish a bond
before the writ issue.
But the Washington statute contained these further provisions: The sheriff shall, upon
receiving the writ of restitution, forthwith serve a copy thereof upon the defendant, his agent
or attorney, or a person in possession of the premises, and shall not execute the same for three
days thereafter, within which time the defendant, or those in possession of the premises, may
execute to the plaintiff a bond to be filed with and approved by the clerk of the court, in such
a sum as may be fixed by the judge, with two or more sureties to be approved by the clerk of
said court, conditioned that they will pay the plaintiff such sum as the plaintiff may recover
for the use and occupation of the said premises, or any rent found due, together with all
damages the plaintiff may sustain by reason of the defendant occupying or keeping possession
of said premises, and also all the costs of the action. * * * The plaintiff or defendant at any
time, upon two days' notice to the adverse party, may apply to the court or any judge thereof
for an order raising or lowering the amount of any bond in this chapter provided for. Either
party may, upon like notice, apply to the court or any judge thereof for an order requiring
additional or other surety or sureties upon any such bond. Upon the hearing of any application
made under the provisions of this section evidence may be given. The judge after hearing any
such application shall make such an order as shall be just in the premises. 2 Ballinger's Codes
and Statutes, secs. 5535, 5536, p. 1546.
Thus it is seen that under the provisions of the Washington statute the sheriff could not
execute the writ for three days after receiving it; and within that time, as the court in the
Prather case points out, the defendant could execute a counter bond. Also, either plaintiff or
defendant could apply for a raising or lowering of bonds and for the requiring of additional
or other sureties.
and for the requiring of additional or other sureties. Notwithstanding these provisions
designed to protect the defendant (provisions entirely absent in the Nevada statute), the
supreme court of Washington, in Big Bend Land Co. v. Huston, 98 Wash. 640, 168 P. 470,
472, referred to the remedy by writ of restitution as a summary process at best severe and
drastic in character.
Mehlin v. Ice, 56 F. 12, 15, another case relied upon by respondents, came up to the circuit
court of appeals for the Eighth circuit from the United States court in the Indian Territory.
The Cherokee statute involved in that case authorized the clerk to issue a writ of ejectment,
but only after 10 days notice and a hearing. The court said in part: Complaint is made that
the mode of proceeding prescribed by the statute is too summary to be regarded as due
process of law under the constitution of the United States. But it is very clear the act in no
manner conflicts with that instrument. The proceedings are not so summary as the
proceedings authorized in like cases by the statutes of some of the states. By the law of
Arkansas, when a complaint is filed in case of forcible entry and detainer, it is made the duty
of the clerk to forthwith issue a writ to dispossess the defendant, without any preliminary
inquiry whatever into the truth of the complaint. But an examination of the Arkansas
forcible entry and detainer statutes, Pope's Dig. sec. 6032 et seq., discloses that if the
defendant desires to retain possession of the premises he may so signify to the officer, who
shall then give him five days in which to execute a counter bond, and if such bond be given,
then the premises are left in defendant's possession. The statute also provides that the
defendant may except to the plaintiff's bond. There are no such provisions in the Nevada
statute.
There seem to be very few states in which provision is made for temporary writs of
restitution in forcible entry or unlawful detainer cases. We know of only five states in which
such statutes existArkansas, California, Nevada, Texas and Washington.
Nevada, Texas and Washington. In Texas, Vernon's Ann.Civ.St. art. 3978, as in Washington
and Arkansas, the defendant is given time (six days after service of citation) within which to
furnish a counter bond, and if the bond be furnished, the premises remain in his possession.
In 1937 California's chapter on forcible entry and detainer was amended by the addition of
a section providing in part that: Upon filing the complaint the plaintiff may have immediate
possession of the premises by a writ of possession issued by the judge or justice and directed
to the sheriff of the county for execution, where it appears to the satisfaction of the judge or
justice, from the verified complaint, or from an affidavit filed by or on behalf of the plaintiff,
that the defendant is insolvent, or has no property that is subject to execution sufficient to
satisfy the amount of damages sought to be recovered by the plaintiff, or resides out of the
State, or has departed from the State, or cannot, after due diligence be found within the State,
or conceals himself to avoid the service of summons. Code Civ.Proc. sec. 1166a. Harsh as
this statute is, it is yet less drastic than our own, for it is only in one or more of six
contingencies that plaintiff is given the right of immediate possession. It may be observed that
the California statute contains a section, Code Civ.Proc. sec. 1177, similar to our sec. 9150,
N.C.L.1920; notwithstanding this, a serious question has already been raised concerning the
constitutionality of the provision authorizing a writ of possession without notice or hearing.
Southern California Law Review (November, 1937), vol. 11, pp. 30, 31.
Respondents, in their petition for rehearing, have referred us to sec. 8909, N.C.L.1929,
and, in response to an inquiry by the court upon the rehearing as to whether any additional
sections, other than those cited in said petition, were claimed by respondents to be applicable,
have further referred us to sec. 8921, N.C.L. 1929 and sec.
sec. 8913.01, N.C.L.Supp. 1931-1941 as pertinent and applicable to, and by implication
included in, the procedure under sec. 9140, N.C.L. 1929, as amended.
On page 3 of said petition, the respondents stated: Section 9140 is a part of the Civil
Practice Act and as such must be construed with the other sections of that act. Section 8909,
N.C.L. 1929, a portion of the same act, reads as follows: Every direction of a court or judge
made or entered in writing, and not included in a judgment, is denominated an order. An
application for an order is a motion.
Respondents on said page 3 have stated further that: It will be noted, therefore, that in the
instant case the Las Vegas Aerie No. 1213, was required to move the court for an order
issuing the temporary writ of restitution. Under the settled procedure in this state, no motion
may be made without notice or ex parte except those known as motions of course,' and those
required in an emergency.
The question is, can the provisions of these sections cited by respondents, and particularly
sec. 8909, in conjunction with district court rule X, be made applicable, and are same
effective, if they could be applied in connection with sec. 9140, N.C.L. 1929, as amended by
the act of 1939, Statutes 1939, chap. 135, pp. 171, 172, 2 N.C.L. Supp. 1931-1941, p. 1232,
to provide, by implication, the constitutional requirements of notice and opportunity for
hearing before the writ of restitution shall issue, and which are absent from the provisions of
sec. 9140 as thus amended.
1. Under the statute, sec. 9140 and the amendatory act of 1939, the application is for the
writ and not for an order, but, in practice, of course, it is customary for the attorney for the
applicant to present and request an order in writing that the writ issue. The order is merely
incidental, under the language of the statute; however, for the moment, we will consider the
application to be for an order in writing within the meaning of sec.
sec. 8909, and hence, that the application is a motion. We must now resort to said rule X
relating to notice of motion in order to ascertain whether it assures constitutional notice as to
motions or applications of the class provided for by sec. 9140. Rule X is, in part, as follows:
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. * * *.
It is thus clear that ex parte motions are within the classes of motions excepted from the
requirement of notice under rule X.
2. Ex parte motions, that is, motions without notice, are of various kinds and are
frequently and commonly permitted under the Nevada law and practice. They are frequently
permissible in procedural matters, and also in situations and under circumstances of
emergency, as in the case of an application for an injunction to prevent irreparable injury
which would result from delay, and where there is no plain, speedy and adequate remedy at
law.
Chapter 65, N.C.L. 1929, vol. 4 relating to forcible entry and detainer and unlawful
detainer, contains, in several respects, provisions of a summary character. As pointed out by
petitioner in his reply to the petition for rehearing, the original sec. 9140 itself to which the
controverted amendatory provision of 1939 for writ of restitution is appended, provides for a
shortening of the time within which the defendant must appear and defend. In case of
constructive service, publication for as short a period as one week is permissible; and, in case
of personal service, as stated by petitioner, the provisions of the act permit the court to
require the defendant to appear and defend within one or two days, and it is common practice
for the courts of this state to shorten the time to such periods. The legislative intent to be
gathered from the foregoing is inescapable.
to be gathered from the foregoing is inescapable. The defendant may be dealt with
summarily.
3. Considering the nature of the act, we believe the legislature, by the said statute of 1939
amending sec. 9140, intended that the provisions of said amendatory act should partake of the
same summary character as the original act. The objective was to afford landlords the means
of speedy and summary dispossession of tenants. The omission of all provision for notice and
hearing was, we are convinced, intentional on the part of the legislature, in moulding, as they
conceived, the amendatory act into the general pattern of the original.
The provision of the said amendatory act of 1939 that at any time after the filing of
complaint and issuance of summons, upon application therefor, the court may issue a
temporary writ of restitution, and particularly, the words upon application, clearly
manifest the legislative intention that, upon the application being made to the court, the writ
may issue forthwith, or immediately thereafter.
4. Obviously, no notice was contemplated or intended by the legislature, and the
application or motion is ex parte. Consequently, the attempt to imply the notice provision of
district court rule X, in connection with the last sentence of sec. 9140 as thus amended in
1939, must fail, as the application or motion, being ex parte, is excepted by the terms of rule
X from the requirement of notice.
5. Indeed, in practice throughout this state, so far as we are able to ascertain, it appears
that the courts and the legal profession generally have considered the application to be ex
parte, and while that fact is not necessarily controlling in the instant case, it is persuasive.
Section 8909, together with rule X, cannot, therefore, be deemed to furnish, in the instant
situation, the means of assuring to the defendant the notice and opportunity to be heard and to
defend before being deprived of his property, which is essential to due process.
Section 8921 N.C.L.1929 is unavailing to supply the absent requirement of notice in said
sec. 9140, N.C.L. 1929, as amended, for the reason that the former applies only after the
appearance of the defendant, and then only requires notice of subsequent proceedings of
which notice is required to be given.
Under the objectionable provision of sec. 9140, as amended in 1939, irreparable damage
would in many cases be inflicted by the summary dispossession, without notice, before
appearance; and even in cases where the writ of restitution was issued and the summary
dispossession occurred after appearance, the words of which notice is required to be given
would preclude the effective operation of said sec. 8921 as to an ex parte motion, for the
reason that the said words, together with the necessary implication, mean of which notice is
required to be given, by the provisions of the Civil Practice Act of the State of Nevada, of
which said section 8921 is a part; and, as we have hereinbefore stated, ex parte motions are
excepted from such requirement by district court rule X. (Emphasis ours.)
But it may be argued, why is it necessary to hold that the application for the writ of
restitution, or the motion for the order for its issuance, is ex parte, when the sentence in
question in section 9140, as amended in 1939, does not expressly dispense with notice? Why
not leave the character of the application or motion an open question, and apply the doctrine
applied by some very respectable authorities to the effect that a requirement of notice is to be
implied from the very fact that it is a constitutional requirement, irrespective of particular
provisions in the statute under which the proceeding is had?
In 12 Corpus Juris, page 1229; 16 C.J.S., Constitutional Law, sec. 619, p. 1255, it is
stated: But a statute will not be held unconstitutional for failure expressly to provide for
notice, if the requirement of notice may be fairly implied from a consideration of all its
provisions, and according to some authorities a requirement of notice is to be implied
from the very fact that it is a constitutional requirement, irrespective of particular
provisions in the statute under which the proceeding is had.
and according to some authorities a requirement of notice is to be implied from the very fact
that it is a constitutional requirement, irrespective of particular provisions in the statute under
which the proceeding is had. Under this view the statute is not unconstitutional unless it
undertakes to dispense with notice. Other cases, however, hold that the statute itself must
specifically require notice, as otherwise it authorizes proceedings without notice and is,
therefore, unconstitutional.
In support of the view that the constitutional requirement of notice should be deemed
implied, unless the statute dispenses with notice, cases are cited from a number of states by
the respondents.
6. Our answer to the question as to why we do not apply that rule or doctrine is that we
believe the other view, namely, that the statute itself must specifically require notice, as
otherwise it authorizes proceedings without notice and is therefore, unconstitutional (12 C.J.
1229; 16 C.J.S., Constitutional Law, sec. 619, p. 1255), is the sounder and the better view.
Among the states adhering to the doctrine which we approve, and will apply in the instant
case, are: California, Delaware, Oklahoma, Michigan, Wyoming, and Washington.
7. The proceeding in unlawful detainer, provided for in chap. 65, N.C.L.1929, vol. 4, is a
statutory proceeding and remedy, unknown to the common law. This court so stated in Yori
v. Phenix, 38 Nev. 277, 281, 149 P. 180, 181 (cited by petitioner) as follows: What is known
as an action in unlawful detainer, designed to afford to a landlord a summary remedy for the
recovery of demised premises, was unknown to the common law.
8. As before indicated, it is, we believe, the very general view of the courts and the legal
profession in this state, that in determining the requirements of statutes providing summary
procedures and remedies, one need take into consideration only the provisions of the statute
itself, and, of course, the provisions of any act amending it, but not those of general
procedural acts.
it, but not those of general procedural acts. The statute, as to procedure under it, is
presumably exclusive and complete. This construction simplifies and renders more certain,
consistent and uniform the administration of the law, and we believe is more conducive to
equal justice than would be the adoption of the other view. In the instant case, the
respondents, represented by able counsel, proceeded and had the writ of restitution issued and
were about to dispossess petitioner, all without notice or a hearing, obviously for the reason,
as they correctly understood, that the statute sec. 9140, as amended in 1939 by adding the
sentence in question, did not so require. This is a fair illustration of how the attorneys and
courts of Nevada very generally have construed that and other statutes providing summary
remedies.
Should we follow the other view, and attempt, by ingenious reasoning, to make applicable
certain provisions of the civil practice act in order to satisfy the constitutional requirement of
notice and the opportunity to be heard, we would not only, we believe, be construing sec.
9140, as amended in 1939, contrary to the intention of the legislature, but also would be
establishing the cause for much future confusion and uncertainty in the enforcement and
application of the statute, which, we believe, would inevitably lead to and result in
discrimination and injustice.
We will now refer to, and quote from some of the cases expressing the doctrine which we
approve. (These cases are among those cited in petitioner's reply to the petition for rehearing.)
In People v. Broad, 216 Cal. 1, 12 P.2d 941, certiorari denied 287 U.S. 661, 53 S.Ct. 220,
77 L.Ed. 570, the supreme court of California has stated [216 Cal. 1. 12 P.2d 944]:
According to some authorities, a requirement of notice is to be implied from the fact that it
is a constitutional requirement, irrespective of the particular provisions of the statute under
which the proceeding is had; and, according to this view, a statute is not unconstitutional
unless it undertakes to dispense with notice.
unconstitutional unless it undertakes to dispense with notice. 12 Cor.Jur.Constitutional Law,
sec. 1006, p. 1229, and cases cited. But in this jurisdiction the cases have established the rule
that to constitute due process the statute must itself provide for notice * * *.
And in another California case, Moffat Co. v. Hecke, 68 Cal.App. 35, 228 P. 546, the rule
is more fully stated as follows: One who is in the possession of property under a claim of
right cannot be deprived of its possession without due process of law. To constitute due
process the statute itself must provide for notice of a time and place of hearing, giving to the
parties an opportunity to present in a deliberate, regular and orderly manner issues of fact and
law. It is essential to the validity of a statute that it furnish the means whereby one may
enforce his constitutional rights * * *. The law itself must provide for notice and give a right
of hearing. Lacey v. Lemmons, 22 N.M. 54, 159 P. 949, L.R.A. 1917A, 1185.
In Delaware, in the case Spoturno v. Woods, Del.Sup., 192 A. 689, 694, it was stated:
Due process of law, as applied to notice of proceedings under a statute resulting in
judgment, means notice directed by the statute itself, and not a voluntary or gratuitous notice
resting in favor or discretion; and the statutory provisions must not leave open clear
opportunities for a commission of fraud or injustice * * *.
The Oklahoma supreme court in Board of Education v. Aldredge, 13 Okl. 205, 73 P. 1104,
1105, expressed itself as to the rule thus: After a careful examination of all the authorities at
our command, we are clearly of the opinion that the statute must stand or fall as enacted by
the Legislature, and that, where no notice is provided, a court ought not to say that notice is
implied; and, as has been said by other law writers, the question is, not what was done, but
what did the statute authorize to be done.
In the Michigan case, Rassner v. Federal Collateral Soc.,
Soc., 299 Mich. 206, 300 N. W. 45, 49, the court indicated concern, as we have done herein,
as to possible lack of uniformity in the lower courts' application of the provisions for notice
and hearing, were the other rule followed. That court said:
The statute cannot be upheld by assuming that the (lower) courts would uniformly
provide the procedure for giving adequate notice and opportunity for hearing. The statute
must stand as enacted and we cannot assume that the legislature intended the courts to add
necessary saving provisions. * * *
Authorities might be multiplied holding generally that unless a statute in itself provides
for the giving of notice and an opportunity for hearing before property or the possession
thereof can be taken, it violates the constitutional inhibition against taking property without
due process of law. For a general collection of such authorities, see 12 C.J. pp. 1228, 1234
(16 C.J.S., Const. Law, sec. 619); 12 Am.Jur. p. 358.
The supreme court of the State of Wyoming, in the case of Sterritt v. Young, 14 Wyo. 146,
82 P. 946, 949, 4 L.R.A.,N.S., 169, 116 Am.St.Rep. 994, succinctly stated its position as
follows: We are of the opinion that the better reasoning is that the statute must provide for
notice, and that, where none is provided, it should not be implied by the court.
The uncertainty, confusion, and, in consequence thereof, the inconsistency, discrimination
and injustice that would inevitably ensue if the rule that the court (or administrative officer)
will read into the act the constitutional requirement of notice, were followed, is well indicated
by the supreme court of Washington in Northern Cedar Co. v. French, 131 Wash. 394, 230 P.
837, 843. In that case the court stated: It is further argued that since the state and national
Constitutions demand that property may not be taken without notice, and that such is the
settled law, the courts will assume that the Legislature intended that notice should be given,
unless its act expressly or by necessary inference demands the contrary conclusion, and
that, since there is nothing of that character in this act, we will read into it a notice
requirement, or will assume that the director of agriculture will comply with the general
law, and give an opportunity for a hearing.
given, unless its act expressly or by necessary inference demands the contrary conclusion, and
that, since there is nothing of that character in this act, we will read into it a notice
requirement, or will assume that the director of agriculture will comply with the general law,
and give an opportunity for a hearing. An argument which in theory is just as plausible, and in
practice more so, is that, since everybody knows that a legislative act is presumed to be
constitutional until the courts declare the contrary the director of agriculture will do the
natural thing, and follow the authority given him by the legislative act, and annul licenses
without notice.
9. The greatest deficiency in our statute sec. 9140, as amended by the said act of 1939, is
the absence of any provision for notice to the defendant, and for a hearing, and that such
hearing shall be so conducted as to afford him the opportunity to present, in a regular and
orderly manner, issues of fact and law.
Such a provision in the statute itself, in our opinion, is a fundamental requirement of due
process.
The absence from the statute of such a provision, also renders the provision therein for a
bond of not less than $500.00 to indemnify the party or parties against whom the temporary
writ may be issued of little value, for the reason that, upon such an ex parte application, the
court has practically no opportunity to ascertain the facts sufficiently to enable it accurately to
estimate the probable loss to the defendant, should it thereafter be established that the
issuance of the writ and the dispossession of the defendant were wrongful.
In other words, under such ex parte procedure, the court lacks the necessary opportunity
for sufficient knowledge of the facts to enable it intelligently to determine the amount in
which the bond should be fixed in order to assure its adequacy.
The action taken in the instant case, in which the bond was only $5,000, and the probable
loss to the defendant from summary dispossession alleged to be $25,000, furnishes a vivid
illustration of the great, and probably irreparable damage that the petitioner would have
suffered had not this court responded to the prayer of petitioner for the alternative writ of
prohibition.
$25,000, furnishes a vivid illustration of the great, and probably irreparable damage that the
petitioner would have suffered had not this court responded to the prayer of petitioner for the
alternative writ of prohibition. The determination of the amount of the bond should not be
until the time of the hearing.
10. It is our firm conviction that a provision for notice for such time as will assure the
defendant a reasonably sufficient opportunity to be prepared for hearing, and a further
provision assuring an orderly, fair and impartial hearing, and if it appears at such hearing that
the writ shall issue, requiring that the applicant for the writ shall furnish an adequate bond,
the amount of which shall be fixed by the court in the light of the facts elicited at such
hearing, and shall be sufficient to save the defendant harmless in the event the landlord
should finally be found not entitled to the writ, constitute the minimum essentials of due
process in such a proceeding.
11. We do not believe to be constitutional any procedure so speedy, summary and drastic
as to enable a landlord to dispossess a tenant without first showing, by competent, relevant
and material evidence, at a hearing, judicially, fairly and impartially conducted, the existence
of sufficient facts to establish, at least prima facie, the clear right to the immediate possession
of the property involved. The district court, in ordering the issuance of the writ of restitution
in the instant case (as we stated in our original opinion herein) lacked jurisdiction and
exceeded its jurisdiction because the last sentence of amended sec. 9140, N.C.L.1929, Stats.
of Nevada 1939, chap. 135, pp. 171, 172, 2 N.C.L.Supp. 1931-1941, p. 1232, is
unconstitutional in that it violates the provisions of the due process clauses of the state and
federal constitutions.
Perceiving no error in our original decision in the instant case, the same, including the
order of this court permanently restraining the respondents from any further proceedings
under such statutory provision, will stand, and said restraining order will continue in full
force and effect.
stand, and said restraining order will continue in full force and effect.
Taber, J., participated in the consideration of said case and in the preparation of the
foregoing opinion, but died shortly before same was completed.
____________
64 Nev. 127, 127 (1947) Bibb v. City of Reno
THE STATE OF NEVADA upon the Relation of EVELYN R. and JOHN D. BIBB, Et Al.,
Relators, v. CITY OF RENO, Et Al., Respondents.
No. 3476
March 17, 1947. 179 P.2d 366.
1. Quo Warranto.
Owners of agricultural lands annexed by city of Reno could attack the annexation by quo warranto
proceedings, and supreme court could construe the statute authorizing annexation and determine whether
the statute had been misapplied by the city council. Laws 1945, c. 223, sec. 10.505.
An arbitrary, unreasonable, unjust, and unnecessary annexation of lands by a city is invalid.
Legislative acts which directly fix arbitrary and unreasonable city boundaries, or which deprive
landowners of property rights protected by the constitution, are invalid.
Annexation of lands by a city is an administrative act delegated by the legislature, and, like the
administrative acts of the public service commission or of the highway engineer or of the water engineer,
an act of annexation is subject to court review when it is alleged to be arbitrary, unreasonable, unjust,
unnecessary, or in deprivation of property rights.
Charter provisions relating to annexation of land by city of Reno requiring city council to deem
annexation necessary, requiring a hearing and notice, and requiring a five-sixth council vote for
annexation if a majority of freeholders owning the land, the annexation of which is contemplated, protest,
permit only reasonable, just, and necessary annexations. Laws 1945, c. 223, sec. 10.505.
6. Prohibition.
Complaint alleging annexation by city of Reno of agricultural land to the financial loss of the owners
and over owners' protest and that the city only needed to annex the lands for tax revenue, stated cause of
action to prohibit the annexation as being arbitrary and in violation of due process. Laws 1945, c. 223,
sec. 10.505.
A spurt in building activity during a period of prosperity does not justify hasty or ill-advised
annexation of agricultural lands by a city over the protests of the owners.
8. Agriculture, Mines and Minerals.
Public policy in Nevada encourages agriculture and mining as paramount industries.
Charter provision relative to the power of the city of Reno to annex lands does not give city of Reno
the power, over the protest of the owners, to annex arbitrarily, unreasonably, unnecessarily, and to the
financial loss of the owners, an area of agricultural land. Laws 1945, c. 223, sec. 10.505.
Annexation of land by a city is arbitrary, unreasonable, and invalid when the lands are used only for
agriculture or horticulture or are vacant and do not derive special value from adaptability to city use.
The limits of a city cannot be extended by annexation over the protests of the owners of the property
proposed to be annexed to take in unplatted lands merely for the purpose of increasing the city's revenue.
Quo warranto proceeding by the State of Nevada, upon the relation of Evelyn R. and John
D. Bibb, wife and husband, and others, against the City of Reno, a municipal corporation,
Harry E. Stewart, Mayor, and others, councilmen of the city, attacking a Reno city ordinance
annexing agricultural land owned by relators, wherein respondents filed a general demurrer.
Demurrer overruled.
Springmeyer & Thompson, of Reno, for Relators.
Emerson J. Wilson, City Attorney, and Louis V. Skinner, Assistant City Attorney, both of
Reno, for Respondent.
OPINION
Relators, by quo warranto, attack a Reno city ordinance annexing about 50 acres of
agricultural land owned by relators. Respondents, mayor and councilmen, filed a general
demurrer. In substance, the complaint, map, and other exhibits show:
The annexation is a misuse of the city's franchise, is arbitrary, unjust, unreasonable,
unnecessary, and a taking of property without due process, for the following reasons:
Annexation would result in substantial depreciation in value of the lands, now used for
agriculture, ranching, and fruit growing; restrictive city ordinances in effect or which could be
passed would prevent the present uses of the lands and cause a substantial loss of income to
relators.
Annexation would impose heavy taxes without benefit to relators; taxes would be the only
benefit to the city; the lands are not needed for city purposes or for city growth; the many
vacant lots and acres of unplotted land now in the city would provide homes and places of
business for about double the city's present population of some 25,000; proposed annexation
would make Reno a sprawling, irregularly shaped area, partly city and partly country, unable
to satisfy the needs of the people.
The lands are not platted or subdivided, but are irrigated meadows, brush, orchards and
gardens, partly in a canyon, separated from Reno by suburban areas, and distant some two
miles from Reno's business center; the city is not injured by the present uses of the lands;
county land use and land zoning permit relators to farm and ranch the land; city sidewalks
and street lights would be detrimental to the lands.
Only four families live on the land; no public places are on or near the property; the county
peace officers and fire equipment are efficient and sufficient; no city police or fire
protection is needed; relators pay irrigation district water taxes and ditch expenses for
which Reno residents not within the district are not liable.
and fire equipment are efficient and sufficient; no city police or fire protection is needed;
relators pay irrigation district water taxes and ditch expenses for which Reno residents not
within the district are not liable.
Reno does not own or operate water, light, power, fuel, or telephone systems, relators
receive such services from private concerns; there are district schools for county and city
areas; there are difficulties between county and city management and maintenance of
highways half in the county and half in the city; annexation would seriously affect the sewage
disposal plans because the county requires its present area to finance the project; over protest,
the city recently has annexed large areas but does not annex the undesirable and heavily
populated airport area which is in great need of city facilities; no planning commission has
recommended annexation of relators' lands; annexation would destroy the charm of the
country and suburban area, and make the community less attractive.
The attempted annexation is based upon the amended Reno charter (Stats. 1945, p. 429, c.
223, sec. 10.505), as follows:
The city council shall have the power to extend the exterior boundaries or limits of the
city so as to annex or include therein additional lands with the tenements, property, and
inhabitants thereof, by the passage of an ordinance declaring said territory to be annexed;
provided, that the majority of the property owners of the district proposed to be annexed first
petition the city council to annex said territory; and provided further, that when the city
council of the city of Reno deems it necessary to annex additional territory to said city of
Reno, and the inhabitants of said territory have not petitioned for annexation, that the said
city council shall pass a resolution declaring its intention to annex said territory, describing
said territory to be annexed, and ordering a plat of the same to be filed in the office of the city
clerk of said city, and notice to be given as to the time when the city council shall hear
objections to the annexation of said territory on the part of the freeholders residing
therein, and the residents of said city; said notice to be published one week in a
newspaper in said city of Reno, and to be posted in at least three public places in said
district to be annexed, and to be mailed to all known freeholders in said district sought to
be annexed, citing them to appear and show cause, on the date named, why said land
should not be annexed to said city, and giving the reasons why the said land should be
annexed to said city; and provided further, that after said hearing if a majority of the
freeholders residing in said territory sought to be annexed do not protest, the said city
council shall pass an ordinance declaring said property to be annexed to, and be a part of,
the said city of Reno, and shall order a plat showing said territory to be recorded in the
office of the county recorder of the county of Washoe, and said territory shall then be a
part of the said city of Reno and subject to all taxes and laws thereof; and providing
further, that in the event a majority of the freeholders in said territory sought to be
annexed protest against the annexation of said territory, that it will require a five-sixth
{5J6) vote of the council to pass said ordinance annexing said territory to the said city of
Reno."
annexation of said territory on the part of the freeholders residing therein, and the residents of
said city; said notice to be published one week in a newspaper in said city of Reno, and to be
posted in at least three public places in said district to be annexed, and to be mailed to all
known freeholders in said district sought to be annexed, citing them to appear and show
cause, on the date named, why said land should not be annexed to said city, and giving the
reasons why the said land should be annexed to said city; and provided further, that after said
hearing if a majority of the freeholders residing in said territory sought to be annexed do not
protest, the said city council shall pass an ordinance declaring said property to be annexed to,
and be a part of, the said city of Reno, and shall order a plat showing said territory to be
recorded in the office of the county recorder of the county of Washoe, and said territory shall
then be a part of the said city of Reno and subject to all taxes and laws thereof; and providing
further, that in the event a majority of the freeholders in said territory sought to be annexed
protest against the annexation of said territory, that it will require a five-sixth (5/6) vote of the
council to pass said ordinance annexing said territory to the said city of Reno.
The annexation statute is a political declaration by the legislature. We do not pass upon its
policy or wisdom. Respondents argue that we cannot construe the statute, and they insist that
the city has an absolute power to annex. Relators say they have the right to attack the action
of the city by a court proceeding, and that the court must construe the statute in order to
determine whether the city has misapplied its annexation powers.
1, 2. Chief Justice Shaw, famous Massachusetts jurist, said: It is necessary to put
extreme cases to test a principle. We will apply a test: Could Reno annex all farms, ranches
and mines in the county? Could it annex a narrow strip to and then include Lake Tahoe? Or
could it hurdle a hundred miles and annex a gypsum plant in northern Washoe County?
plant in northern Washoe County? The test shows respondents' position is unsound. It is well
settled that a court may construe an annexation statute and determine whether it has been
misapplied by a city council. An annexation which is arbitrary, unreasonable, unjust and
unnecessary will be held invalid. McQuillin on Municipal Corporations, 2d ed. revised vol. 1,
secs. 291, 293.
3. The courts also set aside as invalid legislative acts which directly fix arbitrary and
unreasonable city boundaries, or which deprive landowners of property rights protected by the
constitution. State ex. rel. Davis v. Stuart, 97 Fla. 69, 120 So. 335, 64 A.L.R. 1307; State ex
rel. Davis v. City of Pompano, 113 Fla. 246, 151 So. 485; Searle v. Yensen, 118 Neb. 835,
226 N.W. 464, 69 A.L.R. 257; People v. Daniels, 6 Utah 288, 22 P. 159, 5 L.R.A. 444;
Morford v. Unger, 8 Iowa 82; City of Orlando v. Orlando Water & Light Co., 50 Fla. 207, 39
So. 532; City of Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 27 L.R.A. 751; Langworthy v.
Dubuque, 13 Iowa 86; Fulton v. City of Davenport, 17 Iowa 404; Deeds v. Sanborn, 26 Iowa
419; 37 Am.Jur. sec. 29, p. 647.
4. Of course if a direct legislative act may be set aside by a court, annexation by a city
council which does not rise to the dignity of a legislative act, may be set aside. Annexation by
a city is an administrative act delegated by the legislature. Like the administrative acts of the
public service commission or of the highway engineer or of the water engineer, the
administrative act of a city in annexation is subject to court review when it is alleged to be
arbitrary, unreasonable, unjust, unnecessary, or in deprivation of property rights. The law is
well stated in Stoltman v. City of Clayton, 205 Mo.App. 568, 226 S.W. 315, at page 320, as
follows:
The validity of the extension of municipal boundary lines may be inquired into by the
state by an action in the nature of quo warranto or other direct proceeding. * * * And that the
extension of the boundary lines of a municipal corporation does not rise to the dignity of an
original act of incorporation, see State ex rel. v.
an original act of incorporation, see State ex rel. v. Birch, 186 Mo. 205, 220, 85 S.W. 361;
Warren v. Barber Asphalt Paving Co., 115 Mo. 572, 22 S.W. 490; Parker v. Zeisler, 73
Mo.App. 537, 541. * * * such an ordinance is void if unreasonable and its unreasonableness
is subject to judicial inquiry in which will be applied the same test as to other corporate
legislation. * * *
5. If there is no petition by landowners, Reno may annex when the city council deems it
necessary to annex, gives notice of hearing by publication, posting and mailing, citing
freeholders to show cause why the lands should not be annexed. The notice must give the
reasons why the land should be annexed. If a majority of the freeholders protest, a
five-sixth vote of the council is required. These steps show that the city does not have
absolute or plenary power to annex. As has been said, annexation by the city is an
administrative act. The finding that the council deems it necessary to annex, the giving of
notices, the hearing of protests, and the requirement of a five-sixth council vote, were
intended by the legislature and are construed to permit only reasonable, just, and necessary
annexations. Otherwise the statute, instead of listing the various steps, simply would have
stated that the city could annex any lands it saw fit.
6. The complaint, the map, and other exhibits show that Reno is an irregular shaped,
sprawling area, partly city, partly country. It does not include a bottle-neck, long narrow
corridor used for an aqueduct and power plant, nor the platted airport area used by hundreds
of people for homes and business structures and in great need of city facilities. As there
appear to be in the present area of the city hundreds of vacant lots and hundreds of acres of
unoccupied land, capable of providing homes and places of business for many thousand more
people than now live in Reno, it is clear that Reno does not require either the lands of relators
or the airport area or the aqueduct and power plant area. Reno cannot be compelled to annex
the two areas last named, but its failure to do so shows the injustice of annexing
agricultural lands not used for homes or commercial purposes.
failure to do so shows the injustice of annexing agricultural lands not used for homes or
commercial purposes. The only need Reno has to annex the agricultural lands of relators is
for tax revenue. But annexation for tax revenue only is arbitrary and unreasonable. McQuillin
on Municipal Corporations, 2d ed. revised vol. 1, sec. 293, p. 809.
7. A city is closely built with homes, business, and industrial structures, and included
parks and other recreational areas. Ancient cities were surrounded by walls. City people have
community interests in housing, in business, and in professions. Farms and farmers are out of
place in a city. A spurt in building activity during a period of prosperity, which all too often is
short lived, does not justify hasty or illadvised annexation of agricultural lands over the
protests of the owners.
8. It must not be forgotten that public policy in Nevada and in other western states
encourages agriculture and mining as paramount industries. There is little manufacturing in
the state. Statutes encourage agriculture by giving the right of condemnation for irrigation
ditches and storage reservoirs. This public policy has been declared by many decisions of this
court. It has been recognized by the supreme court of the United States. In Clark v. Kansas
City, 176 U.S. 114, 20 S.Ct. 284, 286, 44 L.Ed. 392, it was held that a city annexation statute
which discriminates in favor of agricultural lands by providing that such lands may not be
annexed, is constitutional. The court said:
* * * It may be the judgment of an agricultural state that they should find a limit in the
lands actually used for agriculture. * * * Other uses * * * can receive all the benefits of the
growth of a city, and not be moved to submit to the burdens. Besides, such uses or
manufacturing uses adjacent to a city may, for its order and health, need control. Affecting it
differently from what farming uses do may justify, if not require, their inclusion within the
municipal jurisdiction.
37 Am.Jur. sec. 30 p. 648, also recognizes the distinction between agricultural lands and
platted areas for annexation purposes.
9. In view of the public policy to encourage agriculture, we hold that the 1945 statute does
not give Reno the power, over the protest of the owners, to annex, arbitrarily, unreasonably,
unnecessarily, and to the financial loss of the owners, an area of agricultural land. We cannot
read into the statute any implied power to annex such lands. In this respect, the owners of 40
or 50 acres receive the same consideration as if they owned ten thousand acres. McQuillin,
sec. 295, p. 814 says:
* * * The reasonable view is that the power to enforce incorporation upon farming lands
which are sparsley settled must be expressly given and will not be implied against private
consent.
See also: People ex rel. Pletcher v. Joliet, 328 Ill. 126, 159 N.E. 206; Harvey Canal Land
& Improvement Co. v. Gelbke, 166 La. 896, 118 So. 75; State v. Pompano, 113 Fla. 246, 151
So. 485; Bingle v. Richmond Heights, Mo.App., 68 S.W.2d 866; People v. Bennett, 29 Mich.
451, 18 Am.Rep. 107.
The map and other exhibits attached to the complaint show that only a small part of
relators' lands is contiguous to Reno. The statute does not in words require that annexed areas
be contiguous to a city. However, as showing again that the statute must be construed to have
a reasonable meaning, similar statutes are construed to mean that noncontiguous lands cannot
be annexed. Among the cases so holding are: Chicago & N. W. Railway Co. v. Town of
Oconto, 50 Wis. 189, 6 N.W. 607, 36 AM.Rep. 840; Indianapolis v. McAvoy, 86 Ind. 587;
Denver v. Coulehan, 20 Colo. 471, 39 P. 425, 27 L.R.A. 751; Morgan Park v. Chicago, 255
Ill. 190, 99 N.E. 388; Cole v. City of Watertown, 34 S.D. 69, 147 N.W. 91.
Even in States where public policy in favor of agriculture is not as strong as in Nevada, the
courts construe the statutes to prevent arbitrary annexation of agricultural lands.
agricultural lands. Thus, in State ex rel. Walker v. Gladewater, Tex.Civ. App., 139 S.W.2d
283, 286, the court held:
To subject the properties of a people to the burden of a municipal government which will
share none of its benefits is unjust, State v. Eidson, supra [76 Tex. 302, 13 S.W. 263, 7
L.R.A. 733], and would result in the imposition of unnecessary burdens and the infliction of
great injuries. * * * And as stated in State v. Masterson [Tex.Civ.App.], 228 S.W. [623], 631,
to permit the incorporation (of relators' lands) in this case to stand, as was attempted, would
be for us to sanction that which is clearly a legal fraud.' Such attempted act was arbitrary,
unreasonable, and violative of the inhibitions of both State and Federal Constitutions, * * *
that a person shall not be deprived of his * * * property without due process of law.'
A recent case is Nolting v. City of Overland, Mo.Sup., 192 S.W.2d 863. The court held
that farm land not platted or offered for sale as town lots and not needed for municipal
purposes, could not be annexed. The court cited a number of cases. The cases all hold that on
facts very similar to the annexation attempted by Reno, annexation is denied.
In City of Pine Bluff v. Mead, 177 Ark. 809, 7 S.W.2d 988, the court denied annexation
and used language which applies to the Reno situation, as follows:
There is much vacant property in the present city limits; that much of that attempted to be
taken in is unplatted and vacant.
Likewise, the language used by the Indiana court in North Judson v. Chicago & E. R. Co.,
72 Ind.App. 550, 126 N.E. 323, 326, is appropriate. Annexation of farm lands was denied.
The court said:
* * * with the surplus of lots, tracts, and farm lands within the present boundaries of the
town, the territory which it is proposed to annex is not necessary.
10, 11. There is no need to give detailed consideration to the many other cases. We accept
the rule approved by McQuillin, sec.
approved by McQuillin, sec. 291, p. 801, and stated in Vestal v. Little Rock, 54 Ark. 321, 15
S.W. 291, 11 L.R.A. 778, 15 S.W. 891, that annexation is arbitrary, unreasonable and invalid
when the lands are used only for agriculture or horticulture, or are vacant and do not derive
special value from adaptability to city use. Earlier in this opinion we referred to McQuillin,
sec. 293, p. 809; The limits of a city cannot be extended to take in unplatted lands merely for
the purpose of increasing the city's revenue.
Upon the facts stated in the complaint, the annexation of relator's lands by the city of Reno
is invalid because it is arbitrary, unjust, unreasonable, unnecessary and in violation of due
process. The said statute of 1945 is not unconstitutional, but we believe respondents'
application of it as to relators' land does violate due process. The demurrer therefore is
overruled. Until further order, the respondents are excluded from the lands of relators
described in the complaint and from having or using any rights, privileges, or corporate
powers thereon.
Respondents also have filed an answer. Relators now may move for judgment on the
pleadings, or move to strike, or demur or reply.
Justice E. J. L. Taber participated in the hearing of this matter but passed away before this
opinion was completed.
____________
64 Nev. 138, 138 (1947) Orr Ditch Co. v. District Court
ORR DITCH AND WATER COMPANY, a Corporation, Petitioner, v. THE JUSTICE
COURT OF RENO TOWNSHIP, COUNTY OF WASHOE, STATE OF NEVADA, Et Al.,
Respondents.
No. 3474
March 18, 1947. 178 P.2d 558.
1. Negligence.
In determining meaning of word excavations, as used in statute requiring shafts, excavations and
holes to be fenced or otherwise safeguarded, the rule of noscitur a sociis as well as the rule of ejusdem
generis may be applied. Comp.Laws, secs. 5630-5635.
2. Statutes.
Technical terms in a statute must be accorded their technical meaning unless statute indicates that
legislature intended otherwise, and there is a presumption that they have been used in a technical sense,
but where it appears that a contrary meaning was intended by the legislature, the common, or
nontechnical, meaning should be applied, or the technical meaning enlarged or restricted so as to
effectuate obvious purpose of legislature.
3. Statutes.
Effect must be given to every part of a statute which is being subjected to process of construction.
4. Statutes.
A construction of a statute which will leave every word operative will be favored over one which
leaves some word or provision meaningless because of inconsistency.
5. Negligence.
The objective of statute requiring shafts, excavations and holes to be fenced or otherwise safeguarded
is to require erection of safeguards around such works or shafts sufficient to securely guard against
danger to persons and animals from falling into such excavations. Comp.Laws, secs. 5630-5635.
6. Constitutional Law, Courts, Justices of the Peace.
To construe the word excavations, as used in statute requiring shafts, excavations and holes to be
fenced or otherwise safeguarded, to include irrigation ditches would compel conclusion that statute is
unconstitutional because to fence or other safeguard irrigation ditches in many instances would require an
expenditure of many thousands of dollars, and jurisdiction under the statute is conferred upon police
judges and justices of the peace whose jurisdiction is limited by constitution as to a money demand to an
amount not to exceed $300, exclusive of interest, and constitutionality of statute in such respect could not
be saved by applying the statute to only part of the excavation. Comp.Laws, secs. 5630-5635; Const.
art. 4, sec. 21; art. 6, secs. 6, 8.
The legislature is presumed to have intended to legislate constitutionally, and, as between two
possible constructions of an ambiguous statute, or an ambiguous word or phrase therein, the construction
should be applied which will lead to the constitutionality of the act in preference to construction which
would lead to its unconstitutionality.
8. Statutes.
Penal statutes must be construed strictly.
9. Negligence.
The statute requiring shafts, excavations and holes to be fenced or otherwise safeguarded and
providing for a fine in addition to a civil penalty in case of each violation, would be regarded as a penal
statute within rule requiring penal statutes to be construed strictly. Comp.Laws, secs. 5630-5635.
10. Statutes.
Statutes in derogation of the common law shall be strictly construed, in absence of any statute
changing the rule.
11. NegligenceWaters and Water Courses.
Under common law, in absence of statute and unless exceptionally dangerous condition exists, there is
no duty upon owners of irrigation ditches, canals, ponds and other artificial bodies of water to fence
them.
12. Statutes.
When it becomes necessary to resort to extraneous matters in order to ascertain meaning of a statute,
court may properly refer to what is generally known as contemporaneous circumstances, including the
history of the time existing when the law was enacted, the previous state of the law, and the evils intended
to be corrected.
13. Statutes.
In interpreting ambiguous statutes, courts may properly consider effect of possible interpretations.
14. Statutes.
Everything being equal in other respects, that interpretation of a statute should be accepted by the
courts as constituting the one intended by the lawmakers which operates most equitably, justly and
reasonably as determined by existing standards of proper conduct and by conceptions of what is right and
what is wrong, what is just and what is unjust.
15. Statutes.
The spirit of a statute will prevail over the strict letter.
16. NegligenceWaters and Water Courses.
The word excavation as used in statute requiring shafts, excavations and holes to be fenced or
otherwise safeguarded, would be construed to mean an opening or cavity in the earth of a kind or type
similar to a shaft or hole, and as not including irrigation ditches. Comp.Laws, secs. 5630-5635.
Proceeding by Orr Ditch & Water Company against the Justice Court of Reno Township,
County of Washoe, Nevada, and The Honorable Harry Dunseath, Justice of the Peace, for a
writ of prohibition to arrest certain proceedings pending in Justice Court of Reno Township,
County of Washoe, Nevada, which were instituted under provisions of an Act entitled An
Act to secure persons and animals from danger arising from mining and other excavations.
Comp.Laws, secs. 5630-5635. Respondents' demurrer to petition overruled, and
alternative writ of prohibition heretofore issued made permanent.
Kearney & Adams, of Reno, for Petitioner.
Thatcher, Woodburn and Forman and Charles M. Merrill, all of Reno, amici curiae, in
support of application for writ.
Harlan L. Heward, Oliver C. Custer and Bruce R. Thompson, all of Reno, for
Respondents.
C. Lester Zahniser, of Sparks, amicus curiae, in opposition to issuance of writ.
OPINION
This proceeding is an application for prohibition to arrest certain proceedings pending in
the justice court of Reno township, county of Washoe, State of Nevada, which were instituted
under the provisions of an act passed in 1866, entitled An Act to secure persons and animals
from danger arising from mining and other excavations. Statutes of Nevada 1866, pp. 59-61,
N.C.L.1929, secs. 5630-5635.
Proceedings under said act were commenced in the respondent court by the filing of a
notice (exhibit A attached to said application) by Harlan L. Heward, a private citizen, in
which a violation of the act was claimed in that a certain portion of the Orr ditch, situated
in the city of Reno and described therein and alleged to be an excavation, is dangerous to
persons and has been left and is being worked contrary to the provisions of said act.
private citizen, in which a violation of the act was claimed in that a certain portion of the Orr
ditch, situated in the city of Reno and described therein and alleged to be an excavation, is
dangerous to persons and has been left and is being worked contrary to the provisions of said
act. Specifically, it is contended by the said Harlan L. Heward that said portion of said ditch
is an excavation within the meaning of said act, and that the same has not been fenced or
otherwise safeguarded as required by the provisions of the act.
Upon the filing of the notice, the justice of the peace of said township made an order
directing the service of notice upon the petitioner. A notice (exhibit C) was thereupon served
upon the petitioner, who appeared and filed a demurrer in the respondent court. The demurrer
was argued and overruled, whereupon petitioner applied to this court for an alternative writ of
prohibition, and an order directed to respondents requiring them to show cause why the
alternative writ should not be made permanent. Such alternative writ was issued by this court
December 9, 1946, and the respondents were commanded to desist and refrain from all
further proceedings in said matter, and that they, and each of them, show cause before this
court, on the 20th day of December 1946, why they should not be absolutely and permanently
restrained from taking any further proceedings in said matter entitled State of Nevada,
Plaintiff, v. Orr Ditch and Water Company, a Corporation, Defendant, case No. 4479 in the
justice court of Reno township, county of Washoe, State of Nevada.
The hearing of arguments in said proceeding in this court was set for the 9th day of
January 1947.
On the 31st day of December 1946 the defendants interposed a demurrer to the application
of petitioner, alleging in substance that the said application does not state facts sufficient to
entitle said applicant to the relief prayed for in said application, nor to a peremptory writ of
prohibition herein.
The hearing was had in this court under the said show-cause order on said 9th day of
January 1947.
show-cause order on said 9th day of January 1947. The demurrer to said application was
argued by respective counsel on behalf of petitioner and respondents, and the matter was
thereupon submitted to this court for decision upon said demurrer, and should same be
overruled for decision as to whether the writ should be made permanent.
The petitioner contends that irrigation ditches are not within the meaning of the word
excavations, as employed in said act; that such ditches are not within the terms of the act
requiring that shafts, excavations, and holes be fenced, or otherwise safeguarded, and that
respondents were without jurisdiction to proceed. The petitioner also contends that the act of
1866 is unconstitutional in several alleged particulars, and for that reason also the respondent
court was without jurisdiction.
The respondents, on the other hand, contend that the term excavations, if broadly and
properly construed, includes irrigation ditches, and that the act is constitutional.
We will at this point endeavor to determine, first, the meaning of the word excavations,
as employed in said act of 1866. In what sense did the legislature use the word, and what
meaning did the legislators intend it should have? Ditches are not mentioned in the act. If
included, it must be by construing the word excavation, as used in the act, to include within
its purview an irrigation ditch.
Webster's Standard International Dictionary defines the word excavation as follows:
1. Act or process of excavating.
2. A cavity formed by cutting, digging or scooping.
3. Engin. a An uncovered cutting in the earth, in distinction from a covered cutting or
tunnel.
The word excavate is, in said dictionary, defined as:
1. To hollow out; to form a hole or cavity in; to make a hallow by cutting, scooping or
digging; as, to excavate a hill or a tooth.
2. To form by hollowing; to shape, as a cavity, or anything that is hollow; as, to excavate
a cellar or tunnel.
In Funk and Wagnall's New Standard Dictionary, the word excavation is defined as
follows:
1. The act or process of excavating, a making hollow or cleaning out by digging,
scooping or cutting.
2. A cavity or hollow formed by scooping, cutting or digging.
Engin. An open earth-cutting, as distinguished from a tunnel.
The word excavate in said dictionary is defined as follows:
1. To make a hole or cavity in; hollow out; scoop, dig or cut a hollow in; as, to excavate
an ancient mound; to excavate a tooth for filling.
2. To form or make by hollowing, digging out or scooping, as to excavate a tunnel.
3. To remove by digging or scooping out, or to uncover by this process; as, to excavate
earth from a cellar; to excavate a statue from the ruins of a temple.
As pointed out by Mr. Merrill, amicus curiae, in his reply brief, it would seem fair to say
that there are two principal meanings applied to the word excavation:
1. A cavity or hole, as, to excavate a hill or a tooth.
2. An uncovered or open cutting in the earth, as distinguished from a tunnel.
The latter definition is designated by both the above-mentioned dictionaries as the
engineering definition, indicating that the former is the ordinary definition, or the one usually
employed.
It is apparent, therefore, that there is a vast difference between the scope of the ordinary
definition and the engineering or scientific definition. The former, if applied to the word
excavation in said statute of 1866, would exclude irrigation ditches, as they are not a cavity
or a hole, as to excavate a hill or a tooth.
Such a cavity or hole has an opening at the point of entrance, such as the portal of a tunnel
or the collar of a shaft or prospect hole.
a shaft or prospect hole. An irrigation ditch, in its natural state, is an uncovered or open
cutting in the earth without a portal or collar, or other point of entrance, and comes clearly
within the engineering or scientific definition.
It is apparent, therefore, that from the standpoint of the two definitions above mentioned,
we are confronted by an ambiguity existing as to the meaning of the word excavation as
employed in said statute of 1866, which must be resolved by this court. This requires us to
construe the act, and particularly the meaning of the word excavation as employed therein,
in order to determine whether irrigation ditches were, by the legislature, intended to be
included within the provisions of the act requiring the erection of good and substantial
fences, or other safeguards, * * * around such works or shafts, sufficient to securely guard
against danger to persons and animals, from falling into such shafts or excavations.
The title of said act, approved February 8, 1866 is: An Act to secure persons and animals
from danger arising from mining and other excavations. Section 1 of the act is as follows:
1. Any person or persons, company or corporation, who shall hereafter dig, sink, or excavate,
or cause the same to be done, or being the owner or owners, or in the possession under any
lease or contract of any shaft, excavation, or hole, whether used for mining or otherwise, or
whether dug, sunk or excavated, for the purpose of mining, to obtain water, or for any other
purpose, within this state, shall, during the time they may be employed in digging, sinking, or
excavating, or after they may have ceased work upon or abandoned the same, erect, or cause
to be erected, good and substantial fences, or other safeguards, and keep the same in good
repair, around such works or shafts, sufficient to securely guard against danger to persons and
animals, from falling into such shafts or excavations.
Counsel for the petitioner insist most earnestly that the rule of ejusdem generis should be
applied; that the word "excavation," a general term placed in the statute in section 1,
between the word "shaft" and the word "hole," which are words of specific meaning and
clearly mean an excavation of the pit or cavity type, as distinguished from an open cutting
in the earth, should be characterized by the meaning of the more specific words "shaft"
and "hole"; that the former, thus characterized by its context, should be restricted or
confined in its meaning to excavations of the same class or kind as shafts or holes.
the rule of ejusdem generis should be applied; that the word excavation, a general term
placed in the statute in section 1, between the word shaft and the word hole, which are
words of specific meaning and clearly mean an excavation of the pit or cavity type, as
distinguished from an open cutting in the earth, should be characterized by the meaning of the
more specific words shaft and hole; that the former, thus characterized by its context,
should be restricted or confined in its meaning to excavations of the same class or kind as
shafts or holes.
On the other hand, counsel for respondents contend that the word excavation is not
necessarily to be thus restricted; that in its literal sense it is an all-embracive word, and
considering the broad objective of the act, namely, to secure persons and animals from
danger arising from mining and other excavations, that any form of excavation, including
irrigation ditches, which, if unsafeguarded, are dangerous to persons or animals from falling
into them, should be deemed to be within the meaning of the said word.
Counsel for petitioner, and particularly Mr. Merrill, amicus curiae, have thoroughly
analyzed the meaning, and particularly the differences in meaning of the words shaft and
hole, and words of similar import or class, on the one hand, and the word ditches, on the
other. These differences relate not only to the shape, usual dimensions and the danger
inherent in, or connected with, the two distinct general types of excavations, but also include
the fact that in the instance of shafts, holes, or excavations of similar type, the danger is solely
from the falling into them and the violent contact and concussion resulting from such fall,
whereas, in the case of ditches, the danger inherent in them as excavations alone is
slightthat the danger is not from falling and its immediate effect, but from drowning, which
is, as they contend, caused primarily by the water in the ditches.
It will be observed that the statute employs the words, "danger * * * from falling into
such * * * excavations," and says nothing as to any concurring cause such as water or
drowning therefrom, which omissions to some extent seem to support petitioner's
contention in favor of the application of the rule of ejusdem generis.
danger * * * from falling into such * * * excavations, and says nothing as to any concurring
cause such as water or drowning therefrom, which omissions to some extent seem to support
petitioner's contention in favor of the application of the rule of ejusdem generis. (Emphasis
mine.)
1. Indeed, it would seem that the rule of noscitur a sociis, as well as the rule of ejusdem
generis, may be appropriately applied in the instant case. The context surrounding the word
excavation in the statute, especially its close association with the word shaft and hole,
clearly of the pit type of excavation, and the words around such works or shafts, following
in the same section of the act, would seem to give color to and reflect light upon the intended
meaning of the word excavation.
The doctrine of noscitur a sociis is stated as follows in 50 Am.Jur., sec. 247, pp. 241-243:
247. Generally.The meaning of statutory terms depends upon the connection in which
they are used, and in the interpretation thereof, the doctrine of construction, noscitur a sociis,
prevails. Hence, the meaning of particular terms in a statute may be ascertained by reference
to words associated with them in the statute. Where two or more words of analogous meaning
are employed together in a statute, they are understood to be used in their cognate sense, to
express the same relations and give color and expression to each other. It is also a familiar
policy in the construction of terms of a statute to take into consideration the meaning
naturally attaching to them from the context, and to adopt that sense of the words which best
harmonizes with the context. Thus, although words and sentences, or parts of sentences, have
no very definite signification in their ordinary use, if a particular meaning and application
appears from their use or connection in the statute, that meaning and application must be
accepted as proper and controlling. Indeed, it is improper, in construing a statute, to take a
few words from its context, and, with them thus isolated, attempt to determine their
meaning.
a few words from its context, and, with them thus isolated, attempt to determine their
meaning. Moreover, court may not, in order to give effect to particular words, virtually
destroy the meaning of the entire context. In some cases, the rule that the meaning of statutory
terms is determined by their context is recognized by statute.
And the rule ejusdem generis follows in sec. 249, pp. 244-246, and is as follows: 249.
Limitation of General Words by Specific Terms.General and specific words in a statute
which are associated together, and which are capable of an analogous meaning, take color
from each other, so that the general words are restricted to a sense analogous to the less
general. Under this rule, general terms in a statute may be regarded as limited by subsequent
more specific terms. Similarly, in accordance with what is commonly known as the rule of
ejusdem generis, where, in a statute, general words follow a designation of particular subjects
or classes of persons, the meaning of the general words will ordinarily be presumed to be, and
construed as, restricted by the particular designation and as including only things or persons
of the same kind, class, character, or nature as those specifically enumerated. The general
words are deemed to have been used, not to the wide extent which they might bear if standing
alone, but as related to words of more definite and particular meaning with which they are
associated. In accordance with the rule of ejusdem generis, such terms as other,' other thing,'
other persons,' others,' otherwise,' or any other,' when preceded by a specific enumeration,
are commonly given a restricted meaning, and limited to articles of the same nature as those
previously described. The rule of ejusdem generis has been declared to be a specific
application of the broader maxim of noscitur a sociis' which is discussed in other sections of
this subdivision.
But the rule of ejusdem generis is not without qualification and restriction. The restrictions
upon the application of the rule are set forth in sec. 250, on pp. 246-248: "
250Restrictions Upon Operation of Rule of Ejusdem Generis.
250Restrictions Upon Operation of Rule of Ejusdem Generis.The rule of ejusdem
generis is far from being one of universal application. It is neither final nor conclusive; there
are many cases to which claims of the applicability of the doctrine are denied, and in which
general terms in a statute are given meanings beyond the specific terms preceding them. In
any event, the rule of ejusdem generis does not necessarily require that the general term be
limited in its scope to the identical things specifically enumerated.
The doctrine of ejusdem generis is but a rule of construction to aid in ascertaining and
giving effect to the legislative intent, where there is uncertainty, and does not warrant the
court in subverting or defeating the legislative will by confining the operation of a statute
within narrower limits than intended by the lawmakers. If, on consideration of the context and
whole law upon the subject, and the purposes sought to be effected, it is apparent that the
legislature intended the general words to go beyond the class specially designated, the rule
does not apply.
The rule of ejusdem generis does not apply to restrict the operation of a general
expression where the specific things enumerated have no common characteristic, and differ
greatly from one another. Moreover, where the particular words embrace all the persons or
objects of the class mentioned, and thereby exhaust the class or genus, there can be nothing
ejusdem generis left for the rule to operate on, and a meaning must be given to the general
words different from that indicated by the specific words, or there can be ascribed to them no
meaning at all.
It is possible the legislature, notwithstanding the indications of the context as to the proper
characterization of the word excavation could have intended the word to have the broad,
literal meaning portrayed in the engineering or scientific definition thereof. But to give it such
meaning, words such as or along side would have to be read into the phrase "around such
works or shafts," and other important rules of construction disregarded.
to be read into the phrase around such works or shafts, and other important rules of
construction disregarded.
In order to aid in reaching the proper construction of the statute, we will now refer to a
number of such other rules, which are well known to the legal profession and the courts.
2. As to the proper construction of the word excavation (which in the dictionaries, as we
have stated, is given two meanings, an ordinary or popular meaning, and a technical one, and
concerning which the popular meaning seems to be indicated by the context), we find sec.
187, pp. 319-322 of Crawford on Statutory Construction to be helpful. It is there stated:
187. Words Having a Technical or Special MeaningTechnical terms in a statute, as we
have suggested above, must be accorded their technical meaning, unless the statute indicates
that the legislature intended otherwise. Moreover, there is a presumption that they have been
used in their technical sense. Nevertheless, where it appears that a contrary meaning was
intended by the legislature, the common, or non-technical meaning, should be applied, or the
technical meaning enlarged or restricted so as to effectuate the obvious purpose of the
legislature. This rule is applicable to technical legal terms, words having a special sense at
common law, military terms, and words of arts. And terms borrowed from a foreign law
should be given the meaning they have in the foreign law. Similarly, where the words
incorporated in a statute have acquired a specific meaning by virtue of judicial interpretation,
such meaning should be accepted, in the absence of some indication of a contrary legislative
intention. And the same is true with reference to commercial or trade names used in a tariff
act to designate certain kinds of goods, where such names have acquired a well-known
meaning in trade and commerce. But where a word has both a technical and a popular
meaningno matter in what sort of a statute it appears the latter meaning will prevail over
the former, in the absence of any indication that the word was used in its technical
sense."
the latter meaning will prevail over the former, in the absence of any indication that the
word was used in its technical sense.
In this connection see also 50 Am.Jur., sec. 238, pp. 227-232, and the many cases cited in
footnote 17 on pp. 228, 229, among which are: Wren v. Dixon, 40 Nev. 170, 161 P. 722, 167
P. 324, Ann.Cas.1918d, 1064. See also 50 Am.Jur., sec. 277, pp. 263-265.
What effect should be given the phrase around such works or shafts, as used in the
statute, in determining the meaning of the word excavation?
3. In this connection we refer to Crawford on Statutory Construction, sec. 165, pp.
258-261, which is as follows:
165. Statutes as a WholeInasmuch as the language of a statute constitutes the
depository or reservoir of the legislative intent, in order to ascertain or discover that intent,
the statute must be considered as a whole, just as it is necessary to consider a sentence in its
entirety in order to grasp its true meaning. Consequently, effect and meaning must be given to
every part of the statute which is being subjected to the process of constructionto every
section, sentence, clause, phrase and word. This is a principle based upon human experience
with man's modes of expression and the inevitable limitations of our language. So far as
statutes are concerned, ordinarily, many words and phrases and often sentences must be used
to express the legislative idea or intent. Abstractly, a word or phrase might easily convey a
meaning quite different from the one actually intended and evident when the word or phrase
is considered with those with which it is associated. The same is equally true with sentences
and paragraphs. Abstractly, the thought expressed in a detached sentence or paragraph may
have little or no resemblance to the idea actually intended. Each word, phrase, clause and
sentence are the elements from which the legislative intent is formed. The various words,
phrases, clauses, and sentences make up the framework which supports the legislative
intent.
which supports the legislative intent. They are mutually dependent. Co-operatively they
convey the ultimate idea.
Moreover, a statute should be construed as a whole because it is not to be presumed that
the legislature has used any useless words, and because it is a dangerous practice to base the
construction upon only a part of it, since one portion may be qualified by other portions. In
addition to being subject to qualification, words are not always used accurately by the
legislature. The thought conveyed by the statute in its entirety may reveal the inaccurate use.
Hence, the court should, when it seeks the legislative intent, construe all of the
constituents parts of the statute together, and seek to ascertain the legislative intention from
the whole act, considering every provision thereof in the light of the general purpose and
object of the act itself, and endeavoring to make every part effective, harmonious, and
sensible. This means, of course, that the court should attempt to avoid absurd consequences
in any part of the statute and refuse to regard any word, phrase, clause, or sentence
superfluous, unless such a result is clearly inavoidable. The court must construe the statute in
this manner, for by failing to do so, the statute is not considered in its entirety and the
intention of the legislature is likely to be defeated. The legislative intent is just as apt to be
lost where a word, phrase or sentence of the statute is rejected as where they are considered
separate and apart from the rest of the statute. This is in accord with our use of words. The
omission of a word from a sentence may easily cause it to express an idea quite different from
the one actually intended and expressed. See also 50 Am.Jur., sec. 358, pp. 361-364, which
is very similar in substance to the above-mentioned sec. 165 of Crawford.
Undoubtedly, if the word excavation be construed to include ditch, either the word
around in the phrase around such works or shafts would have to be disregarded, or
action, so unnecessary as to border on the absurd or the ridiculous, taken, and the ditch
fenced "around" or encircled.
the absurd or the ridiculous, taken, and the ditch fenced around or encircled. Ditches,
except in rare instances, have no ends. To fence around a portion of a ditch, as is contended
for in the instant case by respondents, would, as pointed out by Mr. Merrill, amicus curiae,
accomplish no good purpose and prove a real detriment in interfering with cleaning the ditch.
To do so would be an economic waste resorted to, not because of any legitimate, natural,
economic, civic, or social purpose, but solely in the endeavor to make reconcilable and
applicable to ditches a phrase which obviously was never intended to apply to them, because
ditches cannot, to any advantage, be encircled. The obvious application of the phrase around
such works or shafts, in view of the context, and the meaning of the words works and
shafts, was that it related to shafts, holes and similar excavations of the pit typethe kind
of excavations which is meant by the ordinary or popular definition in the dictionaries, as
distinguished from the technical or scientific definition. It is necessary to fence around such
excavations to prevent the danger of falling into them, and the area of such openings on the
surface being comparatively small, they may be fenced without great expense. The legislature
evidently intended that when there were works contiguous to such holes, shafts, or other
similar excavations, as often there are in connection with mining shafts and holes, the fence
could be either around the works adjacent to and including the shaft, hole or other similar
excavation, or merely around the excavation proper. The use of the word or between the
words works and shafts indicates that alternative. To attempt to extend the application of
the said phrase to excavations such as ditches, would be to give it a wholly unreasonable,
uneconomic, and artificial application, as above indicated, solely for the purpose of bolstering
a construction of the meaning of the word excavations according to the scientific or
engineering meaning, which, in view of the context, would be likewise artificial, incongruous
and inconsistent with the limitation indicated by said phrase "around such works or
shafts."
limitation indicated by said phrase around such works or shafts. And to fail to regard and
properly apply said phrase would be clearly repugnant to the elementary principles of
statutory construction expressed so clearly in the above-quoted sections of Crawford on
Statutory Construction and of American Jurisprudence to the effect that all words, phrases
and sentences must be given their proper effect. These principles have been found by the
text-writers and the courts essential to the correct and intelligent interpretation of the true
legislative intention.
4. As to conflicting provisions, the principle or rule of construction favored by the
text-writers and most courts is stated as part of sec. 166 of Crawford on Statutory
Construction, pp. 262, 263, as follows: * * * Consequently, that construction which will
leave every word operative will be favored over one which leaves some word or provision
meaningless because of inconsistency. * * * Many cases are cited in footnote 85 to the text,
among which are: Hannon v. Southern Pac. R. Co., 12 Cal.App. 350, 107 P. 335; Postal Tel.
Cable Co. v. Norfolk & W. R. Co., 88 Va. 920, 14 S.E. 803. There are only three Nevada
cases of which we know, or which have been called to our attention by counsel, which have
dealt with this statute of 1866. Two of these were in this court, and one in United States
district court. The earliest of these cases was Wiggins v. Henderson, Justice of the Peace, 22
Nev. 103, 36 P. 459, decided in 1894.
Mr. Heward, in Defendants' Answering Memorandum has cited that case, and stated: In
fact, H. F. Bartine, attorney for petitioner, admitted that a valid judgment could be rendered
under the statute if residence, the existence of an open and dangerous excavation and
ownership of the excavation were proved. In that case certiorari was denied upon the ground
that the procedure required by the statute had not been complied with. No question was raised
in the case as to the meaning of the word excavation in the statute, nor as to whether or
not it applied to irrigation ditches.
nor as to whether or not it applied to irrigation ditches. The excavation involved in that case
was a well, which was clearly of the same kind or class as shafts, holes or other excavations
of the pit type, whose principal danger, as a class, is because of their depth or their location,
or both, and the danger of persons and animals falling into them and being injured because of
the fall. We might say at this point that we do not agree with the contention, on behalf of
petitioners, that the term or otherwise, or the term or for any other purpose, as employed
in the statute, can properly be applied to curtail their obvious meaning therein by the rule of
ejusdem generis. In regard to the phrase or for any other purpose, we do not agree that the
word other necessarily means that the excavation must, because of such rule, be for a
purpose similar to mining or to obtain water.
5. The obvious objective of the act, as stated in the same section 1, was to require the
erection of fences, or other safeguards * * * around such works or shafts, sufficient to
securely guard against danger to persons and animals from falling into such excavations. The
danger from falling into an excavation of the pit type would be just as great, under similar
circumstances as to depth, surrounding formation and other characteristics, whether the
excavation was a shaft, or a prospect hole, to obtain ore from the earth or develop same
therein, or to obtain water from a well, or whether same did not involve obtaining anything
from the earth or developing any substance therein, but was for the entirely different purpose
of obtaining access to the basement of a warehouse, as was involved in the case of Anderson
v. Feutsch, 31 Nev. 501, 103 P. 1013, 105 P. 99. An excavation to receive the foundation for
a building would be for a purpose and use altogether different from mining or to obtain water,
the terms immediately preceding the phrase or for any other purpose in said section 1, but if
such excavation could be fenced for not to exceed $300, the limit of the jurisdiction of
justices of the peace under the Nevada constitution, and same, because of its depth or
location, was dangerous to persons and animals who might suffer injury from falling into
it, such excavation would be within the meaning of that word, according to both its
ordinary meaning and its technical meaning.
of the peace under the Nevada constitution, and same, because of its depth or location, was
dangerous to persons and animals who might suffer injury from falling into it, such
excavation would be within the meaning of that word, according to both its ordinary meaning
and its technical meaning. It was so held in Anderson v. Feutsch, supra, the second of the
Nevada cases which have dealt with said statute of 1866. In that case the excavation was, as
above indicated, for a purpose wholly different from mining or to obtain water, and we agree
fully with the following statement, 31 Nev. on page 510, 105 P. 99, 100, in the decision upon
rehearing, by Norcross, C. J.: The trial court held, and we think correctly so, that the
appellants were bound, under the provisions of this statute, to keep the excavation in question
protected. The earnestness and apparent sincerity with which counsel for appellant contended
that the provisions of this act only apply to excavations for mining purposes may have
entitled them to a more extended consideration of the point than that given in our former
opinion. We have never been impressed, however, that the contention possessed any
considerable force. We think it clear, both from the title and body of the act, that it was the
intention of the Legislature to protect persons and animals from all excavations, regardless of
the purpose for which they were dug. Mining excavations were mentioned particularly, we
think, only because they comprise the great majority of all excavations in this state. The great
purpose of the act was to protect persons and animals from injury resulting from falling into
unprotected excavations. The same injury would result from falling into a certain particular
excavation regardless of the purpose for which it was made. For the purpose designed to be
accomplished by this act, all excavations are in a common class, and the fact that the
Legislature saw fit to specifically designate those made for mining purposes and to
comprehend all others in general terms does not, we think, limit the provisions of the law to
mining excavations only.
While Mr. Chief Justice Norcross used the term all excavations, regardless of the purpose
for which they were dug and the expression for the purpose designed to be accomplished by
this act, all excavations are in a common class, he was dealing with the contention of the
defendant in that case that the purposes intended by the act were mining purposes only, and
he held, as we hold herein, that the word excavation or excavations is not thus limited,
and that the purpose of the excavation is immaterial. It is the character or type of the
excavation itself, and not its purpose, which is controlling. Judge Norcross was dealing with
an excavation of a pit type which had been dug in, or alongside the sidewalk on Miner
Avenue in Goldfield, and was particularly dangerous because of its location in or near the
pathway of pedestrians. There is nothing whatever in the opinion to show that by the use of
the word all the court intended more than to point out that the word excavations was not
confined in its meaning to excavations for mining purposes, but was applicable to such
excavations as that involved in the Anderson case. The learned justice, by use of the word
all went a little further, if the expression be taken literally, than required to decide the point
then in issue, but any such expression is without significance, as the question of whether
excavations such as ditches, which are not particularly hazardous, except for danger of
drowning, were within the purview of the act of 1866, was not before him, nor was the choice
of definitions of the word excavation involved.
The hole or excavation involved in that case was clearly one of the cavity or pit type,
within the ordinary meaning of the word excavations, as distinguished from the technical
definition, namely, an uncovered cutting in the earth, and there is nothing in the use of the
word all by Justice Norcross indicating that he had any excavations in mind, other than
those of that type.
The case certainly is not authority to show that "ditches" were within the purview of the
term "excavations" as employed in the said act.
ditches were within the purview of the term excavations as employed in the said act. The
case of Perry v. Tonopah Mining Co., D.C., 13 F.2d 865, in which the opinion was written by
Judge Farrington, dealt with the said statute of 1866, as a statutory basis of liability for
negligence. A child had fallen into a stope in Tonopah near a pathway leading from Florence
Avenue, and which was much frequented by children. The open stope was what miners call a
glory hole. The ore and rock had been mined out to the surface, leaving a large opening,
about 140 feet deep, which defendant had wrongfully and negligently suffered to be and
remain unfenced, and without any safeguards whatever to guard against danger to persons,
and particularly children, from falling into the same,' and without giving any warning or
notice whatever to persons, and particularly children.'
Judge Farrington said further in his opinion: The danger from open cuts on premises
similar to those described in the complaint is obvious. It was the likelihood of just such
conditions which prompted the Legislature of the state in 1866 to adopt what is now section
3233 of the Revised Laws of Nevada, and what was then entitled An act to secure persons
and animals from danger arising from mining and other excavations.' The statute referred to
is the act of 1866, involved in the instant case. The excavation involved in the Perry case was,
as above stated, a mining stope, dangerous because of its depth and location, and, as the court
indicated, because it was attractive to children. Such an excavation was one of the pit or
cavity type, clearly within the provisions of the act, according to the ordinary meaning of the
word excavation, and is in no sense authority to show that the act has any application to
ditches. The court did not attempt to enforce the penal provisions of the act, but did
recognize the act as a basis of liability, together with the common law, for negligence, and
under the attractive nuisance doctrine, applicable to children.
applicable to children. No question as to the constitutionality of the act was raised. Neither
was any question presented or passed upon as to whether its provisions were sufficiently
certain and intelligible as to render it enforceable. The case is of no assistance whatever in the
determination of any of the questions before us in the instant case. (Emphasis mine.)
Isn't it strange, indeed, that if this act, in existence 81 years, had been intended by the
legislature of 1866 to apply to irrigation ditches, that there has been no case before the higher
courts, either state or federal, in Nevada involving such application? And the fact that so few
cases involving the act in any respect have reached the higher courts has indicated that its
enforcement, even as to the hole, pit, or cavity type of excavation to which it unquestionably
applies, has been very limited indeed. This has no legal significance, but is interesting, and is
mentioned merely in an historical sense.
6. To construe the word excavation to include irrigation ditches would clearly compel
the conclusion that the act is unconstitutional as violative of article VI, sections 6 and 8,
N.C.L., vol. I, 1929, secs. 114, 116, of the Nevada constitution, because to fence or otherwise
safeguard an irrigation ditch, such as the Orr ditch, would obviously require an expenditure of
many thousands of dollars, and jurisdiction under the 1866 act is conferred upon police
judges and justices of the peace, and jurisdiction of the latter, under said constitutional
provisions, is limited as to a money demand to an amount not to exceed $300, exclusive of
interest. The act does not provide for, or contemplate, fencing or otherwise safeguarding part
of any shaft, hole, or excavation to which it applies.
The words applicable to that point, as stated in section 1 of the act of 1866, are: Any
person or persons, company or corporation, who shall hereafter dig, sink, or excavate * * *
any shaft, excavation, or hole * * * shall * * * erect, or cause to be erected * * * fences, or
other safeguards * * * around such works or shafts."
or other safeguards * * * around such works or shafts. (Emphasis mine.)
And section 2 of the act reads: Any person being a resident of the county, and knowing,
or having reason to believe, that the provisions of section one of this act are being or have
been violated within such county, may file a notice with any justice of the peace or police
judge therein, which notice shall be in writing, and shall state: FirstThe location, as near as
may be, of the hole, excavation, or shaft. SecondThat the same is dangerous to persons or
animals, and has been left, or is being worked, contrary to the provisions of this act.
(Emphasis mine.)
The attempt which was made in the instant proceeding to save the act from the
unconstitutionality which is inevitable if same were applied to ditches, would merely lead to
unconstitutionality of another kind. To attempt to apply the act to only a part of a particular
excavation, when the statute provides no standard based on the degree of danger or need,
assumed from the extent of population, or other reasonable basis of general application, for
selection of the part to be fenced, and has no provision even indicating any unit other than its
location in the county as the unit of enforcement, would be to open the door to the conversion
of the act into special legislation. Not only the ditch (if act were applied to ditches) which
should be proceeded against, but the portion of that ditch against which enforcement was
sought, would be selected by the party initiating the proceeding and filing the notice.
(Emphasis mine.) Thus it would depend on the judgment, and not infrequently, we fear, upon
the whim or caprice of such individual resident of the county, and, perhaps, in a measure, of
the police judge or justice of the peace, as to what ditches, or parts of ditches, should be
required to be fenced. This would inevitably lead to discriminatory enforcement of the act,
without any sound reason why it should apply to certain portions of ditches and not to other
portions equally dangerous.
Unless all the ditches, or at least those of a certain well-defined class within the state, are
required to be fenced in their entirety, or at least a reasonable standard of determination, such
as that based upon population, is included in the act, and required to be applied generally and
uniformly throughout the state as to all cities, counties or towns of a certain class (based on
population), the opportunity is afforded for partiality, discrimination, and injustice in the
enforcement of the act. Such application of the act as would thus inevitably lead to
discrimination and lack of uniformity of enforcement, both in single counties and in the
various counties of the state, as compared to each other, would be violative of section 21 of
article IV of the constitution of Nevada, which provides: Section 21. In all cases enumerated
in the preceding section, and in all other cases where a general law can be made applicable,
all laws shall be general and of uniform operation throughout the state.
Obviously, a general law could be made applicable, and its operation made uniform
throughout the state, in relation to the fencing of ditches (if ditches were intended to be
included within the term excavations as used in the act) by simply conferring jurisdiction
upon the district courts, instead of upon police judges and justices of the peace.
Such acts in other states where they have been enacted quite generally, we believe, follow
the pattern of the Colorado act of 1887 (referred to and construed in the case of Platte &
Denver Canal & Milling Co. v. Dowell et ux., 17 Colo. 376, 30 P. 68) which, by its title, is
disclosed to be applicable to canals and ditches situated within cities of the first class, or
cities existing by special charter, of a population equal to or exceeding said cities of the first
class. Session Laws of Colorado 1887, p. 65.
In that act, as above appears, there is a general application to cities of the first class, or
cities existing by special charter of a population equal to such cities of the first class.
special charter of a population equal to such cities of the first class.
This is a sound and salutary limitation, being based upon population which, in the matter
of danger from ditches or canals, is a reasonable basis for determining that the need for
fencing exists, and it doesn't go to the unreasonable extreme of requiring fencing throughout
the state, regardless of the degree of need or of existing danger from the ditches or canals. It
requires fencing of all ditches within the cities of the class specified, and therefore does not
open the door to discriminatory enforcement depending upon the personal judgment, will,
whim, or caprice of an individual resident or of a judicial officer, and it confers jurisdiction
upon any court of competent jurisdiction. (Emphasis mine.)
To sanction such procedure as has been resorted to in the instant case, even if enforcement
could be impartial, effective and constitutional (which we do not believe), would inevitably
result in such a multiplicity of suits as to be intolerable.
In the case of the Orr ditch, the following uncontradicted statement appears on page 33 of
the Memorandum in Support of Petitioner's Application: To fence the Orr Ditch, if the law
requires fencing of ditches, would cost thousands of dollars. Here the party who filed the
notice under sec. 5631, N.C.L., specifies only 75 feet out of 8850 feet of ditch which he
alleges is in the City of Reno. Thus he, or any one, would have the right, under the statute, to
bring 118 similar actions in the justice court, to compel the fencing of said 8850 feet by
merely alleging that the cost of fencing such sections would be less than $300.00.
To be fair and impartial, so that without discrimination the law would operate generally,
equally and uniformly throughout the state, within the meaning of section 21 of article IV of
the Nevada constitution, as well as to comply with the sound, equitable inhibition against a
multiplicity of suits, piecemeal enforcement of the act, such as attempted in the instant
case, cannot be tolerated.
of the act, such as attempted in the instant case, cannot be tolerated. With no sound reason for
any such division of causes of action or procedure, and no apparent reason at all, other than to
attempt to make the act applicable to a class of excavations, which it clearly appears, from the
intrinsic provision of the act conferring jurisdiction upon justices of the peace and police
judges, and from the phrase around such works or shafts, and from other features of the act,
the legislature intended to exclude, cannot be sanctioned. To sanction same, would be to
approve a major evasion of the constitutional limitation upon the jurisdiction of justices of
the peace contained in said article VI, sections 6 and 8, N.C.L., vol. I, secs. 114, 116, of the
Nevada constitution. This we cannot do. What is the reasonable, and in fact, the essential
conclusion which follows from the intrinsic provision of the act conferring upon justices of
the peace jurisdiction of proceedings under the said Act of 1866? Such reasonable conclusion
unmistakably is, that the requirement of fencing or otherwise safeguarding, is limited to
excavations of a class or kind such as those expressly enumerated in the statute, and which do
not involve an estimated cost of fencing or safeguarding in excess of $300.
7. This conclusion is also indicated by the rule of construction to the effect that the
legislature is presumed to have intended to legislate constitutionally, and that, as between two
possible constructions of an ambiguous statute, or an ambiguous word or phrase therein, that
construction should be applied which will lead to the constitutionality of the act, in preference
to the construction which would lead to its unconstitutionality. 50 Am.Jur., sec. 226, pp. 209,
210. See also 11 Am.Jur., sec. 97, p. 725, where it is stated: RulesIt is an elementary
principle that where the validity of a statute is assailed and there are two possible
interpretations, by one of which the statute would be unconstitutional and by the other it
would be valid, the court should adopt the construction which would uphold it. * * * (See
many cases in footnote 10 decided by the United States supreme court.)
many cases in footnote 10 decided by the United States supreme court.) Applying this rule of
construction, it follows, therefore, that irrigation ditches, which are a class of excavations
which usually require more than $300 to fence, were not intended, by the legislature, to be
within the meaning of the word excavation as employed in said act.
We have thus far in this opinion referred, for the most part, to rules of construction
applicable to intrinsic provisions of the act such as the rule of ejusdem generis, the rule that
the whole of an act must be given effect, and the application of the rule as to constitutionality
that arises from the fact that jurisdiction is conferred by the act upon justices of the peace, the
jurisdiction of which is limited to $300.
Now it is necessary, before reaching a final determination of this case, to consider certain
other well-known rules of statutory construction.
8. A rule of long standing and very general application is that penal statutes must be
construed strictly.
9. The said statute of 1866 provides for a civil penalty in case of each violation of the act,
and also for a fine as to each such violation. The procedure is civil, but in respect to the fine,
the penalty is criminal.
In the instant case, the question of whether or not the statute of 1866 applies to irrigation
ditches, and in particular, to the Orr ditch and its owners, is dependent, as we have above
indicated, upon the construction or meaning to be given the word excavation, as employed
in the statute, in the absence of any language in the act expressly including ditches; and, as
the word excavation bears two definitions in the standard dictionaries, one of which, the
ordinary definition, is usually preferred in the ordinary affairs of life to the other, the technical
definition, and the former would not include ditches, it seems clear that the principle
requiring a strict construction of penal statutes requires that, in the instant case, the ordinary
definition should be followed. This would mean that the word excavation, as used in the
act, would be construed to exclude ditches.
as used in the act, would be construed to exclude ditches. The specific words associated in
section 1 of the act with the word excavation, together with the other intrinsic provisions of
the act hereinabove mentioned, indicate that the legislature did not intend that the act,
including its penal provisions, should extend to the owners of ditches such as the Orr ditch;
and, therefore, it clearly appears that a strict construction, in accordance with said rule as to
penal statutes, would be also consistent with the actual intention of the legislature. See
Crawford on Statutory Construction, sec. 240, pp. 460-467.
10. Another important rule of statutory construction, very generally applied, is the rule
which provides that statutes in derogation of the common law shall be strictly construed, in
the absence of any statute changing the rule.
In Crawford on Statutory Construction, sec. 228, pp. 422, 423, it is stated: 228. The
Common LawIf a statute is ambiguous or its meaning uncertain, it should be construed in
connection with the common law in force when the statute was enacted. This is the rule
whether the statute is simply declaratory of the common law, or whether it abrogates,
modifies or alters it in any way. And there is a presumption that the law-makers did not
intend to abrogate or alter it in any manner, although where the intention to alter or repeal is
clearly expressed, it must be given effect by the courts. Even where this intention appears,
there is a further presumption that the law-makers did not intend to alter the common law
beyond the scope clearly expressed, or fairly implied. In fact, it may be set down, as a general
rule, that a statute in derogation of the common law shall be strictly construed, although in
some states this rule has been changed by statute. * * *
We point particularly to the words of limitation, which apply, even where the intention to
alter, abrogate, or change the common-law rule or principle is manifest, and which are: * * *
There is a further presumption that the law makers did not intend to alter the common law
beyond the scope clearly expressed, or fairly implied."
that the law makers did not intend to alter the common law beyond the scope clearly
expressed, or fairly implied. (Emphasis ours.)
How does that provision and limitation affect the situation in the instant case? The
common law of Nevada, at the time of the enactment of said statute of 1886, did not require
the fencing of shafts, holes, or other excavations, no matter how dangerous to persons or
animals from falling into them, unless they were so situated, in relation to traveled roads,
highways, or footpaths, as to render them extraordinarily dangerous.
The common law of England required the owner of livestock, for example, to fence his
premises in order to keep his cattle or other animals from straying or trespassing upon the
property of others. This rule was followed in only a few of the American states, notably in
Kansas, Indiana, New York and Tennessee.
In Annotated Cases, 1917A, pp. 288-296, there occurs a well-prepared and exhaustive note
upon the subject Liability as for Negligence of Owner of Uninclosed Land for Injury to
Domestic Animal Straying Thereon. In that note, on page 291, it is stated:
In most of the American states, the rule of the English common law requiring the owner
of domestic animals to keep them on his own premises was considered to be inapplicable to a
sparsely settled and uncultivated country and was not adopted as part of the common law.
Therefore, in those jurisdictions, the owner of animals is not guilty of negligence, or of a
violation of duty, in allowing them to run at large on the open, uninclosed lands of another. *
* * (Citing cases from Arkansas, Illinois, Iowa, Kentucky, Missouri, Ohio, Pennsylvania,
Idaho and the reported case from Wyoming, Gillespie v. Wheatland Industrial Co., 22 Wyo.
331, 140 P. 832, 52 L.R.A., N.S., 133 Ann.Cas.1917A, 287, to which the said note is
appended.) Further on, in the note, it is stated, as to the liability of the owner of straying
livestock for trespass: "It follows from this change of the common-law rule that cattle or
other animals straying on the uninclosed lands of a person other than their owner are not
wrongfully on those lands.
It follows from this change of the common-law rule that cattle or other animals straying
on the uninclosed lands of a person other than their owner are not wrongfully on those lands.
The right to be on such lands is not, however, a positive right, capable of enforcement, but a
mere negative right, protecting the owner from liability for trespass. * * *
A majority, even of those jurisdictions in which the common-law rule has been changed,
refused to recognize any duty on the part of the owner of uninclosed land to protect straying
animals from the mere dangerous condition of the premises, such as pitfalls, bogs, wells, etc.,
or poisons or other dangerous substances allowed to be or remain on the land.
To the same effect is the treatment of the subject in 11 R.C.L., pp. 873, 874. See also note
to Gillespie v. Wheatland Industrial Co., supra, 22 Wyo. 331, 140 P. 832, in 52 L.R.A.,N.S.,
pages 133-140, Ann.Cas. 1917A, 287.
In an extensive annotation in 33 A.L.R., pages 448-464, to the case of St. Louis-San
Francisco R. Co. v. Fletcher, 159 Ark. 344, 253 S.W. 12, the subject is exhaustively treated.
Under sub-heading III, Injuries by falling into wells or other excavations, 159 Ark. 344,
253 S.W. 12, 33 A.L.R. on page 455, it is stated: It seems that ordinarily, in the absence of
statutes requiring wells or other excavations to be inclosed or otherwise protected, a land
owner is not liable for injuries to trespassing animals which are injured by reason of such
excavations on his unfenced or insufficiently fenced premises. In support of this statement of
the text, cases are cited from Georgia, Idaho, Illinois, Kansas, Kentucky, Massachusetts,
Missouri, North Carolina, Pennsylvania, Texas, Wyoming, and England.
The same rule of nonliability to fence to keep out actual trespassers (in the few states
where the original common law prevails requiring fencing to keep animals from straying
from the owner's premises) and permissive trespassers {in the many American states
where the original common-law rule no longer prevails) is applied as to ponds, and
watercourses or conduits privately owned, such as canals and irrigation ditches.
from straying from the owner's premises) and permissive trespassers (in the many American
states where the original common-law rule no longer prevails) is applied as to ponds, and
watercourses or conduits privately owned, such as canals and irrigation ditches.
There is little difference between the application of the rule, in general, as to trespassing
children and trespassing animals, except under the doctrine of attractive nuisance. For
business or economic reasons the rule, as we have stated, in most of the states was relaxed so
as to permit animals to trespass without the owner incurring liability for damages. This does
not apply to children. They become actual trespassers when they go upon the land of their
neighbors without permission, and the owner of the land, or the watercourse, upon which they
trespass, is not liable for injury to them under ordinarily dangerous conditions and
circumstances. Only under exceptional circumstances, such as the maintenance of a
dangerous excavation upon or adjacent to a traveled street or pathway, or the maintenance
upon the premises of some object, such as a mechanical device especially attractive to
children, does he become liable. And the mere presence of a body of water, such as a pond, or
creek, or a conduit such as a canal or ditch, is held by the great majority of the authorities not
to be an attractive nuisance.
Petitioner, and Mr. Merrill, amicus curiae, in support of petitioner's application, have cited
numerous cases to that effect, among which is the Kansas case of Somerfield et al. v. Land &
Power Co., 93 Kan. 762, 145 P. 893, in which it is stated:
An open, unfenced, and unguarded canal about 50 feet wide with perpendicular banks
about 13 feet high, carrying a stream of water about 7 feet deep through a populous city,
maintained for commercial purposes, and along the banks of which the public passes and
children gather to play and fish and swim, and into which a young child of the plaintiffs fell
and was drowned, cannot, of itself, be regarded as an attractive nuisance which will
render the company owning and operating it liable for the death of the child under the
doctrine of the turntable cases.
a young child of the plaintiffs fell and was drowned, cannot, of itself, be regarded as an
attractive nuisance which will render the company owning and operating it liable for the
death of the child under the doctrine of the turntable cases. * * *
There is no greater necessity to build a fence or put a cover over a canal than there would
be to fence or cover a natural stream, * * *
The court does not feel warranted in extending the doctrine so as to make appellant liable
for failing to fence or guard a watercourse like the one in question * * *.
Other cases cited to the same effect are: Smith et ux. v. United Power & Light
Corporation, 142 Kan. 723, 51 P.2d 976; Mindeman v. Sanitary District of Chicago, 317 Ill.
529, 148 N.E. 304; Emond et al. v. Kimberly-Clark Company, 159 Wis. 83, 149 N.W. 760;
Peters v. Bowman, 115 Cal. 345, 47 P. 113, on rehearing Id., page 598, 56 Am.St.Rep. 106;
McCabe v. American Woolen Co., C.C.Mass., 124 F. 283; Sullivan v. Huidekoper, 27
App.D.C. 154, 7 Ann. Cas. 196, 5 L.R.A.,N.S., 263; Indianapolis Water Co. v. Harold, 170
Ind. 170, 83 N.E. 993; Thompson v. Illinois Central Railway Co., 105 Miss. 636, 63 So. 185,
47 L.R.A.,N.S., 1101; Salladay v. Old Dominion Copper Mining Co., 12 Ariz. 124, 100 P.
441.
11. It appearing beyond any doubt whatever that, under the common law, in the absence
of statute, and unless exceptionally dangerous conditions exist, there is no duty upon the
owners of irrigation ditches, canals, ponds and other artificial bodies of water to fence them,
the question remaining is, as above indicated, did the legislature, by the statute of 1866,
intend to depart from the common law to the extent of requiring them to be fenced, or
otherwise safeguarded?
We cannot conclude that the legislature did so intend, unless, as stated by Mr. Crawford
and before quoted, the intention to do so is clearly expressed or fairly implied. The
legislature expressed an intention to depart from the common law by the provision in
section 1 of said statute of 1S66 requiring the erection or causing to be erected by
persons digging, sinking or excavating "any shaft, excavation, or hole * * * [of] good and
substantial fences, or other safeguards * * * around such works or shafts * * *," as above
stated.
depart from the common law by the provision in section 1 of said statute of 1866 requiring
the erection or causing to be erected by persons digging, sinking or excavating any shaft,
excavation, or hole * * * [of] good and substantial fences, or other safeguards * * * around
such works or shafts * * *, as above stated. None of this sort of excavations, in absence of
statute, was required to be fenced at common law. But by the use of the word excavation
was it the intention of the legislature to so far depart from the common law as to intend to
include irrigation ditches within the scope of the meaning of excavation, regardless of the
other express provisions of the statute pointing unmistakably in the opposite direction? The
departure from the original common law in most of the United States, and particularly in the
far western states, due to the thinly settled range lands of large expanse and the necessity of
financial frugality in a pioneer country, had been in the direction of lessening the requirement
of fencing.
By dispensing with the common-law rule requiring fencing to keep cattle at home, their
action was primarily to avoid the expense of fencing. Each of such settlers was willing to
stand the loss and annoyance of having his neighbor's cattle graze upon his lands, such
privilege being reciprocal; and each was willing to suffer the occasional loss that would
necessarily result from his cattle being injured from the ordinarily dangerous conditions on
his neighbor's land, in order to get established in a new country with the least expense
possible.
It cannot be said that by the use of the word excavation in view of the words with which
it was by the legislature associated in the statute of 1866, and of the contextparticularly the
phrase around such works or shaftsand bearing in mind the fact that such construction
would lead to the certain unconstitutionality of the act, that the legislature expressed the
intention to include irrigation ditches. Only the scientific, or technical, definition of the word,
as has been shown, would be the basis for such construction, and all the above-mentioned
factors indicate that the ordinary definition of the word "excavation" was intended, and
that no departure from the common law, so drastic, radical and extreme as to require
fencing all the irrigation ditches in the state was within the intent or contemplation of the
legislature.
would be the basis for such construction, and all the above-mentioned factors indicate that the
ordinary definition of the word excavation was intended, and that no departure from the
common law, so drastic, radical and extreme as to require fencing all the irrigation ditches in
the state was within the intent or contemplation of the legislature.
But can the requirement of fencing irrigation ditches be deemed fairly implied, within the
meaning of excavation or excavations, as used in the statute, by reason of any condition,
exceptionally dangerous to persons and animals occasioned by such ditches? In view of the
conditions and circumstances existing at the time of the passage of the act, was there any
reason within the scope of the police power, which, in the interest of the public safety and
general welfare, could be deemed to have caused the legislature to have intended, by
implication, so great a departure from the common law as to require, under such then
prevailing conditions, the fencing of all irrigation ditches in the state?
There are a few other rules of statutory construction which we believe of assistance in
making certain of a correct conclusion as to whether such legislative intent could be deemed
implied. We will now refer to certain of such rules and quote portions of them which seem
clearly applicable.
12. In Crawford on Statutory Construction, sec. 210, pp. 366-368, under the heading
Contemporaneous Circumstances, occurs the following treatment of the question as to what
extent conditions and circumstances existing at the time of the enactment of the statute should
influence its interpretation.
We quote: 210. Contemporaneous CircumstancesWhen it becomes necessary to
resort to extraneous matters in order to ascertain the meaning of a statute, the court may
properly refer to what is generally known as contemporaneous circumstances. Such
circumstances include the history of the times existing when the law was enacted, the
previous state of the law, the evils intended to be corrected, and even, according to some
cases, the habits and activities of the people.
existing when the law was enacted, the previous state of the law, the evils intended to be
corrected, and even, according to some cases, the habits and activities of the people.
Generally, these circumstances may be defined as the conditions under which the statute was
enacted. And the court may inform itself as to these circumstances by any and all available
means. The various extraneous considerations, however, are not to be resorted to in order to
alter the meaning of the statute, but to remove whatever doubt that still remains after all
intrinsic aids have been considered.
And under the general subject Statutes, in 50 Am. Jur., we will quote section 236 on
page 224, and a portion of section 237, on the same page:
236. Meaning of Terms as of Time of EnactmentBecause it is easy to be wise after
one sees the results of experience there is always a tendency, it has been said, to construe the
language of a statute in the light in which it appears when the construction is given. Such an
approach to the question is erroneous. Since, in determining the meaning of the terms of a
statute, the aim is to discover the connotation which the legislature attached to the words,
phrases, and clauses employed, the words of a statute must be taken in the sense in which
they were understood at the time when the statute was enacted, and the statute must be
construed as it was intended to be understood when it was passed.
237. Application to New Cases, Conditions, and SubjectsSince the words of a statute
must be taken in the sense in which they were understood at the time when the statute was
enacted, and the statute must be construed as it was intended to be understood when it was
passed, statutes are to be read in the light of attendant conditions at the time of their
enactment. A new meaning may not be given the words of an old statute in consequence of
changed conditions. The fact that events probably not foreseen by the legislature have
occurred, does not permit the court to undertake to enact new law.
enact new law. Indeed, new things may arise, which are not regarded within the meaning of a
statute, although they are within the terms thereof. * * *
13. That it is proper for courts, in interpreting ambiguous statutes, to consider the effect of
possible interpretations, is stated in Crawford on Statutory Construction, sec. 177, pp. 286,
287, in part, as follows:
177. The Effect of the StatuteSince the basic and underlying purpose of all
legislation, at least in theory, is to promote justice, if would seem that the effect of the statute
should be of primary concern. If this is so, the effect of a suggested construction is an
important consideration and one which the court should never neglect.
Consequently, where the language of the statute is ambiguous or susceptible to more than
one construction, the court should not hesitate to consider the consequences which will
follow the adoption of a particular construction, in determining the question whether the
asserted construction represents the legislative intent.
14, 15. In endeavoring to determine what the legislature of 1866 actually intended, and
not for the purpose of substituting in any sense our judgment of what public policy required at
the time the statute in question was enacted, further quotations from Crawford on Statutory
Construction seem appropriate. We quote a portion of sec. 175, p. 283, and of sec. 178, pp.
291-294:
Since all statutes must be interpreted before they can be applied, might not the rule be
announced that all statutes are subject to construction, and if there be more than one possible
construction, that meaning will be adopted which most reasonably seems to be the one
intended by the legislature, after the court has considered all intrinsic and extrinsic aids?
Since in practice this largely represents the method actually pursued by the courts in its search
for the legislative intent, there should be no real objection to recognizing that which already is
a reality.
And what is it that most reasonably represents the legislative intent, where a statute is
susceptible to two or more interpretations?
legislative intent, where a statute is susceptible to two or more interpretations? Everything
being equal in other respects, that interpretation should surely be accepted by the courts as
constituting the one intended by the law-makers, which operates most equitably, justly and
reasonably as determined by our existing standards of proper conduct and by our conceptions
of what is right and what is wrong, of what is just and what is unjust. As we have stated time
after time in this treatise, where a statute operates inequitably or absurdly or with some other
universally recognized undesirable effect, even though it may on its face seem unambiguous,
nevertheless is it not highly proper to suspect that it does not represent the will of the
legislature? In the first place, our law-makers must be presumed to legislate for the equal
benefit of all persons as judged in the light of our standards of proper human conduct and
relationship. In the second place, at best, the legislature can only lay down general rules to
cover classes of cases. The application of the law to specific controversies must be left largely
to the courts, with a discretion to include or exclude the specific controversy in litigation
from the operation of the statute.
178. The Spirit and Reason of the LawClosely related to the rule which permits the
court to consider the effect of the statute, is the rule which allows consideration of the spirit
and reason of the law. The effect of a suggested construction indicates, as we shall see later,
whether it is in accord with the actual intent of the legislature. Actually, there seems to be but
little distinction between the spirit and reason of the law and the law's purpose, or scope.
While the purpose of a statute is the reason for its enactment, the spirit or reason of the law is,
perhaps strictly speaking, more closely connected to the legislative intention.
Since the intention of the legislature constitutes the law of its enactments, it is the
intention rather than the literal meaning of the statute which controls; or, as is generally said,
the spirit of the statute will prevail over the strict letter.
over the strict letter. Consequently, cases which do not come within the strict letter of the
statute, if within the spirit, will fall within the scope of the statute, and cases within the letter
of the statute, if without its spirit, will not come within its operation. But this principle is not
applicable if the statute is clear and unambiguous, so that there is no doubt concerning the
legislative intent. Numerous factors may, however, raise such a doubt. It may be raised where
a literal meaning leads to absurdity, contradiction, or any other effect which is contrary to the
legitimate objects of legislation. As a result, the court may consider the spirit and reason of a
statute where a literal meaning would lead to absurdity, contradiction, injustice, or would
defeat the clear purpose of the law-makers. It may also be used where the statute is inaccurate
in the use of words or phrases, or contains provisions inserted unintentionally.
In the light of these rules which enlightened legal minds have evolved to aid in the
construction of ambiguous words and phrases in statutes, so that justice may be advanced,
how should the word excavation be interpreted?
We will consider how the historical background and the conditions, circumstances and
environment of the people of the state at the time the statute of 1866 was enacted.
In 1866, the state was sparsely settled. Only a few villages, towns or communities existed
in the state. For the most part, the ranches had been established on or near streams of water,
and were in isolated locations, usually comparatively long distances from each other.
Irrigation ditches to convey water from its natural streams to the various ranches were
necessarily established. Cities, such as Reno, were in their infancy. The Orr ditch was
established in or about the year 1872, as stated on pages 1 and 2 of the application for writ of
prohibition in the instant case. The said ditch, at the time it was constructed, "extended
through uninhabited territory north of the present City of Reno on the foothills; that since
said construction the City of Reno has extended its improvements and a portion of said
ditch lies within the corporate limits of the City of Reno."
the time it was constructed, extended through uninhabited territory north of the present City
of Reno on the foothills; that since said construction the City of Reno has extended its
improvements and a portion of said ditch lies within the corporate limits of the City of Reno.
The larger settlements in the State, in 1866, when the statute in question was enacted, were
the mining towns or cities, some of which suddenly increased in population due to mining
discoveries and consequent interest and excitement. Shafts, holes, and other excavations, for
mining purposes, to obtain water, and for building purposes were dug by the dozens, and in
some places, by the hundreds, in and near such camps. Frequently, because of favorable
mining developments, some of them were dug near streets, roads, and trails traveled by
pedestrians, and many such excavations dotted the hillsides upon which cattle roamed.
Viewed in the light of conditions existing at that time (and it is as of that time that we must
determine what the legislature may reasonably be deemed to have intended by the said statute
of 1866), there was vital need for a statute to require the fencing or covering of excavations
such as shafts, pits, and holes in the earth, which were usually dangerous because of their
depth or location, or both.
In some of those active mining camps, such excavations increased so prolifically and in
locations so unexpected, that the pedestrians, including many newcomers, were in many
instances unfamiliar with their locations.
No such conditions existed as to the persons engaged in ranching and served by irrigation
ditches. The ditches were comparatively few in number, and were located in permanent
locations well-known to the few ranchmen and their families residing near them. Those
settlers were pioneers in a new country. They had little difficulty in training their children to
avoid such of the ditches as conveyed sufficient water to be dangerous, and in view of the
conditions then existing, there was no real need for the fencing of irrigation ditches.
and in view of the conditions then existing, there was no real need for the fencing of irrigation
ditches. These pioneer settlers usually were persons who had to economize in every way
possible in order to establish their homes and launch their livestock and farming enterprises.
To compel the fencing of all the irrigation ditches in the state, involving as to many of the
individual ditches an expenditure of thousands of dollars, would be a stupendous undertaking,
even under present conditions. In 1866 it would have been a death blow to many of the
ranching and agricultural undertakings in the state. Like most of the American, and all of the
far western states, Nevada had established a public policy of departure from the common law
to the extent of abrogating the requirement of fencing to keep cattle on the home premises.
In Colorado the legislature in 1887 (21 years after our statute of 1866 was enacted), in
formulating their statute, requiring the fencing of a canal in Denver, which had become a
populous city (Platte & Denver Canal & Milling Co. v. Dowell et ux., supra), were careful to
limit the application of the statute to cities of the first class, or cities which existed by special
charter of a population equal to or exceeding cities of the first class.
In view of the conditions existing in Nevada in February 1866 (less than two years after
becoming a state) is it to be believed, in the light of reason and common sense, that the
legislature of that year intended, by the statute in question, to require the fencing, or otherwise
safeguarding, of all the irrigation ditches in the State?
Such a construction would, in our judgment, be imputing to that legislature, the members
of which we must assume were fairly representative of their constituencies, the intent to
cripple, if not destroy, one of the state's two paramount industries, when to do so, in the
absence of any substantial need for such far-reaching legislation, would have been
unreasonable and unjust to the point of absurdity.
To require shafts, holes, and similar excavations to be fenced, as the legislature
obviously intended, led to no such result, as the need was substantial for fencing of that
kind of excavations, and the cost was small.
be fenced, as the legislature obviously intended, led to no such result, as the need was
substantial for fencing of that kind of excavations, and the cost was small.
In view of the many indications from the facts, surrounding background and
circumstances, and from the language of the statute itself, interpreted with the aid of the many
sound rules of statutory construction we have employed, and above all, from the standpoint of
reason, common sense and the accomplishment of justice, our path is not obscure.
16. For the reasons indicated, we shall apply the rule of ejusdem generis in construing the
meaning and application of the words excavation and excavations, as employed in said
statute of 1866. Accordingly, we hold that said word excavation, as used in the statute,
means, and is hereby construed to mean, an opening or cavity in the earth of a kind or type
similar to a shaft or a hole, with which words the said word excavation is associated in the
statute. By this construction we adopt for the purposes of the instant case, the ordinary or
popular definition of the word excavation, as distinguished from its scientific or technical
definition.
We are not unconcerned as to the tragic deaths of little children which have occurred over
a period of years, from falling into the irrigation ditches in the cities of Reno and Sparks, and
keenly regret that there are no legal instrumentalities available to us to enable us to assist
toward an effective remedy. We commend most heartily the worthy efforts of Mr. Heward,
Mr. Zahniser and others to attract popular attention to the great need of effective action to
fence or otherwise safeguard the irrigation ditches in Reno and Sparks, where reasonably
necessary in the interest of public safety, and especially the safety of those children too young
adequately to protect themselves. We may say further, we have noted with approval and hope
the earnest studies being made by the committee in Reno, and by many public spirited
citizens of Reno and Sparks, and the loyal support being given by the press, in the endeavor
to find a solution, and we wish them Godspeed in their worthy efforts, and sincerely trust
a wise and practicable plan may be formulated and speedily executed.
endeavor to find a solution, and we wish them Godspeed in their worthy efforts, and sincerely
trust a wise and practicable plan may be formulated and speedily executed. The present
activities indicate that the people of those cities now fully realize the very serious, and, we
believe, the primary or paramount responsibility resting upon them in this regard. The
foregoing, holding that the statute of 1866 is inapplicable to the Orr ditch, renders
unnecessary the determination of the several constitutional questions which have been
presented by the petitioner. And the same may be said as to the question raised as to whether
the terms of the statute are so vague, ambiguous and uncertain, as to procedure, as to render
the statute invalid, although we have been much impressed with the brief of Mr. Forman,
amicus curiae, as to that phase of the case. These questions, in view of our foregoing holding,
having thus become merely academic and hypothetical, we should not determine them in the
instant case. In that connection we cite 11 Am.Jur., sec. 93, p. 720, dealing with the subject,
Avoidance of Unnecessary Decisions.
It has been urged by petitioner and conceded by respondents that prohibition is the
appropriate procedure and remedy in the instant case.
It is ordered, therefore, that respondent's demurrer to the petition herein be, and the same is
hereby, overruled, and that the alternative writ of prohibition heretofore issued be, and the
same is hereby, made permanent.
Taber, J., participated in hearing the arguments in this case, but died before the completion
of the opinion.
____________
64 Nev. 179, 179 (1947) State v. Pray
THE STATE OF NEVADA, Respondent, v. HARRY G. PRAY, also known as H. G. PRAY,
Appellant.
No. 3461
April 9, 1947. 179 P.2d 449.
1. Perjury.
Indictment for perjury or subornation of perjury should show by whom allegedly false oath was
administered, and omission of such showing is fatal. Comp.Laws, sec. 10864.
3. Perjury.
In indictment for perjury or subornation of perjury, allegation that court or person before whom
allegedly false oath was taken had authority to administer such oath is essential. Comp.Laws, sec. 10864.
3. Perjury.
One accused of perjury or subornation should be informed, in indictment of facts sufficient to show
that he took a false oath or suborned taking thereof before a certain tribunal or person, named or
sufficiently described, that such tribunal or person had authority to administer oath when it was taken,
and that sufficient words or acts were assented to or done, to make clear to consciousness of the person
taking oath that he was assuming and acting under solemn obligation to tell truth. Comp.Laws, sec.
10864.
4. Perjury.
In information for subornation of perjury, allegation that defendant prepared and caused to be
prepared and caused to be duly verified by [named person] and filed a complaint in particular cause was
sufficient to allege that oath was actually taken or administered. Comp.Laws, secs. 8616-8620, 9460,
10864.
5. Perjury.
In information alleging subornation of perjury, word verified was appropriate to describe making
oath to a pleading requiring verification. Comp.Laws, secs. 8616-8620, 9460.
6. Criminal LawIndictment and Information.
Objection that information did not allege sufficient facts to constitute a public offense can be made at
any stage of proceedings in trial court and may be made for first time in appellate court.
7. Perjury.
In prosecution for subornation of perjury, allegedly committed in verification of pleading, actual
proof of signature of notary and of original impress of his seal was essential to establish authenticity of
jurat to the verification. Comp.Laws, secs. 8616-8620, 9460, 10864.
8. Criminal Law.
Reviewing court is not required to weigh evidence but when error is assigned on ground that
verdict was contrary to evidence and that motion for new trial was erroneously
denied, must determine whether there is any substantial evidence to sustain verdict
and judgment thereon.
64 Nev. 179, 180 (1947) State v. Pray
error is assigned on ground that verdict was contrary to evidence and that motion for new trial was
erroneously denied, must determine whether there is any substantial evidence to sustain verdict and
judgment thereon.
9. Perjury.
Evidence was insufficient to sustain conviction for subornation of perjury. Comp.Laws, sec. 10864.
10. Criminal Law.
In prosecution for subornation of perjury, defendant and alleged perjurer were accomplices,
requiring corroboration of perjurer's testimony. Comp.Laws, secs. 9958, 10864, 10978.
11. Perjury.
Evidence did not establish a prima facie case of subornation of perjury, nor justify submission to jury.
Comp.Laws, 10864.
12. Criminal Law.
Where defendant was entitled to acquittal under evidence, reviewing court must reverse conviction
and render judgment which district court should have rendered if it had advised jury to acquit and jury
had followed such advice.
Appeal from Second Judicial District Court, Washoe County; Wm. McKnight, Judge.
Harry G. Pray, also known as H. G. Pray, was convicted of subornation of perjury, and he
appeals. Reversed and remanded with directions.
Oliver F. Custer, of Reno, Clarence M. Hawkins, of Auburn, California, and H. R. Cooke,
of Reno, for Appellant.
Alan Bible, Attorney General, Geo. P. Annand and Homer Mooney, Deputy Attorneys
General, and Harold O. Taber, District Attorney, of Reno, and C. Lester Zahniser, Deputy
District Attorney, of Sparks, for Respondent.
OPINION
The appellant was convicted, in department No. 1 of the Second judicial district court of
the State of Nevada, in and for the county of Washoe, of the crime of subornation of
perjury.
64 Nev. 179, 181 (1947) State v. Pray
in and for the county of Washoe, of the crime of subornation of perjury. His motion for a new
trial was denied by said court, and he has appealed to this court from the judgment and from
the order denying his motion for a new trial.
The appellant has presented seven assignments of errors. We have carefully considered
each and all of those assignments and the numerous questions raised in their support, but will
not deal with them herein in the order in which they have been presented, but, rather, in the
order which seems to facilitate the reaching of a final determination of the case, without
passing upon matters not essential thereto.
In his assignment of error No. V(b), the appellant assigns that no public offense was
charged in the information, in that it fails to allege the name of the officer before whom the
oath, if any, was taken, and fails to allege that any oath was administered to Mrs. Bogdewicz
relative to the matters alleged in count I of said information. Point two of appellant's opening
brief presents in detail the particulars wherein the appellant contends that the information
(count I) fails to state facts sufficient to constitute a public offense, among which are
paragraphs 1, 2, and 4, on page 13, as follows:
1. It fails to allege before whom the oath alleged to be false was taken;
2. It fails to allege that the unnamed person, or officer, before whom an oath, if any, was
taken, had the necessary, or any, authority to administer said, or any, oath.
4. It fails to allege what oath is claimed to have been taken. We agree with counsel for
appellant that the Nevada statute, sec. 10864, N.C.L. 1929, vol. 5, in all essential respects, is
a reenactment of the English Statute 23, Geo. II, chap. 11.
Our said Nevada statute, sec. 10864, is as follows: Perjury, What Deemed Sufficient.
216. In an indictment or information for perjury or subornation of perjury, it is sufficient to
set forth the substances of the controversy or matter in respect to which the offense was
committed, and in what court, or before whom, the oath alleged to be false was taken,
and that the court or the person before whom it was taken had authority to administer
the same, with proper allegations as to the falsity of the matter of which the perjury is
assigned; but the indictment or information need not set forth the pleadings, record or
proceedings with which the oath is connected, or the commission or the authority of the
court or person before whom the perjury was committed."
64 Nev. 179, 182 (1947) State v. Pray
of perjury, it is sufficient to set forth the substances of the controversy or matter in respect to
which the offense was committed, and in what court, or before whom, the oath alleged to be
false was taken, and that the court or the person before whom it was taken had authority to
administer the same, with proper allegations as to the falsity of the matter of which the
perjury is assigned; but the indictment or information need not set forth the pleadings, record
or proceedings with which the oath is connected, or the commission or the authority of the
court or person before whom the perjury was committed.
It thus appears that among the allegations required in an indictment or information for
perjury or subornation of perjury, to render such indictment or information sufficient, are:
1. That an oath alleged to be false was taken by the defendant;
2. In what court, or before whom, such oath alleged to be false was taken;
3. And that the court, or the person, before whom the oath was taken had authority to
administer the same.
1. In 48 C.J. 875, in dealing with the necessity, in an indictment or information, of
alleging in what court or before whom such oath alleged to be false was administered, it is
stated: * * * the general rule is that the indictment or information should, by proper
designation, show by whom the oath was administered, and the omission of such showing is
fatal. Citing Hilliard v. United States, 5 Cir., 24 F.2d 99; Wilson v. State, 115 Ga. 206, 41
S.E. 696, 90 Am.St.Rep. 104; Kerr v. People, 42 Ill. 307; State v. Gross, 175 Ind. 597, 95
N.E. 117; Hitesman v. State, 48 Ind. 473; State v. Harlis, 33 La.Ann. 1172; State v. Thothos,
147 Mo.App. 596, 126 S.W. 797; Jefferson v. State, Tex.Cr.App., 29 S.W. 1090.
In the early Illinois case of Kerr v. People, supra, it is stated: "The indictment omits to
aver before whom the affidavit, upon which perjury is assigned, was made.
64 Nev. 179, 183 (1947) State v. Pray
The indictment omits to aver before whom the affidavit, upon which perjury is assigned,
was made. This averment has always been considered as material and matter of substance.
The accused has an undoubted right to be informed before whom it is alleged he took the oath
charged to be false. He has the right in his defense to prove that the person administering the
oath did not have legal and competent authority for the purpose. In the absence of such
authority there could be no perjury, and hence the necessity of an averment as to who
administered the oath, and that he had legal and competent authority for the purpose. This
was the rule announced in the case of Morrell v. People, 32 Ill. 499, and no reason has been
presented why it should not govern this case. A party accused of crime should be fully
advised by the indictment of all the material facts relied upon to establish the offense of
which he stands charged. This indictment fails to do so, and was therefore materially
defective.
The court below therefore erred in refusing to quash the indictment, or to arrest the
judgment; and the judgment of the court below must be reversed and the cause remanded.
The case of State v. Shupe, 16 Iowa 36, is reported in 85 Am.Dec. 485, and in an
exhaustive note, pages 488-501, is the following, on page 496: The name of the person or
court administering the oath must be averred, and a variance in this respect is fatal: 2
Wharton's Crim.Law, sec. 1287; Kerr v. People, 42 Ill. 307; State v. Ellison, 8 Blackf. 225;
Hitesman v. State, 48 Ind. 473; State v. Schultz, 57 Ind. 19; State v. Harlis, 33 La.Ann. 1172;
Guston v. People, 61 Barb. 35; Geston v. People, 4 Lans. 487; State v. Street, 1 Murph., S.C.,
156, 3 Am.Dec. 682; State v. Oppenheimer, 41 Tex. 82; United States v. Wilcox,
Fed.Cas.No.16,692, 4 Blatchf. 391; and where the perjury is alleged to have been committed
by a witness in the trial of an action in a certain court, it is sufficient to allege that the oath
was taken in that court, without designating the officer by whom it was administered:
State v. Spencer, 6 Or.
64 Nev. 179, 184 (1947) State v. Pray
taken in that court, without designating the officer by whom it was administered: State v.
Spencer, 6 Or. 152.
And in 20 Cal.Jur. p. 1015, it is stated: Sec. 9. In GeneralAt common law it was
necessary, in an indictment for perjury, to set out the pleadings in the case in which the
perjury was alleged to have been committed. This rule is abrogated in California, it being
provided by the Penal Code that in an indictment or information for perjury, or subornation
of perjury, it is sufficient to set forth the substance of the controversy or matter in respect to
which the offense was committed, and in what court and before whom the oath alleged to be
false was taken, and that the court, or the person before whom it was taken, had authority to
administer it, with proper allegations of the falsity of the matter on which the perjury is
assigned; but the indictment or information need not set forth the pleadings, record or
proceedings with which the oath is connected, nor the commission or authority of the court or
person before whom the perjury was committed.' * * *
It is clear, from the language of our statute, sec. 10864, N.C.L., and from the foregoing
authorities and cases under similar statutes, that it is essential that, in the indictment or
information, it be alleged in what court, or before whom, the oath alleged to be false was
taken, and that an indictment or information failing to so allege does not state a public
offense. The information in the instant case fails to so allege in count I, and it is the offense
alleged in that count of which conviction was had.
2. As to the element of the offense as stated in the statute, that the court or the person
before whom it was taken had authority to administer the same, the authorities, with
practical unanimity, consider such allegation essential to a statement of a public offense. 20
Cal.Jur. 1015, supra, and the California cases cited, in footnote 11.
In 48 C.J. p. 874, it is stated: (Sec. 121) 10. Authority to Administer Oatha. In General.
In an indictment or information for perjury or false swearing the authority of the officer or
other person to administer the oath must be set forth by proper averment; and, if this is
not done, the indictment or information will be fatally defective."
64 Nev. 179, 185 (1947) State v. Pray
indictment or information for perjury or false swearing the authority of the officer or other
person to administer the oath must be set forth by proper averment; and, if this is not done,
the indictment or information will be fatally defective.
In Wharton's Crim.Law, vol. 2, sec. 1554, p. 1818, is the following treatment of this
question: Sec. 1554. Detailed Authority of Court Need Not be Given. By stat. 23, Geo. II.
chap. 11, it is sufficient to set forth * * * by what court, or before whom the oath was taken,
averring such court or person or persons to have competent authority to administer the same.'
By the English practice, under the statute the nature of the authority need not be specified. In
the United States, there are jurisdictions in which the relaxation of the common law affected
by the statute has not been accepted; and where it has been held necessary to set forth all the
facts essential to constitute the authority to administer the oath. But as a general rule, the
principle of the statute has been accepted among us as virtually a part of the common law,
though it must appear from the indictment that the officer administering the oath was of a
class authorized by law to act in such capacity. Beyond this specification need not be pushed.
Thus, it has been held, that where an oath before a foreman of a grand jury is averred, this is
enough without stating the foreman's name in detail. It must, however, be specifically averred
that the person or court administering the oath had authority so to do.
See, also, the note, above cited, to State v. Shupe, supra, wherein, on page 496 of 85
Am.Dec. it is stated: b. Before Competent Officer or TribunalIt must appear from the
indictment that the oath was administered by a person authorized to administer it, and if
before a court or other tribunal, that such judicial tribunal had jurisdiction over the matter.
(Citing many cases.)
There was a complete failure in the information in the instant case to allege that the officer
before whom the alleged oath was taken {if an officer), in the verification of the complaint
{which, in the information, is alleged to have been caused, by the defendant, to be "duly
verified"), had authority to administer the same.
64 Nev. 179, 186 (1947) State v. Pray
the alleged oath was taken (if an officer), in the verification of the complaint (which, in the
information, is alleged to have been caused, by the defendant, to be duly verified), had
authority to administer the same.
It appears to us that the requirements above mentioned are reasonable, as minimum
requirements, in alleging perjury or subornation of perjury.
A defendant may, for example, be accused of suborning A to make a false affidavit. The
affidavit may be described in the information, but not fully set forth therein, and the accused
may have participated in, or had some connection with, the making of numerous affidavits,
before several different notaries, and he may be unable to remember before whom the
particular affidavit, partially described, was verified. He should not be required to determine,
by investigation and deduction, before whom the alleged oath to the particular affidavit
involved was taken, in order to be able to check as to whether the officer before whom same
was taken had authority to administer the oath. A defendant should be able, from the
allegations of the indictment or information, to determine, with definiteness and certainty, the
offense of which he is accused, in order that he may decide how he should plead, and if he
pleads not guilty, he should be apprised, in the indictment or information, of facts sufficient
to enable him to prepare his defense.
3. It seems only common sense to conclude that one accused of perjury, or subornation,
should be informed, in the indictment or information (among other essentials) of facts
sufficient to show:
1. That he took a false oath, or suborned the taking of a false oath, before a certain tribunal
or person named, or sufficiently described;
2. That such tribunal or person had authority to administer the alleged oath, when it was
taken;
3. That sufficient words or acts were assented to, or done, as to make clear to the
consciousness of the person taking the oath that he was assuming, and acting under, the
solemn obligation to tell the truth.
64 Nev. 179, 187 (1947) State v. Pray
taking the oath that he was assuming, and acting under, the solemn obligation to tell the truth.
4. As to the necessary allegation in the indictment or information that the oath alleged to
be false was actually taken by the accused, or administered to him, it may be stated that it
appears from the authorities on the question that the allegation in the information in the
instant case, namely, that the said defendant prepared and caused to be prepared and caused
to be duly verified by Congetta Bogdewicz and filed a complaint in said cause and before said
court, was sufficient.
5. We believe the word verified was appropriate to describe the act of making oath to a
pleading requiring verification. And, under our statute, a complaint in a divorce action, to
have standing and to be entitled to be filed, must be by complaint, under oath. Sec. 9460,
N.C.L.Supp. 1931-1941, vol. 2.
And by the provisions of our civil practice act, secs. 8616-8620, N.C.L. 1929, vol. 4, the
words verification and verified are repeatedly employed in describing the making of oath
or affidavit to the various sorts of pleadings and under the varying situations described in said
act. The complaint involved in the instant case, being a pleading, it was proper to allege that
the said defendant * * * caused to be duly verified (if defendant instigated the making of the
oath to it), and such allegation, we believe, was the equivalent of alleging that he caused it to
be duly sworn to, or duly sworn. Upon that point we cite 48 C.J. 876:
As to Form and Manner of Administration. Under the modern practice it is not necessary
to allege in what particular form accused was sworn to testify, and an averment which
describes an oath which is in substantial compliance with the applicable statute is sufficient.
It has been held that it is sufficient to allege that accused was duly sworn,' was solemnly
sworn, or that the oath was administered in due form of law, or that a lawful oath was
administered, provided, according to some cases, the indictment states the circumstances
under which the oath was required and the occasion on which it was made, so as to show
that its violation was perjury.
64 Nev. 179, 188 (1947) State v. Pray
cases, the indictment states the circumstances under which the oath was required and the
occasion on which it was made, so as to show that its violation was perjury. * * *
See, also, Wharton on Crim.Law, sec. 1553, p. 1817, wherein it is stated:
Sec. 1553. Oath Must be Properly Set Forth. Duly sworn' is sufficient to describe the
swearing; nor need the particular mode be set forth. Hence it is sufficient to aver that the
defendant did then and there, in due form of law, take his corporal oath,' without stating
whether he was sworn on the Gospels, or with uplifted hand. But sworn' (or affirmed) must
be distinctly alleged, and where the procedure is special, prescribed by statute, the special
oath so prescribed must be averred.
At common law the name and office of the person or court administering the oath must
be given, and a variance in this respect is fatal.
It is, however, enough to allege swearing before a court; and proof of swearing before an
officer of court, in presence of the court, will sustain an allegation of swearing before or by
the court.
An indictment charged the defendant with having sworn to tell the truth, the whole truth,
and nothing but the truth.' The evidence was that he was sworn to tell the whole truth and
nothing but the truth.' It was held that the variance was immaterial.
It has been hereinbefore stated that, in two essential particulars, the information failed, in
count I thereof, to state facts sufficient to constitute a public offense:
1. By failing to allege the name of the officer or tribunal before whom the oath was taken;
2. By failing to allege that such officer or tribunal administering the oath had authority to
administer the same.
6. The appellant did not demur to the information, but we believe that the objection to the
effect that the information did not allege sufficient facts to constitute a public offense, could
be made at any stage of the proceedings in the trial court, and may be made for the first
time in the appellate court.
64 Nev. 179, 189 (1947) State v. Pray
a public offense, could be made at any stage of the proceedings in the trial court, and may be
made for the first time in the appellate court. It is specifically so stated in State v. Trolson, 21
Nev. 419, 32 P. 930, 934. Other Nevada cases referring to a similar question are: State v.
Hughes, 31 Nev. 270, 102 P. 562; State v. Raymond, 34 Nev. 198, 117 P. 17; State v. Kruger,
34 Nev. 302, 122 P. 483.
We cite the following authorities from Oregon and California upon the point that the
objection that the indictment or information fails to state facts sufficient to constitute a public
offense may be made for the first time in the appellate court, and is not waived by failing to
demur: State v. Mack, 20 Or. 234, 25 P. 639; State v. Martin, 54 Or. 403, 100 P. 1106, 1107;
State v. Robinson, 74 Or. 481, 145 P. 1057; State v. Jewett, 48 Or. 577, 85 P. 994, 995
(containing an approved form of indictment for subornation of perjury, under Oregon statute
very similar to Nevada statute); People v. Ross, 103 Cal. 425, 37 P. 379, 380; Haydel v.
Morton, 19 Cal. App.2d 697, 66 P.2d 204, 208; People v. Bliss, 47 Cal. App. 503, 190 P.
1046. (The cases in this paragraph were cited by appellant, in his reply brief.)
We find, and hold, that assignment of error V(b), as amplified and developed in
paragraphs 1, 2, and 4 of point two, on page 13 of appellant's opening brief, has merit to the
extent above indicated in this opinion, that is to say, said assignment has merit in that it
assigns as error:
1. The failure to allege, in count I in the information, before whom the alleged false oath
was taken;
2. The failure to allege, in count I of the information, that the officer, if any, before whom
the oath, if any, was taken, had authority to administer such oath.
We find such assignment V(b) to be without merit to the extent that it claims that there is a
failure to allege in count I of the information that any oath was administered to Mrs.
Bogdewicz, and a failure to allege what oath is claimed to have been taken. We believe, as
before stated, that the allegation, "caused to be duly certified by Congetta Bogdewicz," is
a sufficient allegation that she was duly sworn, or that an oath was duly administered to
her.
64 Nev. 179, 190 (1947) State v. Pray
as before stated, that the allegation, caused to be duly certified by Congetta Bogdewicz, is a
sufficient allegation that she was duly sworn, or that an oath was duly administered to her.
Our finding in this respect disposes, also, of appellant's assignment of error V (d).
The appellant's particular assignments of error above mentioned, in his assignment V,
were directed to the denial by the trial court of his motion for a new trial, made upon the
general ground that the verdict of the jury was contrary to the evidence and contrary to the
law.
We will now consider appellant's general assignment of error No. II, that the Court erred
in refusing to grant, and in denying, Defendant's Motion for a New Trial, which motion for a
new trial, inter alia, was upon the ground the verdict of the jury was contrary to the evidence
and contrary to the law; also, appellant's assignment No. V (h), upon the ground that the
evidence adduced in support of Count I is insufficient to sustain the verdict of guilty.
7. As to count I, what evidence was offered upon the trial to prove before whom the oath
alleged to be false was taken, his authority to administer the same, and that a sufficient oath
was actually administered? It was proven from the testimony of Jesse H. Evans that he was a
duly qualified notary public on November 15, 1945, the date the alleged oath is alleged to
have been taken. As to the fact of whether or not Mrs. Bogdewicz appeared before Mr. Evans,
and, if so, whether she actually was sworn to, or verified, the complaint, the only evidence
offered by the state was the testimony of Mrs. Bogdewicz, and the certified copy of the
complaint, plaintiff's (state's) exhibit A, showing the typewritten signature of Jesse H. Evans,
as a notary public, to the jurat, and the typewritten word seal. The original complaint and
jurat were not shown to the witness, Jesse H. Evans, nor was his signature identified or
proven by him or any other person; in fact, there was no evidence offered or admitted to show
the genuineness of the signature, purporting to be the signature of a notary public, on the
jurat attached to the original complaint.
64 Nev. 179, 191 (1947) State v. Pray
of the signature, purporting to be the signature of a notary public, on the jurat attached to the
original complaint. We believe actual proof of the signature of the notary and of the original
impress of his seal was absolutely essential in order to establish the authenticity of the jurat.
The imprint, or impress, of the seal upon the original complaint was not shown to the witness,
Jesse H. Evans. In order to make clear just what occurred at that point in the trial, we refer to
the record (Tr. pp. 36-37):
Q. Do you also act as a duly authorized notary public in the County of Washoe, State of
Nevada? A. Correct.
Q. Were you so engaged in November, 1945? A. Yes.
Q. I show you plaintiff's Exhibit A' in evidence, which is a verified copy of the
complaint filed in this Court in this county, and I will ask you to examine the notarized
acknowledgment on there. A. No, that is typewritten.
Q. A certified copy? A. Yes.
Q. Do you recollect being the notary public on such a case on November 15, 1945? A.
No.
Q. You have no independent recollection of that? A. I have not.
Q. Do you have any records showing that? A. No.
Q. If your seal and signature appears on the original of that complaint in this case in this
Court, you would say you did acknowledge that signature? A. Yes.
Q. But you do not recollect this particular case? A. Not that particular case, no.
Q. Do you know the defendant in this action Mr. Pray? A. Yes.
Q. Does he bring people in to you on divorce cases to have you acknowledge their
signatures? A. On divorce cases and deeds and various papers.
Mr. Zahniser: You may cross-examine.
Mr. Custer: No questions.
The Court: That is all, Mr. Evans. You may be excused.
64 Nev. 179, 192 (1947) State v. Pray
It is clear, from the foregoing testimony of Mr. Evans, that he had no personal recollection
of Mrs. Bogdewicz making any oath, or verifying the complaint, before him, as a notary, or
that she appeared before him at all. When the certified copy of the complaint was shown to
him, and he was asked, by the assistant district attorney, to examine the notarized
acknowledgment, the witness called attention to the fact of the original not having been
shown to him, by saying, No, that is typewritten. The hypothetical question follows, If
your seal and signature appears on the original of that complaint in this case in this Court, you
would say you did acknowledge that signature?, and the answer is, Yes, meaning nothing
as to the actual proof of the signature, or the seal. It was all conditional upon his true
signature being upon the complaint, and he could not identify it, or affirm its genuineness,
without its being shown to him.
Proof of the genuineness of the signature and of the seal was absolutely essential in order
to make the jurat competent evidence that an oath was taken by Mrs. Bogdewicz before Mr.
Evans, as a notary public; and if its authenticity had thus been established, the jurat alone
could have no effect further than to serve as the basis for a prima facie presumption that a
valid oath, meeting the minimum requirements of an oath, was actually administered by said
notary public to Mrs. Bogdewicz.
In Wharton's Crim.Law, vol. 2, secs. 1571 and 1578, pp. 1831, 1834, the matter is clearly
treated, as follows: Sec. 1571. Oath Must be Correctly Averred and Proved. The fact that the
defendant was duly sworn must be substantively proved, independently of the jurat, unless, as
will be hereafter seen, the jurat is admissible as independent prima facie proof. * * *
(Emphasis ours.)
And sec. 1578 lays down the rule as to when the jurat is so admissible as such independent
prima facie proof, as follows: "Sec.
64 Nev. 179, 193 (1947) State v. Pray
as follows: Sec. 1578. Jurat of Officers Administering Oath May be Proof of Oath. In cases
where the alleged false oath was taken before a magistrate or officer of court, then, after proof
of the identity of the defendant with the person swearing to it, the certificate of such
magistrate or officer, on proof of the handwriting of his signature, is competent and sufficient
prima facie evidence of the administration of the oath at the alleged time and place to the
defendant. (Emphasis ours.) Citing: Rex v. Spencer (1824) I Car. & P. (Eng.) 260 Ryan &
M. 97; Com. v. Warden, 1846, 11 Met., Mass. 406.
Manifestly, there is no difference in the requirement as to proving the genuineness of the
jurat by proof of the signature of the officer, whether the officer be a notary public, or a
magistrate or officer of court. There is, likewise, no difference in the effect of the jurat after
proof, nor as to the extent to which same, if sufficiently established, constitutes proof of the
administration of the oath. In either case, the jurat, upon being duly proven, is merely prima
facie evidence of the administration of the oath.
The sections above quoted from Wharton's Crim.Law are contained in chapter XXXIII,
upon the subject of Perjury.
In 48 C.J. p. 888, it is stated: (Sec. 145) 8. Administration, Form and Making of Oath. It
must, of course, be proved that an oath in some form was administered. While it is not
necessary that the indictment should set forth the form of the oath, it being sufficient to allege
that defendant was duly sworn, which latter allegation will permit the introduction of
evidence as to the form of the oath, it is usually held that if the form of the oath, or the
manner of administering it, is set forth, the proof must correspond, and that a material
variance in these matters is fatal. * * * (Emphasis ours.)
Some of the cases cited in support of the text are: O'Reilly v. People, 86 N.Y. 154, 40
Am.Rep. 525, and Markey v. State, 47 Fla. 38, 37 So. 53.
64 Nev. 179, 194 (1947) State v. Pray
An able discussion of the principle involved, and the necessity for some form of oath or an
unequivocal and present act, by which the affiant consciously takes upon himself the
obligation of an oath, is included in the opinion in the case of O'Reilly v. People, supra. We
quote certain portions of the opinion in that case:
The evidence on behalf of the prisoner tended to prove, that on the occasion of the
alleged perjury no words passed between the officer and the accused, and what was done
consisted only of the latter's signature to the jurat, which he thereupon handed to the officer
who affixed his own name to the certificate in silence. The force of this evidence was
weakened, if not entirely destroyed, by the charge of the court. The learned judge who
presided at the trial, with great care and deliberation, laid down a rule for the guidance of the
jury, which is now assailed as erroneous. He stated it first in the form of an abstract
proposition, and then applied it to the facts of the case on trial. In making such application he
said: If O'Reilly delivered the bill and the affidavit to Kieley to have the same certified to by
Kieley as sworn to before him, intending thereby to declare to said Kieley that by oath he
intended to verify and did verify the statement subscribed by him, and the officer regarding
him as so declaring on oath signs the certificate and jurat for the purpose of evidencing the
verification, and then delivers it to the party in that form verified, and the party presents it in
that form and shape to the board of supervisors for the purpose of procuring the audit of the
bill, then I charge you that the oath has been duly and lawfully administered.' The criticism to
which this proposition is subjected by the argument at the bar is in substance, that any form of
an oath is rendered unnecessary, and the intention to swear is put in the place of the oath
actually administered and taken. The criticism is just, precisely so far as it is true. Some form
of an oath has always been required, for the double reason that only by some unequivocal
form could the sworn be distinguished from the unsworn averment, and the sanctions of
religion add their solemn and binding force to the act.
64 Nev. 179, 195 (1947) State v. Pray
unequivocal form could the sworn be distinguished from the unsworn averment, and the
sanctions of religion add their solemn and binding force to the act. Pandects, XII, 2; 3 Coke's
Inst. 165; 1 Phil. on Ev. 15; 1 Stark. on Ev. 23; Lord Hardwicke, in Omychund v. Barker, 1
Atk. 21; Tyler on Oaths, 15; 1 Green. on Ev., secs. 328, 371; 1 Allison's Crim.Law, 474; 3
Whart.Cr. Law, sec. 2205; 2 Arch.Cr.Pl. 1723. While these sanctions have grown elastic, and
gradually accommodated themselves to differences of creed and varieties of belief, so that as
the Christian is sworn upon the Gospels, and invokes the Divine help to the truth of his
testimony, the Jew also may be sworn upon the Pentateuch, the Quaker solemnly affirm
without invoking the anger or aid of Deity, and the Gentoo kneel before his Brahmin priest
with peculiar ceremonies, yet through all changes and under all forms the religious element
has not been utterly destroyed. So lately as the case of People v. Sutherland, 81 N. Y. 1, 8, the
taking of an oath is described as burdening the conscience. Some form of an oath would
therefore seem to be essential. It is almost as difficult to conceive of an act of swearing
without any form, as of a material substance having neither shape nor locality. The changes of
form incident to the growth of nations and of commerce have been serious, but have not
dispensed with a form entirely. * * * A wide scope, a large liberty is thus given to the form of
the oath, but some form remains essential. Something must be present to distinguish between
the oath and the bare assertion. An act must be done, and clothed in such form as to
characterize and evidence it.
* * * * * * *
To make a valid oath, for the falsity of which perjury will lie, there must be in some form,
in the presence of an officer authorized to administer it, an unequivocal and present act, by
which the affiant consciously takes upon himself the obligation of an oath. The delivery in
this case of the signed affidavit to the officer was not such an act, and was not made so by
the intention of the one party or the supposition of the other."
64 Nev. 179, 196 (1947) State v. Pray
officer was not such an act, and was not made so by the intention of the one party or the
supposition of the other.
In Markey v. State, supra, the general subject of the necessity of proof of the actual
administration of an oath, or an unequivocal act manifesting that the affiant was thereby
taking upon himself the obligation of an oath, is quite exhaustively discussed. The opinion,
by Mr. Justice Shackleford, also deals with the effect of the jurat, and makes clear that its
effect is merely that of a prima facie presumption a sufficient oath was administered. And in
the opinion the learned justice made clear that one cannot properly be convicted of a crime
upon mere presumptions and estoppels. The said opinion was quoted in part in respondent's
reply brief in the instant case, but certain portions thereof, which we deem important, were
omitted, notably the portions dealing with the extent and effect of the presumption which
arises from a jurat the signature to which has been duly proven. We quote from said opinion
as follows [47 Fla. 38, 37 So. 59]:
Generally speaking, conclusive presumptions and estoppels have no place in criminal
law for the purpose of establishing the body of the crime charged. The defendant may prove
the actual facts in dispute, notwithstanding any admission or confession he may have made to
the contrary.' Abbott's Trial Brief, Criminal Causes (2d Ed.) 490. However, this doctrine of
estoppel has also been applied in some criminal actions. See State v. O'Brien, 94 Tenn. 79, 28
S.W. 311, 26 L.R.A. 252; State v. Spaulding, 24 Kan. 1. We have found no case where it has
been applied in any action for perjury, and we are not inclined to carry the doctrine to that
extent. Was the examiner prohibited from testifying as to whether or not the defendant was
actually sworn by him on the ground that his answer might contradict the jurat or certificate
so signed by him, and would, therefore, be against public policy? We have found no perjury
case in which it has been so held, or where the question was raised.
64 Nev. 179, 197 (1947) State v. Pray
where the question was raised. On the contrary, we have found a number of authorities in
which the officer was interrogated, without objection, as to whether or not the oath was
administered by him. See Case v. People, supra, [76 N.Y. 242]; Rex v. Benson, supra; Reg. v.
Barnes, 10 Cox. Crim. Cas. 539; Bishop's New Crim. Proc. sec. 933c; State v. Madigan,
supra, [57 Minn. 425, 59 N.W. 490]. It has not been made to appear to us why in a perjury
case, under certain circumstances, such an officer may not be interrogated, either by the state
or the defendant, fully as to the facts and circumstances connected with the alleged swearing
of the defendant. * * *
While there is force in the argument that the defendant, having obtained an order
appointing an examiner to take his testimony, procured the examiner to take what purported
on its face to be the testimony of the defendant, which he signed, and used as such in
procuring his decree of divorce, should not be permitted to show that he was not in fact
sworn, but, as we have seen, the oath being an essential element in the crime of perjury (2
McClain's Crim.Law, sec. 854), we are of the opinion that it was error to exclude testimony
offered for the purpose of showing that no oath was in fact administered, and that the matters
stated in the objections do not estop defendant from proving such fact. O'Reilly v. People,
supra. The facts stated in the objections were sufficient to prove prima facie that an oath was
actually administered, but the questions excluded were so framed as to admit of an answer
showing the contrary, and this is sufficient without a further offer to prove that negative
answers would have been given to the questions. Buckstaff v. Russell, 151 U.S. 626, 14 S.Ct.
448, 38 L.Ed. 292. If the defendant had admitted in his testimony upon the trial that he placed
his signature to the purported testimony upon the invitation of the officer to do so if he swore
to it, or that he assented by word or deed to a suggestion from the officer made at the time
that he was swearing to the contents of a written document, this would have shown a
swearing within the meaning of the authorities, and the question propounded would
perhaps have been improper in the form proposed; but he gave no such testimony, and
neither did Smith, the examiner.
64 Nev. 179, 198 (1947) State v. Pray
of a written document, this would have shown a swearing within the meaning of the
authorities, and the question propounded would perhaps have been improper in the form
proposed; but he gave no such testimony, and neither did Smith, the examiner. If the written
statement had been preceded by the declaration, I, George L. Markey, do hereby solemnly
swear.' etc., instead of, George L. Markey, being duly sworn, says' we are not prepared to say
that such statement signed by the defendant and authenticated by the officer in the presence of
each other, would not have constituted an oath; but such is not the fact in this case. While the
testimony is sufficient to show prima facie a swearing, it is not conclusive, and the court erred
in excluding the question which sought to show that no oath was in fact administered.
O'Reilly v. People, supra; Case v. People, 76 N.Y. 242; Carlisle v. Gunn, 68 Miss. 243, 8 So.
743.
In the Markey case, supra, there is no question as to both the affiant and the examiner,
before whom the testimony was purportedly verified, having signed the same. The principal
question was as to whether the presumption arising from the jurat was a conclusive
presumption or merely prima facie, admitting of contradiction. It was held to be the latter, and
that the court erred in excluding the question which sought to show that no oath was in fact
administered.
In the instant case, neither the signature of the purported notary to the jurat, nor the seal
affixed thereto, having been proven to be authentic, no presumption, either conclusive or
prima facie, arose at the trial that Mrs. Bogdewicz actually appeared before Mr. Evans, or any
other notary, or that she actually made oath to the complaint, or that she performed any act, in
the presence of any notary, which could be deemed the equivalent to taking a formal oath.
Such an act would be shown if it appeared from the evidence that the notary had stated to
Mrs. Bogdewicz, if you swear to this complaint, you may sign same, or other words
making clear to her consciousness that she was assuming the obligation of an oath, and if
she thereupon signed the complaint.
64 Nev. 179, 199 (1947) State v. Pray
making clear to her consciousness that she was assuming the obligation of an oath, and if she
thereupon signed the complaint.
As is further stated, in effect, in the Markey case, supra, it would have been proper to
interrogate Mr. Evans, the defendant Pray (who became a witness in his own behalf), and/or
Mrs. Bogdewicz, thoroughly, as to what actually occurred in the office of Mr. Evans, if he
was the notary, upon the occasion of the alleged notarizing of the complaint. Such
interrogation should have included direct questions as to the administration of the oath. This
was not done. Mr. Evans did not have any recollection of being the notary who notarized the
complaint on November 15, 1945. He testified he had no recollection of it, and no record
showing same. Mr. Pray, the defendant, was not questioned by the district attorney
concerning it, and could have been so interrogated, having, as above stated, become a witness
in his own behalf. Mrs. Bogdewicz testified, among other things, so I gave him the money
and we went over to the notary public and had the copies notarized and I came back to the
office and Mrs. Taggart and I left. (Tr., p. 43). So, evidently Mrs. Bogdewicz, Mr. Pray, and
the notary were the persons present at Mr. Evans' office, if Mrs. Bogdewicz and Mr. Pray
went there at the time mentioned, and if Mr. Evans then and there notarized the complaint. It
is significant that the alleged jurat bears the date of November 15, 1945, whereas Mrs.
Bogdewicz, in her testimony as to going over to the notary, refers to the afternoon of
November 14th, and Mrs. Taggart, Mrs. Bogdewicz, and Mr. Pray, have all testified as to the
events which, presumably, immediately preceded the notarizing, as having occurred in Mr.
Pray's office on the afternoon of November 14th. Could it be that Mrs. Bogdewicz and Mr.
Pray went to Mr. Evans' office on the afternoon of November 14th, did not find him in,
returned to Mr. Pray's office, and that Mr. Pray returned, alone, to Mr. Evan's office, with the
complaint, on the morning of November 15th, before filing it that same morning and had
it notarized in the absence of Mrs.
64 Nev. 179, 200 (1947) State v. Pray
the complaint, on the morning of November 15th, before filing it that same morning and had
it notarized in the absence of Mrs. Bogdewicz? We are not asserting that such was the case,
but it could have been. The testimony shows that Mr. Pray was accustomed to having Mr.
Evans notarize his (Pray's) documents and papers for him and his clients. Bearing in mind the
carelessness of many notaries in performing such acts, if they are assured of the signature, by
reliable persons whom they personally know, it is not incredible to believe that such may
have occurred. Manifestly, if such were the method employed in having the complaint
notarized, Mrs. Bogdewicz would not have actually sworn to the complaint, or ever been in
personal contact with the notary. Mrs. Bogdewicz testified she signed the complaint in Mr.
Pray's office, and, in answer to the very next question propounded to her by Mr. Zahniser,
said she signed this complaint under oath before a notary public as to the truth of the
allegations in it.
The question and answer referred to were:
Q. (By Mr. Zahniser): Where did you sign the complaint in that matterwherewhere
did you sign the complaint? A. In the office of Harry G. Pray.
Q. Did you sign this complaint under oath before a notary public as to the truth of the
allegations in it? A. Yes. (Tr. p. 39).
And she said, further on in her testimony, the following:
* * * and I said I was sure about it, and I signed copies and he asked me if I had my
money and I said, How much?', and he said, $150.00', so I gave him the money and we went
over to the notary public and had the copies notarized and I came back to the office and Mrs.
Taggart and I left. (Emphasis ours.)
She does not state what became of Mr. Praywhy he did not return with her to his office.
Mrs. Bogdewicz contradicted herself as to where the complaint was signed. On two
occasions, as the above quotations from her testimony disclose, she said she signed it, or
copies thereof, in Mr.
64 Nev. 179, 201 (1947) State v. Pray
quotations from her testimony disclose, she said she signed it, or copies thereof, in Mr. Pray's
office, and once she said she signed and made oath to the complaint before the notary. Both
cannot be true. She may have had some sort of conception that if she intended that the signing
should be deemed to have occurred before the notary, and the notary supposed she so
intended, that would be sufficient.
If so, such was merely her conception, and had no foundation in fact or in legal effect. It
was just that sort of intention and supposition which was criticized by the court upon appeal
in the case of O'Reilly v. People, supra. If Mrs. Bogdewicz had such false conception that she,
or the notary, had the right to resort to such a fiction as to the fact of where the signing
occurred, she may have had such a false conception as to where the alleged oath should be
deemed to have been administered, or as to whether any actual administration of the oath was
necessary. The fact is that she swore falsely at the trial in the instant case as to where the
signing occurred. There is no evidence that Mr. Pray was a notary; if so, why did they go out
of his office and over somewhere to have the copies (as she said) notarized? There is reason
to believe that she signed the complaint as she testified first (Tr. p. 39), in the office of Harry
G. Pray, and as she reiterated later as to the copies (Tr. p. 43). If she was so careless of the
truth as to where the complaint was signed that she allowed herself to testify falsely as to that
fact (whether because of some fictional conception, or otherwise, makes no difference), is it
not reasonable that she may have been equally careless, and her testimony, therefore,
unreliable, when she answered, Yes to the question, Did you sign this complaint under
oath before a notary public as to the truth of the allegations in it? (Emphasis ours.)
Upon the vital, fundamental fact of whether or not a sufficient oath was actually
administered to Mrs.
64 Nev. 179, 202 (1947) State v. Pray
Bogdewicz before a duly authorized notary public, or whether or not she performed an
unequivocal act sufficient to show that she was conscious she was assuming the obligation of
an oath before such notary, the proof of the affirmative of which, beyond a reasonable doubt,
is absolutely essential to the establishment of the crime of perjury, the mere conclusion of
Mrs. Bogdewicz, by her answer of Yes to the above quoted question by Mr. Zahniser, Did
you sign the complaint under oath before a notary public as to the truth of the allegations in
it?, apparently was accepted by the assistant district attorney as being sufficient upon that
essential element, as he questioned her no further in regard to it. Mr. Zahniser did not develop
the matter further, to determine what was actually done at any notary's office as to the
administration of an oath, or otherwise. He did not even ask Mrs. Bogdewicz the name of the
notary, or even where she went to have the notarizing done. And this in spite of the fact that
he must have realized that, in her answer to the question propounded immediately preceding
the question involving whether she was under oath, she had answered in contradiction to her
then present answer that she signed before a notary public.
8, 9. In view of the fact that Mrs. Bogdewicz testified in the instant case that she swore
falsely as to the material matter of her residence, in the divorce action, and that her statement
in her divorce complaint, as to the paragraph thereof relating to her residence being in
Washoe County, Nevada, was false, and in view of her contradictory testimony in the instant
case as to where she made oath to the complaint, her conclusion in the above quoted answer
to the effect that she made oath to the said complaint before a notary public, without
identifying him, or stating where same occurred, or who was then present, or any surrounding
facts or circumstances, would be entitled to little, if any, weight, even were Mrs. Bogdewicz
not an accomplice of the appellant. While, under the law, we are not required to weigh the
evidence, it is our duty, when error is assigned upon the ground that the verdict was
contrary to the evidence, and that a motion for a new trial was erroneously denied, to
determine whether or not there is any substantial evidence to sustain the verdict of the
jury and the judgment rendered thereon, and we do not deem the evidence of Mrs.
64 Nev. 179, 203 (1947) State v. Pray
ground that the verdict was contrary to the evidence, and that a motion for a new trial was
erroneously denied, to determine whether or not there is any substantial evidence to sustain
the verdict of the jury and the judgment rendered thereon, and we do not deem the evidence
of Mrs. Bogdewicz, as to the element of perjury involved in the crime charged, to be
substantial. Falsus in Uno, falsus in Omnibus.
10. But if the crime alleged in the information occurred, Mrs. Bogdewicz and the
appellant, under the proper interpretation of the law, would clearly be accomplices of each
other, as to perjury. The perjury of Mrs. Bogdewicz is an essential element of the crime of
subornation of perjury, of which the appellant has been charged and convicted, and it is our
view, which we believe is supported by the great weight of authority, that the accomplice rule
applies in the instant case, to preclude the conviction of the appellant upon the
uncorroborated testimony of Mrs. Bogdewicz as to the essential fact of whether or not she
was actually sworn to the said complaint. Our statute prohibiting conviction of a crime upon
the uncorroborated testimony of an accomplice is section 10978, N.C.L.1929, vol. 5, and is as
follows: Sec. 10978. Conviction on Testimony of AccompliceCorroboration. 330. A
conviction shall not be had on the testimony of an accomplice, unless he is corroborated by
other evidence which in itself, and without the aid of the testimony of the accomplice, tends
to connect the defendant with the commission of the offense; and the corroboration shall not
be sufficient if it merely shows the commission of the offense or the circumstances thereof.
Nevada cases dealing with the subject, generally, are: State v. Williams, 35 Nev. 276, 129
P. 317; State v. Carey, 34 Nev. 309, 122 P. 868; State v. Douglas, 26 Nev. 196, 65 P. 802, 99
Am.St.Rep. 688.
The doctrine, which we believe to be supported by the weight of authority, and which we
have above indicated we shall follow in the instant case is clearly stated in State v. Renswick,
S5 Minn.
64 Nev. 179, 204 (1947) State v. Pray
in State v. Renswick, 85 Minn. 19, 88 N.W. 22, 23, as follows: The completed crime of
subornation of perjury consists of two essential elementsthe commission of perjury by the
person suborned, and the willfully procuring or inducing him to so do by the suborner.
Gen.St.1894, sec. 6379. As to the first element of the crime, the suborned and the suborner
are principals by virtue of the statute (Id. sec. 6310), and necessarily each is the accomplice of
the other; hence this element of the crime cannot be established by the uncorroborated
evidence of the suborned (Id. sec. 5767). But as to the second element of the crime, the
suborned is neither a principal nor an accomplice, for legally he cannot be guilty of
persuading himself to commit perjury. An indictment of a party for inducing himself to
commit a crime would be a legal absurdity. State v. Pearce, 56 Minn. [226,] 231, 57 N.W.
652, 1065; State v. Sargent, 71 Minn. [28] 31, 73 N.W. 626; State v. Durnam, 73 Minn. 150,
75 N.W. 1127. The conclusion logically follows that if, in the prosecution of a party for
subornation of perjury, it is sought to establish the fact that perjury was committed by the
testimony of the person committing it, his testimony must be corroborated as to such fact,
because as to the perjury he is an accomplice. But the alleged fact that he was induced to
commit the crime by the accused may be established by his uncorroborated testimony if it
satisfies the jury beyond a reasonable doubt.
See, also: State v. Smith, 153 Minn. 167, 190 N.W. 48; Hammer v. United States, 271
U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; Cohen v. United States, 2 Cir., 27 F.2d 713.
Under our statute (as in Minnesota and many other states), section 9958, N.C.L. 1929, vol.
5, every person who directly or indirectly counsels, encourages, hires, commands, induces or
otherwise procures another to commit a felony, gross misdemeanor or misdemeanor, is a
principal, and shall be proceeded against and punished as such.
64 Nev. 179, 205 (1947) State v. Pray
It is clear, therefore, that in the instant case, the appellant, if he suborned Mrs. Bogdewicz,
as she testified he did, was, by force of the statute, a principal as to the perjury itself, involved
as an element in the crime of subornation.
It follows that the appellant could not properly be convicted of the crime of subornation of
perjury upon the testimony of Mrs. Bogdewicz, uncorroborated as it was, as to the element of
perjury, and particularly as to the essential fact of whether or not an oath was actually
administered to her, in verification of the complaint, by a court or officer duly authorized to
administer an oath. This would be true if her evidence was otherwise reliable and worthy of
belief, and if, as has been stated, her testimony amounted to more than a conclusion.
There is sound reason for the rule, adopted by statute in most of the states, prohibiting
conviction upon the uncorroborated testimony of an accomplice, particularly in perjury and
subornation of perjury cases. A confessed perjurer's testimony is unreliable at best, and when
selfish interest may be materially served by becoming a witness against an accomplice, as is
often true, the temptation is strong, and to one shown not to have had, in the recent past,
proper regard for the truth, the resistance because of character is probably weak. Hence, the
rule as to accomplices' testimony, which we believe to be in the interest of justice and truth in
the administration of criminal law.
We do not find it necessary to pass upon appellant's assignment of error VI, which is as
follows:
Assignment No. VI
The trial court, having refused to give defendant's requested Instruction No. as to the
Statute requiring the testimony of an accomplice to be corroborated, should then of its own
motion have given an Instruction to the jury embodying the Statute upon that subject.
Whether the trial court should have given the requested instruction, or, if same was not
sufficient, of its own motion have given an instruction as to the testimony of accomplices,
under the statute, is not now important, for the reason that we are, by our holding,
according the appellant the full benefit of the rule for which he contends, and more could
not be accorded him should we find the said assignment had merit.
64 Nev. 179, 206 (1947) State v. Pray
its own motion have given an instruction as to the testimony of accomplices, under the
statute, is not now important, for the reason that we are, by our holding, according the
appellant the full benefit of the rule for which he contends, and more could not be accorded
him should we find the said assignment had merit.
11. We believe that, under the law, the appellant was entitled to an acquittal at the trial
upon the conclusion of the evidence, and that appellant's requested instruction advising the
jury to acquit the defendant because of the insufficiency of the evidence should have been
given, and that appellant's assignment of error No. VII is, therefore, well taken. In our
judgment, the prosecution failed to establish a prima facie case, justifying submission to the
jury for the reasons and because of the deficiencies in the state's case, hereinbefore fully set
forth. The insufficiencies in the state's case may be summarized as follows:
1. The facts alleged in the information were not sufficient to constitute a public offense,
the particulars in which there was such insufficiency having been fully set forth herein. See
24 C.J.S., Criminal Law, sec. 1948, p. 1101, and the cases there cited, to the effect that such
an error is not merely technical, but does affect the substantial rights of the accused.
2. There was a failure to prove, by competent evidence, sufficient in itself, or, in the case
of the testimony of an accomplice, sufficiently corroborated, any administration of an oath to
Mrs. Bogdewicz in the verification of the complaint (a certified copy only being in
evidenceplaintiff's exhibit A), by any court or any officer authorized to administer an oath,
or at all.
Mrs. Bogdewicz having been shown to be an accomplice of the appellant as to the perjury
itself, if same was committed, her evidence, if otherwise sufficient (and it was not), was
rendered insufficient, because she was such accomplice, as to the essential fact of the
administration of the oath, for the reason that her testimony was not corroborated by any other
competent evidence.
64 Nev. 179, 207 (1947) State v. Pray
There must have been an oath administered verifying the complaint before there could be any
violation of that oath, or before any perjury or subornation of perjury could arise or be
predicated upon such violation. And there can be no valid conviction of subornation of
perjury unless the perjury, which is an essential and fundamental element of the crime of
subornation, is proven by competent evidence sufficient to establish the guilt of the defendant
beyond a reasonable doubt.
If the appellant was entitled to an acquittal at the close of the state's case, or at the close of
the evidence of both the state and the defendant, at the trial, and we believe that he was so
entitled, then it was reversible error for the trial court to fail to so advise the jury, when so
requested by the appellant's attorney; and if the appellant was entitled to an acquittal at that
time, he is clearly entitled to an acquittal now.
12. We are clearly of the opinion that the duty devolves upon us at this time to reverse the
judgment and to render such judgment as we believe the district court should have rendered if
that court had advised the jury to acquit the appellant, and the jury had followed such advice.
24 C.J.S., Criminal Law, sec. 1950, p. 1115.
In our judgment, it is not necessary for us to consider further, or to decide as to, the
numerous other assignments of error presented by the appellant, as the assignments which
have been decided herein, and our holdings relative thereto, as hereinabove set forth, are
decisive of the instant case.
The decision and judgment of this court is that the judgment of the district court,
convicting appellant of the crime of subornation of perjury, be, and the same is, hereby
reversed, and the case is remanded to the said district court, and that court is hereby directed
that, if the appellant is in custody he be discharged, or if he is admitted to bail that his bail be
exonerated, or if money has been deposited instead of bail, that it be refunded to the
appellant; and the district court is further directed to make such order, or orders, in
accordance herewith as are requisite, necessary or appropriate in the premises.
64 Nev. 179, 208 (1947) State v. Pray
further directed to make such order, or orders, in accordance herewith as are requisite,
necessary or appropriate in the premises.
Taber, J., participated in the hearing of the oral argument in this case, but died before the
opinion was prepared.
Badt, J., did not participate.
____________
64 Nev. 208, 208 (1947) Monitor Pipe and Steel Co. v. Flanigan Warehouse Co.
MONITOR PIPE AND STEEL COMPANY, Et Al., Appellants, v. FLANIGAN
WAREHOUSE COMPANY, Et Al., Respondents.
No. 3454
May 7, 1947. 180 P.2d 586.
Findings in favor of defendant to the effect that third party had acted as defendant's agent in
purchasing the property, were not grounds for reversal as being at variance with the pleadings, in absence
of a transcript of the testimony from which it could be determined whether nature of the trial itself had
been influenced by what transpired thereat.
Contention that findings were at variance with the pleadings could not be supported by reference in
brief of appellant to the facts in the case, in absence of the entire testimony.
Contentions that defendant did not come into equity with clean hands because of his purchase through
third party, and that defendant was precluded from denying third party's authority to sell because a
resulting trust could not ordinarily arise from acts contrary to public policy or statute, did not present
grounds for reversal of judgment in defendant's favor, in absence of a transcript of the proceedings.
Where trial court found that plaintiff had purchased property from third party with full notice of
defendant's interest, and plaintiff did not claim insufficiency of the evidence, contention of plaintiff that
defendant was estopped to deny plaintiff's title because defendant had clothed third party with indicia
of ownership revealed no ground for reversal of judgment in defendant's favor
particularly where plaintiff had not moved for new trial and the evidence was not
before the appellate court.
indicia of ownership revealed no ground for reversal of judgment in defendant's favor particularly where
plaintiff had not moved for new trial and the evidence was not before the appellate court.
Whether trial court was in error in ordering property returned to defendant and in addition thereto
awarding defendant damages by reason of his having lost a sale of part of the very property that was
returned to him by the judgment could not be determined, in absence of the testimony.
Appeal from Second Judicial District Court, Washoe County; A. J. Maestretti, Judge.
Action by the Monitor Pipe & Steel Company and another against the Flanigan Warehouse
Company and others to recover possession of personal property and for damages, wherein
Harry Cowden filed a cross-complaint. Judgment in favor of Harry Cowden, and plaintiffs
appeal. Affirmed.
See also 63 Nev. 449, 172 P.2d 846.
Sidney Fox, of Reno, for Appellant.
Charles L. Richards, of Reno, for Respondent Harry Cowden.
Charles M. Merrill and John E. Robinson, both of Reno, for Respondents Flanigan
Warehouse Co. and Fred Shair.
OPINION
By the Court, Badt, J.:
The parties will be referred to as they appeared in the court below. Plaintiff Jack Dill,
doing business as Monitor Pipe and Steel Company, filed his complaint against Flanigan
Warehouse Company and Fred Shair, its manager, claiming to be the owner and entitled to
the possession of certain mining machinery of the value of $1,250, and asking for its return or
the value thereof, plus $500 damages for its alleged unlawful detention.
plus $500 damages for its alleged unlawful detention. He joined as a defendant Harry
Cowden, alleging that the latter claimed title, but that such claim was without right. The
Warehouse disclaimed and prayed that Dill and Cowden be required to interplead. An
appropriate order was made. There followed some remarkable pleadings. Cowden answered,
denied Dill's claim of title, and in a narrative of some fifteen hundred words tells of his
relations with one Fred W. Kuenzel and the latter's associate Robert F. White, his growing
interest in the Kuenzel smelter patent process, his plans for building a 100-ton unit as a
starting project to be known as United Mines and Metals Corporation,' his acquisition of
additional mining equipment and a lease upon an extensive iron deposit, his purchase of the
property in question from one J. Patrick O'Brien and Flanigan Warehouse Company, the
owners thereof, his payment of the full $1,250 as the purchase price thereof, his having the
receipt or bill or property made in the name of Fred W. Kuenzel because his company
had a Government P-56 that would give them priorities to buy anything that would be needed
to build the 100-ton unit plan, as Cowden knew he could not buy it otherwise; that Dill and
the Monitor Pipe and Steel Company and others knew all this; that Kuenzel later got into
financial straits, overindulged in liquor and tried to raise money by selling the said mining
machinery that Cowden had bought, and that Cowden and Kuenzel had a falling out; that
Dill's purported purchase of the $1,250 worth of machinery from Kuenzel for $300 was with
full knowledge of Cowden's rights and Kuenzel's lack of ownership, was a breach of trust on
the part of those consummating the deal, and that Dill's action was fraudulent and
deceitful. Not to be outdone in narrative style, Dill filed an answer and cross-complaint
alleging in detail his conversations with Kuenzel, quoting the precise words used by each, the
dictating, preparing and executing of a bill of sale from Kuenzel to Dill, Kuenzel's
assurances of his ownership, his exhibiting and delivering his "bill of sale" from the
Flanigan Warehouse Company, the payment of $300 by Dill to Kuenzel and the entire
absence of any mention of the name of Harry Cowden at any time "during the said
negotiations and transactions"; that later Dill received written notice of Cowden's claim of
ownership, but that prior thereto he had no notice or knowledge of any kind.
Dill, Kuenzel's assurances of his ownership, his exhibiting and delivering his bill of sale
from the Flanigan Warehouse Company, the payment of $300 by Dill to Kuenzel and the
entire absence of any mention of the name of Harry Cowden at any time during the said
negotiations and transactions; that later Dill received written notice of Cowden's claim of
ownership, but that prior thereto he had no notice or knowledge of any kind. He denied fraud,
denied damage, denied Cowden's ownership. The day before he filed this answer and
cross-complaint Dill filed his demand, which had been served the same day, that Cowden
furnish him with a bill of particulars showing all of Cowden's relations with Kuenzel as said
relationship concerns the said patent processes and showing the names of persons, dates of
transactions, acts of fraud or deceit, a statement showing the nature of any trust obligation
from Dill to Cowden, etc. Nothing loath, Cowden particularizeddown to the names of the
mines, the official numbers of the patents, the nature of the rights evidenced thereby, the
descriptions and prices of other mining equipment acquired, with such additional imposing
names as the Kuenzel Smelters, the Kuenzel Gas Generator, the Kuenzel Smelter
Furnace, followed by further repetitions of everybody's knowledge that Cowden had put up
the money and bought the machinery, and the fact that all knew the exact story which
resulted in a trust and confidence on the part of defendant Cowden.
Dill replied to Cowden's answer and cross-complaint, denied most of the affirmative
matter pleaded, and proceeded to detail at great length all of the dickering and bargaining
between him and Kuenzel with each precise offer and counteroffer starting at $800 till the
deal was consummated at $300.
There were some motions and demurrers attacking these pleadings, but appellant does not
assign as error any of the lower court's rulings thereon. Neither party sought to eliminate
from the pleadings of the other the long recitals of probative facts, or the extraneous,
irrelevant, immaterial, and redundant matter.
sought to eliminate from the pleadings of the other the long recitals of probative facts, or the
extraneous, irrelevant, immaterial, and redundant matter. The case was tried to the court
without a jury. J. Patrick O'Brien, Jack Dill, Fred Shair, Harry Cowden and R. F. White are
shown by the court minutes in the bill of exceptions to have testified at the trial. Although the
parties stipulated to the bill of exceptions and that it contained the substance of the
pleadings, evidence and testimony available relating to the point or points involved, the
testimony of these witnesses (who included all of the parties) was never reduced to writing
and is not found in the bill of exceptions. The deposition of Kuenzel was taken, and this is the
only testimony in the record. Certain exhibits appear. The district court rendered its decision
and ordered that the plaintiff (Dill) take nothing by his complaint, and finds that Harry
Cowden is sole owner of personal property in question, and plaintiff directed to deliver same
immediately to Harry Cowden. * * * It was further ordered that Harry Cowden have judgment
against plaintiff for $560 damages, together with his costs. It made findings, in part, as
follows:
That the defendant, Harry Cowden, herein bought and paid for said property in
controversy by and through his agent, Fred W. Kuenzel, taking a bill of sale for same in the
name of said Kuenzel from the plaintiff, Monitor Pipe and Steel Company, by Pat O'Brien,
who was one of the owners at the time; that the plaintiff, Jack Dill, was aware of such agency
and cognizant of the relation existing between the defendant, Harry Cowden, and Fred W.
Kuenzel; that the plaintiff, Jack Dill, had reasonable notice of such relationship that by a
subsequent purchase of said property by Dill from said Kuenzel gave him no title or interest
therein; that by claiming a right to said personal property the plaintiff herein deprives the said
defendant, Harry Cowden, herein from its use and benefit and a sale of same or a portion
thereof to the injury and damage of said Harry Cowden in the sum of $560.00."
portion thereof to the injury and damage of said Harry Cowden in the sum of $560.00.
Appropriate conclusions of law resulting from these findings were also made. The court
denied Dill's motion to modify and add to the findings and conclusions. Judgment was
entered on the findings to the effect that Cowden was the owner of and entitled to the
possession of the personal property, with $560 damages for its detention, and costs. No
motion for new trial was made, but Dill appealed from the judgment and decision. The
judgment was not in the alternative for the value of the property if a delivery could not be
had, but appellant does not raise the point either in his briefs or oral argument. He frankly
concedes that he is not in position to raise the point that the evidence does not justify the
findings in the absence of a motion for a new trial and in the absence from the record of the
testimony of the witnesses, but insists that the bill of exceptions indicates such errors in law
as to entitle him to have the judgment reversed. The errors claimed are the following:
1. (1) It is first insisted that the findings do not conform to the issues made by the
pleadings; that Cowden's allegations as to fraud and deceit and breach of trust indicate that he
was endeavoring to set up a resulting trust in Kuenzel and a constructive trust in Dill, or other
trust relationships; that he never pleaded an agency, and that the finding that Kuenzel bought
as the agent of Cowden is so at variance as to warrant a reversal. Authorities are cited to the
effect that the failure of the court to find on material facts in issue has been found to be
sufficient ground for reversal on appeal by a party prejudiced thereby.
Appellant relies upon the text in 3 Am.Jur. 660, for this rule. The authority cited, however,
proceeds to show that the rule is not applied where the complaining party has not suffered
detriment from the lack of the finding, and proceeds further as follows: "Accordingly, failure
to find upon all the issue in the case does not require reversal, if the findings made cover
all the essential matters pleaded, if the facts found are determinative by necessary
inference of the facts not expressly found, if the circumstances of the case are such that
the judgment can be regarded as supplying the omitted finding, if the findings made are
sufficient to sustain the judgment or decree and the evidence would not have justified a
finding on the issue in question in favor of the complaining party, or if the finding would
necessarily have been prejudicial to him, or if the findings made necessarily require that
judgment be rendered against the appellant, even though it be assumed that the facts not
found would have been found in his favor."
Accordingly, failure to find upon all the issue in the case does not require reversal, if the
findings made cover all the essential matters pleaded, if the facts found are determinative by
necessary inference of the facts not expressly found, if the circumstances of the case are such
that the judgment can be regarded as supplying the omitted finding, if the findings made are
sufficient to sustain the judgment or decree and the evidence would not have justified a
finding on the issue in question in favor of the complaining party, or if the finding would
necessarily have been prejudicial to him, or if the findings made necessarily require that
judgment be rendered against the appellant, even though it be assumed that the facts not
found would have been found in his favor.
It would appear in any event that Dill is not in position to benefit by the application of the
rule asserted by him. Instead of going to trial upon simple pleadings whereunder each party
alleged ownership and right of possession in himself and denied similar claims made by the
other, the parties elected to plead their probative facts, as well as many other facts entirely
alien to the issue, in the greatest of detail and particularity. We should not of course deny to
appellant the right to take advantage of anything appearing in the pleadings of the respondent
Cowden. In the absence of a transcript of the testimony, however, we have no way of
knowing what transpired at the trial. Every trial lawyer knows that in a hundred ways the
nature of the trial itself is influenced by things that transpirein objections to testimony, in
specific waivers of such objections, in colloquies between counsel and between the court and
counsel, in statements that amount to stipulations, in statements that narrow the issues, in the
examination and cross-examination of the parties which often develops facts directly contrary
to their own pleadings, in admissions, in absolute refutation by competent evidence of the
testimony of some particular witness. It is clear that the trial court concluded that it had
sufficient evidence before it to find that Dill purchased with full knowledge of Cowden's
rights.
clear that the trial court concluded that it had sufficient evidence before it to find that Dill
purchased with full knowledge of Cowden's rights. No authority has been cited, and we doubt
that any could be found, in support of the contention, in the absence of a transcript of the
proceedings, that the references in Cowden's answer and cross-complaint to a breach of trust
by Dill and Kuenzel precluded the court from finding that Kuenzel was Cowden's agent, and
that Dill knew it.
2. Constant reference is made by appellant in his brief in support of this point to the facts
in the casewhether appearing from respondent's own pleadings or from one or more of the
exhibits, or from the deposition of Kuenzel. We must reject all claim of such support in the
absence of the entire testimony. Fragments of evidence in the record in such a case are
meaningless without the entire evidence.
3. (2) Error is claimed because Cowden is not entitled to relief in a court of equity, not
being able to come into such court with clean hands. This has reference to his pleading of
the fact that he took title in the name of Kuenzel because the latter's company had a
Government P-56 and so was entitled to purchase the machinery in question. The reference
is apparently to the fact that the country was operating under war conditions, and that persons
were required to have certain priorities under government regulations before they could buy
items of this kind. Again, this court is in no position to consider that situation without the
transcript. We do not know what the regulations were, nor do we know that there was
anything culpable in the situation. Some of the exhibits, as well as the pleadings, indicate
extensive relations between Cowden and Kuenzel whereunder it might conceivably have been
entirely proper for Cowden to purchase through Kuenzel's company. The same applies to
appellant's contention that Cowden is precluded from denying Kuenzel's authority to sell
under the theory that a resulting trust cannot ordinarily arise from acts contrary to public
policy or statute.
arise from acts contrary to public policy or statute.
4. (3) It is further claimed that Cowden was estopped to deny Dill's title because he had
clothed Kuenzel with indicia of ownership. But the court found that Dill purchased with full
notice and knowledge, and appellant does not claim insufficiency of evidence. Even if he did,
the evidence is not before us, nor did he move for a new trial.
5. (4) It is further claimed that the lower court was in error in ordering the property
returned to Cowden, and in addition thereto, awarding Cowden $560 damages by reason of
his having lost a sale of part of the very property that was returned to him by the judgment. It
is possible that this contention has merit, but in the absence of the testimony we cannot say
whether it has or has not. The authorities rejecting lost profits as a measure of damages and
the authorities requiring an election by one defrauded either to accept the situation and
recover his damages or repudiate the transaction and seek to be placed in status quo, can have
no application without a knowledge of the facts that were presented to the trial court.
The foregoing references to the lack of the transcript are not made in disregard of
appellant's repeated assurances that he is relying upon the pleadings, and not upon the
evidence. However, appellant's contentions constantly run afoul of such lack, such as his
assertion of facts appearing in his own pleading.
We have carefully considered all other points raised by appellant in his briefs and oral
argument, but find them without merit. We have also considered all of the authorities cited by
him, but find nothing in them not in accord with the conclusions reached.
Appellant relies, among other things, upon the opinion and decision of this court denying
respondent's motions to strike the bill of exceptions, to strike the judgment roll and to dismiss
the appeal. Monitor Pipe and Steel Company v. Flanigan Warehouse Company, 63 Nev. 449,
172 P.2d S46.
172 P.2d 846. However, we find nothing in the opinion referred to sustaining any of the
contentions made.
The judgment is affirmed with costs.
____________
64 Nev. 217, 217 (1947) In Re Myles
In the Matter of the Application of THOMAS F.
MYLES for a License to Practice Law.
No. 3484
May 7, 1947. 180 P.2d 99.
1. Attorney and Client.
Burden is on applicant for license to practice law to show wherein the determination of the board of
bar examiners recommending denial of license was incorrect or unfair.
The board of bar examiners has a large discretion in the matter of recommending that applicant be
admitted or denied admission to the bar, and the exercise of such discretion will not be reviewed by the
supreme court unless it fully appears that an abuse has occurred.
Where any dissatisfied applicant can show that he was denied passage of state bar examinations
through fraud, imposition, or coercion, or that he was prevented from fair opportunity to take
examinations, the supreme court will listen to his complaints, but inability to pass examinations which are
successfully passed by other applicants will not be inquired into.
The supreme court will refuse to exercise power in contravention to adverse recommendation of bar
examiners unless applicant makes convincing showing that adverse recommendation was not based on
sound premises and valid reasoning, notwithstanding powers of examiners are merely recommendatory,
and not binding upon supreme court.
An application for license to practice law, made by one who had passed the bar in Massachusetts but
who failed to pass the written examinations prepared by Nevada board of bar examiners, asking supreme
court for reexamination of his examination papers, without charging fraud or imposition, and without
stating wherein examinations were unfair and unjust, or which questions were unreasonably strict or
severe was insufficient to establish any right of relief. Rules of Supreme Court, rule 1.
64 Nev. 217, 218 (1947) In Re Myles
Proceeding in matter of the application of Thomas F. Myles for a license to practice law,
wherein the board of bar examiners filed a motion to dismiss the application. Motion
granted.
Gordon W. Rice, Ernest S. Brown, Virgil H. Wedge, H. H. Atkinson, James T. Boyd,
Robert W. Wells, Oscar Zapf, and D. W. Priest, all of Reno, for Petitioner.
Bert Goldwater, Secretary, Board of Bar Examiners, and Douglas A. Busey, Chairman,
Board of Bar Examiners, both of Reno, for Respondent.
OPINION
Petitioner applies to this court for an order admitting him to practice law as an attorney
and counsellor at law in all of the courts of this state, notwithstanding the refusal of the bar
examiners to recommend him for admission.
In support of his charge against the committee, the petitioner alleges that he formally
prepared for the practice of law at Harvard University where he received two degrees,
namely: (1) Bachelor of Arts; and (2) Bachelor of Laws; that he successfully passed the bar
examination in the State of Massachusetts, and is now licensed and a member in good
standing of the bar in that jurisdiction. He also states that he served as an enlisted man and
as an officer in the United States army on domestic and foreign duty for four years and two
months during World War II. He also states that he was a bona fide resident of Nevada for
a period of more than six months next preceding the last bar examination, in September,
1946.
In his application the petitioner has set out in full the questions asked of him, the answers
given, and the grades assigned to each.
64 Nev. 217, 219 (1947) In Re Myles
grades assigned to each. Applicant and thirty-two others took the annual bar examination at
Reno last September. The passing mark established by the board is a general average of 75
percent. The general average percentages attained by the thirty-two applicants, from the
highest to the lowest, were as follows: 83.56, 81.28, 78.40, 77.90, 77.80, 77.35, 77.11, 76.78,
76.41, 75.88, 75.35, 74.97, 72.01, 71.50, 71.25, 69.24, 67.47, 67.40, 66.91, 66.44, 65.77,
65.50, 65.19, 64.28, 64.23, 63.64, 63.32, 59.07, 58.04, 56.71, 53.68, 48.85.
Mr. Myles' general average was 67.40.
The board of examiners consists of seven members of the state bar. Each member prepares
the questions for a certain subject or group of subjects. The 1946 examination consisted of
seven separate written examinations given over a period of four days. The subjects covered
by those examinations were all included in the list set forth in rule I of this court. Each
member of the board prepared one of the seven sets of questions. After the completion of the
examination, each member personally read and checked the books containing answers to the
questions propounded by him, and assigned grade marks to each book. The books were
designated by numbers only until the grading was completed.
Applicant was given the following percentages: Constitutional law and evidence, 75; torts
and conflicts of law, 61; jurisdiction of courts, 63.8; equity, administration and wills, 65;
contracts, sales, agency, and bills and notes, 62; research, 75; real property, personal property,
community property, and taxation, 70.
After setting forth, among other things, his residence in Nevada, his occupation and the
extent and subjects of his studies in the law, applicant states, among other things, as follows:
That this court in the Hughey case, [infra], cited among others the case of Salot v. State Bar
of California, 3 Cal.2d 615, 45 P.2d 203, as an authority in support of its conclusions, and in
said case the California Court said in Paragraph 2: Unless he {the petitioner) can show * *
* that he has been treated unfairly and unjustly, this court will not listen to his
complaint.' Applicant assumes this burden and he verily believes and therefore alleges
that the specified grounds, reasons, and irregularities herein enumerated on his oath
clearly establish that he has been treated unfairly and unjustly and that this honorable
court should consider the same, and in the exercise of its 'sound and just judicial
discretion' should license him to practice law in Nevada."
64 Nev. 217, 220 (1947) In Re Myles
(the petitioner) can show * * * that he has been treated unfairly and unjustly, this court will
not listen to his complaint.' Applicant assumes this burden and he verily believes and
therefore alleges that the specified grounds, reasons, and irregularities herein enumerated on
his oath clearly establish that he has been treated unfairly and unjustly and that this honorable
court should consider the same, and in the exercise of its sound and just judicial discretion'
should license him to practice law in Nevada.
It is not stated in applicant's petition that the examination questions were unreasonably
difficult, nor that the markings of the answers were too strict. In this counter affidavit,
however, it is stated that some of the said examiners graded said examination papers more
severely than others. Hence, the said examination subjects were not all graded on the same
degree of difficulty or on the same standards of excellence. Applicant also states in his
counter affidavit that, It is admitted that in said application no charge has been made which
includes all or any one of the exact words, fraud, imposition, or coercion.' Nevertheless, he
claims that allegations were made in his said application which are tantamount to such a
charge, to-wit:
(1) In paragraph VIII, page 4 through 60 inclusive, of said application, 28 separate unfair
and unjust acts of conduct by said Board in giving and grading said examination are alleged
and set forth.
(2) In paragraph XIII on page 62 of said application, it is charged, as being improper and
unjust, that some examiners graded said examination papers more severely than others. Hence
the said examination subjects were not all graded on the same degree of difficulty or on the
same standards of excellence.
(3) In paragraph VIII on pages 26 and 41 respectively, of said application, it is charged, as
being improper and unjust, that the individual answers, as set forth, of said applicant, to the
questions of the Contracts, Sales, Agency, Bills and Notes Examination and of the Real
Property, Personal Property, Community Property, Taxation Examinations were not
graded or otherwise marked on said respective examination papers.
64 Nev. 217, 221 (1947) In Re Myles
of the Real Property, Personal Property, Community Property, Taxation Examinations were
not graded or otherwise marked on said respective examination papers. Hence it is impossible
for said affiant to discover how said examiners arrived at the conclusion that said applicant
failed to correctly answer any question or examination; and it is impossible to discover
whether any of said answers were in fact graded individually or at all. Affiant therefore
alleges that the said allegations in said application are equivalent to charges of fraudulent
conduct on the part of said Board, for the word fraud' has a wide meaning, and among others,
it includes all acts, omissions or concealments which involve a breach of legal or equitable
duty, trust, or confidence justly reposed, and are injurious to another, or by which an undue
and unconscientious advantage is taken of another.'
A motion to dismiss the application has been filed by the board of bar examiners. Said
motion is made upon the ground that the application of Thomas F. Myles does not state facts
sufficient to support an order of the supreme court to issue him a license to practice law in the
State of Nevada, for the reason that said application amounts to nothing more than a general
statement that the answers of Thomas F. Myles to the questions asked at the 1946 Nevada
state bar examination entitle him to a passing grade, and that he makes no charge of fraud,
imposition, or coercion, and does not assert that he was denied a fair opportunity to take the
examination. In support of the motion to dismiss the application of Thomas F. Myles for a
license to practice law, the chairman of the board of bar examiners filed an affidavit, which
among other things, reads:
That on the 9th day of September, 1946, said applicant, Thomas F. Myles, together with
thirty-two other applicants, was present for the examination at the Chamber of Commerce
rooms in the State Building in Reno, Nevada. * * *
That the examination was given by the Board of Bar Examiners in conformity with the
Rule of the Supreme Court and without any fraud, duress, or coercion; that the rules of
the Board of Bar Examiners require an average grade of 75 for passing said examination;
that no grades were adjusted, lowered or tampered with following said examination and
all grades were made by number without regard to the name of the individual personality
or relationship of the applicant; that said applicant Thomas F.
64 Nev. 217, 222 (1947) In Re Myles
Examiners in conformity with the Rule of the Supreme Court and without any fraud, duress,
or coercion; that the rules of the Board of Bar Examiners require an average grade of 75 for
passing said examination; that no grades were adjusted, lowered or tampered with following
said examination and all grades were made by number without regard to the name of the
individual personality or relationship of the applicant; that said applicant Thomas F. Myles
was examined upon the identical questions given to all applicants at the 1946 State Bar
Examination; that said seven examinations were prepared by the members of the Board of
Bar Examiners, each examiner having prepared one examination; that by reason of the fact
that a number of the applicants taking said examination had been members of the armed
forces and absent from the practice of the law and the study of law for some period of time,
the Board of Bar Examiners graded said examination without undue strictness and with the
tendency to give the applicant the benefit of any doubt regarding his answer to any particular
question. * * * That but for the fair and generous grading of the examiners said applicants
would not have received as high grades as were awarded to all of said applicants. * * * That
the Board of Bar Examiners did not grade on a curve but judged each paper on its own merits;
that this affiant is informed and believes and therefore alleges the fact to be that said
examination was neither unjustly difficult nor was said examination graded severely for any
of the applicants, including applicant Myles.
The recommendation of the board that applicant be denied a license to practice law was
based entirely upon his failure to pass the written examination. In stating the grounds upon
which his motion is based, applicant contends that he has been treated unfairly and unjustly
and, while not charging fraud, imposition, or coercion directly, he contends, nevertheless,
allegations were made in said application which are tantamount to such a charge.
64 Nev. 217, 223 (1947) In Re Myles
In view of the fact that applicant has made the above-named charges he expects this court
to read and study every question and every one of his answers in all seven examinations, for
the purpose of determining whether the board abused its discretion in not recommending him
for admission to the bar. As was stated in Re Hughey, 62 Nev. 498, 499, 156 P.2d 733, 735:
Conceding that this court has the power and jurisdiction to examine the whole record of the
proceedings of the Board of Bar Examiners, including the examination papers, it by no means
follows that it is proper, or that it is the court's duty, to peruse such record and papers at the
request of every unsuccessful applicant regardless of the insufficiency of his motion or
petition in this court, and of his showing in support thereof.
1-3. We think the showing made is insufficient to justify our complying with applicant's
request that we study all of the bar examination questions and his answers thereto.
Burden is on applicant for license to practice law to show wherein the determination of
the Board of Bar Examiners recommending denial of license was incorrect or unfair.
The Board of Bar Examiners has a large discretion in the matter of recommending that
applicant be admitted or denied admission to the Bar, and the exercise of this discretion will
not be reviewed by the Supreme Court unless it clearly appears that an abuse has occurred.
In re Hughey, supra.
Where any dissatisfied applicant can show that he was denied passage of state bar
examinations through fraud, imposition, or coercion, or that he was prevented from fair
opportunity to take examinations, the Supreme Court will listen to his complaints, but
inability to pass examinations which are successfully passed by other applicants will not be
inquired into. Staley v. State Bar of California, 17 Cal.2d 119, 109 P.2d 667.
4. In the case of In re Investigation of Conduct of Examination for Admission to Practice
Law, 1 Cal.2d 61, 33 P.2d S29, S33, the court stated as follows:
64 Nev. 217, 224 (1947) In Re Myles
61, 33 P.2d 829, 833, the court stated as follows:
We appreciate the difficulties and burdens cast upon boards of governors and examining
committees by the State Bar Act. They are men of experience and standing in the legal
profession, who devote their time and effort to the laborious work assumed by them without
compensation beyond the reward that attends the realization of a service well performed. The
examination made by the court into the conduct of the August, 1933, bar examination has not
brought to light anything discrediting them or the assistants employed by them in the conduct
of the examination. So much must be positively and unequivocably stated.
While the powers of the committee of bar examiners are merely recommendatory and not
binding upon this court, nevertheless, the committee of bar examiners was expressly created
by statutory enactment for the definite purpose of relieving the court of the onerous duty of
examining applicants for admission and investigating their fitness both as to legal learning
and moral character to practice law in this state, and this court, recognizing this fact, will
refuse to exercise its power in contravention to the adverse recommendation of the committee
of bar examiners unless a convincing showing is made by the applicant to the court that such
adverse recommendation is not based upon sound premises and valid reasoning. Spears v.
State Bar of California, 211 Cal. 183, 294 P. 697, 700, 72 A.L.R. 923.
5. We are in accord with the statement of the law above cited, and without going further
into the instant case, we may say that the conclusions reached in the opinions and cases cited
are sound, and express our views on the points involved. We have found nothing that permits
of any interference by the court with what appears to have been a duly authorized and
conducted examination. The applicant having failed to pass the examination did not satisfy
the bar examiners, by his answers to the questions asked, that he possessed sufficient
knowledge to practice law.
64 Nev. 217, 225 (1947) In Re Myles
It is very apparent that applicant in the instant case is relying on the dissenting opinion in
the Staley case, supra. As was stated in Re Hughey, supra: The opinion and decision of the
court in that case do not support his position, but on the contrary strongly support that of the
Board. (The italics are ours.)
The petitioner herein having failed to make a convincing showing in his application, as to
the charges contained therein, for an order admitting him to practice law in this state,
notwithstanding the refusal of the committee of bar examiners to recommend him for
admission, the motion to dismiss the application is hereby granted.
____________
64 Nev. 225, 225 (1947) Las Vegas Hospital Association v. Gaffney
LAS VEGAS HOSPITAL ASSOCIATION, INC., Et Al., Appellants, v. EILEEN F.
GAFFNEY, Respondent.
No. 3466
May 7, 1947. 180 P.2d 594.
Order overruling general demurrer to complaint is not appealable. Comp.Laws, sec. 8885.
2. Negligence.
In action for negligence, essential elements of complaint were existence of duty on part of defendants
to protect plaintiff from injury of which plaintiff complained, defendants' failure to perform that duty and
a resulting injury to plaintiff growing out of such failure.
3. Hospitals.
A complaint alleging entry into hospital as a maternity case, a leg burn from hot water bottle placed in
bed, and negligent treatment and lack of care on part of doctor and hospital association acting by and
through its servants, agents and employees causing the injury was sufficient on general demurrer.
4. Negligence.
The rule of res ipsa loquitur, which means literally that the transaction speaks for itself, is that proof
that the thing which caused injury to plaintiff was under the control and management of
defendant, and that occurrence was such as in the ordinary course of things would
not happen if those who had its control or management used proper care, affords
sufficient evidence, in absence of explanation by defendant, that injury arose from
or was caused by defendant's want of care.
management of defendant, and that occurrence was such as in the ordinary course of things would not
happen if those who had its control or management used proper care, affords sufficient evidence, in
absence of explanation by defendant, that injury arose from or was caused by defendant's want of care.
5. Hospitals.
Res ipsa loquitur doctrine applied to leg injury allegedly caused by hot water bottle placed in bed of
patient who had entered hospital as a maternity case, so as to obviate proof of specific acts of negligence.
6. Hospitals.
In action by hospital patient to recover damages for alleged negligent treatment, whether leg condition
was a burn caused by hot water bottle was for the jury.
7. Hospitals.
In action by hospital patient to recover damages for alleged leg burn caused by hot water bottle,
evidence regarding leg condition and probable cause sustained recovery.
8. Damages.
$5,000 damages for alleged negligent treatment of alleged burn caused by hot water bottle,
necessitating extensive hospitalization and treatment, and resulting in a permanent scar was not excessive.
Where some confusion as to actual parties defendant resulted from defendants' motion at conclusion
of plaintiff's case for an amendment, but entire situation indicated that net result was the substitution of
partnership association as a party defendant in place of corporation, and transcript did not indicate that
either motion for nonsuit or any requested instructions or motion for new trial relied particularly upon the
point, the supreme court would not refuse to consider the case on its merits because of any determination
of the point adversely to respondent raised for the first time on appeal.
Appeal from Eighth Judicial District Court, Clark County; A. S. Henderson, Judge.
Action by Eileen F. Gaffney against the Las Vegas Hospital Association, Inc., and others
to recover damages for alleged negligent treatment. Judgment for plaintiff and defendants
appeal. Affirmed.
Morse and Graves, of Las Vegas, for Appellants.
John G. Cope, of Las Vegas, for Respondent.
OPINION
1. Respondent, plaintiff in the court below, recovered damages in this action for alleged
negligent treatment of her by appellants in the Las Vegas hospital following the delivery of
her child. The trial court entered judgment on the verdict of the jury and denied appellant's
motion to vacate the judgment and grant a new trial. The trial court had also denied
appellant's motion for nonsuit and had theretofore overruled appellant's general demurrer to
respondent's complaint. Appellants appealed from the judgment and from the order denying
the motion to vacate the judgment and denying the motion for new trial. They also state in
their notice of appeal and their opening brief that they appeal from the order overruling their
general demurrer to the complaint, but in this regard see N.C.L., sec. 8885 and Chartz v.
Cardelli, 52 Nev. 278, 286 P. 125.
2, 3. The parties will be referred to as they appeared in the court below. Plaintiff's
complaint alleged the existence of Las Vegas hospital association, incorporated, and its
purpose of maintaining a hospital at Las Vegas, the status of C. W. Woodbury as a practicing
physician maintaining his office at the hospital, her entrance into the hospital on April 10,
1944, for the purpose of being delivered of a child, and as the patient of Dr. Woodbury.
Plaintiff then alleged her entry into the hospital, the delivery of her child, her return to her
room early in the morning still unconscious from the administration of ether, the fact that one
or more hot water bottles heated to high degree and placed in the bed for the purpose of
warming it or some other instrumentality in the delivery room had caused a serious burn or
injury to her leg; that her leg was normal at the time of her entry into the hospital; that the
injury was treated by Dr. Woodbury and the Las Vegas association, incorporated for a long
period of time, and that in July of 1944 {the injury or burn not having improved) she went
to another hospital for treatment until October of that year, during which time the injury
responded to treatment at the second hospital, but that she will bear a permanent scar.
(the injury or burn not having improved) she went to another hospital for treatment until
October of that year, during which time the injury responded to treatment at the second
hospital, but that she will bear a permanent scar. It is alleged that the negligent treatment and
lack of care on behalf of Dr. Woodbury and Las Vegas hospital association, incorporated,
acting by and through its servants, agents and employees, caused the burn or injury. The
pleading sets these matters out in considerable detail. Plaintiff alleges that she was
unnecessarily subjected to great suffering and anguish, would suffer a permanent scar and
was damaged in the sum of $5,000 for which sum she asked for judgment. No lack of medical
skill is alleged.
Appellants earnestly contend that the complaint does not state facts sufficient to constitute
a cause of action, and that their general demurrer should have been sustained. We think that
the complaint contains all of the essential elements in an action for negligence, namely, the
existence of a duty on the part of the defendants to protect the plaintiff from the injury of
which she complains, the defendants' failure to perform that duty, and a resulting injury to the
plaintiff growing out of such failure. Plaintiff's complaint sets out the essential facts of her
case with reasonable precision and with sufficient particularity to acquaint the defendants of
the nature, source, and extent of her cause of action. The complaint indicates a greater
knowledge of the facts on the part of the defendants so that less particularity was required
than in other cases. It would appear that the plaintiff set forth what was done with as much
particularity as she could considering the nature of her cause of action and her condition when
the injury was alleged to have occurred. The generality of the pleading complained of by the
appellants would appear to be warranted by the circumstances and the situation of the parties.
The foregoing conclusions and similar language found in the great majority of cases dealing
with the sufficiency of a complaint when attacked by general demurrer indicate that the
decision of the lower court, overruling the demurrer to the complaint, was proper.
sufficiency of a complaint when attacked by general demurrer indicate that the decision of the
lower court, overruling the demurrer to the complaint, was proper. 19 Cal.Jur. 666, 671, 672;
1 Bancroft Code Pleading 269; Stephenson v. Southern Pacific R. R. Co., 102 Cal. 143, 34 P.
618, 619; Guilliams v. Hollywood Hospital, 18 Cal.2d 97, 114 P.2d 1, 4; Goldstein v. Healy,
187 Cal. 206, 201 P. 462; Rannard v. Lockheed Aircraft Corporation, 26 Cal.2d 149, 157
P.2d 1.
Evidence upon which the jury was entitled to rely, in returning its verdict, and which the
trial judge was entitled to accept in denying defendant's motion to set aside the verdict and
vacate the judgment and for a new trial, shows the following situation: Plaintiff had been
treated by Dr. Woodbury since October 1943, his treatment consisting of prenatal care in
relation to her pregnancy. On April 10, 1944, at about 7:30 a.m. plaintiff entered the hospital
and was placed in a private room, prepared for the delivery, and about 10 p.m. Dr. Woodbury
performed a rectal examination and had sedatives administered. Plaintiff thereupon was
wheeled down the hall to the delivery room and administered ether. Her left leg was entirely
normal in all respects at the time. She regained consciousness some time in the morning of
April 11 and immediately thereafter felt a pain in her left leg. She complained to one of the
nurses, who applied a bandage. The leg was then red in color over an area approximately
from her knee in the back of her left leg down to her ankle. Some five or six days later the
condition of the leg became worse and blisters appeared thereon. About this time Dr.
Woodbury looked at the leg, ordered it redressed and expressed the belief that it would be
healed by the time plaintiff was ready to go home. Shortly thereafter the leg had turned a blue
color, looked like a deep bruise and had blisters all over it. Her leg became numb in this area.
At the time she was dismissed from the hospital the condition had become worse, the leg was
deep purple in color, and the blisters were larger and had water in them.
in color, and the blisters were larger and had water in them. She returned to the hospital each
day for treatment under instructions of Dr. Woodbury, and although she constantly inquired
as to the cause of her condition, received no answer. During one of such examinations Dr.
Woodbury stated that there were no hot water bottles in the delivery room. This was the first
mention made of hot water bottles. The leg now looked like raw hamburger, and was very red
and purple. On May 15, 1944, 34 days after the discovery of the leg condition, when plaintiff
called at Dr. Woodbury's office, the latter called in Dr. Balcolm and Dr. Hardy,
co-defendants, asked them what they thought it looked like to them, and stated: Frankly, I
am stumped, I don't know what it is. Dr. Hardy and Dr. Balcolm discussed the matter, but
used medical phraseology, which plaintiff did not understand. At that time Dr. Woodbury
mentioned several times that there were no hot water bottles in the delivery room. On May 18
she returned to the hospital, the bandages were removed and the leg redressed. The first
dressings had been alum dressingsa soothing ointment having a zinc oxide base, a phenol
antiseptic, and two or three other ingredients. After the doctor examined it the second time,
the ointment was removed with merthiolate, and the doctor observed a reddish discoloration
that looked like sunburn, and he had the alum dressings continued for another 24 hours
thinking the condition was a skin irritation and would disappear in three or four days. To the
doctor it did not have any appearance of a severe burn, except a sunburn. The doctor then
ordered sulfathiazole applied. He saw the leg and dressed it practically every day and began to
get alarmed, inquired again and again of everybody, without finding any reason for the
condition. The skin started to die in spots, became gangrenous but, peculiarly, did not slough
off. When she left the hospital the skin over the whole area had become necrotic and there
was considerable pus draining off out of the wound.
There was no swelling and the pain had disappeared. Daily treatments continued at the
hospital. There was no charge for medical fees for these treatments. A hot magnesium
sulphate pack was used to get the skin to slough. A split skin draft was recommended by the
doctor and performed. About two thirds of it did not take, but the wound was filling in.
However, the plaintiff and her husband were dissatisfied with the progress of the condition
and about June 18 demanded a skin specialist. None such was available, however, and after
further discussion between the parties the plaintiff removed to the Las Vegas army airfield
hospital for treatment, which treatment was continued until October 1944. The affected area
responded to the treatment and eventually became covered with new skin. She has a scar
however that will be permanent. She exhibited her leg without objection to the jury.
Two hot water bottles had been placed in the plaintiff's bed in her room to warm the bed
for her return from the delivery room. After plaintiff had been returned to her bed and while
she was still unconscious and was having glucose administered intravenously, she began to
move and moan and the nurses asked her husband to try to keep her quiet. Her left leg became
uncovered and he observed a large red area to which he called the nurse's attention. She
examined the area and applied a bandage thereto, and removed a hot water bottle from the
bed. Another nurse later removed another hot water bottle from the bed. The coverings
wrapped and pinned on the bottles had come off one of these bottles. The husband referred to
the leg condition as a wound and also as an injury or wound. The doctor did not think it
could have been an ether burn, or a burn from the pressure of the stirrups in the delivery
room.
Defendants' counsel in his opening statement to the jury disclaimed responsibility for the
unfortunate injury to the plaintiff's leg. Dr. Woodbury said it was a skin necrosis
probably caused by a low grade infection."
was a skin necrosis probably caused by a low grade infection. The condition was painful
over a long period of timeuntil the first or second week in July 1944.
The nurses described the routine whereunder we usually put hot water bottles in the bed
so that the patient coming from the delivery room where it is warm will not go into shock
when put into bed. Before the patient is placed in the bed, the bottles are removed. In fact a
great deal of the testimony of the nurses was rather concerning routine than a recollection
of what actually was or was not done in this particular case. The transcript discloses page
after page of the testimony of the nurses and the doctor to the effect that everything was done
under recognized methods of treatment and with due care and skill, and that nothing was
omitted that afforded due protection and care for the plaintiff. Plaintiff disclaims any claim
for damage growing out of improper, unskillful, or negligent treatment having to do with the
actual birth of her childwhether on the part of the hospital or the doctor or any of the
nurses. She predicates her claim for damage entirely upon the injury to her leg after she was
removed to her room in the hospital from the delivery room. Her theory of her right to recover
damages is based upon the fact that a burn, wound, or other injury to her leg was the result of
a lack of the due care to which she was entitled in her care and treatment by the doctors and
hospital employees after the birth of her child; that when she entered the hospital her leg was
in all respects normal and that the damage was to a well and healthy portion of her body
entirely independent of the purpose of her medical treatment and hospitalization. The nature
of the treatment of her leg after the injury developed is shown by way of aggravation of the
damage.
4-6. Under these circumstances she insists that she is entitled to the application of the
doctrine of res ipsa loquitur, and that by reason thereof was not required to prove any specific
acts of negligence on the part of the defendants.
the defendants. Appellants, on the other hand, insist that specific acts of negligence must be
alleged and proved and that the doctrine of res ipsa loquitur does not apply. Although other
errors are urged, a determination of this question will be largely determinative of the appeal.
Although the propriety of applying the doctrine has led to many appeals, the nature of the
doctrine itself has been recognized by all of the courts for a great many years. From the
opinions of such courts there has developed a series of definitions which, while couched in
varying language, clearly define the nature of the doctrine.
While the mere fact of an injury will not give rise to a presumption of negligence on the
part of anyone, under the doctrine of res ipsa loquitur, an expression which means, literally,
the transaction speaks for itself, the facts or circumstances accompanying an injury may be
such as to raise a presumption, or at least permit an inference, of negligence on the part of the
defendant. The conclusion to be drawn from the cases as to what constitutes the rule of res
ipsa loquitur is that proof that the thing which caused the injury to the plaintiff was under the
control and management of the defendant, and that the occurrence was such as in the ordinary
course of things would not happen if those who had its control or management used proper
care, affords sufficient evidence, or, as sometimes stated by the courts, reasonable evidence,
in the absence of explanation by the defendant, that the injury arose from or was caused by
the defendant's want of care. Hence, the occurrence of an injury under the circumstances as
set forth permits an inference, or in the terminology of some courts, raises a presumption, that
the defendant is guilty of negligence. It has been said that the phrase res ipsa loquitur' is a
symbol for the rule that the fact of the occurrence of an injury, taken with the surrounding
circumstances, may permit an inference of culpability on the part of defendant, make out
plaintiff's prima facie case, and present a question of fact for defendant to meet with an
explanation.
case, and present a question of fact for defendant to meet with an explanation. In the language
of a leading case, where the circumstances of the occurrence that has caused the injury are of
a character to give ground for a reasonable inference that if due care had been employed by
the party charged with care in the premises, the thing that happened amiss would not have
happened,' negligence may fairly be inferred in the absence of any explanation.
As indicated by the cases cited throughout this and the succeeding sections, as well as in
other articles of this work dealing with the application of the doctrine to particular relations
and in actions for particular injuries, the res ipsa loquitur doctrine is accepted almost
universally by the courts of this country.
The above definitions occur in 38 Am.Jr. 989, with citations from almost every state in the
union (not including Nevada) and from the United States supreme court and various circuit
courts. The text goes on to say further:
The doctrine of res ipsa loquitur, which means, literally, the transaction speaks for itself,
is merely a rule of evidence, not a substantive rule of law. On the other hand, it has been said
that the doctrine, strictly speaking, merely takes the place of evidence as affecting the burden
of proceeding with the case, and is not itself evidence. The doctrine is not a rule of pleading,
but rather an inference aiding in the proof. It is peculiar to the law of negligence and is an
exception to the general rule that negligence is not to be presumed, but must be affirmatively
proved. The res ipsa loquitur rule has been said to be a qualification rather than an exception
to the general rule of evidence that negligence must be affirmatively proved, in that it relates
to the mode, rather than the burden, of establishing negligence. Res ipsa loquitur creates an
inference or presumption of negligence that constitutes evidence of negligence which may not
be disregarded by the jury, or court sitting without a jury, but is to be weighed and
considered as against the evidence adduced by the defendant in rebuttal thereof.
without a jury, but is to be weighed and considered as against the evidence adduced by the
defendant in rebuttal thereof. However, the doctrine does not require the jury to find in favor
of the plaintiff, but merely affords evidence to carry the question of liability to the jury, which
may adopt or reject the conclusion of responsibility on the defendant's part as required by
their reason and common sense, applied to all the facts in the case.
The res ipsa loquitur doctrine is based in part upon the theory that the defendant in charge
of the instrumentality which causes the injury either knows the cause of the accident or has
the best opportunity of ascertaining it, and that the plaintiff has no such knowledge, and
therefore is compelled to allege negligence in general terms and to rely upon the proof of the
happening of the accident in order to establish negligence. The inference which the doctrine
permits is grounded upon the fact that the chief evidence of the true cause, whether culpable
or innocent, is practically accessible to the defendant but inaccessible to the injured person. If
the circumstances do not suggest or indicate superior knowledge or opportunity for
explanation on the part of the party charged, or if the plaintiff himself has equal or superior
means of information, the doctrine will not apply.
The doctrine has in many cases been applied to situations quite similar to the present one.
In Meyer v. McNutt Hospital, 173 Cal. 156, 159 P. 436, Melvin J. said:
Plaintiffs sued on account of injuries caused, as alleged, by the carelessness of
defendant's employes in allowing Bessie Meyer to be badly burned upon the legs by a hot
water bottle while she was unconscious from the effects of an anaesthetic administered to her
before a surgical operation was performed upon her. * * *
It appears from the evidence that Mrs. Meyer, upon the advice of her physician, went to
the defendant's hospital. She was put to bed; subsequently was taken to the operating room;
was placed under an anaesthetic; was subjected to an operation; and did not regain
consciousness until after she had been returned to her bed.
to the operating room; was placed under an anaesthetic; was subjected to an operation; and
did not regain consciousness until after she had been returned to her bed. Mrs. Meyer testified
that there were no burns or injuries of any sort upon her legs when she entered the hospital,
nor up to the time when she lost consciousness. When she regained her senses she suffered
pain and complained to her nurse, who found blisters upon the patient's legs. The injuries
were treated as burns usually are and yielded to the treatment. The surgeon who performed
the operation testified that she was not burned while in his presence; and, while there was no
direct testimony to the effect that any servant of McNutt hospital had applied hot water bags
or any other instrumentality to produce the injuries upon Mrs. Meyer, we think the jury was
justified in determining from all of the circumstances that the burns were inflicted while the
patient was unconscious and under the exclusive care of defendant's nurses. The nature of the
injuries themselves tends strongly to support this conclusion. Areas of 24 square inches on
one leg and 15 on the other were affected, and it seems hardly possible that one could be so
burned while conscious without realizing it. * * * Miss Smith, a nurse, who had charge of
Mrs. Meyer before and after the operation, testified that sometimes hot water bags were put in
the beds of patients before they were brought back from the operating room. * * * Dr.
Johansen * * * testified that within his experience it was customary to have the bed warmed,
and that he had abundant experience. He said that a bed was usually warmed by using hot
water bottles. * * *
The doctrine res ipsa loquitur is properly applied to the facts of this case. The patient was
unconscious. Under its contract with her the defendant corporation owed her a duty of
protection which was violated by the use of an instrumentality which produced the painful
results which were made manifest when she came out from the influence of the anaesthetic.
Proof of the accident carried with it the presumption of negligence.
accident carried with it the presumption of negligence. Judson v. Giant Powder Co., 107 Cal.
549-555, 40 P. 1020, 29 L.R.A. 718, 48 Am.St.Rep. 146; Housel v. Pacific Electric R. Co.,
167 Cal. 245, 139 P. 73, 51 L.R.A.,N.S., 1105, Ann.Cas. 1915C, 665. And this is the rule
whether the liability be ascribed to the carelessness of experienced nurses or to defendant's
negligence in selecting nurses who were not competent. That is the true rule as announced in
Adams v. University Hospital, 122 Mo.App. 675, 99 S.W. 453, a case very like the one at
bar.
Many other cases are to similar effect, with the facts in some of them peculiarly in point. It
is unnecessary to quote from these decisions. See Timbrell v. Suburban Hospital, 4 Cal.2d 68,
47 P.2d 737; McBride v. Clara Barton Hospital, 75 Cal.App. 161, 241 P. 941; Brown v.
Shortlidge, 98 Cal.App. 352, 277 P. 134; Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687,
162 A.L.R. 1258 (reversing the same case in Cal.App., 146 P.2d 982, in which the district
court of appeals had held that the doctrine did not apply); Ales v. Ryan, 8 Cal.2d 82, 64 P.2d
409; Maki v. Murray Hospital, 91 Mont. 251, 7 P.2d 228.
It is clear from the foregoing cases and many more to like effect that the learned district
judge was correct in instructing the jury on the doctrine of res ipsa loquitur, and that
appellant's assertion of lack of proof of any acts of negligence is without weight. The opening
and closing briefs of appellants (the case was submitted without oral argument) quoted at
great length from the testimony of the nurses and of Dr. Woodbury, and insist that the jury
should have accepted such testimony and that the trial court should likewise have accepted
such testimony on the motion for new trial. It is elementary, however, that this was a matter
for the jury in the first instance and for the trial court in the second. We cannot say that the
jury was wrong in rejecting the testimony adduced by the defendants to the effect that the
water used to fill the bottles was not hot enough to cause the injury, that the bottles were
so wrapped and double-wrapped and secured to render them absolutely safe, that the
injury was thought not to be a burn, that it was caused by the husband's massaging of his
wife's leg, that her condition might have been "milk leg," etc.
enough to cause the injury, that the bottles were so wrapped and double-wrapped and secured
to render them absolutely safe, that the injury was thought not to be a burn, that it was caused
by the husband's massaging of his wife's leg, that her condition might have been milk leg,
etc. Nor are we impressed with the insistence of appellants that the jury should have
concluded of their own knowledge that the injury could not have been caused by a burn from
a hot water bottle. Appellants insist that the judge should have taken judicial notice of the
fact that a hot water bottle could never burn an area as extensive as that claimed, and that a
jury could not accept a burn of this extent as having been caused from a hot water bottle;
that the court could well have taken judicial notice of the fact that even if the bottle had
been hot enough in the first instance it would have cooled off by the time the patient was
placed in the bed; that it was the province of the trial court to have known * * * and taken
judicial notice of the fact that the condition could have been caused by a blood stream
infection entering the body days prior to delivery or due to an irritation due to the rubbing of
plaintiff's leg by her husband; that it may have been a subcutaneous infection; that every
day experience tells us that the blister would not have developed so quickly if the condition
had been a burn; that it could have been anything; that the average lay person knows as a
matter of experience that blisters from a burn do not form as they did here; that the condition
would negative in the mind of any layman that it was a burn. It is manifest that if the jury
and the trial judge had the right, of their own knowledge, to determine, as appellants insist
they had, that the condition was not a burn but the result of causes other than a burn, they had
the same right to use their common knowledge to conclude the contrary, which is apparently
what they did.
7, 8. Appellants set out verbatim in their briefs many of the instructions given by the
court, and assert that the trial court erred in refusing to grant the motion for new trial, for
the reason that the jury's verdict was not in accordance with such instructions.
many of the instructions given by the court, and assert that the trial court erred in refusing to
grant the motion for new trial, for the reason that the jury's verdict was not in accordance with
such instructions. It is not claimed that the instructions were given in error. It is apparent
indeed that they were given at the request of the defendants. It is conceded that such
instructions correctly stated the law. The object of appellants' attack is the jury's finding of
fact. The trial judge was acting entirely within his province in refusing to interfere with that
finding.
It is claimed that the court erred in refusing to give an instruction for a directed verdict for
the defendants. There is no merit in this contention. It is also urged that the court erred in
refusing to find that the verdict for $5,000 was excessive, and that it was the result of passion
or prejudice. We likewise find no merit in this contention.
9. There is some confusion as to the actual parties defendant pursuant to the proceedings
on the motion to amend the complaint at the conclusion of the plaintiff's case. The original
complaint had named as defendants Las Vegas Hospital Association, Incorporated, a
corporation; C. W. Woodbury, John Doe, Jane Doe; John Doe and Jane Doe, co-partners;
John Doe Company, a corporation; Richard Roe and Jane Doe. The complaint alleged that
the object of the corporation was to maintain the hospital at Las Vegas, and that Dr.
Woodbury maintained his office at the hospital, and alleged negligent treatment of the
plaintiff, or lack of sufficient care, on the part of Dr. Woodbury, the corporation and its
employees. After the overruling of the demurrer to the complaint, an answer was filed on
behalf of C. W. Woodbury, and C. W. Woodbury, Stanley L. Hardy, John R. McDaniel, Jr.
and R. D. Balcolm, a co-partnership, which answer alleged the dissolution of the corporation
prior to the commencement of the action and that at the times mentioned in the plaintiff's
complaint defendant C. W. Woodbury was, and now is, a member of a co-partnership
composed of C. W. Woodbury, Stanley L.
defendant C. W. Woodbury was, and now is, a member of a co-partnership composed of C.
W. Woodbury, Stanley L. Hardy, John R. McDaniel, Jr. and R. D. Balcolm, all duly licensed
physicians, etc.
At the conclusion of the plaintiff's case the following occurred:
By Mr. Cope: At this time our medical witness is not present, but I would ask permission
of the Court to amend the complaint filed herein. It is alleged that the Las Vegas Hospital
Association, Inc., a corporation, at all times herein mentioned was and now is a corporation
organized and existing under and by virtue of the laws of the State of Nevada; that the
principal objects and purposes for which the corporation was formed and for which its
existence is continued, were to maintain a hospital in the City of Las Vegas, Nevada. The
answer * * * states that they deny the allegations * * * and allege that the co-defendant, Las
Vegas Hospital Association, Inc., was dissolved prior to the commencement of the action * *
* that at the time mentioned * * * defendant, C. W. Woodbury was and now is a member of a
co-partnership of C. W. Woodbury, Stanley L. Hardy, John R. McDaniel, Jr., and R. D.
Balcolm all and each of whom are physicians, etc. At this time we would make the motion
that wherever in the complaint the word Las Vegas Hospital Association, Inc., a corporation'
appears that there be substituted in lieu thereof a co-partnership composed of C. W.
Woodbury, Stanley L. Hardy, John R. McDaniel, Jr. and R. D. Balcolm.'
By The Court: Is there any objection? Counsel for the plaintiff has asked leave to amend
his complaint in accordance with your answer is the substance of it.
By Mr. Morse: We have no objection. Not amendment, a substitution of the parties in
accordance with our answer. However, there is no appearance of the Las Vegas Hospital
Association, Inc. That would be affirmatively alleged. That was dissolved prior to this action.
The answer is in behalf of C. W. Woodbury and a co-partnership, an alleged co-partnership.
We make no allegation whatever as to the hospital.
make no allegation whatever as to the hospital. If I am in error in that, please correct me.
By Mr. Cope: I think you answer, sir, for C. W. Woodbury and C. W. Woodbury, Stanley
L. Hardy, John R. McDaniel, Jr. and R. D. Balcolm, a co-partnership. I think you answer
individually and collectively, sir.
By Mr. Morse: That is correct. We have no objection to that being substituted for the
John Doe partnership.
By the Court: That is what you actually asked leave to do, isn't it? Substitute the
co-partnership named in place of the John Doe, Jane Doe co-partnership?
By Mr. Cope: The four names as co-partners doing business as theI do not think they
state as Las Vegas Hospital Association.
By Mr. Morse: No, we do not.
By Mr. Cope: I would ask leave to substitute those in the fictitious names named in the
complaint, sir, to-wit, C. W. Woodbury, Stanley L. Hardy, John R. McDaniel, Jr. and R. D.
Balcolm, a co-partnership.
By the Court: There being no objection, the motion will be granted.
The result of the foregoing stipulation and order was simply to dismiss the nonexistent
corporation as a defendant and to join the co-partnership, or, as appellants' counsel put it, a
substitution of the parties in accordance with our answer. Immediately following, defendants
moved for a nonsuit, which was granted as to Las Vegas hospital association, incorporated,
but was denied as to the individual defendants as a partnership. It is the view of the plaintiff
that the amendment substituted the partnership for the corporation, in which event all
allegations as to negligence on the part of its employees would become similarly
applicable. It is the view of the defendants that the complaint clearly intended to charge the
nurses as the employees of the corporation and that the amendment substituted the
copartnership for the fictitious defendants named, and that the complaint does not charge the
nurses as employees of Dr.
employees of Dr. Woodbury or of any of the fictitious defendants for which the partnership
was substituted. However, the appellants themselves assert, in their opening brief: All the
nurses who have been shown to have been on the scene at the time of delivery of the
plaintiff's child * * * and who attended the plaintiff in her room, were employees of the Las
Vegas Hospital Association.' Nurse Kennedy testified to her employment by the Las Vegas
Hospital Association. Nurses Barrett and Clark testified to their employment by the Las
Vegas hospital. There is strangely absent from the entire case any actual evidence that the
business of conducting the hospital was continued by the association or partnership after the
dissolution of the corporation. Yet the answer of the defendants alleging the copartnership
would otherwise appear to be entirely vain and meaningless. Indeed, the appellants recognize
the situation as an attempt to bring in the hospital association in lieu of the corporation.
Examination and cross-examination of the plaintiff, of her husband, or of any of the nurses
failed to elicit any objections upon the ground of the failure to indicate that the partnership
was conducting the affairs of the hospital. Virtually every witness including Dr. Woodbury
and the nurses themselves testified as to what the various nurses did, and no objection or
suggestion was made by the defendants that the nurses were not employees of the defendant
copartnership which the defendants themselves had set up in their answer. On several
occasions defendants' counsel conceded that the nurses, or some of them, were employees of
the hospital. Testimony on the part of Dr. Woodbury indicated his authority in several
hospital matters. The transcript does not indicate that either the motion for nonsuit or any
requested instructions on behalf of the defendants, or the motion for new trial relied
particularly upon this point. The motion for nonsuit was directed specifically to the
allegation of negligence.
In some of the instructions requested by defendants and given by the court, reference is
made to possible negligence on the part of either or both of the defendants, which the jury
could only take to mean Dr. Woodbury or the copartnership. Even after the substitution of
parties, defendants permitted instruction No. 41 to stand. This instructed the jury as to the
verbatim allegations of negligence appearing in the complaint and that the jury must find for
the defendants in failure of proof. The instruction contained the original allegations of
negligence on the part of Las Vegas hospital association, incorporated, its servants, agents,
and employees and could refer, after the substitution, only to the partnership. Indeed, the jury
was further instructed, apparently at the request of defendants, that the only parties (following
the nonsuit) were Dr. Woodbury and the partnership. One of the movants for a new trial
was Las Vegas hospital association, incorporated. The receipts for payments made by
plaintiff, both after and before the delivery of the baby, were all stamped Las Vegas Hospital
Association. These association bills, duly receipted, included both the doctor's bill and the
hospital charges.
The entire situation indicates the substitution of the partnership or association as a party
defendant in place of the corporation. References in the pleadings, instructions and elsewhere
to the servants, agents, and employees of the corporation would automatically apply to the
servants, agents, and employees of the partnership or association. It is nowhere indicated that
any other corporation, copartnership, association or entity was conducting the affairs of the
hospital other than the personal defendants who appeared and answered individually and as
copartners. It would be an improper exercise of the function of this court to refuse to consider
the case on its merits because of any determination of this point adversely to the respondents
thus raised for the first time on appeal.
The court has given consideration to the numerous cases cited by appellants with reference
to the general rules of pleadings and proofs required in negligence cases. Under our
conclusion that the rule of res ipsa loquitur was correctly applied, those cases are not deemed
to be in point. We have also given due consideration to the discussion by appellants of the
cases in which the doctrine was applied and to the attempt on the part of appellants to
distinguish those cases, as for example the cases in which the thing or agency or
instrumentality that caused the injury was known, but we do not consider the distinctions
pointed out as affecting the applicability of the doctrine to the facts in this case. Other errors
claimed by the appellants have likewise been considered, but are found to be without merit.
The judgment and orders appealed from are affirmed, with costs.
July 15, 1947.
Per Curiam:
Rehearing denied.
____________
64 Nev. 245, 245 (1947) Mazour v. Mazour
LUCILE JACKSON MAZOUR, Appellant, v.
ANATOLE G. MAZOUR, Respondent.
No. 3472
May 9,1947. 180 P.2d 103.
1. Divorce.
In action for cancellation on ground of fraud of a property settlement contract incorporated in divorce
decree, fraud alleged must be extrinsic to entitle plaintiff to relief sought.
2. Divorce.
Where wife, seeking to cancel on ground of fraud, etc., property settlement contract which was
incorporated in divorce decree, had assistance of counsel of her own choosing, and husband's answer in
divorce action had alleged the settlement agreement whereby community property was to go to husband,
and findings of fact and conclusions of law stated that agreement was fair, extrinsic fraud was not shown
so as to entitle wife to relief.
Action by Lucile Jackson Mazour against Anatole G. Mazour for cancellation on ground
of fraud, etc., a property settlement contract entered into between plaintiff and defendant and
which contract had been ratified in a divorce action in which plaintiff sued defendant for
divorce, wherein defendant filed a demurrer. From an adverse judgment, plaintiff appeals.
Affirmed.
D. W. Priest, of Reno, for Appellant.
Springmeyer & Thompson, of Reno, for Respondent.
OPINION
On October 17, 1945, appellant filed in the Second judicial district court a complaint
praying for the cancellation, on the ground of fraud, duress, and undue influence, of a certain
property settlement contract entered into between appellant and respondent on May 16,
1944, which said contract had been ratified, approved, and confirmed on said date by said
court in a divorce action in which the appellant was plaintiff and the respondent was
defendant.
entered into between appellant and respondent on May 16, 1944, which said contract had
been ratified, approved, and confirmed on said date by said court in a divorce action in which
the appellant was plaintiff and the respondent was defendant. Such original action may be
referred to as the divorce action. The second action seeking to set aside and cancel the
property settlement agreement may be referred to as the equity action. Appellant herein was
the plaintiff in both actions, and respondent was the defendant in both actions. The decree in
the divorce action granted the plaintiff a divorce upon the grounds of extreme cruelty, gave
her the custody of the minor child of the parties, subject to right of visitation on the part of
the defendant, required the defendant to pay $50 a month for the support of said minor child,
and approved the property settlement agreement whereunder the plaintiff wife surrendered
her rights in certain community property then valued at approximately $7,500. The equity suit
sought certain provisional relief by enjoining the disposition of the property involved, or the
proceeds thereof, pending the action, and such temporary relief was granted. Similar relief
was sought pending this appeal, which resulted in the deposit in this court of the sum of
$6,500 pending the ultimate outcome of the proceedings. Such sum is still on deposit with the
clerk of this court. In the said equity suit appellant did not attempt to disturb the provisions of
the divorce decree granting appellant the divorce, or concerning the custody of the minor
child, or the provision that the respondent pay her $50 a month for the support of said child.
She did not specifically, in her prayer, ask that the decree be vacated or set aside or modified
so far as it ratified, approved, and confirmed the property settlement agreement, but prayed
simply for the cancellation of said agreement, and that a constructive trust be decreed against
the respondent as trustee and in favor of appellant as beneficiary as to one-half of the
proceeds of an asserted pending sale of the property by respondent.
asserted pending sale of the property by respondent. That the decree thus sought would be, to
such extent, a modification of the divorce decree approving the settlement agreement appears
to be recognized by both parties to the present appeal. Appellant also prayed in the injunction
suit for costs and further relief.
Appellant's injunction complaint in the district court alleged in substance (it is twelve
pages in length and contains more than twice that many pages in exhibits) that the defendant
had treated her with extreme cruelty, had forced her to bring the divorce action and to obtain
the decree; that they had been man and wife over eleven years, up to May 16, 1944; that they
had acquired the community property through their own efforts; that she had materially
contributed thereto through the proceeds of her own employment; that for at least two or three
years preceding May 16, 1944, the defendant had decided upon a divorce and the
appropriation to himself of the community property and had set out upon a purposed,
consistent, methodical course of conduct of extreme cruelty calculated to break her spirit,
overcome her resistance and compel her to sue for a divorce, and in desperation to waive her
community property rights; that he engaged in incessant nagging, quarreling, fault finding,
dramatics, simulated weeping, threats, false, fraudulent, and misleading declarations as to his
ability to postpone action in the divorce proceeding, culminating in the filing by the plaintiff
of her divorce complaint on May 5, 1944, and the execution of the property settlement
agreement on May 16, 1944, and the trial of the divorce action and the entry of the divorce
decree approving the property settlement agreement on May 16, 1944. The alleged fraud and
cruelty are enlarged upon and reiterated at length in the complaint, and it is alleged that there
was a lack of real consent to the contract on the part of plaintiff, a lack of contractual
capacity, a lack of consideration, and an actual prevention of the exercise by the plaintiff of
her own will in the divorce action.
the divorce action. The complaint contains other allegations in support of the plaintiff's prayer
for preliminary or ancillary relief.
Respondent filed a general demurrer to the equity complaint, which was thereafter
sustained by the court. Plaintiff elected not to amend, and a judgment in favor of the
defendant was entered in the equity suit. Plaintiff submitted a proposed bill of exceptions
from which certain papers and pleadings were stricken by the court on motion of the
defendant. The plaintiff's notice of appeal states that she appeals from the judgment which
was entered September 24, 1946, and from the order sustaining the demurrer to plaintiff's
complaint entered September 11, 1946. Ten separate errors are assigned in support of the
appeal: (1) The order striking certain papers, briefs, records and files from the proposed bill
of exceptions; (2) the sustaining of the general demurrer to the complaint upon the ground
that the fraud alleged was intrinsic and not extrinsic or collateral; (3) the sustaining of the
demurrer despite the allegations of want of real consent to the contract of May 16, 1944; (4)
the sustaining of the demurrer despite the allegations of an overreaching on the part of the
defendant; (5) the sustaining of the demurrer despite the allegations of lack of consideration;
(6) the sustaining of the demurrer in spite of the allegations as to the unfairness of the
contract; (7) the sustaining of the demurrer in spite of the allegations of the circumstances
under which the contract was executed between the parties thereto in view of the existing
relationship of husband and wife; (8) the sustaining of the demurrer because it was a general
demurrer as distinguished from a special demurrer; (9) the sustaining of the demurrer because
the consequence thereof is to deprive plaintiff of her property without due process in violation
of the federal and state constitutions; and (10) because any statute that might be construed in
such manner as to authorize a court to deprive a wife of her property without due process
would be unconstitutional and void.
1. If the tenth specification of error (which was not argued at all in the oral argument) is
directed at rule XLV of the district court prohibiting the vacating of decrees after six months,
this contention was disposed of in Lauer v. Eighth Judicial District Court, 62 Nev. 78, 140
P.2d 953. A determination as to whether the allegations contained in the equity complaint set
up an intrinsic fraud on the one hand or an extrinsic or collateral fraud on the other hand, will
be determinative of this appeal. During the course of the oral argument counsel for appellant
frankly conceded that under the rule in this state the fraud alleged must be extrinsic in order
to entitle the plaintiff to the relief sought. This indeed is the well settled rule. Calvert v.
Calvert, 61 Nev. 168, 122 P.2d 426; Confer v. Second Judicial District Court, 49 Nev. 18,
234 P. 688, 236 P. 1097; Chamblin v. Chamblin, 55 Nev. 146, 27 P.2d 1061.
Appellant, in her oral argument and in her opening and reply briefs, seeks to distinguish
these cases from the case at bar, but we are of the opinion that despite the distinctions pointed
out, the cases are controlling. Particularly is this so with reference to the Calvert case. It
would serve no purpose and would unduly lengthen this opinion to compare the facts in the
Calvert case with those in the case at bar. It is sufficient to state that in the Calvert case the
allegations of physical and mental cruelty and abuse, threats, importunities, coercion, menace,
force, overreaching, etc., are stronger and more forcible than in the instant case. It is true that
in the Confer case [49 Nev. 18, 234 P. 689], the attack upon the jurisdiction of the court by
reason of an alleged deficiency of the residence requirements, and that the court held, through
Mr. Justice Sanders, that the alleged fraud was in respect to the very matter on which the
judgment for divorce was rendered. It was there stated further that the allegation of residence
stands upon the same footing as any other allegation of fact showing a right to a divorce. It is
likewise true that in the Chamblin case the divorce decree was attacked upon the ground
that it was rendered on perjured testimony. Mr. Justice Coleman, speaking for the court in
that case, said: "Fraud is extrinsic or collateral within the meaning of the rule when it is
one the effect of which prevents a party from having a trial, or from presenting all of his
case to the court, or which operates, not upon the matters pertaining to the judgment
itself, but to the manner in which it is procured.
attacked upon the ground that it was rendered on perjured testimony. Mr. Justice Coleman,
speaking for the court in that case, said: Fraud is extrinsic or collateral within the meaning of
the rule when it is one the effect of which prevents a party from having a trial, or from
presenting all of his case to the court, or which operates, not upon the matters pertaining to
the judgment itself, but to the manner in which it is procured. 15 R.C.L. p. 763; 34 C.J. p.
472, n. 66a. In Calvert v. Calvert, supra [61 Nev. 168, 122 P.2d 427], the court, speaking
through Orr, J., said:
A distinguishing feature appearing in the cases as to when fraud will justify the vacation
of a decree is whether or not the wife has had the opportunity of consulting counsel of her
own choosing, and the opportunity afforded to present the matters complained of to
independent counsel and to the court, so that protection could be afforded. Such an
opportunity stamps the fraud as intrinsic. The allegations of the complaint admit of the
conclusion that appellant had the advice and assistance of competent counsel of her own
choosing, that she could have informed her counsel of the fraudulent practice, and that she
could have had the protection of her counsel and of the court. Appellant alleges, however,
that she did not disclose to her counsel the true conditions existing, because of the fear of
physical violence, social degradation and ostracism threatened by respondent. She attempts to
differentiate this case upon that theory; that notwithstanding she was some three thousand
miles from the respondent, had employed and consulted with competent counsel, yet she was
so much under the domination of the respondent that she could not really act. Such an
allegation cannot justify a reclassification of the fraud. She could have had a full and
complete hearing on those points during the pendency of the action. It is opportunity to
disclose the facts and have them acted on that controls. Here the opportunity given places this
case squarely in line with the weight of authority denying relief under such circumstances,
and squarely within the rule announced in the case of Hendricks v. Hendricks, 216 Cal.
the weight of authority denying relief under such circumstances, and squarely within the rule
announced in the case of Hendricks v. Hendricks, 216 Cal. 321, 14 P.2d 83, the facts of
which are strikingly similar to those of the case at bar, and in which said case the fraud was
held to be intrinsic. There the court said:
Where, however, evidence of the coercion or duress or the fraud could have been
presented to the court or to an attorney of the complainant's own choosing during the
pendency of the action so that full examination of the facts could be made and full protection
given to the rights of the parties, equity will not interfere but will leave the parties to the
fraudulent transactions where they have placed themselves.'
The case of Kellett v. Kellett, Cal.App., 26 P.2d 859, follows the same rule, and quotes
extensively from the case of Hendricks v. Hendricks, supra. And in the case of Lanktree v.
Lanktree, 42 Cal.App. 648, 183 P. 954, at page 955, it is stated:
Even though the alleged cruelty of the husband was such as to amount to coercion by
which the plaintiff was induced to enter into the oral agreement to procure a collusive
divorce, that coercion could not have acted upon her when she was represented by counsel, as
she must have been to carry the prohibitive bargain into effect. If she had told her attorneys or
the court that she had been coerced into making the bargain, she might have been fully
protected in regard to her marital rights.'
In the trial of the divorce case here in question, this appellant, as plaintiff, is conceded to
have been represented by an able and conscientious attorney, and that the defendant although
represented in court by counsel, was not himself in the courtroom at the time. The following
appears from the transcript of proceedings in the divorce case:
Q. Any children from this marriage? A. Yes, one.
Q. What is the name? A. Natasha Mazour.
Q. And what is her age? A. Six years.
Q. The defendant sets up in his answer that you and he have entered into an agreement
providing for the support and maintenance of that child. Is that true? A. Yes, that is true.
Q. And that agreement is dated May 16, 1944? A. Yes.
Q. Do you think that agreement is fair and equitable? A. Yes.
Q. Do you also think that agreement is fair then as to the minor child? A. Yes.
Q. Was it true that agreement was gone over with you by counsel? A. It was.
Q. Was that counsel your own selection? A. Yes, it was.
Q. The defendant also sets up in his Answer that the agreement you have just testified to
settled and adjusted your respective property rights? Is that true? A. Yes, it does.
Q. That agreement was made in duplicate? A. Yes.
Q. And in the division of property rights that has been made, do you also think that the
agreement is fair and equitable? A. Yes.
Q. And you also wish to have it approved by the Court in that respect as well? A. Yes.
Q. I show you a certified copy of the agreement that you have just testified to and ask you
if it is a true copy of the same? A. Yes, it is.
Q. That is your signature? A. Yes, it is.
Q. And the signature of Mr. Mazour? A. Yes.
Mr. Robinson: We offer this in evidence.
Mr. Hilliard: No objection, your honor.
Court: It may be admitted and marked in evidence.
2. The foregoing would appear to bring the instant case directly within the rule asserted in
Calvert v. Calvert, supra. It is further sought, however, to distinguish the present case from
the three other Nevada cases for the reason that the relief sought in those cases was to set
aside the decree, and that in those cases the very matter" attacked was the matter
adjudicated, while in the present case neither the motive for appellant's relinquishment of
the community property in the divorce suit nor the facts behind it were ever investigated
at the divorce trial, that property was not an issue in any of the other three cases.
matter attacked was the matter adjudicated, while in the present case neither the motive for
appellant's relinquishment of the community property in the divorce suit nor the facts behind
it were ever investigated at the divorce trial, that property was not an issue in any of the other
three cases. We do not find the distinction sufficient. Appellant's divorce complaint alleged
the residence of the parties, the marriage, the minor child as the issue of the marriage, the
extreme cruelty of the defendant, and the existence of community property, and sought by
way of relief a decree of divorce, custody of the minor child, money for its support, and a
division of the community property. Respondent's answer among other things, denied the
existence of the community property and alleged the settlement agreement whereunder the
community property was to go to respondent. Thus all of these matters were placed in issue.
The findings of fact and conclusions of law, signed and filed in the divorce action, were in the
usual form and included not only the agreement of May 16, 1944, but the fact that such
agreement was in all respects fair, just and equitable for the best interests of the minor child,
that it be in all respects ratified, confirmed, approved, and adopted by the court and made a
part of the decree, that there was no community property, and that the parties be directed and
ordered to comply with the agreement and all of the terms and provisions thereof. This court
cannot say that the issue involved in the determination of the property rights was more or less
important in the minds of the parties than the question of the divorce itself, or the custody of
the minor child, or the amount of money necessary for its support, or the dissolution of the
matrimonial bonds, nor can we say that the court was less concerned with the settlement
agreement than it was with the proof of the allegations of cruelty. Certainly the testimony as
to the latter was very brief and almost perfunctory. The district court could rightly have
concluded that appellant's testimony as to her satisfaction with the settlement agreement
of May 16, 1944, was more convincing than her testimony as to the respondent's cruelty.
as to her satisfaction with the settlement agreement of May 16, 1944, was more convincing
than her testimony as to the respondent's cruelty. Under these circumstances this court cannot
say that the disposition of the property rights was not as much an issue as the dissolution of
the marriage ties or the custody and support of the minor child. Appellant laments the
harshness of the rule asserted to the effect that extrinsic fraud must appear in order to justify
relief in an action such as this, commenced about a year and a half after the entry of the
divorce decree approving the property settlement agreement, and asserts that the real question
presented is not whether this is a cause of intrinsic fraud or extrinsic fraud, but whether or not
the plaintiff is without remedy where her complaint contains effective allegations that undue
influence, duress, and coercion have resulted in a grave miscarriage of justice. Equity, she
asserts, must provide some relief under such circumstances despite the fact that the fraud was
intrinsic in the issues presented and tried, and despite the fact that she was advised and
represented by an attorney of her own selection and had ample opportunity to obtain his
counsel and advice as well as the protection of the court, and despite the further fact that she
waited a year and a half before seeking relief. This court would not be justified in going
beyond the facts presented by the record in order to make some general rule in answer to this
contention. We can only say that, under the well-established law of this state, appellant did
not set forth such facts of extrinsic fraud as to entitle her to relief, and that the district court
properly sustained the demurrer to her complaint.
It becomes unnecessary to pass upon the district court's order striking certain papers and
pleadings from the proposed bill of exceptions. Appellant's recital of the contents of the
papers so stricken has been given due consideration by the court, but nothing in these appears
sufficient to alter the conclusions reached. It accordingly is likewise unnecessary to pass upon
respondent's contention that the order striking papers from the proposed bill of exceptions
is not an appealable order.
contention that the order striking papers from the proposed bill of exceptions is not an
appealable order.
In connection with the perfecting of this appeal the sum of $6,000 was deposited with the
clerk of this court by one Paul K. Christman pursuant to the appellant's petition and certain
stipulations and orders made pursuant thereto. The written order of this court provided that in
the event of an affirmance of the judgment, the clerk of this court forthwith pay the said sum
of $6,000 to respondent. It is ordered that such payment be made.
At the same time, and pursuant to the same order, the appellant posted a cash bond with
the clerk of this court in the sum of $500, conditioned that in the event of an affirmance the
respondent would be paid interest at 7 percent on $6,000 from October 5, 1946, until paid. It
is accordingly ordered that the said interest be computed to date of payment and that such
interest be paid to respondent, and the remainder of said sum of $500 be returned to
appellant. Such interest shall, in any event, cease accruing on said sum of $6,000 after ten
days from date of notice to the parties of the entry of this order.
The judgment of the district court is hereby affirmed, with costs.
____________
64 Nev. 256, 256 (1947) Teeter v. District Court
THE STATE OF NEVADA on the Relation of FREDERICK WILLIAM TEETER,
Petitioner, v. THE EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, in and
for the County of Clark, Department 2 Thereof, Respondents.
No. 3487
May 19, 1947. 180 P.2d 590.
1. Criminal Law.
Under statute authorizing court, on good cause being shown, to order bill of exceptions prepared at
expense of county, good cause has no fixed meaning but depends upon circumstances of each case to be
determined by legal discretion of court. Stats. 1947, c. 87, sec. 3.
2. Criminal Law.
Courts should exercise their sound discretion in protecting rights of defendants who have been
convicted and who desire to appeal their cases to higher courts.
3. Criminal Law.
The desire of defendant to appeal his case based upon advice of his counsel that he had good grounds
for appeal and defendant's lack of funds or property with which to pay cost of transcript would be good
cause within statute authorizing court for good cause to order bill of exceptions prepared at expense of
county. Stats. 1947, c. 87, sec. 3.
4. Criminal Law.
The fact that defendant paid his own attorneys at trial did not justify refusal of court to order bill of
exceptions prepared at cost of county, in view of defendant's uncontested affidavit that he was without
funds or property to pay for preparation of transcript. Stats.1947, c. 87, sec. 3.
5. Criminal Law.
Presumption exists that legislature, in adopting statute granting court power for good cause to order
bill of exceptions prepared at expense of county wherein case was tried, intended to fortify right of a
defendant in criminal case to appeal. Stats.1947, c. 87, sec. 3.
6. Criminal Law.
In passing on a defendant's application for an order directing preparation of a bill of exceptions at
expense of county, trial court may exercise discretion in passing on question of financial ability of
defendant. Stats.1947, c. 87, sec. 3.
7. Criminal Law.
Presumption that defendant had fair and impartial trial and that no grave or prejudicial errors occurred
did not justify trial court's refusal to exercise power to order bill of exceptions prepared at expense of
county where defendant showed good cause. Stats.1947, c. 87, sec. 3.
8. Mandamus.
Courts ought not to exercise their discretion by refusing writ of mandamus where such refusal would
abrogate plain language of statute.
9. Mandamus.
Performance of a duty, enjoined upon an officer by law, without leaving him any discretion in its
performance, may be compelled by mandamus, if there be no other adequate remedy.
10. Mandamus.
Under statute authorizing court, on good cause shown, to order bill of exceptions prepared at expense
of county, where defendant's affidavit that he had been informed by his attorneys that he had good
grounds for appeal and that he was without funds or property of any kind to pay for preparation of
transcript was not contested, but trial court had refused to make such order, defendant was entitled to writ
of mandamus commanding judge to order bill of exceptions prepared at expense of county. Stats. 1947, c.
87, secs. 2(1), 3.
Proceeding by the State, on the relation of Frederick William Teeter, against the Eighth
Judicial District Court of the State of Nevada, in and for County of Clark, Department 2
thereof, and the Honorable A. S. Henderson, Judge, for a writ of mandate to compel the
respondent Henderson to cause to be prepared at cost and expense of the County of Clark a
transcript of evidence and proceedings of trial of relator for crime of second-degree murder.
Writ granted.
Thruston, Salter & Bonner, of Las Vegas, for Petitioner.
Robert E. Jones, District Attorney of Clark County, of Las Vegas, for Respondents.
OPINION
This proceeding is based upon a petition to this court for a writ of mandate to compel
Honorable A. S. Henderson, judge of the Eighth judicial district court of the State of
Nevada, department No.
the State of Nevada, department No. 2, thereof, to cause to be prepared at the cost and
expense of the county of Clark, a transcript of the evidence and proceedings of the trial of
petitioner, at which trial petitioner, on the 28th day of February 1947, was convicted of the
crime of second degree murder.
That petitioner on the 3d day of March 1947 made a motion for arrest of judgment and a
motion for a new trial in said court, both of which motions were denied.
That in due time, on the 8th day of April 1947, petitioner filed his notice of motion and
affidavit in said court for an order to cause to be prepared at the expense of Clark County, a
transcript of the evidence and proceedings of said trial and to furnish petitioner sufficient
copies of the same to prosecute his appeal to this court. The said application was made
pursuant to the provisions of section 3 of senate bill No. 65, approved and signed March 18,
1947. The court denied the motion and refused to make the order, hence this proceeding.
This court, pursuant to said petition, issued an alternative writ of mandate and order to
show cause, which was heard on the 12th day of May 1947.
The affidavit of Frederick William Teeter, the petitioner, sets forth that he has been
informed by his attorneys that he has good grounds for an appeal, and that he is absolutely
without funds or property of any kind to pay for the preparation of the transcript of the
evidence and proceedings in the matter.
The resistance of the petition does not deny the truth of the affidavit of petitioner.
Respondents' brief calls to the attention of this court that from the trial record the respondents
had ample reason to feel that the defendant in this case had sufficient money or means with
which to pay for the transcript himself, or that for other reasons he was not entitled to a
transcript. Respondents contend that if the defendant in this case has any right whatsoever to
a transcript of the evidence at county expense, it is solely by reason of senate bill No. 65.
An act was introduced in the legislature in 1947 under senate bill No. 65, entitled, An Act
to provide for and to regulate bills of exceptions in criminal cases, and repealing all acts and
parts of acts in conflict therewith. The bill was passed by the legislature and approved March
18, 1947, and is now chapter 87, Statutes of Nevada 1947.
Section 3 of the act provides:
The court shall have power upon good cause being shown therefor:
(a) To order that the bill of exceptions provided for in subdivision (1) of section 2 of this
act be prepared at the cost and expense of the county wherein the case was tried. * * *
The policy of the legislature in the past has been to afford to those persons charged with or
convicted of a felony, and who are without financial means, the same fundamental rights
given those who are financially able to defend such rights. This policy is continued and is
extended by the act of the legislature under chapter 87, supra. The power is given the court to
order that the bill of exceptions provided for in the act be prepared at the cost and expense of
the county wherein the case was tried. This power is to be exercised upon good cause being
shown therefor.
1-3. Good cause has no fixed meaning, but depends upon the circumstances of each case
to be determined by the legal discretion of the court. Trial courts should and will exercise
their sound discretion in protecting the rights of defendants who have been convicted and
who desire to appeal their cases to the higher courts. It is evident from the language of the
section in question that the good cause shown would be the desire of the defendant to appeal
his case, based upon the advice of his counsel that he has good grounds for an appeal, and
that he is absolutely without funds or property of any kind to pay the cost of the transcript.
There is nothing before this court to show that the affidavit of defendant was contested by
the state.
4. Respondents herein base their refusal to make the order primarily on the fact that the
defendant paid his own attorneys at the trial. The fact that he depended upon his own
resources until they were exhausted should not weigh against the defendant, but on the
contrary is a circumstance in his favor in his showing of good cause.
In the case of State v. Harris, 151 Iowa 234, 130 N.W. 1082, 1083, speaking on the subject
of defendant's inability to pay for a transcript of the evidence on appeal, the court said: The
resistance to this application does not show that the defendant had any means with which to
procure a transcript, or any way of raising the necessary money.
In that case, as in the case before this court, it was contended that the defendant had
employed counsel to defend him at his trial, but such fact does under the circumstances tend
to show that he had money when he made his application. The court said: Unless the
defendant's positive assertion is to be wholly disregarded, we think it must be said that he had
conclusively shown his own inability to procure a transcript. If that be true, the court was not
warranted in denying his application on the ground that the defendant was able to pay for the
transcript himself.
As to the other reasons, the court said: Was he exercising a sound legal discretion in
denying it for other reasons? The only other reason that could be given for the ruling would
be that the defendant had had a fair trial and was undoubtedly guilty, and, in fact, that was
one of the reasons advanced by the state in resistance to the application. But the defendant has
the legal right to have the trial below reviewed in this court, and the trial court that convicted
him should not be permitted to prevent a consideration of the appeal by an order refusing a
necessary record.
As said in State v. Robbins, 106 Iowa, 688, 77 N.W. 463, 464: "A transcript of the
evidence is necessary to a prosecution of defendant's appeal.
A transcript of the evidence is necessary to a prosecution of defendant's appeal. He is
unable to pay for it, and therefore, if not furnished at the expense of the county, unable to
procure it. The spirit of our law is not only to secure to the accused a full and fair trial in the
lower court, but also a full review of his case on appeal to this court.
The language of the opinion in that case is applicable here. The defendant is serving a life
sentence. He has appealed from such judgment to this court. His appeal cannot be heard
unless a transcript of the evidence be furnished him at the expense of the county, and this has
been denied him.
It is suggested by the state that there should be a showing of merits with the application.
We do not think it necessary, however. It is certain that this court would not determine the
merits of the appeal on an application for a transcript which is necessary to present the case,
and it must be presumed, we think, that an appeal is taken in good faith, unless some showing
be made to the contrary. We are constrained to hold that the trial court was wrong. The order
is therefore reversed and the case remanded for an order in harmony herewith. State v.
Harris, supra.
5. It must be presumed that the intent of the legislature in enacting section 3 of the 1947
act was to fortify the right of a defendant in a criminal case to an appeal by granting to the
court the power to order that the bill of exceptions be prepared at the expense of the county
wherein the case was tried.
6. A substantial and legal reason to authorize the court to exercise the power granted
would be an unchallenged cause by the defendant that he was absolutely without funds or
property to secure such a bill of exceptions. The trial court may exercise discretion in passing
upon the question of the financial ability of the applicant in this case, but there is nothing
before this court to show the exercise of such discretion, as respondent urged that for other
reasons defendant was not entitled to a transcript.
respondent urged that for other reasons defendant was not entitled to a transcript.
7. It is assumed that the defendant had a fair and impartial trial and that no grave or
prejudicial errors have occurred, but if the court refuses to exercise the power granted under
the statute upon that basis, then he thereby usurps the functions of this court and himself
assumes to pass as a court of review upon his own rulings, and this denies the constitutional
right to appeal. No such purpose or intent can be presumed to have been in the legislative
mind when they enacted senate bill 65, supra.
In Brogdon v. State, 38 Okl.Cr. 269, 260 P. 784, and cases cited therein, it was held that in
a criminal prosecution where the defendant has been convicted and desires to appeal, upon a
proper showing made to the trial court that he is unable to pay the court reporter for a
transcript of the testimony, or the court clerk for a transcript of the record, it is the duty of the
trial court to make an order directing this to be done without expense to the defendant.
In Kendall v. Rudderow et al., 35 Ariz. 453, 281 P. 37, it was held that where defendant in
a criminal case filed affidavit alleging that he was without means to pay for transcript of
record on appeal, under Pen.Code 1913, sec. 1163, and county attorney failed within five
days to file demand that defendant be examined touching matters set forth in affidavit,
defendant was entitled to have reporters furnish transcript at county's expense, though no
copy of affidavit had been served on county attorney, and county attorney had no knowledge
of the filing thereof, and no hearing upon the affidavit had been had before the court.
In State ex rel. Coella v. Fennimore, 2 Wash. 370 26 P. 807, it was held that a person who,
on conviction of murder, gives notice of appeal, and shows that he is absolutely unable to pay
for a transcript of the record, is entitled to such a transcript of the record, is entitled to such a
transcript at the expense of the public.
The United States supreme court, speaking through Chief Justice Marshall, in the case of
Osborn v. President, etc., of Bank of United States, 9 Wheat 738, 866, 22 U.S. 738, 866, 6
L.Ed. 204, said: Judicial power, as contradistinguished from the power of the laws, has no
existence. Courts are the mere instruments of the law, and can will nothing. When they are
said to exercise a discretion, it is a mere legal discretion, a discretion to be exercised in
discerning the course prescribed by law; when that is discerned, it is the duty of the court to
follow it. Judicial power is never exercised for the purpose of giving effect to the will of the
judge; always for the purpose of giving effect to the will of the legislature; or, in other words,
to the will of the law.
8. Courts ought not to exercise their discretion by refusing the writ when such refusal
would abrogate the plain language of the statute.
If the court has any discretion in a case like this one, it ought not to exercise it by denying
the writ, which would result in a judicial repeal, the usurpation of the powers of the
Legislature, and a dangerous precedent. State ex rel. White v. Dickerson, 33 Nev. 540, 113
P. 105, 114.
9. Performance of a duty, enjoined upon an officer by law, without leaving him any
discretion in its performance, may be compelled by mandamus, if there be no other adequate
remedy. State of Nevada ex rel. H. R. Mighels v. J. Eggers, 36 Nev. 364, 136 P. 104.
In many jurisdictions an indigent defendant in a criminal case is entitled to a transcript of
the stenographer's record, bill of exceptions, or some form of record of the proceedings in the
trial court, to aid him in the preparation of his appeal, at the expense of the county or state.
100 A.L.R. 327, and numerous cases cited therein.
The instant case seems to fall within the cases above cited. A great number of other cases
could be cited but we do not deem it necessary to discuss other cases on this point.
10. Counsel have fully briefed their points and authorities and we have given careful
attention to the same, and have read all the cases cited in the briefs. In our opinion the claim
of respondents is not supported by the weight of authority. Practically all authority is to the
contrary, therefore we find ourselves in agreement with the cases cited by the petitioner.
Adhering to the law many times announced by numerous courts, we have no other alternative.
The prayer of the petition is granted, and it is ordered that the peremptory writ of
mandamus is issued herein commanding respondents, upon receipt of the writ, to forthwith
make and enter an order that the bill of exceptions provided for in subdivision (1) of section 2
of senate bill No. 65 be prepared at the cost and expense of Clark County, Nevada, and that
petitioner be furnished, without cost to him, sufficient copies of same to present his appeal
herein.
____________
64 Nev. 264, 264 (1947) Ex Parte Schultz
In the Matter of the Application of GRACE FOOTE SCHULTZ for a Writ of Habeas Corpus
on Behalf of BABY BOY SCHULTZ
No. 3483
May 29, 1947. 181 P.2d 585.
1. Adoption.
Where adult mother of illegitimate child freely executed relinquishment for adoption after being fully
advised of the consequences of her act and delivered the instrument to authorized agent of a welfare
bureau who held it for two days before acting upon it, the relinquishment was valid, although the name of
the bureau to which the child was relinquished was not written in the relinquishment. Comp. Laws, sec.
1065.02.
2. Parent and Child.
As a general rule parents have a primary right to the custody of their offspring, but the law gives
almost equal weight to the welfare of the offspring and the superior advantages that may be secured by
the adoption by others.
3. Adoption.
Where adoption by others will give superior advantages to child and natural parent has legally
consented to the adoption and such consent has been acted upon, the adoption applied
for will be granted.
and such consent has been acted upon, the adoption applied for will be granted. Comp.Laws,
sec.1065.02.
4. Adoption.
Where adult mother of illegitimate child freely executed relinquishment for adoption after being fully
advised of the consequences of her act and there was nothing to indicate that it would be to the detriment
of the child to enforce such relinquishment, the relinquishment could not be revoked by the mother.
Comp.Laws, sec. 1065.02.
5. Adoption.
Public policy demands that the adoption act should not be nullified by decision that causes the public
to fear the consequences of adopting a child with the full knowledge that their efforts are at the whim and
caprice of a natural parent. Comp. Laws, sec. 1065.02.
Original proceeding in the matter of the application of Grace Foote Schultz for a writ of
habeas corpus on behalf of Baby Boy Schultz. Proceeding dismissed.
(Horsey, J., dissenting.)
Lunsford & Goldwater, of Reno, for Petitioner.
Thatcher, Woodburn and Forman and William J. Cashill, all of Reno, for Respondent
Catholic Welfare Bureau, Inc.
OPINION
This is an original proceeding in habeas corpus.
Unquestionably the most difficult and perplexing problems which ever come before a
court for decision are those questions which, while involving no financial consideration, have
to do with those vitally important but wholly imponderable questions of human relations
involving the basis sentiment of the care, custody, control, and welfare of a minor child. Such
a one is the present case.
The petition charges that a minor, a baby boy, is unlawfully imprisoned and restrained of
his liberty by Mr. and Mrs. John Doe, prospective adoptive parents of the child.
of the child. The names of the prospective adoptive parents have not been disclosed during
the proceedings, in keeping with the adoption statute. The Nevada Catholic Welfare Bureau,
Inc., has acted as respondent in this proceeding and has agreed to deliver Baby Boy Schultz to
the petitioner if this court should so direct.
The facts may be briefly summarized. By means of a writ of habeas corpus, the unwed
mother of an illegitimate child requests the aid of this court in recovering the custody and
possession of a baby boy born October 21, 1946. In consequence of an intention formed
several months previous, the mother signed a purported relinquishment for adoption on
November 2, 1946. The relinquishment was acted upon by the Nevada Catholic Welfare
Bureau, Inc., on November 7, 1946, when its directors placed the child in the home of the
prospective adoptive parents. There is a conflict in the testimony as to the date on which an
agent of the mother asked for return of the child and the revocation of her relinquishment.
However, the facts are clear that formal request for the return of the child was not made by
the mother until letters mailed on December 6, 1946. This proceeding was initiated January
29, 1947.
There are three questions presented by this case:
(1) Was the release and relinquishment valid?
(2) If valid, is it revocable?
(3) If revocable, is it for the best interest and welfare of the child to allow it to be revoked?
The pertinent part of our adoption statute is contained in section 1065.02, 1929 Nevada
Compiled Laws 1941 Supp., and reads:
Except as otherwise specified in this section, no adoption shall be permitted except with a
written consent duly acknowledged by the living parents of a child, or the mother of a child
born out of wedlock. In the case of a child fourteen years of age or over, the consent of such
child shall be required and must be given in writing in the presence of the court.
Where the parent or guardian relinquishes a child for adoption to a recognized
organization, institution, or society of this or another state, or to the state department of
welfare, which relinquishment is recognized by law, it shall not be necessary, in adopting
said child, to obtain the permission of the parent or guardian who has relinquished the said
child. * * * (The italics are ours.)
The release and relinquishment signed by the mother in the instant case, among other
things, reads as follows:
This release is made under that certain Act of the Legislature of the State of Nevada,
entitled: An Act to provide for the adoption of children, defining the Duties of Certain
Persons in Relation thereto and Other Matters Relating thereto.' Approved March 28, 1941.
(1941 Stats. p. 355) section 1065.02, supra.
1. The court is of the opinion that a valid relinquishment was given. The mother was fully
informed of the consequences of her act. She had considered the matter for months, and after
she signed the document it was held for two days to insure that she desired that it be acted
upon. Petitioner urges that she was under a misapprehension at the time she signed the
document. By her statement the only reason for delaying action on the adoption was to give
the father an opportunity to appear and assume his responsibilities. The father has not
appeared and has in no way indicated he will assume such responsibilities. Petitioner further
urges that as the name of the agency to which the child was relinquished was blank, the
validity of the document is questionable. This argument was not seriously asserted and no
authorities are cited. Suffice to say that the document was given to a duly authorized agent of
the Catholic Welfare Bureau and was acted upon by such bureau. We must conclude that at
the time of the signing of the document, the mother, an adult, of her own free will annexed
her signature knowing and desiring that the baby would be adopted.
The principal question raised by this proceeding is the right of the mother to revoke her
relinquishment.
the right of the mother to revoke her relinquishment. Counsel have fully briefed this point.
The authorities cited indicate that many courts have permitted revocation at the discretion of
the parent; others allow revocation if estoppel or welfare of the child do not intervene. French
v. Catholic Community League, 69 Ohio App. 442, 44 N.E.2d 113; In Re Burke's Adoption,
Sur., 60 N.Y.S.2d 421; Adoption of Capparelli, Or., 1946, 175 P.2d 153; Adoption of
McDonnell, Cal.App. 1947, 176 P.2d 778.
Conversely many tribunals have denied the right to revoke, and base such denials on (1)
principles of contract; (2) estoppel or other equitable grounds; (3) public policy favoring
adoption of children, particularly illegitimate children, or (4) the welfare of the child as
apparent from the facts. Wyness v. Crowley, 292 Mass. 459, 461, 198 N.E. 758; Lee v.
Thomas, 297 Ky. 858, 181 S.W.2d 457; Application of Presler, 171 Misc. 559, 13 N.Y.S.2d
49; Durden v. Johnson et al., 1942, 194 Ga. 689, 22 S.E.2d 514; Stanford v. Gray, 42 Utah
228, 129 P. 423, Ann.Cas.1916a, 989; In Re Adoption of a Minor, 1944, 79 U.S.App.D.C.
191, 144 F.2d 644, 156 A.L.R. 1001; Lane v. Pippin, 110 W.Va. 357, 158 S.E. 673.
2, 3. As a general proposition parents have the primary and superior right to the custody of
their offspring above that of all others, but the declared law has injected into such cases a
factor of almost equal dignity as that of the right of the parents, and which is the welfare of
the child afforded by the superior advantages that adopting parents are about to and can
furnish it, and of which it would be deprived if it remained with its natural parents. But no
opinion of any court so far as we are aware approves the right in any one to take away from
natural parents the custody of their children solely upon the ground that the adopting parents
are better prepared to provide superior advantages to the child which the natural parents for
any cause might be unable to provide. But where that situation exists and the parent has
agreed that his or her child might be adopted and has executed such consent or offer in
the manner pointed out by the statutory jurisdiction which has been acted on by the
proposed adopter, then such consent or agreement, in the absence of fraud or duress in
its procurement, plus the vastly increased opportunities of the adopted child, creates a
case where there is no alternative but to sustain the adoption applied for.
that his or her child might be adopted and has executed such consent or offer in the manner
pointed out by the statutory jurisdiction which has been acted on by the proposed adopter,
then such consent or agreement, in the absence of fraud or duress in its procurement, plus the
vastly increased opportunities of the adopted child, creates a case where there is no alternative
but to sustain the adoption applied for. Lee v. Thomas, supra.
A decision of the principle involved in the instant case, is included in the opinion in the
case of Wyness v. Crowley, 292 Mass. 459, 461, 198 N.E. 758, 759. We quote:
To accede to the contention that such voluntary consent may be withdrawn would be
equivalent to saying that parties may come to a court, deliberately give their assent to actions
by the court in matters affecting their interests, and afterwards, at their will and pleasure,
return to the court and undo what they did because on a future day they did not like it.
In the case of Stanford v. Gray, 42 Utah 228, 129 P. 423, 426, Ann.Cas. 1916a, 989, the
court stated as follows:
Ordinarily the law presumes that the best interest of the child will be subserved by
allowing it to remain in the custody of the parents, no matter how poor and humble they may
be, though wealth and worldly advancement may be offered in the home of another. Where,
however, a parent, by writing or otherwise, has voluntarily transferred and delivered his
minor child into the custody and under the control of another, as in the case at bar, and then
seeks to recover possession of the child by writ of habeas corpus, such parent is invoking the
exercise of the equitable discretion of the court to disrupt private domestic relations which he
has voluntarily brought about, and the court will not grant the relief, unless upon a hearing of
all the facts it is of the opinion that the best interests of the child would be promoted thereby.
From birth an infant is a ward of the State. It stands in the relation of parens patriae.
stands in the relation of parens patriae. In this and similar proceedings the fundamental
consideration is the welfare of the infant. People ex rel. Converse v. Derrick, 146 Misc. 73,
77, 78, 261 N.Y.S. 447.
The infant's welfare is paramount to the natural right of a parent. Matter of Bock
(Breitung), 280 N.Y. 349, 353, 21 N.E.2d 186; Application of Presler, supra [171 Misc. 559,
13 N.Y.S.2d 52].
Statutory requirements must be strictly complied with in adoption proceeding, since
adoption is a proceeding in derogation of common law. * * *
Where natural parents have absolutely surrendered their child to county commissioner of
public welfare, only basis for a subsequent adoption of the child is the execution by
commissioner of a written consent which takes the place of the written consent of natural
parents required in case of a voluntary adoption. * * *
Natural parents, by unconditionally surrendering custody of their child to county
commissioner of public welfare, divested themselves of any power thereafter to authorize an
adoption of such child by written consent. In re Whitcomb, 271 App. Div. 11, 61 N.Y.S.2d
1.
This court, in previously considering an oral argument by which a parent released the care
and custody of a minor child to third parties, enunciated the only language which is helpful
here. The opinion of the court states:
The weight of modern authority, however, seems to recognize such agreements as
enforceable where it appears to the advantage of the minor to enforce the same. This latter
view seems to us to be supported by the better reason. It recognizes the superior rights of
natural parents, all other matters being equal, but places the interest of the child as the first
consideration, and, where it appears that the interest of the child will manifestly be advanced
by enforcing such agreement, the same will not be disturbed. Ex parte Swall, 36 Nev. 171,
195, 134 P. 96, 97, Ann.Cas. 1915b, 1015.
The court further cited with approval Stanford v. Gray, supra, a closely similar case to the
instant case, wherein the Utah court held:
There are some authorities which hold that a contract made by a parent in which he
surrenders the care, control, and custody of his minor child to another is void as against
public policy. The great weight of authority, however, sustains the position of appellants that
a parent may by contract legally transfer and surrender his infant child into the custody of
another where the interest of the child is not prejudiced by the transaction, and in all
controversies arising respecting the custody of the child after such transfer and surrender have
been made, the paramount considerationthe question of controlling importanceis the
interest, welfare, and happiness of the child. In other words, while contracts of this kind,
fairly and voluntarily entered into, are valid as between the parties, they will not be enforced
to the detriment of the child.
Substantial support of the position of respondents is furnished by the exhaustive and
well-reasoned opinion of the court of appeals, for the District of Columbia, In Re Adoption of
a Minor, supra. There the court was dealing with an adoption statute similar with ours, and
like the Nevada statute, a recent legislative act. Also the court was confronted with an
attempted revocation of a consent to adoption by the mother of an illegitimate child. The
court, in denying the right to revoke, placed emphasis on the tense of the wording of the
statute passed by Congress in 1937, D.C.Code, 1940, secs. 16-201 et seq., stating that the
statute speaks of an act completed, and finds in the act the words, no decree of adoption
shall be made unless the court shall find that the following persons have consented to the
adoption. The Nevada statute, passed in 1941, sec. 1065.03, N.C.L. 1931-41, Supp., also
uses the words of an act completed. * * * that all required consents have been given. (The
italics are ours.)
The reasoning of the court of appeals that such language indicates legislative intent to
make the consent irrevocable is equally applicable here.
However compelling the examination of the wording of the statute by the court of appeals
might prove, the great value of the opinion of In Re Adoption of a Minor, arises from the
court's consideration of the history and theory of adoption and its ramifications, including
child life, family welfare, juvenile delinquency, illegitimacy, and the great public interest in
successful adoption procedure. The court concluded:
It is apparent that if in particular cases the unstable whims and fancies of natural mothers
were permitted, first, to put in motion all the flow of parental love and expenditure of time,
energy and money which is involved in adoption, and then, as casually, put the whole process
in reverse, the major purpose of the statute would be largely defeated. Doctors of medicine
and divinity, potential adoptive parents and social workers would be stymied in their
rehabilitative efforts. A premium would, instead, be put upon the emotional instability which
produces illegitimates; to say nothing of the possibilities for racketeering which such an
interpretation of the law would put in reach of those who may be criminal in their tendencies
as well as lacking in the qualities of parenthood. The new law cannot prevent illegitimacy or
remove its stigma, generally, but to the extent that it may secure desirable placement of even
a few illegitimate children it may avoid some of its most dangerous results. But to do so it is
necessary that such children and their adoptive parents be protected against possibilities of
the kind suggested. Especially in the adoption of illegitimate children it is desirable that the
break between infant and consenting mother be abrupt and final. (The italics are ours.)
While the court is cognizant of and sympathetic to, the honest efforts of a natural mother
to recover her child, the welfare of the child and the intent and purpose of the adoption law
must be the controlling factors in the determination of this matter.
of the adoption law must be the controlling factors in the determination of this matter. At the
hearing evidence was introduced regarding the welfare of the child. The home of the
prospective parents was established as a proper environment for the child.
4. Following the authorities cited above, the court finds that the relinquishment of the
mother, having been freely and voluntarily given, is irrevocable, and, there being nothing to
indicate that it would be to the detriment of the child to enforce such relinquishment, the
document must be accorded the full effect intended under the statute.
5. Public policy demands that the adoption act should not be nullified by a decision that
causes the public to fear the consequences of adopting a child with the full knowledge that
their efforts are at the whim and caprice of a natural parent.
This proceeding is dismissed.
Badt, J.: I concur.
Horsey, J., dissenting.
I feel impelled to dissent from the majority opinion in this case.
The pertinent facts involved in this proceeding may be summarized as follows:
Grace Foote Schultz, the petitioner on behalf of Baby Boy Schultz, is the unmarried
mother of said baby boy, who was born out of wedlock on October 21, 1946, at the St. Mary's
hospital, in Reno, Nevada. The evidence upon the hearing reveals that the petitioner came to
Reno in July 1946, and called upon a physician some time in August 1946. Miss Schultz
testified she asked the physician to take care of her, and that she told him at that time that she
wanted to put the child out for adoption; that she saw the doctor about six times after that,
and before she went to the hospital, but did not talk to him further about adoption. The
physician testified Miss Schultz first called upon him August 29, 1946, at which time she
told him she wanted to adopt the baby out, and that she was unmarried, and that he told
her he would take care of that and not to worry any more about it; that her next visit to
him was September 16, 1946.
which time she told him she wanted to adopt the baby out, and that she was unmarried, and
that he told her he would take care of that and not to worry any more about it; that her next
visit to him was September 16, 1946. The physician, at that point in his testimony was asked
whether, at that time (September 16, 1946), they discussed the proposed adoption, and
answered, I talked to her about the financial arrangements before the delivery, the
hospitalization of herself and the baby. The following questions and answers were then
propounded and made:
Q. (By Mr. Woodburn): Did she mention, at that time, the state welfare bureau? A. I
believe at that time she did mention she had been there.
Q. And what did you tell her at that time? A. I said we would take care of that, she didn't
have to worry about it.
Q. When was the next time you saw her? A. The 30th of September 1946.
Q. Did you talk to her then about the proposed adoption? A. Not that I recall.
Q. When did you next see her? A. October 11th.
Q. And do you recall whether at that time you had any discussion with her about the
proposed adoption? A. No, I do not.
Q. And the next time you saw her was when she went to the hospital? A. Yes, on the
night of October 20th.
Q. And the baby was born on the 21st? A. The morning of the 21st of October.
Q. Did you discuss with her anything about adoption then? A. No.
Q. You heard Miss Schultz' testimony that at the hospital she asked you if she could see
her baby, and you said they didn't do that in the hospital? A. She never asked me personally to
see the child, at any time.
The doctor did not deny that Miss Schultz asked the nurse, or nurses, the privilege of
seeing the baby.
It will be noted from the foregoing that, according to the physician's testimony, Miss
Schultz discussed adoption with him only upon the occasion of her first visit, August 29,
and then merely told him "she wanted to adopt the child out, and that she was
unmarried," and that he "told her we would take care of that and not to worry any more
about it."
the physician's testimony, Miss Schultz discussed adoption with him only upon the occasion
of her first visit, August 29, and then merely told him she wanted to adopt the child out, and
that she was unmarried, and that he told her we would take care of that and not to worry
any more about it. It clearly appears, therefore, that Miss Schultz made no express request of
the physician to do anything in regard to adoption, but that he volunteered to take care of that,
and told her not to worry about it. She also told him, as he testified, that she had been to the
state welfare bureau.
Miss Schultz' testimony as to what she told the physician, upon the occasion of her first
visit, was, I mentioned the fact that I didn't have any money, and wanted to adopt the baby
out. She stated further she did not talk to him again about it until the doctor and Mr. Halley
came to her room with the papers for her to sign, on November 2, 1946.
In other portions of her testimony, Miss Schultz told about visiting the state child welfare
department branch office in Las Vegas, in April 1946, that she continued in touch with said
department after coming to Reno, in July, 1946, and discussed with Mrs. Bromberg the
opportunities for the child after it was born, and what could be done with it, and that Mrs.
Bromberg was to have it adopted in a foster home.
From the testimony of both the physician and Miss Schultz, it is clear that she left the
hospital October 28, 1946, that she continued ill at her home, and that the physician attended
her; that she was suffering severe pains on October 31, 1946, the result of the birth of the
child; that the doctor prescribed medicine for her, and came to see her the following morning,
but that adoption was not then discussed.
Upon the point of whether Miss Schultz requested the calling of Mrs. Bromberg, of the
state department of public welfare, she testified she so requested the physician, also one of
the nurses.
The physician testified Miss Schultz did not, at any time after the baby was born, ask
him to call Mrs.
time after the baby was born, ask him to call Mrs. Bromberg. He was not asked as to whether
she so requested before the baby was born. He testified further that Miss Schultz told him
she had asked some one to call Mrs. Bromberg's office, and she wasn't there, and she asked
that Mrs. Bromberg contact Miss Schultz. Mrs. Bromberg testified, in that connection, that
she received no such call.
As to what occurred at the room of Miss Schultz on November 2, 1946, upon the occasion
when the document purporting to be a release or relinquishment of Baby Boy Schultz was
signed, there are no substantial differences between the testimony of Miss Schultz, the
physician and Mr. Halley. The physician, in that connection, testified, on direct examination,
as follows:
Well, Mr. Halley had prepared the documents for her to sign. We went to her room,
upstairs, and I explained the reason for our visit, that Mr. Halley had prepared the documents
for the adoption of the child, told her to read it over and sign it. Mr. Halley told her if she had
any questions regarding the document to ask him, and he would gladly explain it to her. She
read it over for some time, and the only comment she had was about it sounding rather harsh
with the word forever' in it.
Q. At that time did Mr. Halley advise her as to that? A. Yes. And we tried to explain to
her we didn't want to rush her into signing something she didn't want to. She had already told
me she was expecting a phone call from the child's father. Mr. Halley said he would hold the
paper she had signed, until the following Monday, November 4th, although we thought at that
time she had definitely made up her mind.
Q. Did she telephone you on the following Monday, November 4th? A. Yes, and
authorized us to go ahead. (Miss Schultz' testimony on that point was that she stated, in the
said telephone conversation, that she hadn't received her phone call from the child's father,
and that she guessed there was nothing else to do.)
Q. The baby was to be placed by the Catholic welfare bureau? A. That is what I
understood, yes. (Italics mine.)
In this opinion I shall follow the arrangement, as to the treatment of the questions
involved, which has been followed by the respective counsel, and, also, in the majority
opinion, same being as follows:
1. Was the release or relinquishment valid?
2. If valid, is it revocable?
3. If revocable, is it for the best interest and welfare of the child to allow it to be revoked?
The release or relinquishment, as disclosed by the copy appended to respondent's return, is
as follows:
Release of Child
I, Grace F. Schultz, of Reno, Washoe County, Nevada, do hereby relinquish and release
forever to Nevada Catholic Welfare Bureau, Inc., of Reno, Nevada, my rights as a parent in
and to my male child, Baby Schultz, born at St. Mary's Hospital, City of Reno, County of
Washoe, State of Nevada, on the 21st day of October, 1946, which said child was born out of
wedlock and the undersigned represents that she is the Mother of said minor male child, now
the age of 12 days and that she hereby relinquishes unto Nevada Catholic Welfare Bureau,
Inc., all her rights to said child and respectfully requests any court of competent jurisdiction
to enter its order of adoption.
This release, is made under that certain Act of the Legislature of the State of Nevada,
entitled, An Act to Provide for the Adoption of Children, Defining the Duties of Certain
Persons in Relation Thereto and Other Matters Relating Thereto,' Approved March 28, 1941
(1941 Stats. 355.)
Grace F. Schultz
State of Nevada, }
}ss.
County of Washoe }
On this 2nd day of November, 1946, personally appeared before me, the undersigned, a
Notary Public in and for the County of Washoe, State of Nevada, Grace F.
and for the County of Washoe, State of Nevada, Grace F. Schultz, known to me to be the
person described in and who executed the annexed instrument, who acknowledged to me that
she executed the same freely and voluntarily and for the uses and purposes therein mentioned.
In witness whereof, I have hereunto set my hand and affixed my official seal at my office
in the County of Washoe, State of Nevada, the day and year in this certificate first above
written.
John S. Halley
(Seal) Notary Public in and for the County
of Washoe, State of Nevada.
It is alleged in the petition herein, and admitted by respondent by failing to deny same, that
the document presented to petitioner by the physician and Mr. Halley, on November 2, 1946,
did not, at said time, contain the names of any of the parties thereto; that it did not contain the
name, either of the petitioner, or of any organization, institution or society, or of the state
department of welfare, or the name or names of any proposed adoptive parents.
It is further alleged by the petitioner, and admitted by respondent, that such purported
document was notarized on or about November 4, 1946, by John S. Halley, of the city of
Reno, Nevada, and that on or about November 5, 1946, the said physician delivered said
document to a private welfare agency in Reno, Nevada, to-wit, the Nevada Catholic Welfare
Bureau, Inc., and specifically to Father Collins thereof, and that pursuant to said purported
relinquishment and consent said Father Collins obtained said Baby Boy Schultz from the St.
Mary's Hospital, where the child then was, and delivered said to Mr. and Mrs. Doe, the
proposed adoptive parties.
The omission of those names, because of the allegation and admission of the pleadings, is
an established fact in the case and cannot properly be ignored.
In the majority opinion it is stated:
Petitioner further urges that as the name of the agency to which the child was
relinquished was blank, the validity of the document is questionable. This argument was not
seriously asserted and no authorities are cited. Suffice to say that the document was given to a
duly authorized agent of the Catholic Welfare Bureau and was acted upon by such bureau.
We must conclude that at the time of the signing of the document, the mother, an adult, of her
own free will annexed her signature knowing and desiring that the baby would be adopted.
I cannot agree. This statement overlooks the fact that the mother of this child, Baby Boy
Schultz, had had no negotiations with the Catholic Welfare Bureau, Inc., did not even know,
nor was she then informed, that such an organization existed, nor that there was any intention
on the part of the physician or Mr. Halley that said society should act in the matter of the
adoption of the child. It is doubtful whether Mr. Halley (who testified he is not a social
worker, nor a duly authorized agent of said society, but that he had performed legal services
for them, as assistant to Mr. Diskin, from time to time, and had prepared and taken for them,
in a similar case, a release or relinquishment) had been given any authority by said society,
other than to prepare the release or relinquishment. Be that as it may, there is no evidence
whatever that Miss Schultz was informed, or knew, that Mr. Halley was so acting for and on
behalf of the Catholic Welfare Bureau, Inc. In fact, as above stated, she did not know such
organization existed, or was at all involved in the transaction, nor had she any idea that said
organization or society was to act in placing the child, or in any capacity whatever, until she
received a telephone call from Father Collins, after he had received the release or
relinquishment. As to this matter of Miss Schultz' knowledge or consent, which is so
fundamental in determining the validity or invalidity of the document in question, the
proper application of our statute, sec.
in determining the validity or invalidity of the document in question, the proper application of
our statute, sec. 1065.02, Supp.1931-1941, Nevada Compiled Laws 1929, and in establishing
the just rights of the parties as to Baby Boy Schultz, for this court to decline to consider it and
to fail to apply to it the well established principles of the law of contracts and of statutory
construction, merely because the learned chief justice, who wrote the majority opinion,
chooses to conclude that the argument (of petitioner's attorney) was not seriously asserted
and no authorities are cited, in my opinion places the administration of justice in this case
upon a very unsubstantial basis.
This matter is asserted and argued both in petitioner's opening brief and in her reply brief,
and, in my opinion, we have no right to say same was not asserted seriously, and the failure to
cite authorities does not justify the court in declining to consider a fundamental question
legally before the court, and the proper determination of which is absolutely essential to the
accomplishment of justice in the case.
It is elementary in the law of contracts (and the release or relinquishment is such a
document as the cases generally denominate a surrender agreement) that at least two parties
are essential to the formation of any valid contract or agreement; that such parties must be
known to each other, in order that they may severally determine whether they wish to contract
one with the other. This is necessary, because, among the principal elements of an agreement
or contract, are consent and intention. It is a relationship which, to arise, must be entered into
freely and voluntarily and intelligently, in order that there may be a meeting of the minds and
that contractual relations may be effected. Restatement of the Law of Contracts, vol. 1, sec.
15, p. 17; 12 Am.Jur., sec. 16, p. 514, and cases cited in footnote 10.
The subject of filling in blank spaces in contracts, after the execution of the contract, is
treated in 17 C.J.S., Contracts, sec.
the execution of the contract, is treated in 17 C.J.S., Contracts, sec. 65, p. 416, and the many
authorities cited in the footnotes. The text of said section 65 is as follows:
A writing is incomplete as an agreement where blanks as to essential matters are left in it,
unless they can be supplied from other parts of the writing itself, or unless and until such
blanks are lawfully filled. The fact, however, that a contract contains blanks when signed
does not necessarily invalidate it, and, subject to an exception as to sealed instruments,
recognized in some jurisdictions, one signing a paper and leaving blanks in it is ordinarily
presumed to give authority to the holder to fill the blanks in accordance with the general
character of the instrument, and parol authority is sufficient to authorize the filling of blanks
in writings not under seal, in the absence of a contravening statute. The person authorized to
fill blanks must act in accordance with the authority conferred, but, even though such
authority may have been exceeded, the instrument may be binding as completed, in favor of a
third person who has justifiably and in good faith changed his position in reliance thereon.
Questions as to implied authority to fill blanks commonly arise in determining the existence
and effect of alterations of instruments and are considered in that connection in the title
Alteration of Instruments, secs. 63-66.
Blanks in instruments may be rejected as surplusage if the parties so intended, and the
intent must be gathered as an inference of fact from the whole setting of the transaction.
In footnote 26 to the text is the following excerpt from the opinion in the case of Bruegge
v. State Bank of Wellston, Mo.Supp., 74 S.W.2d 835.
One of tests of existence of implied authority to fill in blanks in instrument is whether
completed instrument correctly states agreement between parties.
Obviously, if Miss Schultz had been informed, in substance, that if she consented to the
adoption of her child, and signed the document presented to her, she would be relinquishing
the child to the Catholic Welfare Bureau, Inc., as the institution to act in her place in selecting
the adoptive parents, and in formally consenting to the adoption, and if she had expressed her
assent that such institution should so act, and if the name of the relinquishee had been left
blank in the instrument, the physician and Halley, or either of them, would, under such
circumstances, have been impliedly authorized to fill in such blank space, to conform to the
intention and agreement of the parties. But when all knowledge or information, as to whom,
or as to what institution, was to act, was withheld from her, either by concealment or by
inadvertence, she was in no position to exercise her judgment or discretion in determining
whether said institution should be selected. Indeed, she could not, under such circumstances,
be deemed to have acquiesced, by implication, in the selection of such Catholic Welfare
Bureau, Inc., when she did not then know of its existence, and had not been informed thereof,
nor anything said to indicate to Mr. Halley and the physician that it should serve in placing
the child for adoption.
Adoption was unknown to the common law, is entirely a matter of statute, and such
statutes must be strictly construed as to the rights of natural parents. 1 Am.Jur. pp. 622, 627,
particularly sec. 9, on pp. 626, 627.
The portion of our latest adoption statute (the act of 1941) pertinent to the question of
relinquishment, by a parent or guardian, of a child for adoption to a recognized organization,
institution or society of this or another state, or to the state department of welfare, is found in
sec. 1065.02, N.C.L.1929, Supp.1931-1941, and is as follows:
Except as otherwise specified in this section, no adoption shall be permitted except with a
written consent duly acknowledged by the living parents of a child, or the mother of a child
born out of wedlock.
the mother of a child born out of wedlock. In the case of a child fourteen years of age or over,
the consent of such child shall be required and must be given in writing in the presence of the
court.
Where the parent or guardian relinquishes a child for adoption to a recognized
organization, institution or society of this or another state, or to the state department of
welfare, which relinquishment is recognized by law, it shall not be necessary, in adopting said
child, to obtain the permission of the parent or guardian who has relinquished the said child.
Giving the statute the strict construction required in favor of the rights of the natural parent
or parents (assuming the parent has not abandoned the child, become incompetent, or
otherwise is within the provisions of the Statute of 1921, as amended, none of which are
applicable to the situation existing in the instant case), it is clear that it is only the parent or
guardian of the child upon whom authority is conferred by the statute to relinquish a child for
adoption. The statute recognizes, generally, the value of organizations, institutions and
societies, including the state department of welfare, because of their usual facilities and
training for, and experience in, social work, and provides, therefore, that it is only to such an
institution that relinquishment for the important purpose of adoption may be made.
Nevertheless, the statute retains in the parent or guardian the exclusive right to choose the
organization, institution or society, or the department of public welfare, to whom such
relinquishment may be made. This authority to choose such organization, institution or
society, etc., cannot be delegated to, or conferred by the parent or guardian upon, anyone else,
either expressly or by implication. The statute says, Where the parent or guardian
relinquishes * * *. (Italics mine.) Obviously, no one else is intended, or they would be
named in the statute, nor is the power to delegate the authority conferred, in the absence of
any statement in the statute from which such a legislative intent could be reasonably
implied.
the statute from which such a legislative intent could be reasonably implied. Such
interpretation is required by the rule of strict construction as to natural parents, above
mentioned. By reason of the strong ties of blood, and, normally, of love and affection,
existing between a child and the natural parent, it is reasonable to believe that the natural
parent, in most cases at least, will more earnestly and seriously than anyone else devote his or
her best efforts and thoughts to a wise, careful, and prudent selection of the relinquishee to
serve in the very serious and important task of acting in place of the natural parent in the
selection of the proposed adoptive parents. In the instant case, it does not appear that there
was any thought or intention on the part of Miss Schultz to delegate that authority to anyone
to act for her in choosing such an institution, but if there had been such intention on her part,
any such delegation of authority would have been manifestly void, being contrary to the terms
of the statute, which expressly and exclusively confines such authority to a parent or guardian
of the child. In the New York case of In re Anonymous, 178 Misc. 142, 33 N.Y.S.2d, 798,
wherein, like in the instant case, the names of the party or parties to whom the child was to be
surrendered or relinquished were left blank, the surrogate stated, in his opinion.
Nor can the agreement be treated as a surrender of the child within the meaning of section
111, subd. 4; such a surrender can be made only to an authorized agency. In the case at bar
the facts clearly indicate there was no surrender to an authorized agency.
The document involved being in blank as to the name of the party or parties to whom the
child was surrendered or relinquished, there was no surrender to an authorized agency. It was
simply an uncompleted, ineffective document. (Italics mine.)
For a review of Pennsylvania cases as to the effect of signing and acknowledging a
blanket consent, and an extensive discussion of the question, see In re Andrews, 14 D. &
C., Pa. p.
extensive discussion of the question, see In re Andrews, 14 D. & C., Pa. p. 343.
Beside failing to name the organization, institution or society to which the child was to be
relinquished, the release or relinquishment in the instant case, if attempted to be applied as a
relinquishment to an institution or other agency, does not comply with the statute, sec.
1065.02, Supp.1931-1941, N.C.L.1929, in other important respects as follows:
(a) It does not relinquish for the purpose of adoption only, but attempts to relinquish all
her rights to said child. This far transcends the authority conferred by the statute, which
provides for relinquishment merely for adoption. This, I believe, means that pending the
actual adoption and assumption by the adoptive parents of the rights and responsibilities
thereof, the natural parents, or parent (in the case of an illegitimate child), retain, under the
statute, their full rights and responsibilities as to the child. The function of such an
organization or institution is merely to select the proposed adoptive parents, and arrange for
and consent to the adoption, and, perhaps, to arrange, in the meantime, for a foster home,
subject to the approval of the department of public welfare. Indeed, under sec. 4 of the act of
1939, Stats.1939, p. 304, except for the purpose of adoption, assignment or transfer by a
parent, or parents, of rights to the permanent care, custody, and control of a child under
sixteen years of age is prohibited.
(b) There is nothing in the release or relinquishment providing that the relinquishee shall,
or agrees to, select the adoptive parents, or make arrangements for adoption, as is usual in
such documents.
(c) There is a mere request (not a consent) to any court of competent jurisdiction to enter
its order of adoption. This request is not confined to an adoption by proposed adoptive
parents selected by the organization or agency to which relinquishment has been made, but
could readily be construed to mean that Miss Schultz was requesting, or consenting in
advance to, adoption by anyone presenting a petition for adoption.
could readily be construed to mean that Miss Schultz was requesting, or consenting in
advance to, adoption by anyone presenting a petition for adoption. This would be contrary to
sound public policy, and far beyond the scope of the authority conferred by the statute.
It may well be noted at this point that the very language of this so-called release or
relinquishment indicates that it was drawn in the form and contains the provisions which
would be suitable for a transfer of all the rights of the mother to the child direct to proposed
adoptive parents. If so applied, the transfer of all rights, instead of a limitation of the rights
transferred to the purpose of adoption, and the omission of suitable provisions defining the
duty of the relinquishee as to selecting the proposed adoptive parents, and the failure to limit
the request (or consent) to the adoptees thus selected, becomes understandable. It is clear that
under the statute the natural parent could delegate her authority to choose and consent to the
adoptive parents only to a recognized organization, institution or society, or to the department
of welfare, and could not, therefore, be deemed to have intended to so delegate such authority
to the physician, or Mr. Halley. Obviously, therefore, neither of said persons could choose the
adoptive parents for her, without submitting their names to her, and affording her the
opportunity of selection or rejection. If, for instance, they had submitted to her the names of
Mr. and Mrs. Doe, and she had, in the exercise of her exclusive discretion, agreed to their
names being inserted in the said document, or had inserted the names herself, then, and in that
event, the language of the document would be suitable and fitting to properly and truly
describe the intended transaction. But in the absence of any report or submission to Miss
Schultz, by the physician or Mr. Halley, or anyone else, of the identity of the proposed
adoptive parents, and in the absence of all knowledge on her part as to their identity, there
could be no consent on her part to entering into any contract with them, nor selection of
such persons by her as the adoptive parents of her child.
with them, nor selection of such persons by her as the adoptive parents of her child. It is plain
that whoever actually selected Mr. and Mrs. Doe acted entirely without authority from Miss
Schultz, for she did not know of the existence of Mr. and Mrs. Doe, nor of their desire for the
child, and was afforded no opportunity to determine as to whether or not she was willing that
they adopt the child. From the form and language of the instrument, the draftsman, when
same was drawn, evidently intended the adoptive parents to be selected by Miss Schultz, but
their names were not submitted to her, and later it apparently was decided by some one to
usurp her sole authority, and transfer the child to a social welfare agency or institution,
namely, the Catholic Welfare Bureau, Inc.
If treated as an instrument in which only the names of the adoptive parents were omitted,
as the language clearly indicates that it should be, the supplying of the name of Catholic
Welfare Bureau, Inc., would constitute the creation, by the party or parties filling the blank
space, of an instrument which could only be created by Miss Schultz, and to do so she would,
of course, have had to possess sufficient knowledge as to the identity of the proposed
relinquishee to enable her to exercise her discretion in making the selection. The instrument
was simply not sufficiently completed to constitute a valid instrument or contract, and could
not be completed by anyone other than Miss Schultz, and she did not do so, nor did she
attempt to authorize anyone else to do so. In that connection see, particularly, 3 C.J.S.,
Alteration of Instruments, sec. 68, p. 978, and the authorities cited in footnote 19; also, 3
C.J.S., Alteration of Instruments, sec. 63, p. 977, and the authorities cited in footnote 12.
The so-called release or relinquishment in the instant case is, in my judgment, totally void
and of no effect, not only because the document was not sufficiently completed to constitute a
valid surrender agreement or relinquishment, either to an institution or directly, by Miss
Schultz, to any proposed adoptive parents, but, also, because, if attempted to be applied
to an institution or other agency, its provisions are so vague, indefinite and uncertain as
to render same unenforceable; also, because, in the instance mentioned, the document, in
my opinion, attempts to confer power and authority upon the relinquishee far in excess of
that authorized by the statute; and also, because it leaves the way open for approval of
adoption requests by others than those selected by such an organization, institution, or
society, which is contrary to sound public policy.
Schultz, to any proposed adoptive parents, but, also, because, if attempted to be applied to an
institution or other agency, its provisions are so vague, indefinite and uncertain as to render
same unenforceable; also, because, in the instance mentioned, the document, in my opinion,
attempts to confer power and authority upon the relinquishee far in excess of that authorized
by the statute; and also, because it leaves the way open for approval of adoption requests by
others than those selected by such an organization, institution, or society, which is contrary to
sound public policy.
The release or relinquishment being absolutely void, for the reasons stated, same could
confer no rights, either upon the Catholic Welfare Bureau, Inc., or upon Mr. and Mrs. John
Doe, who now have Baby Boy Schultz in their custody, by virtue of the said child being
delivered to them by such agency. In my judgment, any consent to adoption which may have
been or may hereafter be given by said agency to the adoption of said child by Mr. and Mrs.
Doe is, or will be, totally void, if based only upon such release or relinquishment. In the
absence of the consent of Grace Foote Schultz, the mother, they cannot validly or legally
adopt said child. They have the actual custody of the child, but, regardless of whether they
actually knew it or not, its delivery to them by the Catholic Welfare Bureau, Inc., not only
was legally unauthorized by the mother, but was directly contrary to the provisions of the act
approved March 25, 1939, Statutes 1939, p. 303, same being sections 1061-1061.04,
N.C.L.Supp. 1931-1941, because the approval of the state department of welfare to the
placing of said child was not obtained prior to such placement. Such delivery of custody
being thus illegal, no rights could be conferred thereby upon Mr. and Mrs. Doe. While the
position of Mr. and Mrs. Doe in this matter would be most unfortunate and regrettable if my
view should prevail, the rights of Grace Foote Schultz should, necessarily, be held
paramount, she being the natural mother of the child.
It would unduly lengthen this opinion to state in detail the many instances wherein I
consider Miss Schultz was treated unfairly, especially by the physician. His eagerness to favor
his friends, Mr. and Mrs. Doe, who were childless and desired to adopt a child, and, perhaps,
his desire to rid the hospital of the child, undoubtedly were the underlying causes which
prompted him to assume the initiative in having Miss Schultz execute the release and
relinquishment, and to move toward that end, and the delivery of custody to Mr. and Mrs.
Doe, with undue haste and little consideration for the rights or the condition of Miss Schultz,
who was ill and his patient at the time. In her humiliation and desolation of mind and spirit,
she was undoubtedly much under the influence of the physician's more dominant personality.
She did not receive that consideration, encouragement, and advice which was so essential to
enable her, freely and without the undue pressure of circumstances and personal influence of
others, to determine whether or not she wished to give up her child. If he had not been too
much in a hurry to get the job done and the child placed with Mr. and Mrs. Doe (such action
being doubtless prompted by the acts of the physician), Father Collins, who appears to have
been the medium through which the physician was acting to accomplish his objective quickly,
would probably have waited until Miss Schultz was sufficiently recovered from her illness to
keep her appointment with him, before placing the child, and would have ascertained she
desired to keep the child, and, perhaps, would not have proceeded to place same with Mr. and
Mrs. Doe; or, if he had reported the matter to the state department of welfare, which the said
statute of 1939 requires, before placing the child, Mr. and Mrs. Doe might have been spared
the heartache which would be theirs if the child were ordered to be returned to its mother,
pursuant to her paramount right as the natural parent. The policy of that department, as
testified to by Mrs. Bromberg, is to encourage the mother, under proper circumstances, to
keep her child.
Upon habeas corpus we should, to a reasonable extent, give consideration to the welfare,
best interest and happiness of the child. But, as has been well expressed in many cases,
differences in material circumstances alone will not justify depriving a natural parent of the
custody, love and affection of her child. This principle has been expressed in the case of In
Matter of Livingston, 2d Dept., 151 App.Div. 1, at page 7, 135 N.Y.S. 328, at page 332, as
follows:
While the right of the natural parents to the custody of their children is not a proprietary
right in the same sense as if the child were a chattel, and while it is accompanied by a
corresponding duty which arises from the relation of parent and child, it has ever been
regarded, even in primitive civilizations, as one of the highest of natural rights. The state
cannot interfere with this right simply to better the moral and temporal welfare of the child as
against an unoffending parent. If so, then the state might transfer the handsome child of poor
parents to the custody of a childless couple of wealth and moral refinement against the will of
the natural parent.
I have no doubt, from the evidence, that Mr. and Mrs. Doe are persons of education,
culture, refinement, and splendid character, and that Baby Boy Schultz has, and would
continue to have, a most excellent home, if left in their custody. Mr. Doe, however, is a
salaried official, in moderate financial circumstances, and there is nothing to show that Mr.
and Mrs. Ted Clapper, the stepfather and mother of Miss Schultz, are not able properly to
care for her and for the baby, and to afford them a fit and decent home. There is nothing in
the evidence which questions at all the good character of Miss Schultz, at the present time or
at any time, except as to her one misstep. We have not the right to require more.
There is in every child a natural longing for its natural parents, which increases with the
passing years, as the child grows up and becomes more developed, mentally and spiritually.
and spiritually. This is particularly true, I believe, as to the longing for its mother, which is a
biological human attribute, and which nothing but her presence, if living, can fully satisfy;
and for a child to be bereft of knowledge of his or her mother leaves in the human heart a
void or vacancy which naturally mars future happiness. It has, I believe, continuously since
the establishment of our territorial government, been the policy of this court to give
paramount consideration, in its decisions and rulings in legal proceedings, to the rights of the
natural parents, whenever and wherever reasonably practicable.
In the case of Jackson v. Spellman, 55 Nev. 174, at page 180, 28 P.2d 125, at page 127, 91
A.L.R. 1381, the late Mr. Justice Ducker, in beautiful and eloquent language, expressed this
policy as follows:
The act of adoption takes a child away from its parent by destroying the legal and natural
relation between them and creating in its stead an artificial relation deemed by law to be for
the best interests of the child. It is in derogation of the common law which regards the natural
rights of the parents to be of a sacred and enduring character. As the statute confers a special
power of this kind which may be exerted in opposition to the wishes, or without the consent
of the parents, it should be strictly construed in their favor. The courts are quite uniform in
applying the rule of strict construction in favor of the parents' natural rights in adoption
proceedings.
I believe that we should not depart from a policy so fully established and consistently
adhered to by this court, and which, in my view, is sound, both from a legal and a
humanitarian standpoint. The same result would be reached, in my opinion, in the instant
case, if the release and relinquishment could be held valid as to its execution, and the law as
to revocation of such an instrument were applied to the facts and circumstances of this case in
accordance with the great weight of American authority. I believe further that, under the facts
and circumstances of the case at bar, revocation would be indicated even under the
doctrine of the exceptional cases such as Lee v. Thomas, 297 Ky. S5S, 1S1 S.W.2d 457;
Wyness v. Crowley, 292 Mass. 459, 461, 19S N. E. 75S; and In re Adoption of a Minor, 79
U.S.App.D.C. 191, 144 F.2d 644.
circumstances of the case at bar, revocation would be indicated even under the doctrine of the
exceptional cases such as Lee v. Thomas, 297 Ky. 858, 181 S.W.2d 457; Wyness v. Crowley,
292 Mass. 459, 461, 198 N. E. 758; and In re Adoption of a Minor, 79 U.S.App.D.C. 191,
144 F.2d 644.
It is my opinion that this court should order the delivery of the custody of Baby Boy
Schultz to Grace Foote Schultz, his natural mother, the petitioner herein.
____________
64 Nev. 292, 292 (1947) Stephens v. First Nat'l Bank
UNA E. STEPHENS, Appellant, v. FIRST NATIONAL BANK OF NEVADA, Et Al.,
Respondents.
No. 3479
July 20 1947. 182 P.2d 146.
1. Attorney General.
The authority granted the attorney general to protect the interests of the United States in pending suits
must be exercised in conformity with the law and rules of procedure applicable to and governing the
particular courts in which such suits are pending. 5 U.S.C.A. secs. 309, 316, 317.
2. Courts.
Nevada courts derive their jurisdiction from the constitution and laws of the state and in matters of
civil practice and procedure they are dependent for their authority upon and are bound by the provisions
of the civil practice act and such other statutes as are applicable.
3. Courts.
The supreme court of Nevada has original jurisdiction only as to issuance of writs of mandamus,
certiorari, prohibition, quo warranto, and habeas corpus and also all writs necessary or proper to the
complete exercise of its appellate jurisdiction but other jurisdiction of the court is appellate, and the court
has no jurisdiction to try cases, either civil or criminal. Cont. art 6, secs. 4, 6.
4. Appeal and ErrorParties.
The statute providing for intervention before the trial necessarily means that intervention must be
had in the district court in any case involving more than $300. Comp. Laws. sec. 8563.
5. Parties.
In order to intervene, a person must have such an interest in the matter in litigation
that he would either gain or lose by the direct legal operation and effect of the judgment
which may be rendered in the suit between the original parties.
6. United States.
In an action between private litigants concerning the ownership of certain United
States savings bonds, the United States would neither gain nor lose in a pecuniary sense
as the direct result of the litigation as respects right of attorney general of United States
to intervene. Comp. Laws, sec. 8563.
In action involving ownership of United States savings bonds, the supreme court
was without power to grant motion of the attorney general of the United States for leave
to intervene in the proceedings for the first time on appeal in order to protect the
alleged interests of the United States. Comp. Laws, sec. 8563; Cont. art. 6, secs. 4, 6; 5
U.S.C.A. secs. 309, 316, 317; Second Liberty Bond Act, sec. 22, as amended, 31
U.S.C.A. sec. 757c; U.S.C.A. Cont. art. 6, cl. 2.
In the absence of statute the general rule is that there can be no intervention after the
case has reached an appellate court.
Appeal from First Judicial District Court, Ormsby County; Clark J. Guild, Judge.
Action between Una E. Stephens and First National Bank of Nevada and August A.
Glanzmann, as administrator of the estate of Paul F. Glanzmann, deceased, concerning the
ownership of certain United States Savings bonds, wherein Una E. Stephens appealed from
an adverse judgment. On suggestion by the Attorney General of the United States of the
interest of the United States in the matter in litigation and motion for leave to appear and
participate for the protection of the interest of the United States. Motion denied.
W. T. Mathews, of Carson City, for Appellant.
George L. Sanford and Richard R. Hanna, both of Carson City, for Respondents.
Miles N. Pike, U. S. Attorney, of Reno, in pro. per.
OPINION
The United States attorney for the district of Nevada, pursuant to the direction of the
attorney general of the United States, on January 21, 1947, appearing in his proper person,
filed in this court a paper or document entitled, Suggestion of the Interest of the United
States in the Matter in Litigation and Motion for Leave to Appear and to Participate in the
Litigation for the Protection of the Interest of the United States. In the prayer of the said
suggestion and motion, the United States prays.
1. That your petitioner be permitted to appear in these proceedings and to present, upon
proper leave granted, a brief setting forth the points and authorities relied upon by the United
States as the obligor of the bonds which are the subject matter of the action, to sustain its
contentions regarding the issue of the ownership of said bonds, and to be fully heard on oral
argument before this Court, for the purpose of presenting, and attending to, the interest of the
United States.
2. That this Court determine and decree the controlling force and effect of the federal
laws and regulations applicable to the ownership of the bonds in question, and render its
decision and judgment herein accordingly.
3. For such other and further relief as justice and equity may require.
If the above-quoted objectives stated in the prayer were the only objectives sought to be
accomplished by the appearance, the same could be as readily accomplished by requesting
leave to file a brief as amicus curiae, as was done in the lower court. But there are other
objectives stated on page 2 of the memorandum of authorities in support of the motion, same
being stated as follows: Participation of such limited character, however, is not deemed
sufficient, despite the fact that the United States Attorney accepts the record on appeal in its
present form and does not intend to seek permission to introduce evidence or otherwise
interfere with the orderly course of appellate procedure in this Court.
record on appeal in its present form and does not intend to seek permission to introduce
evidence or otherwise interfere with the orderly course of appellate procedure in this Court. It
is believed, however, that the appearance of the United States attorney, at the direction of the
Attorney General, to protect the interest of the United States, extends beyond the limited
status of amicus curiae, and entitles the United States Attorney to take whatever other steps or
proceedings may be legal or proper in the premises for the protection of the interest of the
United States. In the instant case, such other contemplated steps or proceedings might include
a petition for a rehearsing of an appeal from a decision adverse to the interests of the United
States.
Summarized, the reasons as stated in the said suggestion of interest, and in said
memorandum of authorities, for the motion for leave to appear in the manner and by the
method requested, are:
That the decision of the lower court in the instant case, wherein the laws of the State of
Nevada as to the ownership and devolution of personal property were applied in the
determination of the ownership of certain United States savings bonds involved in the
litigation, and registered, under the United States treasurer's rules and regulations, in the
names of appellant, Una E. Stephens and of Paul F. Glanzmann, now deceased, as co-owners,
is contrary to such rules and regulations of the secretary of the treasury (Treas. Dept. Car. No.
530, 5th Revision), promulgated pursuant to, and under the authority of, the second liberty
bond act, as amended. 31 U.S.C.A. sec 757c; that the decision and judgment of the lower
court constitute a variance from the uniform national interpretation as to bonds of that
character; that the application of the state law in the premises renders the United States
unable to fulfill its contractual obligation as to said bonds, and, therefore, that such decision
and judgment tends to obstruct and impede the United States in the exercise of its power to
borrow money, and are in contravention and violation of the supremacy clause, article VI,
clause 2, of the constitution of the United States.
money, and are in contravention and violation of the supremacy clause, article VI, clause 2, of
the constitution of the United States.
The United States attorney, in his memorandum of authorities, has set forth verbatim the
sections of 5 U.S.C.A., conferring certain authority upon the attorney general and upon the
solicitor general of the United States.
5 U.S.C.A. sec. 309, 316, 317, are, respectively, as follows:
Sec. 309. Conduct and argument of cases by Attorney General and Solicitor General.
Except when the Attorney General in particular cases otherwise directs, the Attorney General
and Solicitor General shall conduct and argue suits and writs of error and appeals in the
Supreme Court and suits in the Court of Claims in which the United States is interested, and
the Attorney General may, wherever he deems it for the interest of the United States, either in
person conduct and argue any case in any court of the United States is interested, or may
direct the Solicitor General or any officer of the Department of Justice to do so.
Sec. 316. Interest of the United States in pending suits. The Solicitor General, or any
officer of the Department of Justice, may be sent by the Attorney General to any State or
district in the United States to attend to the interests of the United States in any suit pending
in any of the courts of the United States, or in the courts of any State, or to attend to any other
interest of the United States.
Sec. 317. Superintending district attorneys and marshals. The Attorney General shall
exercise general superintendence and direction over the attorneys and marshals of all the
districts in the United States and the Territories as to the manner of discharging their
respective duties; and the several district attorneys and marshals are required to report to the
Attorney General an account of their official proceedings, and of the state and condition of
their respective offices, in such time and manner as the Attorney General may direct."
account of their official proceedings, and of the state and condition of their respective offices,
in such time and manner as the Attorney General may direct.
It is by virtue of the authority conferred upon him by section 316 that the attorney general
of the United States, acting by the United States attorney for the district of Nevada, moved,
by way of suggestion of the interest of the United States, to appear and participate in the
pending litigation, in this court.
Section 316 empowers the attorney general to send the solicitor general, or any officer of
the department of justice, to any state or district of the United States to attend to the interests
of the United States in any suit pending in any of the courts of the United States, or in the
courts of any State * * *.
1. It is obvious that the Congress of the United States, by such authorization of the
attorney general, did not intend to invest him with unlimited authority to attend to the
interests of the United States in pending suits in any manner, or at any time, or at any stage of
the proceedings, in such courts as he might see fit, but contemplated and intended, of course,
that such authority should be exercised in obedience to, and in conformity with, the laws and
rules of procedure applicable to, and governing, the particular courts in which such suits were
pending.
In 54 Am.Jur., sec. 121, p. 630, the rule, or principle, above indicated is set forth as
follows: Sec. 121. Application of General Rules of Procedure.In the absence of any
special statutory provision to the contrary, the United States, when bringing suit for the
vindication of its rights, is subject to the general rules of practice and procedure which govern
private litigants. The general rule that the United States is not bound by a statute, unless
expressly named therein, does not apply to legislative acts which prescribe the general rules
of procedure in civil actions. * * *; citing in support of the text: State of Ohio v. Helvering,
292 U. S. 360, 54 S.Ct. 725, 7S L.Ed.
78 L.Ed. 1307; United States v. Union Pac. R. Co., 105 U.S. 263, 26 L. Ed. 1021; United
States v. Thompson, 93 U.S. 586, 23 L.Ed. 982; Green v. United States, 9 Wall., U. S. 655,
19 L.Ed. 806; State ex rel. Hamilton v. Standard Oil Co., 190 Wash. 496, 68 P.2d 1031.
The United States attorney, in said memorandum of authorities, has cited numerous cases
from the federal courts, and a few from state courts, in which the attorney general of the
United States, acting usually through the United States attorney for the district in which the
suit in which he sought to appear was pending, has been permitted to appear, by way of
suggestion of the interest of the United States. It appears from the authorities that the cases in
which the attorney general, appearing by way of suggestion of the interest of the United
States, has been allowed to so appear in the first instance in an appellate court, other than the
supreme court of the United States when acting as a court of original jurisdiction and not as
an appellate court, are very few indeed. In suits between states, as in State of Florida v. State
of Georgia, 17 How. 478, 15 L.Ed. 181, in which the United States asserted an interest in
certain lands which would be affected by the determination of the boundary between the two
states, the attorney general, on behalf of the United States, was permitted to intervene, by way
of suggestion. This was eminently proper, because the United States had a direct, pecuniary
interest in the subject matter of the litigation, and the application was timely, being made
before trial and while the issues were in the formative stage.
It may be surmised that the principal reason why the United States has not more frequently
sought to intervene in appellate courts, state and federal, is that when the issues have been
completed and joined, the case tried, and the record completed and brought within the
jurisdiction of the appellate court, there is, in the absence of a permissive statute, no power or
jurisdiction in an appellate tribunal to change or alter the record of the case in any material
particulars, either by adding parties, or permitting new issues, or otherwise, unless very
exceptional circumstances exist.
case in any material particulars, either by adding parties, or permitting new issues, or
otherwise, unless very exceptional circumstances exist. Strict adherence to this principle is
essential in order to maintain the integrity (one may say) of appellate jurisdiction; also to
prevent appellate courts from transcending their authority, which is commonly
constitutionally prescribed, and assuming original jurisdiction which they have no
constitutional or statutory power to assume. It may readily be perceived that to sanction such
usurpation of authority by appellate courts would destroy the clear line of demarcation
between original and appellate jurisdiction. An appellate court, assuming such authority in the
absence of constitutional or statutory sanction, would, in the same case, be exercising original
jurisdiction as to the new parties and issues, and appellate jurisdiction as to the issues made
up in the lower court and properly part of the record on appeal. Such commingling of original
and appellate functions would, necessarily and most seriously, not only impair the regularity
and orderliness of appellate procedure, but its very integrity, as the record, if the alterations or
changes were material as to issues or parties, would be substantially different in the appellate
court than in the court from which appeal had been taken. It seems abundantly clear and
elementary that any material alteration of the record upon appeal would render impossible a
fair appraisal of the decision and judgment of the lower court involved. With new issues or
parties added, the appellate court would be passing upon a different appellate structure from
that originally certified to it upon appeal, such different structure including matters not before
the lower court, and which that court never had an opportunity to pass upon or decide. In
other words, error, under such circumstances, could readily be imputed to the lower court in
the light of new issues raised by an additional party or parties, which would thus be injected
into, or imposed upon the record, and upon which the lower court had had absolutely no
opportunity to adjudge or decree.
lower court had had absolutely no opportunity to adjudge or decree.
The federal cases of Roberts v. Calhoun County, Florida, 5 Cir., 137 F.2d 130, cited by the
United States attorney, sheds some light upon the scope and effect of an appearance by way
of suggestion of the interest of the United States. In that case the United States circuit court of
appeals for the fifth circuit, in its per curiam opinion, expressed doubt whether the United
States, which had so appeared in the lower court, was so far a party as to be entitled of right
to move for a rehearing. And the court was careful, in the opinion, to confine the scope and
effect of the appearance of the attorney general, by his subordinate, to that existing by such
appearance in the lower court, principally, it is believed, so as to preserve inviolate the
integrity of the record, which would have been violated had the United States been permitted,
upon appeal, to change the nature of its appearance to that of an actual party. In the instant
case, the United States attorney desires to change, upon this appeal, his appearance from that
of amicus curiae, merely, in the lower court, to the proposed appearance in this court by way
of suggestion of the interest of the United States.
The opinion in Roberts v. Calhoun County, Florida, supra, 5 Cir., 137 F.2d on page 131,
is, in part, as follows:
We doubt whether the United States is so far a party as to be entitled of right to move for
a rehearing. It cannot be made a party so as to be bound by a judgment unless a law
authorizes it. State of Minnesota v. United States, 305 U.S. 382, 388, 59 S.Ct. 292, 83 L.Ed.
235; Munro v. United States, 303 U. S. 36, 41, 58 S.Ct. 42, 82 L.Ed. 633. But a statute, R.S.
sec. 359, 5 U.S.C.A. sec. 309, provides that The Attorney General may, whenever he deems
it for the interest of the United States, either in person conduct and argue any case in any
court of the United States in which the United States is interested, or may direct the Solicitor
General or any officer of the Department of Justice to do so."
of the Department of Justice to do so. See, also, R.S. sec. 367, 5 U.S.C.A. sec. 316. It
appears from a certified copy now filed that this is in fact what was done in the court below,
the district attorney being allowed to appear to suggest the interest of the United States, rather
than the United States intervening as a party. The courts have always been ready to permit
such suggestion and assistance from the attorney general when the United States was not or
could not be a party. In the Schooner Exchange, 7 Cranch. 116, 117, 3 L.Ed. 287, the foreign
relations of the United States were involved, and the United States attorney was allowed to
appear and really conducted the defense of the cause. In State of Florida v. State of Georgia,
17 How. 478, 15 L.Ed. 181, the United States had an interest in land affected by the boundary
which was in dispute between the two States, and on full deliberation the attorney general
was allowed not only to appear and assist the court by argument, but to introduce evidence
and examine the witnesses, yet without making the United States a party or subjecting it to
judgment. So in Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259, where
officers of the United States were sued for land which was occupied by them for the United
States, the district attorney was held entitled to defend the case. Many other instances might
be cited. We will treat this motion for rehearing as a continuation of the appearance of the
attorney general by his subordinate, rather than a new one by the United States as a party. We
welcome any assistance to a correct decision.
But the appearance is in order to suggest and protect the interests of the United States and
not to aid or assist either litigant in the case. Even in a formal suit by the United States to
cancel its land patent, if it appears that the object is not to protect an interest of the United
States but to aid a private claimant, the suit should fail. United States v. San Jacinto Tin Co.,
125 U.W. 273, 8 S.Ct. 850, 31 L.Ed. 747. In the present case, if the motion for rehearing is
not to protect a real interest of the United States, or if it proposes to raise technical
objections to the doing of equity and justice, it ought not to be allowed to prevail.
if the motion for rehearing is not to protect a real interest of the United States, or if it
proposes to raise technical objections to the doing of equity and justice, it ought not to be
allowed to prevail. * * * We are of opinion that it is not made to appear that the United States
has any longer a real interest in the Bond Fund.
The federal cases treat the appearance by way of suggestion of the interest of the United
States as an intervention of a special kind, because the United States, in the absence of
express legislative authority by Congress, cannot be sued, nor, in the technical sense, be made
a party. This question of the status of the United States in private litigation is fully treated in
the case of Stanley v. Schwalby, 147 U.S. 508, 13 S.Ct. 418, 37 L.Ed. 259, in the opinion by
Mr. Chief Justice Fuller. It is notable that the federal cases frequently designate an application
by way of suggestion as an intervention. It is an intervention of a special kind, but
nevertheless characterized as an intervention. In Stanley v. Schwalby, supra, 147 U.S. 508, 13
S.Ct. on page 420, 37 L.Ed. on page 261, the language of the learned chief justice is: We
should remark, however, that from a very early period it has been held that even where the
United States is not made technically a party under the authority of an act of congress, yet,
where the property of the government is concerned, it is proper for the attorney for the United
States in intervene by way of suggestion. (Italics mine.)
In State of Florida v. State of Georgia, supra, in the able opinion by Mr. Chief Justice
Taney, 17 How. 478, 15 L.Ed. on page 190, the appearance by way of suggestion is
characterized as this intervention, in the following sentence: Nor is this intervention of the
United States derogatory to the dignity of the litigating States, or any impeachment of their
good faith. (Italics mine.)
The next question to be treated, and, it appears, the question really decisive of the motion
for leave to appear and to participate, in the first instance in this court, in the pending
litigation, for the protection of the interest of the United States, is: Has this court the
jurisdiction and power to allow the motion or to grant the leave sought by the United
States attorney, on behalf of the attorney general?
the pending litigation, for the protection of the interest of the United States, is: Has this court
the jurisdiction and power to allow the motion or to grant the leave sought by the United
States attorney, on behalf of the attorney general? In other words, have we the jurisdiction
and do we possess the power and authority to allow, or permit, the United States attorney,
acting for the attorney general of the United States, to intervene initially in this appellate
court, in the mode and manner and for the purposes set forth in the said document filed
January 21, 1947, at the request of the United States attorney?
2. Our Nevada courts, as do the state courts generally in the United States, derive their
power and jurisdiction from the constitution and laws of the state. In matters of civil practice
and procedure the state courts are dependent for their authority upon, and are bound by, the
provisions of our civil practice act and such other Nevada statutes as are applicable. Our
statute as to intervention is section 64 of the Nevada civil practice act, approved March 17,
1911, same being section 8563, N.C.L.1929, vol. 4, and is as follows: INTERVENTION,
WHEN IT TAKES PLACE, AND HOW MADE.COSTS. 64. Any person may, before
the trial, intervene in any action or proceeding, who has an interest in the matter in litigation,
in the success of either of the parties, or an interest against both. An intervention takes place
when a third person is permitted to become a party to an action or proceeding between other
persons, either by joining the plaintiff in claiming what is sought by the complaint, or by
uniting with the defendant in resisting the claims of the plaintiff, or by demanding anything
adversely to both the plaintiff and the defendant; and is made by complaint, setting forth the
grounds upon which the intervention rests, filed by leave of the court and served upon the
parties to the action or proceeding who have not appeared, and upon the attorneys of the
parties who have appeared, who may answer or demur to it as if it were an original
complaint.
demur to it as if it were an original complaint. The court shall determine upon the
intervention at the same time that the action is decided; if the claim of the party intervening is
not sustained he shall pay all costs incurred by the intervention.
3. This court has original jurisdiction only as to the issuance of writs of mandamus,
certiorari, prohibition, quo warranto and habeas corpus; also all writs necessary or proper to
the complete exercise of its appellate jurisdiction. All other jurisdiction of this court is
appellate. We have no jurisdiction to try cases, either civil or criminal. That jurisdiction is
original, and, in cases of the class of the instant case, is conferred only upon the state district
courts. Constitution of Nevada, sec. 4, art. VI, as to the jurisdiction and powers of the
supreme court, and sec. 6, art. VI, as to the jurisdiction of district courts, same being,
respectively, sec. 112 and sec. 114, N.C.L.1929, vol. 1.
4. Referring again to our intervention statute, supra, same makes provision for
intervention before the trial. This necessarily means that such intervention must be had in
the district court, in any case of the same class as the instant case, which is a case involving
more than $300. The statute makes no provision for intervention in the supreme court, in any
case, at any stage of the proceedings, or at all.
5, 6. Intervention is confined by the statute to any person * * * who has an interest in the
matter in litigation. In the case of Harlan v. Eureka Mining Co., reported in 10 Nev.R. 92,
the pith of the opinion, by Mr. Chief Justice Hawley, upon the question of what is such an
interest as will afford one the right to intervene, occurs on pages 94 and 95 of 10 Nev. as
follows: As a general rule, we think it is well settled that to entitle a person to intervene he
must have such an interest in the matter in litigation that he would either gain or lose by the
direct legal operation and effect of the judgment which might be rendered in the suit
between the original parties."
which might be rendered in the suit between the original parties.
Whether the attorney general, acting by the United States attorney, on behalf of the United
States, has alleged, in his suggestion of the interest of the United States in the pending
litigation, sufficient interest in the matter in litigation within the meaning of our statute as to
intervention, it is unnecessary for this court to decide. It is clear that the United States would
neither gain nor lose, in a pecuniary sense, as the direct result of the litigation.
7. The obligation of the government of the United States, as the obligor of the bonds
involved, would be the same whether the ownership thereof is finally determined to be in the
plaintiff, or in the estate, or administrator, of the deceased, Paul F. Glanzmann. But, be that as
it may, the fact remains that the pending motion to appear and to participate in the litigation
for the protection of the interest of the United States, if permitted, would be, in its nature and
effect, an intervention. As has been shown, it has been so designated by the supreme court of
the United States upon several occasions, and, we may add, by many other federal courts.
Being an intervention to all intents and purposes, and not being filed in the trial court (the
First judicial district court, in and for the county of Ormsby) before the trial, or at all, and
having been, in the first instance, presented and filed in the supreme court which is without
power or jurisdiction to entertain such a motion to intervene, even if we should assume that
the interest of the United States in the matter in litigation is sufficient to entitle it to intervene,
in the proper tribunal, within the time fixed by the statute, we do not perceive how it is
possible for us, within the limitations of our jurisdiction and authority, to entertain the
motion. (Italics mine).
We will, however, consider, and cite, a few of the many authorities available which serve
to enlighten as to the state of the law, generally, having relation to the question involved,
in its various phases.
authorities available which serve to enlighten as to the state of the law, generally, having
relation to the question involved, in its various phases. We believe these authorities, which
are in point as to the principles involved, will indicate the correct conclusion.
The United States attorney, it appears, has cited but one case in which the United States
has sought to intervene, in the first instance, in an appellant court of a state, by way of
suggestion of the interest of the United States. That case is Anderson v. N. V. Transandine
Handelmaatschappij, 289 N.Y. 9, 43 N.E.2d 502, in which, while an appeal was pending in
the court of appeals of New York, the United States attorney for the Southern district of New
York applied, at the direction of the attorney general of the United States, acting at the
instance of the department of state, for leave to make formal representation to the said court
as to the formulation by the state department of a policy with reference to the decree of May
24, 1940, of the Royal Netherlands Government, affecting the property of nationals of that
government located within the United States. The court granted such leave. It will be noted
that the secretary of state found that the result of the decision of the supreme court of the
State of New York, 28 N.Y.S.2d 547, as affirmed by the appellate division, 263 App. Div.
705, 31 N.Y.S.2d 194, was in harmony with the policy of the United States, and that the
department, by such suggestion of interest, was not seeking to reverse such results, but merely
sought to prevent the court from expressing any view with the respect to the effectiveness of
the Decree as applied to persons and circumstances other than those referred to in the
statement of policy * * * [289 N.Y. 9, 43 N.E.2d 506]. And the court of appeals, in
considering the matter, stated: In answer to the question whether the courts must give effect
to the mere formulation of a public policy by the State Department in respect to the effect of a
decree of a foreign State relating to property within a State, regardless of whether such decree
offends the public policy of the State, might involve very serious consequences in other
cases.
policy of the State, might involve very serious consequences in other cases. It can have no
consequence where, as here, the public policy so formulated accords with the public policy of
the State. For that reason we do not now consider or decide the question.
It is clear that the granting of leave to appear did not introduce into the case any
controversial question, and had little, if any, effect.
The question of intervention in cases or proceedings pending in appellate courts is treated
in 4 C.J.S., Appeal and Error, sec. 402, p. 865, as follows: The practice as to the intervention
or addition of new parties in an appellate court is not uniform. Intervention is sometimes
permitted as an exercise of the inherent power of the court, or because the case falls within a
permissive statute. Intervention, under such circumstances, is more frequently allowed where
the new party to the appeal was a party to the proceedings below. On the other hand, in the
absence of a permissive statute, intervention has been denied, particularly where the new
party was not a party to the judgment or decree entered in the court below, and in no way
affected by the judgment, or where the intervention raises new issues. It would also seem that
a necessary party cannot be added after the expiration of the time for commencing the
proceeding in error.
8. From the authorities cited to the above text, and other authorities, it is apparent that, in
the absence of a permissive statute, such as does not exist in Nevada, the great weight of
authority is opposed to intervention after a case has reached an appellate court. Doubtless this
is because same tends toward, if it does not actually produce, a confusion as between original
and appellate jurisdiction, occasioned by the introduction of new issues of fact or law by the
intervening parties, upon which the lower court has had no opportunity to pass. Frequently, if
permitted during the latter stages of an appellate proceeding, it would afford the new party, or
parties, the position of appellants long after the time to appeal had expired, and the bill of
exceptions or record on appeal completed, thus lessening the opportunity of the
adversary to meet such new issues.
expired, and the bill of exceptions or record on appeal completed, thus lessening the
opportunity of the adversary to meet such new issues. It is not conducive to orderly
procedure, and, we believe, not contributory to the accomplishment of justice, to allow
intervention in the appellate court, other than to accomplish the substitution of parties in the
case, because of death or for other good cause, and for like harmless purposes.
In Walter Bledsoe Coal co. v. Review Board of Employment, etc., Ind.App., 42 N.E.2d
1021, 1022, a motion to amend an assignment of errors, by adding the names of forty-six
omitted persons, was granted in the lower court, and the assignment of errors was thus
amended. The appellate court set aside the ruling, or order, granting the privilege to amend
said assignment, and in that connection stated: The requirement that all parties to the
judgment be named in the assignment of errors is jurisdictional. When parties affected by the
judgment adverse to appellants are not before the court, this court has no jurisdiction and is
powerless to permit amendment bringing in additional parties after the time for appeal has
expired. In re Wiles (In re Gibbs), 1934, 208 Ind. 271, 195 N.E. 572; Harrah v. Lansing State
Bank, 1937, 103 Ind.App. 519, 4 N.E.2d 686; Second National Bank of Robinson, Ill. v.
Scudder, 1937, 212 Ind. 283, 6 N.E.2d 955; Carpenter v. Amoss, 1934, 99 Ind. App. 286, 192
N.E. 168; Gary State Bank v. Gary State Bank, 1936, 102 Ind. App. 342, 2 N.E.2d 814.
In Scrugham et al v. Shoup et al., 256 F. 325, the circuit court of appeals for the third
circuit, in an opinion by Woolley, circuit judge, in considering certain petitions for
intervention, on page 327 of 256 F. stated: An examination of these petitions shows that the
questions of law they raisewhile related perhaps to the questions in this caseare not
predicated on a like state of facts and are not the same questions of law. Being different
questions newly raised, we are not required to entertain them on this appeal when they have
not been presented to nor passed on by the court below, nor are we disposed further to
involve this complicated case by injecting new questions on the eve of its decision."
we disposed further to involve this complicated case by injecting new questions on the eve of
its decision.
In the case of In re Determination of Relative Rights to Use of Waters of Deschutes River,
Or., 108 P.2d 276, on page 284, it is stated in the opinion by the supreme court of Oregon:
Application has been made by the City of Redmond for permission to intervene in this
appeal. In its petition it asserts that it was not served with notice of the filing of the
application by the Broughtons for an extension of time and apparently desires this court to
determine whether or not it was served, by considering evidence other than that presented
before the state engineer or the circuit court. This is an appellate court and not a court of
original jurisdiction except in specified instances, of which this is not one. Therefore, the
petition to intervene must be denied.
The case of Guaranty Trust Co. of New York v. Minneapolis & St. L. R. Co., 8 Cir., 36
F.2d 747, was a mortgage foreclosure suit. The Hawley committed, which represented
holders of bonds under a refunding and extension mortgage, sought to intervene in the
appellate court after the case had been set down for oral argument. The court, in its opinion,
on page 762 of 36 F.2d stated: By final decree the court adjudged that these deposited bonds
were existing obligations of the mortgagor secured by this mortgage. The decree is presumed
to be sustained by the evidence. The issue, not having been raised in the trial court, cannot
properly be urged in this court on appeal. These parties, having sat idly by during the trial,
and until after all the appeals were perfected and the time for appeal had expired, are not now
entitled to urge this question in this court. They are not appellants, they have filed no
assignments of error in the lower court, and the time for appeal had expired before they
applied for leave to intervene in this court. To permit questions of such grave importance to
be so raised would demoralize and make impossible the orderly conduct of litigation. The
intervention should be dismissed.
In Vaughan et al. v. Latta, 168 Okl. 492, 33 P.2d 795, on pages 796, 797, Mr. Justice Welch,
in the opinion of the court stated:
The effect of the failure to make the town a party apparently came to the attention of the
plaintiff, and a subsequent effort was made to name the town as a party. However, this effort
came long after judgment in the trial court, and long after this appeal had been lodged in this
court. Judgment was rendered in the trial court, on December 22, 1931, and this appeal
lodged here June 18, 1932. Plaintiff in error filed brief January 7, 1933. Thereafter, in May
1933, the board of trustees adopted a resolution to intervene in the case, both in the trial court
and in this court. The trial court then permitted the town to intervene there, and thereafter, in
August, 1933, the town purported to intervene here. The town presents a brief, but no
authority is cited by the town or the plaintiff for such addition of a necessary party in this
court, who was not a party in the trial proceedings. To state the proposition would seem to
answer the question that it cannot be done, as this court on appeal can consider only that
which is contained in the record from the trial court.
In the case of In re Waters of Chewaucan River, 89 Or. 659, 171 P. 402, 175 P.421, the
Supreme Court of Oregon said: The Supreme Court is a court of appellate jurisdiction only,
and cannot admit interveners who were strangers to the proceeding below.'
And in Youngberg v. Youngberg, 44 S. D. 1, 181 N.W. 835, The Supreme Court of South
Dakota said: Intervention should not be allowed for the first time in the appellate court,
under Rev.Code 1919, sec. 2322.'
The above cases are confirmatory of our view. Many more could be cited. They constitute
the greater weight of authority.
Whether viewed from the standpoint of lack of jurisdiction and power under our
constitution and laws, or from the standpoint of adherence to sound rules of orderly and
regular procedure, the result indicated is the samethat the motion should be denied.
orderly and regular procedure, the result indicated is the samethat the motion should be
denied.
This court, however, does not wish to convey the impression that we are unmindful of the
reasons so earnestly advanced by counsel for the United States in support of the motion to
appear and participate in the litigation. After all, their fundamental desire in this matter is to
accomplish the application in the instant case of the second liberty bond act, as amended, 31
U.S.C.A. sec. 757c, and the regulations promulgated thereunder by the secretary of the
treasury (Treas. Dept. Car. No. 530, 5th Revision), and preceding and succeeding revisions
thereof. The prevention of the consequences which counsel for the government envisage if
such application is not made, would thereby be accomplished.
It is needless to say that this court, in passing upon the appeal in the instant case, earnestly
desires to apply the federal constitution, laws, and regulations, and the state laws, each in
their own proper sphere and to the extent that sound rules and principles of constitutional and
statutory interpretation and construction indicate to be correct. To that end, we would
welcome such enlightenment and assistance as counsel for the United States may furnish us,
should they be willing to file a brief in this court as amici curiae.
For the reasons indicated, it is ordered that the motion of the United States attorney for
leave to appear and to participate in the instant litigation, for the protection of the interest of
the United States be, and same is, hereby denied.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the preparation and rendition of the
foregoing opinion.
____________
64 Nev. 312, 312 (1947) Reno Club v. Young Investment Co.
RENO CLUB, Inc., a Corporation, Appellant, v. YOUNG INVESTMENT CO., a
Corporation, Respondent.
No. 3478
July 7, 1947. 182 P.2d 1011.
Under option agreement which recited in first sentence that lessor gave and thereby granted an option
to lease described premises upon termination of one year lease, and recited in second sentence that in
event general war had not been concluded and peace treaties executed at the end of one year, this
option should continue from month to month thereafter until general treaty of peace had been concluded,
the optionee was given a definite and positive right to exercise option upon termination of the one year
lease regardless of whether general war had been concluded and peace treaties executed.
Continue within option to lease described premises upon termination of one year lease provided
that in the event general war had not been concluded at end of one year this option should continue
from month to month thereafter until general treaty of peace had been concluded, presupposed or
assumed the immediate existence of an option which was not dependent for its being upon conclusion of
the war.
3. Contracts.
The court may not create for the parties a new contract which they have not created or intended
themselves.
Continue within option agreement providing that in the event general war had not been concluded
in one year option should continue from month to month until general treaty of peace had been
concluded meant to prolong or extend that which was already in existence and could not be construed to
mean postpone which means to put off or defer the coming into existence of a right, obligation,
condition or other thing.
5. Contracts.
Words in a contract must be presumed to have been used in their ordinary sense, and must be given
the meaning usually and ordinarily attributed to them, in the absence of clear evidence of a different
intention.
An option agreement giving and granting an option to lease described premises upon termination of
one year lease and providing that in event general war had not been concluded at the end of one year then
this option should continue from month to month thereafter until general treaty of peace had been
concluded contained no ambiguity or uncertainty which would permit of judicial construction.
7. Contracts.
A contract should be construed, if possible and legally, to effectuate valid contractual relations, rather
than in a manner which would render the contract invalid, or render performance impossible.
8. Contracts.
A contract should not be construed so as to lead to an absurd result.
9. Contracts.
A contract should be given a reasonable and fair interpretation.
10. Contracts.
A fixed period in which an option or other similar agreement shall be operative is essential to its
validity.
11. Pleading.
Allegations of amended complaint were to be taken as true for purpose of demurrer.
An option to lease described premises upon termination of one year lease with provision that in event
general war had not been concluded at end of one year the option should continue from month to month
until general treaty of peace had been concluded would not be construed as being ineffective after
expiration of the one year until peace treaties had been concluded, since such construction would result in
invalidity, an absurd result, and would not be reasonable and fair.
13. Contracts.
Courts properly consider interpretation which parties themselves, by words or actions, have placed
upon contracts.
14. Equity.
Equity regards substance and not form, in the interest of real justice, unhampered by too great
adherence to technicality.
15. Specific Performance.
In action against lessor for specific performance of option to lease premises which lessee occupied at
time of option under an unexpired lease with option to renew but which lessee desired to surrender for
duration of war, where parties had several times theretofore renewed original lease between them,
complaint would be construed as alleging in effect that unexpired portion of last renewal lease should be
restored to leasee, and as alleging an option in which provisions and covenants of original lease were
implied in fact, and as so construed complaint was not incomplete, uncertain or ambiguous as failing to
allege all essential elements of option.
Action by Reno Club, Inc., against the Young Investment Co. for specific performance of
a contract to lease property. From a judgment dismissing the complaint, plaintiff appeals.
Reversed and cause remanded with instructions.
M. A. Diskin, of Reno, for Appellant.
Morgan, Brown & Wells and Harland L. Heward, all of Reno, for Respondent.
OPINION
This is an action for specific performance. Appellant will be referred to herein as plaintiff,
respondent as defendant.
The defendant, in the district court, demurred to the amended complaint, the demurrer was
sustained, the plaintiff elected to stand upon its amended complaint, and judgment of
dismissal was thereupon ordered by that court, and this appeal is from such judgment.
Besides the formal allegations, it was alleged, in substance, in the amended complaint that
the defendant corporation, at all times mentioned therein, was the owner of the premises
consisting of that certain storeroom and basement known as 232 North Virginia Street, Reno,
Washoe County, Nevada, in what is known as the Quinn Building, together with the
appurtenances, certain fixtures and personal property situated upon said premises.
That on the 29th day of October 1934, defendant, as lessor of the above described
premises, made, executed and delivered to plaintiff, as lessee, a written lease for the period
beginning October 27, 1934, and ending October 26, 1937, at a monthly rental of $250, the
first and last month being paid in advance; that under the terms and provisions of said lease,
plaintiff, as lessee, was granted the option of extending said lease for an additional period
of three years; that immediately after the execution of said lease, plaintiff entered into
possession of said premises, and fully complied with the terms thereof.
terms and provisions of said lease, plaintiff, as lessee, was granted the option of extending
said lease for an additional period of three years; that immediately after the execution of said
lease, plaintiff entered into possession of said premises, and fully complied with the terms
thereof.
That, pursuant to the said option for three years' extension of said lease, the defendant, on
August 29, 1936, granted plaintiff, as lessee, an extension of said lease, from October 26,
1937, to October 26, 1940, under the same terms and conditions as in the original lease, and
at the same time, in the same instrument, the defendant, as lessor, gave and granted to
plaintiff, as lessee, an option for a further extension of said lease, and said lease was
thereupon renewed for a period expiring October 26, 1943.
That on November 25, 1939, by an agreement in writing, and for the consideration therein
expressed, the defendant, as lessor, gave and granted plaintiff, as lessee, the right and option
to extend or renew the lease dated October 29, 1934, to and including October 26, 1948,
under the same terms and conditions.
That during all the time mentioned in the amended complaint, and to and including May
11, 1942, plaintiff was in possession of the said premises, and had fully complied with all the
terms of said lease and extensions thereof; that plaintiff, at great cost and expense, had fitted
and furnished the said premises with a complete Tango counter, and 100 cushioned stools,
and a complete public address system with microphones, together with office equipment and
furnishings.
That on May 11, 1942, plaintiff was in complete possession of the premises hereinabove
described, and had complied with all the provisions of said lease, and was entitled to retain
possession of the said premises as lessee until October 26, 1943, and, as above stated, owned
and possessed a written option for an extension of said lease until October 26, 1948. That on
said May 11, 1942, the defendant promised and agreed with the plaintiff that if plaintiff
would surrender possession of said premises, and would surrender said lease and option
for renewal, to defendant for cancellation, that defendant would immediately make,
execute, and deliver to plaintiff a written option, under the terms of which plaintiff would
have the right at any time after one {1) year from May 11, 1942, to lease the aforesaid
premises for a period extending to October 26, 194S, at a rental of $350 per month.
11, 1942, the defendant promised and agreed with the plaintiff that if plaintiff would
surrender possession of said premises, and would surrender said lease and option for renewal,
to defendant for cancellation, that defendant would immediately make, execute, and deliver to
plaintiff a written option, under the terms of which plaintiff would have the right at any time
after one (1) year from May 11, 1942, to lease the aforesaid premises for a period extending
to October 26, 1948, at a rental of $350 per month.
That on May 11, 1942, in reliance upon said representations and agreement of defendant,
plaintiff surrendered possession of the aforesaid premises to defendant, and delivered to
defendant for cancellation the aforesaid lease and option for renewal, and thereupon the
defendant prepared, executed, and delivered to plaintiff an option in words and figures as
follows, to wit:
Reno, Nevada,
May 11, 1942
Reno Club, Inc.
Reno, Nevada.
Gentlemen:
In consideration of the sum of $1.00 paid to the undersigned, Young Investment
Company, a corporation, together with other good and valuable consideration, the
undersigned hereby gives and grants to the Reno Club, Inc., or to its assigns, the exclusive
right and option to lease the premises known as 232 North Virginia Street, Reno, Nevada,
together with the appurtenances, fixtures, trade fixtures and equipment now therein, upon the
termination of a lease which the undersigned has executed to William Harrah, which lease
extends for a period of one year.
In the event that the general war in which the so-called United Nations' are at war with
the Axis Nations of the world has not been concluded and peace treaties executed at the end
of one year, then this option shall continue from month to month thereafter until the general
treaty of peace has been concluded between the Axis Nations on the one part and the
United Nations on the other part.
general treaty of peace has been concluded between the Axis Nations on the one part and the
The lease for which this option is given shall be for a term which is to be concluded
October 26, 1948, and the rental shall be $350.00 per month.
Young Investment Company,
By F. P. Quinn
Seal President
Wm. M. Kearney
Secy.
The foregoing allegations of the amended complaint are followed by other allegations
therein appropriate to complete the statement of a cause of action for specific performance.
The plaintiff, in the prayer to the amended complaint, demands judgment that the
defendant be required to specifically perform the said agreement, and to execute and deliver a
lease for the premises described, and to let plaintiff into possession thereof, and for such
further relief as may be equitable, and for costs of the action.
The defendant demurred to the amended complaint upon the following grounds:
I. That the said amended complaint does not state facts sufficient to constitute a cause of
action.
II. That the allegations contained in the second sentence in paragraph VII of plaintiff's
amended complaint are uncertain in that it cannot be determined therefrom, or at all, when the
improvements were made upon the premises in question, what the cost of the improvements
was at the time they were constructed and what the value of said improvements now is.
The district court sustained the defendant's said demurrer, and District Judge McKnight, in
his written order so doing and ordering that judgment of dismissal be entered, stated, as
grounds and reasons for sustaining the demurrer, the following:
(a) That under the terms of the option agreement set forth in Paragraph IX of the
amended complaint, the plaintiff has no legal right to demand a lease from defendant for
the premises described, until the general Peace Treaties have been concluded between
the United Nations and the Axis Nations.
set forth in Paragraph IX of the amended complaint, the plaintiff has no legal right to demand
a lease from defendant for the premises described, until the general Peace Treaties have been
concluded between the United Nations and the Axis Nations.
(b) That plaintiff's action in instituting this suit is premature, and no legal obligation
exists in defendant to execute to plaintiff a lease for the said premises until the Peace Treaties
between the United Nations and the Axis Nations are concluded.
(c) That the memorandum agreement set forth in Paragraph IX of said amended
complaint, is incomplete, uncertain and ambiguous in its provisions, and not capable of being
specifically performed.
We are, on this appeal, required to determine the correctness of the district court's
foregoing order sustaining the demurrer and ordering the entering of judgment of dismissal.
1. The option agreement appears to be in ordinary and plain language. Its meaning seems
clear. With a usual recital as to consideration, it unequivocally and unconditionally, in the
first paragraph of the option, in the form of a letter, hereby gives and grants to the Reno
Club, Inc., or to its assigns, the exclusive right and option to lease the premises known as 232
North Virginia Street, Reno, Nevada, together with the appurtenances, fixtures, trade fixtures
and equipment now therein, upon the termination of a lease which the undersigned has
executed to William Harrah, which lease extends for a period of one year. There is no
condition or proviso attached to the sentence, to the effect that the option, or the right to
exercise it, is conditional upon the conclusion of the war, or the execution of any peace treaty,
or treaties. By the language used, gives and grants hereby, the conclusion that the defendant
thereby agreed to, and granted, an immediate and unconditional option to lease the said
premises upon the termination of a lease which the undersigned has executed to William
Harrah, which lease extends for a period of one year," seems clearly indicated. The
optionee, Reno Club, Inc., was given the definite, positive right to exercise the option
upon the termination of the Harrah lease, at the end of the year for which said lease had
been given, and regardless and irrespective of whether or not the general war mentioned
in the next paragraph of the option had been concluded and a peace treaty or treaties
executed.
termination of a lease which the undersigned has executed to William Harrah, which lease
extends for a period of one year, seems clearly indicated. The optionee, Reno Club, Inc., was
given the definite, positive right to exercise the option upon the termination of the Harrah
lease, at the end of the year for which said lease had been given, and regardless and
irrespective of whether or not the general war mentioned in the next paragraph of the option
had been concluded and a peace treaty or treaties executed.
It appeared from the oral argument, at one point, that the Reno Club, Inc., was then owned
by an enemy alien, who, doubtless for reasons of a personal nature, might not desire, or deem
it expedient, to resume active business of the nature in which he had been engaged under the
original lease and the renewal he was surrendering, until the war had been concluded.
Carrying out that idea, or policy, he doubtless contemplated that if the war had not been
concluded and peace treaties executed, or, at least, if the war had not been concluded, by the
end of the one-year term of the Harrah lease, he would not be in a position to exercise the
option as provided in the first paragraph thereof, that is upon the termination of the Harrah
lease, but would need more time.
Apparently, because of that situation paragraph two was included. Paragraph two of the
option letter contains the words this option, meaning the option which had been, as above
stated, positively and unconditionally granted by the preceding paragraph one, and provided
for its continuance or extension, subject to the condition precedent that the general war in
which the so-called United Nations' are at war with the Axis Nations of the world has not
been concluded and peace treaties executed at the end of one year.
2. Not only do we have, in paragraph one, language sufficient to show that the parties
intended an option in praesenti, to come into existence immediately upon the option being
signed and delivered to plaintiff, and, in paragraph two, such option designated as "this
option" {an existing option, and not a proposed or deferred option), but also by the use of
the word "continue," with its unmistakable meaning, as said word is defined in the
dictionaries and applied by numerous legal authorities, we have a situation wherein the
parties must be deemed to have presupposed or assumed the immediate existence of the
option.
option being signed and delivered to plaintiff, and, in paragraph two, such option designated
as this option (an existing option, and not a proposed or deferred option), but also by the
use of the word continue, with its unmistakable meaning, as said word is defined in the
dictionaries and applied by numerous legal authorities, we have a situation wherein the
parties must be deemed to have presupposed or assumed the immediate existence of the
option. It is only an existing condition or thing, and not something which has not yet come
into existence, which, according to the ordinary, plain and usual meaning of the word
continue, may be continued.
The word continue is defined in Webster's New International Dictionary, p. 487, as
follows:
1. To remain in a given place or condition; to remain in connection; to abide; to stay.
2. To be permanent or durable; to endure; to last.
3. To be steadfast or constant in any course; to persevere; abide; endure; persist; to keep up
or maintain a particular condition, course, or series of actions.
1. To unite; to connect.
2. To protract or extend in duration; to persevere or persist in; to cease not.
3. To carry onward or extend; to prolong or produce; to add to or draw out in length,
duration or development.
4. To retain; to suffer or cause to remain.
It will readily be perceived that all the different phases of the definition, and all phases of
meaning, of the word continue disclose that it presupposes, and relates in its operation, to
an existing thing or condition, or to an existing right, obligation, cause of action, law, or other
thing.
To continue means to keep on. H. F. Wilcox Oil & Gas Co. v. Lewis, 173 Okl. 640, 49
P.2d 782, 786; Bridges v. Koppelman, 63 Misc. 27, 35, 36, 37, 117 N.Y.S. 306, 312,
(applying Webster's foregoing definitions).
In Patterson v. Rousney, 58 Okl. 185, 159 P. 636, 639, it is stated, on pages 639, 640:
Webster defines the word continue' to mean: "'{2) To protract or extend in duration; to
preserve or persist in; to cease not; {3) to carry onward or extend; to prolong or produce;
to add to, or draw out in length, duration, or development; {4) to retain, suffer, or cause
to remain.'
(2) To protract or extend in duration; to preserve or persist in; to cease not; (3) to carry
onward or extend; to prolong or produce; to add to, or draw out in length, duration, or
development; (4) to retain, suffer, or cause to remain.'
Giving the word continue' the meaning ascribed thereto by Webster, it means that the
right to institute an action upon an existing right, contract or claim shall remain or extend or
be prolonged the same length of time as if no change had taken place. Had no change taken
place the plaintiff's right to institute suit upon the note would have been extended, continued,
or prolonged for a period of 5 years from the date it matured, and this construction gives
harmony and symmetry to the Constitution, effects the change without confusion, and brings
about a result that is just, equal, and right. We are not without legal definition of the word
continue' to support us in this view. In Williams, Adm'r, v. United States, 154 U.S. 648, 14
S.Ct. 1188, 25 L.Ed. 309, a surgeon in the Continental Army who accepted an appointment in
the new regiment of guards authorized by the resolution of January, 9, 1799, was held not to
continue in service until the end of the war,' within the meaning of the resolution of Congress
under which the claim in that case was made, the reason that the service was not continuous
but was interrupted and broken by his reenlistment in another branch of the service.
In Bridges v. Koppelman, 63 Misc. 27, 117 N.Y.S. 306, the sixth paragraph of the
syllabus is as follows:
The word continue, as used in Civil Code Procedure, 26, providing that a special
proceeding pending may be continued from time to time before one or more of the judges of
the court, means to keep up, to protract or extend in duration, to extend, or prolong.'
In Engmann v. Estate of John Immel, Deceased, 59 Wis. 249, 18 N.W. 182, in defining
the word continue' under a statute providing that payment upon an existing claim shall be
sufficient evidence upon a new or continuing contract, said: "'The word "continuing," as
here used has the natural meaning of perpetrating, protracting, or prolonging from one
time to another.'
The word continuing, as here used has the natural meaning of perpetrating,
protracting, or prolonging from one time to another.'
It appears that the purpose of adopting the provisions of the Schedule is, as expressed
therein, to declare that existing rights, contracts, and claims shall continue as if no change in
the form of government had taken place; that is, they shall continue to exist and be capable of
enforcement without being liable to be defeated by the plea of limitation for the same period
of time they would have thus continued under the laws in force at the time the cause of action
accrued.
It will be noted that, among other cases, the supreme court of Oklahoma, in the above
excerpt from their opinion, have cited, and quoted from Bridges v. Koppelman, supra.
See, also, numerous other cases referring to, and applying the meaning of the word
continue, cited and digested in vol. 9 Words and Phrases, Perm.Ed., pages 163-167.
The lower court, in holding that under the terms of the option agreement set forth in
paragraph IX of the amended complaint, the plaintiff has no legal right to demand a lease
from defendant for the premises described, until the general Peace Treaties have been
concluded between the United Nations and the Axis Nations, and that plaintiff's action in
instituting this suit is premature, * * * has adopted the theory of the defendant, which, in
effect, is that by virtue of paragraph two of the option the parties, by the word continue in
the sense in which it was there used, did not assume the then existence of the option, and that
its duration merely was being extended or prolonged, but that they intended that the
commencement or effectiveness of the option right itself was being deferred or projected into
the futurethat such right would not come into existence at all until the peace treaties were
concluded. That construction does violence to the clear, plain, ordinary meaning of the word
"continue," and virtually substitutes for that word the words "be postponed," so that the
option agreement would be, in effect, the same as though the second paragraph of the
agreement read:
plain, ordinary meaning of the word continue, and virtually substitutes for that word the
words be postponed, so that the option agreement would be, in effect, the same as though
the second paragraph of the agreement read:
In the event that the general war in which the so-called United Nations' are at war with
the Axis Nations of the world had not been concluded and peace treaties executed at the end
of one year, then this option shall be postponed from month to month thereafter until the
general treaty of peace has been concluded between the Axis Nations on the one part and the
3. This would be virtually creating a new contract for the parties, which they have not
created or intended themselves, and which, under well-settled rules of construction, the court
had no power to do.
4, 5. The word postpone has a meaning that is very different from, and practically
opposite to, that of the word continue, in the sense that the former means to put off or defer
the coming into existence of a right, obligation, condition or other thing, whilst the word
continue, as had been pointed out, means to prolong or extend that which is already in
existence.
The word postpone is defined in Webster's New International Dictionary, supra, at p.
1682, as follows: To defer to a future or later time; to put off; delay.
In the absence of any sound reason to believe the parties to the option agreement intended
the word continue to mean be postponed, it cannot properly be so construed. In the
absence of clear evidence of a different intention, words must be presumed to have been used
in their ordinary sense, and given the meaning usually and ordinarily attributed to them. See
12 Am.Jur. secs. 227-229, pp. 745-753. In sec. 228, on page 749, it is stated:
No Right to Make Agreement for PartiesInterpretation of an agreement does not
include its modification or the creation of a new or different one.
or the creation of a new or different one. A court is not at liberty to revise an agreement while
professing to construe it. Nor does it have the right to make a contract for the partiesthat is,
a contract different from that actually entered into by them. Neither abstract justice nor the
rule of liberal construction justifies the creation of a contract for the parties which they did
not make themselves or the imposition upon one party to a contract of an obligation not
assumed. Courts cannot make for the parties better agreements than they themselves have
been satisfied to make or rewrite contracts because they operate harshly or inequitably as to
one of the parties. If the parties to a contract adopt a provision which contravenes no principle
of public policy and contains no element of ambiguity, the courts have no right, by a process
of interpretation, to relieve one of them from disadvantageous terms which he has actually
made.
There is no right to interpret the agreement as meaning something different from what the
parties intended as expressed by the language they saw fit to employ. The court is not at
liberty, either to disregard words used by the parties, descriptive of the subject matter or of
any material incident, or to insert words which the parties have not made use of. It cannot
reject what the parties inserted, unless it is repugnant to some other part of the instrument.
The court can properly interpret a contract only as the parties make it, and cannot substitute
words for those used by them. Neither a court of law nor a court of equity can interpolate in a
contract what the contract does not contain.
The court had no power by interpretation to engraft on a contract a limitation inconsistent
with the apparent object of the parties. It cannot interpolate a stipulation or words into a
contract where such are not implied by anything that appears on the face of the contract and
where the surrounding circumstances do not authorize or require a construction of the
contract that would import such stipulation or words into it.
import such stipulation or words into it. It can go no further than to collect the intention from
the language employed as applied to the subject matter in view of the surrounding
circumstances.
See, also, sec. 236, pp. 758-762.
6. It is our view that there is no ambiguity or uncertainty in the meaning of the language
employed in the option agreement executed by the defendant and dated at Reno, Nevada, May
11, 1942, same being above set forth, and hence no room for judicial construction.
There are other well known and generally accepted rules of construction which preclude
that adopted by the lower court in sustaining the demurrer. Other rules of construction or
interpretation which appear applicable to the situation existing in the instant case are
substantially as follows:
7. 1. A contract should be construed, if possible and the same can be done legally, to
effectuate valid contractual relations, rather than in a manner which would render same
invalid, or render performance impossible.
8. 2. A contract should not be construed so as to lead to an absurd result.
9. 3. A contract should be given a reasonable and fair interpretation. 12 Am.Jur., secs.
250-251, pp. 791- 795.
In footnote 12 to the text, on page 793, it is stated: It is not the duty of a court, by legal
subtility, to overthrow a contract, but rather to uphold it and give it effect; and no strained or
artificial rule of construction is to be applied to any part of it. If there is no ambiguity and the
meaning of the parties can be clearly ascertained, effect is to be given to the instrument used.
Citing In re Binghamton Bridge (Chenango Bridge Co. v. Binghamton Bridge Co.) 8 Wall.,
70 U.S. 51, 18 L.Ed. 137.
In Williston on Contracts, vol. 11, sec. 620, pp. 1202-1203, it is stated:
Sec. 620. Secondary Rules: The Instrument Will Be Construed If Possible So That It
Shall Be Effective And Reasonable.
Construed If Possible So That It Shall Be Effective And Reasonable.
A construction which makes the contract lawful will be preferred over one which would
make it unlawful; a construction which renders the contract valid and its performance
possible will be preferred to one which makes it void or its performance impossible or
meaningless; a construction which makes the contract fair and reasonable will be preferred to
one which leads to harsh or unreasonable results. * * *
10-12. As pointed out by counsel for plaintiff, in appellant's opening brief, on page 8: * *
* If the option may not be legally exercised one year after the date of the contract and any
time prior to signing the Peace Treaties, then plaintiff has no rights under the contract because
the option is terminated when the Peace Treaties are concluded.
In other words, counsel means that the option would go into effect upon the conclusion of
the peace treaties (according to the lower court's construction), and, by force of the limitation
of the term or duration of the option (which, in the language thereof, is until the general
treaty of peace has been concluded between the Axis Nations on the one part and the United
Nations on the other part, would simultaneously terminate.
The lower court has stated, in the above-quoted paragraph (b) of its written opinion and
order, the following: (b) That plaintiff's action in instituting this suit is premature, and no
legal obligation exists in defendant to execute to plaintiff a lease for the said premises until
the Peace Treaties between the United Nations and the Axis Nations are concluded.
The clear limitation, above quoted, upon the duration of the option, made certain by the
use of the word until, the effect and significance of which is ably presented by plaintiff's
counsel, on pages 8 to 10 of his opening brief, precludes the option continuing beyond that
same eventthe conclusion of the peace treaties.
We are confronted with a construction of the lower court which, in our view, clearly
violates the three rules of construction above quoted. It would make of the transaction an idle
ceremony. Invalidity, rather than a valid, enforceable contract, would result, because the
period of duration of the option would expire before plaintiff could possibly exercise his
rights thereunder. And if, by any possibility, the word after could be properly interpolated
in the option following the word until (which we believe the court would have no right or
authority to do), then, and in that event, the agreement would, by such construction, be
rendered so indefinite and incomplete as to time, that it most likely would be void for
uncertainty, having, under such construction, no stipulated or agreed time of duration or
termination.
A fixed period in which an option or other similar agreement shall be operative, is
essential to its validity; otherwise, it is too incomplete and uncertain to be enforceable.
It is also clear that the construction of the lower court, which would make of the
transaction an idle ceremony, leads to an absurd consequence.
And likewise, such construction violates the remaining of the three rules above mentioned,
namely, that agreements must receive a reasonable and fair interpretation.
The plaintiff evidently surrendered up, according to the allegations of its amended
complaint (and for the purpose of the demurrer those allegations must be taken as true), a
lease which, together with the right of renewal, had more than six years to run. And it is
alleged, in substance, that at the time the option was given, May 11, 1942, plaintiff's
leasehold right and extension or renewal rights thereunder were of the value of $100 per
month in excess of and above the rentals payable under said lease, a total difference of more
than $7,700 for the period of more than six years and five months then remaining of the
lease and the last renewal period.
months then remaining of the lease and the last renewal period.
Is it reasonable to believe that the plaintiff meant to surrender its leasehold rights of such
value, and receive nothing in return, except a mere written option and the dubious pleasure of
an idle ceremony? Such an interpretation is neither fair nor reasonable.
13. We might mention, too, that it is contrary to the interpretation placed upon the
agreement by the parties themselves.
It is alleged in paragraph X of the complaint, as above stated, that on May 15, 1942 (four
days after the option was signed) the defendant rented the premises for a year at a rental of
$650 per month, with a provision in the lease that after the expiration of said one-year period
the lessee's tenancy would be from month to month. This coincides almost perfectly with the
terms of the option. The plaintiff could not exercise the option until the termination of the
Harrah lease, at the end of one year. After that, it had the right that its option continue from
month to month until the peace treaties were concluded. The defendant, therefore, it appears
probable, recognized as effective the continuation from month to month of the option after
the expiration of the Harrah lease, that is, after one year, and made its interim rental upon
similar terms, so it would be in a position, doubtless, to comply with the terms of the option,
should the plaintiff exercise its rights thereunder. The courts properly take into consideration,
in interpreting contracts, the interpretation which the parties themselves, by words or actions,
have placed upon them. 12 Am.Jur. sec. 249, pp. 787-791.
It may be stated by way of digression that if, as the lower court decided, the option was not
to take effect until the peace treaties were concluded, the phrase from month to month
would be meaningless and entirely inappropriate. There would be no sensible reason to defer
the option "from month to month."
defer the option from month to month. It would have been deferred merely until the peace
treaties were concluded, had such theory been intended by the parties. As to this phrase from
month to month, the defendant, in his brief, has argued that same would, under the lower
court's construction, afford the plaintiff at least until the end of the current month after the
conclusion of the general peace treaty, or treaties, in which to exercise the option. We cannot
agree with that construction. It is our view that the period of duration of the option is limited
by the use of the word until, and that the phrase from month to month could operate
merely within the scope of the term or duration of the option, as thus limited.
14, 15. Now we are confronted with the following question: Did the lower court commit
error in sustaining the demurrer upon the ground that the memorandum agreement set forth
in Paragraph IX of said amended complaint is incomplete, uncertain and ambiguous in its
provisions, and not capable of being specifically performed?
The only special demurrer interposed upon the ground of uncertainty is directed merely to
the allegation, in the second sentence of paragraph VII of the amended complaint, as to the
improvements or furnishings placed upon or in the property, when they were made, their cost
and present value. There is nothing in the lower court's order, or decision, indicating that that
court was passing upon that special demurrer. The court has decided, generally, that the
memorandum agreement is incomplete, uncertain and ambiguous in its provisions, and not
capable of being specifically performed, apparently upon the theory that such
incompleteness, uncertainty and ambiguity goes to the extent of making the statement of the
cause of action in the amended complaint so defective as to come within the scope of a
general demurrer upon the ground that the complaint fails to state facts sufficient to constitute
a cause of action.
The lower court has not pointed out wherein the agreement is incomplete, uncertain, or
ambiguous, but, in view of the arguments of respective counsel in the briefs, we believe that
such ruling is predicated upon the theory advanced by counsel for defendant, to the effect that
the option agreement contemplated a lease, the terms of which required future negotiation,
and that until all the terms of the proposed lease had been negotiated, developed and agreed
upon, there was no completed contract, and hence no basis upon which the court could
formulate a decree of specific performance based upon the agreement of the parties.
This presents a question which has been much litigated, and concerning which there is
some conflict in the authorities. The authorities very generally, we believe, adhere to the rule
that when in the option agreement, or in the negotiations of the parties, there appears the
intention that further negotiation shall be had as to the terms of the proposed leasethat there
remain questions as to terms and provisions yet to be settled in the future negotiations as
contemplated, then and in that event, the proposed lease is incomplete and not yet sufficiently
developed upon which to establish the basis of a decree of specific performance.
On the other hand, many authorities take the view that if the option for a lease contains all
the essential terms of a simple, ordinary lease, that is to say, the names of the parties, a
description of the property to be leased, the amount of rental, when same is payable, and the
term or duration of the lease, and does not indicate any expectation of further provisions to be
thereafter negotiated, same is sufficiently complete to constitute a binding contract, and to
serve as a basis for specific performancethat the usual, ordinary covenants and provisions
of leases in the community or vicinity where the property is situated are deemed contemplated
by the parties, and further negotiations are unnecessary.
The case of Bennett v. Moon, 110 Neb. 692, 194 N.W. 802, 31 A.L.R. 495, is a leading
case adhering to this latter view. An excellent annotation to that case occurs on pages 502 to
511, of 31 A.L.R., in which the learned author has discussed and cited many authorities. We
quote from the opinion as same appears, 110 Neb. 692, 194 N.W. 802, 804, 31 A.L.R. 495,
on pages 499, 500 as follows:
This brings us to the real or main matter of controversy in this case, which is that, where
the material elements of the agreement to lease are definitely agreed upon, but the contract is
silent as to the general, usual and ordinary covenants and conditions, can such a contract be
enforced by specific performance? In other words, are these covenants and conditions to be
implied in law, or must they be definitely set forth in the agreement in order to be inserted in
the lease by decree of a court of equity? While the contract provides that a lease shall be
executed covering the agreement between the parties hereto as to said building,' it is silent as
to the usual conditions, covenants and other general provisions contained in an ordinary lease.
From an examination of the recognized text-books and the adjudicated cases, it appears
that it has long since been the settled law that, where there is no specification in the contract
to execute a lease covering the usual and ordinary covenants and provisions, these will be
implied by the courts of equity. This rule was established in England as early as the famous
decision in Dumpor's Case, and is clearly stated in Church v. Brown, 15 Ves.Jr. (Eng.) 258,
271, [33 Eng.Reprint, 757, 15 Eng. Rul.Cas. 688], in this language: There was no sort of a
difference whether the agreement in the terms of it did or did not refer to usual or proper
covenants; that in every agreement, whether as to freehold or leasehold estate, it was implied
that there were to be usual and proper covenants.' "This rule of law is recognized, with some
exceptions, by the courts of this country.
This rule of law is recognized, with some exceptions, by the courts of this country. In 36
Cyc. 792, the general principle of construction is briefly stated thus: A contract to execute a
lease calls for a lease with the usual covenants.'
The annotator of the L.R.A. states the rule to be: Specific performance of an agreement
for a lease will be decreed with such covenants as are usual and incident to leases of the same
kind, and such as flow from the contract and are necessary to give it effect.' Note in 20 L.R.A.
36.
The same principle of law is announced in Eaton v. Whitaker, 18 Conn. 222, 44 Am.
Dec. 586, in which the court say: Where nothing was said as to its terms, at the time when
the agreement was made,' the decree will require the demurring party to execute a lease
containing the usual provisions.'
The rule so ably set forth in Bennett v. Moon, supra, and which, as therein stated, was
established in England as early as the famous decision in Dumpor's Case, we believe has
been followed very generally, both in England and in the United States. This rule excludes
from its operation and effect all cases in which the agreement, or negotiations in connection
therewith, indicate that the parties contemplated future negotiations and agreement as to the
provisions of the proposed lease.
We realize that there are some cases, however, including certain authorities cited by
defendant, which are not distinguishable from the doctrine in Bennett v. Moon, because of the
foregoing exception, and which do not agree that, in the absence of any indication in the
agreement that future negotiations are contemplated, that the usual or ordinary covenants in
the particular locality shall be deemed implied by equity in the proposed lease. Some of these
authorities do not consider the term usual or ordinary covenants sufficiently certain to
afford the basis for a decree of specific performance, contending that there is no criterion by
which to determine what are and what are not usual and ordinary covenants in a particular
community.
what are and what are not usual and ordinary covenants in a particular community.
In Jones on Landlord and Tenant, the distinguished author, in sec. 137a, pp. 170, 171, has
stated:
Sec. 137a. What Constitutes a Valid Agreement.Under the authorities, to create a valid
contract of lease, but few points of mutual agreement are necessary: First, there must be a
definite agreement as to the extent and bounds of the property leased; second, a definite and
agreed term; and third, a definite and agreed price of rental, and the time and manner of
payment. These appear to be the only essentials. If the parties are fully agreed, there is a
binding contract, notwithstanding the fact that a formal contract is to be prepared and signed;
but the parties must be fully agreed and must intend the agreement to be binding. From the
very nature of such an agreement, it is obvious that the parties contemplate the execution of a
more formal instrument which may contain additional details as to the terms of the demise
and the rights and obligations of the parties. The mere fact that a written lease was in
contemplation does not relieve either of the contracting parties from the responsibility of a
contract which was already expressed in writing and a valid agreement for a lease may be
made by letters and telegrams. When one party refuses to execute the lease according to the
contract thus made, the other has a right to fall back on the written propositions as originally
made. The absence of the formal agreement contemplated is not material. * * *
The option agreement involved in the instant case contains all the essential elements
prescribed in the rule as set forth by Mr. Jones, and in Bennett v. Moon, supra, with the
possible exception of an item as to when and in what manner the rental shall be payable, but
the rental was undoubtedly intended to be paid in the manner and at the time conforming to
the customary course of dealing between the parties under the original lease dated the 29th
day of October 1934, and the several renewals thereof.
the 29th day of October 1934, and the several renewals thereof.
This brings us to the question or proposition as to the effect which the previous course of
dealing of the parties in the matter of the agreed provisions of the said original lease and the
renewals thereof should have in relation to the determination of whether or not those
provisions may be fairly implied and deemed contemplated by the parties in connection with
the option of May 11, 1942. It has been pointed out that the doctrine in Bennett v. Moon,
supra, and of the many other authorities expounding similar views, is that equity, in the
absence of any showing of a contrary intention, will presume that the parties intended, if their
agreement contains the principal essentials of a lease, that the provisions and covenants
usually employed in the community where the property is situated shall be deemed impliedly
incorporated in the proposed lease. But in the instant case, the question arises of whether or
not, as to the lease proposed or contemplated by the option, the provisions of the original
lease of October 29, 1934, as renewed, shall be implied, because actually settled and agreed
upon by the parties, and repeatedly adhered to in their previous course of dealing. This sort of
implication of provisions comes under the classification of agreements or contracts implied in
fact, as distinguished from those implied by law or equity. If the foregoing proposition of
whether or not the parties actually intended that the provisions of the original lease, as
renewed, should be implied, in the option as to the proposed lease of a portion of the term
provided by the last renewal of the original lease, be answered in the affirmative, it will be
unnecessary for us to determine in the instant case whether or not this court should follow and
apply the doctrine enunciated in Dumpor's case, Bennett v. Moon, supra, and the cases
adhering to that doctrine. If we should determine that the transaction whereby plaintiff
received the option of May 11, 1942, was merely tantamount to a reservation or retention
by plaintiff of a portion of the term of the original lease as last renewed, it is obvious that
if a portion of the term of the lease is retained or reserved, all its parts, including its
provisions and covenants, are likewise retained and reserved.
received the option of May 11, 1942, was merely tantamount to a reservation or retention by
plaintiff of a portion of the term of the original lease as last renewed, it is obvious that if a
portion of the term of the lease is retained or reserved, all its parts, including its provisions
and covenants, are likewise retained and reserved. And the criterion by which to determine
the appropriateness of the proposed lease submitted to defendant in May 1946, for execution,
and the correctness of defendant's action in refusing to execute such lease, would be whether
or not the provisions thereof were identical with the provisions of the original lease as
renewed, and not the question of whether or not the covenants and provisions of the tendered
form of lease were usual or customary in the community. In determining the question of
whether or not the provisions and covenants of the original lease as renewed shall be deemed
implied in fact, by virtue of the intention of the parties in connection with the option of May
11, 1942, the principal inquiry should be: What was the intention of the parties?
The original lease of October 29, 1934, had been extended, or renewed, by the parties
three times prior to the option agreement of May 11, 1942, and such extensions or renewals
were invariably upon the same terms and conditions as embodied in the original lease,
according to the allegations of the amended complaint, which must be taken as true. The first
of those renewals or extensions was from October 29, 1934, to October 26, 1937; the second
from October 26, 1937, to October 26, 1940, the third from October 26, 1940, to October 26,
1943. And, by agreement made November 25, 1939, defendant gave plaintiff an option to
renew or extend the lease to October 26, 1948, an extension of five years. On May 11, 1942,
the date of the option involved in the instant case, the plaintiff, Reno Club, Inc., was in
possession, under the renewal of its lease to October 26, 1943.
Thus the plaintiff had one year and more than five months as yet unexpired on the last
renewal of its lease, and had, also, the said option for an additional renewal of five more
years, a total of more than six years and five months. It is alleged in the amended complaint,
as has already been stated, that the rental value of the leasehold rights of plaintiff on the date
of the option was at least $100 per month in excess of the rental provided by plaintiff's lease,
and in four days after plaintiff surrendered the lease, May 15, 1942, the defendant rented the
premises for $650 per month. By virtue of the surrender of the remainder of its lease and of
its option for renewal to October 26, 1948, the plaintiff was yielding up an excess value, or
profit, of at least $7,700, under the estimate of excess value, and more than $23,000 if figured
upon the basis of the rental paid by plaintiff's immediate successor in the tenancy. The
plaintiff, apparently, was unwilling to yield up so valuable an asset unconditionally and
gratuitously; and yet, due to the war, was not at that time desirous of continuing active
operations. It is reasonable to infer that the plaintiff therefore required, in consideration of
yielding up its valuable lease and option for renewal, that it receive back an option for a
portion of the term it was surrendering up, such portion to be the portion of the term of the
original lease (as extended) remaining from the date subsequent to the end of the Harrah lease
(one year from date) upon which it should elect to exercise its said option, and to October 26,
1948. It is significant that the terminal date of the proposed lease under the option of May 11,
1942, is identical with the date of the termination of the last renewal period of the original
lease of October 29, 1934. Equity regards the substance and not the form, is an ancient
maxim of equity jurisprudence, venerable, and cherished not alone because of its maturity,
but also by reason of its proven value as an instrumentality contributing to the
accomplishment of real justice and equity, unhampered by too great adherence to technicality.
The plaintiff being the owner of the unexpired lease of October 29, 1934, as extended, and
of the option for renewal to October 26, 194S, and both parties being satisfied with the
terms thereof, as evidenced by their repeated prior renewals under the same terms and
conditions, plaintiff undoubtedly was unwilling, as before indicated, to give up all its right
to the premises, but wished to reserve, or retain, an option upon the portion of the term
above specified.
of October 29, 1934, as extended, and of the option for renewal to October 26, 1948, and both
parties being satisfied with the terms thereof, as evidenced by their repeated prior renewals
under the same terms and conditions, plaintiff undoubtedly was unwilling, as before
indicated, to give up all its right to the premises, but wished to reserve, or retain, an option
upon the portion of the term above specified.
Regardless of the fact that, in form, the option did not expressly reserve or retain such
portion of the term and renewal period, it was in substance to that effect, in view of the
background and evident intention of the parties. It amounted to an agreement that, under the
conditions set forth therein as to time of taking effect, amount of rental, etc., there should be
restored to plaintiff, at its option, such portion of the term of the last renewal of the original
lease as remained at the time plaintiff should elect to exercise the option. Under the maxim
that equity regards the substance and not the form, it makes little difference whether there
was a formal surrender agreement with an express reservation in the same instrument of a
portion of the term of the surrendered lease, or two separate instruments, a surrender
agreement and a separate option, or merely a surrender by delivery of the old lease and option
for renewal, and a written option back whereby the optionee could have restored to him a
portion of the term. In either event, it would be, in effect, the retention at its option, by
plaintiff, of a portion of the term of the surrendered lease with its identical provisions and
covenants, except as expressly changed in the option agreement.
It is reasonable to believe that this theory was agreeable to the defendant. As has been
pointed out, defendant had repeatedly extended and renewed the original lease of October 29,
1934, upon the same terms embodied therein. It is also reasonable to believe that the changes
expressed in the option agreement were all the modifications of the original terms which
defendant desired, or same would have been expressed in the option. We believe it is fair to
imply in fact, therefore, that, in connection with the option of May 11, 1942, both parties
thereto intended that all terms and conditions of the original lease of October 29, 1934,
and of the unexpired renewal thereof executed November 25, 1939, should apply as
between the plaintiff and defendant in relation to that portion of the term of the last
renewal lease which the option agreement provided, in effect, should be restored to
plaintiff upon its exercise of its rights thereunder, except as to the provisions changed
expressly by the terms of the option.
believe it is fair to imply in fact, therefore, that, in connection with the option of May 11,
1942, both parties thereto intended that all terms and conditions of the original lease of
October 29, 1934, and of the unexpired renewal thereof executed November 25, 1939, should
apply as between the plaintiff and defendant in relation to that portion of the term of the last
renewal lease which the option agreement provided, in effect, should be restored to plaintiff
upon its exercise of its rights thereunder, except as to the provisions changed expressly by the
terms of the option. The plaintiff, in its amended complaint, has alleged that the proposed
lease tendered by the defendant in the month of May 1946 contained identical covenants and
agreements contained and set forth in the original lease of October 29, 1934 (and which lease,
as has been shown, plaintiff surrendered to defendant May 11, 1942), except as to the amount
of rental charged, the term thereof, and the absence of the right of renewal. These allegations,
for the purpose of the demurrer, must be taken as true.
For the reasons stated and indicated, we are convinced that the amended complaint states
facts sufficient to constitute a cause of action, and that the memorandum agreement set forth
in paragraph IX of the amended complaint is not incomplete, uncertain, or ambiguous. If it
should develop at the trial that the tendered lease contains any provisions or covenants not
included in the original lease of October 29, 1934, such provisions or covenants should be,
and undoubtedly would be, rejected and not embraced within the trial court's decree. Our
view being that the demurrer should have been overruled, and that the decision and order of
the district court in sustaining same was unreasonable, unjustifiable and clearly wrong, and if
upheld by this court would result in a grave injustice to the plaintiff, reversal is inevitable. It
is, therefore, ordered that the judgment of the district court be, and the same is hereby,
reversed, and the cause remanded with instructions to that court to enter its order overruling
defendant's demurrer to plaintiff's amended complaint, and allowing defendant such time
to answer as the district court may deem appropriate.
plaintiff's amended complaint, and allowing defendant such time to answer as the district
court may deem appropriate.
Badt, J., concurs.
Easter, C.J., because of illness, did not participate in the preparation and rendition of the
foregoing opinion.
____________
64 Nev. 339, 339 (1947) Jackson v. Harris
DAVID D. JACKSON, Appellant, v. T. R. HARRIS
and JEAN HARRIS, Respondents.
No. 3462
July 9, 1947. 183 P.2d 161.
1. Courts.
Cases cannot be urged as authority for points which may be found lurking in the record but which
were not put in issue.
2. Taxation.
Inadequate description in assessment was not cured by plat of property on back of assessment roll, in
absence of reference to such plat in the assessment. Comp.Laws, secs. 6423, 6447-6449.
3. Taxation.
Insufficiency of description in assessment was not cured by fact that parcel in question comprising
approximately one acre was deducted from assessment to owner's predecessor, whose assessment was
reduced from 66 acres to 65 acres. Comp. Laws, secs. 6423, 6447-6449.
4. Taxation.
Insufficiency of description in assessment was not relieved by fact that lot so assessed was the same
property described in certain deed from predecessor to owner, where such fact did not appear in
assessment. Comp.Laws, secs. 6423, 6447-6449.
5. Taxation.
Insufficiency of description in assessment of property as Filling Station Lot was not relieved by fact
that name Harris Service Station appeared upon the property itself, particularly where such fact did not
appear on the assessment. Comp.Laws, secs. 6423, 6447-6449.
6. Taxation.
The term Filling Station Lot in assessment did not sufficiently identify property because there was
no other property in the vicinity used as a filling station. Comp.Laws, secs. 6423, 6447-6449.
7. Taxation.
The description Filling Station Lot, 300 feet, value $450.00, Improvements $150.00 was
insufficient to support a valid assessment. Comp.Laws, secs. 6423, 6447-6449.
8. Taxation.
The description Filling Station Lot, 300 feet, value $450.00, Improvements $150.00 In assessment
of property was insufficient to support tax sale. Comp.Laws, secs. 6423, 6447-6449.
9. Taxation.
The purpose of requirement for description in assessment is to give necessary information or notice of
tax assessed against particular parcel to the taxpayer himself, to inform the public of what property is
liable for the tax and is to be sold in case of nonpayment, and to enable a subsequent purchaser at tax sale
to obtain an adequate conveyance. Comp.Laws, secs. 6423, 6447-6449.
10. Taxation.
A description Filling Station Lot, 300 feet, value $450.00, Improvements $150.00 in assessment of
property was so insufficient as to constitute a jurisdictional defect beyond scope of curative provisions of
statute. Comp.Laws, sec. 6449.
11. Taxation.
Where assessor failed to use much material information given him by owner in connection with
description of property, owner was not barred from challenging validity of tax sale for insufficiency of
description in assessment by reason of alleged fact that owner had himself furnished the description.
12. Taxation.
The validity of assessment list and of all proceedings founded on it depend upon condition that such
assessment list contain a description of the property intended to be assessed. Comp.Laws, secs. 6423,
6447-6449, 6457.
13. Taxation.
An assessment without a description cannot support further proceedings resulting in a delinquent tax
sale irrespective of statute authorizing district attorney in suits to collect taxes to make additional and
more certain description than that contained in assessment roll. Comp.Laws, secs. 6423, 6447-6449,
6457.
14. Taxation.
Original owners were not barred from challenging invalid tax sale because they had allegedly not
tendered payment of the taxes prior to bringing their suit to quiet title. Comp.Laws, secs. 6423,
6447-6449, 6457.
15. Taxation.
Curative statute would not be construed as dispensing with necessity for any description whatsoever
in an assessment. Comp.Laws, sec. 6449; Const. art. 10, sec. 1.
Where purported tax deed to county was void for insufficiency of description in assessment, the court
on appeal would not determine validity of subsequent sale by county as affected by failure of county to
give statutory notice.
Alleged error in receiving testimony of property owner that he had received no notice of tax
assessment was not material where it did not appear that trial court gave any effect to the testimony or
considered a possible lack of notice any ground for holding assessment invalid.
Refusal to admit tax deed without laying of further foundation was not material where trial court
thereafter did admit the deed and gave it due consideration.
Appeal from First Judicial District Court, Lyon County; Clark J. Guild, Judge.
Action by T. R. Harris and wife against David D. Jackson and another to quiet title,
wherein the named defendant asked that title be quieted in him. Judgment for plaintiffs, and
the named defendant appeals. Affirmed.
Kearney & Adams, of Reno, for Appellant.
Andrew L. Haight, of Fallon, and Leslie A. Leggett, of Reno, for Respondents.
OPINION
This is an action to quiet title. The parties will be referred to as they appeared in the court
below. Plaintiff Harris and wife sued to quiet title to a parcel of land, particularly described
by metes and bounds, in Fernley, Lyon County, Nevada, fronting 300 feet on the south side of
the Lincoln highway with a depth of 123 feet. They joined as defendants Lyon County and
David D. Jackson. Lyon County, by its answer, disclaimed all right, title, and claim "for the
reason that this defendant has divested itself of any interest in or to said property by
reason of a certain deed executed in favor of the defendant David D.
right, title, and claim for the reason that this defendant has divested itself of any interest in
or to said property by reason of a certain deed executed in favor of the defendant David D.
Jackson under date of December 6, 1944, and recorded in the office of the Lyon County
recorder on December 7, 1944. * * * Jackson answered and claimed title to the parcel by
reason of the deed mentioned in Lyon County's disclaimer, alleging that he had purchased
from the county for a valuable consideration and that at the time of such purchase Lyon
County was sole owner of the premises. (Lyon County had theretofore held the property
under statutory delinquent tax deed.) He asked that the title be quieted in him, and that the
plaintiffs be barred from asserting any claim thereto.
The case was tried to the district court without a jury. The trial court filed a written
opinion and decision in which it held that the tax sale to Lyon County was void by reason of
the insufficiency of the description in the assessment of the property to Harris, plaintiff herein
and former owner of the property, and that the subsequent sale from Lyon County to Jackson
was likewise void because the statutory notice of such sale had not been given and because
the affidavits of posting and publication had not been filed and because the proper record
book had not been kept and for other failures to comply with statutory requirements, and
agreed with the contentions of the plaintiffs claiming the acts and proceedings of the officers
of Lyon County as void and in violation of the due process of law clause of the constitution.
Motion for new trial was denied and the court signed findings, conclusions, and judgment in
accordance with its said opinion and decision, overruled Jackson's objection to the findings
and denied Jackson's motion to adopt contrary findings submitted by him. The trial court
found, among other things, that Harris and his wife were the owners of the property, that
Jackson's claim was without right, that Jackson's allegations that he had purchased the
property from the county and that the county at such time was and had been the legal
owner thereof, were not true, that Jackson did not acquire the premises from the county
and that the deed from the county upon which he relied was of no force or effect.
county at such time was and had been the legal owner thereof, were not true, that Jackson did
not acquire the premises from the county and that the deed from the county upon which he
relied was of no force or effect. Jackson appealed from the judgment, and from the order
denying his motion for new trial. The main question out of which this controversy arises is as
to the sufficiency of the description in the tax assessment and subsequent proceedings
culminating in the tax sale to Lyon County. If the description is determined to be insufficient
the further question arises as to whether such defect is cured by the provisions of sec. 6449,
N.C.L. Other questions arise, and the same are disposed of later.
On June 3, 1941, M. R. Penrose, sheriff and assessor of Lyon County, assessed the
property to plaintiffs, using the following description: Filling Station Lot, 300 feet, value
$450.00, Improvements $150.00. The property was offered for sale September 14, 1942, for
failure to pay the taxes. No other bids being made, the county treasurer bid the property in for
Lyon County and certificate of sale was delivered and recorded. No redemption having been
made, a deed to the county was executed and recorded September 15, 1944, conveying the
property, described as follows: T. R. Harris Filling Station Lot 300 feet $450.00; Imp.
$150.00; four gas pumps $400.00; Mach. $50.00. On October 9, 1944, Jackson filed his
application with the county commissioners asking that real property owned by the county and
described as A Filling Station Lot, 300 feet, together with improvements thereon, Fernley,
Nevada, formerly owned by T. R. Harris be advertised for sale. The commissioners
instructed the clerk to advertise the property as provided by law. The sale was had November
20, 1944, and Jackson bid in the property for $66.57, there being no other bidder. The county
commissioners confirmed the sale at their meeting of December 5, 1944, and instructed the
clerk to issue deed, describing the property as: Filling Station Lot in the Town of Fernley,
State of Nevada, together with improvements situate thereon, formerly owned by T. R.
Harris."
thereon, formerly owned by T. R. Harris. The following day the deed was executed to
Jackson in which the property was described as: Filling Station Lot in the Town of Fernley,
County of Lyon, State of Nevada, together with the improvements thereon situate, formerly
owned by T. R. Harris. It is conceded that the notice of the last-mentioned sale did not
comply with the statutory requirements as to posting.
Respondents contend that the trial court was correct in holding the description to be
insufficient to pass the title in the tax sale to the county, and we are inclined to agree with this
contention. The arrival at this conclusion has not been made without difficulty. Appellant
relies upon sundry general rules as to the degree of certainty required in descriptions
appearing in deeds, assessments, contracts, etc., arising in a wide variety of proceedings,
including ejectment and quiet title suits where reliance was placed upon tax titles. Such
general rules are relied upon as the statement that the office of a description is not to identify
the land, but to furnish the means of identification; that that is certain which can be made
certain; that the designation of the land will be sufficient if it affords the owner a means of
identification and does not positively mislead him, or is not calculated to mislead him; that
the description is sufficient when the owner is enabled to identify the land which is assessed
without being misled by the description; that minute particularity is not required, any
description being sufficient which identifies the particular property so clearly that the owner
cannot be misled; that if a person of ordinary intelligence and understanding can
successfully use the description in an attempt to locate and identify the particular property
sought to be conveyed, the description answers its purpose and must be held sufficient; that
the description is sufficient if by extrinsic evidence it can be made practically certain what
property it was intended to cover. These general rules are quoted in some of the texts cited
by appellant and mentioned in cases cited by him and in the cases cited in footnotes
supporting the texts.
the cases cited in footnotes supporting the texts. It has been necessary to have recourse to
virtually every case thus cited in order to determine their value as authority for the rules thus
sought to be applied to the facts in the present case. The surprising result is that the rules of
law referred to appear to be much broader in their language than required by the facts in the
cases in which they are used.
Before discussing these cases it should be noted that the description used by the assessor in
the present case gave the following information: The property was assessed against T. R.
Harris. It was in the town of Fernley, Lyon County, Nevada. It was described as filling station
lot, 300 feet. Its value was given as $450, and improvements $150. The statement that it is a
filling station lot affords meager, if any, substantial identification. But one dimension is
furnished, namely, 300 feet. The facts brought out in the case indicate that this was frontage,
but it could as well have meant depth. No street, lot, block or alley is indicated. We find no
mention of any street or street intersection or any tie to any street intersection. We have
simply a lot floating in space within the town of Fernley, and having one dimension of 300
feet. In not a single case in which the description was held sufficient in a tax assessment
under any of the rules above quoted did the description approach in meagerness the
description here used.
In Humes v. Bernstein, 1882, 72 Ala. 546, the sheriff's deed conveyed certain property as
part of Lot No. 17, fronting Gallatin Street 50 feet, extending eastwardly 73 feet, sold as the
property of Isaac Jemison & Co. It was contended that the deed was void for uncertainty in
the description of the property intended to be conveyed. It was not a tax sale. The court states
quite frankly: Without extrinsic aid, the dimensions of Lot 17 being given, it certainly is too
indefinite. It is to be noted too that this deed gave not only the exact frontage but also the
depth of the parcel, and the number of the lot of which it formed a part. The case is not
authority for the sufficiency of the description in the present case.
authority for the sufficiency of the description in the present case. The case is also
distinguishable in other important respects.
Appellant relies strongly upon Ontario Land Co. v. Yordy, 212 U.S. 152, 29 S.Ct. 278, 53
L.Ed. 449, Id., 44 Wash. 239, 87 P. 257. Here the property was described as Blocks 352 and
372 in Capital Addition to North Yakima. These blocks were not actually platted as such, but
formed a parcel marked on the official plat as reserved, and were identified as the same land.
The party attacking the tax deed had actual knowledge of the fact that the reference to the
blocks mentioned referred to that part of its property marked reserved, denied the validity of
the tax in interviews with two county treasurers, stood quietly by during the tax sale, and with
full knowledge permitted the purchaser to make his purchase without protest. These elements
deprive the case of any persuasive authority on the present problem.
Ontario Land Co. v. Wilfong, 223 U.S. 543, 32 S.Ct. 328, 56 L.Ed. 544, is virtually the
same case.
The description in Green v. Palmer, 68 Cal.App. 393, 229 P. 876, 878, exactly defined the
place of beginning and traced the lot by metes and bounds with a definite frontage on a
named street and a definite depth and recited the number of the block of which it was a
portion. The main objection made was that the true lines of the property varied some degrees
from the true points of the compass. The court referred to the contention as arguing from the
point of the utmost absurdity and that no one could have been misled. No such general rule
as those quoted was necessary to a holding that this description was sufficient.
E. E. McCalla Co. v. Sleeper, 105 Cal.App. 562, 288 P. 146, 147, is also cited in support
of the rule that real property is described with sufficient particularity when the owner is
enabled to identify land which is assessed without being misled by the description, and that
the designation will be sufficient if it affords the owner the means of identification and does
not positively mislead him or is not calculated to mislead him.
him or is not calculated to mislead him. In that case, however, the owner had furnished a map
which contained a description of the land and an identification of the various subdivisions
amply sufficient to enable one accurately to determine and define the particular land assessed
and a facsimile copy of the map was made and filed in the official assessor's Tax Book of
Maps, designated as Assessor's Map No. 10 and specially referred to and thereby became a
part of the description of the property, and was therefore sufficient for the purpose of
assessment. It should be noted moreover with reference to this and the other California cases
cited that the California statute required that where land was not in a congressional
subdivision so that it could be described by township, range, section and fractional section, it
should be described by metes and bounds or other description sufficient to identify it. * * *
Pol. Code, sec. 3650. The Nevada statute requires a description of the land.
Appellant also cites People v. McCreery, 1868, 34 Cal. 432. However, the property
assessed was personal property whose method of description was covered by specific
statutory provisions, which the court held were satisfied. This case is further considered in
our discussion of the curative provisions of our statute.
In Keely v. Sanders, 99 U.S.441, 25 L.Ed. 327, although the description was meager, the
location of the property was fixed at the intersection of two streets and as a part of a given lot
number, with the acreage recited, the name of the city, the district and the persons to whom
assessed. It was admitted by the parties attacking the sale that this was a true description,
quite sufficient to identify the property. The supreme court was also largely governed by the
act of congress which the court construed to be conclusive evidence of the validity of the tax
sale. The case is of no great assistance.
In Cooper v. Holmes, 71 Md. 20, 17 A. 711, the property was assessed to one John Cooper
as a 200 acre parcel in Blandensburg district in Prince George's County called "Pleasant
Prospect." "Pleasant Prospect" apparently clearly identified the property in question, and
the court held the description sufficient.
called Pleasant Prospect. Pleasant Prospect apparently clearly identified the property in
question, and the court held the description sufficient. Even so, it should be noted that this
case is a rather extreme application of the rule.
In Langley v. Batchelder, 69 N.H. 566, 46 A. 1085, the court was engaged in construing
the particular New Hampshire statute requiring a resident list and a nonresident list, and
one of which required a particular description and one of which did not. The opinion
concerned itself entirely with determining the intent of the legislature.
Morton v. Sloan, 96 Cal.App. 747, 275 P. 223 affords appellant no assistance. In that case
the lots were actually assessed by lot and block numbers, and the street boundaries given. The
description was naturally held sufficient, although it had failed to comply with the statutory
requirement that it refer to the official map.
The same is true of the case of Schainman v. All Persons, and Schainman v. Hunter, 96
Cal.App. 753, 275 P. 225.
Appellant relies particularly upon these California cases for the reason that the block
books used under authority of the board of supervisors in the California cases are said to
correspond with the assessment cards used by the assessor of Lyon County. Even though
there may be some analogy in such use, the fact remains that in the California cases referred
to the property was actually assessed by lot and block numbers, as distinguished from the
assessment in the instant case of filling station lot 300 feet assessed to T. R. Harris,
Fernley, Nevada.
Ehret v. Price, 122 Okl. 277, 254 P. 748, 749, 751, is cited in support of the rule that a
description, however general and indefinite it may be, if by intrinsic evidence it can be made
practically certain what property it was intended to cover, will be sufficient. This rule was in
that case invoked by a foreclosing mortgagee whose mortgage covered the identical land
owned by the company and conveyed by the company's trustee to one Overholser and by
him to the plaintiffs in error.
mortgage covered the identical land owned by the company and conveyed by the company's
trustee to one Overholser and by him to the plaintiffs in error. Attached to the mortgage, as
exhibit A, was a map showing the land, and the court held that this afforded a means of
certain identification.
Lehman v. Pierce, 109 Ind.App. 497, 36 N.E.2d 952, is not in point. The defendant had
agreed in writing that she had agreed to hold in trust for certain others the farm conveyed to
her by her father, and the court permitted this property to be identified by exact description, in
a suit to enforce the trust.
In Craven County v. Parker, 194 N.C. 561, 140 S.E. 155, 157, the description seems to us
not entirely satisfactory, but following a long line of South Carolina decisions and holding
that the only point was whether the land in question can be identified, the court held this
description sufficient: Richard Parker, 250 acres, Washington road, No.1 township. The
provisions of the North Carolina statute do not appear. It may well be that in the particular
county in which the assessment was made, this description was readily understood. In any
event this was not an action involving the title to the land, growing out of the tax proceedings.
It was simply a suit to collect the tax and to foreclose the county's certificates of sale to
enforce such collection. The owner was defending against the suit on the grounds, first, that
the sheriff should have levied on the taxpayer's personal property first, and secondly, that the
real property was not sufficiently described. The court distinguished this from an earlier
North Carolina case in which the same court had held insufficient a similar kind of
description, where there was a discrepancy in the acreage assessed. In the case at bar no
acreage or square footage at all is indicated, only one dimension being given.
There are few cases in this court on the subject matter. Appellant cites State v. Wells
Fargo & Co., 38 Nev. 505, 150 P. 836, 844, in which, however, the court noted that it is
essential to the validity of the assessment list and of all proceedings founded on it "that it
should contain a description of all the property intended to be assessed.
that it is essential to the validity of the assessment list and of all proceedings founded on it
that it should contain a description of all the property intended to be assessed. * * * Minute
particularity is not required, any description being sufficient which identifies the particular
property so clearly that the owner cannot be misled. The facts in the case, however, do not
afford to this holding a great deal of weight as authority for the sufficiency of the description
in the instant case. The assessor described the actual line of the Southern Pacific Company
through the county over which Wells Fargo & Co. operated its express business and placed a
valuation of $300 per mile for the intrastate business transacted. It covered the company's
personal property, both tangible and intangible. This court quoted with approval 37 Cyc.
1051, not only in support of the general rule mentioned above, but to the effect that a detailed
description would be more easily dispensed with where the assessor was unable to ascertain
the exact nature of the property. The main contention had to do with assessing the intangibles,
the restriction of the assessment to the intrastate as distinguished from the interstate business,
the reasonableness of the valuation fixed on a mileage basis, and the question whether the
same was excessive.
1. In State of Nevada v. Real Del Monte Mining Co., 1 Nev. 523, where the assessor
described the property as one mine of 4400 feet situate on Last Chance Hill, Judge Beatty
pointed out that this might convey no fixed idea to the generality of English scholars or
persons without a knowledge of the mining laws and customs of this and some of the
neighboring states, but was quite clear to us as meaning so many feet of a certain lode, vein,
etc. The only question for determination in the case was as to whether the assessor was
assessing the full and complete title to the land or only the possessory title. The court held
that it was the intention of the assessor to assess only the possessory right, and upheld the
assessment. Insufficiency of the description was not otherwise charged and no issue
thereon made.
otherwise charged and no issue thereon made. The case can hardly be cited as authority on a
point not raised. As noted by Justice Holmes, cases cannot be urged as authority for every
point that may be found lurking in the record where no issue of such point was made before
the court.
Terry v. Berry, 13 Nev. 514, is not in point. A sheriff's deed, in describing certain land,
had placed it in the wrong township, but the actual metes and bounds description recited in
the deed showed precisely where the land was. Judge Hawley held that the references and
monuments specified in the deed controlled the other parts of the description and in the event
of a discrepancy or a mistake are to be taken instead of the designation of the land as being in
any named township. It is true that in Brown v. Warren, 16 Nev. 228, this court held that a
deed conveying all the real estate, water rights and property of every description, real and
personal, in the State of Nevada, belonging to the parties of the first part conveyed the
property involved in the suit, which property was capable of identification by parol. This is
not authority for a conclusion that an assessment against John Doe for all of the property
owned by him in the State of Nevada is a valid assessment under our statutes.
As has been noted, the statutes of some of the states indicate the nature of the description
required in an assessment. The Nevada statutes throw but little light upon the exact nature of
the description that the assessor is required to use in making his assessment. Under Nevada
Compiled Laws, sec. 6423, every person is required to deliver to the assessor under oath a list
of real estate owned by him, etc. which list shall particularly describe each tract of land and
each city or town lot contained therein (so that the same may be found or known by such
description) * * *. Section 6447, requiring the county treasurer to advertise for sale property
upon which delinquent taxes are a lien, requires him to give a notice containing "the
description of the property on which such taxes are a lien and which will be sold for the
payment thereof."
to give a notice containing the description of the property on which such taxes are a lien and
which will be sold for the payment thereof. Section 6448 requires the treasurer to give the
purchaser at tax sale a certificate containing, among other things, a description of the land
sold. If the property is not redeemed, sec. 6449 directs the treasurer to give the purchaser a
deed of the property. Certainly some kind of description is clearly indicated, and the
so-called description under which the property was assessed in the present case falls as far
short of being an identification of the property as almost any description that could be cited as
an example.
2-6. Appellant maintains that on the back of the assessment roll the assessor platted the
property in question. However, the assessment made no reference to such plat. Appellant
contends also that this parcel, comprising approximately one acre, was deducted from the
assessment to appellant's predecessor, one Erquiaga, whose assessment was reduced from 66
acres to 65 acres. It is difficult to see how such fact can relieve the insufficiency of the
description. He also maintains that the lot so assessed was the same property described in a
certain deed from Erquiaga to Harris. Such fact, however, does not appear in the assessment.
He also insists that the fact that the name Harris Service Station appeared upon the property
(at least at the time of the trial) served to identify it. We do not consider this fact a sufficient
identification, nor did such fact appear on the assessment. It is also asserted that as there was
no other property in the vicinity used as a filling station, the term filling station lot
sufficiently identified it. This does not follow.
7. In holding, as we do, that the description in the present case was insufficient to support
a valid assessment, we find it neither necessary nor proper to promulgate a set of rules for the
assistance of county assessors in their description or identification of property assessed on
their rolls, nor do we imply that a complete and perfect description is essential. We are
unable, however, to agree with appellant's statement that "the most that can be claimed
here is that the description was abbreviated."
however, to agree with appellant's statement that the most that can be claimed here is that
the description was abbreviated.
8-10. Respondents rely upon the general rule of law recited in 51 Am.Jur. 636 as follows:
It is inherently essential to the validity of an assessment of real estate that the assessment
contain a description of the property sufficiently accurate and certain to enable the owner
readily to identify it as his and to furnish a basis for the tax lien and for proceeding in rem
against the tract, should such become necessary for the collection of the tax. It is further
stated: A description in an assessment which is inherently defective cannot be supported by
extrinsic evidence, and the fact that the owner was not actually misled does not validate the
assessment. The rule itself presents no great difficulty. It is in the application of such rule to
the description used in each given case that has in most instances caused the courts the
greatest concern. It is natural that cases involving varying degrees of certainty (or uncertainty,
depending upon the point of view) as to the description have not been uniform in applying the
rule. The degrees of uncertainty of description range from an assessment with an absolute
lack of description to cases in which the description was claimed to be invalid because the
degree of variation from the magnetic north was not recited. It would be futile to attempt to
draw a conclusion from all of the cases which could serve to govern all future cases or even
to govern the instant case. We can only conclude that the description given by the assessor in
this case was inherently defective and insufficient to support the tax sale. In the annotation
appearing at 67 A.L.R. 890, well over a hundred cases are digested in which tax sales were
held to be void (in some cases voidable), for insufficiency of the description in the notice of
tax sale, and in almost all of such cases the description serves far better to identify and
describe the property than that appearing in the instant case. The author of the annotation
says: The general rule is that the description of property in a notice of tax sale must be
sufficiently definite and certain to make the land attempted to be described capable of
identification, and an insufficient description in such a notice will render the tax sale
certificate and tax deed based thereon void."
description of property in a notice of tax sale must be sufficiently definite and certain to make
the land attempted to be described capable of identification, and an insufficient description in
such a notice will render the tax sale certificate and tax deed based thereon void. Each case
presents, of course, a distinct fact situation, and each separate description must be considered
to determine its sufficiency. We are not dealing with the insufficiency of the description to fix
the owner's personal liability for the taxes, but with cases where the proceeding is in rem. Nor
is the situation changed by the fact that such actions to quiet title are often characterized as
suits in equity.
1
We agree with the often-stated rule that the purpose of the requirement for a
description is, first, to give the necessary information or notice of the tax assessed against the
particular parcel, to the taxpayer himself; second, that the public may know what property is
liable for the tax and is to be sold in case of nonpayment; and third, that the purchaser may
obtain an adequate conveyance. See American Portland Cement Co. v. Certain Lands, 179
Ark. 553, 17 S.W.2d 281; People v. Southern Gem Co., 332 Ill. 370, 163 N.E. 825. These
purposes entirely fail of accomplishment unless we hold that a purported description so
insufficient as the present one is a jurisdictional defect and beyond the scope of the curative
provisions of sec. 6449, N.C.L.
11. Appellant maintains with great earnestness that respondents may not attack the
insufficiency of the description for the reason that respondent Harris himself furnished the
description to the assessor. Numerous authorities are cited in support of this rule. The rule
itself has been questioned by respectable authority and has been limited by other authorities
to cases in which the assessor used "the exact" description furnished by the taxpayer.
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1
But see opinion of Robinson, J. in Great Northern Ry. Co. v. Grand Forks County, 38 N.D. 1, 164 N.W.
320, 321. In a statutory action like this it is sheer folly for counsel to talk about rules of equity. * * * When the
answer and evidence snows that a claim is based on a void assessment, tax sale, or tax deed, then it must be
adjudged void as a matter of law, and there is no equity or discretion about it.
and has been limited by other authorities to cases in which the assessor used the exact
description furnished by the taxpayer. See 61 C.J. 883 and cases therein cited. Power v.
Bowdle, 3 N.D. 107, 54 N.W. 404, 21 L.R.A. 328, 44 Am.St.Rep. 511. However, it becomes
unnecessary for us either to adopt or reject this rule for the reason that it is clear in any event
that the assessor failed to use much material information given him by Harris in connection
with the description. Harris advised the assessor that the property was a part of the Erquiaga
farm and had been acquired from Erquiaga. The assessor could have used this information to
obtain either an exact description or at least a sufficient description to satisfy all reasonable
requirements. Harris told him at the time where the lot was. Such explanation must have
shown its frontage upon the highway, its depth of 125 feet and the fact that it was adjacent to
what was known as the post office lot. Yet the assessor used none of this data, except one
measurement of 300 feet. It is accordingly clear that appellant cannot invoke the rule, even if
it should be adopted by this court, that respondents are barred from questioning the
sufficiency of the description, by reason of the claim that they themselves furnished it.
But it is earnestly contended that the curative portions of sec. 6449 N.C.L. cure any defect
in the sufficiency of the description. Said section reads as follows: 6449. If the property is
not redeemed within the time allowed by law for its redemption, the treasurer, or his
successor in office, must make to the purchaser, or his assignee, a deed of the property,
reciting in the deed substantially the matters contained in the certificate of sale, and that no
person has redeemed the property during the time allowed for its redemption. The treasurer
shall be allowed a fee of three dollars for making such deed, which, together with the cost of
acknowledging the same, shall be paid by the purchaser; provided, that when the deed is
made to the county as the purchaser the treasurer shall make the deed and the county clerk
shall take the acknowledgment without charge; provided further, that such deeds
hereafter issued shall be recorded in the office of the county recorder within thirty days
from the date of expiration of the period of redemption.
shall take the acknowledgment without charge; provided further, that such deeds hereafter
issued shall be recorded in the office of the county recorder within thirty days from the date of
expiration of the period of redemption. If not so recorded, such deeds, and all proceedings
relating thereto from and including the assessment, shall be void as against any subsequent
purchaser in good faith and for a valuable consideration of the same real estate or any portion
thereof, where the latter conveyance shall be first duly recorded. All such deeds, whether
heretofore or hereafter issued, are primary evidence that the property was assessed as required
by law; that the property was equalized as required by law; that the taxes were levied in
accordance with law; that the taxes were not paid; that at a proper time and place the property
was sold as prescribed by law, and by the proper officer; that the property was not redeemed;
that the person who executed the deed was the proper officer; that where the real estate was
sold to pay taxes on personal property, the real estate belonged to the person liable to pay the
tax; and are (except as against actual fraud) conclusive evidence of the regularity of all other
proceedings, from the assessment by the assessor, inclusive, up to the execution of the deed.
Such deed conveys to the purchaser the absolute title to the property described therein, free of
all incumbrances, except when the land is owned by the United States, or this state, in which
case it is prima-facie evidence of the right of possession, accrued as of the date of the deed to
the purchaser. No tax heretofore or hereafter assessed upon any property, or sale therefor,
shall be held invalid by any court of this state on account of any irregularity in any
assessment, or on account of any assessment or tax roll not having been made or proceeding
had within the time required by law, or on account of any other irregularity, informality,
omission, mistake or want of any matter of form or substance in any proceedings which the
legislature might have dispensed with in the first place if it had seen fit so to do, and that
does not affect the substantial property rights of persons whose property is taxed; and all
such proceedings in assessing and levying taxes, and in the sale and conveyance therefor,
shall be presumed by all the courts of this state to be legal until the contrary is
affirmatively shown.
first place if it had seen fit so to do, and that does not affect the substantial property rights of
persons whose property is taxed; and all such proceedings in assessing and levying taxes, and
in the sale and conveyance therefor, shall be presumed by all the courts of this state to be
legal until the contrary is affirmatively shown. * * *.
Assuming then that the delinquent tax deed to Lyon County was primary evidence that
the property was assessed as required by law, respondents say that they assumed the burden
of proof in the district court and introduced the original records from which it is claimed the
insufficiency of the description in the assessment definitely appears, and that they accordingly
proved that the property was not assessed as required by law. Holding, as we do, that
respondents are correct in this contention, and it appearing that the provision of the section
making the deed conclusive evidence of the regularity of all other proceedings has no
application here, the curative portion of the section requiring consideration is the last
sentence of sec. 6449, as above quoted. In this regard respondents rely upon the rule cited in
61 C.J. 725, to the effect that want of a sufficient description by which real estate can be
identified is generally considered a jurisdictional defect not within the healing power of a
curative statute. Such rule seems well supported in reason, and the cases cited in the note
substantiate the text. In Manby v. Voorhees, 27 N.M. 511, 203 P. 543, 549, the supreme court
of New Mexico, referring to an earlier decision on the point, said: In that case the former
cases were collected, and we held in terms that the curative provisions of the statute did not
apply to jurisdictional defects in tax proceedings. We now add to the foregoing list of defects
which are jurisdictional, and which are not cured by the statute, that of failure of description
sufficient to identify the land. This must necessarily be so. If you have no description, you
have no subject-matter upon which the tax can be laid, and you have no property which can
be conveyed to the purchaser." Appellant seeks to distinguish this case because the New
Mexico statute provided that no tax sale should be declared void or set aside on account
of any irregularity in listing the same on the tax roll, etc., "if such property is described in
the assessment roll * * * by such description as will serve to indentify {identify) the
same."
be conveyed to the purchaser. Appellant seeks to distinguish this case because the New
Mexico statute provided that no tax sale should be declared void or set aside on account of
any irregularity in listing the same on the tax roll, etc., if such property is described in the
assessment roll * * * by such description as will serve to indentify (identify) the same. Laws
1899, c. 22, sec. 25. But this is even a more lenient requirement than our own statutory
requirement for a description of the property. As did this court in the Menteberry case
(Menteberry v. Giacometto) 51 Nev. 7, 267 P. 49, the New Mexico court had formerly held
that a premature sale was a mere irregularity and not jurisdictional (Maxwell v. Page, 23
N.M. 356, 168 P. 492, 5 A.L.R. 155) and had also formerly held that the restriction of
defenses to tax sales to the fact that the taxes had been paid, or the property was not subject to
taxation, was a valid exercise of statutory power. Straus v. Foxworth, 16 N.M. 442, 117 P.
831. It adheres, however, to its holding that where the description on the assessment roll does
not serve to identify the land as the subject of taxation, it forms no legal basis for the
assessment, despite the curative statute, and that the assessing of the property is one of the
essentials of taxation. The California cases relied upon by appellant to the effect that
insufficient descriptions are within the purview of the curative statute still concede that an
actual lack of assessment would not be within such purview. The curative statute under
consideration in the California cases mentioned was retrospective in its application, but this
fact hardly reconciles this kind of rationalization. It has been stated that a curative statute
must by its very nature be retrospective. See Annotation 140 A.L.R. 959. The Nevada statute
is both retrospective and prospective. Under it all tax deeds whether heretofore or hereafter
issued are primary evidence of certain things and conclusive evidence of others, and no tax
heretofore or hereafter assessed shall be held invalid under certain circumstances not
affecting the substantial property rights of persons whose property is taxed."
persons whose property is taxed. To cure a defect or irregularity before it comes into
existence does indeed appear to be an anomaly, but the courts appear largely to have
abandoned any distinction between retrospective curative acts and prospective curative
acts. The divergence does not appear to lie here or in a determination that an insufficient
description, or the lack of description, or lack of assessment, is classified as jurisdictional
or that it results in the taking of property without due process. Appellant cites one early
California case, namely, People v. Holladay, 1864, 25 Cal. 300, to the effect that matters of
description constituted the more common and obvious defects in such assessments and to
hold that such defects are not cured, so far as the validity of the assessment is concerned,
would be to defeat the main object and purpose of the act. However, the act in question
provided: The assessments of taxes upon all property, real and personal, in the several
counties of this state, for state or county purposes, for the fiscal year * * * shall be and are
hereby legalized and confirmed and are rendered valid and binding, both in law and equity,
against the persons and property assessed. St. 1861, p. 471. The defense of the insufficiency
of the description was raised against a suit by the state to recover the taxes. No question as to
determination of title was involved. As against the holding of the curative effect of this
statute, even for the particular purpose of a suit to recover the taxes, two of the justices
dissented, maintaining that the matters intended to be cured by the statute were sundry
formalities similar to the insufficiency of the notice which this court held was cured by our
statute in Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49. That case is likewise relied upon
by respondents as a recognition of the curative effect of the statute. It dealt, however, as
above noted, with an insufficient notice, which notice the legislature could have shortened or
even dispensed with entirely in its judgment. If People v. Holladay, supra, may be said to be
in point at all, we can only say that it is contrary to what appears to be the better rule.
to what appears to be the better rule. People v. McCreery, 1868, 34 Cal. 432, held that the
doctrine of People v. Holladay, supra, was limited by People v. San Francisco Savings Union,
31 Cal. 132, which held that the foundation for tax proceedings was the valuation and that the
assessor's failure in this regard was not within the scope of a curative statute. It applied the
curative provisions of the statute to the description only to the extent that the act corrects all
errors of mere mode and form. Augusti v. Lawless Heirs, 45 La.Ann. 1370, 14 So. 228, is to
the effect that an assessment which does not contain a description sufficient to identify the
property assessed is illegal and void, and therefore beyond the healing power of a curative
statutea sufficient description of the property being an indispensable prerequisite to the
exercise of the taxing power, and that such indispensable prerequisite cannot be supplied or
cured by legislation. The case is well reasoned, both in the original opinion and on rehearing.
Under the North Dakota statute the courts were given the power to amend and correct
irregularities and defects in assessments, but it was held in Great Northern Railway Co. v.
Grand Forks County, 38 N. D. 1, 164 N.W. 320, that an insufficient description rendered the
assessment void, and not subject to being cured. The description involved in that case was
much more complete than in the instant case, but was held so insufficient as to be void.
Reference was made by the court to an earlier North Dakota case holding the description
insufficient, in which the property was described as being in lot 2 N. 23 x 200 ft. deep,
(correctly naming the owner), because no point was given as the starting point for the
dimensions 23x200 ft. Before there can be any valid tax against land, says the court, there
must be a description sufficiently accurate and definite to enable the owner and others to
identify it. The defective description was held to be beyond the power of the court, in its
statutory authority, to cure.
statutory authority, to cure. Many other cases support the same rule.
12, 13. We are thus compelled to start from the premise that the validity of the assessment
list and of all proceedings founded on it depend upon the condition that such assessment list
contain a description of the property intended to be assessed. Such description is essential to
its validity. State v. Wells Fargo & Co., supra. Under present statutory requirements the
sufficiency of such description must necessarily be determined in each case. Without a
description the assessment is of no effect as supporting further proceedings resulting in a
delinquent tax sale. Patently, this is not affected by the provisions of sec. 6457, N.C.L.
authorizing the district attorney in suits to collect taxes to make additional and more certain
description than that contained in the assessment roll as he may deem proper, and authorizing
him in such case to prove that the property described in the complaint is the same as that
described in the assessment roll. Such situation is not involved here, even though we concede
the implication that the original description in the assessment, in such suits, need not be
perfect.
14. Appellant maintains that the judgment should be reversed because it does not appear
that plaintiffs tendered payment of the taxes. In view of what we have said as to the invalidity
of the tax sale and in view of the record as it comes to this court, the point is not well taken.
15. Appellant's brief devotes considerable time to a learned discussion of the trial court's
finding and conclusion that the tax proceedings culminating in the tax deed to Lyon County
deprived the respondents of their property without due process of law. He points out that the
only constitutional provision that could possibly have been violated is the requirement that
taxation be uniform, and cites Hagar v. Reclamation District, 111 U.S.
701, 4 S.Ct. 663, 28 L.Ed. 569, and Maxwell v. Page, 23 N.M. 356, 168 P. 492, 5 A.L.R. 155.
It is not necessary to a decision in this case that we determine that the tax sale to Lyon County
deprived respondents of their property without due process. It is well, however, to note our
further constitutional provision, article X, section 1, N.C.L. sec. 145, requiring the legislature
to prescribe such regulations as shall secure a just valuation for taxation of all property.
Appellant makes the broad assertion, but without citation of authority, that the legislature
could dispense with any description whatsoever in the assessment, and that the curative
provisions of sec. 6449, in effect, accomplish just that. Until and unless the legislature goes
so far as to eliminate all requirements for descriptions of property in tax rolls, we are loath to
ascribe to it any such intent. If sec. 6449 was intended by the legislature to mean that all
statutory requirements for tax proceedings were merely directory and that a tax deed wiped
out all defects, including those commonly classed as jurisdictional, the saving clause in sec.
6449curing any irregularity, informality, omission, mistake, etc., that does not affect the
substantial property rights of persons whose property is taxed would be meaningless, as well
as the presumption that all such sales and conveyances be presumed legal until the contrary
is affirmatively shown. In other words, it becomes unnecessary so to construe sec. 6449 as to
require it for the purposes of this case to be measured by the limitations of article X, section 1
of the constitution.
16. Respondents, in the trial court and in this court, attack the subsequent sale by Lyon
County to appellant. The trial court, as noted, held that sale to be void and respondents still
contend that it is void, by reason of the failure on the part of the county to give the statutory
notice. Appellant insists that if the legal title passed to the county by the tax deed,
respondents are in no position to attack the county's deed to him. Holding, as we do, that the
purported tax deed to Lyon County was void by reason of the insufficiency of the
description in the assessment, it becomes unnecessary to determine such point.
do, that the purported tax deed to Lyon County was void by reason of the insufficiency of the
description in the assessment, it becomes unnecessary to determine such point. See, however,
Gold Circle Crown Mining Co. v. Getchell, 58 Nev. 288, 76 P.2d 1097.
17, 18. Appellant further asserts, as grounds for reversal, alleged errors on the part of the
trial court in its rulings on the admissibility of certain evidence. These asserted errors were
not referred to in the oral argument, and were summarily treated in appellant's opening brief.
His closing brief refers only to the alleged error of the trial court in receiving the testimony of
Harris that he had received no notice of the assessment. It does not appear that the trial court
gave any effect to this testimony or considered a possible lack of notice any ground for
holding the assessment invalid. Further objection is made to a ruling made by the trial court
refusing to admit in evidence the tax deed to Lyon County without the laying of further
foundation. It appears, however, that the trial court thereafter did admit the deed in evidence
and gave the same due consideration. We find no material error in these or any other rulings
to which exception is taken.
For the reasons given, the judgment and order denying the motion for a new trial are
affirmed.
Eather, C. J., because of illness, did not participate in the preparation and rendition of the
foregoing opinion.
____________
64 Nev. 364, 364 (1947) Copren v. State Bar
JOHN V. COPREN, Petitioner, v. THE STATE BAR
OF NEVADA, Respondent.
No. 3481
July 15, 1947. 183 P.2d 833.
The supreme court on review of a decision of the board of governors recommending suspension of an
attorney from the practice of law was required to consider and weigh the evidence and to reach
conclusions and decision independently and irrespective of the findings and recommendations of the local
administrative committee and the board of governors but should give due consideration and accord
persuasive force to such findings and recommendations.
A higher degree of proof is required in a disciplinary proceeding against an attorney than is required
to determine questions of fact in the ordinary civil case or proceeding.
Evidence sustained finding that affidavits alleging service of notice of appeal to have been made on
attorneys for appellee within time required by law were false and justified recommendation by board of
governors and local administrative committee of suspension for one year from practice of law of attorney
swearing to the affidavits.
4. Judgment.
Evidence in California disciplinary proceedings against a member of the state bar of both Nevada and
California sustained California judgment of suspension, and California judgment would be recognized
under law of comity by Nevada supreme court where Nevada disciplinary proceedings against same
attorney were based partly upon the alleged misconduct in California for which attorney was suspended.
Where supreme court of Nevada in disciplinary proceedings against a member of state bar of both
Nevada and California would recognize, as a matter of comity, judgment of California supreme court
suspending attorney for same alleged acts of misconduct charged in the Nevada proceedings, the supreme
court of Nevada would suspend the attorney for the remainder of the term of the California judgment
rather than applying the California judgment literally as to the time of suspension therein provided, or
suspend for the period recommended by the board of governors. Comp.Laws, sec. 565; U.S.C.A.Const.
art. 4, sec. 1.
Petition by John V. Copren against the State Bar of Nevada to review the action of the
Board of Governors of the State Bar of Nevada recommending that petitioner be
suspended from the practice of law in the State of Nevada for three years, and for
dismissal of the proceedings against petitioner.
of the State Bar of Nevada recommending that petitioner be suspended from the practice of
law in the State of Nevada for three years, and for dismissal of the proceedings against
petitioner. Decision in accordance with opinion.
John V. Copren, in pro. per.
Harlan L. Heward, of Reno, Representative of the Board of Governors of the State Bar of
Nevada, for Respondent.
OPINION
The petitioner, John V. Copren, has petitioned this court to review the action of the board
of governors of the state bar of Nevada recommending that he be suspended from the practice
of the law in the State of Nevada for three years, and that upon such review the proceedings
against petitioner be dismissed.
The proceedings in this matter were initiated by a complaint in writing, verified by Bruce
R. Thompson, Esq., a member of the Local Administrative Committee of District No. 6, in
and for Washoe County, of the State Bar of Nevada, on the 3d day of November, 1945, and
thereupon filed by said committee.
It is alleged in paragraph II of the complaint that at all times mentioned in count 1 of
paragraph IV of the said complaint John V. Copren was an attorney at law, residing in San
Francisco, California, and Reno, Nevada, and was a member of the State Bar of Nevada,
engaged in the practice of his profession in said state, and that at all times mentioned in
counts 2 and 3 of paragraph IV of the complaint he was a member of the state bar of
California, engaged in the practice of his profession therein.
In count 1 of paragraph IV of the complaint certain acts of professional misconduct are
alleged as having occurred in the counties of Washoe, Lyon and Ormsby, in the State of
Nevada.
acts of professional misconduct are alleged as having occurred in the counties of Washoe,
Lyon and Ormsby, in the State of Nevada.
In said count 1 it is alleged that the accused, John V. Copren, on October 25, 1944, in
Reno, Nevada, before W. E. Zoebel a notary public in and for the county of Washoe, State of
Nevada, swore to, and that he caused to be filed, on November 2, 1944, in the First judicial
district court of the State of Nevada, in and for the county of Lyon, an affidavit. The said
affidavit, set forth in full in said count 1, is entitled, Affidavit of Service of Notice of
Appeal, and, among other statements, contains the following: Affiant avers that on the 14th
day of August, 1944, he served a true and correct copy of the attached Notice of Appeal, in
the above entitled matter upon said John R. Ross, who resides and has his law offices as
aforesaid; that he made said service by then and there on said 14th day of August, 1944,
enclosing a true and correct copy of said Notice of Appeal, a copy of which is attached hereto,
in a sealed envelope addressed to said John R. Ross, Sweetland Building, Carson City,
Nevada, and then and there on said 14th day of August, 1944, deposited said envelope so
addressed and containing said copy of said Notice of Appeal, in the United States Post Office
at Reno, Washoe County, Nevada, with postage fully prepaid thereon. Affiant avers that on
the 14th day of August, 1944, he served a true and correct copy of the attached Notice of
Appeal in the above entitled matter upon said George L. Sanford, who resides and has his law
offices as aforesaid; that he made said service by then and there on said 14th day of August,
1944, enclosing a true and correct copy of said Notice of Appeal, a copy of which is attached
hereto, in a sealed envelope addressed to said George L. Sanford, Industrial Building, Carson
City, Nevada, and then and there on said 14th day of August, 1944, deposited said envelope
so addressed and containing said copy of said Notice of Appeal, in the United States Post
Office at Reno, Washoe County, Nevada, with postage fully prepaid thereon.
Office at Reno, Washoe County, Nevada, with postage fully prepaid thereon. * * *
It is further alleged in said count 1 that the accused swore to a second affidavit, on
February 21, 1945, in Reno, Nevada, before Maurice J. Sullivan, a notary public in and for
the county of Washoe, State of Nevada, and thereafter caused said affidavit to be filed in a
proceeding before this court, entitled In the Matter of the Estate of Harry F. Powell,
sometimes known as and called H. F. Powell, deceased, No. 3425. Said affidavit, as alleged
in full in said count 1, is entitled Answer and Counter-affidavit of John V. Copren, and is
as follows:
State of Nevada, }
}ss.
County of Washoe. }
John V. Copren, being first duly sworn, deposes and says: that he is the appellant in the
above entitled proceeding; that affiant makes this affidavit in support of his motion in
opposition to respondent's motion to dismiss appeal and in answer to the affidavits served and
filed by said respondent in support of his said motion to dismiss appeal.
Affiant avers that the Notice of Appeal in the above entitled proceeding was served upon
John R. Ross and George L. Sanford, attorneys for respondent, and upon Walter Whitacre,
County Clerk of Lyon County, and ex-officio clerk of the First Judicial District Court of the
State of Nevada, on the 14th day of August, 1944, in the manner set forth in the affidavit of
service contained in the Transcript on Appeal on file in the above entitled Court.
Affiant avers that he has no information or belief upon the matters set forth in the
affidavit of Pete Petersen and basing his denial upon that ground denies generally and
specifically, each and every allegation in said affidavit set forth. That said affidavit of Pete
Petersen is not based upon any fact but suppositions alone.
Answering the joint affidavit of George L. Sanford and John R. Ross, affiant avers that he
has not sufficient or any information to answer the allegations therein contained as to
when said notice of appeal was received by each of said parties, but affiant upon and
according to his information and belief avers that said copies of said notice of appeal were
received by said parties prior to the time stated in said affidavit, and that said copies of
said notice of appeal were duly delivered in the regular course of mail.
or any information to answer the allegations therein contained as to when said notice of
appeal was received by each of said parties, but affiant upon and according to his information
and belief avers that said copies of said notice of appeal were received by said parties prior to
the time stated in said affidavit, and that said copies of said notice of appeal were duly
delivered in the regular course of mail.
Affiant avers that after mailing said notices of appeal as set forth in the affidavit on file,
and on or about the 16th day of August, 1944, he wrote a letter to said George L. Sanford and
said John R. Ross and mailed the original of said letter to said George L. Sanford, addressed
to him at Carson City, Nevada, and mailed the copy of said letter to said John R. Ross,
addressed to him at Carson City, Nevada, each to their respective office address, requesting a
copy of the Court order made on June 14th, 1944, and affiant avers upon and according to his
information and belief these are the envelops referred to in said affidavit.
It is further alleged in count 1, paragraph IV, as follows: That the allegations and
averments made in said affidavits were and are untrue and false and were known by the
accused at the time said affidavits were respectively sworn to and at the time that they were
respectively filed, to be false and untrue, particularly but not exclusively, in that the accused
did not, on August 14, 1944, serve a true, or any copy, of the Notice of Appeal in the action
and proceeding referred to in said affidavits, upon, or mail to either of the attorneys for the
Administrator in said action and proceeding, to-wit, John R. Ross or George L. Sanford, and
in that the accused did not serve upon or mail to said attorneys, or either of them, copies of
the Notice of Appeal in said action and proceeding until August 16, 1944.
In counts 2 and 3 of paragraph IV of the complaint, certain acts of professional misconduct
stated to have occurred in the State of California are alleged, as follows:
occurred in the State of California are alleged, as follows:
Count 2
Eugene Connelly died in October, 1937, leaving surviving him his widow and a son and
daughter. He bequeathed all of his estate to his widow. The estate consisted of only an
automobile, but three pieces of real property were in the name of Rosella Connelly
(hereinafter referred to as Mrs. Connelly) at the time of her said husband's death. Accused had
known Connelly and had transacted business with him for a long time before his death. The
accused sent for' Mrs. Connelly after the death of Connelly and suggested to her that it would
be advisable to bring an action to quiet title to the real property. At that time Mrs. Connelly
was 63 years of age and was inexperienced in business matters. She agreed to follow
accused's suggestions and it was arranged he would represent her in such action. It was
understood between them that accused would make no charge for his services because of his
previous association with Connelly. Thereafter accused discussed the matter of bringing the
action with William Breen, another member of the Bar, who had also been a friend of
Connelly, and was told that in Breen's opinion no action would be necessary to establish Mrs.
Connelly's title to the real property standing in her name. Accused then stated that the title
company had informed him that it would be advisable to have an administratrix with the will
annexed appointed and to bring suit to quiet title. Breen again disagreed with that view but
stated that nevertheless he would assist in the action in any way he could because of his
friendship with Connelly. Breen also stated that he would not charge a fee for his services but
would expect to be reimbursed for costs. Breen assisted in the matter by representing the
daughter, who was appointed administratrix with will annexed. Thereafter and on November
15, 1937, accused obtained from Mrs.
obtained from Mrs. Connelly the sum of $250 for the purpose of paying a fee to Breen for his
services in connection with the proceedings, on the understanding that if Breen's fee was less
than this amount the balance would be repaid to Mrs. Connelly. Accused instituted the quiet
title action against the administratrix with will annexed and on December 22, 1937 a decree
was entered quieting the title in Mrs. Connelly. Prior to this date accused had paid Breen $20
on account of expenses but no sum had been paid to him as a fee. No part of the remaining
$230 was expended for any purpose connected with the Connelly litigation, but accused
co-mingled said balance of $230 with his own funds and appropriated it to his own use and
benefit, without the knowledge of Mrs. Connelly.
On December 22, 1937 accused secured an additional sum of $50 from Mrs. Connelly on
the representation that it was to be used for expenses, although no other expenses were
contemplated at that time. This sum was not used for expenses but was appropriated by the
accused to his own use without Mrs. Connelly's knowledge or consent.
On March 10, 1938, Mrs. Connelly also paid accused the sum of $100 for the express
purpose of paying certain income taxes on her behalf. Of this sum only $54.65 was expended
by accused for payment of income taxes, and the balance was not returned to Mrs. Connelly
except at a later time and under compulsion.
On four different occasions during March, April and May, 1938 accused borrowed from
Mrs. Connelly sums of money aggregating $500, for which he gave her post dated checks. On
August 11, 1938 he borrowed an additional $500, at which time he gave her a promissory
note in the sum of $1,000 to cover the full amount of these loans. Thereafter he also borrowed
$215 from Mrs. Connelly and gave her a post dated check therefor, but this sum was
eventually repaid. On each of the occasions on which accused borrowed the sums referred to
he represented to Mrs.
he represented to Mrs. Connelly that he would have the funds to repay her promptly. He
thereby took advantage of her lack of business experience and of the confidence she reposed
in him as her attorney and as the friend of her deceased husband.
In October, 1939, at which time no part of the $1000 had been repaid, Mrs. Connelly
became disturbed because of the nonpayment and consulted Breen. She then learned for the
first time that he had not been paid the $230 or any sum as a fee in connection with the
probate proceeding and that accused had only paid him $20 for costs. Thereafter Mrs.
Connelly employed other counsel to represent her in collecting the money owed her by
accused. The accused then furnishing an accounting claiming certain expenditures on behalf
of Mrs. Connelly and paid her $300, which was accepted as full payment of the amounts
owing her from the advances made to him, except for the sums represented by the promissory
note. In an action on the note brought by Mrs. Connelly accused confessed judgment in the
sum of $1140. No part of said judgment has been paid.
Count 3
On May 6, 1943, one Routt was convicted of a criminal offense in the District Court of
the United States in and for the Northern District of California, Southern Division, on charges
of obtaining and selling marihuana. On May 12, 1943 Lillie Lee Routt, wife of the said Routt,
consulted accused as to the advisability of seeking a new trial or taking an appeal from the
judgment. It was agreed between them that accused would receive the sum of $50 for making
an investigation of the matter and advising said Mrs. Routt in the premises. On the following
day said Mrs. Routt gave accused the $50. At the time of these events an appeal had already
been taken by Alfred J. Hennessy, who had represented Routt at the trial. This fact was
unknown to said Mrs. Routt when she consulted accused, who did not become aware of said
fact until the institution of hearings before the State Bar of California, and subsequent to
July 7, 1943.
State Bar of California, and subsequent to July 7, 1943. On the date accused received the $50
he examined the file in the Federal Court action and learned that a notice of appeal had
already been filed. Thereafter accused failed to return the $50 to the said Mrs. Routt and
neglected to communicate with her further in connection with the matter.
The petitioner herein filed an answer, in which he admitted the swearing to and filing of
the affidavits set forth in count 1 of paragraph IV of the complaint, but in which he denied
any statements therein were false or untrue, and denied that he did not, on August 14, 1944,
serve by mail, or mail to, the attorneys mentioned in said count 1 the copies of the notice of
appeal involved, and denied that he did not serve same by mail, or mail same, until August
16, 1944.
The petitioner, in his answer, further denied all the charges of professional misconduct
alleged to have occurred in California, and which are alleged in detail in said counts 2 and 3
of paragraph IV of the complaint, and are hereinabove set forth. Furthermore, petitioner
attempted to explain, by way of affirmative defense, each of the said charges.
The proceedings in the case before the local administrative committee came on for hearing
January 15, 1946, and thereafter, being continued from time to time. The hearing was
completed April 2, 1946, and that committee thereupon made its findings and
recommendations.
The committee found to be true all the facts stated in paragraphs I, II and III of the
complaint; also found to be true all the facts stated in said count 1, paragraph IV (the
misconduct alleged to have occurred in Nevada by the making of the said affidavits alleged to
be false), and all the facts stated in counts 2 and 3, paragraph IV thereof (the misconduct
alleged to have occurred in California).
It is also stated, in paragraph 5 of the findings and recommendations of the committee that:
The facts set forth in Counts II and III contained in paragraph IV of the Complaint were
the basis of disciplinary proceedings against Respondent by the State Bar of California.
forth in Counts II and III contained in paragraph IV of the Complaint were the basis of
disciplinary proceedings against Respondent by the State Bar of California. All exemplified
copy of the transcript of said proceedings from their inception until their final determination
by the Supreme Court of California have been received in evidence and are part of the record
in this proceeding. The Supreme Court of California found the facts set forth in counts II and
III contained in paragraph IV of the complaint to be true, and ordered that Respondent John
V. Copren be suspended from the practice of law in the State of California for three years and
three months, effective December 1, 1944.
The committee made the following recommendations:
1. On the basis of the foregoing findings the Local Administrative Committee
recommends that the State of Nevada should recognize as a matter of comity and give faith
and credit to the judgment in the disciplinary proceedings against Respondent in the State of
California.
2. That John V. Copren should be suspended from the practice of law in the State of
Nevada for two years on Counts II and III contained in Paragraph IV of the Complaint; and
that John V. Copren should be suspended from the practice of law in the State of Nevada for
one year on Count I contained in paragraph IV of the Complaint, said periods of suspension
to run consecutively and until further order of the Supreme Court of Nevada.
It will be noted that the committee, in recommending suspension for two years on counts 2
and 3 of paragraph IV of the complaint (relating to the California misconduct), followed
closely the judgment of the supreme court of California based upon the same facts as alleged
in said counts 2 and 3. The California suspension for three years and three months, effective
December 1, 1944, would extend until March 1, 1948. If the two years suspension
recommended by said local administrative committee, on or about April 2, 1946, could have
become immediately effective, same would have expired on or about April 1, 194S.
become immediately effective, same would have expired on or about April 1, 1948.
It appears that, in accordance with the procedure of the state bar of Nevada, a Notice of
Receipt of Report, dated May 15, 1946 (referring to the said report and recommendations of
the local administrative committee, and including their findings and recommendations,
verbatim), together with a copy of rule XXXII of the rules of procedure of the state bar of
Nevada, was duly served upon the petitioner, and that thereafter, on June 4, 1946, the
petitioner served and filed his application for taking additional evidence, and request for trial
de novo, supported by his affidavit.
It further appears, from the record, that on December 13, 1946, the matter came on for
hearing before the board of governors of the Nevada state bar, upon such application to take
additional evidence, and for trial de novo. After hearing Mr. Copren's statements, and
cross-examining him, the board found that there were not sufficient facts presented to justify
the board in granting a trial de novo, or providing for the taking of additional evidence.
Thereafter, the board of governors of the state bar made its report, findings, and
recommendations, dated January 24, 1947. The findings of the board confirmed fully, and
stated, almost verbatim, the findings of the local administrative committee. The
recommendations of the board of governors, however, while they followed precisely the
recommendations of the local administrative committee in recommending that this court
should recognize as a matter of comity, and give full faith and credit to the judgment in the
disciplinary proceedings against accused in the State of California, did not follow the said
committee's recommendations as to the suspension of petitioner. They omitted entirely the
recommendation of suspension of one year for the misconduct alleged in count 1, paragraph
IV (the Nevada misconduct), and added one year to the two years recommended by the local
administrative committee for the misconduct alleged in counts 2 and 3, of paragraph IV
{the California misconduct), making same three years.
by the local administrative committee for the misconduct alleged in counts 2 and 3, of
paragraph IV (the California misconduct), making same three years. The board of governors
did this, notwithstanding the fact that their recommendations were made January 24, 1947
(more than nine months after the recommendations of the local administrative committee),
and three years from that date would carry the suspension until January 24, 1950, nearly a
year and eleven months beyond the expiration date of the California judgment, which is
February 29, 1948. We shall, hereinafter, refer further to this phase of the matter.
1. We must consider, for a moment, the question of the extent to which this court should
go in reviewing the action of the board of governors. Are we required to consider and weigh
the evidence, and to reach our conclusions and decisions independent and irrespective of the
findings and recommendations of the local administrative committee and the board of
governors? We believe that we are so required, although we should, in the exercise of our
discretion, give due consideration, and accord persuasive force, to their recommendations.
Lindenbaum v. State Bar, 26 Cal.2d 565, 160 P.2d 9.
This court has clearly expressed itself as to the extent of our powers and duties in the
opinion by Mr. Justice Sanders, in Re Scott, 53 Nev. 24, at pages 31, 32, 292 P. 291 292, as
follows: The first question to arise is: What is meant by the term review' as used in this and
other sections of the act? We are in accord with the authorities holding that the Supreme
Court, on review of a decision of disbarment or suspension of an attorney by the Board of
Governors of the State Bar, is not bound by findings or recommendations made by a Local
Administrative Committee, nor their adoption by the Board of Governors, and shall examine
the entire record anew to ascertain whether or not any charge has been proven which merits
disbarment or suspension, uninfluenced in whole or in part by the action taken by the board
or committee.
board or committee. In re Stafford [208 Cal. 738], 284 P. 670; In re Shattuck [208 Cal. 6],
279 P. 998; McVicar v. State Board of Law Examiners, D.C., 6 F.2d 33, 35.
We will now address ourselves to the question: Were the local administrative committee
and the board of governors justified, in view of the evidence before them, in finding that the
affidavits made by petitioner in Nevada (and upon which the charges of misconduct alleged
in count 1 of paragraph IV of the complaint are predicated) were false and untrue?
We believe that they were justified in so finding, and in their recommendations of
suspension for one year for such misconduct.
This court, in the case of In re Powell's Estate (Copren v. Montrose), 63 Nev. 19, 158 P.2d
545, 547, dealt fully with the matter of those affidavits, in considering a motion to dismiss the
appeal upon the ground that the notice thereof was not served upon the attorneys for
respondent within three days from the date of filing the original notice of appeal. The
Affidavit of Service of Notice of Appeal had been filed November 2, 1944, in the First
judicial district court of the State of Nevada, in and for the county of Lyon, as aforesaid, in
the proceeding entitled, In the Matter of the Estate of Harry F. Powell, sometimes known as
and called H. F. Powell, Deceased, and had become part of the record on appeal to this
court, and the other affidavit involved in the instant proceeding was entitled, Answer and
Counter-affidavit of John V. Copren, and was filed in this court in proceeding No. 3425 (the
Powell estate proceeding), in opposition to said motion to dismiss the appeal.
In said case of In re Powell's Estate, etc., supra, this court not only dealt fully with, and
discussed in detail, the above-mentioned affidavits of petitioner, but also with the joint
affidavit of the attorneys for the administrator, George L. Sanford and John R. Ross, in which
each stated, in effect, that he received a copy of the notice of appeal on August 17, 1944,
that same came in an envelope bearing a postmark, or cancellation mark, "Reno, Nev.,
each stated, in effect, that he received a copy of the notice of appeal on August 17, 1944, that
same came in an envelope bearing a postmark, or cancellation mark, Reno, Nev., Aug. 16,
4:30 P.M. 1944, and that he received no letter from Mr. Copren purporting to have been
written August 16, 1944, and no envelope purporting to contain any such letter, or to be from
Mr. Copren, bearing date August 16, 1944, other than the envelope containing a copy of the
said notice of appeal.
We will now quote the portion of said opinion by the late beloved Mr. Justice Ducker,
which deals, particularly, with the said affidavit of Mr. Copren made in opposition to the
motion to dismiss. In said opinion in Re Powell's Estate, etc., supra, on pages 546 and 547 of
158 P.2d, it is stated:
In his affidavit made in opposition to the motion to dismiss, and to the affidavits in
support of that motion, appellant reiterates that he served the notice of appeal as set forth in
the affidavit of service contained in the transcript of appeal. He avers that having no
information or belief upon the matters set forth in the affidavit of the Reno Postmaster, denies
all thereof, and alleges that said affidavit is not based upon fact but supposition alone. On
information and belief he avers that the copies of notice of appeal referred to in the joint
affidavit of Ross and Sanford were received by them prior to the time stated in their affidavit
and were delivered in the regular course of the mail. He further avers that after mailing said
notices of appeal and on or about the 16th day of August, 1944, he wrote a letter to said
George L. Sanford and John R. Ross and mailed the original of said letter to said George L.
Sanford, addressed to him at Carson City, Nevada, and mailed the copy of said letter to said
John R. Ross, addressed to him at Carson City, Nevada, each to their respective office
address, requesting a copy of the Court order made on June 14th, 1944, and on information
and belief avers that these are the envelopes referred to in their affidavit.
A question of fact is thus presented as to whether the notice of appeal filed with the clerk
of the court on August 12, 1944, was duly served within the three days required by said
section 9385.61.
If appellant served a copy of the notice of appeal on the 14th day of August, 1944, as he
alleged in his affidavit, the service was in time because, under the provisions of sec. 8920,
supra, service is complete at the time of the deposit in the post office. But it is otherwise if
the deposit was not made until August 16, 1944, for then the service was one day late. A
belated service is equivalent to no service at all, for there must be an actual service within the
time required by the statute. Our consideration of all the evidence impels us to conclude that
the preponderance thereof is against appellant's contention that the service of the notice of
appeal was made in the time prescribed by the statute. The postmarks on the envelopes
received by each of the administrator's attorneys are thus marked: Reno, Nev., Aug. 16, 4:30
P.M. 1944.' No contention is made that the postmarks are not genuine. The averment made in
appellant's counter affidavit that the envelopes bearing those postmarks were envelopes
enclosing letters to the attorneys which he had mailed on or about August 16, 1944,
requesting a copy of an order made by the court, is mere conjecture and bears the implication
that there has been a substitution. It is entitled to no weight. Counsel for the administrator are
reputable attorneys of this court. One of them is a Past President of the State Bar of Nevada.
Their affidavit and their characters, alike, refute the covert charge. A postmark on a letter is a
circumstance tending to show that the letter was not put in the post office until the day shown
in the postmark. Shelburne Falls Nat. Bank v. Townsley, 102 Mass. 177, 3 Am.Rep. 445;
Hurley Bros. v. Haluptzok, 142 Minn. 269, 171 N.W. 928; Ellis' Adm'r v. Planters' Bank, 7
Howe, Miss., 235; 2 Greenleaf Ev. sec. 193.
When as here, two letters written by the same individual, bear a postmark of the same
date, the circumstances become stronger because the chance that both were overlooked and
not stamped in the post office until a later date than their deposit, becomes less likely. That
two such letters were not noticed from the time of their deposit, as claimed on the 14th of
August, until the 16th of that month, is so improbable as to cast doubt upon the verity of
appellant's affidavit. The inference of a deposit in the post office on the latter date gains force
from the affidavit of the Reno postmaster as to the regularity of procedure in that office in
collecting and transmitting mail, and from the presumption that those in charge of receiving
and transmitting mail perform their duties in a regular and proper manner.
In reaching the conclusion that the preponderance of the evidence is against our
jurisdiction, we have also weighed appellant's affidavit in connection with the fact that his
integrity as an attorney at law has been recently impeached by the Board of Governors of the
State Bar and the Supreme Court of California, for dealings with clients, which resulted in his
suspension from the practice of law in that state for three years and three months. In re
Copren [25 Cal.2d 129], 152 P.2d 729.
The appeal is hereby dismissed.
The petitioner strenuously argued and contended in the instant proceeding, and in his
petition, also in his reply brief, that the expressions of this court, above quoted, being in a
civil proceeding, did not mean more than to find that the preponderance of the evidence was
against the truthfulness of appellant's statements to the effect that he mailed the copies of the
notice of appeal to George L. Sanford and John R. Ross, respectively, in the Reno post office,
on August 14, 1944; that it did not follow, nor was it implied, that this court meant to state, or
to hold, that it was established by such clear and convincing evidences as is required in a
proceeding such as thisquasi criminal in its nature and effectthat said affidavits were
false.
2. It is true that a higher degree of proof should be, and we believe is, required in a
proceeding such as this, involving the right and high privilege to continue to engage in the
practice of the law, than is required to determine questions of fact in the ordinary civil case,
or proceeding. And we are clearly mindful of that difference in the degree of proof.
In the affidavit in opposition to the motion to dismiss the appeal, the petitioner averred, on
information and belief, that the copies of the notice of appeal referred to in the joint affidavit
of George L. Sanford and John R. Ross were received by them prior to the time stated in their
affidavit, and were duly delivered in the regular course of mail. Petitioner further averred that
after mailing said copies, and on or about the 16th day of August, 1944, he wrote a letter to
George L. Sanford and John R. Ross, and mailed the original to said Sanford, addressed to
him at Carson City, Nevada, and the copy to said Ross, addressed to him at Carson City,
Nevada, requesting a copy of the court order made June 14, 1944, and, on information and
belief, further averred that these are the envelopes referred to in their affidavit.
The petitioner had no basis whatever to assert, upon information and belief or otherwise,
that Mr. Sanford or Mr. Ross received, respectively, the copy of the notice upon a date earlier
than they had sworn same were received, nor that they, or either of them, would resort to the
trickery or dishonesty of substituting one envelope for another, to perpetrate a gross fraud
upon the court, and wrongfully and criminally to bolster up their affidavit, which petitioner
insinuated was false, all for the purpose of depriving petitioner's client of her just right of
appeal.
As Mr. Justice Ducker so eloquently said, 158 P.2d on page 547 of In re Powell's Estate,
supra, above quoted, in referring to the joint affidavit of Messrs. Sanford and Ross: Their
affidavit and their characters, alike, refute the covert charge."
the covert charge. Perhaps it were better for petitioner had he not made such charges. It
shows his recklessness in assailing, without any sound basis or reasonable justification
therefor, the integrity of others. If petitioner had not mailed the copies of the notice until
August 16, 1944, as is most probable, such charges against Mr. Sanford and Mr. Ross
constituted willful perjury of the most vicious sort, attempted character assassination, in the
endeavor to fraudulently prevent the dismissal of the appeal, in spite of petitioner's
knowledge that he did not serve the copies of the notice of appeal within the time required by
law.
3. As Mr. Justice Ducker pointed out, in effect, in said opinion, when two letters written
by an individual bear postmarks of the same date, it is more probable that the postmarks
represent the true date of deposit than if one letter only were involved. In other words, it is far
less likely that two letters mailed, for instance, two days before the date the postmarks bear,
would be overlooked and remain undiscovered in a post office, than that one letter might
remain undetected. If Mr. Copren mailed the two copies of the notice at the same time, in
separate envelopes addressed to said respective attorneys, as he contends that he did, on
August 14, 1944, in the Reno post office, one addressed to Mr. Sanford and the other to Mr.
Ross, is it reasonable to believe that both envelopes would remain in the same mail receptacle
undiscovered for two days, and that both would be found at exactly the same time and bear
the same postmarks? It could occur, but the likelihood of this occurrence is so improbable
that, at most, it may properly be considered a remote possibility, such as perhaps might raise
a possible doubt in the instant proceeding as to whether or not the copies were mailed by Mr.
Copren on August 16, 1944, the date the postmarks bear, or earlier, as he contends, but not a
reasonable doubt. Bearing in mind, too, as did Mr. Justice Ducker, in Re Powell's Estate,
supra, 15S P.2d on page 547, the case in California, In re Copren, 25 Cal.2d 129, 152 P.2d
729, in which Mr.
158 P.2d on page 547, the case in California, In re Copren, 25 Cal.2d 129, 152 P.2d 729, in
which Mr. Copren's integrity had been impeached, and the opinion in which case was filed,
by the supreme court of California, November 1, 1944, just one week after the petitioner
swore to the first of the affidavits involved in the instant proceeding, October 25, 1944,
before W. E. Zoebel, notary public, and less than four months prior to the second affidavit by
petitioner involved herein, sworn to February 21, 1945, before Maurice J. Sullivan, a notary
public; and bearing in mind, also, as before mentioned, petitioner's reckless and baseless
insinuations of perjury and fraud against two reputable members of the Nevada bar, which are
entitled to no consideration whatever, we have no hesitancy in reaching the conclusion that
the charge against petitioner contained in count 1, paragraph IV, of the complaint, to the
effect that the said two affidavits therein fully set forth, made by petitioner on October 25,
1944, and February 21, 1945, respectively, were false and untrue, has been established by
clear and convincing evidence.
Considering now the acts of misconduct which occurred in California, and which are
alleged in counts 2 and 3 of paragraph IV of the complaint. By virtue of an amendment to the
complaint, the California proceeding is stated to be based upon the facts alleged in said
counts 2 and 3, and an exemplified copy of the transcript of said proceeding was received in
evidence and is part of the record in this proceeding. As has been stated, the supreme court of
California found the said facts to be true, and ordered the suspension of petitioner for three
years and three months, effective December 1, 1944. Both the local administrative committee
and the board of governors have, as aforesaid, recommended that this court should recognize,
as a matter of comity, and give full faith and credit to, the California judgment.
The respondent has referred to cases cited in an article in the Nevada State Bar Journal of
April, 1946, in support of the recommendation that the California judgment be recognized
by this court, as a matter of comity.
in the Nevada State Bar Journal of April, 1946, in support of the recommendation that the
California judgment be recognized by this court, as a matter of comity. We find that those
cases, and others generally, hold that a judgment of disbarment rendered in one state should,
as a matter of comity, and in order to promote the maintenance of the proper decency and
dignity in the legal profession, be recognized in a sister state, or states, in which the charged
attorney was licensed to practice. Some of the authorities cited are: Selling v. Radford, 243
U.S. 46, 37 S.Ct.377, 61 L.Ed. 585; Ann.Cas. 1917d, 569; In re Van Bever, 55 Ariz. 368, 101
P.2d 790; Id., 58 Ariz. 365, 120 P.2d 403; In re Leverson, 195 Minn. 42, 261 N.W. 480; In re
Brown, 60 S.D. 628, 245 N.W. 824; State Board v. Brown, 53 Wyo. 42, 77 P.2d 626; In re
Ulmer, 268 Mass. 373, 167 N.E. 749; United States v. Green, C.C., 85 F. 857.
In only one of the above-mentioned cases has there been merely suspension, rather than
disbarment, namely, In re Brown, 60 S.D. 628, 245 N.W. 824. In that case, the supreme court
of South Dakota recognized, as a matter of comity, a judgment of the supreme court of
Wyoming suspending, on the 9th day of September, 1930, one Edwin L. Brown from the
practice of the law for three years. The South Dakota judgment was rendered December 13,
1932, when the Wyoming judgment had remaining less than nine months to run. By the South
Dakota judgment, the suspension in that case was to continue only until the 9th day of
September, 1933, or until such time as it was made to appear that the judgment of suspension
of the Wyoming court has been modified or set aside. In that case, the supreme court of
South Dakota further stated: It is true that the judgment of the Wyoming court was not a
judgment of disbarment, but rather a judgment of suspension; however, we see no good
reason why, under the law of comity between states, we should not recognize this judgment
of suspension in the same manner as we would recognize a judgment of disbarment
under the authority of the above-cited case."
judgment of suspension in the same manner as we would recognize a judgment of disbarment
under the authority of the above-cited case.
4. We agree with the reasoning of the honorable supreme court of South Dakota, and
believe that, in the spirit and under the law of comity, we should recognize the California
judgment of suspension in the instant case, as to the acts of misconduct of petitioner which
occurred in California. The facts as to such acts of professional misconduct in that state are
fully alleged in counts 2 and 3 of paragraph IV of the complaint, and are hereinbefore quoted.
It was upon the basis of those facts that the supreme court of California rendered its
judgment.
Petitioner has alleged in his answer, and contended in his petition and brief, that the
findings by the supreme court of California as to the facts alleged against him in the
California proceedings were untrue, and that such findings and judgment were wholly
unjustifiable. As to that phase of the case, we may state that we have fully considered
petitioner's versions and contentions and explanations as to the various accusations included
in the California proceedings, and the reasoning and findings of the supreme court of
California in regard thereto, as contained in Re Copren, supra, and are fully convinced that
the findings of that honorable court were true and sufficiently established by the evidence in
that proceeding, and that the reasoning of that court in the per curiam opinion is sound, and
the judgment of suspension fully justified. I had intended to quote from the detailed
discussion, as to the facts in the California proceedings, in Re Copren, supra, 152 P.2d from
pages 730-732, but to do so would unduly lengthen this opinion.
A striking instance of petitioner's disregard of the rights of Mrs. Connelly, a client, in his
handling and accounting of trust funds, was his conduct in regard to $100, which, in March,
1938, she entrusted to him to pay, for her, certain income taxes. This is one of the items of
misconduct in California alleged in count 2, paragraph IV, of the complaint in the instant
proceeding.
items of misconduct in California alleged in count 2, paragraph IV, of the complaint in the
instant proceeding. Petitioner paid out only $54.65 for such purpose, and did not return the
balance to Mrs. Connelly, nor give any satisfactory reason for not doing so, until some time
in 1940, when he was forced to render an accounting to Mrs. Connelly of this and the other
money above referred to. (The quotation is from the said per curiam opinion.)
The utter indifference of petitioner to, or his failure to conceive, his proper duties as to the
handling of trust funds is revealed by petitioner in his answer in the instant proceeding,
relative to said income tax money, in paragraph VI, page 4, of his answer. The petitioner
alleged: Admits the receipt of $100.00 on March 10, 1938, but denies that there was any
obligation to immediately pay income taxes and then immediately return a remaining balance
to Mrs. Connelly, or that there was compulsion compelling the accounting and return of the
balance.
Such reasoning seems to imply that an attorney may receive, in trust, funds from his client,
discharge the duties of the trust whenever it suits his convenience, in the meantime retaining
the client's money, and then, after finally performing the trust duty, that he may retain such
balance of the money as remains, until, in his own good time he sees fit to return it. Such
reasoning and practice, if upheld, would, of course, encourage and render easy of
accomplishment the misappropriation of trust funds and commingling them with the personal
funds of the attorney.
5. In the instant proceeding we shall fully recognize, as a matter of comity, the California
judgment. But should we attempt to apply it literally as to the time of the suspension therein
provided, three years and three months, or should we suspend for three years, as
recommended by the board of governors, or merely suspend for the remainder of the term of
the California judgment, that is until March 1, 194S?
that is until March 1, 1948? The South Dakota supreme court applied, in principle, the latter
alternative, as above stated, in Re Brown, supra. It would seem that that is the correct theory.
If recognition is given by a state to the judgment of a sister state as a matter of comity, same
should be deemed a recognition of all the terms of the judgment, including the precise time
covered by its duration period. In 34 C.J. 1127 it is stated: Furthermore courts should not
determine what part of a judgment of a court of another state should be effective and what
part not, as, if such judgment is regular on the face of the record it must be given effect in all
its terms. See, also, 50 C.J.S., Judgments, sec. 889.
The judgment in California, suspending Copren, did not provide merely that the
suspension shall be for three years and three months, without providing precisely as to when
same should commence, but expressly provided that effective thirty days from the filing of
this decision petitioner be suspended from the practice of law in this state for the period of
three years and three months [152 P.2d 734]. The decision was filed November 1, 1944,
hence the period of suspension was prescribed precisely as the period commencing December
1, 1944, and ending three years and three months from that date. The term or time of duration
is as much a part of the judgment as any other portion of it, and as much entitled to respect.
The misconduct which is the basis of the judgment having occurred in California, the
California supreme court, being apprised of all the facts and circumstances, must be deemed
to have been in a position to determine, more wisely than any other court, the extent of the
proposed suspension, and the time during which it should be suffered in order to teach to the
offending attorney the proper lesson. That court did so, and provided, in effect, that the
judgment should be deemed fulfilled and fully satisfied upon the expiration of three years and
three months from December 1, 1944.
Has any other state the right to base its judgment upon that judgment, as a matter of
comity, and yet to ignore the time limitation of that judgment, and provide another time
period during which it shall be operative, merely because the state bar of such other state
did not promptly learn of that judgment, and did not proceed more rapidly with its
proceeding?
upon that judgment, as a matter of comity, and yet to ignore the time limitation of that
judgment, and provide another time period during which it shall be operative, merely because
the state bar of such other state did not promptly learn of that judgment, and did not proceed
more rapidly with its proceeding? We believe not. If that course should be sanctioned, an
attorney could be suspended in original proceedings in one state, and, if he were a member of
the bars of three other states (for example, could be suspended in each of the other three states
at respective later times for periods that could cover, or aggregate, many times the period of
the original suspension, thus making the suspension periods virtually consecutive, rather than
concurrent.
Thus, when the court which, because of its superior knowledge of the surrounding facts
and circumstances is best fitted to determine when the good results hoped for from the
suspension will most likely be accomplished, has fixed the time when the attorney will be
eligible to resume his place in the profession, such determination should not be defeated,
either wholly or in part, by the discordant or inconsistent action of some other state or states.
This would tend to increase the punishment far beyond that intended by the supreme court of
the state in which the misconduct occurred, and would operate to increase same, in some
cases, far in excess of the requirements of justice. If the state bar of such sister state, or states,
was not diligent in proceeding promptly, the punishment would be increased in proportion to
their lack of diligence. This would be unfair and unjust to the suspended attorney, and cannot
reasonably be sanctioned. Such result is not contemplated, we believe, in the proper
conception of the scope of the doctrine relative to the recognition of a judgment in the spirit
of comity. When the original judgment ceases to exist, all other judgments predicated
thereon, whether by reason of comity or under the full faith and credit provision of the
constitution, article 4, sec. 1, must likewise expire, especially in cases of suspension of an
attorney.
especially in cases of suspension of an attorney. Thus, we adopt the theory upon that
proposition most strongly urged by petitioner, and also applied in Re Brown, supra, by the
supreme court of South Dakota, and shall provide for a suspension for the professional
misconduct alleged in counts 2 and 3 of paragraph IV of the complaint, to and including
February 29, 1948, the date of the expiration of the California suspension.
This conclusion is contrary to the recommendation by the board of governors, of three
years' suspension. While we respect the recommendations of the board, and commend the
diligence of the members thereof, and appreciate their valuable, though uncompensated
services, in this and similar cases, we must, after all, discharge our duties as members of the
court in accordance with our best conception of legal principles, and adopt that course in the
particular case which we conceive to be best calculated as a precedent to promote justice and
equity.
As Mr. Justice Sanders pointed out, in Re Scott, supra, to which we have already referred,
we are not bound by, nor is it our duty to follow in all cases the recommendations of the
board of governors of the state bar. Indeed, the last clause of section 26 of the act creating a
public corporation to be known as State Bar of Nevada, expressly provides, Nothing in
this act contained shall be construed as limiting or altering the powers of the courts of this
state to disbar or discipline members of the bar as this power at present exists. Comp. Laws,
sec. 565. We have, however, followed rather closely the recommendations of the local
administrative committee and, except as to the duration of the suspension and the basis upon
which it shall be placed, the recommendations of the board of governors. And we believe
their recommendations should be carefully considered in such cases, and, as before stated,
should carry persuasive force.
While it is our view that we must limit the suspension for the California misconduct to the
time covered by the California judgment, we believe, also, that the acts of misconduct
committed in Nevada constituted a most serious violation of the criminal law and of the
principles and ethics of the legal profession, and should not be disregarded in determining
the judgment in this proceeding.
by the California judgment, we believe, also, that the acts of misconduct committed in
Nevada constituted a most serious violation of the criminal law and of the principles and
ethics of the legal profession, and should not be disregarded in determining the judgment in
this proceeding.
It is, therefore, the decision and order of this court that the petitioner, John V. Copren, be,
and he is hereby, suspended from the practice of the law in this state, for the professional
misconduct alleged in counts 2 and 3 of paragraph IV of the complaint, such suspension to
commence upon the date this decision is filed, and to continue until, and including, the 29th
day of February, 1948; and that the said petitioner be, and he is hereby, suspended from the
practice of the law in this state for the professional misconduct alleged in count 1 of
paragraph IV of the complaint, such latter suspension to commence March 1, 1948, and to
continue for the period of one year therefrom, and until he is by this court ordered reinstated.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the above-entitled case.
August 12, 1947.
Per Curiam:
Rehearing denied.
____________
64 Nev. 390, 390 (1947) State Bar v. Raffetto
THE STATE BAR OF NEVADA, Plaintiff v. FIORE
RAFFETTO, Attorney at Law, Defendant.
No. 3482
July 16, 1947. 183 P.2d 621.
In reviewing report, findings, and recommendations of board of governors of state bar in disciplinary
proceeding, supreme court must exercise independent judgment, not controlled or bound by fact findings
or recommendations of local administrative committee and board, but prepared to accord persuasive
force thereto. Comp.Laws, sec. 565.
Evidence justified findings of local administrative committee and board of governors of state bar that
attorney paid unlicensed person for producing divorce clients, so as to authorize attorney's suspension
from practice of law for six months. Comp.Laws, secs. 565, 573.
Disciplinary proceeding by the State Bar against Fiore Raffetto, an attorney at law. On
defendant's application for review of the report, findings, and recommendations of the Board
of Governors of the State Bar. Defendant suspended from practicing law for six months.
Harlan L. Heward, of Reno, for Plaintiff.
Clyde D. Souter, of Reno, for Defendant.
OPINION
This proceeding was initiated in this court by the filing herein by the defendant of a
pleading entitled as above and denominated Application by the Defendant for Review of the
Report, Findings and Recommendations of the Board of Governors of the State Bar of
Nevada, filed January 25, 1947 in the above entitled Court. The findings referred to were as
follows: "1.
1. The Board of Governors finds that the said Accused, Fiore Raffetto, did, in Reno,
Nevada, on July 16, 1946, pay the sum of $30 to one Peter James Howton Rogers, for
forwarding a divorce client to said Accused, and that said Accused remunerated said Peter
James Howton Rogers for soliciting and obtaining professional employment for said
Accused, and that said Accused did directly share with an unlicensed person, to wit Peter
James Howton Rogers, compensation arising out of and incidental to professional
employment.
2. The Board finds that said Accused, Fiore Raffeto, did in Reno, Nevada on July 17,
1946, pay the sum of $30.00 to one Peter James Howton Rogers, for forwarding a divorce
client to said Accused, and that said Accused remunerated said Peter James Howton Rogers
for soliciting and obtaining professional employment for said Accused, and that said Accused
did directly share with an unlicensed person, to wit said Peter James Howton Rogers,
compensation arising out of and incidental to professional employment.
The recommendations were that defendant be suspended for a period of six months on
count one and six months on count two and until the further order of the court, and that the
two terms run concurrently, and that during the period of suspension the defendant be
restrained from practicing law until reinstated. The report referred to the prior proceedings,
findings and recommendations of the local administrative committee of the state bar of
Nevada in and for Washoe County culminating in the recommendation of that committee that
defendant be suspended from practice in Nevada for one year on each count, running
consecutively. In other words, the board of governors, in effect, reduced to six months the
two-year penalty recommended by the local committee.
1. We are first concerned with the insistent reliance of the defendant upon the function of
this court as outlined by Sanders, J. in Re Scott, 53 Nev. 24, 31, 292 P.
291, 292. This has to do with the contention that the findings of the local administrative board
and the findings of the board of governors in the matter reviewed cannot be considered as
persuasive or as a matter of fact considered as having any weight whatsoever. The language
of Justice Sanders in the Scott case is as follows:
1. The first question to arise is: What is meant by the term review' as used in this and
other sections of the act? We are in accord with the authorities holding that the Supreme
Court, on review of a decision of disbarment or suspension of an attorney by the Board of
Governors of the state bar, is not bound by findings or recommendations made by a local
administrative committee, nor their adoption by the Board of Governors, and shall examine
the entire record anew to ascertain whether or not any charge has been proven which merits
disbarment or suspension, uninfluenced in whole or in part by the action taken by the board or
committee. In re Stafford [208 Cal. 738], 284 P. 670; In re Shattuck [208 Cal. 6], 279 P. 998;
McVicar v. State Board of Law Examiners, D.C., 6 F.2d 33, 35.
It must be noted in this regard that the statement thus made by the court was a preliminary
statement in the court's discussion of the constitutional question involved. The contention had
been made that section 26 of the state bar act, Comp. Laws, sec. 565, violated section 1 of
article III of the constitution relative to the distribution of the powers of government in that
the section conferred upon the board of governors judicial power with respect to the
suspension or disbarment of attorneys. It is quite evident that the determination by the court
of this first question was for the purpose of showing that the final act of suspension or
disbarment was the act of the court itself; that such purpose was made clear by the proviso:
Nothing in this act contained shall be construed as limiting or altering the powers of the
courts of this state to disbar or discipline members of the bar as this power at present exists;
that it is clear that the findings of the board of governors or the local administrative
committee are merely recommendatory and not final, and do not and cannot amount to a
judgment of disbarment or suspension.
the findings of the board of governors or the local administrative committee are merely
recommendatory and not final, and do not and cannot amount to a judgment of disbarment or
suspension.
This is the more clear from an examination of the three authorities referred to by Mr.
Justice Sanders. In fact his statement uses the precise words used in McVicar v. State Board
of Law Examiners, D.C., 6 F. 2d 33, 34. The only question raised in that case was the
constitutionality of the Washington statute, which did as a matter of fact give finality to the
order of suspension or disbarment made by the board of governors. The court did hold that
such provision was unconstitutional, but that sections of the act were separable and that the
remaining sections did not transgress any constitutional limitations. It is significant that the
court in that case (which was a bill for an injunction to restrain the disbarment proceedings)
ordered the bill dismissed as being without equity. The reason for this was that the supreme
court of Washington, despite the finality given by the statute to the order of the board of
governors, treated that order as a report of an intermediary agency and held that the order
finally entered by the court reflected the independent judgment of the court, uninfluenced
either in whole or in part by the action taken by the board. Here again it will be seen that the
reference to the independent action of the court was for the purpose of showing its right to
review the record independently and make a final determination, so that its jurisdiction was
not merely appellate in character.
The same situation applies to the two California cases cited by this court. In the Shattuck
case the term review as used in the act was held not to bear the limited significance
attributed to the writ of review or certiorari as used in the California Code of Civil
Procedure, sec. 1067 et seq., so as to narrow the powers of the court to the single issue of
jurisdiction, but that the review contemplated consisted in a reexamination by this court of
the entire record of the proceedings before said board * * *."
this court of the entire record of the proceedings before said board * * *. [208 Cal. 6, 279 P.
999]. It was further held that the powers of the board of governors under the act possessed
no * * * finality whatever in effecting the disbarment or suspension. The California act,
like our own, provided for the striking of the attorney's name from the rolls if the decision of
the board of governors be affirmed. The same section adhering to the inherent powers of
the court to discipline members of the bar is also found word for word in the California
statute. The court recites that it is manifest that the only orders intended to have the effect of
working the disbarment, suspension, etc., are the final orders made by the court under the act,
and that any decision made by the board of governors is merely recommendatory in
character, and has no other or further finality * * *. It was accordingly held that the
legislative intent was not to invest the board with any powers which can be said to possess
the finality and effect of judicial orders, and that the constitutional restriction was therefore
not violated. The court then makes this significant statement: We are satisfied that such
recommendation is justified by the facts of the case. The finding that the recommendation of
the board is justified by the facts, and the presence in the Nevada statute as well as in the
California statute of the provision for affirming the decision of the board, hardly indicate
that the board's findings should be totally ignored.
In the Stafford case [208 Cal. 738, 284 P. 671] the supreme court of California said: This
court is not bound by the findings or recommendations made by the Local Administrative
Committee, nor their adoption by the Board of Governors, and will examine the record anew
to ascertain whether or not any charge has been proven against the petitioner which merits
disbarment. The purpose of reviewing the three authorities relied upon by Mr. Justice
Sanders in the quotation from his opinion in Re Scott supra, is to determine to what extent
the learned justice {Ducker, C. J., concurring, and Coleman, J., dissenting) intended to go
in such statement.
extent the learned justice (Ducker, C. J., concurring, and Coleman, J., dissenting) intended to
go in such statement. As we have seen, its chief purpose was undoubtedly to relieve the
statute of any charge of a constitutional infringement. The defendant, on the other hand,
insists that its effect is to deprive the findings of the local administrative board and the board
of governors of any effect or weight whatsoever. Counsel for the state bar of Nevada
concedes frankly that the court is not bound by the decisions of the local administrative
committee or the board of governors, but insists that the decision of two such bodies is
entitled at least to persuasive weight and quotes from two later California authorities as
follows:
Ordinarily the findings of the Local Administrative Committee which have been
approved by the Board of Governors will be followed by this court, although it is not bound
thereby. Moura v. State Bar of California, 18 Cal.2d 31, 112 P.2d 629, 630.
And while the findings of the fact finding body are not binding on this court, they should
be accorded persuasive force' and should be entitled to great weight' in this proceeding.
Lindenbaum v. State Bar of California, 26 Cal.2d 565, 160 P.2d 9, 12.
How literally and in what sense are we to accept the statement of Sanders, J., that this
court's examination of the entire record to ascertain whether or not any charge has been
proven which merits disbarment or suspension should be uninfluenced in whole or in part
by the action taken by the board or committee? We cannot bring ourselves to believe that
this language was intended to be construed (in view of the purposes of the holding) as
meaning that the recommendation of the local committee concurred in by the board of
governors should be ignored, that it might as well for all intents and purposes be expunged
from the record except insofar as to show that there was a compliance with the procedural
requirements of the act.
Webster's International Dictionary, Second Edition, Unabridged (1935), gives as one of the
synonyms of the noun influence the word control. Another synonym given is mastery.
Another is effect. A synonym of the verb influence is determine. Another is induce.
We are inclined to think that it is in one of these more restricted meanings that the word was
used in the opinion of Mr. Justice Sanders, and particularly that he used it in the sense of
control. This was all that was necessary to satisfy the constitutional question there at issue.
In no sense was it to be understood that the recommendations of the committee or the board
could control the action of this court, in which alone may lie the authority to make a final
decision of disbarment or suspension. The later California cases, decided long after the
Shattuck and Stafford cases cited in the Scott case, reiterated the rule, as we have seen, that
the findings of the committee and the board should be accorded persuasive force and should
be entitled to great weight. As the supreme court of California, despite its decisions in the
Stafford and Shattuck cases cited by Mr. Justice Sanders, continues to feel that the findings of
the board are persuasive, we are the more convinced that the freedom from the influence of
the board or committee, as mentioned by Judge Sanders, means nothing other than the court's
freedom from the control or controlling influence of the findings or recommendations of
either or both boards. The integrity of purpose of both boards is frankly granted by the
defendant. It would be placing a great strain on the ratiocination of this court to attempt
entirely to ignore the conclusions of a board of nine lawyers (the record shows a quorum
present), constituting a local administrative committee, and a board of nine more lawyers (the
record shows two absent) constituting a board of governors, when it is conceded that all of
such men are honored members of the bar, freely and generously giving their time to a most
unpleasant task. We accordingly approach our independent review of the record under the
rule, which we hereby reaffirm, that ours must be an independent judgment, not
controlled or bound by either the findings of fact or recommendations of either board, but
prepared to accord persuasive force to the findings of fact and recommendations of the
local administrative committee and the board of governors.
under the rule, which we hereby reaffirm, that ours must be an independent judgment, not
controlled or bound by either the findings of fact or recommendations of either board, but
prepared to accord persuasive force to the findings of fact and recommendations of the local
administrative committee and the board of governors.
2. This court, as well as the local administrative committee and the board of governors,
would be most naive if it pretended ignorance of the long prevailing and unabated rumors of
the scandal of the so-called divorce racket in certain parts of the state. The local committee
properly initiated an investigation. It found that from January 2, 1945, to December 31, 1945,
the defendant had filed and tried 308 divorce cases. From January 2, 1946, to July 24, 1946,
he had filed and tried 271 divorce cases, or a total of 579 cases in a little over one and
one-half years. These figures cover Washoe County only. The testimony of the defendant's
secretary indicates that he also handled many divorce cases in other counties. In the number
of divorce cases filed and tried, he was exceeded by only one attorney. Several other attorneys
approached the record more or less closely. The development of the situation from this point
is then pictured by defendant's counsel substantially as follows: That the committee and its
investigator devised a plan to entrap the defendant, pursuant to which a taxicab driver (a man
formerly employed by naval intelligence) was to enter the office of the defendant, offer to
bring a divorce client to him for compensation, then to produce a woman as such client and to
return later for payment; that this was to be repeated a second time with a second client;
that two police officers, having first searched the taxicab driver to be certain that he had no
money on his person, were to follow him and the client in each instance for the purpose of
being able to testify as to the money transactions and to handle certain marked money given
to the two women with which they were to pay retainers to the defendant, having in view that
the defendant might pay the taxicab driver with a part of the retainers in the marked money.
marked money. Counsel for the state bar do not contradict this statement on behalf of the
defendant. Defendant bitterly assails such a situation, but it does not become necessary for the
court to comment upon it. Our task is simply to review the entire matter, including all of the
testimony and the documentary evidence, and to determine whether the evidence was
sufficiently clear and convincing to justify the findings of fact of the local administrative
committee and the board of governors and to justify similar findings on our part, or to
determine that the evidence is such as to warrant a determination of this court that the charges
should be dismissed.
Witnesses testifying before the local committee included the defendant, Peter James
Howton Rogers, Allen Glass, James Morsberger, Betty Barr, Gladys Petrie, Harlan L. Heward
and Louise Carl. (There was no trial de novo before the board of governorsthe defendant
having addressed a letter to such board stating that he did not desire a trial de novo.) Rogers,
the taxicab driver, testified to having made an arrangement with the defendant under which
the latter was to pay Rogers money for bringing divorce clients to the defendant; that later he
brought him two clients and in each case was paid $30. This is categorically denied by the
defendant. Betty Barr and Gladys Petrie were the two divorce clients in the case. Only the
former appeared to testify personally before the local administrative committee. Glass and
Morsberger were detective sergeants of the Reno police department. In each case mentioned
in the findings the divorce client paid the defendant in marked bills. In each case Rogers
testified that defendant paid him $30 for bringing the client. In one of these cases one of the
marked bills was paid. Other bills were identified by the numerals and letters appearing
thereon. The police officers testified to their being in constant contact with Rogers from the
time he entered defendant's office without any money on his person to the time he left such
office and immediately handed the officers the money.
The defendant's case is based upon his attack upon the credibility of the witnesses, upon
discrepancies in their testimony and upon the entire nature and scope of the investigation,
including the employment of stooges and the laying of a trap for the defendant. Defendant's
application for review states:
At this point it is stated in all candor to this Honorable Court that no one questions in the
slightest degree the integrity, purity of purpose, and desire to be fair on the part of the
excellent young men comprising the local Administrative Committee of the State Bar in and
for District No. 6, nor the ultimate purity of purpose of their Investigator. They are not
responsible for drawing the State Bar Act, which constitutes such a Committee grand jury,
prosecutor's detectives, judge, even witnesses and petty jury. It is simply that the history of
human conduct furnishes few precedents to justify such confidence in human nature.
Such attack has been made in many cases. Section 34 of the state bar act, Comp. Laws,
sec. 573, authorizes the local administrative committee, on its own motion and without the
filing of any complaint, to initiate and conduct investigations of all matters relating to the
practice of the law or the discipline of the members of the state bar or any other matter within
the jurisdiction of the state bar, and to take evidence touching the matters under investigation
and to try and hear such matters, compel the attendance of witnesses and the production of
documents, etc. Rules VI and VII of the rules of procedure of the state bar, approved by this
court, authorize the appointment of examiners or prosecutors to be selected from the active
members of the state bar who are not members of the board of governors or the committee
and who serve without compensation. It is the duty of the examiner to investigate grievances
referred to him by the committee.
In McVicar v. State Board of Law Examiners, D.C., 6 F.2d 33, the court said:
It was also argued with vehemence that the statute is void because it authorizes a
member of the board to prefer charges against an attorney, and then to sit as a member
of the board for the consideration of the charges so preferred.
is void because it authorizes a member of the board to prefer charges against an attorney, and
then to sit as a member of the board for the consideration of the charges so preferred.
Verification of the formal charges in disbarment proceedings by a member of the board of
law examiners charged with the duty of taking evidence and reporting thereon to the Supreme
Court of the state raises no presumption of unfairness in the proceedings, and in nowise
invalidates the statute, since such power is expressly conferred by the statute in dealing with a
matter of great public concern in which the members of the board have no personal interest.
Defendant urges that the proceedings in the instant case, however, went far beyond the
scope of rules VI and VII of the rules of procedure of the state bar and section 34 of the state
bar act in that here the local administrative committee devised a scheme whereunder a
member of the bar would be induced to commit unethical conduct in order that he should be
penalized as a result, and that this constitutes a sorry spectacle upon which this court should
place its stamp of disapproval. Should the board of governors of the state bar of Nevada
promulgate new or different rules of procedure and submit the same to this court for approval,
the procedure under attack by the defendant might then be considered. In passing, it may be
noted that both the statute and rules of procedure are copied from those in effect in many
other jurisdictions.
In the case of In re Winters, 40 Nev. 335, 163 P. 244, 245, in which the bar association had
recommended disbarment on the ground that defendant had altered an affidavit of service of
summons in a divorce action, this court said:
While we think it safe to say that the evidence showed the change in the proof of service,
as contended, there is a lack of proof going to show that respondent was responsible for the
change, or in fact knew of it. Against the circumstantial evidence of the prosecution is the
positive testimony of respondent.
is the positive testimony of respondent. When we consider the fact that another attorney was
interested in the case, the former good repute of respondent, and his positive testimony that
he did not make the change or know of it, we think the evidence insufficient to sustain the
charge.
And in the case of In re Clarke, 46 Nev. 304, 212 P. 1037, 1038, this court further said:
If Clarke made the inquiry attributed to him and was serious in making it, we might well
find that he, as an attorney at law, had wilfully attempted to induce informant, as city
attorney, to use his office for an unlawful purpose. Such action would amount to gross
misconduct warranting his disbarment. But in view of the state of the evidence in this regard,
we are unable to say that the allegation is proven. The burden of proof was on the informant.
On account of the highly penal nature of a judgment of disbarment, affecting so adversely the
whole future of an accused, courts will not disbar on doubtful evidence, or where there is
substantial conflict in it.
Defendant places great reliance upon these cases and insists that by reason of the
testimony of the defendant denying the charges and by reason of the apparent discrepancies in
the testimony of the witnesses called by the local committee and by reason of the nature of
the institution and prosecution of the charges as pointed out, we should, following the
statements of law above quoted, hold that the evidence is so doubtful and the conflicts in the
testimony so substantial that the proceedings should be dismissed. If we found here merely
circumstantial evidence contradicted by the positive testimony of the defendant as in the
Winters case, or a substantial conflict of the evidence under the circumstances appearing in
the Clarke case, or if we were left unconvinced that the findings of the local administrative
committee and of the board of governors were justified by the evidence submitted to them
and now before this court for independent review, we could indeed come to the same
conclusion reached by the court in those two cases.
court for independent review, we could indeed come to the same conclusion reached by the
court in those two cases. Being satisfied, however, that the evidence is sufficiently clear and
convincing to justify the finding that in each of the instances mentioned the defendant paid
the taxi driver for producing the divorce client, the principles enunciated in the Winters and
Clarke cases do not apply.
We cannot but commend counsel for defendant for his zeal in presenting this case. It is
always a moving drama when a respected and honored member of this bar comes to the relief
of an old friend and fellow lawyer and conscientiously devotes his energies and his talents to
an attempt to avoid the stigma of disciplinary action by the bar and the court. But neither such
sympathy nor the age of the defendant nor his prior reputation can justify any other
conclusion than the one reached.
It is ordered that the defendant be suspended from practicing law in all of the courts in this
state for a period of six months from the date of entry of this order.
Eather, C. J., because of illness, is not participating in the foregoing case.
____________
64 Nev. 402, 402 (1947) In Re Pray
In the Matter of HARRY G. PRAY,
Attorney at Law.
No. 3455
July 18, 1947. 183 P.2d 627.
Entry of judgment of conviction of subornation of perjury in records of supreme court operated, ipso
facto, to suspend attorney from practice of law for indefinite period prescribed by statute. Comp.Laws,
secs. 565, 605.
Conduct of attorney in having caused to be prepared, verified and filed a complaint in divorce action
falsely stating that complainant had been for six weeks and more next preceding
commencement of divorce action a bona fide resident of state, in eliciting false
testimony in divorce action and in remunerating an unlicensed person for obtaining
professional employment for attorney was reprehensible and justified discipline.
64 Nev. 402, 403 (1947) In Re Pray
complainant had been for six weeks and more next preceding commencement of divorce action a bona
fide resident of state, in eliciting false testimony in divorce action and in remunerating an unlicensed
person for obtaining professional employment for attorney was reprehensible and justified discipline.
The supreme court has a wide legal discretion in determining penal and other matters pertaining to
disbarment and suspension of attorney.
Where state bar board of governors recommended suspension of attorney for two years,
recommendation was reasonable, but proceedings were not carried on promptly and attorney had suffered
suspension for 15 months and 10 days as result of erroneous conviction, attorney would be suspended for
period of 10 months.
Proceedings against Harry G. Pray for professional misconduct. Respondent suspended
from practice of law for period of 10 months.
Clarence M. Hawkins, of Auburn, Calif., and H. R. Cooke, of Reno, for Petitioner.
Harlan L. Heward, Richard W. Blakey and Leslie B. Gray, all of Reno, for Respondent.
OPINION
On November 28, 1945, this proceeding, against Harry G. Pray for professional
misconduct, was commenced, by the service upon him of a notice to show cause, which
notified and required him to appear December 11, 1945, before the local administrative
committee in and for Washoe County, of the state bar of Nevada, and show cause, if any he
had, why he should not be disbarred from membership in the state bar of Nevada, and from
practicing law in this state.
In said notice to show cause, count I, the misconduct of Harry G.
64 Nev. 402, 404 (1947) In Re Pray
of Harry G. Pray is alleged, in substance, to consist of having caused to be prepared, verified
by one Dorothy Harwood, and filed, a complaint in a divorce action, in which she was
plaintiff, in the Second judicial district court, in and for the county of Washoe, No. 94,911,
and in which complaint it was alleged that the said Dorothy Harwood was, and had been for
six weeks and more next preceding the commencement of the action, a bona fide resident of
the county of Washoe, State of Nevada, and that she had been domiciled, physically present
and residing therein during all of said time, and that said Harry G. Pray, then and there, well
knew said allegation was false and untrue.
In count II of the notice to show cause it is alleged, in substance, that on November 20,
1945, Harry G. Pray, upon the trial of such divorce action No. 94,911, in department 1 of the
Second judicial district court, in and for Washoe County, called, as witnesses in support of
the above stated residence allegations of the said complaint, one Julia F. Taggart and the
plaintiff, Dorothy Harwood, and elicited testimony in response to his questions, relative to the
residence of the said plaintiff, which the said Harry G. Pray knew was false and untrue; that
the said Pray, so knowing such testimony to be false and untrue, failed to disclose his
knowledge to the court, and thereafter presented a formal decree of divorce to the court for
signature, and caused the divorce decree to be filed.
In count III of said notice to show cause it is alleged, in substance, that on numerous
occasions during the years 1944 and 1945, at Reno, Nevada, said Harry G. Pray paid sums of
money to Julia F. Taggart for forwarding divorce clients to him, that the said Pray
remunerated the said Julia F. Taggart for soliciting and obtaining professional employment
for him, and that he did directly share with the said Julia F. Taggart, an unlicensed person,
compensation arising out of, and incidental to, professional employment.
64 Nev. 402, 405 (1947) In Re Pray
Harry G. Pray, on December 11, 1945, filed his answer to the charges in said notice to
show cause, and in paragraph II of such answer he admitted the truthfulness of the facts stated
in the said notice to show cause.
On said 11th day of December, 1945, the said local administrative committee, made its
findings, conclusions and recommendations, and filed same, December 19, 1945, with A. R.
Schindler, Esq., secretary of the board of governors of the Nevada state bar.
The committee found that all the facts alleged in counts I, II, and III of the notice to show
cause were true; that no complaint had theretofore been made to the committee against
respondent, and that his reputation for professional conduct had theretofore been good.
The committee concluded that Harry G. Pray is guilty of professional misconduct, and five
members of the committee recommended that he be disciplined by the board of governors, for
such professional misconduct, by suspension from the practice of law for a period of two
years and until and further order of the court. Two members of the committee recommended
that the license of Harry G. Pray to practice law be revoked, and that he be disbarred from the
practice of the law within the State of Nevada.
The board of governors of the state bar of Nevada convened in special meeting on the 21st
of December, 1945. The board considered the matter of the said proceedings against Harry G.
Pray, the same being before them upon the findings and recommendations of the said local
administrative committee in and for Washoe County, and respondent's answer. The
respondent Harry G. Pray, made a statement before the board, and was cross-examined by
various members, whereupon the board made its findings, conclusions and recommendations,
which were in all respects confirmatory of the findings, conclusions and recommendations of
the local administrative committee, including the recommendation that respondent be
suspended for two years and until the further order of this court.
64 Nev. 402, 406 (1947) In Re Pray
until the further order of this court. The report and recommendations of the board were
concurred in, unanimously, by the six members present, being more than a majority of the
entire membership of the board.
In accordance with section 26 of An Act to create a public corporation to be known as
State Bar of Nevada,' * * * Stats. 1928-1929, p. 16, same being N.C.L. vol. 1, sec. 565, a
certified copy of the decision of the board, together with its findings and a transcript of the
proceedings before the said local administrative committee and the board of governors, was
filed with the clerk of this court on the 8th day of February, 1946.
Said section 26 provides (among other things) that: * * * Upon the making of any
decision resulting in disbarment or suspension from practice said board shall immediately file
a certified copy of said decision, together with said transcript and findings, with the clerk of
the supreme court. Any person so disbarred or suspended may, within sixty days after the
filing of said certified copy of said decision, petition said supreme court to review said
decision or to reserve or modify the same, and upon such review the burden shall be upon the
petitioner to show wherein such decision is erroneous or unlawful. When sixty days shall
have elapsed after the filing of said certified copy, if no petition for review shall have been
filed, the supreme court shall make its order striking the name of such person from the roll of
attorneys or suspending him for the period mentioned in said decision. If, upon review, the
decision of said board of governors be affirmed, then said court shall forthwith make said
order striking said name from the rolls or of suspension. The board shall have power to
appoint one or more committees to take evidence on behalf of the board and forward the same
to the board with a recommendation for action by the board. Nothing in this act contained
shall be construed as limiting or altering the powers of the courts of this state to disbar or
discipline members of the bar as this power at present exists.
64 Nev. 402, 407 (1947) In Re Pray
The respondent did not, within sixty days after the filing of the certified copy of said
decision, petition this court to review or modify the same, and under the statute above quoted,
sixty days having elapsed and no petition for review having been filed, the court is
commanded, in that event, to make its order striking the name of the offending attorney from
the roll of attorneys, or suspending him for the period mentioned in said decision.
This command of the statute was not carried out, apparently for the reason that neither any
attorney for the State bar, nor respondent, sought to bring the matter before the court for
disposal, and the court did not take the matter up of its own motion. The sixty days allowed
the petitioner for review expired April 9, 1946, but in the meantime, on March 1, 1946, on
account of the conviction of the respondent, Harry G. Pray, for the crime of subornation of
perjury, which conviction had occurred February 8, 1946, in case No. 3461 C. 179 P.2d 449,
in this court (same being, also, the date the foregoing decision, findings and transcript were
filed), this court made an order commanding the transmittal to this court, by the clerk of the
Second judicial district court of the State of Nevada, in and for the county of Washoe, of a
certified copy of the record of such conviction, pursuant to section 605, vol. 1, N.C.L. 1929,
and ordering that said judgment of conviction be forthwith entered in the records of this
court, and that a copy thereof, as so entered, and a copy of this order, be mailed to each
District Court in this state.
Said section 605, vol. 1, N.C.L.1929, provides: Section 605. Right of Attorney to Practice
Suspended, When. 15. In the case of the conviction of an attorney or counsellor of a felony
or misdemeanor involving moral turpitude, the clerk of the court in which the conviction was
had shall, within thirty days thereafter, transmit to the supreme court a certified copy of the
record of conviction. And upon such judgment of conviction being entered, all rights of such
attorney to practice as such shall ipso facto be suspended until such judgment either
becomes final or is reversed or otherwise set aside."
64 Nev. 402, 408 (1947) In Re Pray
practice as such shall ipso facto be suspended until such judgment either becomes final or is
reversed or otherwise set aside.
1. By virtue of the said statute, the entry of the judgment of conviction in the records of
this court operated, ipso facto, to suspend, Mr. Pray for the indefinite period prescribed by the
statute. Doubtless, the fact that that suspension by virtue of his conviction had become
effective within said sixty-day period, and long before April 10, 1946 (the first date upon
which this court could have proceeded to pass judgment in the instant proceeding, in the
absence of a petition for review having been filed within sixty days from February 8, 1946,
the date of the filing of the transcript), operated to cause the attorney for the state bar, the
respondent and this court to refrain from then taking further action in this proceeding. We
assume that the attorney for the state bar discerned no reason for, or no benefit to be gained
by the prosecution by, the imposition of a double suspension, to run concurrently, and the
respondent may have failed to sense the advantage to him of having a judgment of suspension
passed in the instant proceeding to run concurrently with the suspension resulting from the
judgment of conviction.
In any event, no proceedings have occurred in the instant case since the filing, March 1,
1946, of the above-mentioned order, and entry of the record of conviction, until on June 10,
1947, when the respondent Harry G. Pray, caused to be filed in this court a verified petition
entitled Petition of Harry G. Pray for Termination of Suspension and Re-instatement as a
Member of the State Bar of Nevada. The request for termination does not relate, we
apprehend after reading the petition and hearing the arguments of counsel, to any suspension
not yet adjudged in the instant proceeding, but rather to the fact that on April 9, 1947, this
court rendered its decision reversing the said conviction of Harry G. Pray for subornation of
perjury, in case No. 3461, which, in legal effect, rendered the ipso facto suspension, which
was the basis of this court's order of March 1, 1946, wrongful and unjustified, and
entitled the respondent to a termination of that suspension.
64 Nev. 402, 409 (1947) In Re Pray
was the basis of this court's order of March 1, 1946, wrongful and unjustified, and entitled the
respondent to a termination of that suspension. Accordingly, this court, in its order to show
cause, dated and filed June 10, 1947, among other things, ordered: That the clerk of this
court mail forthwith to each District Court clerk in the state a notice of this court's reversal of
the said conviction.
Pursuant to said order, the clerk of this court mailed to each district court clerk in this state
a copy of such notice of reversal, and of the termination thereby of such suspension. The
recommendation for suspension filed February 8, 1946, in the instant proceeding, and the
above-mentioned petition for termination of suspension and reinstatement, and all matters in
connection with the said recommendation and petition were, by said order to show cause, set
for hearing before this court on the 8th day of July, 1947, at the hour of 10 o'clock a.m. At
that time, the said matters were heard by this court, fully argued by Messrs. H. R. Cooke and
Clarence M. Hawkins, attorneys for respondent (petitioner), Harry G. Pray, and by Harlan L.
Heward, Esq., representing the board of governors of the state bar of Nevada, and were
thereupon submitted to this court for its decision.
In the prayer of his said petition, the respondent prayed as follows: That this Court now
and promptly consider the record hereinabove referred to and the recommendation of
suspension for two years, and that the court enter its order either declining to suspend
petitioner any further in connection with the matter or fixing the earliest possible time when
in justice any suspension, entered by order of this Court, shall end.
2. This court entertains, very clearly, the view that the professional misconduct of the
respondent, Harry G. Pray, as admitted in his answer and found by the local administrative
committee and the board of governors to have been committed by him, is of a character most
reprehensible and calling for very severe condemnation. The recommendation of suspension
for two years is believed reasonable and necessary, in order to discourage such highly
unethical misconduct.
64 Nev. 402, 410 (1947) In Re Pray
believed reasonable and necessary, in order to discourage such highly unethical misconduct.
The respondent is penitent, and gave considerable aid to a correct result by his admission
of the charges, and we trust his penitence will continue and that he has truly learned a lesson
from his prosecution and the suspension which followed his conviction, which will preclude
his ever again resorting to the unprofessional practices which he has admitted.
It is true that if respondent had been suspended promptly in the instant proceeding, upon
the expiration of the sixty days above mentioned, as the statute commands, such suspension
should have occurred on or about April 10, 1946, and if for two years, as recommended,
would by now have been in effect for about fifteen months and ten days, and still continuing.
It is a rather striking coincidence that under the suspension which respondent has suffered by
reason of his conviction of subornation of perjury, and this court's order of March 1, 1946,
entering the judgment of conviction, which has since been found and decided to have been
erroneous, respondent was suspended for precisely fifteen months and ten days, from March
1, 1946, until June 10, 1947, and latter the date the clerk's office, under this court's order, sent
out copies of the notice of this court's reversal of the conviction and the termination thereby
of such suspension.
It was, by not means, the fault of the respondent, Pray, that the proceedings in the instant
case were not carried on more promptly. While he could have petitioned for judgment against
himself upon the uncontested findings and recommendations he can scarcely be blamed,
under the circumstances, for not having assumed the initiative when he was, at the time said
petition would have been appropriate, under the cloud of a conviction of felony, and thereby
already suspended. And the fact is that respondent's suspension by virtue of his conviction
has run for fourteen months of the identical period of time which would have been covered by
a suspension of two years in the instant proceeding, if such suspension had occurred
promptly on or about April 10, 1946, and had commenced immediately thereafter.
64 Nev. 402, 411 (1947) In Re Pray
years in the instant proceeding, if such suspension had occurred promptly on or about April
10, 1946, and had commenced immediately thereafter. The said ipso facto suspension by
virtue of the conviction, as aforesaid, was in effect from March 1, 1946, and did not end until
June 10, 1947; so, for the period of fourteen months from April 10, 1946 (had said
suspension been made promptly in the instant proceedings, in accordance with the statute),
until June 10, 1947, when the suspension by reason of his conviction was, in effect,
terminated, the two suspensions most likely would have been concurrent. The difference is in
classification only. The suspension for that fourteen months was by reason of conviction in a
case other than this proceeding, but the facts underlying that case, No. 3461, and this
proceeding, No. 3455, are closely related, and, to some extent, interwoven.
3, 4. While, technically, a period of suspension erroneously inflicted, because of an
erroneous conviction in one case, cannot properly be made to apply as a credit or a set-off in
the matter of the time of a suspension not yet adjudged in another case or proceeding,
nevertheless, this court has a wide legal discretion in determining penal and other matters
pertaining to disbarment and suspension. In exercising that discretion, we believe the
principles of fairness, justice and equity, as well as a proper application of strictly legal rules
of construction, should be accorded proper consideration and the effect to which such
principles are reasonably entitled. A suspension of an attorney for fourteen months means, in
the case of many attorneys who have no other means of livelihood than that derived from
carrying on their professional practice, much sacrifice and financial difficulty. It also involves
great loss as to reputation, and a keen sense of humiliation and much mental suffering. Its
effect is the same, in all substantial respects, whether adjudged in case No. 3461 or in
proceeding No. 3455. It is believed respondent has learned his lesson as fully under the
suspension suffered as would be possible under any suspension for a like period of time.
64 Nev. 402, 412 (1947) In Re Pray
We have endeavored to give most careful consideration to the recommendations of the
local administrative committee and the board of governors, and to the imperative necessity, in
the interest of the public welfare, of maintaining honest, honorable and decent professional
conduct on the part of members of the State Bar, and, on the other hand, have endeavored to
consider impartially and give due regard to the just rights of the respondent.
It is the decision and order of this court that the respondent, Harry G. Pray, be, and he is
hereby, suspended from the practice of the law in this state for the period of ten months, such
suspension to commence upon the date this opinion and decision is filed.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the foregoing case.
____________
64 Nev. 412, 412 (1947) Provenzano v. Long
BERNARD V. PROVENZANO, Doing Business Under the Fictitious Name of O. K.
PLUMBING & HEATING COMPANY, Appellant, v. JOE LONG, Respondent.
No. 3473
July 24, 1947. 183 P.2d 639.
A jurisdictional question could be raised for the first time on appeal.
2. Workmen's Compensation.
Where a determination of whether an employer was covered by state industrial insurance, denied by
industrial commission for reason that employer was in default in filing of his pay rolls and payment of his
premiums, required not only a finding of facts under conflicting evidence, but also determination of
numerous questions of both law and equity in connection therewith, district court had jurisdiction to make
determination as against contention that industrial commission had exclusive jurisdiction. Comp.Laws,
secs. 2693, 2702.
In common-law action for negligence against uninsured employer, evidence that plaintiff employee
was struck by defendant's truck driven by another of defendant's employees on
premises owned and operated by defendant when plaintiff had just quit work for
the day and had stepped out of the defendant's building and while still in front of
the door, on the premises, waiting for his wife to call for him, the defendant's truck
drove up, was unable to stop on account of defective brakes, and pinned plaintiff
against the building, sustained finding that accident arose out of and in course of
plaintiff's employment.
defendant's truck driven by another of defendant's employees on premises owned and operated by
defendant when plaintiff had just quit work for the day and had stepped out of the defendant's building
and while still in front of the door, on the premises, waiting for his wife to call for him, the defendant's
truck drove up, was unable to stop on account of defective brakes, and pinned plaintiff against the
building, sustained finding that accident arose out of and in course of plaintiff's employment.
4. Damages.
In common-law action for negligence by an employee against uninsured employer for injuries
sustained when struck by truck, evidence sustained finding as to employee's period of lack of employment
after the accident.
In common-law action for negligence by an employee against uninsured employer for injuries
sustained when struck by defendant's truck driven by another of defendant's employees, evidence
sustained finding as to defendant's negligence.
Employer's default in filing of his pay rolls and payment of his premiums resulted in a statutory
rejection of the industrial insurance act at the time of the accident complained of by employee.
Comp.Laws, secs. 2693, 2702.
7. Damages.
$4,880 damages for injuries sustained by employee when struck by defendant's truck was not
excessive.
Alleged error in denying motion to bring in industrial commission as a party defendant in employee's
action for injuries would not be considered on appeal where the motion did not appear in the bill of
exceptions. Comp.Laws, sec. 8565.
Appeal from Eighth Judicial District Court, Clark County; George E. Marshall and Frank
McNamee, Judges.
Action by Joe Long against Bernard V. Provenzano, doing business under the fictitious
name of O. K. Plumbing & Heating Company, for injuries from being struck by a truck. From
a judgment for plaintiff and from order denying defendant's motion for a new trial, defendant
appeals. Judgment and order affirmed.
Morse & Graves, of Las Vegas, for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondent.
OPINION
1. In a common law action for negligence tried to the court below without a jury, plaintiff
Joe Long recovered a judgment against the defendant for $4,880. Defendant appeals from the
judgment and from the order denying his motion for a new trial and relies mainly upon the
contention, not made in the court below, but raised here for the first time, that the district
court had no jurisdiction to try the action, for the alleged reason that the Nevada industrial
commission had exclusive jurisdiction to try and determine the matter. As the question raised
is a jurisdictional one, it may be thus raised for the first time on appeal. Pershing Quicksilver
Co. v. Thiers, 62 Nev. 382, 383, 152 P.2d 432. Although other questions are raised in the
appeal, the determination of this point will be largely determinative of the appeal. Indeed,
appellant says in his reply brief: This seems to be the pivotal element of the entire appeal.
Although our conclusions will require a more detailed statement of the facts involved, we
may note generally that plaintiff brought his common law action in the district court after the
state industrial commission had announced that the defendant was not covered by state
industrial insurance, for the reason that he was in default in the filing of his pay rolls and the
payment of his premiums.
The determination of such question required not only a finding of the facts under
conflicting evidence, but the determination of numerous questions of both law and equity in
connection therewith. Could a filing of pay rolls and payment of premiums after the accident
and after the commencement of the action operate retroactively so as to make the industrial
insurance effective as of the date of the accident? Could such subsequent payment, made with
the specific written provision, that it should thus act retroactively, and the acceptance
thereof under such terms by one of the employees of the commission estop the
commission from questioning such result?
it should thus act retroactively, and the acceptance thereof under such terms by one of the
employees of the commission estop the commission from questioning such result? Did the
employee have the right to bind the commission and subject it to an estoppel by such
acceptance? Can the industrial commission in any event, as a governmental agency, be
subjected to an estoppel? Did the commission as a matter of law have a right to declare the
defendant's account defaulted without formal demand for compliance? Was a tender of a
refund on the part of the commission of the premiums thus paid by the defendant in an
attempt to reinstate his account retroactively essential before such account could be in
default? Was it a fraud upon the defendant for the commission to accept the said subsequent
premium payment, through one of its employees, and then, through its auditor, to declare that
such acceptance had no such effect? These and other questions all required determination,
and it is insisted by appellant that under our industrial insurance act the determination was
within the exclusive jurisdiction of the industrial insurance commission. The controversy
arose out of the following situation:
Plaintiff, an employee of defendant, was struck by defendant's truck driven by another of
defendant's employees, on premises owned and operated by the defendant, on September 13,
1945. Plaintiff had just quit work for the day, stepped out of the defendant's building and
while still in front of the door, on the premises, waiting for his wife to call for him, the
defendant's truck drove up, was unable to stop on account of defective brakes, and pinned the
plaintiff against the building, breaking his leg and otherwise injuring him. The accident was
reported to the industrial insurance commission, which concluded that the defendant was not
covered.
On August 2, 1945, the defendant had filed its pay rolls for the period ending June 30,
1945, and paid the premiums for same.
for the period ending June 30, 1945, and paid the premiums for same. Defendant's next pay
rolls were submitted September 28, 1945, some fifteen days after the accident, and the next
pay roll report was made and premium paid October 2, 1945, for the period ending August
29, 1945. The pay roll report and premium payment for September, 1945, the month in which
the accident occurred, were submitted February 5, 1946, almost five months after the accident
and seven days after the filing of the complaint in this action in the district court. It was
accompanied by letter enclosing check for $864.53 in payment of the premiums in accordance
with the pay rolls submitted and with the express understanding that it be considered a
retroactive payment covering the reports enclosed herewith and that any benefits which would
have inured to us during the effective dates, if our reports had been sent in on time, will still
be in effect. The check was cashed, and no tender of refund ever made. The insurance
account was originally opened in February, 1945, at which time deposit had been made of
insurance premium, on an estimated sixty-day pay roll. On the date of the accident,
September 13, 1945, defendant had on deposit with the commission $413. This would have
been sufficient to place him in good standing if he had reported his pay rolls in accordance
with the requirements of the commission and in accordance with the state statute. As above
noted, he had failed to do this.
The statute in question comprises secs. 2680 to 2731, N.C.L., as amended. Section 2702
provides, among other things, as follows:
Every employer electing to be governed by the provisions of the act shall, on or before
the twenty-fifth day of each month, furnish the Nevada industrial commission with a true and
accurate pay roll showing the aggregate number of shifts worked during the preceding
months, the total amount paid to employees for services performed during said month, and a
segregation of employment in accordance with the requirements of the commission, together
with the premium due thereon * * *.
commission, together with the premium due thereon * * *. Failure on the part of any such
employer to comply with the foregoing provisions shall operate as a rejection of this act,
effective at the expiration of the period covered by his estimate * * *.
On each form for the filing of the employer's pay roll was printed the following rule:
Pay rolls must be submitted on or before the 25th of each month covering operations for
the previous month. Failure on the part of employer to pay premiums as required by the
Nevada Industrial Insurance statute acts as an automatic rejection.
One of the rules promulgated by the commission, under authority of sec. 2693, N.C.L., and
sec. 2702, quoted supra, reads as follows:
Failure to maintain an advance deposit, or to submit pay rolls, as above provided, acts as
an automatic rejection of the act, and any credit remaining may be considered as earned
premium for the unreported period. We send no further notice, and it is your duty to avoid a
rejection of our act by following above instructions.
Such rule was printed on the monthly statements mailed by the commission to defendant.
A Mr. Newell, in the employ of the Nevada industrial commission, had accepted the late
filings and payment (occurring after the accident) under the terms of the forwarding letter
insisting upon the retroactive effect of the filing. Mr. Lee, auditor for the commission,
subsequently rejected the theory that such retroactive effect could have been accomplished.
Mr. Lee was examined and cross-examined, and also examined by the court, and the
questions as to the various filings and premium payments by the defendant were asked and
answered many times, the answers being at the best somewhat confusing and in several
respects apparently conflicting. Honorable George E. Marshall, district judge who tried the
case, held that there is ample evidence in the record to sustain plaintiff's theory that, by
failure to comply with the rules and regulations of the statutes of the State of Nevada
relating to Workmen's Compensation, the defendant had failed to comply with the terms
and conditions of the Industrial Insurance Act and, therefore, by such action, had rejected
the act at the time of the accident complained of by the plaintiff."
State of Nevada relating to Workmen's Compensation, the defendant had failed to comply
with the terms and conditions of the Industrial Insurance Act and, therefore, by such action,
had rejected the act at the time of the accident complained of by the plaintiff.
Honorable Frank McNamee, district judge who heard the defendant's motion for new trial,
stated, in denying such motion:
The Court has carefully read the transcript of the testimony of the witness Henry H. Lee
as well as the documentary evidence in the file, which leads to but one conclusion, to wit, that
the said defendant was not entitled to the benefits of the Nevada Industrial Insurance Act on
the date of said injuries.
The foregoing will be sufficient for a consideration of the appellant's contention that the
entire controversy, including the question as to whether or not defendant had industrial
insurance coverage at the time of the accident, lay within the exclusive jurisdiction of the
industrial insurance commission. In support of this contention, appellant relies almost entirely
upon the case of Employers' Liability Assur. Corporation v. Matlock, 151 Kan. 293, 98 P.2d
456, 127 A.L.R. 461, Annotation 473, and the Kansas, New York, and California cases
therein cited. In the Matlock case the Employers' Liability Assurance Corporation, Limited,
commenced an action against the injured workman who was seeking compensation, the
employer and the commission seeking to enjoin further proceedings upon the ground that the
policy had been obtained by fraud and should be canceled. A very strong case of fraud was
alleged, namely, that the employer had falsely stated that it had carried compensation
insurance for five years, had never had any policy canceled, had only two minor accidents and
that there were no actions or claims pending against them at the time. All of such statements
were false. The court denied the injunction upon the ground that under the Kansas industrial
insurance act the legislature had intended that every feature in such a controversy should
be heard and determined exclusively by the commission.
under the Kansas industrial insurance act the legislature had intended that every feature in
such a controversy should be heard and determined exclusively by the commission.
The California and New York cases relied upon by the court in the Matlock case find
simple explanation. Both California and New York have special constitutional provisions
granting such authority and authorizing such procedure, and in each case the industrial
insurance act contains what amounts to a complete code of civil practice before the
commission. For example, section 21 of article XX of the constitution of California reads in
part as follows:
21. Workmen's Compensation. The Legislature is hereby expressly vested with plenary
power, unlimited by any provision of this Constitution, to create, and enforce a complete
system of workmen's compensation, by appropriate legislation, and in that behalf to create
and enforce a liability on the part of any or all persons to compensate any or all of their
workmen for injury or disability, and their dependents for death incurred or sustained by the
said workmen in the course of their employment, irrespective of the fault of any party. A
complete system of workmen's compensation includes * * * full provision for adequate
insurance coverage against liability to pay or furnish compensation; full provision for
regulating such insurance coverage in all its aspects, including the establishment and
management of a state compensation insurance fund; full provision for otherwise securing the
payment of compensation; and full provision for vesting power, authority and jurisdiction in
an administrative body with all the requisite governmental functions to determine any dispute
or matter arising under such legislation, to the end that the administration of such legislation
shall accomplish substantial justice in all cases expeditiously, inexpensively, and without
encumbrance of any character; all of which matters are expressly declared to be the social
public policy of this State, binding upon all departments of the State government.
matters are expressly declared to be the social public policy of this State, binding upon all
departments of the State government.
The Legislature is vested with plenary powers, to provide for the settlement of any
disputes arising under such legislation by arbitration, or by an industrial accident commission,
by the courts, or by either, any, or all of these agencies, either separately or in combination,
and may fix and control the method and manner of trial of any such dispute, the rules of
evidence and the manner of review of decisions rendered by the tribunal or tribunals
designated by it; provided, that all decisions of any such tribunal shall be subject to review by
the appellate courts of this State. The Legislature may combine in one statute all the
provisions for a complete system of workmen's compensation, as herein defined. * * *.
Section 18 of article I of the New York constitution, though differently expressed, is to the
same practical effect and provides that nothing contained in the constitution shall be
construed to limit the power of the legislature to enact laws in such matters or for the
adjustment, determination and settlement, with or without trial by jury of all such matters
and to provide that such right and remedy shall be exclusive of all other rights and remedies
for injuries to employees or for death resulting from such injuries. McKinney's Consol.Laws
of New York Annotated, Book 2, Constitution, p. 500. It should be noted in passing that so
complete is the California workmen's compensation law, under the constitutional authority
above noted, that it provides for the filing of the commission's findings with the clerk of the
superior court whereupon judgment shall be entered immediately by the clerk in conformity
therewith. The certified copy of the findings and award and copy of the judgment constitute
the judgment-roll. Execution may be issued, execution may be stayed, satisfaction of
judgment entered, etc., all precisely like any other judgments.
judgments. Appeals lie only to the supreme court or the district courts of appeal in which the
scope of the review is extremely limited. Labor Code, sec. 5806 et seq. The California and
New York cases relied upon by the Kansas court include Skoczlois v. Vinocour, 221 N.Y.
276, 116 N.E.1004; Royal Indemnity Co. v. Heller, 256 N.Y. 322, 176 N.E. 410; Continental
Casualty Co. v. Gleasner Compressed Air Supply & Equipment Co., 239 App.Div. 487, 267
N.Y.S. 706; General Accident, Fire & Life Assur. Corp. v. Industrial Accident Commission,
196 Cal. 179, 237 P. 33; Employer's Liability Assurance Corp. v. Industrial Accident
Commission, 177 Cal. 771, 171, P. 935; Bankers' Indemnity Ins. Co. v. Industrial Accident
Commission, 4 Cal.2d 89, 47 P.2d 719.
The learned justice, in arriving at his conclusion, states that he is not unmindful of certain
holdings to the contrary by the respective supreme courts of Utah, Wisconsin, Oklahoma, and
Missouri referred to in the opinion, but no discussion is had of the constitutional provisions in
New York and California undoubtedly supporting the decisions of those states. Peculiarly
enough, however, the Kansas statute is hardly more comprehensive than our own, and the
Kansas constitution contains provisions similar to our own concerning the vesting of judicial
powers in the courts, and has not been amended by granting the commission any judicial
powers. Yet the Kansas case clearly holds that all issues, including such issues as those
described above as arising in the present case, must first be submitted to the commission as
having exclusive jurisdiction thereof, and to the exclusion of the jurisdiction of courts having
general cognizance of all controversies in law and in equity.
The matter is one of first impression in this state, and appellant insists that the Kansas
doctrine should be followed. It becomes necessary to consider the other jurisdictions that
have decided to the contrary.
In Michigan Mut. Liability Co. v. Baker et al., as Commissioners of Department of Labor
and Industry, 295 Mich.
Mich. 237, 294 N.W. 168, the insurance carrier sued to cancel a certificate of insurance on
the ground of mistake. The trial court granted the relief prayed. The commission appealed,
raising only two questions: (1) Is the jurisdiction to determine the validity of an insurer's
certificate vested in the department of labor and industry, or in a court of equity? (2) Has
plaintiff an adequate remedy without the intervention of a court of equity? The supreme court
of Michigan decided that the proper place to determine the question of the cancellation of the
insurer's certificate on the ground of fraud or mistake was in a court of equity, and referred to
the limited powers of the commission. Granting that in the exercise of the right of the
department to determine all questions arising under the act, it performed quasi judicial
duties, it insisted that the commission was an administrative tribunal only, and not a court
possessing general equitable and legal powers. Referring then to Employers' Liability Assur.
Corporation v. Matlock, 151 Kan. 293, 98 P.2d 456, 127 A.L.R. 461; Matter of Kelley, 64
Ind.App. 594, 116 N.E. 306; Royal Indemnity Co. v. Heller, 256 N.Y. 322, 176 N.E. 410;
Bankers' Indemnity Insurance Co. v. Industrial Accident Commission, 4 Cal.2d 89, 47 P.2d
719, the court says [295 Mich. 237, 294 N.W. 170]:
In some jurisdictions, the tribunal administering the Workmen's Compensation Law may
have complete power to adjudicate legal and equitable questions relating to insurance matters
because of specific constitutional provision or different constitutional interpretation.
As we have seen, California and New York have specific constitutional provision. The
Matlock case was decided on a question of statutory construction, in the absence of
constitutional authority, but apparently without considering the constitutional question. The
same applies to the Indiana case which held that the provision of the Indiana statute, acts
1915, p. 412, sec. 66, that all questions arising under this act * * * shall be determined by
the Board * * *" was broad enough to cover the question there involved, which was
simply a question as to whether a physician rendering services under the particular
circumstances of the case was entitled to have his claim approved against the insurance
carrier.
determined by the Board * * * was broad enough to cover the question there involved, which
was simply a question as to whether a physician rendering services under the particular
circumstances of the case was entitled to have his claim approved against the insurance
carrier.
Rejecting the cases mentioned, the supreme court of Michigan, in the Michigan Mut.
Liability Company case, supra, says:
In Michigan, questions historically of equitable cognizance must remain determinable in
chancery. (Citing cases.) Accordingly, we have insisted that a court of equity is the only
forum to adjudicate questions of fraud relating to the administration of the Workmen's
Compensation Law. (Citing cases.) We think also that the question of mistake in the issuance
of an insurer's certificate is to be determined by a court of equity and not by the department,
and that the intervention of equity is necessary for adequate protection of the rights of an
insurer.
The court refers then to one or more of the following cases:
In Kelley v. Howard, 233 Mo.App. 474, 123 S.W.2d 584, the compensation commission
of Missouri had found in a proceeding pending before it that the insured employer had
obtained the reinstatement of her coverage by misrepresentation, and that the purported
reinstatement was void. On appeal the employers contended that the commission acted in
excess of its powers when it assumed jurisdiction to determine the question of alleged fraud.
The court agreed with this contention, holding that the commission was an administrative
agency without judicial power in the constitutional sense and had no power authoritatively to
expound any principal of law or equity.
In Kelley v. Minneapolis, St. P. & S. S. M. Ry. Co., 206 Wis. 568, 240 N.W. 141, 143,
one Agnes Kelley had accepted a payment of $400 from the railroad company and signed a
complete release which she thought was a simple receipt.
and signed a complete release which she thought was a simple receipt. Later, while her claim
for compensation for her husband's death was still pending before the industrial commission
for an award by reason of the fact that her husband had been killed in the course of his
employment by an insured truck company, she brought suit to cancel the release she had
given the railroad. The lower court held that her complaint stated a cause of action and
overruled a demurrer thereto. On appeal it was urged that the commission had full and
complete authority to receive parol evidence to contradict the terms of the written release
under the authority of the industrial insurance act, that the lower court had no jurisdiction,
and that the demurrer should have been sustained. The court said:
This action invokes a well-defined remedy given by courts of equity. No citation of
authority is necessary to show that courts of equity have authority in proper cases to modify,
reform, or cancel written instruments. On the other hand, the powers of the commission are
derived exclusively from the statutes. Wisconsin Mutual Liability Co. v. Industrial
Commission, 190 Wis. 598, 209 N.W. 697. No statute is cited by appellants, and we have
been unable to find any which even pretends to confer authority on the commission to
modify, reform, or cancel written instruments properly before it for consideration. Any
attempt by the Legislature to confer such purely judicial powers upon the commission would
no doubt meet with insurmountable constitutional objections. Klein v. Barry, 182 Wis. 255,
196 N.W. 457. While the Workmen's Compensation Act must at all times be liberally
construed to the end that its beneficent purposes may be fully carried out, we find no sanction
in the law for the contention herein made that the commission may exercise such purely
judicial powers.
Klein v. Barry, 182 Wis. 255, 196 N.W. 457, cited by the court in the last excerpt, is even
stronger. There a statute was attacked because it gave the railroad commission of Wisconsin
the right to declare certain stock issued under circumstances not complying with the
statute voidable, and thereafter in its discretion to restore the parties to the stock
transaction to their former position or to place them in the position they would have been
in had the law been complied with or had the representations made been true, and in
general to make such award as might be just and equitable in the premises.
issued under circumstances not complying with the statute voidable, and thereafter in its
discretion to restore the parties to the stock transaction to their former position or to place
them in the position they would have been in had the law been complied with or had the
representations made been true, and in general to make such award as might be just and
equitable in the premises. The court said: If this clause does not and was not intended to
confer upon the Railroad Commission the powers of a court of equity, then it is difficult to
imagine language that would. 182 Wis. 255, 196 N.W. at page 461. The court then reversed
the order of the lower court which had denied an injunction restraining the railroad
commission from proceeding to adjudicate the matter under the powers claimed under the act.
In Farmers Gin Co. v. Jones, 146 Okl. 79, 293 P. 527, the court held the state industrial
commission to be without jurisdiction to determine contract rights existing between the
employer and the insurance company and that the rights of the employer against the insurance
company, if the latter had attempted to cancel its policy in violation of its contract, must be
adjudicated in the civil courts. That case was overruled by the later case of Tri-State Casualty
Ins. Co. v. Bowen, 189 Okl. 97, 113 P.2d 981, 985, and it was held that the commission had
the authority to determine the primary proposition whether or not the relationship of
employer and insurance carrier was in existence on the date of the injury. The court further
stated that when the industrial commission determined whether or not the relationship of
insurance carrier was in existence on the date of the injury it was exercising one of the
powers necessary to the discharge of its statutory duty in determining the liability of such
insurance carrier to the claimant herein. The court further held that the commission not only
had such jurisdiction, but that it was exclusive. It thus joined the Kansas school of thought.
In Lumbermen's Reciprocal Association v. Henderson, Tex.Com.App.,
Tex.Com.App., 15 S.W.2d 565, 566, the court upheld the statement of the district court that
averments of fraud in procurement (of a release of an industrial award) are essentially of
judicial cognizance; and because the Industrial Accident Board is not a court (Article V,
Constitution; Middleton v. Texas Power & Light Co., 108 Tex. 96, 185 S.W. 556), its action
is in nowise a condition precedent to institution of judicial proceedings to secure appropriate
relief.
In Red Rover Copper Co. v. Industrial Commission, 58 Ariz. 203, 118 P.2d 1102, 1106,
137 A.L.R. 740, Arizona adopted the Kansas theory, but this was justifiably done pursuant to
a constitutional amendment, Const. Ariz. art. 18, secs. 4, 5, 7, so that the court, stating that it
was supported by New York, California, and Kansas, and was rejecting Utah, Wisconsin,
Oklahoma, and Texas, was able to say: Where and how has the jurisdiction to consider
equitable defenses been withheld from the board? It is difficult to put one's finger on any
constitutional or statutory provision * * * which thus limits its jurisdiction. Quite the
opposite question is posed by this appeal. Where and how has the Nevada industrial
commission been clothed with judicial powers? If a construction of the Nevada industrial
insurance act furnishes the answer to this question, we should then look in vain in our
constitution for its authority. However, no such construction is necessary or warranted.
In Continental Casualty Co. v. Industrial Commission of Utah, 61 Utah 16, 210 P. 127,
128, the court, reversing an award made by the commission, said, if the policy was obtained
by fraud or if a mistake was made in fixing the date when the same should become effective
the Industrial Commission is not the tribunal to grant the plaintiff relief. While granting the
fact that many of the acts of the commission are quasi judicial, the court still insists that it is
in no sense a judicial body but is distinctively an administrative body.
Appellant relies on Pershing Quicksilver Co. v. Thiers, 62 Nev. 3S2
62 Nev. 382, 152 P.2d 432, but we find nothing in this case to support appellant's theory that
the determination of coverage was under the circumstances within the exclusive jurisdiction
of the commission. Rather are we inclined to adhere to the traditional policy of this court in
jealously protecting the constitutional vesting of judicial powers in the courts.
2. The water law of this state was saved from a violation of the constitutional vesting in
the district courts of original jurisdiction in all cases in equity and in all cases at law
involving the title or right of possession to real property by holding that the order of
determination to be filed by the State Engineer in the office of the clerk of the district court
operates as and has the force and effect of a complaint * * *. Vineyard Land & Stock
Company v. District Court, 42 Nev. 1, 171 P. 166, 172. The state bar act was held not to
violate the constitution because the findings and recommendations of the local administrative
board and the board of governors was recommendatory only, and because the court had to
make its own independent review of the facts and its own findings and decree. In re Scott, 53
Nev. 24, 292 P. 291. It is conceded that quasi judicial powers must necessarily be exercised
by the Nevada state industrial commission in virtually every award that it makes. This is true
of many administrative boards and of many administrative officers, and is so patent that
neither the listing of illustrations nor the citation of authorities is required. Appellant's brief,
however, fairly bristles with questions of law and equity whose determination, he insists,
were and are within the exclusive jurisdiction of the board. Waiver, forfeiture, and estoppel
are discussed at length, and the commission's conclusion that the insurance was in default
despite the acceptance of the retroactive filings is declared to violate all the rules of
equity. The case at bar is said to require a determination of estoppel or equitable liability.
Pages are devoted to an exposition of the theory and application of estoppel and waiver.
of the theory and application of estoppel and waiver. Inducements and misrepresentations are
discussed and results characterized as unconscionable. No stronger case can be made than
the appellant's own claims, for the holding that it was not the legislative intent to place within
the bosom of the industrial commission these functions, which our organic law has vested in
the courts. The commission having denied coverage by reason of the defendant's failure to file
his pay rolls and pay his premiums as required by the workmen's compensation act and the
rules promulgated thereunder by the state industrial commission, plaintiff was entitled to
commence his common law action in the district court.
3-7. Several other contentions are made by appellant. It is claimed that the court's finding
that the accident arose out of and in the course of plaintiff's employment is not justified. It is
our opinion that this was amply justified under the evidence. The same applies to the
contention as to plaintiff's period of lack of employment after the accident. Appellant claims
that the court was in error in making a finding of defendant's negligence, for the reason that
such finding was immaterial and irrelevant to the basis upon which recovery was permitted
by the lower court. This contention is without merit. It is urged that the court erred in its
conclusion that the evidence established a rejection of the terms of the Nevada industrial
insurance act by the defendant. We are inclined to agree with the statements of both the
learned judge who tried the case and the learned judge who denied the motion for new trial to
the effect that the defendant's default in the filing of his pay rolls and the payment of his
premiums resulted in a statutory rejection of the act. In any event, as above noted, the
evidence on this point, if not actually conflicting, is to say the least confusing, and we are not
disposed to question the conclusions reached in the district court under the circumstances.
Appellant claims that the evidence was insufficient to establish the finding of damage in the
sum of $4,SS0.
sum of $4,880. This, however, was within the province of the district court, and there was
ample evidence to sustain it. Error is claimed in the court's action in overruling the demurrer
to the amended complaint and in overruling the defendant's objections to the plaintiff's
proposed findings and in denying the motion for nonsuit. These contentions are all disposed
of in our conclusion that the plaintiff properly filed his complaint in the district court.
Appellant earnestly contends that the court erred in denying the motion of defendant
made under sec. 64-65 of the Civil Practice Act praying that the Industrial Commission be
brought in as a party defendant ( 8565, N.C.L.). If the presence of the Nevada state
industrial commission was necessary in this action before a complete determination of the
controversy between the plaintiff and the defendant could be had, a point which we do not
find it necessary to decide, the situation as shown by the record in this case forecloses
appellant from a reversal on this ground. Neither the minutes of the court, nor the pleadings,
nor anything in the bill of exceptions discloses that the defendant ever moved the court for
leave to join the commission as a party to the proceeding, nor did he demur to the complaint
upon the ground of nonjoinder. At the conclusion of the trial counsel for the respective parties
announced to the court that they rested. The court thereupon stated that plaintiff had proved
his case by a preponderance of the evidence and ordered that judgment be entered in favor of
the plaintiff and against the defendant. The court, in the course of its remarks, indicated the
possibility of the right of the defendant to recover from the industrial insurance commission,
and it is apparently with reference to such remark that counsel for defendant, after the court's
announcement of judgment, stated:
I wonder if we could be heard on that point, so we could have the figures and a couple of
authorities to submit to your Honor. I think it would save further needless litigation.
needless litigation. * * * (I should like to submit authorities) as to the liability of the
Industrial Commission in this action.
By the Court: I couldn't make a judgment against them because they are not a party here.
By Mr. Morse: I realize that, your Honor, but we have certain suggestions that we wish to
make to your Honor supported by authorities, that we think will terminate the whole thing.
By Mr. Jones: We object to arguing on that point. It is not within the issues of this case.
8. The court then set 3 p.m. of the following day for argument. This was apparently had in
chambers, and what transpired does not appear in the record. Formal findings, conclusions
and judgment were subsequently entered. We see no merit in appellant's contention that the
court erred in denying some motion with respect to the parties that does not appear in the bill
of exceptions.
The motion for new trial was restricted to the ground that the court erred in holding that
the defendant was not covered by the Nevada industrial insurance act at the time of the
injury, and what we have said above disposes of this contention. We have considered all
other points raised, and find no merit in them. Some of the authorities we have found
unnecessary to discuss.
The judgment and the order denying defendant's motion for a new trial are hereby
affirmed, with costs.
Horsey, J., did not participate in the foregoing case.
____________
64 Nev. 431, 431 (1947) Stocks v. Stocks
LOUISE STOCKS, as Guardian of the Person and Estate of HARRISON S. STOCKS, JR.,
an Incompetent, Appellant, v. HARRISON S. STOCKS, Respondent.
No. 3493
July 24, 1947. 183 P.2d 617.
1. Statutes.
In construing a statute copied from another state, interpretation of such statute by highest court of the
other state, though strongly persuasive, is not absolutely controlling.
2. Courts.
While courts will depart from the doctrine of stare decisis where such departure is necessary to avoid
perpetration of error, observance of the doctrine is indispensable to the due administration of justice, so
that a question once deliberately examined and decided should be considered as settled.
3. Courts.
Courts are justified in overruling former decisions only where such decisions are clearly erroneous.
4. Venue.
Defendant was entitled as a matter of right to have cause removed for trial to county of his residence
upon complying with statutory requirements, and court in passing on his motion for change of place of
trial could not consider whether convenience of witnesses and promotion of justice would warrant
retention of jurisdiction; such matters being determinable exclusively by court for county of defendant's
residence. Comp.Laws, secs. 8571, 8572.
Appeal from Seventh Judicial District Court, White Pine County; Harry M. Watson,
Judge.
Action by Louise Stocks, as guardian of the person and estate of Harrison S. Stocks, Jr., an
incompetent, against Harrison S. Stocks, to recover a judgment for the expense of future
medical treatment of incompetent son of the parties and for reimbursement for plaintiff's
outlays for past support, maintenance, and medical treatment of the incompetent. From an
order granting defendant's demand and motion to change the place of trial to county of his
residence, plaintiff appeals. Order affirmed.
Robert R. Gill, of Ely, for Appellant.
Taylor & Gubler, of Las Vegas, and C. A. Eddy, of Ely, for Respondent.
OPINION
This is an appeal from an order made by the Seventh judicial district court of the State of
Nevada, in and for the county of White Pine, granting defendant's demand and motion to
change the place of trial of said action from White Pine County to Clark County. The motion
and order were based upon the fact of the defendant's residence in the latter county, which
fact is conceded. The motion and demand were timely made and noticed, and the order
changing the place of trial was made after a hearing of such motion as well as plaintiff's
objection thereto. The grounds of the objection were that the convenience of witnesses and
the ends of justice would be promoted by retaining the cause in White Pine County for trial,
and the objection was supported by plaintiff's affidavit reading as follows:
Louise Stocks, being first duly sworn, deposes and says that she is the plaintiff in the
above entitled action; that she has been informed of the pendency of a motion by defendant
for the removal of this action to the Eighth Judicial District Court of the State of Nevada in
and for the County of Clark on the ground that the defendant is a resident of said Clark
County; that she intends to oppose such motion on the hearing thereof through her attorney
herein on the ground that, as she is informed and believes, the convenience of witnesses and
the ends of justice would be promoted by retaining this action in the above entitled Court for
further proceedings and trial.
That as stated in her complaint herein, she is a resident of the County of White Pine and
State of Nevada; that the said Harrison S. Stocks, Jr., the incompetent in behalf of whom she
sues as guardian resides with her in said county and state; that the two of them live alone,
and there is no one with whom she could leave the said Harrison S.
in said county and state; that the two of them live alone, and there is no one with whom she
could leave the said Harrison S. Stocks, Jr. in the event this action should be removed to the
County of Clark and the Eighth Judicial District Court of the State of Nevada for trial therein
and she is required to go there as a witness; that in the event of such removal the presence of
the said Harrison S. Stocks, Jr. might also be necessary on such trial of this action; that due to
the physical condition of the said Harrison S. Stocks he cannot travel by motor stage, the only
means of public conveyance heretofore available between Ely and Las Vegas, Nevada; nor
does she believe it would be safe to attempt to take him from Ely to Las Vegas by the air line
service now being inaugurated; that she has no automobile or other means of private
transportation; and further, that her financial circumstances are not now such nor expected to
be such at the time this action may come on for trial if so removed, as to enable her to go to
Las Vegas and maintain herself or herself and the said Harrison S. Stocks, Jr., there for and
during such trial.
Plaintiff's complaint in the action, filed March 17, 1947, alleged that on March 13, 1947,
she had been appointed guardian of Harrison S. Stocks, Jr., an incompetent, aged 27 years,
the son of plaintiff and defendant; that said incompetent was subject to epileptic attacks to
which he had been subject since the age of twelve and which still continued with great
frequency; that his custody had been awarded to plaintiff in 1928 by the superior court of
California in and for Los Angeles County under her cross complaint for separate maintenance
in a divorce action instituted by the defendant herein; that in 1938 she had sought, by an
action in Clark County, Nevada, to compel defendant to pay his arrears under the California
decree, for the support of herself and said incompetent, amounting to $10,720, with interest,
costs, etc., which resulted in a settlement whereunder she accepted $5,000 plus $284
expenses, out of which she had to pay her own costs and attorney fees; that the residue of
said fund, plus her own earnings, amounting in all to some $7,000, had been consumed in
living expenses of herself and her son and in medical expense for the latter including
treatments at Montreal, Canada, and the Ortman Clinic in Canistota, South Dakota; that
she is now without funds and that she and her son are likely to become public charges
within "the next few months," while the defendant, as she is informed and believes, is a
man of substantial means; that her son is also in need of treatment, operative or
otherwise, for hemorrhoids, and in need of an operation to correct an eyelid condition
caused by a burn in childhood during an epileptic seizure; that defendant has rejected
various suggestions made by her for the child's treatment and the expense thereof, but
stated in November 1946 "that he would let the court decide his obligation, and that if his
son were placed in a proper institution he would gladly assume his financial obligation."
that the residue of said fund, plus her own earnings, amounting in all to some $7,000, had
been consumed in living expenses of herself and her son and in medical expense for the latter
including treatments at Montreal, Canada, and the Ortman Clinic in Canistota, South Dakota;
that she is now without funds and that she and her son are likely to become public charges
within the next few months, while the defendant, as she is informed and believes, is a man
of substantial means; that her son is also in need of treatment, operative or otherwise, for
hemorrhoids, and in need of an operation to correct an eyelid condition caused by a burn in
childhood during an epileptic seizure; that defendant has rejected various suggestions made
by her for the child's treatment and the expense thereof, but stated in November 1946 that he
would let the court decide his obligation, and that if his son were placed in a proper
institution he would gladly assume his financial obligation. The complaint sought a
judgment for $1,800 for treatment for one year of the son's epilepsy, $1,000 for other
treatment for the son, and $7,000 for herself as reimbursement of her outlays for the support,
maintenance, and medical treatment of the incompetent.
The court's order changing the place of trial to Clark County, the place of defendant's
residence, over the objections of plaintiff, and what may be deemed for the purpose of this
appeal, its order denying plaintiff's counter-motion to retain jurisdiction for the convenience
of witnesses and the promotion of justice, were governed by the provisions of sections 8571
and 8572 Nevada Compiled Laws, reading as follows:
8571. Residence of Parties Determines Place of TrialChange of Place. 72. In all
other cases, the action shall be tried in the county in which the defendants, or any one of
them, may reside at the commencement of the action; or, if none of the defendants reside in
the state, or if residing in the state, the county in which they so reside be unknown to the
plaintiff, the same may be tried in any county which the plaintiff may designate in his
complaint; and if any defendant, or defendants, may be about to depart from the state,
such action may be tried in any county where either of the parties may reside or service
be had, subject, however, to the power of the court to change the place of trial, as
provided in this act.
designate in his complaint; and if any defendant, or defendants, may be about to depart from
the state, such action may be tried in any county where either of the parties may reside or
service be had, subject, however, to the power of the court to change the place of trial, as
provided in this act.
8572. Change of Venue.Grounds. 73. If the county designated for that purpose in
the complaint be not the proper county, the action may, notwithstanding, be tried therein,
unless the defendant before the time for answering expires demand in writing that the trial be
had in the proper county, and the place of trial be thereupon changed by consent of the
parties, or by order of the court, as provided in this section. The court may, on motion, change
the place of trial in the following cases:
1. When the county designated in the complaint is not the proper county.
2. When there is reason to believe that an impartial trial cannot be had therein.
3. When the convenience of the witnesses and the ends of justice would be promoted by
the change. When the place of trial is changed, all other proceedings shall be had in the
county to which the place of trial is changed; unless otherwise provided by the consent of the
parties in writing duly filed, or by order of the court, and the papers shall be filed, or
transferred, accordingly.
Respondent maintains that under the mandatory provisions of the first clause of sec. 8571,
as interpreted in Williams v. Keller, 6 Nev. 141, the court could not do otherwise than order
the change of place of trial, and, having done this, lost further jurisdiction of the case and
could not consider plaintiff's request that it retain jurisdiction for the convenience of
witnesses or the promotion of justice; that any such request or motion would necessarily have
to be made to the district court for the county to which the case had been transferred.
Appellant frankly grants this contention, provided Williams v. Keller is controlling. He
insists, however, that the opinion in that case is not good law, that it has nothing to
commend it save antiquity, that it is out of date, not supported by contemporary
authority, and should be reversed.
the opinion in that case is not good law, that it has nothing to commend it save antiquity, that
it is out of date, not supported by contemporary authority, and should be reversed. His
position is thus stated in his opening brief:
Is Williams v. Keller Controlling?
If it is, we are probably wasting the Court's time. The matter was argued in behalf of
plaintiff below with full knowledge of the ruling in that case, the only reported Nevada case
we have found directly in point, and that it was against our position in all respects. Now, for
the second time in seventy-seven years, this Court has the question before it. * * * While
Williams v. Keller, 6 Nev. at page 144 has been uniformly followed by this Court, and the
Court below could hardly have decided otherwise in view of it, we would respectfully suggest
that the time appears ripe for a reexamination of that case and its underlying principles.
Curiously enough, the writer of the opinion in Williams v. Keller did not cite a single
authority, except a rather vague reference to what was said in New York in a case resembling
the present' (6 Nev. at page 144; combined Vol. 5-6-7 Nev., p. 478). As we shall show
hereafter, there was a respectable and uniform line of authority in California, from whose
Practice Act our statute directly derived, holding directly to the contrary, which Judge
Whitman neither mentioned, distinguished, nor refused to accept.
Appellant then painstakingly sets forth in parallel columns the provisions of the California
and Nevada acts, traces the history of each, and quotes from seven early California decisions,
three of which antedated Williams v. Keller and four subsequent thereto, which he contends
all hold squarely contrary to the views of Judge Whitman, who stated the law for this court
as follows:
To the motion and affidavit of appellant, the counter-motion (if counter-motion it be) and
affidavits were no defense.
defense. They raised an irrelevant issue, and one which the first district court had no right to
consider. * * *
When appellant's original motion was made, the district court of the first district was by
force thereof ousted of all jurisdiction over the person of appellant and the subject matter of
the suit, except to decide upon the one proposition of the residence of appellant at the time of
the commencement of the action. That found in favor of appellant, the order for change of
trial necessarily and conclusively followed. (Id., 6 Nev. at page 145.)
The California cases referred to as holding contra are: Loehr v. Latham, 15 Cal. 418, 420;
Pierson v. McCahill, 22 Cal. 127, 128; Jenkins v. California Stage Co., 22 Cal. 537, 538;
Hanchett v. Finch, 47 Cal. 192; Edwards v. Southern Pacific Railroad Company, 48 Cal. 460;
Hall v. Central Pacific Railroad Co., 49 Cal. 454. These cases are indeed all contrary to the
holding of this court in Williams v. Keller, and indicate that when a defendant demands that
the place of trial be changed to the place of his residence, the court's action should be
nonetheless governed by a proper consideration of whether the convenience of witnesses and
the promotion of justice warrant an order retaining jurisdiction.
1. It is unnecessary for us to speculate as to what the decision of this court might be at this
time were we not confronted with the precedent of Williams v. Keller. This court has never
held that the rule of statutory construction, whereunder the interpretation by the highest court
of a sister state, of a statute of that state copied by us, is strongly persuasive, is absolutely
controlling. See Menteberry v. Giacometto, 51 Nev. 7, 267 P. 49. Certainly no fault can be
found with the logic of Whitman, J., in construing the mandatory part of our statute when the
defendant demands a change of place of trial to the county of his residence:
As a general rule, change of place of trial is eminently within the discretion of the court to
which the motion is addressed; but when the motion is made under the peculiar language
of the statute cited, on the ground of residence, there is no room for the exercise of
discretion.
motion is addressed; but when the motion is made under the peculiar language of the statute
cited, on the ground of residence, there is no room for the exercise of discretion. The statute
is peremptory in that regard, and the party making such motion is entitled to have the same
granted, that he may plead or take such other action as he may be advised; and to that end, it
is his privilege to have the ruling and decision of the judge of the place of his residence, upon
any question arising subsequently to the necessary order, upon his demand and motion.
2-4. While courts will indeed depart from the doctrine of stare decisis where such
departure is necessary to avoid the perpetuation of error (14 Am.Jur. 341), the observance
of the doctrine has long been considered indispensable to the due administration of justice,
that a question once deliberately examined and decided should be considered as settled. As
said by Norcross, C. J., in Ex parte Woodburn, 32 Nev. 136, 104 P. 245, To hold with
petitioner's contention in this case, we would be compelled to overrule the decision of this
court by Hawley, J., in the Darling Case, supra [Ex parte Darling, 16 Nev. 98, 40 Am.Rep.
495]. Courts are only justified in overruling former decisions where the same are deemed to
be clearly erroneous. We do not find Williams v. Keller so. Not only that, but the rule has
been recognized in this state in one way or another for many years. See Wilson v. Wilson, 55
Nev. 99, 26 P.2d 355; Duffill v. Bartlett, 55 Nev. 228, 297 P. 504; Fabbi v. First National
Bank, 62 Nev. 405, 153 P.2d 122, which cases, while not directly in point, tend to indicate a
general recognition of the rule. As general practitioners for many years, the members of this
court cannot but know that the district courts throughout the state, since the enunciation of the
rule in Williams v. Keller, have uniformly held that a defendant may as a matter of right have
a cause removed for trial to the county of his residence upon complying with the statutory
requirements, and that only that court has jurisdiction over further proceedings.
The facts presented by the plaintiff's complaint would naturally evoke the sympathy of all
men. Yet plaintiff should not encounter too great hardship in submitting to the district court
in Clark County her motion to change the place of trial to White Pine County on the ground
of the convenience of witnesses and the promotion of justice. And perhaps her difficulties
would not be unsurmountable if that court, after a consideration of the facts, should deny such
motion. Her complaint indicates that the defendant will not be found entirely uncooperative.
These remarks are of course not intended to indicate in any way whatsoever what action
should be taken by the district court of Clark County, in the exercise of its discretion, if and
when any further proceedings are initiated before it.
Under authority of Williams v. Keller, supra, the order appealed from is hereby affirmed,
with costs.
Eather, C. J., because of illness, did not participate in the foregoing case.
____________
64 Nev. 440, 440 (1947) Murphy v. Murphy
JOHN B. MURPHY, Appellant, v. ADELE L.
MURPHY, Respondent.
No. 3477
July 30, 1947. 183 P.2d 632.
1. Motions.
A motion for new trial of proceedings upon a motion culminating in an order is not allowable.
2. Motions.
Where a motion has been denied and a further hearing is sought, the proper practice is to ask leave to
renew the motion or for a rehearing.
3. Appeal and ErrorMotions.
Attempted motion for new trial in relation to proceedings had upon a motion culminating in an order
construing judgment was unauthorized, and attempted appeal from denial of so-called motion would be
disregarded.
4. Divorce.
A motion to construe a divorce decree would not be treated as a motion to vacate, amend, modify, or
correct the decree or to change it in any respect, and order construing the decree would not be treated as a
judgment modifying the decree merely because an erroneous construction was allegedly given the decree.
5. Courts.
A court of general jurisdiction has jurisdiction to construe its judgments and decrees at any time.
6. Courts.
A court's jurisdiction to construe its judgments and decrees includes jurisdiction to make mistaken or
erroneous interpretations or constructions.
7. Divorce.
Where divorce decree provided for payment of $150 per month to wife on condition that if husband
reverted to regular army rank of lieutenant colonel payments should be reduced to $100, an order entered
in response to motion for construction of decree in view of husband's alleged reversion to rank of
lieutenant colonel was not a vacation, amendment, modification, or correction of decree in violation of
district court rule because made after more than six months had elapsed since rendition of decree.
8. Husband and Wife.
Property settlement agreement adopted by divorce decree and providing for payment of alimony to
wife should be construed fairly and reasonably, and not too strictly or technically.
9. Husband and Wife.
Property settlement agreements incorporated in divorce decrees and providing for payments of
alimony to wife are to be construed as meaning what it may reasonably be inferred the
parties intended.
be construed as meaning what it may reasonably be inferred the parties intended.
10. Divorce.
A principal factor in determining amount of alimony a husband should pay is the extent of his
financial ability.
11. Divorce.
Under the equitable maxims that equity regards substance, and not form, and that the law cares not for
small things, a divorce decree adopting property settlement agreement for payment of $150 per month to
wife on condition that, if husband reverted to regular army rank of lieutenant colonel, payments should be
reduced to $100, was properly construed as requiring husband to continue paying $150 per month after
he was reduced from rank of brigadier general to the rank of lieutenant colonel and promoted the
following day to the rank of colonel with a reduction in annual salary of only $200.
Appeal from Second Judicial District Court, Washoe County, A.J. Maestretti, Judge.
Action by Adele L. Murphy against John B. Murphy for divorce. A decree was entered
granting an absolute divorce and adopting a written stipulation entered into by the parties
purporting to settle all property rights between them, and making provision for support of the
plaintiff. From an order construing the judgment and from an order denying so-called motion
for new trial, the defendant appeals. Order construing the judgment affirmed; attempted
appeal from order denying so-called motion for new trial disregarded.
Oliver C. Custer, of Reno, for Appellant.
John S. Belford, of Reno, for Respondent.
OPINION
On August 16, 1943, respondent, Adele L. Murphy, as plaintiff in the court below, filed an
action for divorce, in the Second judicial district court of the State of Nevada, in and for the
county of Washoe, in department No.2.
Nevada, in and for the county of Washoe, in department No.2. The appellant, John B.
Murphy, the defendant in such divorce action, answered; and at the time of trial, which
occurred on said 16th day of August 1943, the parties, by their respective attorneys, entered
into a written stipulation purporting to settle all property rights between them, and making
provision for the support of the plaintiff wife. The said stipulation is as follows:
Whereas an action for divorce is pending between plaintiff and defendant and
Whereas the parties desire to remove from the field of litigation all matters concerning
property rights and the support of plaintiff
It is hereby stipulated as follows:
That in the event a decree of divorce is granted to either party to the above entitled action
defendant shall pay to plaintiff for her support and maintenance the sum of One Hundred
Fifty Dollars ($150.00) per month, provided however that should defendant revert to his
regular army rank of Lieutenant Colonel said payments shall be reduced to the sum of One
Hundred Dollars ($100) per month and provided further that defendant shall not be obliged to
make any payments due under the terms hereof after the death or remarriage of plaintiff.
That except as hereinabove set out neither party shall have any right, claim or demand
against the other or against the estate of the other by reason of the marital relationship which
existed between them.
On said 16th day of August 1943 the trial court made its findings and conclusions of law,
and entered the court's judgment and decree, wherein it awarded to the plaintiff (respondent
herein) an absolute divorce from the defendant (appellant herein), and further ordered that the
said stipulation be approved, ratified and adopted and that the plaintiff and defendant,
respectively, be ordered and directed to comply with all of the terms and conditions thereof.
On May 2, 1946, the respondent herein, as plaintiff in the court below, duly served and
filed a notice of motion for an order construing said judgment and decree of divorce to the
effect that said judgment and decree then required, and ever since the 16th day of August
1943 had required, the defendant to pay to the plaintiff, for her support and maintenance, the
sum of $150 per month. Attached to the said notice of motion was the affidavit of the
plaintiff, wherein she stated, among other things, that effective March 5, 1946, defendant
reverted to the grade of Lt. Colonel, Army of the United States, and effective March 6, 1946,
was promoted to the grade of Colonel, Army of the United States. Subsequently, on June 10,
1946, the defendant in the trial court filed his affidavit in opposition to the said motion of the
plaintiff, and attached thereto, and made a part thereof, special orders No. 51 of the war
department of the United States by direction of the president of the United States.
Whilst the affidavit of defendant controverted certain statements in the affidavit of
plaintiff, there was no controversy as to the contents of the said special orders No. 51 of the
war department, but the controversy was merely as to the effect thereof in relation to the
alimony provision of the said stipulation made August 16, 1943, in the divorce action.
Subsequently, on October 3, 1946, the plaintiff filed an affidavit in reply, and on the same
date the defendant filed an answering affidavit.
The motion of plaintiff for an order construing the judgment and decree as to the said
alimony provision came on regularly for hearing on October 4, 1946, and upon the conclusion
of the hearing the trial court, the Hon. A. J. Maestretti, district judge, presiding, made and
entered its order, as follows:
It is hereby ordered that said Judgment and Decree now requires and ever since the 16th
day of August, 1943, has required the defendant to pay to the plaintiff for her support and
maintenance, the sum of $150.00 per month."
for her support and maintenance, the sum of $150.00 per month.
This order amounted, in effect, to the holding by the trial court that the reversion of the
defendant pursuant to said orders No. 51 to the rank of lieutenant colonel of the army of the
United States, effective March 5, 1946, and ending March 6, 1946, upon his promotion to the
grade of colonel becoming effective on said last stated date, was not such a reversion of the
defendant to his regular army rank of lieutenant colonel, under the terms and within the
meaning of the said stipulation entered into August 16, 1943, and approved, ratified and
adopted by said judgment and decree, as would operate, or as should be construed to operate,
as a basis for the reduction from $150 per month of the payments provided by said stipulation
for the support and maintenance of the plaintiff.
On the 3d day of December 1946 the attorney for plaintiff filed and served a notice of
intention to move for a new trial, directed to the proceedings which had occurred in the said
district court October 4, 1946, upon the hearing of said motion, and the ruling and order then
made by the district court construing such judgment and decree of divorce, and, particularly,
the provision of the said stipulation approved, ratified, and adopted thereby, providing for the
payments for plaintiff's support and maintenance.
The notice of intention to move for a new trial, so-called, treated the order as a judgment,
following the theory of appellant's attorney that such order constituted a modifying judgment.
From the opening brief it is apparent that Mr. Custer, appellant's attorney, construes the said
order as one erroneously construing the reversion of the defendant to the rank of lieutenant
colonel for one day as not sufficient, within the meaning of the stipulation and judgment and
decree, to justify the reduction of the payments for plaintiff's maintenance and support to
$100 per month; and that, therefore, the trial court, in excess of its jurisdiction, by failing to
accord such reversion its proper effect, had, in effect, modified the judgment and decree to
the extent of requiring the defendant, after and notwithstanding such reversion of the
defendant to the rank of lieutenant colonel, to continue to pay to his former wife, for her
support and maintenance, $50 per month, or $600 per year, more than provided by the
judgment and decree of divorce {as thus construed by appellant's said attorney).
in effect, modified the judgment and decree to the extent of requiring the defendant, after and
notwithstanding such reversion of the defendant to the rank of lieutenant colonel, to continue
to pay to his former wife, for her support and maintenance, $50 per month, or $600 per year,
more than provided by the judgment and decree of divorce (as thus construed by appellant's
said attorney). This construction is entirely that of Mr. Custer, and is based upon his theory as
to the proper construction of such alimony provision of the judgment and decree, and as to
the effect of what be conceives to have been an erroneous construction of such provision by
the trial court.
There is nothing in the order of the trial court which, to us, indicates that the trial judge did
more than construe the provision in question. There was no effort on the part of either party
to have the decree modified, nor was there any intention of the trial court to modify the same.
The motion for a new trial, therefore, must be construed and treated as an attempt to obtain a
review or re-trial by the lower court of the proceedings upon the said motion, culminating
in an order, and not in a judgment.
This so-called motion for a new trial was made, and came on for hearing, December 16,
1946, and, after hearing the arguments of respective counsel, the trial court denied the
motion.
The appeal to this court, according to the statement in appellant's opening brief, was taken
from the order of the trial court dated October 4, 1946, construing the judgment and decree of
divorce, as to the alimony provision therein, and, also, from the order of the lower court
denying appellant's so-called motion for a new trial.
In his notice of appeal herein, filed December 20, 1946, the appellant has stated that he is
appealing from the judgment, apparently upon the said theory of his attorney that the trial
court's order was a judgment modifying the original judgment, or decree; but in view of what
we have stated, and shall hereinafter state, we are of the opinion that the trial judge merely
construed the decree, and did not, in any sense intend to modify, nor did he modify, the
said judgment, or decree.
are of the opinion that the trial judge merely construed the decree, and did not, in any sense
intend to modify, nor did he modify, the said judgment, or decree. We shall, therefore, treat
this appeal by the appellant as being taken, as stated on page 3 of appellant's opening brief,
from the order of the lower court dated October 4, 1946, and from the order of the Court
denying Appellant's Motion for a new trial,' so-called.
Three questions present themselves for our determination:
I. Does the law provide for, or allow, a motion for a new trial in relation to proceedings
had upon a motion culminating in an order?
II. Did the lower court's order of October 4, 1946, construing the alimony provision of the
divorce judgment and decree, and that court's assumption of jurisdiction to make such order
after more than six months had elapsed since the rendition of the judgment and decree for
divorce, August 16, 1943, violate rule XLV of the rules of the district court?
III. Was the construction by the district court of the provision for alimony in the judgment
and decree of August 16, 1943, and the said court's order construing and applying such
alimony provision in relation to the reversion of defendant to the rank of lieutenant colonel of
the army of the United States, on March 5, 1946, and the termination of such reversion,
March 6, 1946, a correct, or an erroneous construction?
1. As to the right to move for a new trial of proceedings upon a motion culminating in an
order, it is well settled, in California and other western and Pacific coast states having codes
of civil procedure, or practice acts, similar to the Nevada civil practice act, that such a motion
for a new trial is not allowable or permissible.
2. The rule to that effect is clearly stated by the text writers and in the decisions of the
courts of such states. The proper practice where a motion has been denied and a further
hearing is sought, is to ask leave to renew the motion, or for a rehearing.
the motion, or for a rehearing. Bancroft's Code Practice and Remedies, vol. 7, secs. 5796,
5797, pp. 7672-7674; 18 Cal.Jur. pp. 661, 662. See, also, 42 C.J. p. 514, especially footnote
83, citing and quoting the leading California case of Harper v. Hildreth, 99 Cal. 265, 270, 33
P. 1103.
In the opinion in Harper v. Hildreth, supra, on page 1105 of 33 P. (same being the portion
of the opinion quoted in 42 C.J. 514, footnote 83), it is stated:
There is no authority in the Code for the new trial of a motion, but if, after the decision of
the motion, it is desired to present any new facts for the consideration of the court, the proper
practice is to ask for leave to renew the motion. If it is desired to review the action of the
court upon an appeal, it is sufficient to present the order in connection with a bill of
exceptions containing the matter upon which the court based its action. A motion which does
not ask for a decision upon an issue of fact that arises upon the pleadings is not the subject of
a new trial, and it needs little reflection to say that if every motion which is made in the courts
on a trial, or with reference to an action, could be followed by a motion for a new trial of such
motion, the case itself would be inextricably involved in the determination of these motions,
and the final judgment in the action indefinitely postponed. * * * (Italics mine).
The supreme court of California, in Harper v. Hildreth, supra, has been followed in its
decision to the effect that a new trial of a motion is not permissible by the Montana supreme
court, in the case of Butte Cons. Min. Co. v. Frank, 24 Mont. 506, 62 P. 922, and Beach v.
Spokane Ranch & Water Co., 21 Mont. 7, 52 P. 560.
3. It is our view that the reasoning of the foregoing authorities is sound, and that to follow
them in this state will lead to better results than though such rule were not followed. It is
necessary to disregard, therefore, defendant's attempted motion for a new trial in the lower
court, as an unauthorized proceeding without legal effect; and, likewise, to disregard
appellant's attempted appeal to this court from the denial of his so-called motion for a
new trial.
legal effect; and, likewise, to disregard appellant's attempted appeal to this court from the
denial of his so-called motion for a new trial. There can be no appeal from an order, so-called,
made in void or legally unauthorized proceedings, and the attempted motion for a new trial,
to review or re-try the motion proceeding, was, clearly, a proceeding unauthorized by our
law.
4-6. Taking up now, for consideration, the proposition, or question, we have above
designated as II, it is our view that, by reason of the facts involved and the legal situation
existing, the motion for an order construing the judgment and decree of August 16, 1943, and
particularly the portion thereof adopting, ratifying and approving the said stipulation of the
parties as to alimony, was just what it purported to be, namely, a motion to construe the
judgment and decree, and not a motion to vacate, amend, modify or correct same, or to
change it in any respect.
The defendant had reverted to the rank of lieutenant colonel for one day, and had taken the
position that the subsequent event upon the occurrence of which (by virtue of such alimony
provision of the judgment and decree) the reduction of the amount he should pay for the
support of the plaintiff was contingent, had happened. The plaintiff took the position that
such reversion, being for so short a time and with such insignificant effect as to the financial
condition of the defendant, was a mere token reversion, and not appreciably affecting the
financial ability of the defendant, and, therefore, that same was not such a reversion as the
parties, by their stipulation, nor the court, by its decree approving, ratifying and adopting
same, contemplated or intended to serve as the basis for bringing into operation the
alternative provision of the judgment and decree providing for a reduction of the payments
from $150 per month to $100 per month. A controversy, therefore, had arisen as to the proper
construction and application of the alimony provision of the judgment and decree.
It is well settled that a court of general jurisdiction has jurisdiction to construe its
judgments and decrees at any time. In the motion proceedings in the instant case, as has been
hereinbefore stated, neither the plaintiff, by virtue of said motion, nor the lower court, by its
ruling, intended or contemplated more than the construction of the judgment, or decree. But
appellant, in his opening brief, contends that the court construed the decree erroneously, and
by such erroneous construction the appellant was required to continue to pay $150 per month
when, in view of his reverting in rank to lieutenant colonel, the amount should have been
reduced to $100 per month, making a difference of $600 per year; that, therefore, there was,
in effect, a modification of the judgment or decree to that effect. We do not (as above
indicated) agree with appellant's theory. The lower court had jurisdiction to construe the
provision in question, which does not, and cannot reasonably be held to mean that said court
must give it one particular construction, or lose its jurisdiction. The court which rendered the
decree had general and ample authority to construe it, which, in view of the generally
recognized imperfection and limitations of human ability, necessarily means that there will
be, at times, in some cases, mistaken or erroneous interpretations or constructions. If its
construction resulted in a party being required to pay more than he should, the remedy was on
appeal from the order. The proceeding for construction only is not, however, because of such
an error, converted into a proceeding to modify the judgment or decree, in a case wherein
neither the court nor either of the parties, at the time of the motion, contemplated, or sought,
any change or modification in the provision in question, but merely a proper construction and
interpretation.
In the case of Aseltine v. District Court, 57 Nev. 269, 62 P.2d 701, this court had before it
a proceeding in mandamus to require the lower court to entertain jurisdiction, after six
months had elapsed, of proceedings to modify the judgment and decree. In that case,
although the motion, as in the instant case, was merely, in effect, an endeavor to carry
out, rather than change, a provision for reduction of alimony in proportion to the
husband's reduction in salary, same, throughout the proceedings, was denominated "a
proceeding to modify."
the motion, as in the instant case, was merely, in effect, an endeavor to carry out, rather than
change, a provision for reduction of alimony in proportion to the husband's reduction in
salary, same, throughout the proceedings, was denominated a proceeding to modify. This
was the form of the motion in the lower court in that case, and the question as to whether
such designation was proper does not seem to have been raised, and this court did not disturb
such designation.
7. It being clearly apparent, however, in that case, that, in view of the provision of the
judgment as to alimony, providing that the amounts of the payments were to be reduced in
proportion to the husband's reduction in salary, and due to the fact that his salary has been
materially reduced, the court held that the husband was entitled to a reduction, and that there
was an implied reservation of jurisdiction to make the modification, so-called, and,
therefore, rule XLV did not apply. The court, apparently, fully realized the necessity and
justice of construing, applying and making effective the judgment or decree according to its
original terms, and inasmuch as (by an inaccurate conception, we believe) the proceedings
throughout had been denominated proceedings to modify, Mr. Justice Coleman, who wrote
the opinion, permitted the designation to continue, same not apparently being questioned,
and, under the theory of implied reservation or retention of jurisdiction, reached the correct
result. In the instant case, however, the proceeding has been properly designated throughout
by such expressions as a motion for order construing decree, and as an order construing
the decree, and, neither in formal denomination nor in substance, has same ever been
designated as, or actually been, a motion, or proceeding, to modify. It is merely a
proceeding upon a motion to construe, and thereby to aid in carrying out and making effective
the alimony provision of the original judgment and decree. The alternative provision for a
reduction to $100 per month in case of the reversion of the defendant to the rank of
lieutenant colonel is as much a part of the original judgment and decree as is the
provision for $150 per month, which became effective when the judgment or decree was
rendered.
lieutenant colonel is as much a part of the original judgment and decree as is the provision for
$150 per month, which became effective when the judgment or decree was rendered. Any
order required, or made, for the construction of the decree, and making effective a reduction
(if justified) is not, in any sense, a vacation, amendment, modification or correction of the
judgment or decree within the meaning of district court rule XLV, but the same is merely
what is purports to be, a motion to construe the judgment or decree.
For the reasons above set forth, we find appellant's exception designated as II in his
opening brief to be without merit.
8-10. We are now confronted with the proposition, or question, which we have
hereinbefore designated as III: Did the lower court err in ruling, by virtue of its order of
October 4, 1946, that said Judgment and Decree now requires and ever since the 16th day of
August 1943, has required the defendant to pay to the plaintiff for her support and
maintenance, the sum of $150 per month?
This ruling and order could only have been reached by the trial court upon the basis that
the reversion of defendant in rank to lieutenant colonel in the army of the United States
(which occurred by virtue of special orders No. 51 of the war department by direction of the
president), effective March 5, 1946, and which was, in effect, terminated by the further order
of promotion of defendant to the grade of colonel in the army of the United States, effective
March 6, 1946, was not such a reversion as, within the meaning and intent of the parties in
entering into said stipulation, and of the lower court in approving, ratifying and adopting
same in the judgment or decree, as would justify reducing the payments to the plaintiff wife,
for her support and maintenance, to $100 per month.
It has been pointed out in respondent's brief, and, likewise, has been shown, in effect, in
one of appellant's affidavits, that the difference between the appellant's salary and
allowances as colonel and as lieutenant colonel amounted to $472.92 per annum; and it
appears that the difference in salary and allowances of a brigadier general and a colonel
is about $200 per annum.
salary and allowances as colonel and as lieutenant colonel amounted to $472.92 per annum;
and it appears that the difference in salary and allowances of a brigadier general and a colonel
is about $200 per annum. If appellant had, upon such reversion, continued in the rank of
lieutenant colonel for a year, for example, the reduction in pay and allowances for that period,
as compared to what he would have received had he continued as brigadier general, would
have been approximately $673. If the appellant had experienced such a reduction, the
provision in the judgment or decree for a reduction of $50 per month, or $600 per year, in
case of such reversion to the rank of lieutenant colonel, would have been reasonable,
assuming that $150 per month was all that appellant could reasonably afford to pay upon the
basis of his salary and allowances as brigadier general. It is clear that no reduction was agreed
upon by the parties in their stipulation, nor contemplated by the provisions of the decree or
judgment approving, ratifying and adopting same, if the reversion of the appellant was only to
the rank of colonel, which, according to the evidence, meant a reduction of only about $200
per year in his salary and allowances. The appellant, however, reverted in rank to lieutenant
colonel for only one day, resulting in his receiving, in pay and allowances, only about $1.30
less than he would have received had the reversion from the rank of brigadier general to that
of colonel been direct, instead by the indirect and circuitous method employed by the war
department, in reducing him to the rank of lieutenant colonel, and in the same order, and even
the same sentence, promoting him, effective one day later, to the rank of colonel.
Agreements in cases such as this should be construed fairly and reasonably, and not too
strictly or technically. According to a very rigid, exact, literal construction of the language
used in the stipulation and approved by the judgment and decree, any reversion at all to the
rank of lieutenant colonel, regardless of whether same was for a time which would or would
not materially or appreciably affect appellants financial condition, or ability to pay, would
be within the language used, and would operate as the basis for a reduction of $50 per
month in the payments to respondent.
a time which would or would not materially or appreciably affect appellants financial
condition, or ability to pay, would be within the language used, and would operate as the
basis for a reduction of $50 per month in the payments to respondent. Is it fair or reasonable
to place such a construction upon the provision for respondent's support and maintenance?
Another important rule of construction of agreements is that same are to be construed as
meaning what it may reasonably be inferred the parties intended. One of the principal factors,
if not the principal one, entering into the problem of a reasonable determination of the
amount of alimony a husband should pay, is the extent or measure of his financial ability; as
Mr. Belford, attorney for respondent, has well stated, in respondent's brief, on page 4, in this
case, as in many others, the alimony was keyed to the income of the husband. It cannot be
reasonably concluded that, in providing for a reduction in alimony of $50 per month, or $600
per year, if the defendant should revert in rank to lieutenant colonel, the parties intended such
reduction should occur upon the basis of a reversion so slight, unsubstantial and transitory as
not appreciably to affect this most important element, or factor, in fixing alimonythe
husband's ability to pay.
11. Other maxims and rules of construction might be applied. A maximum of equity,
which, in many cases, is found to be conducive as an aid to the accomplishment of an
equitable and rightful result in litigation, is: Equity regards the substance, and not the form.
In the instant case the maxim seems pecularily applicable, as actions for divorce involving
support and maintenance for a wife or child, or both, are equitable in character. It is clear that,
in form, appellant reverted to the rank of lieutenant colonel, and was therefrom promoted to
the rank of colonel; but in substance, the reversion was to the rank of colonel, the same as
though it had been reached directly.
The respondent has referred us to the well known rule and maxim, frequently applied by
the courts, de minimis non curat lex, which, translated, means the law cares not for small
things. 26 C.J.S. page 705. See, also, 18 C.J. 481, note 14, to which is cited a vast collection
of cases applying said maxim. We believe that to give effect, in the instant controversy, to so
unsubstantial a reversion to the rank of lieutenant colonel, by the appellant, as that which was
in effect for only one day, and amounted to so little to him financially, and to allow it to
operate to decrease the payments for the support of respondent to the extent of $50 per
month, or $600 per year, would be to accord too much care or effect to a small thing.
For reasons which seem abundantly sufficient in view of the rules of construction and the
principles and equitable maxims clearly applicable to the situation existing in the instant case,
we believe the order of the district court, Department 2, the Hon. A. J. Maestretti, District
Judge, presiding, was just and free from error.
Appellant's attorney has stated, in effect, that $600 per year, or $6,000 in ten years, is not a
small thing to his client. Neither is such an amount insignificant to the respondent. The
substantial character of the amount involved, as compared to the small financial loss to
appellant by the reversion for only one day, merely accentuates the propriety of applying the
de minimis rule.
It is the decision and order of this court that the said ruling and order of the district court,
made and entered October 4, 1946, be, and the same is hereby, affirmed.
Badt, J., concurs.
Eather, C. J., because of illness, did not participate in the foregoing opinion.
____________
64 Nev. 455, 455 (1947) In Re Devincenzi's Estate
In the Matter of the Estate of LAWRENCE
DEVINCENZI, SR., Deceased.
FIRST NATIONAL BANK OF NEVADA, TRUSTEE, Appellant, v. IRMA DEVINCENZI
MOSCONI, Et Al., Respondent.
No. 3488
August 7, 1947. 183 P.2d 831.
A testamentary trustee was both aggrieved party and real party in interest, entitled to appeal from
order setting aside trustee's sale of trust realty for failure to give notice of sale and petition for order of
sale and confirmation thereof. Comp. Laws, secs. 9882.140, 9882.160, 9882.161.
A testamentary trustee, brought in to and made party to record in, probate proceeding by trust
beneficiaries' motion to set aside trustee's sale of trust realty, was entitled to appeal from order setting
aside sale on grounds stated in motion.
Where testamentary trustee contended that provisions of probate act, requiring notice of sale of
testator's realty, petition for confirmation thereof, etc., were inapplicable after distribution of estate to
trustee and discharge of executors and that order setting aside trustee's sale of realty was not made under
such especially reserved jurisdiction, but was either a final order or order after judgment, especially made
appealable by statute governing appeals in civil actions, appeal therefrom will not be dismissed on
ground that order was not appealable, as determination of appealability thereof, involves one of main
questions on merits of case. Comp.Laws, secs. 9385.60, 9882.140, 9882.160, 9882.161, 9882.244,
9882.293, 9882.319.
In the matter of the estate of Lawrence Devincenzi, Sr., deceased. From an order setting
aside a sale of realty of the estate by the First National Bank of Nevada, as testamentary
trustee, on a motion by Irma Devincenzi Mosconi and others, trust beneficiaries, the trustee
appeals. On motion to dismiss the appeal. Motion denied.
Kearney & Adams, of Reno, for Appellant.
McCluskey & Samuelson, of Reno, for Respondents.
Lunsford & Goldwater, of Reno, Amici Curiae.
Thatcher, Woodburn & Forman, of Reno, Amici Curiae.
OPINION
Motion to dismiss appeal.
More than two years after the final decree of distribution of the estate to the testamentary
trustee and the discharge of the executors, appellant First National Bank of Nevada, acting as
trustee, sold certain real property of the trust estate for $32,000 and executed and delivered its
deed as such trustee to the purchaser. The property had been appraised in the administration
proceedings for $10,000. Respondents, comprising three of the five beneficiaries of the trust,
moved the probate court by pleadings entitled in the probate proceeding for an order setting
aside the sale on the grounds that notice of sale, petition for order of sale, or petition for
confirmation had not been given by the trustee, and for the further reason that the heirs of the
decedent had not been given an opportunity to purchase. It was stipulated that although notice
of the intended sale had been given by the trustee by letter to each of the beneficiaries, and
that one of the beneficiaries had consented thereto, none of the formal notices or petitions,
claimed by respondents to be required under secs. 9882.140, 9882.160 or 9882.161, Nevada
Compiled Laws, had been given or filed, nor had the trustee petitioned for leave of court to
make the sale, or petitioned for confirmation. The district court set aside the sale upon the
grounds stated in the motion.
Appellant has appealed from such order, and respondents have moved to dismiss the
appeal upon the grounds that the order is not appealable either under the probate act {see
N. C. L. sec. 9SS2.293) or the act governing appeals in civil actions {see N. C. L. secs.
that the order is not appealable either under the probate act (see N. C. L. sec. 9882.293) or the
act governing appeals in civil actions (see N. C. L. secs. 9385.60, 9882.319), and that
appellant is neither an aggrieved party nor a real party in interest.
1, 2. We are satisfied that the trustee is both an aggrieved party and a real party in interest.
Such cases as State v. State Bank & Trust Co. (Esmeralda County v. Wildes, Receiver), 36
Nev. 526, 137 P. 400, do not apply. The present situation concerns the estate as a whole and
involves no conflict between contesting beneficiaries, claimants or persons demanding
preferences. See Frolich v. District Court, 62 Nev. 338, 150 P.2d 1013; Northern Nevada
Loan Association v. John H. Cazier & Sons Co., 49 Nev. 115, 239 P. 395, etc. It should also
be noted that the trustee had been brought into the proceeding in the court below on
respondent's motion to set aside the trustee's sale and had thus been made a party to the record
in such proceeding (and the sole adverse party) through the action of respondents. See Pacific
States Savings & Loan Co. v. Mortimer, 70 Cal.App.2d 811, 161 P.2d 684.
In addition to these considerations it is clear that the order appealed from involved a
construction of the proper exercise of the duties of the trustee. The actual right and power of
the trustee to carry out the legal effect of the district court's order declaring the sale void is
called into question, and might indeed subject the trustee to liability. Before the sale the
trustee held the legal title to the real estate. After the sale, and at least until the entry of the
order setting it aside, the trustee had divested itself of title to the real estate and in its place
held the sum of $32,000. The difficulties of the situation with respect to the position and
liability of the trustee are obvious, and it is clear that it was aggrieved by the order and was a
real party in interest. Estate of Welch, 106 Cal. 427, 39 P. 805; In re Hubbell's Estate, 216
Cal. 574, 15 P.2d 503; Id., 121 Cal. App. 38, 8 P.2d 530; In re Forney's Estate, 44 Nev. 279
530; In re Forney's Estate, 44 Nev. 279, 194 P. 331; Kramme v. Mewshaw, 147 Md. 535, 128
A. 468.
3. To determine the motion to dismiss the appeal upon the other ground, namely, that the
order appealed from is not an appealable order, requires a determination, at least in material
part, of the merits of the appeal. It was apparently contended by appellant in the court below,
as well as here, that after distribution by the probate court to the trustee and the discharge of
the executors none of the provisions of the probate act requiring notice of sale, petition for
confirmation, etc., was applicable, and that the only jurisdiction retained by the probate court
was to pass upon the trustee's accounts and questions of distribution to the beneficiaries of the
trust under N.C.L. sec. 9882.244; and that the order complained of was patently not made
under such especially reserved jurisdiction, but was either a final order or judgment or an
order after judgment especially made appealable by N.C.L., sec. 9385.60. It, therefore,
becomes manifest that a determination of the appealability of the order complained of, and
which becomes the main question on the motion to dismiss the appeal, involves one of the
main questions, if not the main question, on the merits of the case, and cannot be made
without a determination on the merits. Both parties, as well as amici curiae, appear to
recognize this situation and, although they have all exercised a due restraint in the matter of a
discussion of the merits of the appeal, all of the briefs find their authors constantly confronted
with hardly avoidable references to the merits.
Under such a situation this court is not inclined to dismiss the appeal. See Succession of
Breaux, 172 La. 1025, 136 So. 39. The motion is hereby denied, with costs.
____________
64 Nev. 459, 459 (1947) State Bar v. Sexton
STATE BAR OF NEVADA, a Public Corporation,
Petitioner, v. JOHN F. SEXTON, Respondent.
No. 3491
August 22, 1947. 184 P.2d 357.
A court having power to admit a person to the practice of law generally in the courts of the state has
the inherent power to revoke such admission or right to practice, on ground of fraud and imposition on
the court perpetrated by the applicant for such license, in obtaining the license.
The provisions of the act creating the state bar of Nevada, relative to disbarment, reproval, or
suspension are penal in their effect and must be strictly construed. Comp.Laws, secs. 540-590, 565.
The principle of expressio unius est exclusio alterius is applicable in the interpretation of powers
conferred on board of governors of the state bar by the state bar act, which does not expressly cover
revocation of an order of admission to the bar, or of license to practice, and therefore neither the state bar
nor its board of governors has any power in relation to proceedings to remove an attorney by revoking the
order of his admission or his license to practice, or by striking his name from the roll of attorneys entitled
to practice law in Nevada. Comp.Laws, secs. 540-590, 565.
The statute providing that an accusation against an attorney whose removal or suspension is sought
shall state the matters charged, and shall be verified by the oath of the person making it, or some other
person, to the effect that the charges therein contained are true, means that both the making and
verification must be by a person as distinguished from an organization, and therefore the state bar of
Nevada has no authority to bring a proceeding to revoke a license to practice law. Comp.Laws, secs.
591-617, 608.
Original proceeding in the Supreme Court of the State Bar of Nevada, a public corporation
against, John F. Sexton, respondent, to revoke the respondent's license to practice law in the
state. Special demurrer of respondent sustained.
Chas. A. Cantwell, Douglas A. Busey, and Leslie B. Gray, all of Reno, for Petitioner.
Gordon W. Rice, of Reno, for Respondent.
OPINION
This is an original proceeding commenced in this court on May 5, 1947, by the state bar of
Nevada, a public corporation, as petitioner, to revoke the license of John F. Sexton, the
respondent, to practice law in the State of Nevada.
It is alleged in paragraph II of the petition that on the 25th day of June, 1946, said
respondent filed with the secretary of the state bar of Nevada an application, in the form of an
affidavit, for admission to the bar of the State of Nevada, and license to practice law in all the
courts of said state, in which he stated, under oath, that he was (referring to the time of
making such affidavit) an actual, bona fide resident of the State of Nevada, that he had
resided in Nevada for a period of five years, at Palisade and at Carson City, that he had
considered Nevada his legal residence since achieving his majority and that he had always
considered Nevada his home.
And in paragraph III of the petition it is alleged, in substance, that on the 9th day of
November, 1946, the respondent filed with the committee of bar examiners of the state bar of
California, an application for admission to the bar on motion without examination, in which
he stated, under oath, that he was born in California, that he had lived continuously in
California until 1938, at which time he was offered a position in Washington, D. C., and that
he was domiciled there while attending school; that he was a bona fide resident of Berkeley,
California, when he entered the armed forces in 1942, and that his permanent address upon
separation from the service on February 2, 1946, was Berkeley, California; that, although he
was (at the time of making the said affidavit) located in Reno, Nevada, with the department
of labor, he maintained his residence at Berkeley, California.
It is further alleged, in paragraph V of the petition, that the said affidavits of respondent
are inconsistent and in direct conflict with each other, and they evidence an intent to
deceive and such a disregard for the sanctity of his oath as to establish respondent's lack
of good moral character and his consequent unfitness to practice law.
that the said affidavits of respondent are inconsistent and in direct conflict with each other,
and they evidence an intent to deceive and such a disregard for the sanctity of his oath as to
establish respondent's lack of good moral character and his consequent unfitness to practice
law.
And in paragraph VI of the petition it is alleged that it appears from the detailed recitals in
respondent's California application that it is not true, as stated in his Nevada application, that
he was, on June 25, 1946, and for a period of five years prior thereto had been, an actual bona
fide resident of the State of Nevada, and that, in particular, it appears therefrom that he was
not a bona fide resident of the State of Nevada for a period of six months prior to the
examination of September, 1946, nor was he entitled to take such examination, nor was he
entitled to admission to the state bar of Nevada.
Pursuant to the prayer of the petition, a citation was duly issued by this court, citing and
requiring the respondent to appear before the justices of this court, at Carson City, Nevada, on
the 24th day of June, 1947, at ten o'clock a.m., then and there to show cause, if any he had,
why his license to practice law in the courts of the State of Nevada should not be revoked,
and his name stricken from the roll of attorneys of this court.
On June 19, 1947, the respondent caused to be filed his motion to strike certain portions of
the petition, upon various legal grounds therein stated, and on the same date caused to be
filed a demurrer to the petition, alleging, in substance, that sufficient facts are not stated in the
petition to support an order revoking respondent's license to practice law, or to support an
order directing that respondent's name be stricken from the roll of attorneys of this court.
As a further ground of demurrer, it is alleged in paragraph IV of the demurrer:
That petitioner does not have the legal capacity or authority to determine, or seek to have
determined in a proceeding such as the above captioned cause, whether Respondent is
qualified to become an officer of the above entitled Court as an attorney and counselor at
law, or for what cause respondent ought to be removed, or his license revoked, or his
name stricken from the Roll of Attorneys of the above entitled Court, for the reason that
said legal capacity and authority to make such a determination rests solely and
exclusively with the above entitled Court, and that said judicial power has, by sound and
just judicial act of this Court, been heretofore by said Court duly and regularly exercised
by said Court's order of the 10th day of December, 1946, in licensing Respondent as an
officer of said Court to practice law in the State of Nevada."
proceeding such as the above captioned cause, whether Respondent is qualified to become an
officer of the above entitled Court as an attorney and counselor at law, or for what cause
respondent ought to be removed, or his license revoked, or his name stricken from the Roll of
Attorneys of the above entitled Court, for the reason that said legal capacity and authority to
make such a determination rests solely and exclusively with the above entitled Court, and that
said judicial power has, by sound and just judicial act of this Court, been heretofore by said
Court duly and regularly exercised by said Court's order of the 10th day of December, 1946,
in licensing Respondent as an officer of said Court to practice law in the State of Nevada.
We will consider first the ground of demurrer set forth in said paragraph IV of the said
demurrer and above stated, which, in substance, is that the petitioner, state bar of Nevada, a
public corporation, has not the legal capacity to institute or to maintain this proceeding.
1. Under the common law, and the law prevailing in all of the states comprising the United
States, it is universally recognized that a court having power to admit a person to the practice
of the law generally in the courts of the state, has the inherent power to revoke such
admission or right to practice, upon the ground of fraud and imposition upon the court
perpetrated by the applicant for such license, in obtaining same. Courts of last resort have
very generally exercised this power, especially in the earlier years of our country's history,
independently of statute. Sometimes, and in certain cases, the presiding judge, or justice,
would appoint a member, or members, of the bar to prepare and present the matter to the
court. In other cases, or in other states, matters of that nature were considered so fraught with
the public interest and welfare that such a proceeding was instituted upon the relation of the
attorney general of the state, or of the prosecuting attorney of the particular county in which
the respondent practiced his profession, and was presented and prosecuted by such officer.
and was presented and prosecuted by such officer. Whichever method was employed, the
public officer or member of the bar presenting the matter was always subject to the direction
of the court, of which he was merely a representative in such proceeding.
Long before there were any integrated bars, or public corporations known as state bars, and
when there were few bar associations, and such as existed were weak and very limited in the
scope of their operations as compared to those of the modern bar associations of the present
day, statutes were enacted relative to, and providing proceedings for, the removal from
practice of attorneys for misconduct, by revocation of license, disbarment or suspension, and
providing otherwise for disciplining such recreant attorneys.
In Nevada such a statute was enacted, and was approved and became effective October 31,
1861, same being sections 591-617, vol. 1, N.C.L. 1929. Such act is entitled, An Act relative
to attorneys and counselors at law.
Section 14 of the act, same being section 604 N.C.L., provides for removal or suspension
of an attorney and counselor by the supreme court, and by no other court in the territory, for
either of the following causes arising after his admission to practice:
FirstUpon his being convicted of felony or misdemeanor, involving moral turpitude, in
either of which cases the record of his conviction shall be conclusive evidence. SecondFor
wilful disobedience or violation of the order of a court requiring him to do or forbear an act
connected with or in the course of his profession. ThirdFor misconduct in office, or for
good cause shown.
The word removal in said act of 1861 has consistently been construed and applied by
this court to include revocation, as well as suspension and disbarment. Indeed, this was the
only act in this state providing for the disciplining of attorneys, or for their removal,
suspension, or disbarment from practice, until the enactment of the state bar act of 192S.
removal, suspension, or disbarment from practice, until the enactment of the state bar act of
1928.
This latter act entitled, An Act to create a public corporation to be known as State Bar of
Nevada,' to provide for its organization, government, membership and powers, to regulate the
practice of law, and to provide penalties for violation of said act, was approved January 31,
1928. Statutes of Nevada 1928-1929, pp. 13-20; N.C.L. vol. 1, secs. 540-590.
Section 26 of said act, same being section 565 N.C.L., defines the powers of the board of
governors as follows:
26. The board of governors shall have power, after a hearing for any of the causes set
forth in the laws of the State of Nevada warranting disbarment, or suspension, to disbar
members or to discipline them by reproval, public or private, or by suspension from practice *
* *.
It is obvious from the language employed in defining the powers of the board (and there is
no other provision of the act vesting the board, or the state bar itself, with other or further
powers as to disciplining attorneys or removing them from practice) that such powers are
limited to disbarment, reproval and suspension. Revocation of the order of admission, or of
the license to practice, is not covered by, nor included within, said provision of section 26
defining such powers of the board of governors, nor within any other provision of the said
act.
2. The provisions relative to disbarment, reproval, or suspension are penal in their effect,
and, in accordance with the long-settled rule very generally applied, must be strictly
construed. Nothing can be read into such provisions by implication. 50 Am.Jur. secs.
407-424, pp. 430-444.
As the great Chief Justice John Marshall said in 1824, in Ex parte Burr, as reported in 9
Wheat. 529, 6 L.Ed. 152:
On one hand, the profession of an attorney is of great importance to an individual, and
the prosperity of his whole life may depend upon its exercise.
great importance to an individual, and the prosperity of his whole life may depend upon its
exercise. The right to exercise it is not to be lightly or capriciously taken from him. On the
other, it is extremely desirable that the respectability of the Bar should be maintained, and
that its harmony with the Bench should be preserved. For these objects, some controlling
power, some discretion, ought to reside in the courts. This discretion ought to be exercised
with great moderation and judgment; but it must be exercised; and no other tribunal can
decide, in a case of removal from the Bar, with the same means of information as the court
itself.
Manifestly, powers granted the state bar and its board of governors by the statute are of
such a nature that the rule of strict construction as to penal statutes or provisions must be
applied, so as not to confer upon the state bar, or its said board, any powers which have not
been clearly and expressly conferred by the statute creating it, or by some subsequent statute.
Section 34 of the state bar act, N.C.L. vol. 1, sec. 573, prescribes in detail the procedure to
be followed in the proceedings provided for by the act, and, in the first sentence of said
section 34, employs, again, language making clear that the cases of which the state bar and its
board of governors shall have jurisdiction, and to which the proceedings enumerated in the
said section shall apply, are cases involving only disbarment, suspension or reproval, and not
cases involving revocation. Such first sentence of section 34 is:
In all cases involving disbarment, suspension or reproval, the hearing shall be held in the
county of the residence of the party charged, or where the offense is committed.
As to the rule of strict construction of penal statutes, we cite In re Chappell, Ohio App., 33
N.E.2d 393, 397, in which it is held that the statute regulating the suspension and removal of
attorneys * * * should be strictly construed. See, also, Worthen v. State, 189 Ala. 395, 66
So.
So. 686, and State v. Quarles, 158 Ala. 54, 48 So. 499, to the same effect.
It seems reasonable to conclude that those responsible for the draftsmanship of the state
bar act, and the legislature in passing it, clearly intended to exclude removal by revocation
from the purview of the act. The act expressly mentions the kinds of cases intended to be
covered, and by thus undertaking to enumerate them specifically, the legislators, by
implication, excluded all others. If it were the legislative intention to include proceedings for
revocation, such word, or its equivalent, would certainly have been included in the first
sentence of said section 34, in conjunction with the words disbarment, suspension or
reproval, and the parties to be proceeded against thus brought within the application of the
detailed procedure provided by said section and the following section 35, which provides
among other things, for a hearing in the county of the residence of the accused, for reasonable
notice, and a reasonable opportunity to defend by the introduction of evidence, the right to be
represented by counsel, and to examine and cross-examine witnesses, and the right to have
witnesses subpenaed, and books and papers produced. Perhaps the reason for excluding
revocation proceedings from the purview of the state bar act was because such provisions are
usually for disciplining or punishing for an act or concealment perpetrated or imposed upon
the supreme court at the time of, and to procure or facilitate, admission to the bar, and it may
have been conceived by the legislature to be more appropriate, because of such direct
imposition upon the court, that all proceedings for revocation, after their commencement, be
conducted before this court.
3. We believe the rule, or principle, of interpretation, expressio unius est exclusio
alterius is clearly applicable in the interpretation of the powers conferred by section 26 of the
state bar act (same being section 565, vol. 1, N.C.L. 1929), and that neither the state bar of
Nevada, a public corporation, nor its board of governors, has any power or authority
whatever in relation to proceedings to remove an attorney by revoking the order of his
admission or his license to practice, or by striking his name from the roll of attorneys
entitled to practice law in Nevada.
Nevada, a public corporation, nor its board of governors, has any power or authority whatever
in relation to proceedings to remove an attorney by revoking the order of his admission or his
license to practice, or by striking his name from the roll of attorneys entitled to practice law in
Nevada. 50 Am.Jur. sec. 429, p. 450.
For this court, by judicial construction, to read into the act a provision for revocation, upon
the theory of implied power, would be so clearly violative of fundamental rules of statutory
construction, and in such obvious disregard of the legislative intent, as to amount to a judicial
usurpation of the powers vested by the constitution exclusively in the legislature.
The instant proceeding for revocation must be deemed to have been brought under and by
virtue of such authority or power, if any, as is conferred upon the state bar of Nevada, a
public corporation, by the act of 1861, supra. We have hereinbefore quoted section 14 of said
last mentioned act, N.C.L. 1929, vol. 1, sec. 604.
It is now necessary to quote, and carefully consider, certain of the procedural sections of
said act, particularly sections 16, 17, and 18, same being N.C.L. 1929, vol. 1, sections
606-608, both inclusive, in order to determine whether such sections (which are the only
sections of the act applicable to the question of capacity to sue) confer any power or authority
upon the state bar of Nevada a public corporation, to initiate, or to act in any capacity in, the
instant proceedings against the respondent, Sexton.
Said sections 606-608, inclusive, are as follows:
606. Proceedings to Remove. 16. The proceedings to remove or suspend an attorney
and counselor, under the first subdivision of section 14th, shall be taken by the court on the
receipt of the certified copy of the record of convictions; the proceedings under the second
and third subdivisions of section 14th may be taken by the court for matters within its
knowledge, or may be taken upon the information of another.
607. Accusation to be in Writing. 17. If the proceedings be upon the information of
another, the accusation shall be in writing, and shall be presented to the court.
608. Accusation, What to State. 18. The accusation shall state the matters charged,
and shall be verified by the oath of the person making it, or some other person, to the effect
that the charges therein contained are true.
Section 608 clearly states that: The accusation * * * shall be verified by the oath of the
person making it, or some other person. (Italics ours.) This sentence unmistakably means
that not only the verification, but also the accusation, must be made by a person, and must be
positive to the effect that the charges therein contained are true.
It must be always borne in mind, in construing this statute, that it was enacted in 1861, in
territorial days, sixty-seven years before there was any public corporation known as the state
bar of Nevada, and long prior to the organization in this state of any bar association organized
according to modern methods. It is conceivable that the members of the legislature of 1861,
under the then existing conditions had little reason to consider seriously so wording the act as
to permit a bar association, as such, to make the accusation, or its officers, as such, for and on
its behalf, to verify same. Such a bar association, if any then existed at all, would have been
so localized in its affairs and operations that its officers would have been unlikely to have
come in contact, personally, with any considerable number of instances of professional
misconduct, enabling them to have the actual knowledge sufficient to justify the verification
of the accusation positively. It is obvious from the language employed that the legislators
intended to require a verification upon actual knowledge, because of the importance of such a
proceeding, same being one to deprive an attorney of the right to practice his profession.
It is equally clear that they had no intention of permitting the accusation by some
organization, which could serve to conceal the identity of the real informer and initiator. By
requiring both the accuser and the verifier to be a person, the accuser is compelled to disclose
his identity and assume the financial responsibility which would ensue in the event his
accusation was without probable cause, and resulted in appreciably damaging the accused.
Furthermore, if the positive verification were untrue, his identity being known, he could be
readily subjected to the pains and penalties of perjury.
The contemporary legislative and judicial history of the period embracing the year 1861
clearly discloses that the said act of that year was similar in its requirements, particularly that
requiring the verification to be positive and by an individual person, to those in the statutes of
many other states. And the construction of such similar provisions by the courts generally was
in harmony with that above indicated. Some of the reasons for such construction were such as
we have already stated, including the application of the rule, or principle, that penal statutes
should be construed strictly.
We will quote very briefly from a few of the decisions of other states, rendered at a time
which makes it appropriate, we believe, to consider them contemporary with our statute of
1861, and, therefore, as revealing the legislative and judicial concept of the procedure then
generally considered sound and desirable in a proceeding for revocation of the license of an
attorney to practice his chosen profession.
In Re McCarthy, 42 Mich. 71, 51 N.W. 963, decided in 1879, it was held that a bar
association is not a recognized body, as such, in proceedings to disbar an attorney, and cannot
control the prosecution; the proceeding is in the interest of public justice, and the Supreme
Court will examine into and act on it as in other cases involving the position of its attorneys.
In 1867, in New York, it was held that the supreme court is bound to cause charges
against an attorney to be prepared whenever satisfied, from what has occurred in its
presence or from other satisfactory proof, that the ends of justice call for such
proceeding."
be prepared whenever satisfied, from what has occurred in its presence or from other
satisfactory proof, that the ends of justice call for such proceeding. In re Percy, 36 N.Y. 651.
In Missouri, in 1879, in the case of In re Bowman, 7 Mo.App. 569, the court of appeals of
that state in substance, held: A proceeding to remove an attorney need not be in the name of
the state, but members of the bar may and should file the necessary information against an
attorney guilty of improper practices.
And in 1895, in Missouri, in the case of State ex rel. Walker v. Harber, 129 Mo. 271, 31
S.W. 889, it was held that: Disbarment proceedings may be instituted by the attorney
general, or by a member of the bar on his own motion, or a court may require of any member,
as a duty, that he prosecute charges against a practicing attorney looking to disbarment.
See, also, State ex rel. Lentz v. Fort, 178 Mo. 518, 77 S.W. 741.
In Kentucky, in 1871, in Walker v. Commonwealth, 8 Bush 86, it was stated by the court:
Now where the party is charged with malpractice without the presence of the court, the
correct mode of proceeding against him is by complaint or information made on the oath of
some individual. (Italics ours.)
In Connecticut, in State v. Peck, 88 Conn. 447, 91 A. 274, the state's attorney was held
authorized to present a complaint against an attorney under section 10 of the rules of court,
notwithstanding acts 1907 c. 120, authorizing a grievance committee in each county.
The foregoing cases are typical of the cases decided in the period which may be deemed
contemporary to our statute of 1861.
Other cases upon the question of who is the proper party to prosecute in such a proceeding,
or to act as accuser and verifier in the petition, or complaint, are: Turner v. Com., 1859, 59
Ky. 619, 2 Metc. 619; Wilson v. Popham, 91 Ky. 327, 15 S.W. 859; In re Shepard, 1S79, 109
Mich.
1879, 109 Mich. 631, 67 N.W. 971; People v. Mead, 29 Colo. 344, 68 P. 241; People v.
Chamberlin, 242 Ill. 260, 89 N.E. 994; Lenihan v. Com., 165 Ky. 93, 176 S.W. 948,
L.R.A.1917B, 1132; State v. Martin, 45 Wash. 76, 87 P. 1054 (under a provision in
Ballinger's Code, sec. 4776, similar to the Nevada act of 1861); State Bar Com. v. Sullivan,
35 Okl. 745, 131 P. 703, L.R.A.1915D, 1218; Wernimont v. State, 101 Ark. 210, 142 S.W.
194, Ann. Cas.1913D, 1156; Worthern v. State (Ala.), supra; In re Evans, 22 Utah 366, 62 P.
913, 53 L.R.A. 952, 83 Am. St.Rep. 794.
In California there have been notable changes from time to time, both legislative and
judicial, in the law applicable to proceedings for revocation of a license to practice law. In the
years contemporary to our Nevada act of 1861, code provisions (Cal.Code Civ.Proc., secs.
289, 290, 291) similar in language and effect to the procedural provisions of said act of 1861
prevailed. There was an important difference, however, as to who was authorized to make the
accusation. The language of the California statute, Code Civ.Proc., sec. 291, prior to the
amendment effective July 29, 1921, was as follows:
The accusation must state the matters charged, and be verified by the oath of some person
* * * that the charges therein contained are true. * * * (Italics ours.)
Whilst section 18 of the said Nevada act of 1861, same being N.C.L. 1929, vol. 1, sec.
608, was in this language:
The accusation shall state the matters charged, and shall be verified by the oath of the
person making it, or some other person, to the effect that the charges therein contained are
true. (Italics ours.)
4. Thus, under the California statute the accusation must be verified by the oath of some
person, but no words expressly required that some person must make it. On the other hand,
the Nevada statute required the verification to be by the person making it, or some other
person, thus clearly implying that only a person could make it, and required that such
person or some other person must verify it.
could make it, and required that such person or some other person must verify it. (Italics
ours.) This meant that both the making and the verification in Nevada, under the act, must be
by a person.
In California, in such a proceeding in the earlier years, it was customary for the same
person to act as informer, accuser and verifier. The matter was usually presented by a
committee of the bar, or a bar association, and one of their number with actual knowledge of
the facts acted in signing and verifying the accusation. It was held, however, in Re Collins,
147 Cal. 8, 81 P. 220, that the person verifying it need not be a member of the committee
presenting the accusation and conducting the prosecution on behalf of the public. Mr. Justice
Lorigan stated in the opinion, however, that such person is to be deemed the accuser,
although the charges are presented and the prosecution conducted on behalf of the bar
association or of the public. (Italics ours.) Still the law remained, under such decision, that
the verifier must be an individual person, and such person was the accuser. But there was
nothing in the California statute which expressly required the verifier to be the accuser, and,
apparently sensing that fact and that the statute required merely that the verifier be some
person, there were a few cases prior to the amendment, in 1921, of section 291 of the Cal.
Code of Civ.Proc. in which the bar association as such appeared as the accuser, among
which was San Francisco Bar Ass'n v. Sullivan, 185 Cal. 621, 198 P. 7, decided May 5, 1921
(which was shortly before said amendment became effective, July 29, 1921), but in which the
question of the right of the association to so appear does not seem to have been raised. The
California Legislature, by an act of May 16, 1921, effective, as aforesaid, July 29, 1921,
amended said section 291 of the code of civil procedure, to permit the verification of such an
accusation to be on information and belief, when presented by an organized bar association.
Section 291, as amended, was as follows:
291. The accusation must state the matters charged, and be verified by the oath of some
person, to the effect that the charges therein contained are true, which verification may
be made upon information and belief when the accusation is presented by an organized
bar association."
and be verified by the oath of some person, to the effect that the charges therein contained are
true, which verification may be made upon information and belief when the accusation is
presented by an organized bar association. (Italics ours.)
This amendment expressly recognized the right of presentation by an organized bar
association.
Whilst the amendment did not, in its express terms, authorize a bar association, or its
officers on its behalf, to verify the accusation, it removed the safeguards theretofore assured
the accused attorney by the requirement (which had been effective until such amendment) of
positive verification, by permitting the verification to be on information and belief. The
objective of this change in the law doubtless was to enable bar associations to function as to
all phases of such a prosecution. Inasmuch as verification upon information and belief was
authorized, thus relieving much of the responsibility of positive verification, there remained
little reason why the courts should thereafter exclude verifications by officers of the bar
association on its behalf. Doubtless following that line of reasoning, a further step, by judicial
construction, was taken in the evolution of the California law upon the subject, by the opinion
in the case of In re Morganstern, 1923, 61 Cal.App. 702, 215 P. 721. In that case it was held,
in substance, that such an accusation, filed by an incorporated bar association, was
sufficiently signed and verified when signed by the president and assistant secretary of the
association, and verified by the president in his individual capacity. See, also, 9 Cal. Jur. 10
Yr.Supp. 1926-1936, p. 451.
In 1927, the act creating a public corporation known as the state bar of California was
passed, St. 1927, p. 38, and, following In re Morganstern, supra, the California courts, in the
later cases, have permitted the accusation in such proceedings to be made, presented and
verified by an organized bar association, and, since its incorporation, by the state bar of
California. In California there has thus been an almost complete transformation of the law
upon the subject, but in Nevada no such transformation has occurred.
upon the subject, but in Nevada no such transformation has occurred. In this state there has
been no such amendment as the California amendment of 1921, nor any amendment, of the
act of 1861, and, as then, the accusation must still be made by a person, and shall be verified
by the oath of the person making it, or some other person, to the effect that the charges
therein contained are true. (Italics ours.) N.C.L. 1929, vol. 1, sec. 608. The language
employed clearly precludes, by its meaning and by the proper application of well settled and
sound rules of statutory construction, any construction by this court that an accusation under
the act may be made or verified by a bar association or by the Nevada state bar, as such, or by
its officers acting on its behalf and not in an individual capacity. Unquestionably, the officers
of the state bar of Nevada, in the instant case for revocation of respondent's license, have
proceeded under the act of 1861. They have recognized that they are so doing, by merely
making and verifying the accusation, and causing the same to be filed, instead of resorting to
the proceedings detailed in the State bar act for cases of disbarment, suspension, and reproval.
Indeed, as has been above set forth, they could not have proceeded under the State bar act, as
a proceeding for revocation is not within the purview of the power or authority conferred
upon the state bar and its board of governors by such act. In the cases which in past years
have been brought before this court under said act of 1861, such cases have, with few
exceptions, we believe, been entitled In re (the respondent), as: In re Schnitzer, 33 Nev.
581, 112 P. 848, 33 L.R.A.,N.S., 941; In re French, 47 Nev. 469, 225 P. 396; In re Bailey 40
Nev. 139, 161 P. 512; and In re Clarke, 46 Nev. 304, 212 P. 1037.
In most, if not all, of these cases, either certain members of the bar, or of a committee of a
duly organized bar association, presented the accusations to the court, but in making and
verifying the same, an individual would act in his own name.
would act in his own name. This conforms to the usual conception in other states of the
proper procedure under similar statutes. Exceptional cases in which a bar association, or the
state bar, assumed the roll of accuser, are: Reno Bar Ass'n v. Scoular, 34 Nev. 313, 123 P. 13;
Washoe County Bar Ass'n v. Scoular, 44 Nev. 208, 190 P. 899; and State Bar v. Riccardi, 53
Nev. 128, 294 P. 537, 296 P. 1013.
In Reno Bar Ass'n v. Scoular, supra, the question of the right or authority of the Reno bar
association to proceed as they did was not raised.
In Washoe County Bar Ass'n v. Scoular, supra, 44 Nev. on pages 208, 209, 190 P. on page
899, the court, by Mr. Justice Sanders stated: The Washoe County Bar Association, through
two if its duly delegated members, presented to this court two accusations. The learned
Justice further stated in said opinion, 44 Nev. on page 209, 190 P. on page 899, that, at the
time appointed in the order, the accused, without objection to the form or sufficiency of the
accusations, answered by denying the truth of the same. So, in that case the question of the
power or authority of the association to appear as accuser, and act as it otherwise did in the
matter, was not raised.
In State Bar v. Riccardi, supra, 53 Nev. on page 129, 294 P. on page 537, upon which the
attorneys representing the state bar of Nevada have earnestly relied in petitioner's reply brief
in the instant proceeding, Mr. District Judge Ballard, in his opinion, in reviewing the question
raised by the demurrer in that case, that the petitioner had not the capacity to sue, stated:
The demurrer presents the objection that the petitioner has not capacity to sue. The State
Bar Act expressly provides that the corporation created by it may sue and be sued.' Stats.
1928 (Sp. Sess.) c. 13, p. 13, 2. As the respondent has not chosen to appear in person or by
attorney and has filed no brief in support of either his motion or demurrer, we are not
disposed to look beyond the statute as to this point.
look beyond the statute as to this point. We therefore hold that the petitioner has capacity to
sue.
It is apparent that the court considered the respondent virtually in default, and declined to
give serious consideration to the demurrer. Judge Ballard, in the foregoing excerpt of the
opinion, 53 Nev. on said page 129, 294 P. on page 537, mentioned that the State Bar Act
expressly provides that the corporation created by it may sue and be sued,' and further stated
that, we are not disposed to look beyond the statute as to this point (referring to the state bar
act of 1928), but the learned judge apparently did not even look into the provisions of that
statute sufficiently to discern that it was entirely inapplicable to the case of revocation of
license then before the court, and he did not even mention the act of 1861, which was the only
statute applicable to the case before him. (Italics ours.) Had he done so, he should, and
undoubtedly would, have clearly seen that the state bar of Nevada, a public corporation, not
being such a person as is contemplated by the statute, could neither make the accusation,
proceed as the accusing party, nor, by its officers, verify the same. The capacity to sue and
be sued must not be confused with ability to sue. Ability to sue must arise from a legal
interest in the matter in litigation, and in the case of a special proceeding, penal in its nature,
the corporation has no right to assume the roll of prosecutor, unless its right and authority so
to do is clearly conferred by the statute upon which such proceeding is predicated. For
example, it certainly could not be reasonably contended that a bar association, or any
corporation, because it is given capacity to sue and be sued, could usurp the functions of
the district attorney or the attorney general, and institute and carry on a prosecution for a
felony. There is, obviously, more required to authorize such a corporation so to do than the
mere capacity to sue. It is also clearly obvious that a corporation could not properly sue in
regard to property in which it had no legal interest, merely because of general capacity to sue.
The Riccardi case cannot be regarded as authority for the petitioner in the instant case,
nor of any real value as a precedent upon the question now before us, and we do not
believe that it was so intended by the members of the court at that time.
Riccardi case cannot be regarded as authority for the petitioner in the instant case, nor of any
real value as a precedent upon the question now before us, and we do not believe that it was
so intended by the members of the court at that time.
We believe the special demurrer in the instant case is well taken, upon the ground that the
state bar of Nevada has not the capacity to sue, that is to say, that under the provisions of the
said act of 1861, such corporation can neither make the accusation, nor can its officers, as
such and for and on its behalf, verify the same.
It is unnecessary, in view of this ruling, to pass upon respondent's motion to strike.
The special demurrer of the respondent is sustained.
Badt, J., (concurring):
I concur upon the sole ground that the petitioner must find its authority to proceed as the
state bar of Nevada, a public corporation, under the state bar act of 1928, to which act it must
look for its very existence as well as for its power and authority. This course, however, for
reasons which I shall not attempt to assume or analyze, it deliberately rejected, as well as
rejecting the procedure therein outlined for hearings before the local administrative board and
the board of governors. Assuming that the charge and verification are otherwise sufficient to
satisfy the provisions of the act of 1861, we are still confronted with the fact that petitioner
has not been authorized to initiate a proceeding such as the one before us. If a remedy is
needed, which may or may not be so, it is for the legislature to provide.
____________
64 Nev. 478, 478 (1947) In Re Parks
In the Matter of SEWARD J. PARKS,
Attorney at Law.
No. 3456
September 11, 1947. 184 P.2d 355.
Evidence established that attorney violated rule prohibiting member of state bar to aid or abet an
unlicensed person to practice law or to receive compensation therefrom by signing and filing a complaint
as plaintiff's attorney drawn by one not licensed to practice law in Nevada without attorney ever having
seen or consulted with or advised plaintiff. Comp.Laws, sec. 573.
An attorney who violated a rule of the state bar by aiding and abetting an unlicensed person to
practice law was suspended from practice for 30 days in view of mitigating circumstances. Comp.Laws,
sec. 573.
Petition by Seward J. Parks, attorney at law, to review recommendation of Board of
Governors of the State Bar of suspension for three months, that petitioner be prohibited from
the practice of law either directly or indirectly during the period of his suspension, and that
petitioner be suspended until the further order of court. Petitioner suspended from
practicing law for 30 days.
Thomas J.D. Salter and Seward J. Parks in pro per., both of Las Vegas, for Petitioner.
Harvey Dickerson, of Las Vegas, and John R. Ross, of Carson City, for Respondent State
Bar of Nevada.
OPINION
Pursuant to section 34 of the state bar act of January 31, 1928, section 573 N.C.L., the
local administrative committee of the state bar for the counties of Clark and Lincoln, on April
12, 1945, initiated disciplinary proceedings against Seward J. Parks, a member of the state bar
of Nevada, by filing and serving upon him a notice to show cause why he should not be
disbarred, suspended or reproved "for aiding and betting an unlicensed person to practice
law in violation of Rule III of the Rules of Professional Conduct of the State Bar of
Nevada."
64 Nev. 478, 479 (1947) In Re Parks
of Nevada, by filing and serving upon him a notice to show cause why he should not be
disbarred, suspended or reproved for aiding and betting an unlicensed person to practice law
in violation of Rule III of the Rules of Professional Conduct of the State Bar of Nevada. An
answer was filed and a hearing had, pursuant to which the local administrative committee
made and filed specific findings of fact supporting the charge as made and unanimously
recommended suspension for a period of six months. A trial de novo was had before the
board of governors of the state bar, which made similar findings and recommended his
suspension for a period of three months, 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 the court. Within sixty days thereafter, Parks filed in this court his petition for
review in which he maintained that the findings were unwarranted by the evidence and that
the conclusions of law were not warranted by the findings and that certain errors had occurred
in the hearings, and prayed that this proceeding be dismissed in its entirety and, if this
cannot be done, that he be given a reprimand or (be) suspended for a period not to exceed
thirty days * * *
It appears that one A. J. Schur maintained an office in Las Vegas and held himself out to
be a business and tax consultant. He had been licensed to practice law in several states, but
was not licensed to practice in Nevada. The petitioner, who rented office space from Schur,
knew these facts and knew that Schur held himself out to different people as an attorney
authorized to practice in Nevada, and had heard that Schur possessed a rather unenviable
reputation in Las Vegas. Schur drew a complaint on behalf of a real estate dealer in Las
Vegas seeking recovery of an unpaid commission, obtained the verification and presented it
to the petitioner, who thereupon signed and filed it as the plaintiff's attorney, but without ever
having seen or consulted with or advised the plaintiff.
64 Nev. 478, 480 (1947) In Re Parks
or advised the plaintiff. Any such consultations and advice with the plaintiff were had by
Schur.
The foregoing in brief is the situation, although the testimony, both before the local
administrative board and before the board of governors, comprises many pages. At several
points in the proceedings the petitioner and his attorney made statements both to the local
administrative board and to the board of governors amounting to a plea of guilty of violating
the provisions of rule III of the rules of professional conduct of the state bar, which rule reads
as follows: Rule III. A member of the State Bar shall not * * * directly or indirectly aid or
abet an unlicensed person to practice law or to receive compensation therefrom.
1. No purpose will be served in reviewing the evidence. We are satisfied that such
evidence supports the findings of both the committee and the board and our own conclusion,
upon an independent review of the record, that petitioner violated the above rule.
Petitioner was sixty-seven years old at the time of the hearing before the committee. He
must now be sixty-nine. He is in ill health and partly disabled. He has been admitted to
practice in this state since 1923. No other disciplinary action has heretofore been taken
against him. His attorney maintains that he is the victim of the attempt of the local bar to
strike at the improper practices of Schur. The testimony shows that a number of reputable
attorneys in Las Vegas had from time to time employed Schur's services, although no
impropriety in such employment was developed by the evidence. It was indicated, on the
other hand, that the particular case presented by the local administrative committee was not
the only one in which Parks, by lending his name to pleadings, had aided and abetted Schur in
the latter's unlawful practice of the law in this state.
2. We mention these facts without further discussion or elaboration. Although both parties
filed briefs, neither the petitioner nor his attorney made an appearance at the time set for the
oral argument before this court. Mr. Ross, arguing the case on behalf of the state bar,
presented the matter fairly in the absence of the petitioner and his attorney.
64 Nev. 478, 481 (1947) In Re Parks
court. Mr. Ross, arguing the case on behalf of the state bar, presented the matter fairly in the
absence of the petitioner and his attorney. It is the first case presented to this court involving
disciplinary action on this particular charge. Although the offense is grave, we are inclined to
leniency rather than severity under the circumstances. To put into effect an order of
suspension operative until the further order of the court and requiring the petitioner in due
course to file a petition for reinstatement and to support the same with evidence of his good
conduct in the interim, would, in view of his age, his ill health, and his distance from this
court, impose an unnecessary hardship.
It is ordered that petitioner be suspended from practicing law in all of the courts of this
state for a period of thirty days from the date of the entry of this order.
____________
RUTH E. MURPHY, Appellant, v. LAWRENCE E.
MURPHY, Respondent.
No. 3505
September 22, 1947. 184 P.2d 1004.
1. Divorce.
The supreme court will make such temporary orders as may be necessary to protect the welfare of a
child pending an appeal from a judgment awarding custody of the child in a divorce action. Comp.Laws,
sec. 9385.75.
2. Divorce.
Where divorce decree awarding wife custody of minor children was modified so as to award husband
custody, wife's appeal stayed the proceedings so that wife was entitled to custody of one of the children
who remained in wife's custody, and therefore husband's motion in supreme court for an order compelling
wife to deliver custody of child to husband, was denied, in absence of showing welfare of child would be
prejudiced by remaining in wife's custody. Comp.Laws, sec. 9385.75.
Appeal from Second Judicial District Court, Washoe County; A.J. Maestretti, Judge.
Suit for divorce by Ruth E. Murphy against Lawrence E. Murphy, wherein the plaintiff
was awarded a divorce and the custody of two minor children of the parties.
and the custody of two minor children of the parties. From a judgment and order modifying
the divorce decree by awarding custody of the children to the defendant husband, the plaintiff
appeals, and the defendant moves in the Supreme Court for an order requiring plaintiff to
deliver the custody of one of the minor children to defendant in accordance with the trial
court's judgment, pending determination of plaintiff's appeal. Defendant's motion denied.
John S. Sinai, of Reno, for Appellant.
J. T. Rutherford and R. K. Wittenberg, both of Reno, for Respondent.
OPINION
Appellant, plaintiff in the lower court, has appealed to this court from a judgment and
order entered in the Second judicial district court of the state of Nevada, in and for the county
of Washoe, on the 10th day of July, 1947, as amended on the 18th day of July, 1947,
modifying the judgment and decree of divorce heretofore entered in favor of plaintiff on the
9th day of September, 1946, in respect to the custody of the two minor children of the parties,
and also from the order denying plaintiff's motion for a new trial made and entered in the
minutes of said trial court on the 4th day of August, 1947. The parties will be referred to as
they appeared in the court below.
The custody of said children was awarded to the plaintiff when the decree of divorce was
granted, and subsequently thereto, and on the hearing of defendant's motion to modify the
said judgment and decree, the children were awarded to the defendant.
One minor child of the parties, aged 8 years, is living with the plaintiff at her home in
Reno, Nevada, and the other minor child aged about 12 years is living with her father in
Cincinnatti, Ohio.
father in Cincinnatti, Ohio. Under the modification the child living with the plaintiff in Reno,
Nevada, was to be delivered by plaintiff to the defendant in Cincinnatti, Ohio, on or before
the 20th day of August, 1947, and at the time plaintiff perfected her appeal to this court, the
said child was and now is in her custody at her home in Reno, Nevada.
On the 29th day of August, 1947, defendant filed a motion in this court wherein he
requests this court to make and enter an order directing and requiring plaintiff to deliver the
custody of said minor child to defendant in accordance with the judgment and order of the
trial court and pending the determination of plaintiff's appeal.
There appear to be two questions involved:
(1) Should the motion presented by defendant be entertained when the effect thereof, if
granted, would be to allow the motion to usurp the functions of an orderly appeal and
determine the same issues which are to be determined on the merits on plaintiff's appeal from
the judgment and order modifying the judgment and decree of the trial court in respect to
custody?
(2) Should this court entertain the motion by defendant when no evidence has been
submitted in support of the motion to indicate that such a state of facts exists that the granting
of the motion is necessary for the protection of the child now in custody of plaintiff, pending
the appeal?
Section 9385.75 N.C.L. vol. 2, Supp. 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.
The sections 17, 19, 20, 21 and 24 of Laws 1937, c. 32, in no way relate to such a
judgment and order modifying the judgment and decree of September 9, 1946.
in no way relate to such a judgment and order modifying the judgment and decree of
September 9, 1946. It is obvious that the proceedings in the trial court, in respect to the
custody of the minor child referred to in defendant's motion now before this court, are stayed
pending the determination of plaintiff's appeal.
As stated in Browning v. Browning, 208 Cal. 518, 282 P. 503, at page 506: The
respondent has presented another so-called alternative motion in the form of a direct
application to this court for an order directing and requiring the plaintiff to turn over and
deliver the custody of said minor child to the respondent during the times and periods
specified in the judgment and order of the trial court and pending the determination of this
appeal. It is perfectly apparent, however, that this court could make no such order in advance
of the determination of this portion of the plaintiff's appeal upon the merits thereof, since the
very relief which the respondent is seeking to have the court apply is the relief to which the
respondent shall be entitled only upon the affirmance of the judgment as to that portion
thereof affecting the custody of the minor child, the correctness of which is involved in the
hearing and determination upon its merits of this branch of the appellant's said appeal. It
follows that the respondent's motion for this form of alternative relief should also be and the
same is denied.
In the case of Foster v. Foster, 5 Cal.2d 669, 55 P.2d 1175, 1176, plaintiff, at the date of
the judgment decree in the trial court, was legally entitled to the custody of the minor child
under a previous order granting her temporary custody. The court held that: * * * a perfected
appeal in an action for the custody of a child automatically constitutes a stay of proceedings
and precludes a trial court from interfering with custody as it existed at the time of appeal.
Section 949, Code Civ. Proc.; Ex Parte Rose Queirolo, 119 Cal. 635, 51 P. 956; Vosburg v.
Vosburg, 137 Cal. 493, 70 P. 473; Browning v. Browning, 208 Cal. 518, 527, 282 P. 503.
With this argument we agree.
argument we agree. The authorities so hold. It necessarily follows, we think, from the fact
that at the date of the entry of the judgment, the petitioner was legally entitled to the custody
of said minor under the order granting her temporary custody, and the fact that the stay of
proceedings pending appeal has the legitimate effect of keeping the subject thereof in the
condition in which it was when the stay of proceedings was granted, that petitioner is entitled
to retain the custody of the said minor until the final determination of the appeal from the
judgment. Ex Parte Dupes, 31 Cal. App. 698, 161 P. 276. Ritter v. Superior Court, 99
Cal.App., 121, 278 P. 240; 27 C.J.S., Divorce, sec. 324, p. 1258.
In O'Donnell v. Sixth Judicial District Court, 40 Nev. 428, 165 P. 759, 760, an appeal was
taken from an order appointing a guardian. The appellant filed an undertaking on appeal in
the sum of $300. This court held the appeal stayed further proceedings, and 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. Rev. Law, sec. 5355.
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 the respondents by the
Supreme Court of California in construing a similar statute. Coburn v. Hynes, 161 Cal. 685,
120 P. 26; In re Woods, 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.
Although not a custody case, the principle is analogous.
The defendant, in presenting his motion to this court, relied solely upon the records, files,
and proceedings of the trial court. This record is before us in the bill of exceptions filed by
the plaintiff. No new facts are presented to this court in support of the motion in addition to
the facts already passed upon by the trial court. No evidence is submitted to this court in
support of the motion to indicate that an emergency or condition exists inimicable to the
welfare of the child, or that his well being will be jeopardized by allowing him to remain with
plaintiff.
1. We do not wish to be understood that under no circumstances would the court grant or
order the relief asked for in the motion, but in this case no reason, extraordinary or otherwise,
has been presented why the custody of the child should be taken from the mother and
awarded to the father, pending final determination of the case on appeal. This court will, in a
proper case, make such temporary orders as may be necessary to protect the welfare of the
child pending an appeal. Gotthelf v. Fickett, 37 Ariz. 322, 413, 294 P. 837; Ex parte
Browning, 108 Cal.App. 503, 291 P. 650; Ex parte McKean, 82 Cal. App. 580, 256 P. 226;
State ex rel. Wilkerson v. Superior Court, 108 Wash. 15, 183 P. 63.
2. In view of the fact that plaintiff's appeal has stayed proceedings so that the plaintiff is
entitled to the custody of the minor child, pending the appeal from the judgment and order
and the final determination thereof on the merits, and because no showing has been made that
the welfare of the child would be prejudiced by the fact that he will remain in the custody of
the plaintiff, pending the appeal, defendant's motion should be, and the same is, denied.
____________
64 Nev. 487, 487 (1947) Shelton v. District Court
RALPH V. SHELTON, Et. Al., Relators v. THE SECOND JUDICIAL DISTRICT COURT
OF THE STATE OF NEVADA, in and for the County of Washoe, Et Al.
No. 3503
September 25, 1947. 185 P.2d 320.
1. Corporations.
Since under statute two of directors of corporation had a preferential right to be appointed receiver,
notice of application for appointment and an opportunity to be heard on their qualifications was essential
to validity of order appointing receiver. Comp.Laws, secs. 1648.01, 1786.
2. Corporations.
Where allegations that two of directors had received no notice of purported meeting of board of
directors authorizing attorney to act for corporation were not denied, failure to give such directors notice
of application for appointment of a receiver for corporation could not be excused on ground that attorney
had filed answer admitting charges on which application was based. Comp.Laws, secs. 1648.01, 1786.
3. Corporations.
A special meeting of directors in absence of some of directors not notified is illegal, and action taken
is invalid unless ratified.
4. Prohibition.
Any authority of attorney to appear and confess judgment may be questioned in an original
proceeding for writ of prohibition in connection with judgment or order entered pursuant to such
appearance.
5. Corporation.
The district court was without jurisdiction to appoint receiver for corporation in absence of notice to
two of directors and to corporation. Comp.Laws, sec. 1648.01.
6. Receivers.
The statutory requirements for appointment of receiver must be met or appointment is void and in
excess of jurisdiction.
7. Injunction.
An injunction issued in connection with appointment of receiver for corporation enjoining officers
from interfering with corporate property was void in absence of bond of indemnity. Comp.Laws, secs.
1648.01, 8696.
8. Prohibition.
In prohibition proceeding attacking court order appointing corporate receiver and granting injunction,
three directors who had procured the order were proper parties.
9. Prohibition.
In prohibition proceeding to restrain proceedings in action in which corporate receiver was appointed,
the writ properly ran against receiver as incident to prohibition laid upon the court.
10. Prohibition.
Prohibition was an available remedy where corporate receiver was appointed without giving requisite
notice or an opportunity for hearing, and injunction was issued without requiring a bond of indemnity.
11. Prohibition.
Prohibition is an extraordinary remedy and will not be granted to correct error or irregularities in
exercise of authority inherent in a court where remedy by appeal is adequate, and it will issue only in
cases of great necessity.
12. Prohibition.
Where shareholders holding 10 percent of stock obtained appointment of one of their number as
receiver without notice to directors or corporation and without bond, and remedy by appeal, if available,
would have resulted in some delay incident to filing pleadings, during which time receiver would have
been in possession without a bond, directors were entitled to writ of prohibition. Comp.Laws, sec.
1648.01.
Original proceeding in prohibition by Ralph V. Shelton and others against the Second
Judicial District Court of the State of Nevada, in and for the county of Washoe, and others.
Writ of prohibition issued.
H. R. Cooke and Royal A. Stewart, both of Reno, for Relators.
Clarence M. Hawkins, of Auburn, Calif., and George E. McKernon, of Reno, for
Respondents.
OPINION
This is an original proceeding in prohibition. The petitioner, Ralph V. Shelton, is the
president and a director of the Neon Maintenance Corporation, a Nevada corporation; the
petitioner, Robert C. Graham, is the vice president and a director of the Neon Maintenance
Corporation.
Corporation. The respondents, William G. Lubeck, R. H. Pecknold and Charles W. Wagner,
are stockholders and directors of the Neon Maintenance Corporation. Petitioners own 1,989
shares of the corporation's outstanding 2,500 shares; Lubeck, Pecknold, and Wagner own an
aggregate of 511 shares. Respondent H. R. Pecknold was appointed receiver of the
corporation by the respondent Hon. A. J. Maestretti, district judge of the Second judicial
district court by order dated August 16, 1947, upon the furnishing of a fidelity bond, the
amount of which was left blank in the order.
The following are all the facts shown upon the hearing of this cause which we deem
necessary for a consideration of the legal questions presented.
On Saturday, August 16, 1947, at 12:36 p.m., a complaint was filed in the Second judicial
district court by the respondents, William G. Lubeck, H. R. Pecknold, and Charles W.
Wagner, as plaintiffs, against the relators, together with S. S. Rossman, and R. V. Geaney, as
defendants. The complaint alleged inter alia that the assets of the corporation had been wasted
and misappropriated and were in danger of future waste and misappropriation by the
individual defendants in the court below; that the defendant Shelton held stock control of the
corporation; that the corporation had conducted a successful business and had earned large
sums of money; that at all times since the organization of the corporation Shelton, Graham,
and the remaining personal defendants in the court below had been in active control of the
finances, books, records, and seal of the corporation; that dissention and discord existed
among the stockholders of the corporation and within the board of directors by reason of the
alleged misconduct of the individual defendants; that properly managed the corporation had
been and would be a successful business corporation and that the receiver should be
permitted to control the business. The complaint did not allege that the corporation was
insolvent or had suspended business or that business was being conducted at a great loss.
The prayer of the complaint was for an injunction to prohibit the control and operation of the
corporation by the relators and other defendants below; to require them to deliver to the
receiver all the funds, goods, wares, merchandise, and property of every kind and character
belonging to the corporation; for the appointment of a receiver and for an accounting between
the corporation and the relators.
An unverified answer signed by John Alfred Beyer, as attorney for the corporation
admitting all of the allegations of the complaint on behalf of all the defendants in the court
below, was filed concurrently with the filing of the complaint, and at 12:46 p.m. On August
16, 1947, the order of the Hon. A. J. Maestretti was filed in the lower court.
This order purports to appoint R. H. Pecknold, one of the respondents, receiver of the
property, assets, and records of the corporation and to authorize the receiver to conduct and
carry on the business of the corporation. The order further enjoins and restrains the president,
officers, and agents of the corporation from interfering with the property and assets of the
corporation, and directs them to turn over to the receiver all books of accounts, property and
assets of the corporation. The order further provided that before entering upon the discharge
of his duties, the receiver should execute and file with the clerk of Washoe County a bond to
the people of the State of Nevada in the sum of _______ dollars with sureties to be approved
by the court. The amount of the bond was subsequently fixed at $5,000.
At the time of the issuance of the order none of the relators had been served with process
or notice of any kind. On Monday, the 18th of August, 1947, after securing an order from the
lower court shortening the time within which the motion might be heard, the relators and
other defendants below moved the court for an order vacating and setting aside the previous
order appointing the receiver and vacating and setting aside the injunction upon the grounds
that the order was made without notice; that it appeared to be permanent instead of
temporary; that the order was made without first requiring a bond of indemnity from the
respondents, and that the order was made without allowing the relators and other
defendants below an opportunity to appear and defend, and that the answer was filed
without authority.
notice; that it appeared to be permanent instead of temporary; that the order was made
without first requiring a bond of indemnity from the respondents, and that the order was made
without allowing the relators and other defendants below an opportunity to appear and
defend, and that the answer was filed without authority.
After argument the Hon. A. J. Maestretti, district judge, denied the motion and fixed the
amount of the receiver's bond at $5,000. On the same day, August 18, 1947, the relators
applied to this court for a writ of prohibition, and before the receiver undertook his duties, the
alternative writ was issued.
Relators contend that the issuance of the injunction and restraining order was without
notice or hearing and without requiring a bond of indemnity, and that the appointment of a
receiver was without notice or hearing; that the order exceeded the jurisdiction of the lower
court, and that prohibition is the only adequate remedy.
Respondents admit a lack of notice and opportunity for hearing so far as the individual
relators are concerned, but contend that notice to the corporation only was required; that the
corporation voluntarily appeared and confessed the allegations of the complaint and that the
lower court having jurisdiction of the subject matter and of the corporation, had jurisdiction
to enter the order referred to herein, and that prohibition being an extraordinary remedy is not
available to the relators under all the facts and circumstances of this case.
The subject of stockholders' actions against a corporation for receivership has been the
subject of statutory enactment by the legislature. N.C.L. 1929, sec. 1645, provides for such
appointment, Whenever any corporation shall become insolvent or shall suspend its ordinary
business for want of funds to carry on the same, or if its business has been and is being
conducted at a great loss and greatly prejudicial to the interest of its creditors or stockholders,
* * *. N.C.L. 1931-1941 Supp. sec. 1648.01 provides for the appointment of a receiver and
injunction to restrain the corporation from exercising any of its powers or doing any
business whatsoever, except by and through the receiver, whenever, among other things,
"Its * * * directors have been guilty of fraud or collusion or gross mismanagement in the
conduct or control of its affairs, or misfeasance, malfeasance, * * *."
injunction to restrain the corporation from exercising any of its powers or doing any business
whatsoever, except by and through the receiver, whenever, among other things, Its * * *
directors have been guilty of fraud or collusion or gross mismanagement in the conduct or
control of its affairs, or misfeasance, malfeasance, * * *.
The complaint in the lower court lacks allegations essential to place the action within the
provisions of sec. 1648.01, N.C.L. 1929, 1931-1941 Supp. The latter statute enacted during
the 1941 session of the legislature contains the clause, such court may, if good cause exist
therefor, appoint one or more receivers for such purpose, but in all cases directors or trustees
who have been guilty of no negligence nor active breach of duty shall have the right to be
preferred in making such appointment. * * * (Italics supplied.)
No similar provision is contained in N.C.L. 1929, secs. 1645 and 1646, under which this
court decided International Life Underwriters, Inc. v. Second Judicial District Court, 61 Nev.
42, 113 P.2d 616, 115 P.2d 932. This clause is the same as that contained in the general
corporation law. Statutes of 1903, p. 155 c. 88, sec. 1786, N.C.L. 1929, which this court
considered in Golden v. Averill, 31 Nev. 250, 101 P. 1021, 1026. Construing the
requirements of this provision, this court said: We think, however, that the directors are
necessary parties. * * * It would seem to be the purpose of the statute to have the affairs of
the corporation wound up by the same persons who had constituted its board of directors, and
who were familiar with its affairs, and who were intrusted therewith by the stockholders,
provided they were guilty of no negligence or breach of duty. The court certainly would have
no authority to find they were so guilty, without having jurisdiction of their persons.
1. The relators Shelton and Graham as directors of the corporation had a preferential right
to be appointed receiver, so that notice of the application and an opportunity to be heard upon
their qualifications was essential to the validity of the order appointing a receiver.
to the validity of the order appointing a receiver. Golden v. Averill, supra.
2. On the record before us it is conceded that the answer filed by the attorney, John Alfred
Beyer, was inadvertently filed without any authority from the individual relators; grave
doubts also exist as to his authority to file an answer confessing judgment on behalf of the
corporation. The return disclosed that the authority of Beyer to act for the corporation is
predicated upon authority granted at an alleged special meeting of the board of directors held
on August 6, 1947. Conceding that the allegations of respondents are true; that the board
consisted of five members; that, as alleged in respondents' complaint in the lower court,
relators Shelton and Graham were directors and as shown by exhibit 1, attached to the
separate return of respondents Lubeck and Pecknold and Wagner, they were the remaining
directors; the respondents still fail to deny the allegations of paragraph VIII of relators'
verified complaint for a writ of prohibition, that the relators, Shelton and Graham, received
no notice of any purported meeting of the Board of Directors subsequent to May 14, 1947.
3. A special meeting of directors in the absence of some directors not notified is illegal,
and action invalid unless ratified. Defanti v. Allen Clark Co., 45 Nev. 120, 198 P. 549; 19
C.J.S., Corporations, sec. 747, pages 88, 89.
4. That the authority of an attorney to appear and confess judgment may be questioned in
an original proceeding for a writ of prohibition in connection with the judgment or order
entered pursuant to such appearance, has heretofore been established by this court in
concurring opinion of Justice Talbot in Golden v. Averill, supra. Also, see, 7 C.J.S., Attorney
and Client, sec. 74, page 882; 6 C.J.S., Arrest, sec. 25, page 631; 7 C.J.S., Attorney and
Client, sec. 63, page 847; 19 C.J.S., Corporations, sec. 1454 and note 94, page 1159, citing
cases.
5. With further respect to notice of the application for a receivership, the statute, sec.
1648.01, N.C.L. 1931-1941 Supp., provides: * * * It shall be sufficient for a temporary
appointment {italics supplied) if notice of the same be given to the corporation alone * *
* and the hearing thereon may be had after five days' notice unless the court shall direct
a longer or different notice.
a temporary appointment (italics supplied) if notice of the same be given to the corporation
alone * * * and the hearing thereon may be had after five days' notice unless the court shall
direct a longer or different notice. * * *
We believe it is sufficient to say that the order does not appear or purport to be temporary;
that notice to the relators as directors was required but not given and that notice to the
corporation was likewise lacking.
6. Where the statute provides for the appointment of receivers, the statutory requirements
must be met or the appointment is void and in excess of jurisdiction. Tardy's Smith on
Receivers, vol. 2, 1974 et seq.; Golden v. Averill, supra; 45 Amer.Jur. 99, para. 117; 14A C.J.
sec. 3199, page 970; 19 C.J.S., Corporations, sec. 1480; Larsen v. Winder, 14 Wash. 109, 44
P. 123, 53 Am.St.Rep. 864; Gordon et al. v. Pacific Excursion Co., 107 Wash. 628, 182 P.
591; vol. 16, Fletcher on Corporations, p. 68, para. 7685.
7. The order of the lower court was in excess of jurisdiction in still another respect.
N.C.L. 1929, sec. 8696 provides: On granting an injunction, or a restraining order, the court
or judge must require * * * a written undertaking on the part of the plaintiff, with sufficient
sureties, to the effect that the plaintiff will pay to the party enjoined such damages, not
exceeding an amount specified, as such party may sustain by reason of the injunction, if the
court finally decide that the plaintiff is not entitled thereto. * * *
An examination of the record before us discloses that the order of the lower court
enjoining the relators failed to require the bond mentioned in this section. Where a bond is
required by statute before the issuance of an injunction, it must be exacted or the order will be
absolutely void. 43 C.J.S., Injunctions, sec. 166, page 791; Maier v. Luce, 61 Cal.App. 552,
215 P. 399, 402; MacWatters v. Stockslager, 29 Idaho 803, 162 P. 671, 672; Western
Academy of Beaux Arts v. De Bit, 101 Wash.
Wash. 42, 171 P. 1036, 1037; Chamberlain et ux. v. Durfee et ux., 264 Mich. 194, 249 N.W.
486; Wiles et al. v. Northern Star Mining Co. et al., 13 Idaho 326, 89 P. 1053; Price v. Grice,
10 Idaho 443, 79 P. 387; McCracken v. Harris et al., 54 Cal. 81, 83.
8. Respondents urge that Lubeck, Pecknold, and Wagner were improperly joined as
respondents in this proceeding for the purpose of annoying, harassing, and financially
obligating them. With this contention we cannot agree. All were parties plaintiff in the district
court actions; the burden of defending the validity of the lower court's order made at their
request logically falls upon them to a greater degree than it does upon the lower court. As
adverse parties they are all proper parties respondent here. Hirsh v. Twyford, 40 Okl. 220,
139 P. 313.
9. Respondent Pecknold was a receiver appointed by the lower court. The writ properly
runs against an officer as incident to the prohibition laid upon the court. Gordon v. District
Court, 36 Nev. 1, 131 P. 134, 44 L.R.A.,N.S., 1078; 42 Amer.Juris. 150, para. 11.
10. In the absence of notice and opportunity for hearing required by statute before
appointing a receiver and upon the failure to require a bond of indemnity for the plaintiff
before issuing the injunction, as required by statute, the lower court disregarded the
restrictions imposed by statute, and prohibition is an available remedy. Walser v. Moran, 42
Nev. 111, 173 P. 1149, 180 P. 492; Golden v. Averill, supra; State v. Wildes, 34 Nev. 94, 116
P. 595, 599.
11. Prohibition is, however, an extraordinary remedy and will not be granted to correct
errors or irregularities in the exercise of authority inherent in a court (Walser v. Moran,
supra), where the remedy by appeal is adequate. 42 Amer.Juris. 144, para. 8; and it will only
issue in cases of great necessity or urgency. International Life Underwriters v. Second
Judicial District Court, supra.
12. In this case the remedy by appeal, if open to the relators at all, would probably have
first required the relators to secure an order striking the unauthorized answer from the files, as
well as to file other pleadings, etc., during which time the receiver would have been in
possession without a bond of indemnity.
The corporation is a business corporation and not alleged to be insolvent or in any
financial difficulty whatever. To allow shareholders holding a bare 10 percent of the stock to
procure the appointment of one of their members as receiver without notice to the directors,
or the corporation, and without bond, constitutes a disregard of the statute and minimum
constitutional requirements, which under all the circumstances, in our opinion, justifies the
issuance of a writ of prohibition.
It is ordered that a peremptory writ of prohibition issue commanding the respondent court
and receiver to desist and refrain from any further proceedings in civil action No. 112448,
without first allowing the relators to file an answer in said proceedings and to offer evidence
in their behalf; and to vacate the order of August 16, 1947, appointing the receiver and
enjoining the relators.
____________
64 Nev. 497, 497 (1947) Leeper v. Herz
RUTH LEEPER, Respondent, v. THOMAS S. HERZ,
Et Al., Appellants.
No. 3489
October 2, 1947. 184 P.2d 1006.
1. Death.
Complaint in death action by decedent's daughter which failed to allege that decedent was not a
minor, was fatally defective. Comp.Laws, sec. 8554.
Where the failure to allege that decedent was not a minor was not urged to trial court or even called to
its attention, and there was no record other than judgment roll, supreme court assumed that there was
ample evidence to sustain a jury's finding of decedent's majority, regarded complaint as having been
amended to allege that decedent was not a minor, and affirmed judgment for plaintiff. Comp.Laws, sec.
8622.
Where there is no record other than the judgment roll, the supreme court is required to assume that
there was ample evidence to support the jury's findings.
Where a trial has been had as though certain allegations appeared in the complaint, complaint will be
regarded by an appellate court in a proper case as amended to contain the missing allegations.
Comp.Laws, sec. 8622.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Action by Ruth Leeper against Thomas S. Herz and Rudolph Herz, to recover for the death
of plaintiff's mother as result of the alleged negligent operation of an automobile by Thomas
S. Herz while in the employ of Rudolph Herz. From a judgment for the plaintiff, the
defendant's appeal. Judgment affirmed.
H. R. Cooke, of Reno, for Appellants.
Harlan L. Heward, of Reno, for Respondent.
OPINION
This is an appeal from a judgment of the Second judicial district court of the State of
Nevada, in and for Washoe County, upon a verdict rendered by the jury in the sum of
$5,000 for the death of respondent's mother, Agnes Leeper, caused by the negligence of
Thomas Herz, one of the appellants, a minor, and the son of Rudolph Herz, the other
appellant.
64 Nev. 497, 498 (1947) Leeper v. Herz
Washoe County, upon a verdict rendered by the jury in the sum of $5,000 for the death of
respondent's mother, Agnes Leeper, caused by the negligence of Thomas Herz, one of the
appellants, a minor, and the son of Rudolph Herz, the other appellant. The accident occurred
in the driving of a car by Thomas while in the employ of Rudolph. Rudolph, pursuant to the
uniform motor vehicle operators' and chauffeurs' license act (Nev.Stats. 1941, c. 190, p. 529),
had also executed his assumption of liability caused by the negligence of his minor son
Thomas in operating said vehicle. The amended complaint, among other things, alleged that
plaintiff is the daughter of and the sole heir of Agnes Leeper, who died July 16, 1946. The
case is before us on appeal from the judgment alone, and the record discloses the amended
complaint, the demurrer thereto, the order overruling demurrer, the answer, the reply, the
verdict, and the judgment on the verdict. The answer denies negligence and pleads the further
defense of contributory negligence. There is no transcript and no evidence or record of other
proceedings in the trial court before us.
Only one point is urged on this appeal, namely, that the complaint does not state facts
sufficient to constitute a cause of action against the defendants. Appellants insist that if this is
so, the entire proceeding in the trial court was without jurisdiction and that the trial court
in effect had nothing before it; that by reason of its error in overruling the general demurrer
to the complaint, the judgment must be reversed.
Appellants assert that the action is obviously brought under authority of sec. 8554, N.C.L.,
as amended, Stats. 1939, page 17, reading in part as follows: When the death of a person not
a minor is caused by the wrongful act or neglect of another, his heirs, or his personal
representatives for the benefit of his heirs, may maintain an action for damages against the
person causing the death * * *.
1. It is further pointed out that this was an action unknown to the common law and that,
being purely statutory, it is necessary to allege sufficient facts to bring plaintiff within the
provisions of the particular statute under the authority whereof the action may be
maintained; that the amended complaint was fatally defective in failing to allege that the
decedent was not a minor; that, in like manner, if an action were brought by the father
and mother jointly under N.C.L., sec.
64 Nev. 497, 499 (1947) Leeper v. Herz
unknown to the common law and that, being purely statutory, it is necessary to allege
sufficient facts to bring plaintiff within the provisions of the particular statute under the
authority whereof the action may be maintained; that the amended complaint was fatally
defective in failing to allege that the decedent was not a minor; that, in like manner, if an
action were brought by the father and mother jointly under N.C.L., sec. 8553, it would be
incumbent to a statement of a cause of action to allege that the deceased was a minor.
Appellants further insist that the point was properly raised by a general demurrer to the
complaint, that under the provisions of sec. 8601 N.C.L, and the repeated construction thereof
by this court, such objection may be made at any time and that there is no course open to this
court other than to reverse the judgment. In support of their contention that the amended
complaint was fatally defective in not alleging that the decedent was not a minor, appellants
rely upon the case of Tann v. Western Pac. Ry. Co., 39 Cal.App. 377, 178 P. 971, 972.
Respondent contends that the case is not in point and that it is not good law. It is clear,
however, that the case is precisely in point, and we are of opinion that it correctly and clearly
states the law. It was there held, under an identical statute, that the plaintiff's failure to allege
that the decedent was not a minor, left it fatally defective. Undoubtedly, the complaint does
fail to state a cause of action if it fails to allege that deceased was an adult and left an heir, or
heirs, an allegation absolutely essential in an action of this character. Id. Virtually the same
position was taken by this court in Wells, Inc., v. Shoemake, 64 Nev. 57, 177 P.2d 451, and
by the United States district court for this district in Perry, Administrator, v. Tonopah Mining
Co. of Nevada, D. C., 13 F.2d 865. In the Tann case, however, peculiarly enough, the trial
court had erroneously sustained a demurrer, without leave to amend, upon two other grounds,
and the California district court of appeal reversed the judgment and remanded the cause
so that the complaint might be amended and further proceedings had.
64 Nev. 497, 500 (1947) Leeper v. Herz
reversed the judgment and remanded the cause so that the complaint might be amended and
further proceedings had. No trial of the case had been had in the trial court.
2, 3. While we are entirely in accord with the holding of the California court to the effect
that the complaint did not state a cause of action, the instant case finds itself in a very
different position from that of Tann v. Western Pac. Ry Co., supra. Here, as there, we are
confronted with the rule that there was no waiver of the point that the complaint did not state
facts sufficient to constitute a cause of action, and here, as there, the particular point involved
was not urged in the court below. From that point, however, the status of the instant case and
the status of the Tann case diverge decidedly. There had been no trial of the issues in the
Tann case, and the court quite properly remanded the case for trial on the amended complaint.
The present case, however, presents the following situation. Although the general demurrer
was served and filed it was submitted without argument, and quite naturally overruled. The
point involved was never urged to the trial court nor ever called to its attention. From the
entire absence of any record other than the judgment roll mentioned, we are confronted with a
number of assumptions: that the point was not urged in objections to the evidence, that it was
not the basis of a motion for new trial, that it was not urged as grounds of a nonsuit, that it
was not presented in the form of instructions to the jury nor in the form of a demurrer to the
evidence, and that, more important still, the actual fact that decedent was not a minor was
established by due and competent proof. Indeed, appellants insist that the proof of such fact
was essential to plaintiff's case. We must, therefore, assume that there was ample evidence to
support the findings of the jury, including the issue of the majority of the decedent. Harper v.
Lichtenberger, 59 Nev. 495, 92 P.2d 719, 98 P.2d 1069, 99 P.2d 474.
If the point had been called to the attention of the district court, it would undoubtedly
have sustained the demurrer with leave to plaintiff to amend by inserting the words "not
a minor."
64 Nev. 497, 501 (1947) Leeper v. Herz
district court, it would undoubtedly have sustained the demurrer with leave to plaintiff to
amend by inserting the words not a minor. If the point had been raised on objections to
evidence the trial court would undoubtedly, in the exercise of a sound discretion, have
permitted the amendment then and there, in the absence of circumstances indicating that
defendants had been misled, or possibly upon the imposition of terms. If the point had been
raised on motion for nonsuit, the court would probably likewise have permitted an
amendment to conform to the proof. We are entirely in sympathy with the remarks of
Chipman, P. J., in Slaughter v. Goldberg, Bowen & Co., 26 Cal.App. 318, 147 P. 90, 93, as
follows:
It seems to us that the reformed procedure would receive a decided shock if a defendant
should be permitted to stand by and without objection allow an issue to be tried as though
properly presented by the pleadings and on appeal escape the consequences by claiming that
the complaint failed to present such issue. If there ever was a case where section 475 of the
code of civil procedure was intended to apply, this, it seems to us, is one. In Texas & Pac. Ry.
Co. v. Lacey [5 Cir.], 185 F. [225], 226, 107 C.C.A. [331], 332, the action was similar to the
one here, and the statute gave the right to the parents only if the deceased left no widow or
minor children. The complaint was silent as to the existence of heirs, as is the present
complaint. After stating that an amendment would no doubt have been allowed in the lower
court had the objection been there presented, the court said:
The point, if it occurred to counseland it probably did notwas held in ambush till
the case reached this court, when it came out in the open. We think it is too late to present
that defense. * * * If there were no statutes or local decisions to sustain the view, we would
hold, nevertheless, that a defendant would not be permitted to successfully urge the alleged
defect in this court after entering a general denial and trying the case on the merits in the
lower court and having failed to suggest the alleged defect in that court.'
64 Nev. 497, 502 (1947) Leeper v. Herz
on the merits in the lower court and having failed to suggest the alleged defect in that court.'
Nor do we think it can be said that the general demurrer sufficiently apprised plaintiff of
the defect and relieved defendant from the necessity of objecting to the evidence. In [City of]
Henderson v. Sizemore, Ky., 104 S.W. 722, it was said:
It would be trifling with justice to hold at this late stage of the proceeding that the
judgment should be reversed for the error in failing to sustain a demurrer to the petition.
Especially in view of section 134 of the civil code of practice, providing that the court must in
every stage of any action disregard any error or defect in the proceedings which does not
affect the substantial rights of the adverse party.'
See Abner Doble Co. v. Keystone [Consol. Min.] Co., 145 Cal. 490, 495, 78 P. 1050;
Carroll v. Briggs, 138 Cal. 452, 455, 71 P. 501.
In the case here the trial proceeded in all respects as though the pleadings sufficiently
presented the issue as to there being heirs and precisely as it would had the complaint
contained the allegation which it is insisted it should have contained. Why, then, should the
case go back to have the complaint amended, as it is manifest that the proofs would be the
same? How can it be said that defendant has sustained substantial injury and that a different
result would have been probable if such error * * * or defect had not occurred?'
A rehearing was asked for in that case upon a single question: Did the evidence that
deceased left heirs (here that decedent was not a minor), offered and admitted at the trial
without objection, cure the failure to allege the fact in the complaint? The district court of
appeal admitted that support of a negative answer could be found in some of the cases and
invited the appellant to petition the supreme court of California for a rehearing, which
rehearing the supreme court of California thereafter denied. It should be noted that the
California statute enjoining the disregard of technical errors and defects is similar to our
own {N.C.L., sec.
64 Nev. 497, 503 (1947) Leeper v. Herz
California statute enjoining the disregard of technical errors and defects is similar to our own
(N.C.L., sec. 8622), which reads as follows: The court shall, in every stage of an action,
disregard any error or defect in the pleadings or proceedings, which shall not affect the
substantial rights of the parties; and no judgment shall be reversed or affected by reason of
such error or defect. The salutory purposes of this section have been recognized and
enforced by this court on many occasions.
4. We feel that our course is clear in the present case. In Hunt v. Johnston, 51 Nev. 1, 266
P. 916, Coleman, J., speaking for the court in a case in which it was clear that the complaint
was materially deficient, said: But if we were to reverse the judgment it would be at the cost
of appellant and with an order directing an amendment in accordance with the undisputed
proof to the effect that the defendant had, in writing, guaranteed the debt. The court held that
this duty did arise out of Revised Laws, sec. 5066, which is our present statute N.C.L. sec.
8622. In Commercial Credit Co. v. Street, 37 Ariz. 204, 291 P. 1003, 1005, the court likewise
found that essential allegations were lacking in the complaint, but that evidence of the facts
was introduced without objection. Referring to 4 C.J. 749, 1169, the court said: Since the
trial was had as though these facts appeared as allegations of the complaint, the complaint
should be regarded and treated as amended to contain them. Vol. 5 C.J.S., Appeal and Error,
sec. 1542, page 306, under the caption Amendments Regarded as Made, contains the
following headnote: Necessary or desirable amendments to the pleadings not shown by the
record to have been made will often be regarded by the appellate court as having been made.
Although there are many restrictions to and limitations upon this rule, we consider the present
occasion a proper one for its application, under all of the circumstances of the case.
The position we have taken makes it unnecessary to pass upon a number of other
contentions made by the respective parties, all having to do with rules of pleading.
64 Nev. 497, 504 (1947) Leeper v. Herz
respective parties, all having to do with rules of pleading.
It is ordered that the amended complaint be regarded by this court as having been further
amended by adding the allegation that the deceased was not a minor, in order to conform with
the proof. It is further ordered that the judgment be affirmed, with costs.
____________
64 Nev. 504, 504 (1947) Nevada Desert Inn v. Burke
NEVADA DESERT INN, INC., a Corporation, Appel-
lant, v. STANLEY BURKE, et al., Respondents.
No. 3502
October 29, 1947. 185 P.2d 1005.
Where no bill of exceptions, judgment roll or other record on appeal had been served or filed, and
appellant had made no attempt to comply with statutes or supreme court rules governing appeals, motion
to dismiss appeal was granted. Comp. Laws, secs. 9385.81, 9385.86; Rules of supreme court, rules 2, 3.
Action by Nevada Desert Inn, Inc., against Stanley Burke and others. From adverse
judgment, the plaintiff appeals. On motion to dismiss appeal. Appeal dismissed.
No appearance for Appellant.
Jones, Wiener & Jones, of Las Vegas, for Respondents.
OPINION
Respondents have moved to dismiss appellant's appeal herein on the ground that appellant
has not filed a bill of exceptions, judgment roll, transcript, or other record on appeal.
exceptions, judgment roll, transcript, or other record on appeal. The motion was argued and
briefed by respondents, but no appearance was made on behalf of the appellant. Counsel
representing appellant in the trial court, and who had filed the notice of appeal on behalf of
appellant, addressed a letter to the clerk of this court advising that the setting of the hearing of
the motion was satisfactory and that they would not appear to resist the motion.
The record shows that on July 29, 1946, the district court made an order granting the
motion of the respondents for a nonsuit. On September 28, 1946, appellants served and filed
notice of intention to move for a new trial, and on December 13, 1946, an order was made
denying said motion. Notice of the order denying the motion for new trial was served and
filed February 19, 1947. On February 10, 1947, notice of appeal was served and filed. The
record discloses no bond on the appeal and no waiver of such bond, but respondents have not
made the absence of the bond one of the grounds of their motion to dismiss. Thereafter
sundry orders were made extending appellant's time to serve and file its bill of exceptions to
the following respective dates: April 1, 1947, April 15, 1947, May 1, 1947, May 15, 1947,
May 25, 1947, and June 15, 1947. No bill of exceptions, judgment roll, transcript, or other
record on appeal has been served or filed.
The applicable provision of N.C.L. sec. 9385.81 requires serving and filing of a bill of
exceptions within 20 days after service of written notice of the decision on the motion for
new trial. Section 9385.86 provides that if a party shall omit or fail to serve and file his bill of
exceptions within the time limited, he shall be deemed to have waived his right thereto. Rule
II of the rules of the supreme court reads: 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. Rule III provides that if the transcript of the record be not so filed
"the appeal, after five days' notice in writing to the appellant, specifically stating the
grounds thereof, may be dismissed on motion of the respondent."
that if the transcript of the record be not so filed the appeal, after five days' notice in writing
to the appellant, specifically stating the grounds thereof, may be dismissed on motion of the
respondent.
There is nothing before the court upon which the appeal may be predicated, and appellant
has made no attempt to comply with the statutes or rules of court. It is clear that the motion
must be granted. Sullivan v. Nevada Industrial Commission, 54 Nev. 301, 14 P.2d 262.
Appeal dismissed.
____________
64 Nev. 506, 506 (1947) Mulford v. Davey
In the Matter of the Application for a Writ of Mandate by ELIZABETH H. MULFORD,
Against J. W. DAVEY, County Clerk of Humboldt County, Et Al.
No. 3507
November 4, 1947. 186 P.2d 360.
1. Records.
A reasonable identification of a party should be required under statute providing for sealing of part of
record in divorce cases on written request of either party to divorce action and restricting inspection of
sealed part to parties or their attorneys or when required as evidence in another action. Comp. Laws, sec.
9467.03.
2. Evidence.
Evidence established that petitioner for writ of mandamus to compel clerk of court to unseal records
in a divorce action was the same person as the defendant in the divorce action, so as to entitle petitioner
as a party to inspect part of divorce record sealed pursuant to statute on written request of other party to
suit. Comp. Laws, sec. 9467.03.
3. Records.
A defendant whose default in divorce suit has been entered and who has made no appearance is
nevertheless a party under statute restricting inspection of part of record in divorce cases sealed
pursuant to statute to parties or their attorneys or when required as evidence in another action.
Comp.Laws, sec. 9467.03.
4. Records.
Under statute providing for the sealing of part of record in divorce cases and restricting right of
inspection of sealed part to parties or their attorneys or when required as evidence in
another action, word "attorneys" is not limited to attorneys of record.
to parties or their attorneys or when required as evidence in another action, word attorneys is not
limited to attorneys of record. Comp.Laws, sec. 9467.03.
5. Records.
Under statute providing for sealing of part of record in divorce cases and restricting right of
inspection, right of inspection carries with it the right to obtain certified and exemplified copies
thereof. Comp.Laws, sec. 9467.03.
6. Records.
The statute permitting the sealing of part of the record in divorce cases is in derogation of the
common law and must be construed strictly. Comp.Laws, sec. 9467.03
7. Statutes.
Statutes in derogation of the common law must be construed strictly.
8. Statutes.
A statute will not be construed so that an absurd or unjust result is reached unless the statute plainly
requires it.
9. Mandamus.
Mandamus is the proper remedy to compel a clerk of court to perform an act which the law specially
enjoins as a duty resulting from his office.
10. Mandamus.
Mandamus would lie to compel clerk to unseal record in divorce case upon application of defaulting
defendant, notwithstanding petitioner had a remedy at law by application to district court for modification
of order sealing the record, where such a general appearance might jeopardize substantial rights which
petitioner desired to preserve by refusing to appear generally in divorce action. Comp.Laws, sec.
9467.03.
Proceeding in the matter of the application for a writ of mandamus by Elizabeth H.
Mulford against J. W. Davey, County Clerk of Humboldt County, and Honorable Merwyn H.
Brown, District Judge of the Sixth Judicial District Court in and for the County of Humboldt,
to compel the Clerk to unseal the records in a certain divorce action so that petitioner or her
attorneys might inspect the records and secure a copy thereof. Peremptory writ of mandate
issued.
Lunsford & Goldwater and Richard W. Blakey, all of Reno, for Petitioner.
Kearney & Adams, of Reno, for Respondents.
OPINION
This is an original proceeding in this court by petitioner, Elizabeth H. Mulford, for a writ
of mandate against J. W. Davey, county clerk of Humboldt County, and ex officio clerk of the
Sixth judicial district court in and for said county, to compel the clerk to unseal the records in
a certain divorce action filed and tried in that court so that petitioner or her attorneys may
inspect the records and secure a copy thereof. Originally the petition also sought a writ of
mandate requiring the judge of the aforesaid court to afford petitioner the same relief. This
court issued its alternative writ of mandate pursuant to the prayer of the verified petition. At
the outset of the hearing before the court on the petition and return, the petitioner's motion to
dismiss against the aforesaid district judge was granted.
The facts as they appear from the petition and admitted by the return are as follows:
On May 22, 1946, Louis K. Mulford commenced an action for divorce against Elizabeth
H. Mulford, his wife, in the Sixth judicial district court in and for the county of Humboldt.
On July 2, 1946, the default of the defendant wife was entered, and on the same day a
judgment of divorce was granted to the plaintiff in the action. At the close of the proceedings
the trial judge apparently made an order that the testimony be transcribed, filed, and sealed.
Petitioner thereafter made a written demand on the clerk that he open the sealed transcript of
testimony in the action for her inspection or for the inspection of her attorneys whom she
named in her demand as Lunsford & Goldwater, of Reno, James B. Callahan, of
Winnemucca, and William Ellis Lady, of Los Angeles, California. She further requested, at
her expense, an exemplified copy of the transcript of testimony for her use in an action which
she stated was pending in California. On August 23, 1947, the clerk advised petitioner that
he had no right or authority to allow an inspection of the transcript which had been
sealed by an order of the trial court.
advised petitioner that he had no right or authority to allow an inspection of the transcript
which had been sealed by an order of the trial court. He further advised petitioner that the
unsealed portions of the record in the case did not disclose a written request that the transcript
of the testimony be sealed.
At common law every person was entitled to an inspection of public records, by himself or
agent, provided he had an interest in the matters to which such records related. State v.
Grimes, 29 Nev. 50, at page 73, 84 P. 1061, 5 L.R.A.,N.S., 545, 124 Am.St.Rep. 883; State v.
McGrath, 104 Mont. 490, 67 P.2d 838; 45 Amer.Jur. 430, sec. 21. That common law right
was enlarged by our legislature. Section 5620, N.C.L.1929, Statutes 1911, at page 290,
provides:
All books and records of the state and county officers of this state shall be open at all
times during office hours to inspection by any person, and the same may be fully copied or an
abstract or memoranda prepared therefrom, and any copies, abstracts or memoranda taken
therefrom may be utilized to supply the general public with copies, abstracts or memoranda of
said records or in any other way in which the same may be used to the advantage of the owner
thereof or of the general public.
The right of any person to inspect the records in actions for divorce was later specially
limited by an act of the legislature, sec. 9467.03, N.C.L. 1931-1941 Supp. Stats. 1931, at page
412, which reads as follows:
In any action for divorce, the papers and pleadings which constitute or will make up the
judgment roll in the action shall be open to public inspection in the clerk's office. All other
papers, records, proceedings and evidence, including exhibits and transcript of the testimony
shall, upon the written request of either party to the action, filed with the clerk, be sealed and
shall not be open to inspection except to the parties or their attorneys, or when required as
evidence in another action or proceeding.
Petitioner contends that she meets the requirements of all three of the exceptions of section
9467.03. We shall examine those exceptions as applicable to this case in the order in which
they are found in the statute.
1-3. Respondent asserts that petitioner here failed to identify herself satisfactorily as the
Elizabeth H. Mulford who is the defendant named in the divorce action. We are constrained
to agree that under this statute a reasonable identification of a party should be required.
Although, as will later appear, we are not required to decide that question, we are satisfied
from the record before us that petitioner is the same person as the defendant in the divorce
action in the district court. Respondent's further contention that a defendant whose default has
been entered, and who has made no appearance, is not a party, is untenable. 47 C.J. 15, sec. 4;
39 Amer.Jur. 851, sec. 4.
4, 5. The second exception preserves the right of inspection to attorneys for parties.
Respondent argues that the legislative intent to be found from reading the whole statute is that
the word attorney is to be construed to mean attorneys of record. Holding as we do that
the word parties as used in the statute means parties named in the action, it follows that the
word attorneys as there used is not limited to attorneys of record. Respondent further urges
that the statute authorizing the sealing of the record would become a mere sham if the clerk
was obliged to take it for granted that every attorney making application for inspection had
the proper authority. Certainly the solemn representations of attorneys admitted to practice
before all of the courts of this state, and who are not only officers of the court but also are
bound to observe the highest standards of professional conduct, may be relied upon by the
clerks of the district courts in matters of this kind. This court has no fear that the purpose and
object of the statute will be circumvented by misrepresentations on the part of members of the
bar. Here, petitioner requested the right of inspection for three attorneys admitted to
practice in Nevada, and their identity and office have at no time during this controversy
been in dispute.
attorneys admitted to practice in Nevada, and their identity and office have at no time during
this controversy been in dispute. In view of the foregoing, we are not required to decide the
applicability of the third exception found in the statute allowing inspection of sealed records
when required as evidence in another action or proceeding. It seems clear that the right of
inspection preserved by the statute to parties or their attorneys carried with it the right to
obtain certified and exemplified copies thereof.
6-8. The statute permitting the sealing of part of the record in divorce cases is in
derogation of the common law and, pursuant to familiar principles, must be construed strictly.
A strict construction of the statute preserved to parties and their attorneys the broadest rights
of inspection consistent with the language of the legislature. In further support of the
construction we here adopt, it is incumbent upon this court to avoid any absurd or unjust
results unless the statute plainly requires it. For example, in divorce actions the courts are
from time to time called upon to decide questions of custody of minor children
notwithstanding that the defendant is in default. It would be unreasonable to construe the
statute as requiring such a defendant to enter a general appearance merely to ascertain the
facts upon which the question of custody was decided. There appears to be no reason why a
party should be denied access to the record of what has been proved or attempted to be
proved against him. Certainly, the adverse party can have no just objection to such inspection.
In Nevada Cornell Silver Mines v. Hankins, 51 Nev. 420, at page 432, 279 P. 27, 31, this
court quoted with approval the following statement by Lord Campbell:
Where by the use of clear and unequivocal language, capable only of one construction,
anything is enacted by the legislature we must enforce it, although, in our own opinion, it may
be absurd or mischievous. But, if the language employed admit of two constructions, and
according to one of them the enactment would be absurd and mischievous, and according
to the other it would be reasonable and wholesome, we surely ought to put the latter
construction upon it as that which the legislature intended."
according to one of them the enactment would be absurd and mischievous, and according to
the other it would be reasonable and wholesome, we surely ought to put the latter
construction upon it as that which the legislature intended.
The respondent county clerk is also ex officio clerk of the district court of his county, that
being a court of record. Nevada Constitution, sec. 32, art. IV. As such ex officio clerk of the
court he is the custodian of the records of the district court. Section 9467.03, N.C.L.
1931-1941 Supp., places upon the clerk the duty of sealing all other papers, records,
proceedings and evidence, including exhibits and transcript of the testimony in actions for
divorce upon the written request of either party to the action when such request is filed
with the clerk. While we do not have before us a copy of the order of the district court
sealing the record, it is the statement of respondent that he sealed the record in this case in
response to an order of the district judge. It thus appears that the direction for sealing here
was not in the method provided by statute. The sealing by the clerk, whether by order of the
court or upon the written request of a party, cannot be effective as against parties or their
attorneys, in view of the statute. Upon proper application of a party or his or her attorney it is
the ministerial duty of the clerk of the court having custody of any such sealed record to
unseal the same.
9, 10. The only remaining question before us is whether mandamus will lie to compel the
clerk to unseal the record upon application of a party or his or her attorney. Mandamus is the
proper remedy to compel a clerk of a court to perform an act which the law specially enjoins
as a duty resulting from his office. 38 C.J. 621, par. 109; Ex parte Uppercu, 239 U.S. 435, 36
S.Ct. 140, 60 L.Ed. 368; Boylan v. Warren, 39 Kan. 301, 18 P. 174, 7 Am.St.Rep. 551. For a
compilation of cases on the propriety of mandamus to enforce the right of inspection, see 60
A.L.R. 1356; also, in Nevada, State ex rel. Drake v. Hobart, 12 Nev. 408. Respondent urges
that petitioner has an adequate remedy at law by application to the district court for
modification of the order sealing the record.
petitioner has an adequate remedy at law by application to the district court for modification
of the order sealing the record. The petition asserts that to require petitioner to apply to the
district court for relief might jeopardize substantial rights which petitioner desires to preserve
by refusing to appear generally in the divorce action. Although the assertion is denied on
information and belief in respondent's return, we are not disposed to require petitioner to
make such a general appearance merely to enjoy her right of inspection of the record in the
action for divorce, which right is so clearly preserved to her by the statute. State of Nevada ex
rel. Sears v. Wright, 10 Nev. 167, at page 175:
The mere fact that an action or proceeding will lie, does not necessarily supersede the
remedy by mandamus. The relator must not only have a specific, adequate and legal remedy,
but it must be one competent to afford relief upon the very subject-matter of his application;
and if it be doubtful whether such action or proceeding will afford him a complete remedy,
the writ should issue. (Moses on Mandamus, 112; Fremont v. Crippen, 10 Cal. 211, 70
Am.Dec. 711; Etheridge v. Hall, 7 Port., Ala., 47; People ex rel. La Grange v. State
Treasurer, 24 Mich. 468, 469.)
Respondent strongly relied upon King v. King, 25 Wyo. 275, 168 P. 730, wherein the
transcript of testimony and certain letters were sealed by the court upon joint application of
the parties. The Wyoming court in arriving at its conclusion necessarily held that there was no
right in common law to inspect records by a party. As we have said above, that is not the true
rule. State v. Grimes, supra; Ex parte Uppercu, supra. Furthermore, Wyoming had no statute
similar to section 9467.03, expressly preserving the right of a party or his or her attorney to
inspect records which had been sealed.
Accordingly, it is our view that a peremptory writ of mandate should issue. It is so ordered.
____________
64 Nev. 514, 514 (1947) In Re Davidson
In the Matter of JOHN DAVIDSON,
Attorney at Law.
No. 3480
November 5, 1947. 186 P.2d 354.
1. Criminal Law.
One who is instigated, induced, or lured by an officer of the law or other person, for purpose of
prosecution, into commission of crime which he had otherwise no intention of committing, may avail
himself of defense of entrapment.
Where taxi driver at request of chairman of local administrative committee of state bar agreed to
assist in investigation of possible unethical practices of attorneys and procured understanding with
defendant attorney that attorney would deal with driver in matter of handling divorce cases and pursuant
thereto took two female divorce clients to attorney's office and thereafter received two payments of $25
from attorney, attorney could not rely on defense of entrapment in disciplinary proceeding.
3. Witnesses.
Generally, credibility of witness can be impeached only by proof of general reputation of witness for
truth, and not by evidence of particular incidents.
In disciplinary proceeding against attorney, refusal of board of governors to grant trial de novo on
strength of affidavit relating to particular transaction tending to impeach credibility of principal witness
against attorney was not abuse of discretion. Comp.Laws, sec. 571; 3 Rules of Procedure of State Bar,
rule 27.
An accused's right to be confronted by witnesses against him was fully accorded to attorney who
cross-examined principal witness testifying against attorney in disciplinary proceeding and who had
opportunity to cross-examine the other witnesses as well as opportunity to resume witness stand in his
own behalf after hearing testimony of principal witness, notwithstanding that principal witness did not
testify until after attorney testified. Comp.Laws, sec. 573.
6. Criminal Law.
The presumption of innocence in its practical application is intended to secure to accused a fair and
impartial trial as well as benefit of rule as to degree of proof required, and presumption relates primarily
to burden of proof.
In disciplinary proceeding against attorney, higher degree of proof is required than is required to
determine questions of fact in ordinary civil proceeding. Comp.Laws, sec. 574.
That local administrative committee of state bar, not only initiated and conducted investigation of
attorney's professional conduct, but also brought disciplinary charges against attorney and heard the
evidence, did not deprive attorney of rule according to accused the presumption of innocence, since final
application of rule as to burden of proof in such a proceeding rested upon the supreme court.
Comp.Laws, sec. 574.
Evidence warranted finding that attorney remunerated taxi driver for soliciting and obtaining
professional employment for attorney in divorce cases, justifying suspension from practice of law for six
months. Rules of Professional Conduct of State Bar, rule 3.
Disciplinary proceedings by the Board of Governors of the State Bar of Nevada against
John Davidson, Attorney at Law. The Board of Governors suspended the attorney for six
months, and the attorney petitions for review. Order in accordance with opinion.
Samuel Platt, of Reno, for Petitioner.
Harlan L. Heward, of Reno, Representative of Board of Governors of the State Bar.
OPINION
By the Court, Hatton, District Judge:
This matter is brought before this court by the petition of the defendant for a review and
reversal of the findings and recommendations of the local administrative committee of the
state bar of Nevada for the county of Washoe and of the board of governors of the state bar of
Nevada in a proceeding in which the defendant was charged with unethical conduct as an
attorney at law.
The said proceeding resulted in the following findings and recommendations by the board
of governors:
Findings
1. The Board of Governors of the State Bar of Nevada find that the said accused, John
Davidson, did, in Reno, Nevada, on July 15, 1946, pay the sum of $25 to one Peter James
Howton Rogers for forwarding a divorce client to said accused, and that said accused
remunerated said Peter James Howton Rogers for soliciting and obtaining professional
employment for said accused, and that said accused did directly share with an unlicensed
person, to-wit, Peter James Howton Rogers, compensation arising out of and incidental to
professional employment.
in Reno, Nevada, on July 15, 1946, pay the sum of $25 to one Peter James Howton Rogers
for forwarding a divorce client to said accused, and that said accused remunerated said Peter
James Howton Rogers for soliciting and obtaining professional employment for said accused,
and that said accused did directly share with an unlicensed person, to-wit, Peter James
Howton Rogers, compensation arising out of and incidental to professional employment.
2. The Board of Governors find that said accused, John Davidson, did, in Reno, Nevada,
on July 17, 1946, pay the sum of $25 to one Peter James Howton Rogers for forwarding a
divorce client to the said accused, and that said accused remunerated said Peter James
Howton Rogers for soliciting and obtaining professional employment for said accused, and
that said accused did directly share with an unlicensed person, to-wit, said Peter James
Howton Rogers, compensation arising out of and incidental to professional employment.
Recommendations
That the Board of Governors of the State Bar of Nevada respectfully recommend to the
Supreme Court of the State of Nevada that the accused, John Davidson, be suspended for a
period of six months on Count 1 and be suspended six months on count 2, both of said counts
to run concurrently, and until further order of the Court; that during the period of suspension
of accused, John Davidson, that he be restrained from the practice of law, either directly or
indirectly, until he be reinstated by an order of the Supreme Court.
The local administrative committee had recommended suspension of one year on each
count, to run consecutively. Thus the board of governors, in effect, reduced the suspension
from two years to six months.
To the defendant's petition for review the state bar filed its answer. Arguments were duly
presented and the matter submitted for decision.
In the proceeding before the local administrative committee, the first witness called on
behalf of the state bar was Claude J. Cormier. The witness testified that he was a deputy
sheriff assigned to the office of the district attorney as a special investigator; that at the
request of the chairman of the local administrative committee for Washoe County he
ascertained that the defendant had filed in the office of the clerk of the district court for
Washoe County, during the period from January 2 to December 31, 1945, 253 divorce cases,
and in the period from January 2 to July 24, 1946, 191 cases. The witness further testified that
he had heard, as a matter of rumor, that the defendant had been connected with pay-offs to
laymen in divorce cases and that he had reported such rumors to the chairman of the local
administrative committee. Peter James Howton Rogers testified on behalf of the state bar. He
testified, in substance, that, at the request of the chairman of the local administrative
committee, he agreed to assist the latter in an investigation of possible unethical practices on
the part of certain lawyers; that on July 15, 1946, he called on the defendant and the latter
agreed to deal with him in the matter of handling divorce cases; that pursuant to this
understanding he took to defendant's office one Betty Bar who, for the occasion, used the
name of Jean Wilson; that after the latter had an interview with the defendant, the witness
took her from the office, at which time the defendant requested him to come back around
three or four o'clock; that he returned at three o'clock, at which time the defendant paid him
$25; that no amount had been stipulated between them; that he mentioned to the defendant
that he had found the woman a place to stay, that he had located her at Washoe Pines; and
that the witness and defendant had no discussion concerning taxi fare. The witness further
testified, in substance, that on July 17, 1946, he took to the defendant's office one Gladys
Petrie who, for the occasion, used the name of H. Gertrude Porter; that after the latter had an
interview with defendant, the witness took her from the office; that fifteen or twenty
minutes later he returned to defendant's office and again received $25, and that, upon his
leaving, the defendant said, "Leave your hat and leave your badge off; I don't want
people to see taxi drivers coming up to my office."
had an interview with defendant, the witness took her from the office; that fifteen or twenty
minutes later he returned to defendant's office and again received $25, and that, upon his
leaving, the defendant said, Leave your hat and leave your badge off; I don't want people to
see taxi drivers coming up to my office. The witness testified that nothing was said about a
loan. Harlan L. Heward, chairman of the local administrative committee for Washoe County,
testified that, with the authorization of said committee, he arranged with the witness Rogers
for his visits to the office of the defendant which are referred to in the testimony of Rogers.
Mr. Davidson, the defendant, testified, in substance, that on July 15, 1946, the witness Rogers
brought to his office the said Jean Wilson; that he had never seen Rogers before; that Rogers
inquired of him as to where he might take prospective divorce clients for places of residence,
saying that he, Rogers, had had trouble with some of the attorneys who sought to make a
charge for taking or referring persons to places where they might reside, and that thereupon
he gave Rogers a number of addresses; that Rogers came in later and brought with him a lady
and introduced her to the defendant; that he talked with her and charged her $250 and that she
paid $100 on account; that Rogers came back later and said he had to take the lady to Washoe
Pines and was entitled to $25 for taxi fare, and that he gave Rogers the $25. The defendant
further testified that on the 16th or 17th, Rogers brought to his office the said H. Gertrude
Porter and introduced her; that he talked with Mrs. Porter and that she paid him $100 on
account; that Rogers came back later and said, How about a fee for me in this case?; that
he, defendant, said, I do not pay commissions on divorces; that Rogers said, I need some
money, and that he loaned him $25 until his next payday, and directed his secretary to mark
on my book I am giving this man $25.00 as a loan, and said to Rogers, I don't want any
taxi-cab drivers in this office. Asked why he loaned the money to Rogers, defendant replied,
"He asked for it, actually, he said he needed it."
replied, He asked for it, actually, he said he needed it. George E. Johnson, a witness for
defendant, testified that he kept a drawer filing case in the office of defendant, in the outer, or
reception, room, and that on July 17, 1946, he went there to place some records in the file, on
which occasion the defendant came from the inner room and said, Marge, I am loaning this
fellow $25.00; take his name and address, and I don't want any damn taxi driver hanging
around this office. Marge Hanson, Mr. Davidson's secretary, testified, in substance, that on
July 17, 1946, the said Mrs. Porter came to the office and was introduced to the defendant by
Rogers; that after her departure Rogers came back alone and went into the inner office and
was there about two minutes, whereupon defendant opened the door and said, I am loaning
this Taxi-driver $25.00; put it down in the book; that she entered on the book, Loaned
taxi-driver $25.00; that defendant did not ask her to get the taxi driver's name; that she could
not see the taxi driver, he being in the inner office room, that defendant apparently spoke to
him, and that she had no knowledge as to when he left by defendant's private door. Upon the
closing of the testimony taken before the local administrative committee, the defendant, on
his own behalf, presented his argument as to the merits of the case. The argument was taken
down by the reporter in attendance, and a copy thereof, duly certified by the reporter, was
admitted in evidence. (Transcript of Proceedings before the Board of Governors, page 40.) In
the course of his argument, the defendant said: I purposely made this suggestion of a loan so
I wouldn't be in a position of being charged with giving him a commission. In his testimony,
he stated, in substance, that he instructed his secretary to make a memorandum of the
transaction, the fact that I had made a loan, that she could testify to the fact that I had done
it. The witness Rogers testified that the taxicab fare from any point in downtown Reno to
Washoe Pines, being 25 miles, at 30 cents a mile, amounted to $7.50. On the examination of
the defendant by the chairman of the local committee, the chairman stated, "The regular
rate to Washoe Pines is $10.00," to which defendant replied, "I didn't know that."
defendant by the chairman of the local committee, the chairman stated, The regular rate to
Washoe Pines is $10.00, to which defendant replied, I didn't know that.
1. The first ground for reversal set forth in the petition and urged upon the argument is
that the entrapment of the defendant was unfair and contrary to public policy and that the
evidence so procured should have been disregarded by the local committee and by the board
of governors and should be disregarded by this court. The general rule on the subject of
entrapment, as shown by the weight of authority, is stated in the article on Criminal Law in 22
C.J.S., sec. 45, as follows:
One who is instigated, induced, or lured by an officer of the law or other person, for the
purpose of prosecution, into the commission of a crime which he had otherwise no intention
of committing may avail himself of the defense of entrapment.' Such defense is not available,
however, where the officer or other person acted in good faith for the purpose of discovering
or detecting a crime and merely furnished the opportunity for the commission thereof by one
who had the requisite criminal intent.
The section referred to contains the following further statements, with supporting citations:
An officer may, when acting in good faith with a view to detecting crime, make use of
deception, trickery, or artifice; and so it is not a defense that decoys were used to present an
opportunity for the commission of the crime or that detectives or others feigning complicity
in the act were present and apparently assisting in its commission.
2. From the proofs above set forth, we take the view that the unethical intention and act of
the defendant, in making the two payments to Rogers, was not unduly induced or suggested
by Rogers and that the defense of entrapment is not applicable in this case.
The second ground for reversal urged on behalf of the defendant is that the board of
governors abused its discretion in denying the defendant a trial de novo after admitting in
evidence the affidavit of G. L. Griffith, offered on behalf of defendant as newly discovered
evidence reflecting on the credibility of the witness Rogers.
discretion in denying the defendant a trial de novo after admitting in evidence the affidavit of
G. L. Griffith, offered on behalf of defendant as newly discovered evidence reflecting on the
credibility of the witness Rogers. The affidavit referred to recites that Rogers was in the
employ of the Yellow Cab Company, of which Mr. Griffith was the manager, in the month of
April 1946, and states further as follows:
He came to me on Saturday, April 27th, 1946, at about noon, stating that he had a party to
drive to San Francisco, and that he had received Seventy-five ($75.00) Dollars as payment for
the fare. After considerable discussion, I agreed to let him go. Rogers did not show up until
Monday, 8 P.M., April 29th, 1946, and when questioned by me he gave me a cock-and-bull
story about the car breaking down, and he had to take it to a garage and they had the parts all
spread over the garage and therefore he couldn't return to Reno any sooner.
I knew at the time that his statement was untrue, so I then asked him for the seventy-five
dollars for the trip, and he said the customer had lost it gambling. In order to collect this
money it is necessary for me to deduct it from wages which were due him. He then broke
down and said, Well, I guess my story doesn't sound so good' after which he severed
connections with our company.
He will not be employed with our company at any time.
3, 4. The granting or refusal by the board of governors of a hearing de novo lies within the
discretion of the board. Sec. 32, State Bar Act, Comp.Laws, sec. 571. Rule XXVII of the
rules of procedure of the state bar requires that the proceedings before the local committee
shall be simple and informal, but thorough, with the object of ascertaining the truth
concerning the matters under investigation. The affidavit of Griffith, above referred to, relates
to a particular transaction which, the defendant urges, tends to impeach the credibility of
Rogers. The general rule is that such line of impeachment may be presented only by proof of
the general reputation of the witness for truth and veracity, and not by evidence of
particular incidents or transactions.
reputation of the witness for truth and veracity, and not by evidence of particular incidents or
transactions. While the board may not have been bound to follow this rule, it did not abuse its
discretion in refusing to grant a trial de novo on the strength of the said affidavit, nor was
there such abuse in any other matter that we can discern in the record of this proceeding.
5. The third ground for reversal urged by the defendant is that the local administrative
committee abused its discretion by failure to recognize a fundamental constitutional
privilege of the accused to be confronted by the witnesses against him. On this point, it was
argued that the witness Rogers was held in reserve until after the defendant was called and
testified. Is it to be inferred that the defendant would have been in a better position to testify
had he first heard the testimony of Rogers? The right of an accused to be confronted by the
witnesses against him was fully accorded to the defendant. He cross-examined the witness
Rogers and had the opportunity to cross-examine the other witnesses as well as the
opportunity to resume the witness stand in his own behalf after hearing the testimony of
Rogers, had he decided to do so.
The fourth ground for reversal urged for the defendant is that he was denied the
presumption of innocence. It is argued for defendant that, having conceived and put into
operation the entrapment plan and having later brought charges against the defendant upon
the evidence so procured, the local committee thereby placed upon him the burden of proving
his innocence. The people of Nevada, through their legislature, by means of the state bar act,
have charged the organized bar of the state with certain duties of self-government and
self-regulation. With the approval of the supreme court, the bar has the power to formulate
and enforce rules of professional conduct for all members of the bar of the state. Section 34 of
the state bar act contains the following provision:
The board, or any local administrative committee shall, of its own motion and without
the filing or presentation of any complaint, or upon any complaint, if a complaint be filed,
have power to initiate and conduct investigations of all matters, affecting or relating to
the state bar, or its affairs, or the practice of the law, or the discipline of the members of
the state bar, or any other matter within the jurisdiction of the state bar, and in the
conduct of such investigations shall have power to take and hear evidence touching the
matters under investigation."
shall, of its own motion and without the filing or presentation of any complaint, or upon any
complaint, if a complaint be filed, have power to initiate and conduct investigations of all
matters, affecting or relating to the state bar, or its affairs, or the practice of the law, or the
discipline of the members of the state bar, or any other matter within the jurisdiction of the
state bar, and in the conduct of such investigations shall have power to take and hear evidence
touching the matters under investigation. Comp.Laws, sec. 573.
6-8. In the present case, and under the authority of the above provision of the statute, the
local administrative committee undertook the task of initiating and conducting an
investigation of the professional conduct of the defendant. The exercise of this duty did not
disqualify the committee to bring the charge against the defendant and hear the evidence
bearing thereon, since the statute gives the power not only to initiate and conduct the
investigation but also the power to bring the charge and hear the evidence. Under section 35
of the act, Comp.Laws, sec. 574, the rights of the accused, securing to him a fair trial, are set
forth. All of these rights were accorded or made available to the defendant. The presumption
of innocence, in its practical application, is intended to secure to the accused a fair and
impartial trial as well as the benefit of the rule as to the degree of proof required. The
presumption relates primarily to the burden of proof. It has been held by this court that, on
such a hearing, a higher degree of proof is required than is required to determine questions of
fact in the ordinary civil proceeding. Copren v. State Bar, Nev. 183 P.2d 833. While the local
committee and the board of governors are empowered to prepare and forward their findings
and recommendations, the final application of the rule as to the burden of proof, in this
proceeding, rests upon this court. The defendant has not been deprived of the benefit of the
rule which accords to an accused person the presumption of innocence.
For a fifth ground for reversal, the defendant urges that he was denied a fair trial in the fact
that the main accusing witness was specially employed to entrap him and that, as a result of
such employment, doubt is cast upon his credibility. On the argument, the point was urged as
bearing on the weight to be given by this court to the evidence of the witness Rogers.
The sixth and final point presented in the petition for review is that the evidence does not
support the findings of either the local administrative committee or those of the board of
governors. A hearing de novo is not sought on this review. The defendant petitioner requests
this court to reverse the findings, exonerate the defendant and dismiss the proceeding.
9. We are convinced, from the evidence, that the payment of the sum of $25 by the
defendant to Rogers as an alleged discharge of taxicab fare, was intended as and amounted, in
substance, to the remuneration of Rogers for soliciting and obtaining professional
employment for the defendant. This view would hold even though, as testified to by the
defendant, the sum was paid upon a request for taxi fare. No testimony was given by
defendant or his secretary that this item was immediately charged against the client. In
response to the question, Did you expect to be reimbursed by the client?, defendant
answered, I have it charged now. Asked if he did not think the client might question it, he
replied, Suppose she did, I was out $25.00, that is all. This attitude, together with the
discrepancy between what is shown to be a reasonable and customary charge for the taxi
service and the $25 paid, sufficiently shows the intent to remunerate. In his argument before
the local committee (Transcript of argument, page 7) the defendant urged that the taxi drivers
should be punished, saying, There is the root of the evil, there is where the policing should
start and not with the lawyers. On the contrary, the organized bar is concerned with the
ethical attitude and conduct of lawyers. If a payment to a taxi driver amounts to a
remuneration for bringing a client, its unethical character would not be removed by the
fact that the payment was made upon the demand of the taxi driver.
payment to a taxi driver amounts to a remuneration for bringing a client, its unethical
character would not be removed by the fact that the payment was made upon the demand of
the taxi driver.
With regard to the alleged loan of $25 by defendant to Rogers, there are circumstances
which negative the contention that the transaction was, in fact, a loan. The defendant had no
acquaintance with Rogers prior to the first call mentioned in the testimony; he did not know
his name or his place of residence or employment. For the purpose of the entry in his book, he
did not ascertain or direct his secretary to ascertain the name of the taxi driver. Upon his own
statement, he suggested that the transaction be given the nature of a loan. This evidently
would be after a request for, and in lieu of, an open remuneration. Whether the suggestion
was so made to Rogers or the defendant conceived of the loan entry in the book after he had
compensated Rogers and the latter had departed, the transaction amounted to a remuneration
of Rogers. In the former case, the alleged loan would be a subterfuge to cover remuneration.
Rule III, of the rules of professional conduct of the state bar, provides as follows:
A member of the State Bar shall not employ another to solicit or obtain, or remunerate
another for soliciting or obtaining, professional employment for him; nor shall he directly or
indirectly share with an unlicensed person compensation arising out of or incidental to
professional employment.
This rule has its roots in the public policy which would prevent the stirring up of litigation
and encourage disputants to arrive at peaceful settlements. The pressure of the large volume
of divorce cases in Nevada, its lucrative character, the interest of other business enterprises to
promote the influx of divorce seekers, the tendency among some practitioners to undertake
the handling of a large number of cases to the exclusion of other types of litigation, and the
tendency to unethical practices and irregularities which this pressure inducesthese
conditions will confront the organized bar of the State with an ever-present problem.
and irregularities which this pressure inducesthese conditions will confront the organized
bar of the State with an ever-present problem. That problem is illustrated by this case.
We are satisfied that the local administrative committee and the board of governors were
justified, and that this court is now justified, in finding, that in each of the instances
mentioned, the defendant remunerated Peter James Howton Rogers in the sum of $25 for
soliciting and obtaining for the defendant professional employment.
It is ordered that the defendant be suspended from practicing law in all of the courts of this
state for a period of six months from the date of the entry of this order.
Eather, C. J., having been unable to participate, due to illness, the Governor designated the
Honorable Wm. D. Hatton, Judge of the Fifth Judicial District, to act in his place.
____________
64 Nev. 527, 527 (1947) Heinen v. Heinen
RICHARD CARL HEINEN, Appellant, v. FRANCIS
ROWLEY HEINEN, Respondent.
No. 3490
November 25, 1947. 186 P.2d 770.
1. Divorce.
In divorce action where depositions offered by husband to refute testimony of wife and relatives that
he had long been guilty of cruelty by way of a sarcastic ridiculing attitude among friends, relatives, and in
public, were numerous but showed exemplary conduct by him at all times during the entire married life as
observed by friends, the offered depositions were not cumulative or negative in character and were
admissible without limitation to meet the wife's proof.
2. Evidence.
The greater strength of positive over so-called negative testimony is the greater likelihood that the
positive witnesses saw or heard the things which the negative witnesses simply failed to see or hear.
3. Divorce.
In divorce action, where a wife called relatives and read depositions to show numerous occasions of
cruel conduct wherein defendant long had shown an unsympathetic and ridiculing attitude in the presence
of friends and relatives, and defendant denied this and read 13 depositions of close observers of the
parties during their married life, and offered more, to show that the couples' complete circle of associates
refuted the showing of the wife, restriction of the number of defendant's deposition and rejection of
further proof was prejudicial error.
4. Divorce.
In a divorce action, permitting a husband on claim of cruelty to prove by many depositions that
throughout their married life, friends had observed no sarcastic ridiculing attitude toward his wife, was
not inviting confusion with testimony of little value and the trial court could not exclude or limit the
husband's proof.
5. Divorce.
Where, on four of five counts in a divorce action tending to show cruelty, both wife and husband had
offered testimony setting up a substantial conflict and the jury found for the wife on a general verdict,
prejudicial error in excluding evidence on a fifth count required a new trial, since it would be impossible
to determine on which theory the jury had based its verdict, and in such case the two-issue rule applied.
6. Divorce.
In a divorce action, failure of defendant to demand special findings on each of five counts of wife's
complaint on grounds of cruelty did not preclude his taking advantage of prejudicial
error made with respect to one of the counts where the error affected the general
verdict for wife.
of cruelty did not preclude his taking advantage of prejudicial error made with respect to one of the
counts where the error affected the general verdict for wife.
Action by Frances Rowley Heinen against Richard Carl Heinen for divorce. From the
judgment and an order denying his motion for a new trial, defendant appeals. Judgment and
order reversed and remanded.
Morley Griswold and George L. Vargas, both of Reno, for Appellant.
Springmeyer & Thompson, of Reno, for Respondent.
OPINION
The respondent, Frances Rowley Heinen, commenced her action for a divorce from the
appellant, Richard Carl Heinen, on July 11, 1946, upon the grounds of the defendant's
extreme cruelty pleaded in the words of the statute, and for the custody of the minor children
of the parties, two sons of the respective ages of five and three years. Appellant answered,
attacking the plaintiff's claimed residence in the State of Nevada, denied her allegations of
cruelty and prayed that she take nothing by her complaint. He sought on his part no
affirmative relief. The cause was tried to a jury which rendered the following verdict: We *
* * do find for the plaintiff and against the defendant, and do grant a divorce to the plaintiff.
The court thereafter rendered judgment dissolving the marriage. Additional evidence was
adduced before the court without a jury on the issue of the custody and support of the minor
children, and the court rendered its decision awarding such custody to the respondent subject
to right of visitation in the appellant.
The court then made its findings and conclusions and entered its judgment and decree,
wherein it reserved jurisdiction as to custody and support of the children and all matters
concerning property rights. Defendant appealed from the judgment and from the court's
subsequent order denying his motion for new trial.
Appellant recites seventeen distinct specifications of error. Of these, specifications Nos. 1,
2, 4, 5, 6, 7 and 8 have to do with rulings on the admissibility of evidence. Specifications
Nos. 9 to 13 attack the sufficiency of the evidence to sustain the findings with reference to the
plaintiff's residence and the defendant's cruelty. Specifications 14 and 15 allege error in the
court's denial of the appellant's motion for a new trial. Specification 16 attacks the findings
and specification 17 attacks the court's right to reserve jurisdiction over the property rights of
the parties, it being asserted that not only was the issue of property rights not raised but that it
was specifically excluded by the recitals in the pleadings of both parties.
As we are satisfied that the judgment and the order denying appellant's motion for a new
trial must be reversed and a new trial ordered by reason of appellant's specification No. 3, if
will not be necessary to pass upon the other specifications. Specification No. 3 reads as
follows: That the trial court committed error in limiting the number of depositions offered
by defendant on his case in chief and in refusing to admit depositions concerning which an
offer of proof was made.
In order to determine the propriety of the court's order denying appellant's offer of
additional depositions and in order to appraise the effect of such order, an analysis of the case
up to the point of the offer of these depositions is necessary. Plaintiff called as her first
witness Richard Carl Heinen, the defendant, as an adverse witness. He was examined as if
under cross examination, N.C.L. sec. 9420, and the examination comprised almost entirely
his consistent denials of any improper conduct or of any act that could be said to constitute
either physical or mental cruelty. There was next read in evidence the deposition of John
Rowley, a brother of the plaintiff wife, who testified to his presence at numerous small
gatherings, shows, dancing parties, vacations, visits exchanged between the two families,
etc.; that he particularly noticed on numerous occasions that defendant was
unsympathetic, bitterly sarcastic, lacked understanding of his wife, ridiculed her about
the children, her cooking, etc., took a superior attitude and seemed to delight in
emphasizing her mistakes in front of the witness' family or other friends; that he
appeared to be very cold and lacked husbandly affection and understanding; that his
conduct was such as to cause her to become emotionally upset to the point of crying; that
his sarcasm, lack of sympathy and understanding, and his public ridicule of his wife were
sufficiently numerous and constant to become a subject of discussion between the
witness and his wife and the mutual friends of the plaintiff and the defendant.
conduct or of any act that could be said to constitute either physical or mental cruelty. There
was next read in evidence the deposition of John Rowley, a brother of the plaintiff wife, who
testified to his presence at numerous small gatherings, shows, dancing parties, vacations,
visits exchanged between the two families, etc.; that he particularly noticed on numerous
occasions that defendant was unsympathetic, bitterly sarcastic, lacked understanding of his
wife, ridiculed her about the children, her cooking, etc., took a superior attitude and seemed
to delight in emphasizing her mistakes in front of the witness' family or other friends; that he
appeared to be very cold and lacked husbandly affection and understanding; that his conduct
was such as to cause her to become emotionally upset to the point of crying; that his sarcasm,
lack of sympathy and understanding, and his public ridicule of his wife were sufficiently
numerous and constant to become a subject of discussion between the witness and his wife
and the mutual friends of the plaintiff and the defendant. Although a few specific instances
were recited he testified, when asked on direct examination to specify as to dates and places
and persons present and the substance of the words used by the defendant, that the defendant's
conduct was frequent and not limited to any time, place or circumstance, that it happened in
the home of the witness, in the home of the parties and at any other public gathering where
the fancy struck the defendant, but that he observed this attitude manifestly in the presence
of the witness' wife and the witness' mother and the defendant's mother and father and
brothers and sisters and mutual friends. When again asked (by written cross-interrogatory) to
state as nearly as he could recall the place, date and persons present at each or any instance in
which the plaintiff's conduct was thought improper, he stated that the occasions were so
numerous as to be impossible of detailing each one separately as to time, place or person.
Plaintiff then read in evidence the deposition of her sister-in-law, Shirley Rowley, who
testified to weekly visits interchanged for the past four years, and the frequent presence
of both families at social gatherings at the homes of mutual friends and occasional
dinners and theater parties.
sister-in-law, Shirley Rowley, who testified to weekly visits interchanged for the past four
years, and the frequent presence of both families at social gatherings at the homes of mutual
friends and occasional dinners and theater parties. The testimony is general except as to
specifying that on some of the occasions plaintiff's mother, defendant's sister, the latter's
husband and the witness' husband were present, and that some of these occasions were in the
witness' home and some in the home of plaintiff and defendant; that most of the time he
treated her with respect and kindness, but that there were occasions when he was sarcastic
and appeared to be lacking in understanding by making her the butt of witticisms and jokes
and holding her up to ridicule and would make some sarcastic remark or criticism of plaintiff
so that she would become upset and cry. On the whole the testimony of this witness reflected
favorably on the conduct of the defendant. Plaintiff then called her brother, Edward H.
Rowley, Jr., who did not testify to any acts of cruelty, although he saw the parties several
times a year at the home of the witness' mother or the home of the witness' other married
sister or the home of the parties. She then called her mother, Juliette Looney Rowley, who
testified to a few specific instances of objectionable conduct on the part of the defendant. She
also testified to the instances in which she had assisted the defendant financially.
The plaintiff then took the stand herself and testified at length concerning financial matters
from which it appears that the parties were living far beyond the earnings of the defendant
and largely upon the income from some substantial trust estates created by the plaintiff's
father and mother, respectively. She then testified to numerous acts of mental cruelty on the
part of defendant (sarcasm, ridicule, criticism, belittlement, etc.), but also generalized as did
her brother. When asked how he treated her when they were out with friends, she stated that
his treatment of her was so general that she could not recall every incident, and that there
were many instances and times when he was domineering and sarcastic; that it often
happened that he would ridicule any remarks she would make and that she would suffer
it for a time and finally would cry.
not recall every incident, and that there were many instances and times when he was
domineering and sarcastic; that it often happened that he would ridicule any remarks she
would make and that she would suffer it for a time and finally would cry. She also testified to
statements made by him which she interpreted as a threat to kill himself and her and the
children, to one occasion when he seized her arm and one when he seized her by the neck, to
his lack of consideration in their sexual relations and his demands for unreasonably frequent
intercourse, and to his having the children baptized in the Catholic church without consulting
her wishes.
The appellant does not assert on this appeal that the plaintiff herself did not testify to
sufficient acts of cruelty on the part of defendant to support a finding of extreme cruelty on
the part of a jury. Although plaintiff relied upon the one cause of action of extreme cruelty,
the defendant's conduct of which she complains would seem to be along several distinct lines.
These lines would appear to be as follows: (1) The defendant's uniformly unsympathetic,
sarcastic, ridiculing and belittling attitude and remarks made in the presence of others; (2) the
defendant's threats of personal violence to himself and to the plaintiff and to their children;
(3) the defendant's unreasonable sexual demands; (4) the defendant's attitude toward his
financial responsibilities and his financial transactions with the plaintiff and with the
plaintiff's mother, including his attitude to the trust estates of which the plaintiff was
beneficiary, and to the plaintiff's testamentary plans; and (5) his arbitrary actions in having
the children baptized in the Catholic faith without consulting the plaintiff's wishes in the
matter. Some of these charges found some corroboration in the testimony of the members of
plaintiff's immediate family. All were denied by the defendant testifying in his own behalf.
The lines of conduct listed as Nos. 2, 3, 4 and 5 were naturally subject almost entirely to the
statements and denials of the parties to the action, although plaintiff's mother corroborated
to some extent the plaintiff's testimony as to the defendant's threats and his conduct in
connection with the financial affairs of the parties.
the action, although plaintiff's mother corroborated to some extent the plaintiff's testimony as
to the defendant's threats and his conduct in connection with the financial affairs of the
parties. Defendant's treatment of plaintiff in numerous and frequent gatherings over the entire
period of their married life in the presence of mutual friends and relatives constituted a major,
if not the major, cause of complaint.
After testifying in his own behalf defendant read in evidence thirteen depositions. These
deponents included certain relatives of the defendant and friends and neighbors who had been
present at family and friendly gatherings during the entire period of the marital status. After
the thirteenth deposition had been read in evidence, a recess was had and when the court
reconvened, the following took place:
The Court: Mr. Vargas, are these depositions which you are intending to read to the jury
along the same lines as the depositions which you have already offered?
Mr. Vargas: Your Honor, the evidence will show that these people are close associates of
both plaintiff and defendant.
The Court: Is there anything different in the depositions which you expect to read into
evidence from those you have already read into the record?
Mr. Vargas: They are all to the same general effect as those that I have read, but they are
different witnesses and different questions and answers.
The Court: I will have to exercise my discretion and restrict the number of depositions in
this case. The rule of law is well settled that a District Judge may limit the number of
witnesses or the number of depositions. If any of the depositions which you expect to offer
contain anything other than those which you have already offered, you may read them in
evidence.
Mr. Vargas: If I may be heard. Your Honor will recall the deposition of John Rowley, a
witness for the plaintiff, a brother of the plaintiff, to the general effect that Mr.
that Mr. Heinen was critical and sarcastic and that this conduct happened on occasions too
numerous to mention, and the plaintiff has testified that happened right away after the
marriage and, before the marriage, she said Mr. Heinen was complimentary, and immediately
after the marriage he was sarcastic and he criticized her, and that that conduct continued until
the date of the separation and up to February of this year. These depositions are of persons
who lived as neighbors or who were in their home socially, plaintiff and defendant were at the
homes of these witnesses socially and, in meeting that type of testimony, I can only avert it by
the testimony of these witnesses, and because the case is being tried in Reno and not in
Dallas, I can only do that by deposition. In other words, the depositions cover all of the close
acquaintances and intimate friends of the parties during their married life and it is the only
possible way that I have of counteracting that portion of the testimony of the plaintiff and her
witnesses and, for that reason, I am going to request that I be permitted to put in all of these
depositions.
The Court: I do not want to restrict you or Mr. Springmeyer; neither do I wish to be
bothered, or have the jury bothered, with a lot of unnecessary depositions and if they are all
along the same lines as those depositions which you have read, you have already established
sufficient evidence of that character.
Mr. Springmeyer: We have no objection to a reasonable number, as he had a right to
twenty-eight, we could not raise any objection.
Mr. Vargas: She has eighteen depositions and I do not want to take up the time of the
Court or the jury unnecessarily, and I submit the jury can draw its own conclusions as to
which witnesses are telling the truth or untruth after hearing all of the depositions.
The Court: If these depositions have anything different from the depositions already
admitted, they may be read, but if they are along the same lines and they have the same
identical questions and answers, they will not be admitted.
the same identical questions and answers, they will not be admitted.
Mr. Vargas: They do not have the same identical questions and answers.
The Court: They have practically the same questions and answers; that she took a trip,
and that she came back sick, and she did not complain, and Mr. Heinen took care of her, and
so forth.
Mr. Vargas: If the Court please, I could take time to look over the depositions, but I am
going to offer the rest of them in evidence and perhaps it would save time if I made an offer
of proof.
The Court: You may do so.
Counsel for defendant then made an offer of proof, offering the depositions of ten
additional witnesses for the purpose of refuting the testimony of plaintiff and her witnesses
that defendant was critical and sarcastic and * * * uncomplimentary * * * and that these
depositions are depositions of the persons most closely associated with the plaintiff and
defendant during the years of their marriage, and due to the court's ruling restricting the
number of depositions on behalf of the defendant, I have been denied the opportunity of fairly
meeting the issues raised by the plaintiff. Further discussion between court and counsel
indicated that the additional depositions offered were to the same general effect that the
defendant had always treated the plaintiff with kindness, courtesy and affection and would
tend to disprove the testimony of the plaintiff and her witnesses as to the defendant's
criticism, harassment, sarcasm and uncomplimentary remarks. The court rejected the offer of
proof, saying I have told Mr. Vargas if any of the depositions not read contain anything
different from those already admitted, that he may read them, but he has no right to take up
the time of the court and jury by reading his depositions and unnecessarily encumbering the
record.
1. Appellant contends: By limiting depositions, the trial court effectively and
completely prevented the appellant from presenting, arguing to, and impressing upon, the
jury, that they had before them testimony of the entire circle of associates during the
period of the married life of the parties in the action, and that, without exception, such
complete circle of associates denied, refuted and disproved the contentions of the
respondent, her brother and her mother in regard to the matters hereinbefore mentioned.
trial court effectively and completely prevented the appellant from presenting, arguing to, and
impressing upon, the jury, that they had before them testimony of the entire circle of
associates during the period of the married life of the parties in the action, and that, without
exception, such complete circle of associates denied, refuted and disproved the contentions of
the respondent, her brother and her mother in regard to the matters hereinbefore mentioned.
Where appellant was permitted only to present a portion of that circle, he could not urge upon
the jury that from the evidence in the case and from the evidence before them, it had been
established that not a single person, outside of the mother and brother of respondent, had ever
heard or observed any of the things which respondent contended and upon which respondent
relied.
As against this contention, it is urged by respondent that the offered depositions were all
negative in character, that they were merely cumulative in their nature and effect, and that the
matter of limiting the number of depositions was entirely within the discretion of the trial
court. In support of this contention respondent relies strongly upon the case of Schoblom v.
Schoblom, 117 Wash. 67, 200 P. 579, 580, in which the Washington court in a somewhat
similar case upheld the right of the trial court in the exercise of its discretion to limit the
number of witnesses that may be called upon a particular issue, but that this discretion does
not clothe the court with arbitrary power to deny a litigant the right to offer testimony which
reasonably tends to support his theory of the case or disprove the theory of his adversary.
The court held that there was no abuse of the trial court's discretion as the testimony offered
would have been negative in character, and was not testimony which would have directly
refuted the charges made in the complaint. The court further held that even had the
testimony of the witnesses been heard, the result of the trial could not have been different.
Respondent also cites numerous cases in which the trial court was upheld in limiting the
number of expert witnesses, character witnesses, witnesses on the question of value, etc.
cites numerous cases in which the trial court was upheld in limiting the number of expert
witnesses, character witnesses, witnesses on the question of value, etc. These are well known
examples of cases in which trial courts may limit the number of witnesses, sometimes by
express statutory authority.
2, 3. So far as the court's remarks in the Schoblom case might be said by analogy to
characterize the excluded testimony in the present case as negative in character, we are unable
to give the same our approval. It is inconceivable that conduct such as that ascribed to the
defendant in the presence of the relatives, friends and parties at social gatherings over a
period of five yearsunremitting, consistent, coldly calculated, bringing his wife to tears on
numerous occasionsto such extent as to be the subject of comment among his friends,
could go so unnoticed in the gatherings described as to characterize the offered testimony of
defendant's witnesses to the effect that such things did not take place as negative testimony.
One theory of the greater strength of positive testimony over so-called negative testimony is
the greater likelihood that the positive witnesses saw or heard the things which the
negative witnesses simply failed to see or hear. The reason for such a rule entirely fails in
the light of the circumstances of the present case. The testimony rejected has all of the
characteristics of positive testimony. It is indeed negative as opposed to the affirmative
testimony of the plaintiff and her witnesses, but as to the positive testimony as to certain
occurrences, the rejected testimony was just as positive to the effect that they did not occur.
See 20 Am.Jur. 1038, nn. 12 and 13, id. 1040, id. 1041. Bearing in mind the discretion
accorded to trial courts in limiting the number of expert witnesses, character witnesses and
witnesses to analogous subjects and particularly witnesses to collateral facts or issues, we
may not lose sight of the fact that the defendant's alleged treatment of his wife in public was
one of the main issues, if not the main issue, tried to the jury.
main issues, if not the main issue, tried to the jury. In view of the testimony adduced by the
plaintiff, the defendant should have been permitted completely to negative such testimony by
the testimony of all of the persons comprising the circle of relatives and friends of the parties
during the period of some five years when these events are alleged to have occurred. We can
well understand how a harassed and over-burdened trial court with a crowded calendar should
feel disposed to limit the number of depositions appearing at first blush to be merely
cumulative on a collateral issue with simply negative force, but the exclusion of the evidence
was in our opinion distinctly prejudicial to the defendant's case.
4. Respondent's reference to the scholarly discussion of the subject by Professor Wigmore
(Wigmore on Evidence, 3d Ed. secs. 1907, 1908) in no way alters the conclusion to which we
have come. The well recognized exercise of the trial court's jurisdiction in limiting the
number of expert witnesses and character witnesses is referred to. The noted author
recognizes, however, that it is not possible to define any other specific classes of witnesses or
of facts for which a rule can be laid down, and falls back upon the circumstances of the case
as justifying the limiting of testimony. If the reason for resting a wide discretion in the trial
court is, as recited by Professor Wigmore, because at times the disadvantage of confusion
preponderates over the testimonial value, little or none, of the additional witnesses, such
reason certainly does not apply in the present case. No confusion would have been entailed
and the testimonial value might in the minds of the jury have been considerable. This is
particularly true in view of the instruction properly given the jury: As to any offer of
evidence that has been rejected by the court, you, of course, must not consider the same; as to
any question to which an objection was sustained, you must not conjecture as to what the
answer might have been or as to the reason for the objection * * * you should not consider
any evidence offered by either side to which an objection was made and sustained * * *."
consider any evidence offered by either side to which an objection was made and sustained *
* *.
Although unnecessary to a decision upon the point discussed, the situation is aggravated
by the fact that the plaintiff dismissed her pending action in the State of Texas and the same
day left for Nevada and in due time commenced her action for divorce in the courts of this
state. This she undoubtedly had a legal right to do in the absence of facts from which a
contrary conclusion could be drawn. However, the effect of this course of action upon the
defendant was clearly to increase the difficulty of his defense. He was compelled to submit to
the district court in Nevada the testimony of some twenty-three witnesses to facts occurring in
the State of Texas, and naturally was compelled to take the testimony of these witnesses by
deposition. The aggravation is further increased by the very evident fact that the plaintiff is a
woman of considerable means while the defendant's means at the time of the trial consisted in
the ownership of some seven or eight hundred dollars in cash.
5. Having found error in the exclusion of the offered depositions, we are confronted with
another serious question. Although it is claimed by appellant that the exclusion of the
additional depositions also deprived him of the right to claim that the testimony of the
plaintiff and her witnesses was false and should be entirely rejected by the jury (Zelavin v.
Tonopah Belmont Development Co., 39 Nev. 1, 11, 149 P. 188), we are satisfied that upon
the issue or count of the defendant's threats of bodily injury, the count of his unreasonable
sexual demands, the count growing out of his actions concerning the finances of the parties
and the count going to his failure to consult his wife's wishes before having the children
baptized in the Catholic church went to the jury without error; that there was a substantial
conflict of the evidence on each of these four counts and that this court would not have been
disposed to interfere with a special finding for the plaintiff {or for the defendant) on any
one of these four countsany more than it would have been inclined to interfere with a
special finding of the jury for the plaintiff {or for the defendant) on the count as to the
defendant's treatment of her in public.
special finding for the plaintiff (or for the defendant) on any one of these four countsany
more than it would have been inclined to interfere with a special finding of the jury for the
plaintiff (or for the defendant) on the count as to the defendant's treatment of her in public.
The question that presents itself then is whether the general verdict can be sustained in view
of the error in excluding the depositions on the count last referred to. This involves a
consideration of what has come to be known as the two issue rule. The extent of conflict in
authorities upon the question is indicated by the following statements by the authors of the
article on Appeal and Error, 3 Am.Jur. 564, sec. 1009:
There is a direct conflict in the different jurisdictions upon the question whether error
affecting only one of two or more issues is prejudicial. According to one line of authorities, a
substantial error affecting any one of such issues or theories in a case in which a general
verdict has been rendered will be regarded as prejudicial unless the verdict is so clearly
supported by the evidence upon an issue or theory as to which no error occurred that the trial
court would have been justified in directing a similar verdict thereon. At least this is true if it
is impossible to determine upon which of the issues the verdict was founded. A contrary rule
is adhered to in other states. The latter rule is especially applicable where one of two
determinative issues in the case is correctly tried. In such a case the trial of one without error
obviates the necessity of reversing for error in the other.
And again at sec. 1109 id.:
As previously pointed out, the cases are conflicting as to the prejudicial character of error
which leaves unaffected at least one determinative issue in the case. This conflict exists, also,
on the question of instructions. One line of authorities holds that such error is prejudicial, at
least if it is impossible to determine upon which of two theories the jury based its verdict.
Another line of authorities hold to the contrary.
of authorities hold to the contrary. The latter rule has, however, some limitations.
Respondent contends that as there was substantial evidence upon the count of defendant's
threats and upon the count of defendant's unreasonable sexual demands and upon the count of
the defendant's attitude and actions in connection with the finances of the parties and in the
count of his having his children baptized in the Catholic faith without consulting the wishes
of his Protestant wife, and which counts were tried without error, it is immaterial that there
may have been error in connection with the count of defendant's treatment of his wife in
public. That there is respectable authority to support this view cannot be gainsaid. Reference
is made, for example, to Leoni v. Delaney, Cal.App., 179 P.2d 820, 823, decided in May of
this year, in which the court said, citing four earlier California cases as authority: If one
count is not affected by error and there is substantial evidence to support a verdict with
respect to it, it is immaterial that there may have been errors committed in connection with
another count or that there is not sufficient evidence to sustain a verdict as to such other
count. Reliance is also placed on Brignoli v. Seaboard Transp. Co., Cal.App., 171 P.2d 518,
and upon the other decisions cited in the Leoni and Brignoli cases. While some of these cases
are distinguishable, they undoubtedly follow the rule that a general verdict on two or more
counts will be sustained although error was committed in the trial of one count. Mundon v.
Greenameyer, 44 S.D. 440, 184 N.W. 257, as well as several Ohio, Indiana, Illinois, Alabama
and Massachusetts cases likewise support this rule, even though many of the cases are
distinguishable. Ohio appears to have been the first or one of the first states to invoke the two
issue rule, but the later Ohio cases have clearly limited its application. See Taylor v. City of
Cincinnati, 143 Ohio St. 426, 155 A.L.R. 44, 55 N.E.2d 724, 726, in which the court refused
to apply the two issue rule in a case where the defendant claimed that sole negligence on
the part of a third person was the proximate cause of plaintiff's injuries.
defendant claimed that sole negligence on the part of a third person was the proximate cause
of plaintiff's injuries. The court said: A claim on the part of a defendant that plaintiff's
injuries were proximately caused by the negligent acts of a person other than the defendant is
but another form of a general denial. It does not create a separate issue and does not furnish
any basis for the application of the two-issue rule. And in Cincinnati State Railway Co. v.
Keehan, 45 Ohio App. 75, 186 N.E. 812, the court held the rule not applicable when the
judgment was for the plaintiff, but only where the judgment was for the defendant. See, also,
Bush v. Harvey Transfer Co., 146 Ohio St. 657, 67 N.E.2d 851. The cases hereinafter cited
uphold the contrary rule, namely, that where two or more material issues are tried and
submitted to the jury and the verdict is a general one, it cannot be upheld if there was error as
to any one of the two or more issues. The reasoning of the cases supporting this rule appears
to us to be the better logic, and this is well illustrated by the circumstances of the present
case.
On the count of the defendant's threats of personal violence to himself and to his wife and
to their children the jury might well have come to the conclusion that the threats were not
serious, that they were never considered such by the plaintiff, that they were only the
plaintiff's own construction of language used by the defendant and that plaintiff had frankly
admitted that she was not fearful that the defendant would carry out his threats. On the count
of the defendant's unreasonable sexual demands, there was a distinct conflict in the evidence
which naturally consisted entirely in the testimony of the two interested parties. The jury
could well have come to the conclusion that the defendant's demands for sexual intercourse
were entirely normal and reasonable. On the count of the defendant's cruelty by reason of the
financial situation the jury would have been justified in concluding that the defendant was not
at fault in any of these matters. On the count of his having the children baptized in the
Catholic faith without first consulting his wife, the jury could well have found that the
matter was one of entire indifference to her and did not constitute cruelty.
children baptized in the Catholic faith without first consulting his wife, the jury could well
have found that the matter was one of entire indifference to her and did not constitute cruelty.
On the four counts discussed there was a substantial conflict in the evidence and this court
would not have been disposed to interfere with the jury's findings for either party on these
four counts, could we know definitely that the jury so found. It is entirely possible, however,
that the jury based its verdict entirely upon the defendant's course of treatment of the plaintiff
in the presence of their entire circle of family, friends and acquaintances, and that they treated
the other four issues discussed above as not of great importance.
6. Our conclusion finds further support in the fact that the case involves but one cause of
action, namely, the defendant's cruelty to the plaintiff. However, whether we consider the rule
with reference to separate causes of action or with reference to separate issues or with
reference to separate counts, the reason for the rule finds application in the present case. Nor
may respondent find relief in the fact that appellant did not request special findings on these
respective counts. It may rather be said that in the avoidance of possible error in the trial of
any of these counts, the respondent should in an exercise of caution have been the one to
demand special findings. As said in Sedgwick v. Sedgwick, 50 Colo. 164, 114 P. 488, 489,
490, Ann.Cas.1912C, 653, counsel in a divorce action upon a number of statutory grounds,
before the case goes to the jury, should dismiss on all save such as they desire a verdict. They
are taking an unnecessary risk upon a general verdict, where different causes of action are
submitted to the jury. While that case involved more than one cause of action, the
application of its reasoning to the present case is clear. Be that as it may, the error in
excluding the proffered depositions cannot be considered as harmless when, as is the case
here, it is impossible to determine on which theory the jury based its verdict.
Stewart v. Newberry, 220 N.Y. 379, 115 N.E. 984, 2 A.L.R. 519; Crawford v. United States,
212 U.S. 183, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392; Mathews v. Livingston, 86
Conn. 263, 85 A. 529, Ann. Cas.1914A, 195; Gambrell v. State, 92 Miss. 728, 46 So. 138, 17
L.R.A.,N.S., 291, 131 Am.St. Rep. 549, 16 Ann.Cas. 147; State of Maryland for the Use of
Markley v. Baldwin, 112 U.S. 490, 5 S.Ct. 278, 28 L.Ed. 822; Tisdale v. Panhandle & S. F.
Ry. Co., Tex. Com.App., 228 S.W. 133, 16 A.L.R. 1264; Noel Construction Co. v. Armored
Concrete Construction Co., 120 Md. 237, 87 A. 1049, Ann.Cas. 1915A, 1032; Funk v. St.
Paul City Ry. Co., 61 Minn. 435, 63 N.W. 1099, 29 L.R.A. 208, 52 Am.St.Rep. 608; Norfolk
& W. Ry. Co. v. Mace, 151 Va. 458, 145 S.E. 362; Southern Casualty Co. v. Hughes, 33
Ariz. 206, 263 P. 584; Goldberg v. Globe & Republic Ins. Co. of America, 193 Minn. 600,
259 N.W. 402; Christian v. Boston & M. R. R., 2 Cir., 109 F.2d 103.
It is only fair to the trial court to say that the record does not disclose that the limitations
recognized by the text writers and the decisions on the jurisdiction of trial courts to limit the
number of witnesses were presented when the situation arose. In like fairness to counsel for
respondent it should be noted that the exclusion of the depositions was not ordered by reason
of any objection or motion on their part. The relief afforded by the last session of the
legislature in providing another trial judge for the Second judicial district has, we are advised,
not yet become effective, and so long as crowded court calendars result in the necessity for
hasty trials before overworked judges it is inevitable that error will occur. All points urged by
respondent in support of the general verdict and the judgment entered thereon and the court's
order denying appellants motion for a new trial have been duly considered, but we are
compelled to hold them to be without merit.
The judgment and the order denying a new trial are hereby reversed with costs and the case
is remanded for a new trial.
____________
64 Nev. 545, 545 (1947) Lemel v. Smith
SAM LEMEL, Appellant, v. HAROLD S. SMITH and RAYMOND A. SMITH, Partners,
Doing Business Under the Firm Name and Style of Harold's Club, Et Al.
No. 3485
December 3, 1947. 187 P.2d 169.
If a judgment is right on any theory it will not be reversed though the trial judge rendered it on an
erroneous theory.
Findings of fact by trial judge will not be disturbed on appeal if supported by substantial evidence.
3. False Imprisonment.
In action for false arrest and false imprisonment against operators of gambling club and police
officers, evidence that plaintiff loudly and bitterly cursed his luck, criticized the dealer and other players
at the table sustained finding that plaintiff was interfering with business of club and creating a disturbance
and justified his removal from premises.
Owner of premises, through himself or agent, has right to eject a trespasser.
Where plaintiff's conduct was such as to justify his removal from premises and he refused to leave
peaceably, owner of premises was justified in calling police officers and requesting them to remove
plaintiff and the request to remove plaintiff from premises was not a request for an arrest and removal by
officers did not constitute an arrest.
Where patron's conduct was such as to justify his removal from club and after his removal he
expressed purpose of returning to the club to finish argument, officers were justified in arresting the
patron to prevent threatened serious breach of the peace.
7. Evidence.
The theory of taking judicial notice of a fact, in a case where taking of judicial notice is warranted,
is that it is a judicial shortcut, a doing away, in case of evidence, with the formal necessity for evidence
because there is no real necessity for it, since what is known need not be proved.
8. Evidence.
Judicial notice takes the place of proof and is of equal force.
9. Evidence.
The fact that magistrate's courts, unless provision is made for a night court, are not ordinarily open
between 5 o'clock in the evening and 10 o'clock the following morning is within realm of
judicial knowledge.
64 Nev. 545, 546 (1947) Lemel v. Smith
the evening and 10 o'clock the following morning is within realm of judicial knowledge.
Where plaintiff was arrested at 5 p. m. and confined in city jail until between hours of 10 and 11 of
following morning, determination that the delay of approximately 18 hours in taking plaintiff before
magistrate was not so unreasonable as to subject officers to action for unlawful arrest and imprisonment
was proper, especially in view of fact that plaintiff did not demand an attorney or to be taken before a
magistrate or to be admitted to bail. Comp.Laws, secs. 8453, 10764.
Where officers, who were justified in making arrest, were sought to be held liable for false arrest and
imprisonment, because of delay in taking plaintiff before magistrate after arrest, the responsibility of the
arresting officers ceased when they delivered the prisoner to other officers whose duty it was to take
plaintiff before magistrate.
Horsey, J., dissenting.
Action for damages for false arrest and false imprisonment by Sam Lemel against Harold
S. Smith and Raymond A. Smith partners doing business under the firm name and style of
Harold's Club and others. From a judgment for defendants and from an order denying a
new trial, plaintiff appeals. Affirmed.
Morgan, Brown & Wells, of Reno, for Appellant.
M. A. Diskin and George Lohse, both of Reno, for Respondents.
OPINION
Plaintiff Sam Lemel sued the defendants for damages for false arrest and false
imprisonment, joining as such defendants Harold S. and Raymond A. Smith, copartners
operating a gambling casino under the name of Harold's Club, Jack Filtzer, their "floor man"
and Charles Nichols and George Stone, police officers of the city of Reno.
64 Nev. 545, 547 (1947) Lemel v. Smith
Club, Jack Filtzer, their floor man and Charles Nichols and George Stone, police officers of
the city of Reno. The case was tried to the court without a jury, and the court rendered its
decision dismissing the defendants with their costs and thereafter making and filing its
findings of fact, conclusions of law and judgment. From this judgment and from the order
denying plaintiff's motion for new trial, plaintiff has appealed. The Smiths and Filtzer on the
one hand, and the two officers on the other, filed separate answers and were represented by
separate counsel, and it will be seen that somewhat different issues are made as between
plaintiff and these two respective groups of defendants. Plaintiff alleged in his complaint that
while he was playing dice at Harold's Club at Reno, Nevada, on April 16, 1946, he had
occasion to speak to Filtzer concerning the rules of the game and told Filtzer he wanted to
talk to Harold S. Smith about such rules, and that while talking to Smith the two police
officers, at the order and direction of Smith and Filtzer, by force and violence arrested
plaintiff and incarcerated him in the city jail at Reno and detained him in a vile and loathsome
place, with drunken, diseased and unclean people, all with oppression, fraud and malice and
without probable or any cause and held him against his will for 18 hours during which time
they failed and refused to take him before a magistrate or admit him to bail. He alleged that
he suffered great mental anguish, was mortified, humiliated and shamed, suffered infectious
bites and stings of body lice and other bugs from which a skin disease and eruption were
communicated to him, and that he was kept from his business and lawful pursuits to his
damage in the sum of $25,000. The Smiths and Filtzer answered, admitting plaintiff's
presence in the club, his playing dice and his request to talk to Harold S. Smith, but denying
the remaining allegations. As a separate defense they alleged in some detail that plaintiff had
been acting in a loud and boisterous manner, that he had cursed and sworn and criticized and
found fault with the manner in which the dealer was carrying on the game, etc., which
culminated in the dealer's request to him to leave the game; that he demanded of Filtzer
that he be permitted to talk to Smith, continued to argue in a loud and boisterous manner
and that Filtzer requested the police officers "to take plaintiff out of the premises," which
they did.
64 Nev. 545, 548 (1947) Lemel v. Smith
fault with the manner in which the dealer was carrying on the game, etc., which culminated in
the dealer's request to him to leave the game; that he demanded of Filtzer that he be permitted
to talk to Smith, continued to argue in a loud and boisterous manner and that Filtzer requested
the police officers to take plaintiff out of the premises, which they did.
As paragraph II of such separate defense, both groups of defendants allege on information
and belief that on the following day, April 17, 1946, a criminal complaint was filed against
plaintiff in the municipal court of Reno, Washoe County, Nevada, charging him with being a
disorderly person in violation of a city ordinance, and that he had on said date entered a plea
of guilty to said complaint. The answer of the police officers did not recite the actions of
Lemel in Harold's Club but recited that they had received a call directing them to go to
Harold's Club, found Lemel still in an altercation, swearing and arguing heatedly, asked him
to leave the place voluntarily and that they escorted him from the place; that he then stated
that he was determined to go back and settle his differences whereupon they placed him in a
police car, took him to the station, booked him and turned him over to the desk-sergeant
as required under the established rules and regulations of the police department of the City
of Reno. They then, as did the other defendants, recite the fact that he pleaded guilty the next
day to the charge of being a disorderly person in violation of the city ordinance. Plaintiff
replied to both answers, putting all of the material allegations in issue.
The court's decision deals largely with the facts and held that plaintiff's actions disrupted
the business of Harold's Club, and was an interference with its business. With reference to the
fact that he was brought to the city jail about 5 o'clock in the evening and that no charge was
placed against him until between the hours of 10 and 11 of the following morning, the learned
trial judge said: "The time in which or for which he was incarcerated, approximately
eighteen hoursI think we can take judicial notice of the fact that that began about five
o'clock in the afternoon, approximately, and continued until regular business matters
between ten and eleven o'clock the following morning.
64 Nev. 545, 549 (1947) Lemel v. Smith
judge said: The time in which or for which he was incarcerated, approximately eighteen
hoursI think we can take judicial notice of the fact that that began about five o'clock in the
afternoon, approximately, and continued until regular business matters between ten and
eleven o'clock the following morning. And as I understand then, this complainant didn't ask
the police department for an attorney. He didn't ask them for bail, but he himself said that he
wanted them to call his wife so she would know what had happened to him * * * taking into
consideration the time during which this delay is charged as an element of recovery for
damages, this was a time when it was not ordinarily convenient for particular or special
attention to this particular prisoner at that time. In its formal findings the trial court found in
part as follows:
IV. That defendants, Charles Nichols and George Stone are, and during all times
mentioned in said complaint were and now are police officers of the City of Reno, Washoe
County, State of Nevada.
V. That on the 16th day of April, 1946, plaintiff was a patron of and in the gambling
premises known as Harold's Club operated by Harold S. Smith and Raymond A. Smith in
Reno, Washoe County, State of Nevada, and plaintiff with divers and sundry individuals,
including women, was engaged in playing a gambling game known as craps or dice. That
several times when the plaintiff threw the dice the dealer caught them with his stick and
shoved them back to plaintiff because plaintiff was not shooting them so that they would
bounce against the end of the table. That each time it became plaintiff's turn to throw the dice
he demanded a change of dice from the dealer. That plaintiff, while engaged in said game
criticized and found fault with the manner in which the dealer was carrying on said game, and
when plaintiff lost a bet, he cursed and swore in a loud and abusive manner. That on
numerous occasions the dealer in said game requested the plaintiff to stop swearing or
else plaintiff would have to leave, but plaintiff continued to swear and use abusive
language and in a loud tone of voice to and toward the dealer, whereupon plaintiff was
requested to and did cease playing the game and left the table.
64 Nev. 545, 550 (1947) Lemel v. Smith
the dealer in said game requested the plaintiff to stop swearing or else plaintiff would have to
leave, but plaintiff continued to swear and use abusive language and in a loud tone of voice to
and toward the dealer, whereupon plaintiff was requested to and did cease playing the game
and left the table. That while engaged in playing the game of dice, plaintiff's conduct was
such as to cause one of the woman players to leave the table and was an interference with and
disrupted the business of Harold's Club, and disturbed the peace of said Club.
That because of the conduct of the plaintiff, the police were called and when defendants,
George Stone and Charles Nichols, police officers, entered Harold's Club, they heard plaintiff
state in a loud tone you can't run this God-damn game this way,' clearly disclosing that
plaintiff was still dissatisfied with the game, and when the said defendants, police officers,
spoke to plaintiff about coming with them, plaintiff said the game was unfair; it was not
straight; and was not on the level, and that he knew the law; thereby imputing publicly that it
was a crooked game, prohibited by law. That plaintiff during the course of the conversation
and in the presence of defendants, police officers Stone and Nichols, told said police officers
that he would not go out voluntarily;
That if he went out of the Club, the police officers would have to take him, which they
did. That at the time defendants, Nichols and Stone, police officers, were at and in Harold's
Club, the plaintiff by his conduct was then and there violating the law, and his violation of the
law was in the presence of the said officers, Stone and Nichols, which justified them in
arresting him. That the said defendants, police officers Stone and Nichols, informed the
plaintiff that if he refused to leave Harold's Club voluntarily they would be required to take
him by force. That while the said police officers, Stone and Nichols, escorted plaintiff from
Harold's Club, plaintiff said to them he was determined to go back and settle his differences
with Harold's Club.
64 Nev. 545, 551 (1947) Lemel v. Smith
his differences with Harold's Club. That the conduct of plaintiff at Harold's Club as disclosed
by the testimony in this case, prior to his arrest by the defendants, police officers, and the
statements of the plaintiff to the police officers as they were taking him from Harold's Club,
made it plain to the Court that if the plaintiff had been released by the police officers, a
serious breach of the peace might have occurred if plaintiff had been permitted to return to
Harold's Club, and the Court feels that it is provident that defendants, police officers, did not
allow plaintiff, for his own good, to return to Harold's Club.
That plaintiff was thereafter confined in the City jail at Reno, Nevada, from 5:00 o'clock
P. M. until between the hours of 10:00 and 11:00 A. M. of the following day, at which time a
regular session of the Municipal Court was held. That plaintiff at no time requested that he be
admitted to bail, or be brought before a Magistrate, nor did he request the services of an
attorney.
Taking into consideration the time of day plaintiff was arrested, and the unavailability at
that time of the proper officers of the City of Reno for plaintiff's Arraignment, I find from
these and other facts established by the testimony that no undue delay occurred in bringing
plaintiff before the Municipal Judge of the City of Reno for arraignment.
VI. That thereafter, and on the 17th day of April, 1946, a criminal complaint was filed
before the Municipal Court of the City of Reno, County of Washoe, State of Nevada,
charging plaintiff with disorderly conduct and when arraigned before the Municipal Judge on
said charge, plaintiff then and there entered a plea of guilty, and a judgment of conviction
upon said plea was then entered by the Judge of the Municipal Court, and plaintiff was
thereupon sentenced to imprisonment in the City jail for a period of thirty days, said sentence
being suspended until 4:00 o'clock in the afternoon of April 17, 1946.
64 Nev. 545, 552 (1947) Lemel v. Smith
That at no time did Harold S. Smith, Raymond A. Smith or Jack Filtzer request the
officers to arrest plaintiff, but they motioned to the officers to take plaintiff out of Harold's
Club.
That the game of dice at which plaintiff was playing was carried on and conducted in a
legal and lawful manner.
1. It will be noted that while the findings and conclusions of the court are to the effect that
plaintiff's actions at Harold's Club in the presence of the officers justified them in arresting
him and that his arrest was justified in that he was then and there disturbing the peace and
was guilty of disorderly conduct in their presence, the court did not expressly find that an
arrest was made within the club. Lest this be considered mere quibbling, we hasten to state
that it would make no difference if the court's language should be construed as a finding that
the removal of plaintiff from the premises was an arrest. In this and with regard to other
criticisms made by appellant of the court's decision and findings, we have in mind the
recognition by this court in Goldsworthy v. Johnson, 45 Nev. 355, 204 P. 505, of the well
recognized rule that if the judgment is right on any theory it will not be reversed though the
trial judge rendered it on an erroneous theory. We need not go so far in the present case, but
may simply note that although some inaccuracies with reference to the facts occur both in the
decision and in the findings, we do not find the same seriouscertainly not serious enough to
warrant a reversal.
2, 3. As we view the situation in the light of the facts found by the court and which we
think find substantial support in the evidence, the events of the evening comprised two
episodes. The first episode was concluded when the officers removed appellant from Harold's
Club. Appellant contends, and in this our brother Horsey agrees, that the behavior of
appellant in Harold's Club was not such as to justify the trial judge in concluding as a matter
of law that such conduct was objectionable or created a disturbance or justified his arrest
or justified his removal.
64 Nev. 545, 553 (1947) Lemel v. Smith
as a matter of law that such conduct was objectionable or created a disturbance or justified his
arrest or justified his removal. Appellant, while frankly conceding the rule that findings of
fact by the trial judge will not be disturbed by this court if finding any substantial support in
the evidence, none the less presents this entire situation as a factual one. We see it as a factual
one. Appellant's actions in Harold's Club and any provocation of or justification for such
actions could without doubt have been submitted for special findings if the case had been
tried to a jury. No purpose would be served in quoting the language used by appellant at
Harold's Club. He loudly and bitterly cursed his luck, criticized the dealer and the other
players at the table. He was, under the court's findings, generally obnoxious, and continued
his attitude with Filtzer, the floor man, and Harold S. Smith, one of the proprietors. His
language, coupled with his loud and boisterous demeanor, his criticism of other players at the
game and other incidents furnish ample support for the court's finding that he was interfering
with the business of the club and creating a disturbance. The exact line between a conclusion
of law and the finding of an ultimate fact is often difficult to define, but we have no great
hesitancy in determining that the court's finding above referred to was the finding of an
ultimate fact and that it finds substantial support in the evidence and that it is not the province
of this court to interfere with itwhatever our own view might have been had we been the
triers of the facts.
4. Respondent Filtzer called the officers and when they arrived, said to them, Please take
this man out. His employer, Harold S. Smith, was with him at the time and made no
comment. Appellant first indicated that he would not leave voluntarily, but later consented to
go without the application of force. The officers accompanied him to the door. In the course
of the oral argument to this court, counsel for appellant was asked, Is it your contention that
when Filtzer said to the officers 'Please take this man out' this was a request for his
arrest?"
64 Nev. 545, 554 (1947) Lemel v. Smith
Please take this man out' this was a request for his arrest? Counsel answered in the
affirmative. Yet we find in the appellant's brief: The respondents, Smith and Filtzer, made
the officers their agent for the purpose of ejecting a customer in their establishment. Up to
this point they had not themselves arrested the appellant for disturbing the peace nor had they
ejected him. They just instructed the officers to take him out * * * they had a right to eject
appellant and to use such force as might be reasonable if he were not complying with their
rules. This right could have been exercised by Smith or Filtzer or both of them. But this right
does not extend to strangers or police officers unless the disturbance is created in the presence
of the officers. This right of an owner, through himself or an agent, to eject a trespasser is of
course well recognized. 4 Am.Jur. 169, secs. 77 and 78. Further appellant says in his brief:
In law, the officers were acting as agents of Harold S. Smith and Jack Filtzer and not in their
capacity as police officers. In doing what? Making an arrest, no, but in ejecting a trespasser
on the premises.
We are relieved, by reason of the foregoing statements by appellant, from entering into a
discussion of the two conceptions of an arrestthe one being any slight interference with any
freedom of movement and the other being an arrest with a view to incarceration and criminal
prosecution. To say that the words Please take this man out meant that the officers should
arrest him, take him to jail and lock him up to the end that Smith or Filtzer might swear to a
complaint against him and prosecute him in the criminal courts is stretching the words far
beyond their simple and very evident meaning.
5. If then the owners were justified in removing plaintiff from the premises and if he
refused to leave peaceably, were such owners then relegated to one of two alternatives (1)
either themselves to remove him forcibly or (2) to seek out a magistrate and swear to a
complaint and have a warrant issued for his arrest? Or was there not open to them a third
course, a course that most prudent men would pursueto call an officer and request him
to remove the obstreperous offender?
64 Nev. 545, 555 (1947) Lemel v. Smith
there not open to them a third course, a course that most prudent men would pursueto call
an officer and request him to remove the obstreperous offender? This the respondents, Harold
S. Smith and Filtzer, did, and although the evidence is conflicting as to just what occurred,
the trial court was evidently governed by the testimony of Filtzer and Smith, corroborated by
the officers, that Filtzer said, Please take this man out. It also finds further support in the
report of the assistant chief of police which was introduced in evidence by the plaintiff. It
reads: Received call to Harold's Club. Subject was arguing with Bouncer and Harold Smith
when we arrived. They stated that they had requested Subject to leave, but he refused. They
requested us to take Subject out, which we did. This proof, introduced by appellant himself,
is quite at variance with his theory of his cause of action as pleaded in his complaint, namely,
that Smith and Filtzer ordered and directed the police officers to place plaintiff under arrest.
Our conclusion is that up to the removal of the appellant from the premises no arrest had been
made and no request for an arrest had been made by either Smith or Filtzer.
In the case of Frickstad v. Medcraft, 100 Cal.App. 188, 279 P. 840, 842, plaintiff sued for
false arrest and appealed from an adverse judgment. Plaintiff was 79 years of age, suffering
from a nervous affliction and infirm and of quarrelsome disposition. He called upon his
dentist who made some attempt to adjust the plaintiff's artificial teeth and then stated that he
could not do anything more without additional charge. Plaintiff became angry and struck at
the dentist with his cane. The latter, in order to protect himself, held plaintiff by the wrists
and asked the nurse to call a police officer to take the plaintiff away. No charge was filed.
The court held that the lower court's finding that defendant did not request plaintiff's arrest
was sustained by the testimony, and said:
In this case, the only evidence as to what occurred when the policeman arrived appears
in the testimony of the defendant, which has already been related.
64 Nev. 545, 556 (1947) Lemel v. Smith
when the policeman arrived appears in the testimony of the defendant, which has already
been related. The findings of the court have also been heretofore stated in full. These findings
are supported by the evidence, which does not justify a conclusion that the defendant advised
or encouraged the subsequent imprisonment of the plaintiff. The language of the defendant
imports a desire to have the plaintiff removed from the scene of the difficulty, rather than to
have him imprisoned. * * * Having performed that duty by promptly having an officer
summoned, and by delivering the plaintiff to such officer, his responsibility ceased.
The defendant's authority and control over the plaintiff ended upon the delivery of the
plaintiff to the officer, who thereupon assumed responsibility, and it does not appear that the
defendant did anything contrary to the authority conferred upon him by section 847 of the
Penal Code. Gisske v. Sanders, 9 Cal.App. 13, 98 P. 43.
Appellant attempts to distinguish this case upon the ground that the delivery of the
plaintiff by the defendant to the officer was authorized by special statute in California, and by
the further assertion that defendant had already arrested plaintiff by seizing him by the wrists
and holding him until the arrival of the officer. However, the case is directly in point in the
finding that the defendant's request to the officer to remove the man was not a request for his
arrest.
With reference to the defendant's request to the officer, I wish you would take him away,
the California court said: * * * The defendant said nothing about arresting the plaintiff * * *
the evidence * * * does not justify a conclusion that the defendant advised or encouraged the
subsequent imprisonment of the plaintiff. The language of the defendant imports a desire to
have the plaintiff removed from the scene of the difficulty, rather than to have him
imprisoned * * * the fact that a complaint was not filed thereafter does not render the
defendant a trespasser, in the absence of an affirmative showing that the defendant actually
encouraged the officer to imprison the plaintiff.
64 Nev. 545, 557 (1947) Lemel v. Smith
encouraged the officer to imprison the plaintiff. No element of malice or abuse of his
authority on the part of defendant, up to the time when the policeman took the plaintiff away
from defendant's office, appears in the case. Although the case may be in some respects
distinguishable from the case at bar, it is directly in point with reference to appellant's
contention, more particularly as made in the oral argument, that Filtzer's request to take
appellant out was a request for his arrest.
Likewise in Yoder v. Yoder, 239 Pa. 12, 86 A. 523, we quote parts of the opinion as
follows:
On September 23, 1909, Lorenzo T. Yoder was the proprietor of the Hotel Yoder in the
city of Pittsburgh and William B. Yoder, his nephew, was manager of the hotel under a
written contract by which his services were to be paid for out of a portion of the profits of the
business. On September 23, 1909, a dispute arose between the plaintiff and the defendant,
and the latter ordered the former to leave the premises. Upon the refusal of the plaintiff to
obey the defendant sent for police officers who ejected him. The evidence for the defendant
tended to show that while he ordered the plaintiff's removal from the building he did not
direct his arrest. The officers locked him up.
The court charged in part as follows: I say to you, first, that if you find by the weight of
the evidence that the defendant did not order this arrest, and did not order the plaintiff to be
locked up, but merely directed the officers to remove him from the building, he was well
within his rights, and you must find a verdict for the defendant.'
Defendant presented these points:
(2) That L. T. Yoder had the right in his discretion at any time to direct William B.
Yoder, as his employee, to leave the hotel building, and if William B. Yoder refused or
neglected to leave the building, as then directed by L. T. Yoder, that said L. T. Yoder had the
right to remove William B. Yoder from the premises by force, or, at his option, procure an
officer to remove him.
64 Nev. 545, 558 (1947) Lemel v. Smith
force, or, at his option, procure an officer to remove him. Answer: Affirmed.
(3) That L. T. Yoder, as the owner of the Hotel Yoder, and as the employer of William
B. Yoder, had the right to direct him to leave Hotel Yoder, and if William B. Yoder, when so
directed to leave refused to obey such direction and L. T. Yoder procured an officer and
directed that William B. Yoder be removed from the building, it is immaterial that L. T.
Yoder failed to appear at the station house and make a charge against William B. Yoder.
Answer: Affirmed if jury find from the evidence defendant did not order the arrest and
imprisonment.'
(5) If the jury believe from the evidence that all that L. T. Yoder directed the officers
called to the Hotel Yoder to remove therefrom William B. Yoder was to remove said William
B. Yoder from the premises, without any direction to lock him up or without any statement
that said L. T. Yoder would appear against William B. Yoder, then L. T. Yoder is not
responsible for any misunderstanding that the officers may have had with relation to direction
to locking him up and is not responsible for the detention of said William B. Yoder in
Inspector Bartley's office. Answer: Affirmed.' * * *
(8) That William B. Yoder, when he was directed by L. T. Yoder to leave Hotel Yoder,
was bound to do so, notwithstanding the existence of his contract of employment with L. T.
Yoder and what his opinion of his rights were under that contract. His failure to obey the
direction to leave made him a trespasser at Hotel Yoder, liable to be removed by force or
through the assistance of an officer at the discretion of L. T. Yoder. Answer: Affirmed as
qualified by any terms pertaining to said employment contained in said contract.'
The opinion, referring again to plaintiff's refusal to leave the building after being so
ordered by defendant and after referring to defendant's sending for the officers and instructing
them to take plaintiff out, says: In this action the defendant was within his right * * *
64 Nev. 545, 559 (1947) Lemel v. Smith
as owner, the defendant had the right to order plaintiff from the premises, and in case of
refusal had the right to remove him by force, if necessary. He pursued the course which was
commended by this court in Sloan v. Schomacker, 136 Pa. 382, 390, 20 A. 525, where it was
said that, when the plaintiffs were ordered from defendant's store, it was their legal duty to
go. In strict law defendant might then have used sufficient force to put them out with his own
hands. Instead of doing so, he adopted the prudent and commendable course of sending for an
officer.' The adoption of such prudent and commendable course is precisely the one
adopted by Smith and Filtzer when they called the officers and requested them to remove the
plaintiff rather than attempt to accomplish this themselves.
In Lichtenstein v. New Orleans Ry. & Light Co., 158 La. 284, 103 So. 769, 770, in which
an officer was called to help a street car conductor eject a passenger from the car for refusal to
pay his fare, the court said: And what the conductor may do himself in this respect he may
cause to be done by an officer of the law. And the railway company was held not responsible
for the subsequent arrest of the plaintiff by the police officer.
In Sloan v. Schomacker, 136 Pa. 382, 20 A. 525, the owner of a store had ordered two
intruders to leave. They refused to do so and he sent for an officer. No altercation was going
on at the time the officer arrived. In strict law said the court defendant might * * * have
used sufficient force to put them out with his own hands. Instead of doing so, he adopted the
prudent and commendable course of sending for an officer. This seems so clear that further
citation of authority is unnecessary. To adopt the highly technical theory advanced by
appellant appears to us to be unwarranted. That view is founded first upon the theory that
Filtzer's request to remove plaintiff was a request for his arrest, that their escorting him out of
the premises was an arrest, and that such arrest without the filing of a complaint and the
issuance of a warrant and without the observance by the officers of appellant's commission
of a misdemeanor was a violation of appellant's constitutional rights, was contrary to
statute and was actionable.
64 Nev. 545, 560 (1947) Lemel v. Smith
observance by the officers of appellant's commission of a misdemeanor was a violation of
appellant's constitutional rights, was contrary to statute and was actionable. It is our
conclusion that up to this point in the events of the evening, this first episode of the affair,
under the trial court's conception of the testimony, no cause of action had arisen on behalf of
appellant.
It is unnecessary for us to pursue the theory advanced by appellant that if his subsequent
arrest by the officers was unlawful, or, if lawful, that the delay between the arrest and the
presentation of the charge against him made the arrest unlawful ab initio for the reasons
hereinafter stated. But see Brown v. Meier & Frank Co., 160 Or. 608, 86 P.2d 79.
6. Coming then to the second episode, we find appellant expressing the purpose of
returning to Harold's Club. Officer Nichols, testifying to the incident of leaving the club said:
We took him out of the place. We just took him out of the place, asked him to stay out, but
he refused. He was then asked what actions on appellant's part occasioned taking him to the
police station and Nichols testified: He had left Harold's Club. The only thing that we had to
go on, he refused to stay out of the Club. He was going back to have it out * * * He wanted to
go back in there and settle the argument * * * He wanted to return to the Club * * * We gave
him a chance to go out on his own, to start with, without any trouble, but he was insistent on
coming back and finishing his argument. The court's finding that this situation made it plain
to the court that if the plaintiff had been released by the police officers, a serious breach of the
peace might have occurred if plaintiff had been permitted to return to Harold's Club, and the
court feels that it is provident that defendants, police officers, did not allow plaintiff, for his
own good, to return to Harold's Club, would appear from the foregoing testimony to be
justified. Appellant has not contended that an arrest would not be justified under these
circumstances, but the failure to make this contention would appear to grow out of the fact
that appellant does not grant that the arrest was made outside of Harold's Club, but
insists it was made and initiated by taking appellant out of the club.
64 Nev. 545, 561 (1947) Lemel v. Smith
grow out of the fact that appellant does not grant that the arrest was made outside of Harold's
Club, but insists it was made and initiated by taking appellant out of the club. Be this as it
may, we do not see how it could be seriously contended that the officers were not justified in
arresting appellant to prevent a threatened serious breach of the peace. Concluding then that
such arrest was justified under the circumstances, we are confronted with appellant's
contention that by reason of respondents' failure to take appellant before a magistrate, as
required by sec. 10764, Nevada Compiled Laws 1929, the lower court should have sustained
appellant's action. As the conclusions reached above dispose of appellant's cause of action so
far as concerns the respondents Harold S. Smith and Raymond A. Smith, copartners doing
business as Harold's Club, and Jack Filtzer, the disposition of the foregoing assignment of
error applies only to the respondents Nichols and Stone. The code section above referred to
reads as follows: 10764. Person Arrested without Warrant, Duty of Officer. Sec. 116. When
an arrest is made without a warrant by a peace officer or private person, the person arrested
must, without unnecessary delay, be taken before the nearest or most accessible magistrate in
the county in which the arrest is made, and a complaint, stating the charge against the person,
must be laid before such magistrate.
Officer Stone's testimony, placed in narrative form describes what was done as follows:
After Mr. Lemel was placed in the car he was taken to the police station by myself and Mr.
Nichols. We had him booked. We walked to the booking desk and the desk-sergeant booked
him. We stood by waiting for further orders. We assisted in placing him in the cell in the city
jail after we had been ordered to do so by the desk-sergeant. The charge that we told the
desk-sergeant we had picked this man up on was disorderly person.
Q. Did you ever at any time place a complaint for disorderly conduct, or any other offense
before any magistrate in this state, county or city, personally? A. We charged him at the
time of the arrest.
64 Nev. 545, 562 (1947) Lemel v. Smith
magistrate in this state, county or city, personally? A. We charged him at the time of the
arrest.
Q. In what way? How did you accomplish that? A. When we booked him, we charged
him with disorderly conduct.
Q. And that was based upon what you have testified to happened at the Club. Is that
correct? A. Yes, sir. * * *
Officer Nichols testified: We did not ever take Mr. Lemel after his arrest before a
magistrate for arraignment or for the purpose of fixing bail. We have no right to. The sergeant
has charge of a man after he is booked. It will be noted that the testimony indicates the
booking in one place as disorderly person and in another place as disorderly conduct.
At the trial appellant called the police judge who testified on behalf of appellant that on
April 17, 1946, a complaint was filed against Lemel, together with some 18 other defendants,
charging the commission of a public offense, to wit:
By above defendants, who then and there were disorderly persons, not having visible
means of support, living idly and loafing and loitering in the streets and public places therein;
said defendants then and there having physical ability to work; all of which is contrary to the
form, force and effect, and in violation of Section 8 of City Ordinance No. 45 of said City of
Reno, in such case made and provided, and against the peace and dignity of the said City of
Reno; and this complaint, upon oath, accuses the said defendants of having committed the
said public offense, and this complaint further alleges and deposes that the said accused was
then and there arrested therefor in the actual commission of the said public offense, and prays
that the said accused may be brought before this Court and dealt with according to law. This
complaint was signed by Harry D. Fletcher, the Chief of Police. The police judge further
testified that his record showed that Lemel pleaded guilty and was fined $30 and a jail
sentence effective at 4 p. m.
64 Nev. 545, 563 (1947) Lemel v. Smith
of that day, which gave him the opportunity for not appearing to serve the sentence. The
ordinance, whose violation was charged, namely, section 8 of city ordinance No. 45, does not
otherwise appear in evidence. A considerable portion of the briefs filed in this case (and we
cannot refrain from noting that the briefs on file aggregate 136 pages) is devoted to the
question as to whether or not the subsequent plea of guilty is a bar to the present action. This
in turn involves much learned discussion and citation of authority growing out of the fact that
Lemel assertedly pleaded guilty to a different offense than the one out of which the present
cause of action grows, namely, that he pleaded guilty to a charge of being a disorderly person,
which is a part of the municipal vagrancy ordinance, and did not plead guilty to a charge of
disorderly conduct or breach of the peace. Out of this situation also arises the appellant's
assignment that the trial court committed error in overruling appellant's demurrer to
paragraph II of the separate defense of each of the two groups of the defendants. As has been
noted, however, such demurrer was interposed orally at the close of the testimony. A
sustaining of such demurrer, if effective at all, would have precluded respondents from
offering evidence of such plea of guilty. However, the testimony was all in and it appears that
the only testimony concerning the guilty plea was that introduced by appellant himself. In
addition to this, it may be noted that the trial court while stating that the plea of guilty was a
bar to the action, did not base his judgment upon that conclusion, but upon the conclusion
that there had been no false arrest. This brief comment obviates the necessity for any lengthy
discussion of this phase of the situation and leaves for our consideration the question of
liability, if any, resulting from the delay in placing the charge against appellant and bringing
him before the magistrate.
The books are replete with cases dealing with such delays and the resulting liability of the
arresting officers and of others who caused the arrest. In the present instance this would
apply only to respondents Nichols and Stone.
64 Nev. 545, 564 (1947) Lemel v. Smith
instance this would apply only to respondents Nichols and Stone. Such cases consider periods
of from one hour or less to periods of a great many days, and the conclusions reached by the
courts are almost as varied as the cases. The question for consideration is whether in the
present case the filing of the charge between 10 and 11 o'clock the following day and the
taking of appellant before the police judge at that time comprised an unnecessary delay, or, as
put in many of the cases, whether such length of time was unreasonable. Appellant insists that
as there is no conflict in the evidence upon the length of time involved, it was entirely a
question of law for the court to decide. Respondents insist that it was a question of fact and
that the trial court's taking of judicial notice of the circumstances obviated and took the place
of other proof. Great reliance is placed by appellant upon the case of Peckham v. Warner
Bros. Pictures, 36 Cal.App.2d 214, 97 P.2d 472, 475, decided December 21, 1939. Yet one of
the main conclusions reached by the courts in that case was that: (4) Applying the above
stated rules of law to the facts of the instant case, since plaintiff Sorrell was incarcerated for
almost twenty-four hours before being released, and in fact never taken before a magistrate,
and plaintiff Peckham was incarcerated for more than forty-eight hours before being taken
before a magistrate and released, the case was properly submitted to the jury for a
determination of the issue as to whether an unreasonable time had elapsed after the arrest of
said plaintiffs without taking them before a magistrate.
The same case quotes with approval Keefe v. Hart, 213 Mass. 476, 100 N.E. 558, 559,
Ann. Cas.1914A, 716, to the effect that the delay in that case could not be determined as
reasonable since this interval may have overreached the time for the adjournment of the
magistrate's court, and involved a further delay; the question becoming one of law only when
the facts are agreed. The finding of the trial court on the point in the instant case was as
follows: "The plaintiff was thereafter confined in the City jail at Reno, Nevada, from 5:00
o'clock P.M. until between the hours of 10:00 and 11:00 A.M. of the following day, at
which time a regular session of the Municipal Court was held.
64 Nev. 545, 565 (1947) Lemel v. Smith
case was as follows: The plaintiff was thereafter confined in the City jail at Reno, Nevada,
from 5:00 o'clock P.M. until between the hours of 10:00 and 11:00 A.M. of the following
day, at which time a regular session of the Municipal Court was held. That plaintiff at no time
requested that he be admitted to bail, or be brought before a Magistrate, nor did he request the
services of an attorney.
7-10. Taking into consideration the time of day plaintiff was arrested, and the
unavailability at that time of the proper officers of the City of Reno for plaintiff's
arraignment, I find from these and other facts established by the testimony that no undue
delay occurred in bringing plaintiff before the Municipal Judge of the City of Reno for
arraignment. In his decision the learned district judge said: The time in which or for which
he was incarcerated, approximately eighteen hoursI think we can take judicial notice of the
fact that that began about five o'clock in the afternoon, approximately, and continued until
regular business matters between ten and eleven o'clock the following morning.
Commenting on this, appellant insists that the trial judge was not considering any evidence
in the record of this case * * * totally disregarding the duty placed on the respondents by the
Section 10764 * * * and the fact that the law of this state requires the justice courts and city
courts to be always open. The latter claim is without merit. The district court is also required
always to be open for the transaction of business (N.C.L. sec. 8453), but neither district
judges nor justices of the peace have ever been held to a 24 hour a day service by reason of
these provisions. Appellant concedes: If the respondents had introduced evidence in the
record to explain the eighteen hour confinement of appellant and upon the record the lower
court held for defendants, we certainly could not complain on this appeal. The theory of
taking judicial notice of a fact (in case where taking of judicial notice is warranted) is that it
is a judicial short cut, a doing away, in the case of evidence, with the formal necessity for
evidence because there is no real necessity for it.
64 Nev. 545, 566 (1947) Lemel v. Smith
is that it is a judicial short cut, a doing away, in the case of evidence, with the formal
necessity for evidence because there is no real necessity for it. Varcoe v. Lee, 180 Cal. 338,
181 P. 223. What is known need not be proved. Peterson v. Standard Oil Co., 55 Or. 511, 106
P. 337, Ann.Cas. 1912A, 625. Judicial notice takes the place of proof, and is of equal force.
As a means of establishing facts, it is therefore superior to evidence. In its appropriate field, it
displaces evidence, since, as it stands for proof, it fulfills the object which evidence is
designed to fulfill, and makes evidence unnecessary. State v. Main, 69 Conn. 123, 37 A. 80,
84, 36 L.R.A. 623, 61 Am.St.Rep. 30. Judicial notice has been applied to a wide range of
subjects from the facts of ordinary life to the arts, sciences and professions, confined only to
those things which any well informed person would be presumed to know. Applying
thisnot to any question as to the reasonableness of the time consumed or to the question as
to whether a magistrate might not have been found available or to a question of diligence or
lack of diligencebut simply to the hours during which the magistrate's court is found open,
we think it entirely within the realm of judicial knowledge that magistrate's courts (unless
provision is made for a night court) are not ordinarily open between 5 o'clock in the evening
and 10 o'clock the following morning. It further appears from the evidence that the arresting
officers were stationed in a patrol car from which it may be fairly assumed that their duties
included patrolling certain portions of the city and being subject to call by radio to any point
within their jurisdiction in carrying out their duties for the suppression of crime and the
protection of persons and property. It appears also that some 18 other persons were
incarcerated in the jail and against whom a similar charge was placed the next morning. Many
of such other prisoners might have been arrested for misdemeanors occurring at
approximately the same hour as the arrest of appellant. So far as the facts disclose neither the
appellant nor any of these other prisoners requested to be brought forth before a
magistrate or to be admitted to bail or to have an attorney.
64 Nev. 545, 567 (1947) Lemel v. Smith
these other prisoners requested to be brought forth before a magistrate or to be admitted to
bail or to have an attorney. It clearly was impracticable for the officers to attempt literal
compliance with the statute and it would, in our opinion, be unreasonable to assume that in
every one of those cases the officers were subjecting themselves to actions for unlawful arrest
and imprisonment. In Fouraker v. Kidd Springs Boating and Fishing Club, Tex. Civ.App., 65
S.W.2d 796, 798, in which the statute required that the arresting officer shall immediately
take the person arrested before a magistrate, the court said: Plaintiff was arrested at night
and in an intoxicated condition. We judicially know that, in the regular course of official
business, magistrates, before whom the statute requires a defendant, arrested without warrant,
to be immediately taken, do not keep open office at night; hence, under the circumstances, it
was impracticable for the officers to attempt literal compliance with the statutes, and, in our
opinion, it is unreasonable to say such was their duty. Under the forbidding circumstances,
pending return of the regular time for official business, we think the officers acted with legal
propriety.
The last cited case appears to follow the general doctrine as recited in the article on false
imprisonment, in 35 C.J.S., sec. 31, where the author says: What is a reasonable time
depends on the facts of each case. Prolonged detention must, however, be considered with
regard, among other things, to such matters as judicial accessibility and facilities, the
unavoidable duties of the officer making the arrest, the intervention of Sunday or a holiday,
and the intoxication or mental condition of the person detained.
In the footnote and likewise in the annotation found in 79 A.L.R. 13, under the title Delay
in Taking before Magistrate or Denial of Opportunity to Give Bail as Supporting Action for
False Imprisonment, numerous cases are cited in support of this rule. Among them are: Brish
v. Carter, 98 Md. 445, 57 A. 210; Hopner v. McGowan, 116 N.Y. 405, 22 N.E. 55S; Carroll v.
Parry, 4S App.D.C. 453; Hayes v. Mitchell, 69 Ala. 452; Johnson v. Mayor, etc., of City of
Americus, 46 Ga. S0; Clements v. Canon, 170 Okl. 340, 40 P.2d 640; Raitz v. Green, 13
Ohio Cir.Ct.R.
64 Nev. 545, 568 (1947) Lemel v. Smith
v. McGowan, 116 N.Y. 405, 22 N.E. 558; Carroll v. Parry, 48 App.D.C. 453; Hayes v.
Mitchell, 69 Ala. 452; Johnson v. Mayor, etc., of City of Americus, 46 Ga. 80; Clements v.
Canon, 170 Okl. 340, 40 P.2d 640; Raitz v. Green, 13 Ohio Cir.Ct.R. 455, 7 Ohio Dec. 238;
Torson v. Baehni, 134 Kan. 188, 5 P.2d 813; Linnen v. Banfield, 114 Mich. 93, 72 N.W. 1.
11. Under the circumstances and in view of the foregoing authorities, we do not feel
disposed to hold that as a matter of law the district judge was in error in holding that the delay
was not unreasonable. Although not necessary to a determination of the case, we are the more
satisfied with our conclusion by reason of an additional factor. Holding, as we do, that the
officers were justified in arresting appellant after he had been removed from Harold's Club
and when he was asserting his attention to return to have it out, thus threatening a serious
breach of the peace, we are then impressed with very respectable authority holding that the
liability of the arresting officers ceased when they delivered the prisoner to the officers whose
duty it was to take appellant before a magistrate. Gisske v. Sanders, 9 Cal.App. 13, 98 P. 43.
This situation appears to be the case from the testimony appearing in the record. As soon as
the officers delivered appellant to the desk-sergeant at the city jail, it became the duty of the
desk-sergeant to prepare the complaint and bring the appellant before the police judge. That is
precisely what happened, and the complaint was signed by the chief of police. The officers
after delivering appellant to the desk-sergeant returned to their other duties. It is to be noted
that the desk-sergeant is not made a party defendant herein.
In reaching the conclusion that the trial court's findings should not be disturbed we do not
wish to be understood as countenancing any evasion of the clear mandate of the statute to
take the person arrested without a warrant before a magistrate without unnecessary delay. A
very brief delay may be determined to be unnecessary or unreasonable under a given set of
circumstances.
64 Nev. 545, 569 (1947) Lemel v. Smith
unnecessary or unreasonable under a given set of circumstances. Our conclusion is based on
the particular circumstances of this case, and after taking into consideration appellant's failure
to demand an attorney or to be taken before a magistrate or be admitted to bail; the limitation
placed on the duties of the arresting officers; the absence from the case of the desk-sergeant
who was responsible for placing the charge against appellant and for his incarceration; the
fact that the arresting officers were faced with the performance of other important duties in
the prevention and detection of crime and the protection of lives and property; the
introduction in evidence by appellant himself of the police record; and his introduction of the
record of the magistrate's court showing his plea of guilty. Although we have not found it
necessary to hold that such plea was a bar to plaintiff's action (there was some confusion in
the bookingwhether under a charge of disorderly conduct or of being a disorderly
personand there is a decided conflict in the authorities on the point) the plea of guilty has
been considered with the other factors in the case. We have given consideration to the other
points raised in appellant's voluminous brief, but find the same to be without merit.
For the reasons herein given, the judgment and the order denying the motion for new trial
are affirmed, with costs.
Horsey, J., dissents.
____________
64 Nev. 570, 570 (1947) Carlton v. Manuel
RAY CARLTON, Appellant, v. PAUL MANUEL, Doing Business Under the Firm Name and
Style of I-X-L Laundry Company, Respondent.
No. 3494
December 10, 1947. 187 P.2d 558.
1. War.
Where dependant was an independent contractor owning an independent business consisting of a
laundry route the regulations of the war labor board did not apply so that plaintiff's act in reducing
discount rates to defendant was not a violation of regulations of war labor board.
Assignment of error predicated upon a position which had been abandoned at the trial was overruled.
3. Monopolies.
In Nevada, questions pertaining to monopolies, combinations or restraints of trade are governed by
the common law, there being no statutory law on such subjects.
4. Monopolies.
At common law, personal services cannot be subject of a technical monopoly, a monopoly being
predicable only on rights or interest in property.
5. Monopolies.
At common law, those monopolies, combinations or restraints of trade were proscribed which tended
to limit, fix, control, maintain or regulate price or production of any article of trade or manufacture or the
use thereof, excluding labor and personal services.
6. Monopolies.
Labor or personal services are not construed to constitute a commodity or article of trade at
common law or under statutes pertaining to combinations and monopolies and restraints of trade.
7. Monopolies.
Allegation that laundry operators in county unlawfully conspired for purpose of reducing discount
rate from 32 percent to 25 percent as to all route men and that conspiracy was unlawful and in restraint of
trade for purpose of maintaining reduced discount rate and creating a monopoly failed to state a cause of
action, because no commodity as such was involved.
8. Monopolies.
Laundry services constitute a matter of personal services rather than the production of a
commodity, and, under common-law principles, no action involving monopolies, combinations or
restraints in trade can be maintained in connection with agreements to fix price or tending to
fix price of such personal services.
tion with agreements to fix price or tending to fix price of such personal services.
9. Courts.
A federal court decision in a case arising within Nevada is persuasive of what the common law is
within Nevada.
10. Monopolies.
Where laundry route owner had no continuing contract with laundry operator and his contractual
relationship could be terminated at whim of either party, operator committed no actionable wrong in
entering into a combination with other laundries for the purpose of reducing the discount to all laundry
route owners.
11. Conspiracy.
What one may do lawfully alone, two or more may lawfully agree to do jointly.
12. Conspiracy.
Where it was established that laundry operator had a right to reduce discount rate to laundry route
owner, any testimony in support of a conspiracy between a number of laundry operators to reduce
discount rates to all route owners was properly excluded as immaterial.
13. Conspiracy.
A conspiracy consists of an unlawful combination of two or more persons to do that which is
contrary to law or to do that which is wrongful and harmful toward another person or to carry out an
object not in itself unlawful by an unlawful means.
14. Contracts.
Evidence authorized finding that laundry operator lawfully reduced discount rate to laundry route
owner, an independent contractor, and that after the date of the discount reduction the accounts of the
parties were to be settled at the new rate.
Appeal from Second Judicial District Court, Washoe County; William McKnight, Judge.
Action by Paul Manuel, doing business under the firm name and style of I-X-L Laundry
Company, against Ray Carlton, to recover for labor and services, wherein defendant
counterclaimed and cross-complained. Judgment for plaintiff, and defendant appeals.
Affirmed.
Morgan, Brown & Wells and Oscar Zapf, all of Reno, for Appellant.
Sidney W. Robinson, of Reno, for Respondent.
OPINION
The evidence in this case establishes the fact that on or about the 5th day of February
1945, appellant purchased a business in Reno, Washoe County, Nevada, consisting of a
laundry route, from one Ken Darrah. The evidence further establishes the fact that at the time
of purchase of said business, the laundry work and dry cleaning work of the customers of said
laundry route was processed and finished by respondent doing business under the firm name
and style of I-X-L Laundry. At the time of the purchase of said business by said appellant,
he and his immediate predecessor in interest were allowed a trade discount of thirty-two
percent on the published public list price of laundry and dry cleaning for all such work
brought to the plant of respondent. The evidence further establishes the fact that at no time
was there in existence any written agreement as between respondent and appellant covering
the matter of the aforesaid discount rate or any other matters pertaining to said business
relationship, and further, that respondent was under no obligation to perform services for
appellant, and that appellant was under no obligation to bring laundry or dry cleaning to the
plant of respondent for processing. In other words, the evidence establishes the fact that each
item of work done and performed by respondent for appellant constituted a separate
transaction and that neither of the parties had any continuing contractual relationship of any
kind with the other.
This situation prevailed until on or about the 19th day of November 1945, at which time
appellant was notified by respondent that the discount rate of thirty-two percent previously
allowed to appellant for appellant's work would be reduced to twenty-five percent. The
evidence does not indicate that after said notification any other discount rate was allowed by
respondent to appellant in connection with laundry or dry cleaning work performed by
respondent for appellant. The parties continued to do business with each other at said new
reduced discount rate until on or about the 14th day of March 1946, at which time
appellant ceased transacting business with respondent.
business with each other at said new reduced discount rate until on or about the 14th day of
March 1946, at which time appellant ceased transacting business with respondent. The
evidence further establishes the fact that for the period from February 5, 1945, until
November 26, 1945, appellant paid to respondent the cost of all laundry and dry cleaning
performed by respondent for appellant at the established list price less a discount of thirty-two
percent, and that from November 26, 1945, until on or about the 4th day of March, 1946,
appellant paid to respondent the cost of all laundry and dry cleaning performed by respondent
for appellant at the list price thereof, less a discount of twenty-five percent, and that no
payments were made by appellant to respondent for work done between the period from
March 4, 1946, to and including March 14, 1946.
This action was commenced in the trial court by respondent for the purpose of recovering
for the value of said laundry and dry cleaning performed by respondent for appellant for said
period from March 4, 1946, until March 14, 1946, said value of said work, labor and services
being computed upon the established list price for said laundry and dry cleaning less a
discount of twenty-five percent, said discount being the same allowed to and paid to appellant
for such work done since on or about the 26th day of November 1945. Appellant denied
owing any money to respondent, and set up various affirmative defenses which give rise to
this appeal.
The first of said defenses alleges in substance that the thirty-two percent discount rate was
established by oral agreement on February 5, 1945, and that the same continued without
change for the period of time from November 26, 1945, to April 30, 1946, and that
notwithstanding the fact that all bills had been settled during said period of time for the
modified discount rate of twenty-five percent, that said bills should have been settled on the
original discount rate of thirty-two percent, and that by reason of said fact, respondent is
indebted to appellant for the difference in said discount rate for work paid for during said
period of time in the total sum of $613.93.
rate for work paid for during said period of time in the total sum of $613.93.
The second affirmative defense alleges in substance that the reduction in discount rate
made by respondent on November 26, 1945, from thirty-two percent to twenty-five percent,
constituted a violation of war labor board regulations in that the same amounted to a
reduction in salary without the prior approval of the war labor board.
By way of counterclaim and cross-complaint, said appellant sought to recover the
aforesaid sum of $613.93 representing the amount claimed to be due by appellant from
respondent for work performed by respondent for appellant from November 26, 1945, to
April 30, 1946, computed at the original discount rate of thirty-two percent, said work having
already been paid for by respondent at the changed discount rate of twenty-five percent, with
the exception of the period forming the subject matter of plaintiff's complaint, wherein no
payment whatsoever was made for any work done and performed by respondent. By way of a
second cross-complaint and counterclaim, appellant alleged in substance that the claimed oral
agreement for a thirty-two percent discount rate existed from February 5, 1945, to April 30,
1946, and that respondent, in combination with various other laundry operators doing
business in Washoe County, Nevada, unlawfully conspired for the purpose of reducing said
discount rate from thirty-two percent to twenty-five percent; that said alleged conspiracy for
the reduction of said discount rate was applicable not only to appellant, but to various other
contract drivers owning laundry routes similar to that owned by appellant. Said counterclaim
and cross-complaint alleged that said conspiracy was unlawful and in restraint of trade for the
purpose of maintaining said reduced discount rate and creating a monopoly, thereby allegedly
destroying appellant's freedom of contract and resulting in damages to him in the sum of
$5,000.
Upon the trial of this matter, respondent established the fact that he had performed the
services referred to in his complaint for the period therein alleged; that he had received
no pay therefor and that the value of the same was in the sum of $457.99, computed at
the discount rate of twenty-five percent.
the fact that he had performed the services referred to in his complaint for the period therein
alleged; that he had received no pay therefor and that the value of the same was in the sum of
$457.99, computed at the discount rate of twenty-five percent. Judgment was entered for
respondent as against appellant in said amount. During the course of the trial the lower court
excluded all testimony upon the question of the alleged conspiracy to reduce the discount rate
herein referred to, as pleaded in appellant's second cross-complaint and counterclaim, upon
the ground that said testimony was wholly irrelevant, immaterial, and incompetent. The trial
court further refused to permit testimony to be introduced with reference to appellant's second
affirmative defense upon the ground that no employer-employee relationship existed as
between the parties, and that consequently the reduction in discount rates was not a violation
of the regulations of the war labor board. The trial court held that the transactions of the
parties subsequent to November 26, 1945, were governed by a discount rate of twenty-five
percent, and that there was no contract existing between respondent and appellant for a
thirty-two percent discount rate subsequent to said date.
Appellant has made three assignments of error; first, that the trial court was in error in
excluding the evidence offered by appellant in respect to the allegations of his second
cross-complaint and counterclaim (said allegations being those pertaining to the conspiracy
herein referred to); second, that the trial court erred in not permitting evidence in respect to
appellant's second affirmative defense to the effect that the change in discount rate was
unlawful by reason of being in contravention of war labor board regulations, and third, that
trial court erred in finding that any contract came into existence on the basis of a discount rate
of twenty-five percent by reason of appellant's continuing to do business at said changed
discount rate. We have made a full and complete examination of the record upon the trial of
this case and of the briefs filed by respective counsel, and we conclude therefrom that
none of appellant's assignments of error are well taken.
trial of this case and of the briefs filed by respective counsel, and we conclude therefrom that
none of appellant's assignments of error are well taken.
1. For purposes of convenience, we will discuss the second assignment of error first, since
the first and third assignments of error may properly be considered together, and form the
principal basis for this appeal. We find no merit in appellant's contention that the reduction of
discount rates herein referred to violates the regulations of the war labor board, by reason of
the fact that the uncontradicted testimony of all parties establishes that appellant was an
independent contractor owning an independent business consisting of a laundry route
purchased by him on February 5, 1945, as hereinabove related. As such independent business
man, appellant did not in any respect occupy an employee status insofar as respondent was
concerned. Since no employer-employee relationship existed as between the parties, the
regulations of the war labor board had no application, and said reduction in said discount rate
was not in contravention of any such regulations. It affirmatively appears from appellant's
second affirmative defense that said federal regulations therein referred to are applicable
solely to an employer-employee relationship and pertain to decreases in salaries between
persons occupying such relationships. Furthermore, it appears from the record that counsel
for appellant recognized the inapplicability of said second affirmative defense and apparently
abandoned any effort to prove the same upon the trial of this case. As a matter of fact, the
record does not disclose any formal offer of proof regarding said second affirmative defense.
We refer to the transcript of testimony, pages 84 and 85, wherein the following appears to
have transpired:
The Court: That offer is denied so far as it concerns the alleged conspiracy. It is granted
so far as it concerns any other matter that the defendant desires to put in evidence which
might constitute a defense to the action.
In other words, Mr. Brown, I am convinced that the opinion of Judge Farrington (infra),
in 159 F. (500), is the law in this state, and if you will read that decision I am convinced you
will agree with me that Judge Farrington has correctly stated the law.
Mr. Brown: Well, Judge, we have alleged two other defenses in our answer and
cross-complaint. We have alleged this reduction was unlawful because of the OPA
regulations which were in effect, and second, it violated the regulations of the War Labor
Board, and it has been admitted by counsel in their reply that they have never submitted any
reductions in commissions to the War Labor Board; but in view of the fact that the testimony
in this case disclosed, and it is admitted in the reply, that Mr. Carlton was the owner of an
independent laundry route, we would like to have an opportunity at the convenience of the
Court, to present the OPA regulations to establish, in our opinion, the increase in price which
would have affected Carlton by the decrease of commissions, which amounted to an increase
in price.
The Court: There is no increase in price attempted to be alleged here.
2. From the foregoing it is evident that counsel for appellant endeavored to prove matters
pertaining to the OPA regulations involving price increases and entirely abandoned any effort
to establish that the reduction in discount rate violated regulations of the war labor board,
since he apparently recognized that such regulations did not apply to appellant as owner of an
independent laundry route. A search of the record, however, discloses that no affirmative
defense of any kind appears in the record pertaining to violations of the OPA regulations.
Consequently, we can arrive at no other conclusion than that appellant's second assignment of
error should be overruled.
We will now consider appellant's first and third assignments of error relating to the
exclusion of testimony pertaining to the alleged conspiracy and the finding of the trial court
that the contractual relationship between appellant and respondent subsequent to
November 26, 1945, was based upon a twenty-five percent discount rate.
appellant and respondent subsequent to November 26, 1945, was based upon a twenty-five
percent discount rate.
3, 4. At the outset we wish to observe that the legislature of the State of Nevada has never
deemed it advisable to enact any statute governing matters pertaining to monopolies,
combinations, or restraints of trade, and consequently, in arriving at a determination of this
matter, we are obliged of necessity to rely solely upon the principles of the common law
pertaining thereto. At common law, personal services cannot be the subject of a technical
monopoly, a monopoly being predicable only on rights or interest in property. See 41 C.J., p.
172, sec. 170, wherein the following language is used, amply supported by substantial
authority. An agreement fixing the price of labor is not forbidden by the common law. Nor is
labor a commodity' article of merchandise,' product,' or convenience,' repair,' any article
or thing whatsoever,' or trade,' or commerce,' within the meaning of federal or state
anti-trust acts, and an agreement to fix the price of labor is not forbidden by any of these
statutes; and this is so whether the labor is physical or intellectual or a combination of the
two. Nor is an agreement fixing and regulating the price of labor a trust.' The foregoing
principles have been applied to agreements fixing the price of laundry work, or fixing the
price for dyeing and dressing of furs. They also have been applied to agreements between
physicians fixing charges for professional services, and to agreements fixing and maintaining
the rates of commission and brokerage to be charged by the members of an association of
dealers.
See, also, the case of Lohse Patent Door Co. v. Fuelle, 215 Mo. 421, 114 S.W. 997, at
page 1002, 22 L.R.A.,N.S., 607, 128 Am.St. Rep. 492: * * * and at common law personal
servicean occupationcould not be the subject of a monopoly. In discussing that question,
in the case of State ex rel. v. Associated Press, 159 Mo. (410), loc. cit. 456, 60 S.W. 91, 104,
51 L.R.A. 151, 81 Am.St.
Rep. 368, this court used this language: But there is nothing here on which a monopoly can
attach. The business is one of mere personal servicean occupation. Unless there is
property to be affected with a public interest there is no basis laid for the fact or the charge
of a monopoly.'
5, 6. The only type of combinations or monopolies or restraints of trade which fell within
the ban of common law principles were those monopolies, combinations or restraints of trade
which tended in any way to limit, fix, control, maintain, or regulate the price or production of
any article of trade or manufacture or the use of the same. Labor was never deemed to be a
commodity at common law, and combinations affecting personal services were not unlawful
or the subject of actions for damages. These common law principles have been adhered to in
connection with judicial construction of statutes regulating monopolies, combinations, and
restraints of trade, and even under such statutes, labor or personal services have never been
construed to constitute a commodity or article of trade. See the case of Rohlf v. Kasemeier,
140 Iowa 182, 118 N.W.276, 278, 23 L.R.A., N.S., 1284, 132 Am.St.Rep. 261, 17 Ann.Cas.
750, wherein the following language is used by the Iowa court: If we were to adopt the view
so strongly presented by appellant's counsel, it would be on the assumption that the associated
words merchandise' and commodity' include the wages to be paid for labor, because labor is
a sort of merchandise, subject to barter and sale as other goods. * * * We are constrained to
hold that labor is not a commodity within the meaning of the act now in question. As
supporting this conclusion, see Hunt v. Riverside Co-Operative Club, 140 Mich. 538, 104
N.W. 40 [112 Am.St.Rep. 420], 12 Detroit Leg.N. 264; Queen [Ins. Co.] v. State, 86 Tex.
250, 24 S.W. 397, 22 L.R.A. 483. It seems to be the almost universal holding that it is no
crime for any number of persons without an unlawful object in view to associate themselves
together, and agree that they will not work for or deal with certain classes of men, or work
under a certain price or without certain conditions.
agree that they will not work for or deal with certain classes of men, or work under a certain
price or without certain conditions. Carew v. Rutherford, 106 Mass. [1], 14, 8 Am.Rep. 287;
Commonwealth v. Hunt, 4 Metc., Mass., 111, 134, 38 Am.Dec. 346; Rogers v. Evarts, Sup.
17 N.Y.S. 268; United States v. Moore, C.C., 129 F. 630. * * * it follows that the word
commodity,' when used with reference to prices, should not be held to include labor. No case
has been cited which supports appellant's contention, and we have not been able to find any.
7, 8. It is our opinion that in the instant case no commodity as such is involved and that
consequently the conspiracy alleged in appellant's second affirmative defense does not
constitute a cause of action under common law principles within the State of Nevada. The
purpose of the alleged conspiracy was to maintain a reduced discount rate as between
appellant and respondent in connection with personal services furnished by respondent for
appellant. Such personal services are not a commodity at common law, and consequently any
conspiracy with reference thereto would not violate any common law principle or give rise to
a cause of action for damages in connection therewith. Laundry services have in several cases
been held to constitute a matter of personal services rather than the production of a
commodity, and in this connection, we expressly refer to the case of State of Arkansas ex rel.
Moose v. Frank, 114 Ark. 47, 169 S.W. 333, 336, 52 L.R.A.,N.S., 1149, Ann.Cas.1916D,
983: If the business of laundering is not a commodity, then an agreement fixing prices for
the performance of that service is not within the inhibition of the anti-trust act. No other word
or term in that act could include that business. The act does use the word repair,' but it
cannot be seriously contended that this word is sufficient to embrace the business of
laundering. It may be true that to some extent laundries do repair the clothes which they
wash, but it does this as a mere incident to that business; and by such service they merely
'repair' the damage which they have done in performing their service of making the
clothes clean.
wash, but it does this as a mere incident to that business; and by such service they merely
repair' the damage which they have done in performing their service of making the clothes
clean. The business of laundering is a mere service done, whether performed by hand or by
machinery, and an agreement to regulate the price to be charged therefor is in its last analysis
merely an agreement to fix the price of labor, or services, and the Legislature of this state has
not made such an agreement unlawful.
We also refer in this connection to the case of State of Louisiana v. McClellan, 155 La. 37,
98 So. 748, 751, 31 A.L.R. 527:
When we come, therefore, to consider the section referred to in connection with the
business of laundry as shown by the statement of facts, there is left no possibility of doubt
that such business is utterly and totally foreign to the trade and commerce' which the
lawmakers had in view, and the restraint of which it was the object and purpose of the statute
to prevent.
The business of the laundry is not to lease or to sell, nor does a laundry deal in goods,
wares, and merchandise, or other commodities. Nor has it anything to do with the fixing of
the prices of commodities. In other words, there is absolutely nothing in connection with the
business carried on by the laundry, or the method pursued in operating the laundry business,
that would bring the laundry within any definition of trade' or commerce,' in the sense in
which those words are used in the statute, or that would even suggest to the ordinary mind
that such laundry was a concern engaged in trade and commerce. We are unable to conceive
of any rule of interpretation by which the terms of the statute can be so broadened or enlarged
as to bring the laundry business thereunder.
* * * * * *
Our conclusion is that the laundry business operated in the City of New Orleans, as
disclosed by the evidence is not 'trade or commerce,' in the sense said words are used in
sections 2 and 4 of Act 11 of the Extra Session of 1915; and that said laundry business
was not included within the prohibition of said two sections of said act."
in the City of New Orleans, as disclosed by the evidence is not trade or commerce,' in the
sense said words are used in sections 2 and 4 of Act 11 of the Extra Session of 1915; and that
said laundry business was not included within the prohibition of said two sections of said
act.
While it is true that both of the foregoing cases arose under anti-trust statutes,
nevertheless, said statutes were but declaratory of common law principles, and common law
principles were used in connection with interpreting the statutes involved. By an application
of said common law principles, it has been determined that a laundry business is a business
involving personal services rather than commodities, and consequently that no action
involving monopolies, combinations, or restraints in trade, can be maintained in connection
with agreements fixing the price, or tending to fix the price of such personal services. Various
other cases supporting this view are to be found in an extensive annotation to the aforesaid
case of State v. McClellan, supra, in 31 A.L.R. at page 533.
In connection with this phase of the matter, counsel for appellant has cited at length, and
placed considerable reliance upon the case of Endicott v. Rosenthal, 216 Cal. 721, 16 P.2d
673, 676. However, we do not believe that the ruling in said case should find any application
in a state governed solely by common law principles, since said case is predicated solely upon
a California statute section, said section being section 1673 of the California Civil Code. It is
admitted by the supreme court of the State of California that said section is much broader in
its terms than was the statute under consideration in the foregoing case of State v. McClellan,
in that the California statute referred not only to trade, but also to businesses of any kind.
Under said California statute, the supreme court of California held that: It could not logically
be maintained that persons engaged in the industry of cleaners and dyers of wearing apparel
were not engaged in some kind of business.
It will be seen that said California statute referring to "businesses of any kind" enacted a
measure much broader than any interpretation of what constitutes "trade" or
"commodity" at common law.
businesses of any kind enacted a measure much broader than any interpretation of what
constitutes trade or commodity at common law. We do not believe that said California
case, under the circumstances, should be construed to override the generally prevailing
common law principles applicable to this case as hereinabove enunciated.
Upon the trial of this matter, the lower court specifically referred to and relied upon the
case of Goldfield Consolidated Mines Company v. Goldfield Miners' Union No. 220, C.C.,
decided by the late Judge Farrington, in 159 F. 500, 517. Said case involved an agreement
and combination among various mine operators within the State of Nevada, which had for its
purpose the following five objectives, namely: First, to reduce the wages of the men
employed by the various members of the association; second, to resume operations, giving
preference to old employees; third, to reduce the cost of living in Goldfield District 20
percent; fourth, to have no further dealings with the Goldfield Miners' Union, or any
organization affiliating with the Western Federation of Miners; fifth, to require each person
presenting himself to any member of the association for employment to sign, as a condition of
such employment, an agreement that he is not, and during the period of his employment will
not become, a member of respondent union. The fifth item may be regarded as the means
agreed upon to accomplish the first and fourth.
It will be observed that the purposes of the aforesaid combination were much broader in
their scope than were the purposes of the conspiracy alleged in appellant's second
cross-complaint and counter-claim. In referring to such combination, Judge Farrington stated
as follows: An unlawful conspiracy is a combination between two or more persons to do * *
* lawful act by criminal or unlawful means. 8 Cyc. 620, and further held with reference to
the foregoing quoted purposes of said combination, that: None of the proposed acts are
either unlawful or criminal. For these reasons I must hold that complainant in entering into
the agreement with the other members of the Goldfield Mine Operators' Association,
which is embodied in the resolutions of December 7, 1907, was not guilty of any unlawful
conspiracy against the respondents."
complainant in entering into the agreement with the other members of the Goldfield Mine
Operators' Association, which is embodied in the resolutions of December 7, 1907, was not
guilty of any unlawful conspiracy against the respondents.
In said decision the following language is also used:
It is a constitutional right of an employer to refuse to have business relations with any
person or with any labor organization, and it is immaterial what his reasons are, whether good
or bad, well or ill founded, or entirely trivial and whimsical.
* * * * * *
The right of an employer to refuse to employ any particular individual, or any class of
individuals, is neither greater nor less than the right of a man to refuse to work for any
particular individual, or class of individuals. The reason for the refusal can in no wise control,
enlarge, or diminish the legal right of refusal, the right to employ, or the right to refuse to be
employed.
It is a part of every man's civil right that he be left at liberty to refuse business relations
with any person whomsoever, whether the refusal rests upon reason, or is the result of whim,
caprice, prejudice, or malice. With his reasons neither the public nor third persons have any
legal concern. It is also his right to have business relations with any one with whom he can
make contracts.' 2 Cooley on Torts, p. 587. (Cooley on Torts, Second Edition, sec. 278, p.
328.)
9. The foregoing case was not decided by this court but rather by the federal circuit court
for the district of Nevada. However, since said decision arose within the state, the rule set
forth therein is persuasive of what the common law is within this state. Furthermore, this
court has quoted said decision with approval in the case of Branson v. I. W. W., 30 Nev. 270,
at page 295, 95 P. 354.
10-12. It is our conclusion, therefore, that in view of the testimony of appellant himself to
the effect that he had no continuing contract with respondent, and that his contractual
relationship with respondent was of a very nebulous character, and could be terminated
at the whim of either appellant or respondent, respondent committed no wrong in
entering into the combination alleged to have been entered into by him in appellant's
second cross complaint and counterclaim.
had no continuing contract with respondent, and that his contractual relationship with
respondent was of a very nebulous character, and could be terminated at the whim of either
appellant or respondent, respondent committed no wrong in entering into the combination
alleged to have been entered into by him in appellant's second cross complaint and
counterclaim. If the testimony had indicated that a contractual relationship existed between
appellant and respondent which continued for a specified term, and if said testimony had
indicated that a combination or conspiracy was entered into for the purpose of destroying said
contractual right, appellant's offered testimony with reference to the existence of a conspiracy
might have been material. However, at the time the testimony relating to the conspiracy was
offered in evidence by appellant, appellant's own testimony negatived the existence of any
such contract, and to the contrary established the fact that no such contract existed. We
conclude, therefore, that the trial court did not err in excluding such testimony, in view of the
fact that respondent, in reducing the established discount rate to appellant from thirty-two
percent to twenty-five percent, did nothing more than he had an absolute right to do. Since
respondent had the absolute right to reduce said discount rate and since the services
performed by respondent for appellant were, at common law, not the subject of monopolies,
combinations or restraints of trade, as hereinabove found to be the case, the combination or
conspiracy complained of by appellant was not a combination or conspiracy to do a wrongful
act or an act in contravention of common law principles. Since respondent had the right to
reduce said discount rate, the fact that he may have conspired to reduce the same with various
other laundry operators, was an immaterial matter when judged by the principles of common
law applicable to this case, and consequently, any testimony in support of such conspiracy
would have been immaterial to a determination of the rights of the parties.
See, in this connection, the case of Bohn Manufacturing Company v. Hollis, 54 Minn. 223,
55 N.W. 1119, 1121, 21 L.R.A. 337, 40 Am.St.Rep. 319: What one man may lawfully do
singly, two or more may lawfully agree to do jointly. The number who unite to do the act
cannot change its character from lawful to unlawful. The gist of a private action for the
wrongful act of many is not the combination or conspiracy, but the damage done or
threatened to the plaintiff by the acts of the defendants. If the act be unlawful, the
combination of many to commit it may aggravate the injury, but cannot change the character
of the act. In a few cases there may be some loose remarks apparently to the contrary, but they
evidently have their origin in a confused and inaccurate idea of the law of criminal
conspiracy, and in failing to distinguish between an unlawful act and a criminal one. It can
never be a crime to combine to commit a lawful act, but it may be a crime for several to
conspire to commit an unlawful act, which if done by one individual alone, although
unlawful, would not be criminal. Hence, the fact that the defendants associated themselves
together to do the act complained of is wholly immaterial in this case. We have referred to
this for the reason that counsel has laid great stress upon the fact of the combination of a large
number of persons, as if that, of itself, rendered their conduct actionable. Bowen v. Matheson,
14 Allen 499; Steamship Co. v. McGregor, 23 Q. B. Div. 598 (1892) App.Cas. 25; Parker v.
Huntington, 2 Gray 124; Wellington v. Small, 3 Cush. 145 [50 Am.Dec. 719]; Payne v.
[Western & Atlantic] Railway Co., 81 Tenn., 507 [48 Am.Rep. 666].
13. See, also, the case of Werth v. Fire Companies' Adjustment Bureau, 160 Va. 845, 171
S.E. 255, at page 258:
A conspiracy consists of an unlawful combination of two or more persons to do that
which is contrary to law, or to do that which is wrongful and harmful towards another person.
It may be punished criminally by indictment, or civilly by an action on the case in the
nature of conspiracy if damage has been occasioned to the person against whom it is
directed.
indictment, or civilly by an action on the case in the nature of conspiracy if damage has been
occasioned to the person against whom it is directed. It may also consist of an unlawful
combination to carry out an object not in itself unlawful by unlawful means. The essential
elements, whether of a criminal or actionable conspiracy, are, in my opinion, the same,
though to sustain an action special damage must be proved.'
The above was said by Lord Brampton in the case of Quinn v. Leathem, (1901) A.C. 495,
70 L.J.P.C. 76, 65 J.P. 708, 50 W. R. 139, 85 L.T.N.S. 289, 17 Times L.Rep. 749, 1 British
Rul.Cas. 197. See also, 5 R.C.L. 1091, sec. 41; Amer. & Eng. Ency. of Law (2d ed.) 832;
Harris v. Com., 113 Va. 746, 73 S.E. 561, 38 L.R.A.,N.S., 458, Ann. Cas.1913E, 597.
The mere operation of a lawful business by lawful means, as a combination between
corporations or individuals to draw to themselves business from other competitors, however
hurtful to the latter, is not a conspiracy which is actionable.' 5 R.C.L. 1095, sec. 44.
In the case of West Virginia etc. Co. v. Standard Oil Co., 50 W.Va. 611, 40 S.E. 591,
594, 56 L.R.A. 804, 88 Am.St.Rep. 895, it was said: Counsel for plaintiff put emphasis on
the charge of conspiracy and malice; but there can be no conspiracy to do a legitimate actan
act which the law allowsnor malice therein. To give action there must not only be
conspiracy, but conspiracy to do a wrongful act. If the act is lawful, no matter how many
unite to do it. Bohn Mfg. Co. v. Hollis, 54 Minn. 223, 55 N.W. 1119, 21 L.R.A. 337, 40
Am.St.Rep. 319. * * *
It is no crime for any number of persons, without any unlawful object in view, to
associate and agree that they will not work for or deal with certain men, or classes of men, or
work under a certain price, or without certain conditions. Carew v. Rutherford, 106 Mass. 1,
14, 8 Am.Rep. 287.'
The definition or description which seems to be more generally adopted is that a
conspiracy must be a combination of two or more persons, by some concerted action, to
accomplish some criminal or unlawful purpose, or to accomplish some purpose, not in
itself criminal or unlawful, by criminal or unlawful means.' Harris v. Com.,
generally adopted is that a conspiracy must be a combination of two or more persons, by
some concerted action, to accomplish some criminal or unlawful purpose, or to accomplish
some purpose, not in itself criminal or unlawful, by criminal or unlawful means.' Harris v.
Com., 113 Va. 746, 73 S.E. 561, 562, 38 L.R.A.,N.S., 458, Ann. Cas.1913E, 597, and cases
there cited.
This principle of law finds approval in numerous authorities, and it is sufficient of our
purpose to cite but one further in support thereof, namely, the case of Lindsay & Co. v.
Montana Federation of Labor, 37 Mont. 264, 96 P. 127, at page 130, 18 L.R.A.,N.S., 707, 127
Am.St. Rep. 722: But there can be found running through our legal literature many
remarkable statements that an act perfectly lawful when done by one person becomes by
some sort of legerdemain criminal when done by two or more persons acting in concert, and
this upon the theory that the concerted action amounts to a conspiracy. But with this doctrine
we to not agree. If an individual is clothed with a right when acting alone, he does not lose
such right merely by acting with others, each of whom is clothed with the same right. If the
act done is lawful, the combination of several persons to commit it does not render it
unlawful. In other words, the mere combination of action is not an element which gives
character to the act.
We conclude, therefore, that appellant's first assignment of error is not well taken and that
the trial court properly excluded testimony relative to the matter of conspiracy in view of the
fact that we are dealing solely with the common law principles hereinabove propounded.
14. With reference to the question of whether or not the parties to this action were dealing
with each other on a twenty-five percent or thirty-two percent discount rate subsequent to
November 26, 1945, it is sufficient to state that there is ample evidence in the record to justify
the trial court in finding that the twenty-five percent discount rate prevailed between the
parties after November 26, 1945.
26, 1945. All of the dealings between the parties subsequent to said date were had upon said
basis and all bills for services performed by respondent for appellant were settled upon said
basis. None of the testimony offered by appellant and excluded by the trial court upon the
objection of respondent would in any way have altered the testimony with reference to said
matter, and consequently we are of the opinion that the trial court properly found that the
relationship of the parties subsequent to November 26, 1945, was governed by the
twenty-five percent discount rate.
The judgment and decision of the trial court is therefore affirmed.
Horsey, J., concurring:
I concur in the opinion of Mr. Chief Justice Eather, but not without reluctance.
I am opposed to, and detest, monopoly, and, in my view, the concerted action of the
laundry owners of the city of Reno in organizing the Washoe County Laundry Association,
evidently for the purpose of reducing the discount allowed the laundry drivers, from 32
percent to 25 percent upon the gross business turned in by them from the operation of their
laundry routes, thereby reducing the compensation of such drivers more than 20 percent, and
without prior collective bargaining, was unduly oppressive and arbitrary. The collective
action of the members of the association, in the letter they dispatched to the laundry drivers,
including the appellant, on November 19, 1945, notifying them of such reduction to become
effective November 26, 1945, appears to me to have been a bold and brazen manifestation of
the power and spirit of the monopolistic combination which had been formed and which
destroyed, as to the business theretofore transacted upon an individual basis with the laundry
drivers, all competition. The association evidently included practically all of the laundry
businesses in the city of Reno. The letter amounted to an ultimatum.
amounted to an ultimatum. The effect of it was that the drivers, who had their established
laundry routes and their savings invested therein, were told, in effect, to pay the increased
charge for the laundry, or go out of business in Reno, as there was no laundry, or laundries, of
any consequence in the city which were nonmembers of the association, with whom the
drivers could deal on a competitive basis.
We are completely powerless, however, to make these views effective, for the reason that
there is no statute in the State of Nevada prohibiting monopolies or agreements in restraint of
trade.
In the absence of statute, our only recourse is to the common law, and the common law
exempts from the prohibition of monopolistic combinations or agreements in restraint of
trade, those relating to personal services. And all the authorities classify the laundry business,
or those operating same, as being engaged in merely the rendition of personal services. In
addition to the cases cited by Chief Justice Eather, I cite: Morris V. Colman, 18 Vesey Jr.'s
Reports, p. 436, and State ex rel. Star Publishing Co. v. Associated Press, 159 Mo. 410, 456,
60 S.W. 91, 104, 51 L.R.A. 151, 81 Am.St.Rep. 368.
The opinion and decision of the California supreme court in the case of Endicott v.
Rosenthal, 216 Cal. 721, 16 P.2d 673, related to a dyers' and cleaners' association, not
different in principle, as to whether or not it related exclusively to personal services, from the
laundry business. The court was able, upon the basis of section 1673 of the California Civil
Code, which by its terms applied to business of any kind, to hold such association unlawful.
Nevada not having any statute prohibiting monopolies or agreements in unreasonable restraint
of trade, we are powerless, because of the absence of any legal basis, to so hold in the instant
case.
It would seem that the subject of the prohibition or regulation of monopolies and trusts is
one which should commend itself to the legislative branch of our state government, for
appropriate consideration and action.
____________
HOTELS EL RANCHO, INC., a Corporation, Et Al.,
Appellants, v. NEVADA PRAY, Respondent.
No. 3471
December 10, 1947. 187 P.2d 568.
1. Negligence.
The owner or occupant who, by invitation, induces others to come upon his premises, for any lawful
purpose, is liable in damages to such persons, they using due care, for injuries occasioned by unsafe
condition of the land or its approaches, if such condition was known to him and not to them, and was
negligently suffered to exist, without timely notice to the public or to those who were likely to act upon
such invitation.
2. Theaters and Shows.
Hotel operators who put on cross-country horse race were not relieved of duty to warn participants in
race of any latent defects in the condition of the realty on which the race was to be run, because of fact
that realty belonged to third party, where hotel operators had used the realty previously without
interference from the owner, and their use of the realty was to the same extent as though they had owned
or leased the property, or at least had a license from the owner.
3. Negligence.
One who invites others onto realty of which he is in apparent possession owes to them a duty to keep
the realty in a safe condition, even though his occupancy of the realty is a trespass as against the true
owner.
The alleged fact that hotel operators, who put on cross-country horse race, did not receive any
pecuniary profit from the race, did not relieve them from the duty of rectifying or at least warning
participants in race of any latent defects in the condition of the realty on which the race was to be run.
5. Negligence.
Any substantial or appreciable interest or advantage, whether pecuniary, recreational, educational, or
otherwise, which an owner or occupant of realty considers sufficient incentive to cause him to plan public
gatherings, exhibitions, or other events, and to invite others to participate therein, on premises owned or
occupied by him, in order to carry out such plan, is sufficient to justify imposing on him the duty of
employing ordinary and reasonable care that the realty shall be reasonably safe for use in carrying out the
purpose of the invitation.
Hotel operators, who featured the slogan Early West in Modern Splendor in their extensive
advertising, and who featured early western atmosphere, were not relieved of the duty of rectifying or
warning participants in cross-country horse race, sponsored by them, of defects in the realty where the
race was held, on ground that they did not receive any pecuniary profit from the
race, since they received pecuniary profit by way of advertising.
the race was held, on ground that they did not receive any pecuniary profit from the race, since they
received pecuniary profit by way of advertising.
Operators of hotel who, for purpose of advertising the hotel, put on a cross-country horse race on
realty owned by third person, were liable for death of participant in race, whose horse fell because of a
latent defect in the realty.
One entering into and participating in a cross-country horse race assumes the risk of injury from
natural hazards necessarily incident to, or which inhere in, such a race, under maxim volenti non fit
injuria, which means that to which a person assents is not esteemed in law an injury.
A participant in a cross-country horse race is deemed to assume the risk only of natural, ordinary
hazards, and not of extraordinary hazards or dangers artificially created, unless such hazards are known
to such invitee before he entered the race and he voluntarily assumed the risk thereof.
Hotel operators, who put on cross-country horse race, were not relieved of liability for death of
participant in race whose horse allegedly fell when it stepped into a hole made by the navy in a bombing
demonstration, on ground that participant assumed risk of injury, since such hole was not a normal or
ordinary risk incident to such race.
Hotel operators, who put on cross-country horse race, were not relieved of liability for death of
participant in race whose horse fell when it allegedly stepped in a hole made by the navy in bombing
demonstration, on ground that holes made by bombing were patent or obvious and should have been
observed by the participant, where the holes were only about 3 or 3 1/2 feet long, 2 or 2 1/2 feet wide and
about 18 inches deep.
12. Negligence.
The terms ordinary care and reasonable care, when used in connection with the duty of an owner
or occupant of land or buildings, to his invitees thereon for a particular purpose, are synonymous.
In action against hotel operators who put on cross-country horse race, for death of participant, whose
horse fell when it allegedly stepped into a hole, hotel operators had burden of proving that participant
was contributorily negligent.
In action against hotel operators who put on cross-country horse race, for death of participant whose
horse fell when it allegedly stepped into a hole, evidence sustained finding that
participant was not contributorily negligent.
allegedly stepped into a hole, evidence sustained finding that participant was not contributorily negligent.
The supreme court must affirm a judgment based on the verdict of the jury, where the evidence is in
conflict and there is substantial evidence to support the verdict, unless, from all the evidence, it is clear
that a wrong conclusion has been reached, or that the verdict is clearly wrong.
In action against hotel operators, who put on cross-country horse race, for death of participant whose
horse fell when it allegedly stepped into a hole, evidence sustained finding that accident occurred as
contended by plaintiff, and not as result of horse tripping over a small mound or knoll, surrounded by
wind-blown sand which was a natural hazard.
17. Trial.
Refusal of requested instruction was not error, where the matter embodied therein was sufficiently
presented by other instructions given.
Giving of instruction which was not sufficiently comprehensive, and which considered alone, did not
correctly state the law, was not reversible error, where deficiencies therein were sufficiently supplied by
another instruction given.
19. Trial.
All instructions must be considered together.
Action by Nevada Pray against Hotels El Rancho, Inc., a corporation, Hotel Last Frontier,
a partnership, and others, to recover damages for the death of plaintiff's son in a horse race.
The district court granted a motion of nonsuit as to Hotels El Rancho, Inc., a corporation.
From a judgment for the plaintiff against the remaining defendants and from an order denying
the motion of the remaining defendants for a new trial, they appeal. Judgment and order
affirmed.
See, also, 64 Nev. 22, 176 P.2d 236.
Leo A. McNamee and George Rudiak, both of Las Vegas, for Appellants.
Lewis & Hawkins, of Las Vegas, for Respondent.
OPINION
For convenience, throughout this opinion the appellants will be referred to as defendants,
and the respondent as plaintiff.
The above-entitled action was commenced February 7, 1946, by Nevada Pray, the plaintiff,
against the above-named defendants, to recover damages for the death, by the alleged
wrongful neglect of the defendants, of Carl Elvis Bales, the son of plaintiff and of one Orville
D. Bales.
It is alleged in the complaint that the said Carl Elvis Bales was born February 29, 1932, in
the city of Gary, Indiana, being of the age of about 16 years and 9 months at the time of his
death. Plaintiff and the said Orville D. Bales, the boy's father, were divorced in the Eighth
judicial district court of the State of Nevada, in and for the county of Clark, on the 12th day of
December 1943, and the custody of the said minor child, Carl Elvis Bales, was awarded to his
mother, the plaintiff herein, and he was continuously in her custody until his death, on the
25th day of November 1945, due, it is alleged in plaintiff's complaint, to the wrongful neglect
of the defendants.
No question appears to have been raised in the lower court as to the right of the plaintiff to
institute and maintain the action, as the surviving mother of the deceased.
The district court granted a motion for nonsuit as to the corporate defendant, Hotels El
Rancho, Inc., a corporation (Tr. folios 613-615). The case came to trial before a jury in the
said district court, May 6, 1946, the Hon. A. S. Henderson, district judge, presiding. The trial
was completed, and the verdict of the jury rendered and entered, May 11, 1946, in favor of
plaintiff and against the defendants, Hotel Last Frontier, a partnership, and the above-named
individuals comprising same, and awarding to said plaintiff damages in the sum of $S,000.
$8,000. On the said 11th day of May 1946, judgment upon said verdict was rendered and
entered, in favor of plaintiff and against said partnership and individual defendants, that
plaintiff have and recover said sum of $8,000, together with plaintiff's costs and
disbursements, in the sum of $384.85. On June 1, 1946, the defendants moved for a new trial
in the district court, upon the grounds stated in their notice of intention to move for a new
trial (Tr., folios 1002-1006), which motion was argued, submitted, and, on said June 1, 1946,
denied. It is from such judgment and the order denying defendant's motion for a new trial that
the defendants, Hotel Last Frontier, a partnership, and the individual defendants comprising
same, and above named in the title of the action, have appealed.
The district judge, at the trial, in the court's instruction No. 27, instructed the jury as
follows:
The jury is further instructed that it is alleged in the Complaint and admitted by the
Answer, among other allegations and admissions set forth in said pleadings, that defendants,
Hotel Last Frontier, a partnership, and William J. Moore, Jr., Ballard Barron, Harold Harris,
Ted Jones, sued as Ted Janes, R. I. Payne, sued as R. J. Payne, Lynn Stocker, R. A. Higdon,
sued as K. A. Higdon, Fred Morley, Fred Hoenscheidt, Jo Mattison Griffing, H. J. Griffith
and H. J. Griffith, Trustee for Robert Earl Griffith, Jr., copartners associated in business
under the fictitious name of Hotel Last Frontier, having decided to conduct a cross-country'
race on the morning of November 25, 1945, over and upon certain unimproved sandy country
lying immediately across highway 91 from said Hotel Last Frontier ground, over which
premises and property they had theretofore conducted so-called treasure hunts on horse back,
caused to be published in the Las Vegas Evening Review-Journal, a daily newspaper printed
and circulated in Las Vegas, Nevada on November 21st and November 23d, 1945, notice that
said cross-country race would be run on Sunday morning, November 25, 1945, over a '1J2
mile switch back course' for prizes designated in said notice to be given to the first three
contestants to complete said course and finish said race; that the notice so published as
aforesaid informed the public that the persons desiring to enter such cross-country race
should register at a time and place designated in said notice.
1/2 mile switch back course' for prizes designated in said notice to be given to the first three
contestants to complete said course and finish said race; that the notice so published as
aforesaid informed the public that the persons desiring to enter such cross-country race should
register at a time and place designated in said notice. That the said Carl Elvis Bales, minor
son of plaintiff who was then a healthy normal child presented himself as a contestant on said
November 25, 1945, and registered as an entrant in said cross-country race; that thereafter he
lined up at the starting point with the other entrants as directed; that upon the signal to go
being given, said Carl Elvis Bales rode his horse along the course pointed out by the
defendants, Hotel Last Frontier, a partnership, and the individual defendants as partners.
That the said minor child, while on said horse, in an effort to win said cross-country race
rode his horse directly for the southerly point of the knoll around which from right to left the
riders participating in said race were required to circle before completing said race. That
while on said course, the horse then being ridden by the said Carl Elvis Bales, now deceased,
fell and threw deceased to the ground so violently that deceased was rendered unconscious
and so badly injured that said child died within a few minutes without regaining
consciousness.
And in that connection you are further instructed that as to all matters so alleged and
admitted by the pleadings, no evidence need be given relative to such allegations and
admissions.
In addition to the above-stated facts admitted by the pleadings, other facts having an
important bearing upon the legal situation in the case are either conceded, in effect, by the
arguments in the briefs, or are clearly established by the evidence. Among such facts are the
following:
That on October 27, 1945, in connection with the Navy Day celebration, a bombing
demonstration was conducted near the Hotel Last Frontier, over and above the vacant
land containing the course upon which the cross-country race involved in this case was
run about a month later, on November 25, 1945; that numerous rocket missiles, or
bombs, were, by the navy demonstrators, released and fired at a target consisting of a
mound, or knoll, about one fourth of a mile east of the Hotel Last Frontier, which mound,
or knoll, was the half way point of the "1J2 mile switch back course" over which the
cross-country race was run, November 25, 1945; that as a result of said bombing
demonstration, numerous of such bombs, or rocket missiles, fell to the ground near, and,
principally, south and west of said knoll, or mound; that upon coming in contact with the
ground, these rocket missiles generally exploded, and "churned or burrowed" their way
into the ground, making holes, or depressions, therein, of various dimensions.
Day celebration, a bombing demonstration was conducted near the Hotel Last Frontier, over
and above the vacant land containing the course upon which the cross-country race involved
in this case was run about a month later, on November 25, 1945; that numerous rocket
missiles, or bombs, were, by the navy demonstrators, released and fired at a target consisting
of a mound, or knoll, about one fourth of a mile east of the Hotel Last Frontier, which mound,
or knoll, was the half way point of the 1/2 mile switch back course over which the
cross-country race was run, November 25, 1945; that as a result of said bombing
demonstration, numerous of such bombs, or rocket missiles, fell to the ground near, and,
principally, south and west of said knoll, or mound; that upon coming in contact with the
ground, these rocket missiles generally exploded, and churned or burrowed their way into
the ground, making holes, or depressions, therein, of various dimensions. These holes, or
depressions, were numerous in the area adjacent to the mound, or knoll, mentioned. Matt
Pray, the step-father of the deceased, Carl Elvis Bales, testified that he counted eight or ten of
them. William J. Moore, Jr., the manager and director of the enterprise known as Hotel Last
Frontier, and one of the defendants, testified, on that point, Well, I'll say thisthat the
ground was rough as the devil, that there was hole after hole out there, of every type. (Tr.,
folios 134-137).
Gustave Martin Granstrol testified, in effect, that such holes were around two feet on the
surface, and they funnelled down2 1/2 feet around and they funnelled down about two feet,
and they were just the size of the rocket. They were filled in with dirt if the rocket wasn't
there, like a long funnel (Tr., fol. 479, 480).
The substance of William J. Moore's testimony is that although he knew of the navy
demonstrations, October 27, 1945, and that, acceding to the request of the chamber of
commerce, the public were invited to that hotel to witness such demonstrations, and that
bombs were dropped in the vicinity of the course proposed to be used for the
cross-country race, he did not examine the course to see if it was safe to run horses
thereon, until after the accident occurred, resulting in the Bales boy's death, November
25, 1945 {Tr., folios 10S, 109).
Mr. Moore further testified that Miss Jerre Wyckoff was the employee of the hotel in
charge of the conducting of the treasure hunt and cross-country race on November 25,
1945 {Tr., fol.
hotel to witness such demonstrations, and that bombs were dropped in the vicinity of the
course proposed to be used for the cross-country race, he did not examine the course to see if
it was safe to run horses thereon, until after the accident occurred, resulting in the Bales boy's
death, November 25, 1945 (Tr., folios 108, 109).
Mr. Moore further testified that Miss Jerre Wyckoff was the employee of the hotel in
charge of the conducting of the treasure hunt and cross-country race on November 25, 1945
(Tr., fol. 115). It appears from Mr. Moore's further testimony that he had never, prior to about
ten days after the accident occurred, visited the course over which the races were conducted
(Tr., folio 119).
Miss Geraldine Wyckoff testified, as a witness for defendants, that from July 1, 1943 (Tr.,
fol. 644), until the middle of March, 1946 (Tr., fol. 619), she had been employed by, and had
resided at, the Hotel Last Frontier; that she had charge of publicity and advertising in
connection with the treasure hunt and cross-country race held by defendants on November 25,
1945, and made the arrangements for such events, fixed the date, and wrote the copy for the
advertisements (Tr., folios 624, 625); she testified further (Tr., folio 627), that she put the
advertisements in the Las Vegas paper, and told those participating in the events what they
were to do in conducting such races. Miss Wyckoff testified further that no races were
conducted by the Last Frontier Hotel between February or March, 1945, and November 25,
1945 (Tr., folio 647).
Miss Wyckoff further testified that she knew about the demonstration of bombing, by the
naval airplanes, on October 27, 1945; that she viewed the demonstration herself, from in
front of the hotel, standing on the porch there, a little driveway there (Tr., folio 657). She
further testified that prior to the time she went over the course with Mr. Gene Lowe, which
was subsequent to the time of the cross-country race, which was run November 25, 1945,
she had never been over that course before {Tr., folio 660). The visit, with Mr. Lowe, to
the scene of the accident occurred probably a week or two after the races were run,
according to the testimony of the witness {Tr., fol.
November 25, 1945, she had never been over that course before (Tr., folio 660). The visit,
with Mr. Lowe, to the scene of the accident occurred probably a week or two after the races
were run, according to the testimony of the witness (Tr., fol. 662). It is, therefore, obvious
Miss Wyckoff had never, prior to the time of such cross-country race, November 25, 1945,
examined the course to see whether it was reasonably safe for such race. Miss Wyckoff also
testified that she knew the mound, or knoll, at the half way point of such race course was the
target for the navy bombardment, and that she saw the target (Tr., fol. 659); also, that she saw
the bombs dropping over there (Tr., fol. 658). Miss Wyckoff testified, further, that when she
went over the ground where the bombs fell, about a week or two after the cross-country race,
she saw several holes around the south end of the knoll, or mound, which was the bombing
target.
The testimony of Matt Pray in relation to the question of whether or not the Bales boy
knew of the holes, or depressions, caused by the exploding bombs, was to the effect that the
last time the boy had ridden the course prior to November 25, 1945, was approximately a year
before, and that neither he (Pray) nor the boy had ridden the course in the year 1945, prior to
the time of the cross-country race, November 25, 1945.
None of the testimony given at the trial indicates that the Bales boy visited the race course
on the day of the bombing demonstration, or at any time thereafter and prior to his visit on the
date of his death, or that he knew, or should have known, on November 25, 1945, of the
presence of the bomb craters, or depressions, there, caused by the exploding rockets.
The theory of the plaintiff is that the accident which resulted in the death of Carl Elvis
Bales was caused by the horse upon which he was riding in the cross-country race stepping
into the hole, or bomb crater, found, after the accident, to be the one of such holes situate
nearest to the imprint of the fallen horse and to the place where the injured boy was lying
very soon after the horse had fallen.
situate nearest to the imprint of the fallen horse and to the place where the injured boy was
lying very soon after the horse had fallen. The theory of the defendants is, in effect, that the
physical facts in the near vicinity of where the horse fell are such as rendered impossible for
the accident to have been caused by the Bales boy's horse stepping in the bomb depression, or
hole, nearest to where the boy was found shortly after the accident; that the knowledge
derived from experience as to falling horses, particularly as to where they will alight after
tripping, or being thrown, precludes acceptance of plaintiff's theory.
Upon that phase of the case, the testimony of Matt Pray was, substantially, to the effect
that when he saw the horse falling, he stopped his own horse as quick as he could, and rode
back to where Carl Elvis Bales was lying; that he found the boy lying on the ground, bleeding
badly, and gasping for breath (Tr., folios 162-165). In answer to the question as to what, if
anything, out of the ordinary he saw about there, he answered (Tr., folio 165): There was a
hole there about 20 feet from where he was lying. He then testified as to taking the boy to
the hospital, and that he died there about 10 or 15 minutes after they reached the hospital.
Further on in his testimony, Mr. Pray was asked about the hole nearest to where he found the
injured boy lying, and, in response to the question, How far was that hole from where the
boy was lying when you got to him? answered, I would say twenty feet (Tr., folio 173).
Mr. Pray testified further, in substance (Tr., folios 173-178), that the hole was west of where
the boy was lying; that said hole was approximately thirty feet from the knoll, or mound; that
he had stepped the distance; that he took about ten steps, each approximately 3 feet2 1/2
anyway; that on the next Tuesday after the Sunday upon which the accident occurred he
examined the hole, and saw marks on it. Asked to describe what the marks were that made
him conclude that the horse had stepped in there and fallen, Mr. Pray stated: The print of the
horse was there where he fell."
print of the horse was there where he fell. Questioned further, the witness stated: Well, the
sides of the hole showed where the sides had caved off. Asked, Did you see any imprint on
the ground beyond that hole?, the witness answered, Yes, sir. Then asked what the imprint
was, he answered: The print of where the horse had fell. Questioned further as to the size of
that hole, Mr. Pray answered: That hole was about 3 feet long, three and a half; two and a
half feet wide and about two feet deep (Tr., folio 180). The witness further testified (Tr.,
folio 182), in substance, that the hole was directly in the path, or in line, between the starting
point of the cross-country race and the south end of the knoll. And, further on (Tr., folio 182),
that he saw other holes near the south end of the knoll, and near the one concerning which he
had testified as the hole nearest to where the boy was lying when he went to him immediately
after the accident; that he counted eight or ten of them; that there were eight of such holes,
approximately (he never stepped them), as near to the south end of the knoll as the one he had
just described (the hole nearest the boy); that, looking north from the hole he had been talking
about, he saw a hole, and measured it; that such hole was about 3 1/2 or 4 feet long, about 3
feet wide, and 2 or 2 1/2 feet deep; that that hole was approximately 35 feet from the hole
nearest to where the boy was lying.
Lee Simpson, a witness on behalf of the plaintiff, testified, in part, substantially as follows:
that he arrived at the Last Frontier Hotel about four or five minutes after the cross-country
race, on November 25, 1945; that a fellow named Tex told him about the accidenthe was
riding Matt's (Matt Pray) horse, and they went out to this particular spot, and looked it over;
that he went out to near a sand dune where there was a hole, east of the Hotel Last Frontier,
there; that he had ridden in some of the stake races conducted under the auspices of the
Hotel Last Frontier, over the same ground he went over that day (November 25, 1945); that
he had ridden in one that took him over near the knoll, or sand dune, which was the
half-way, or turning, point of the cross-country race, November 25, 1945; when he so
rode {presumably in a treasure hunt), they would get off their horses, and search around
for stakes; that he had moved along on foot near the south end of the knolland had
"been over all that both horseback and on foot"; that the witness never, prior to the 25th
of November, 1945, saw the hole that he saw there that day; that he did not take any
measurements of the hole to ascertain its size {Tr., folio 2S2), "just went up and looked
down in the hole to see what happened, because I could see where a horse had fell and I
wanted to see, naturally, what caused it.
ridden in one that took him over near the knoll, or sand dune, which was the half-way, or
turning, point of the cross-country race, November 25, 1945; when he so rode (presumably in
a treasure hunt), they would get off their horses, and search around for stakes; that he had
moved along on foot near the south end of the knolland had been over all that both
horseback and on foot; that the witness never, prior to the 25th of November, 1945, saw the
hole that he saw there that day; that he did not take any measurements of the hole to ascertain
its size (Tr., folio 282), just went up and looked down in the hole to see what happened,
because I could see where a horse had fell and I wanted to see, naturally, what caused it.
That's what I looked for. When he looked down into that hole, he saw the bottom of the
hole was all torn up; the dirt in the bottom of the hole was freshtorn up. Asked if it had
been freshly disturbed, if that was what he meant, the witness answered: That's right. The
witness further testified, as to the size of the hole, well, it was two or three feet, externally,
and seemed to me like it was a little bit longer one way than it was the otherthat he
imagined it was somewhere around three feet, the long way; across the other way it was
two or a little better, it seemed to me like; the sand in the bottom of the hole looked to me
about 18 inches deep. That was my opinion.; * * * 18 inches down to the loose dirt, is what
I figured. The witness testified, further, that he seen the imprint ofkind of imprint of a
horse where he scrambled getting up, and falling together, and the blood where the boy had
been crushed; that the imprint was right there by the side of it (where the boy had been
crushed), and right around, you might say. Asked how far away he would say the imprint of
the body of the horse was from that hole, the witness answered: It must have been 15 or 18
feet, something like that. Asked whether he knew what the general condition of the ground
immediately around that hole was, with reference to whether or not it was "brushy," the
witness answered:
was, with reference to whether or not it was brushy, the witness answered:
A. Well, there is not too much brush there around that thing, maybe a little bit of that is
sagebrush.
Q. About how far? A. There on the south and east there is some of that greasewood out
there. I saw it.
Q. How far is that from the hole, do you think? A. The biggest part of it would be 50 to
100 feet, somewhere around there, from the hole out to the side. (Tr., folios 283-287).
LaVerne Allen, a witness on behalf of the defendants, testified, in part, substantially as
follows: That witness was one of the riders in the cross-country race, November 25, 1945;
that he was approximately 25 feet behind Carl Elvis Bales, and 6 feet to the side of him, when
the horse fell; that he saw Bales when his horse fell; he saw the horse's head go down, and
there was a lot of dust, and then the horse got up on a run (Tr., folios 745-747); that witness
and Buck Ackley were the first to reach the place where the injured boy was lying; that he
saw Carl lying on the ground, at the time he approached where Carl fell; that part of Carl's
head was pushed into the sand (Tr., folio 749); that there was no hole within ten feet, either
direction, of where the boy had fallen (Tr., folio 751); that, with Mr. Rudiak and Mr.
McNamee, he visited the scene of the accident the day before he testified (Tr., folio 754); that
witness saw a hole in the vicinity of the blood spot, about 30 feet from the position of the
blood; that he knew it was 30 feet, because he paced it offthat every two steps averaged
five feet; that he did not see that hole on the day of the accident (Tr., folios 756-758). The
witness was asked whether he had ever seen any small sand dunes or rises in the ground,
created by sand having blown about a bit of desert vegetation, or desert brush, or something
of that sort, and answered, I have; that in his opinion, as an expert horseman, that
sometimes constitutes a hazard to a man on horseback; that he had been thrown from a
horse as a result of the horse tripping over such a "rise" in the ground {Tr., folio 764);
that there were small mounds of that character in the immediate vicinity of where the boy
had fallenthere were five or six; "there was one or two straight in front of from where
the boy had fallen" {Tr., folios 765, 766); there was one in particular that was a little to
the south and straight west, ten feet, or close to ten feet, west of the spot of blood {Tr.,
folios 76S- 769).
sometimes constitutes a hazard to a man on horseback; that he had been thrown from a horse
as a result of the horse tripping over such a rise in the ground (Tr., folio 764); that there
were small mounds of that character in the immediate vicinity of where the boy had
fallenthere were five or six; there was one or two straight in front of from where the boy
had fallen (Tr., folios 765, 766); there was one in particular that was a little to the south and
straight west, ten feet, or close to ten feet, west of the spot of blood (Tr., folios 768- 769).
Delbert Allen, a witness for defendants, testified, among other things, that he was a
participant in the cross-country race, November 25, 1945; he saw the horse fall, with the boy
on it; that when the horse went down and turned over, his feet were in the air, when witness
passed him; that witness was right across from him, 7 or 8 feet; that witness just kept going,
that is, he continued in the horse race (Tr., folios 838-840). Asked if he knew what the
average length of a horse is, between his hind legs and his front legs, the witness answered:
Some are longer than others, but the gross of most of them is six feet between the hind legs
and fore legs (Tr., folios 841, 842). That the witness visited the scene of the accident on the
day he was testifying; that upon the visit that day he identified the place where he saw the
horse fall, by the fact that they found some dry blood where the boy was found (Tr., folio
856). The witness was then asked:
Q. And will you state again, please, what the distance was between the spot where you
found the dry blood and the spot where you found a hole, which hole is indicated by the letter
D'? (Upon a drawing on the blackboard at the trial.) A. By stepping it off, it would be
around 35 feet.
The witness further testified, when asked if he recalled having seen a hole on November
25, 1945, in the location indicated on the drawing as letter D; I don't rememberI was
traveling too fast.
rememberI was traveling too fast. I wasn't paying attention to a hole. (Tr., fol. 857.) Asked
if he observed anything else in the immediate vicinity of the spot where he found the dry
blood, the witness answered: Yes, there was a little knoll 12 feet away from where the blood
was (Tr., folio 858) * * * twelve feet by stepping it off; that the little knoll is just a little
brush with a bunch of dirt around it; that the knoll was two feet wide and eight inches high
at the highest point; that, in the vicinity where the dry blood was found, the witness observed
other mounds of a similar character, on the sides, that is, in a northerly and southerly direction
from the mound marked E on the blackboard drawing (Tr., folios 859, 860).
Before proceeding to treat the controversial issues involved in the instant case, we will set
forth certain legal principles which, it is believed, are applicable in the premises.
Defendants, in connection with their discussion, in their opening brief, of the extent of the
duty of an owner or occupant of land to an invitee, under various circumstances, have
presented, and quoted (opening brief, pp. 10, 11) the rule as stated in 38 Am.Jur., p. 754, as
follows:
The rule is that an owner or occupant of lands or buildings, who directly or impliedly
invites others to enter for some purpose of interest or advantage to him, owes to such person a
duty to use ordinary care to have his premises in a reasonably safe condition for use in a
manner consistent with the purpose of invitation, or at least not to lead them into a dangerous
trap or to expose them to an unreasonable risk, but to give them adequate and timely notice
and warning of latent or concealed perils which are known to him but not to them. * * *
There is no liability for injuries from dangers that are obvious, reasonably apparent, or as well
known to the person injured as they are to the owner or occupant.
1. The United States supreme court, in the opinion by a very learned and able jurist, Mr.
Justice Harlan, in the case of Bennett v. Louisville & N. R. Co., 102 U.S. 577, 26 L.Ed. 235,
on page 236, has presented, and stated, the rule, as follows:
The facts disclosed by the pleadings, and by the demurrer conceded to exist, seem to
bring this case within the rule, founded in justice and necessity and illustrated in many
adjudged cases in the American courts, that the owner or occupant of land who, by invitation,
either express or implied, induces or leads others to come upon his premises, for any lawful
purpose, is liable in damages to such persons, they using due care, for injuries occasioned by
the unsafe condition of the land or its approaches, if such condition was known to him and
not to them, and was negligently suffered to exist, without timely notice to the public or to
those who were likely to act upon such invitation. New Orleans, M. & C. R. Co. v. Hanning,
15 Wall. 649, 82 U.S. 649, 21 L.Ed. 220; Carleton v. Franconia Iron & Steel Co., 99 Mass.
216; Sweeney v. Old Colony & N. R. Co., 10 Allen, Mass., 368, 87 Am.Dec. 644; Whart.,
Negl., secs. 349-352; Cooley, Torts, 604-607, and authorities cited by those authors. The last
named author says that when one Expressly or by implication invites others to come upon his
premises, whether for business or for any other purpose, it is his duty to be reasonably sure
that he is not inviting them into danger, and to that end he must exercise ordinary care and
prudence to render the premises reasonably safe for the visit.'
In the opinion, the learned justice then stated: The rule is also illustrated in many cases in
the English courts, some of which it may be well to examine, and then proceeded to present,
discuss and quote from many of the English cases elucidating and applying the rule to the
particular facts and circumstances existing in those cases.
This court, in the case of Nevada Transfer & Warehouse Co. v. Peterson, 60 Nev. 87, 90,
on pages 98, 99, S9 P.2d S, 99 P.2d 633, on page 637, in the opinion, by Mr.
89 P.2d 8, 99 P.2d 633, on page 637, in the opinion, by Mr. Justice Ducker, stated:
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. 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.'
2. In arguing as to the extent of the duty which defendants owed the deceased, Carl Elvis
Bales, in connection with his participation in the cross-country race, November 25, 1945,
defendants question the contention of plaintiff that the deceased was an invitee, or business
visitor, in the sense requiring defendants to exercise ordinary care that the property he was
invited to enter was in reasonably safe condition for the purpose of the invitation. Defendants
contend, in effect, that inasmuch as the defendants had no permanent status as occupants of
the premises involved, defendants were, to the extent of their use of the premises for the
races, November 25, 1945, trespassers as against the true owner of the property, and that the
deceased, Carl Elvis Bales, by his participating in such use of the property, was also a
trespasser. We do not believe this would affect the duty of defendants to rectify, or at least
warn against, any latent defects in the condition of the portion of the property upon which the
cross-country race was to be run. The defendants used the premises without interference from
the owner, and had done so previously, as to other races. Their use for the particular purpose
mentioned was to the same extent as though they had owned or leased the property, or, at
least, had a license or agreement from the owner permitting them to conduct the treasure
hunt and cross-country race thereon, on the date mentioned.
the owner permitting them to conduct the treasure hunt and cross-country race thereon, on the
date mentioned. By virtue of defendants' advertisements, in the Las Vegas Evening
Review-Journal, of the intended treasure hunt and the cross-country race, to occur November
25, 1945, inviting qualified persons to become participants in such races, those reading such
advertisements, and, pursuant to the invitation thereby extended, becoming participants
therein, had the right to assume that the defendants possessed the right to conduct such races
over the course indicated in the advertisements. It would seem that this would be especially
so as to invitees who had participated previously in any race, or races, or treasure hunt, over
the same course, at the invitation of the defendants. A participant in such race, or races, in
response to such an invitation, would not be burdened with the duty of ascertaining whether
or not the invitor was an owner, lessee, licensee, or a mere trespasser. Such a burden would
not be to the benefit of the invitor, as it would, undoubtedly, so discourage participants as to
seriously endanger the ability to make the events successful.
3. The plaintiff has, as to this question, cited and quoted the following from 45 C.J., sec.
246, p. 838:
One who invites others on to property of which he is in apparent possession owes to them
a duty to keep the property in safe condition, even though his occupancy of the property is a
trespass as against the true owner.
Defendants have, also, in their opening brief, argued to the effect that they derived no
direct pecuniary benefit from the cross-country race in which Carl Elvis Bales participated;
that they sponsored such events at the instance of the horsemen of the community, and racing
enthusiasts generally, in order to promote and enhance, in that locality, the restoration of the
early western atmosphere; that same, as an added attraction to tourists, was mainly for the
benefit of the community, and for the benefit of defendants only incidentally, in perhaps
bringing them a few more guests, or patrons, at the time of the races.
for the benefit of defendants only incidentally, in perhaps bringing them a few more guests, or
patrons, at the time of the races.
4. The authoritative statements of the rule defining the duty of those inviting others upon
property owned or occupied by the former for a particular purpose, do not confine such
purpose to one of pecuniary profit to the invitor. In the statement of the rule by the United
States Supreme Court, in Bennett v. Louisville & N. R. Co., supra, the words for any lawful
purpose are employed by Mr. Justice Harlan, in the portion of the statement of which he was
the author; and same is immediately followed by a quotation from Cooley, Torts, 604-607, in
which the great jurist and law teacher, Judge Cooley, used the words whether for business or
for any other purpose, in his statement of the rule hereinabove quoted more fully.
In 45 C.J., p. 875, in the statement of the rule, quoted with approval by Mr. Justice Ducker
in Nevada Transfer & Warehouse Co. v. Peterson, supra, there is no express mention, at all,
of the purpose of the invitationmerely the clause, and who invites others to enter upon the
property owes to such others the duty to warn them of the danger, etc.
5. The statement of the rule in 38 Am.Jur., sec. 96, p. 754, quoted in part by defendants in
their opening brief, pp. 10, 11, as hereinbefore set out, does contain the phrase, for some
purpose of interest or advantage to him. But we do not interpret this phrase to mean that the
interest or advantage to the invitor, to be derived by him from the carrying out of the
purpose of the invitation, must, necessarily, be pecuniary. Any substantial or appreciable
interest or advantage, whether pecuniary, recreational, educational, charitable, spiritual, or
otherwise, which an owner or occupant considers sufficient incentive to cause him to plan
and purpose public gatherings, assemblages, exercises, exhibitions, or other events, and to
invite others to participate therein, upon premises owned or occupied by him, in order a
carry out such plan or purpose, is sufficient, we believe, to justify imposing upon the
invitor the duty of employing ordinary or reasonable care that such property shall be
reasonably safe for use in carrying out the purpose of the invitation.
upon premises owned or occupied by him, in order a carry out such plan or purpose, is
sufficient, we believe, to justify imposing upon the invitor the duty of employing ordinary or
reasonable care that such property shall be reasonably safe for use in carrying out the purpose
of the invitation. The one extending the invitation should be the judge of the interest or
advantage to him of that which he sponsors, and in which he invites the participation of
others. The fact that he invites their participation should be sufficient assurance to them that
he has determined that the affair, or event, in which they are invited to participate is of
sufficient interest or advantage to him to justify his assuming the responsibility of employing
ordinary or reasonable care to have the property or premises upon which the affair, or event,
is to take place, in reasonably safe condition therefor.
Be that as it may, it is abundantly clear from the authorities that, even if the expectation of
pecuniary profit may be considered an essential condition to the imposition of the duty of
ordinary or reasonable care to have the premises reasonably safe for the intended purpose, or,
at least, to warn the invitees of any latent defects therein, such expectation need not be of
immediate pecuniary advantage.
In the same section 96, quoted in part by defendants, and by us, there is this further
sentence, on page 756 (38 Am.Jur.):
The fact, however, that pecuniary profit was not expected by the owner or occupant to
accrue immediately from the entry of one whom he invites to come upon the premises does
not affect his liability to such person. Citing Leighton v. Dean, 117 Me. 40, 102 A. 565,
L.R.A. 1918B, 922.
6, 7. The slogan of the Hotel Last Frontier, as disclosed by the evidence, is, Early West
in Modern Splendor. The hotel management features this slogan in their extensive
advertising, and the racing events they sponsor are features of the early western atmosphere
promised by this slogan, such events being not only calculated to attract guests directly,
but, also, to publicize through those who have witnessed them that the environment of
this resort hotel, in reality, has the early western atmosphere which it has been
represented to have.
promised by this slogan, such events being not only calculated to attract guests directly, but,
also, to publicize through those who have witnessed them that the environment of this resort
hotel, in reality, has the early western atmosphere which it has been represented to have. Such
atmosphere, or environment, and all that contributes to it, including the racing features, are
intended, of course, for the purpose of increasing the attractiveness of the hotel to tourists,
and so, thereby, materially contributing to the long-range expansion of the business, with its
consequent increase in pecuniary benefits. There is no merit to the idea advanced by
defendants that the principal purpose of the races of November 25, 1945, was not that of
pecuniary profit.
The defendants have argued that the very nature of the risks assumed by the deceased, Carl
Elvis Bales, in entering the cross-country race was one of hazardthat his horse might trip
and fall, and throw its rider, as a result of the rough character of the terrain.
8. One entering into and participating in a cross-country race does assume the risk of
injury from the natural hazards necessarily incident to, or which inhere in, such a race. To the
extent of natural hazards, the maxim, volenti non fit injuria applies, which, translated,
means, that to which a person assents is not esteemed in law an injury. The doctrine, or
principle, is stated in 38 Am.Jur. 845, as follows:
One who knows, appreciates and deliberately exposes himself to a danger assumes the
risk' thereof.
9. The natural hazards which the invited participant in a cross-country race may be
properly assumed to know and appreciate, in the absence of evidence of actual knowledge
thereof, are those which usually are the accompaniment of such a race, such as natural
gulleys, natural water-ways or depressions in the surface of the terrain caused by action of the
elements, rocky or sandy elevations, bushes and other vegetation growing on the surface, etc.
But the participant in such a race is deemed to assume the risk only of such natural,
ordinary hazards, and not of extraordinary hazards or dangers artificially created, unless
such artificially created hazards are known to such invitee before he enters the race, and
he voluntarily assumes the risk thereof.
is deemed to assume the risk only of such natural, ordinary hazards, and not of
extraordinary hazards or dangers artificially created, unless such artificially created hazards
are known to such invitee before he enters the race, and he voluntarily assumes the risk
thereof. 45 C.J. 837.
Such hidden dangers as pitfalls, traps, shafts, holes (so situated as to be partially hidden or
obscured), and other excavations artificially created, and the presence of which is known, or
by the use of reasonable care should be known, to the owner or occupant, and which are not
known to the invitee, or would not be observed by him by the use of ordinary care, do not
come within the operation of the doctrine of assumption of risk, nor of the doctrine expressed
by the maxim, volenti non fit injuria.
10. It cannot fairly be held, therefore, that the dangers arising from holes or depressions in
the course of the cross-country race conducted by the defendants, November 25, 1945, and
which were testified to at the trial, by numerous witnesses, as having been produced by the
navy day bombardment, were any part of the normal or ordinary risks which inhere in, or are
incident to such a race.
Even though a certain hole, artificially created, may not be more dangerous than some
obstruction or danger naturally created, it is only the natural, ordinary hazards which the law
deems the invitee in such a race to have assumed, in the absence of evidence of voluntary
assumption of extraordinary risks. To impose upon the invitee such added risk from dangers
unknown to him is unwarranted in the law upon any theory that such dangers, considered
individually, may be no greater than certain individual hazards naturally created. The obvious
truth is that, in the absence of knowledge of perils not ordinarily incident to a cross-country
race, but artificially created, the invitee has the right to rely upon the assurance that the owner
or occupant of the land, who has invited him to participate in the race, will exercise
reasonable or ordinary care, by examinations or inspection of the premises to learn of the
condition of the same for use in accordance with the purpose of the invitation, and that
such owner or occupant will either rectify hidden defects, or those which are not readily
observable to one in the situation of the invitee, or that he will, at least, give timely
warning of their presence.
invited him to participate in the race, will exercise reasonable or ordinary care, by
examinations or inspection of the premises to learn of the condition of the same for use in
accordance with the purpose of the invitation, and that such owner or occupant will either
rectify hidden defects, or those which are not readily observable to one in the situation of the
invitee, or that he will, at least, give timely warning of their presence.
The defendants, most earnestly, contend that the presence of the holes or depressions in
the near vicinity of the mound or sand dune which was the half-way point of the
cross-country race, and in the line of the course of the race, was so obvious, to one using
ordinary care for his own safety, that no duty devolved upon defendants even to warn the
participants in such race, including the deceased, Carl Elvis Bales, of such danger, or to take
other steps to remedy the same. Defendants, in their opening brief, page 10, have cited
numerous cases in support of their contention, and we have carefully considered them, and
will now refer to some of those authorities.
Hill v. Eaton et al., 65 Cal.App.2d 11, 149 P.2d 762, 764, was an action brought by
plaintiff therein, a roofer employee of a subcontractor, against a general contractor, for
injuries sustained by the plaintiff from falling through an open skylight in the roof of the
structure upon which he was working, as such roofer. A judgment of nonsuit was affirmed,
upon the ground that the open skylights were obvious; they were not hidden in any way, and
plaintiff was an experienced roofer, fully aware of their existence. That case is readily and
clearly distinguishable from the instant case. In the former, the plaintiff was an experienced
roofer, and his occupation necessarily brought him in contact with open skylights frequently.
Their presence, from time to time, was a patent danger, readily observable, particularly to one
experienced as a roofer, whose very occupation had undoubtedly taught him to expect their
presence.
presence. Being an ordinary incident of his occupation, he would properly be deemed, in the
absence of extraordinary conditions of danger, to have assumed the risk of any injuries which
might result from the presence of such skylights. Besides, his ordinary work did not require
him to approach the skylights hastily, without time or opportunity for observation, but in the
usual leisurely manner of such workmen. To one in his situation, the danger was clearly
obvious.
11. On the other hand, the danger to Carl Elvis Bales, from the holes made by the
bombing, was not one naturally incident to his occupation, for which experience had fitted
him; nor was it a danger inhering in, or incident to, a cross-country race, and which he could
be deemed to have anticipated. Instead, it was an extraordinary danger, artificially created,
which, by the use of ordinary diligence, the invitor had ample opportunity to know about
(having known that the bombing had occurred), and to warn of its presence, to participants in
the cross-country race. Those participating in the race had no advance knowledge sufficient to
put them on notice of the probable effect of the bombing as to creating such holes, and,
without such knowledge, owed no duty, to themselves or others, to inspect, in advance of the
races, the ground over which they were to be run. Without any such inspection, or prior
warning, the participants in the cross-country race, including the Bales boy, had no
opportunity to learn of the presence of the holes, except, perchance, by discovering their
presence, in the excitement and haste of the race, in time to enable them to avoid the danger.
As to those in the situation of the Bales boy, with so limited an opportunity, under such
unfavorable circumstances, to observe the holes made by the bombing, it cannot justly, or
reasonably, be concluded that the hazardous condition of the ground was sufficiently
observable to those in such situation as to be patent or obvious, within the legal meaning of
those terms.
In King v. Griffith Co., 65 Cal.App.2d 114, 150 P.2d S, the plaintiff, an employee of a
roofing subcontractor engaged in the construction of Camp Manzanar, suffered injuries
when the edge of a sewer ditch excavated upon the premises caved in as the plaintiff was
about to cross the same.
8, the plaintiff, an employee of a roofing subcontractor engaged in the construction of Camp
Manzanar, suffered injuries when the edge of a sewer ditch excavated upon the premises
caved in as the plaintiff was about to cross the same. Plaintiff sued the excavation
subcontractor and the general contractor. Judgment of nonsuit was affirmed upon appeal.
From the court's opinion, quoted in part in defendant's opening brief, pages 12 and 13, it is
apparent that the facts of that case and those of the instant case are so different that the one
cannot be deemed authority as to the other. We quote from the court's opinion, pages 9 and 10
of 150 P.2d.
Plaintiff had crossed the ditch which had been dug by defendants on a number of
occasions. The accident occurred at about ten o'clock in the morning and the ditch was plainly
visible. Plaintiff knew that others had crossed just ahead of him and for this reason could take
particular notice of the soil to see if it had become loose or in danger of falling upon repeated
crossings. Indeed, it can well be argued that plaintiff was in even a better position than
defendants to know whether the ditch was then in an unsafe condition. Rather than walk to
the end of the ditch or to take the time to throw in dirt to make a better crossing, plaintiff
chose to step across the ditch, following Dressel, who had crossed immediately ahead of him.
In doing so he assumed the risk of making the crossing.
No fault can properly be found with that opinion; but because of the vast difference in the
factual situation in King v. Griffith Co., supra, from that in the instant case, the statements
above quoted have little value as authority in the instant case, because not applicable to the
factual situation in the latter. The consideration of the factors involved in King v. Griffith Co.
does, however, serve to emphasize and make clear, by way of comparison and contrast, the
absence in the instant case of important factors which in King v. Griffith Co. relieved from
liability. Unlike the plaintiff in King v. Griffith Co., supra, as to the ditch, Carl Elvis Bales
did not know of the existence, on the premises where the cross-country race was to take
place, of the holes caused by the bombing.
of the existence, on the premises where the cross-country race was to take place, of the holes
caused by the bombing. And, of course, one in his situation had no opportunity to observe
others crossing such depressions or holes, so as to know whether crossing them could be
safely accomplished, or whether he should direct his horse around them. The plaintiff in King
v. Griffith Co., supra, had an equal, or better, opportunity to observe the condition of the
ditch, and the sides thereof, than the defendant in that case. He was not approaching the ditch
on horseback in a speed race, with his full effort required in guiding his horse, and with no
previous knowledge of a dangerous excavation, but leisurely, with full knowledge of the
existence of the ditch, and ample opportunity to observe its then present condition. Young
Bales, on the other hand, as above stated, had no knowledge of the holes made by the
bombing; his full attention was required by the necessities of the race; and there was no
reasonable probability that one in his situation, approaching with racing speed and with no
markers having been placed to direct his attention to the holes, would be able to detect a hole
or depression about 3 or 3 1/2 feet long, 2 or 2 1/2 feet wide and about 18 inches deep, until
too near to such hole to enable him to rein his horse around it, or to avoid the risk of his horse
attempting to jump across the same. The evidence does not disclose the features of the terrain,
in the vicinity of the hole nearest to where the Bales boy was found, sufficiently to disclose
just how near to the said hole a horseman traveling over the course of such race would have
to be in order for the hole to come within his observation. The topography of the country
there would be material. If the approach to the hole, on that course, of one riding from the
west eastward toward such mound or knoll, was slightly uphill, a horseman of average height,
upon a horse whose height was also average, would probably have to approach very near the
hole to be able to observe it. Under such circumstances, especially in the case of a horseman
traveling with great speed, the fact of the presence of the hole would be precipitately
thrust upon his consciousness, as it suddenly loomed before his vision.
speed, the fact of the presence of the hole would be precipitately thrust upon his
consciousness, as it suddenly loomed before his vision. There is no similarity between such
approach as occurred in the instant case and the leisurely approach in King v. Griffith Co.,
supra, to the place where the accident occurred. In the King case, there was ample opportunity
for unhurried and deliberate choice as to the course to be pursued. In the instant case, there
was no such opportunity.
Shanley v. American Olive Co., 185 Cal. 552, 197 P. 793, cited by defendants in their
opening briefs, is a case in which the danger was clearly obvious to one in the situation of the
plaintiff therein. Such plaintiff was a railroad brakeman, taking part in switching operations.
There was a building so close to the track that there was only a few inches of space between
the outside of the freight car, upon which plaintiff was riding, and the side of the
buildingnot sufficient to allow plaintiff to be on the ladder outside the car without coming
in contact with the building. He did attempt to climb the ladder, as the car upon which he then
was approaching the building, although the position of the building in relation to the track
was clearly visible to him. He was caught between the ladder and the building, and seriously
crushed and injured. The court properly held that the danger was plainly obvious, and that
plaintiff had assumed the risk, with knowledge of the danger.
Even if the ground over which the participants raced their horses, November 25, 1945,
contained no slope upward as young Bales approached, from the west traveling east, the hole
nearest where his body was found, but if such ground was entirely level, even then it is
problematical how near one speeding on horseback in a race would have to be before it could
be said with any reasonable certainty that a hole of the size of that hole would become visible
to him, presuming, as we must, in the absence of any evidence to the contrary, that he was
employing ordinary care for his own safety. Unlike an object extending above the surface of
the earth, or, if resting upon such surface, possessing form or color, as a bed of flowers,
which would attract the eye and set it apart from the surrounding terrain, such a hole, or
depression, would be a mere vacuum, possessing no contrast in form or color to
distinguish it from the surrounding terrain.
earth, or, if resting upon such surface, possessing form or color, as a bed of flowers, which
would attract the eye and set it apart from the surrounding terrain, such a hole, or depression,
would be a mere vacuum, possessing no contrast in form or color to distinguish it from the
surrounding terrain. It does not reasonably appear to us that such hole, or vacuum, intruding
upon the continuity of the surface of the terrain, would be observable to one in the situation
young Bales was in at the time he approached the hole at racing speed, with his mental
faculties naturally concentrated upon guiding and encouraging his horse onward, in the
endeavor to win the race, until he was very near to the holetoo near, in fact, to enable him
to do other than trust his horse to jump the hole. If the horse and rider did thus approach the
hole under those circumstances, and the theory of the plaintiff is true, that the horse stepped
into the hole, lost his balance and footing, and turned a complete somersault, throwing young
Bales, and/or falling upon him with such force that he suffered injuries which caused his
death, it is clear that the failure of the defendants to use ordinary or reasonable care, before
the race, in order to assure the invitees in the race a reasonably safe place for the purpose
thereof, constituted negligence, and that such negligence was the proximate cause of the
injury and death of Carl Elvis Bales. Defendants could have performed their duty, either by
having the holes filled in, by placing markers marking out a course which would avoid such
holes, and instructing the participants, clearly, to follow the new course thus marked out, or,
perhaps, by clearly warning such participants of the character and approximate location of the
holes. But the defendants did not take either, or any, of these precautions. The testimony of
both Mr. Moore, general manager of the partnership then operating the Hotel Last Frontier,
and of Miss Jerre Wyckoff, clearly establishes the utter absence, on the part of the defendants,
of the exercise of reasonable, ordinary care, or any care at all, to provide the invitees a
reasonably safe place for the cross-country race.
at all, to provide the invitees a reasonably safe place for the cross-country race.
We cannot accept the view that the sponsors of such a race as the cross-country race of
November 25, 1945, owed no duty of prior inspection of the ground because of the theory
that such a race involved the presence of perilous conditions. Suppose there had been a shaft,
or well, dug upon that part of the premises constituting the race course, subsequent to the
races in the spring of 1945. Under defendant's theory, they would have owed no duty to
discover and warn of such shaft, or well, even though one participating in the later races and
traveling from west to east toward the target mound, or knoll, would not be able to see same
if such excavation were uphill when the rider was approaching, or was situated behind some
mound or knoll sufficiently high to obscure vision. Under defendants' theory, defendants
owed no duty to discover the presence of the shaft or well or other excavation, or to give any
warning thereof to participants in the races, because, to some slight extent under favorable
circumstances, such excavations may have been obvious; nevertheless, the legislature of
Nevada, in 1866, declared such open excavations to be dangerous, when they enacted a
statute requiring fencing them, which is still the law of this state, Statutes of Nevada 1866, p.
59, N.C.L.1929, vol. 2, secs. 5630-5635.
12. The terms ordinary care and reasonable care, when used in connection with the
duty of an owner or occupant of land or buildings, to his invitees thereon for a particular
purpose, are terms which, by the weight of authority, are deemed synonymous and
interchangeable. 45 C.J. p. 682, sec. 51; Canadian Northern R. Co. v. Senske, 8 Cir., 201 F.
637, 642, 120 C.C.A. 65; Goodwyn v. Central of Georgia R. Co., 2 Ga. App. 470, 58 S.E.
688; Caven v. Bodwell Granite Co., 99 Me. 278, 59 A. 285; Colsch v. Chicago, etc. R. Co.,
149 Iowa 176, 127 N.W. 198, 34 L.R.A.,N.S., 1013, Ann. Cas.1912C, 915.
From the foregoing discussion of the element of obviousness, it is apparent that it is our
view that the holes or depressions which resulted from the bombing demonstration held
October 27, 1945, were not sufficiently patent or obvious to one in young Bales' situation to
relieve defendants to the duty to employ reasonable or ordinary care to ascertain the presence
of the holes, and, at least, to warn the participants in the race of the danger resulting
therefrom. The failure so to do constituted negligence on the part of defendants.
But was the deceased, Carl Elvis Bales, contributorily negligent? In determining this
question, it should be borne in mind that the deceased, Bales, had ridden in the treasure hunts
conducted by said hotel, either in the spring of 1945 or in the fall of 1944, or both. The
evidence is uncertain as to how many times, or when, he had thus participated, but that he had
ridden his horse in such races, over the same course as that used November 25, 1945, at times
previous to said last-mentioned date, there can be no doubt. The holes produced by the
bombing were not there at the time of the previous races, and, in the absence of evidence to
the contrary, we must assume that the ground over which such prior races occurred was free
from defects or dangers other than those arising from the natural characteristics of the terrain.
Bales' former experience as to the reasonable safety of the ground, coupled with his
knowledge that the Hotel Last Frontier management were sponsoring the races of November
25, 1945, reasonably were calculated to make him feel secure, and to prevent the formation in
his mind of any realization that it was necessary to be alert to discover unusual and
extraordinary conditions of danger not readily observable. He, naturally, therefore, being
unapprehensive of the existence of any conditions other than those ordinarily incident to a
cross-country race, devoted his attention and effort to winning the race. As said before, in
effect, in dealing with the question of obviousness, we do not consider it reasonably
probable, or likely, that the Bales boy, by the exercise of reasonable or ordinary care
would have been able, in view of his situation and the surrounding circumstances in
which he was placed just prior to the accident, to have seen the hole or depression
nearest where he was found after being injured, in time to afford him a fair and
reasonable opportunity to safely guide his horse around the hole, and avoid the horse
stepping therein, and the consequent tragic result.
consider it reasonably probable, or likely, that the Bales boy, by the exercise of reasonable or
ordinary care would have been able, in view of his situation and the surrounding
circumstances in which he was placed just prior to the accident, to have seen the hole or
depression nearest where he was found after being injured, in time to afford him a fair and
reasonable opportunity to safely guide his horse around the hole, and avoid the horse stepping
therein, and the consequent tragic result.
13, 14. Contributory negligence is a defense as to which the burden of proof rests upon
the defendants. The jury was properly instructed as to the law applicable to such defense, and
their verdict imports a finding against defendants upon that issue. We cannot say, as a matter
of law, that the finding of the jurors was erroneous, or that same was not supported by the
evidence. Neither can we say that the verdict was contrary to the law, or that the defendants
were entitled to a new trial upon that issue.
We must now consider the contention of the defendants that whilst they concede the rule is
that it is the province of the jury to determine the facts, and, in the event of a conflict in the
evidence, the verdict and judgment thereon should be upheld by this court if there is
substantial evidence to support it, nevertheless, as they contend, such judgment and verdict in
the instant case cannot be sustained, because it would have been physically impossible for the
accident to have happened in accordance with the theory of the plaintiff, to the effect that the
horse was caused to fall by stepping in the hole or depression nearest to where the injured boy
was found. On pages 3 and 4 of defendants' (appellants') reply brief, their contention on that
point is stated as follows:
So, the entire testimony of the respondents' witnesses on this major point is a pyramid of
conjectures and conclusions. And we have argued at length in our opening brief (pages 29-35)
that these conclusions must break down of their own weight because they contradict the
known physical facts about falling horses, of which the Court may take judicial
cognizance.
down of their own weight because they contradict the known physical facts about falling
horses, of which the Court may take judicial cognizance. Houska v. Hrabe, 35 S.D. 269, 151
N.W. 1021, L.R.A.1915D, 1074. Every person of ordinary intelligence knows that a horse
stumbling and falling at full gallop does not strike the ground twenty feet beyond the point of
stumbling, as Matt Pray contends, or fifteen to eighteen feet, as Lee Simpson would have us
believe. And the Court may take judicial cognizance of matters of common knowledge
known to all persons of ordinary intelligence. 23 Corpus Juris 59, sec. 1810.
How much more consistent with the facts as developed by the testimony of the
respondents' own witnesses is the hypothesis suggested by the testimony of La Verne Allen, a
witness on behalf of appellants, who testified to the existence of several small mounds of
wind-blown sand approximately ten feet from the blood spot and in the direct line of the race
between the blood spot and the starting point. (Folios 764-769.) According to the testimony
of this witness, testifying as an expert horseman, mounds of this character are sometimes
hazardous to a man on horseback, the witness having himself previously been thrown from a
horse tripping over such a mound. This is what the respondent, at page 4, line 30 of her
answering brief, has chosen to call only an ingenius theory, supported by no evidence,'
although on page 3, line 7 of her brief she admits that appellants offered some testimony' of
the possibility that the horse of the deceased may have stumbled over such a sand mound.
It may be noted that La Verne Allen testified that the small mound, or knoll, to which he
referred was approximately ten feet from the blood spot, where the injured boy fell (Tr.,
folios 764-769), whilst his brother, Delbert Allen, testified same was 12 feet therefrom.
Delbert said he determined the distance by stepping it off. Asked to describe the appearance
of the mound, or knoll he stated it was just a little brush with a bunch of dirt around it,"
that it was approximately 2 feet wide and S inches high at the highest point {Tr. folio S52,
also S5S, S59).
dirt around it, that it was approximately 2 feet wide and 8 inches high at the highest point
(Tr. folio 852, also 858, 859). Although Delbert Allen testified that it was 35 feet from the
blood spot, where the boy was found, to the hole that had been testified to by plaintiff's
witnesses as the nearest hole to that point, defendants, in their reply brief, on page 4, above
quoted, adopted the distance of 20 feet (as Matt Pray testified), or 15 to 18 feet (as Lee
Simpson testified), for the purpose of their argument, and not the distance of 35 feet, as
testified to by Delbert Allen.
It does not appear, from the record, that any of the witnesses attempted to make exact
measurements of this distance. They merely stepped it off, which probably accounts for the
great variances in the testimony. We have not before us, nor had the jurors at the trial, any
evidence from which it may be concluded, with reasonable certainty or accuracy, what the
distance actually was between those two points, that is to say, between the blood spot, or the
imprint of the horse near by, and such hole nearest thereto, and we have no means of knowing
precisely what the jury concluded the distance to be. The jurors may have accepted, as
preferable, the testimony of Lee Simpson, a disinterested witness, and they had the right to do
so, if they believed it, for, upon the trial, they were the sole judges of the facts. If the distance,
therefore, was 15 to 18 feet, as Simpson testified, his minimum distance of 15 feet between
the blood spot, or the near-by horse's imprint, and the hole would be only 3 feet more than 12
feet which Delbert Allen testified was the distance between the blood spot, marking the place
where the injured boy was found, and the little knoll or mound, surrounded by wind-blown
sand. If, as contended by defendants, the Bales boy's horse fell because of tripping over the
little knoll, resulting in the injury and death of the boy, and the body of the horse was of the
average length of 6 feet between the hind legs and the fore legs (such being the average
testified to by Delbert Allen), the horse, after turning the somersault, allowing 6 feet for its
length, would, in some manner, have had to have glided, or been propelled, through the
air a distance of about 6 feet.
the somersault, allowing 6 feet for its length, would, in some manner, have had to have
glided, or been propelled, through the air a distance of about 6 feet. But if, as contended by
plaintiff, the horse fell because of having stepped in the hole, and the distance was 15 feet, the
minimum estimated by Simpson between the hole and the imprint of the horse on the ground,
or the blood spot near by, the horse, allowing the average of 6 feet for its length, would have
had to have glided, or been propelled, forward a distance of 9 feet. Defendants contend that
the known physical facts as to falling horses show this latter to have been impossible. The
writer of this opinion has read the case of Houska v. Hrabe, 35 S.D. 269, 151 N.W. 1021,
L.R.A.1915d, 1074, cited by defendants in that connection. That was a case in which the
alleged cause of action was one based upon an injury having occurred to a mare colt, from
having been caught in a wire fence while playing, or romping, etc., with horses of the
defendant on the other side of the fence, and the court merely affirmed its right to take
judicial notice of the propensities of horses for playing, fighting, etc. across, over and through
fences, when some of the horses are on one side of the fence, and others are on the opposite
side. There was no question as to falling horses involved in the case.
In the instant case, bearing in mind the fact that the horse the Bales boy was riding was
undoubtedy traveling at considerable speed at the time he fell, it appears probable that the
sudden stepping into the vacuum, or hole, deflected his course, and, with the operation of the
force of gravity, caused the horse's head and the fore part of his body to be drawn downward,
by the sudden pull, in opposition to the accumulated momentum of the force propelling him
forward, which latter was materially greater. The force and effect of this momentum
propelling the horse forward being much greater than the force of gravity pulling him
downward, at such shallow depth, naturally picked him up, so to speak, and hurled him
forward with sufficient force to cause a complete somersault of the horse {according to
the evidence), and his being thrown upon his back, with his legs in the air.
hurled him forward with sufficient force to cause a complete somersault of the horse
(according to the evidence), and his being thrown upon his back, with his legs in the air. It
does not seem, to us, at all impossible, in view of the evident facts and circumstances, that the
same force propelling the horse forward, being proven to have been sufficient to throw him
completely over on his back, was sufficient, also, to propel him a distance of 9 feet, if the
total distance was 15 feet, the minimum estimated by Mr. Simpson, or to propel him 12 feet,
if the distance was 18 feet (Simpson's maximum), or even 14 feet, if the distance was 20 feet
as testified to by Mr. Pray. It is improbable, we believe, that the momentum, or accumulated
force, propelling the horse forward, occasioned by the speed with which he was traveling,
would be barely, or precisely, sufficient to cause a complete somersault, and yet insufficient
to propel him a few feet farther.
In order to arrive at the verdict for the plaintiff which they did not reach, the jurors were
required, under the court's instructions and under the law, to find that the accident was
immediately caused by the horse stepping in the hole, which hole, as has been stated, was
artificially created, and which it was the duty of defendants, in the exercise of ordinary or
reasonable care, to remedy, or give warning thereof to their invitees participating in the race.
On the other hand, if the jurors had believed, from the evidence, and concluded that the
immediate cause of the accident was the horse tripping over the small mound or knoll,
surrounded by the windblown sand, which was about 12 feet (according to Delbert Allen's
testimony) from the blood spot, or imprint of the horse, the jurors could not, under the court's
instructions and the law, have found in favor of the plaintiff, for the reason that the presence
of the knoll or mound was part of the natural condition of the terrain, and so clearly incident
to a cross-country race that the deceased boy would be held to have assumed the risk of any
danger thereby entailed, and the defendants would, of course, not have been liable.
the risk of any danger thereby entailed, and the defendants would, of course, not have been
liable. Whether the horse stepped in the hole or tripped over the mound was an important
question of ultimate fact, not seen sufficiently by any eye-witness to enable him to testify
positively in regard thereto. The evidence of Pray and Simpson for the plaintiff, and that of La
Verne Allen and Delbert Allen for the defendants, was in conflict as to the fact of the distance
between the imprint of the horse, or the near-by blood spot, and the nearest hole, a very
material fact in determining, circumstantially, the ultimate and vital fact of whether or not the
falling of the horse and the consequent injury and death of Carl Elvis Bales were immediately
caused by the horse stepping in the hole, or whether or not they were caused by his tripping
over the mound. Presumably, the jurors, in order to reach the verdict returned by them,
believed the evidence of the above-mentioned witnesses of plaintiff, and found such ultimate
fact in accordance with plaintiff's theory, and rejected the theory of defendants.
15, 16. Under the rule long adhered to by this court and conceded by defendants, we must
affirm the judgment, based upon the verdict of the jury, when the evidence is in conflict and
there is substantial evidence to support the verdict, unless, from all the evidence in the case, it
is clear that a wrong conclusion has been reached, or, as sometimes expressed, that the verdict
was clearly wrong. We have not been able to conclude that there is sufficient basis in fact for
the contention that the plaintiff's theory as to the immediate cause of the accident, or that the
verdict of the jurors adopting such theory, is so clearly contrary to any physical fact or to the
operation of any physical law as to render the conclusion of the jury clearly wrong. For
statements of the rule as to our duty in reviewing the findings of a jury as to matters of fact,
see: Strattan v. Raine, 45 Nev. 10, 197 P. 694, 200 P. 533; Smith v. Goodin, 46 Nev. 229,
206 P. 1067; Page v. Walser, 46 Nev. 390, 213 P. 107.
The case of Knock v. Tonopah & Goldfield R. Co., 38 Nev. 143, 145 P. 939, 940,
L.R.A.1915f, 3, cited by defendants in their reply brief, is not controlling. In that case the
court merely stated the general principle as follows:
If any physical fact made it impossible for the engineer to back up without signal and
crush the respondent's arm, such fact would control, and the testimony in case of respondent
would fall. If his testimony regarding any matter essential to his recovery were contradicted
by any physical fact, the case would have to be remanded.
But in that case the existence of such contradictory physical facts was not found. Likewise,
in the instant case. The jury did not so find, and we are unable, from the evidence or from any
rule of physics of which this court would have the right to take judicial notice, to conclude
that a wrong conclusion has been reached by the jury, or that the verdict was clearly
erroneous. We commend, however, the able and earnest manner in which counsel for the
defendants have presented and briefed this and other important issues and controversial
questions in the case. In fact, all the briefs in the case have been well prepared, and have been
of much assistance to the court.
The foregoing presentation of our views sufficiently disposes of the assignments of error
Nos. 1, 2, and 3.
Assignment of error No. 4 states that the trial court erred in refusing to give defendants'
requested instructions identified as D-25 and D-26.
This court does not believe that the trial court committed error in not giving defendants'
proposed instruction D-25. We believe that the trial court's instruction No. 21 sufficiently
covers the ground embraced in No. D-25, and that the jurors were fairly and sufficiently
instructed by said instruction No. 21 upon the question of contributory negligence, as
applicable to a child of the age of the deceased, Carl Elvis Bales.
17. Defendant's requested instruction D-26 merely related to the degree of the duty of the
deceased child to look out for his own safety, and was, we believe, sufficiently presented by
the court's instructions as to contributory negligence, particularly said instruction No. 21.
Assignment of error No. 5 charges the trial court with error in giving the court's
instructions numbered 13, 26, 32, and 34.
We do not find that instruction No. 13 was erroneous. We have, in this opinion, mentioned
such presumption. It was clear from other instructions that negligence of the injured party,
even though the same was slight in degree, would defeat recoveryin other words, that the
presumption was a rebuttable presumption.
18, 19. The court's instruction No. 26 was not sufficiently comprehensive, and, considered
alone, did not correctly state the law; but, we believe the deficiencies therein were sufficiently
supplied by the court's instruction No. 34. We are aware that the defendants contend that even
instruction No. 34 does not correctly state the law, and we concede that said instruction could
have been improved in clarity and, with advantage, developed further and made somewhat
more comprehensive. We do not believe, however, that instructions numbered 26 and 34,
considered together, are so deficient as to be properly held prejudicially erroneous. We are of
the opinion that, taking and considering together all of the instructions which were given by
the court, the jurors were sufficiently and fairly instructed. We adhere to the rule long
followed by this court and well expressed by Mr. Justice Ducker in Nevada Transfer &
Warehouse Co. v. Peterson, supra, on pages 101, 102 of 60 Nev., and page 638 of 99 P.2d, as
follows:
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.
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. Co., 6 Nev. 265; Allison v. Hagan, 12 Nev. 38;
Solen v. Virginia & Truckee R. Co., 13 Nev. 106; Cutler v. Pittsburg Silver Peak Gold Min.
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.
We do not find that the court's instruction No. 32 was erroneous.
From the foregoing, it is apparent that, in our view, assignments of error numbered 4 and 5
are without merit.
It properly follows, from the foregoing determinations and conclusions which we have
found and reached, that the judgment of the trial court, rendered upon the verdict of the jury,
and that court's order denying defendants' motion for a new trial, should each be affirmed. It
is hereby so ordered.
____________

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