nevada reports 1900-1902 (26 nev.).pdf

26 Nev. 1, 1 (1900)

RULES

of the

Supreme Court of the State of Nevada

Adopted September 1, 1879; amended January 2, 1899; amended December 17, 1902.

____________

RULE I

1. Applicants for license to practice as attorneys and counselors will be examined in open

court on the first day of the term.

Examination for Attorneys-at-Law.

2. The supreme court, upon application of the district judge of any judicial district, will

appoint a committee to examine persons applying for admission to practice as attorneys and

counselors-at-law. Such committee will consist of the district judge and at least two attorneys

resident of the district.

The examination by the committee so appointed shall be conducted and certified according

to the following rules:

Examination by Committee.

The applicant shall be examined by the district judge and at least two others of the

committee, and the questions and answers must be reduced to writing.

No intimation of the questions to be asked must be given to the applicant by any member

of the committee previous to the examination.

Examination to Embrace.

The examination shall embrace the following subjects:

1 The history of this state and of the United States;

2 The constitutional relations of the state and federal governments;

3 The jurisdiction of the various courts of this state and of the United States;

4 The various sources of our municipal law;

5 The general principles of the common law relating to property and personal rights and

obligations; ��

��26 Nev. 1, 2 (1900) Rules of the Supreme Court��

6 The general grounds of equity jurisdiction and principles of equity jurisprudence;

7 Rules and principles of pleadings and evidence;

8 Practice under the civil and criminal codes of Nevada;

9 Remedies in hypothetical cases;

10 The course and duration of the applicant's studies.

3. The examiners will not be expected to go very much at large into the details of these

subjects, but only sufficiently so, fairly to test the extent of the applicant's knowledge and the

accuracy of his understanding of those subjects and books which he has studied.

Examination by Committee.

4. When the examination is completed and reduced to writing, the examiners will return it

to this court, accompanied by their certificate showing whether or not the applicant is of good

moral character and has attained his majority, and is a bona fide resident of this state; such

certificate shall also contain the facts that the applicant was examined in the presence of the

committee; that he had no knowledge or intimation of the nature of any of the questions to be

propounded to him before the same were asked by the committee, and that the answers to

each and all the questions were taken down as given by the applicant without reference to any

books or other outside aid.

Fee To Be Deposited Before Examination.

5. The fee of thirty-five dollars for license must in all cases be deposited with the clerk of

the court before the application is made, to be returned to the applicant in case of rejection.

RULE II.

Filing Transcript.

In all cases where an appeal has been perfected, and the statement settled (if there be one)

thirty days before the commencement of a term, the transcript of the record shall be filed on

or before the first day of such item.

RULE III.

Appeal May Be Dismissed—Can be Restored.

1. If the transcript of the record be not filed within the time prescribed by Rule II, the

appeal may be dismissed on motion during the first week of the term, without notice. A cause

so dismissed may be restored during the same term, upon good cause shown, on notice to the

opposite party; and ��

��


unless so restored the dismissal shall be final, and a bar to any other appeal from the same

order or judgment.

How Restored.

2. On such motion there shall be presented the certificate of the clerk below, under the seal

of the court, certifying the amount or character of the judgment; the date of its rendition; the

fact and date of the filing of the notice of appeal, together with the fact and date of service

thereof on the adverse party, and the character of the evidence by which said service appears;

the fact and date of the filing of the undertaking on appeal; and that the same is in due form;

the fact and time of the settlement of the statement, if there be one; and also that the appellant

has received a duly certified transcript, or that he has not requested the clerk to certify to a

correct transcript of the record; or, if he has made such request, that he has not paid the fees

therefor, if the same have been demanded.

RULE IV.

Printed Transcripts.

1. All transcripts of record in civil cases, when printed, shall be printed on unruled white

paper, ten inches long by seven inches wide, with a margin on the outer edge of not less than

one inch. The printed page shall not be less than seven inches long and three and one-half

inches wide. The folios, embracing ten lines each, shall be numbered from the

commencement to the end, and the numbering of the folios shall be printed between lines.

Nothing smaller than minion type leaded shall be used in printing.

Transcripts in Criminal Cases.

2. Transcripts in criminal cases may be printed in like manner as prescribed for civil

cases; or, if not printed, shall be written on one side only of transcript paper, sixteen inches

long by ten and one-half inches in width, with a margin of not less than one and one-half

inches wide, fastened or bound together on the left sides of the pages by ribbon or tape, so

that the same may be secured, and every part conveniently read. The transcript, if written,

shall be in a fair, legible hand, and each paper or order shall be separately inserted.

To Be Indexed.

3. The pleadings, proceedings, and statement shall be chronologically arranged in the

transcript, and each tran��

��


script shall be prefaced with an alphabetical index, specifying the folio of each separate

paper, order or proceeding, and of the testimony of each witness; and the transcript shall have

at least one blank fly-sheet cover.

Cannot Be Filed.

4. No record which fails to conform to these rules shall be received or filed by the clerk of

the court.

RULE V.

Printing Transcripts.

The written transcript in civil causes, together with sufficient funds to pay for the printing

of the same, may be transmitted to the clerk of this court. The clerk, upon the receipt thereof,

shall file the same and cause the transcript to be printed, and to a printed copy shall annex his

certificate that the said printed transcript is a full and correct copy of the transcript furnished

to him by the party; and said certificate shall be prima facie evidence that the same is correct.

The said printed copy so certified shall also be filed, and constitute the record of the cause in

this court, subject to be corrected by reference to the written transcript on file.

RULE VI.

Cost of Typewriting or Printing Transcripts.

1. The expense of printing or typewriting transcripts, affidavits, briefs or other papers on

appeal in civil causes and pleadings, affidavits, briefs or other papers constituting the record

in original proceedings upon which the case is heard in this court, required by these rules to

be printed or typewritten, shall be allowed as costs, and taxed in bills of costs in the usual

mode; provided, that no greater amount than twenty-five cents per folio of one hundred words

shall be taxed as costs for printing, and no greater amount than twelve and one-half cents per

folio for one copy only shall be taxed as costs for typewriting. All other costs to be taxed by

the clerk in accordance with the fee bill.

To Serve Cost Bill, When.

2. Either party desiring to recover as costs his expenses for printing or typewriting in any

cause in this court, shall, before said cause is submitted, file with the clerk and serve upon the

opposite party a verified cost bill, setting forth or stating the actual cost of such printing or

typewriting, and ��


no greater amount than such actual cost shall be taxed as costs.

Mode of Objecting to Costs.

3 If either party desires to object to the costs claimed by the opposite party, he shall,

within ten days after the service upon him of a copy of the cost bill, file with the clerk and

serve his objections. Said objections shall be heard and settled and the costs taxed by the

clerk. An appeal may be taken from the decision of the clerk, either by written notice of five

days, or orally and instanter, to the justices of this court, and the decision of such justices

shall be final. If there be no objections to the costs claimed by the party entitled thereto, they

shall be taxed as claimed in his cost bill.

Indorsed Upon Remittitur.

4. In all cases where a remittitur or other final order is sent to a district court or other

inferior tribunal, the costs of the party entitled thereto as taxed by the clerk shall be indorsed

upon such remittitur or order, and shall be collected as other costs in such district court, or

other inferior court or tribunal, and shall not be subject to retaxation in such district court or

other tribunal.

RULE VII.

To Correct Error in Transcript.

For the purpose of correcting any error or defect in the transcript from the court below,

either party may suggest the same, in writing, to this court, and, upon good cause shown,

obtain an order that the proper clerk certify to the whole or part of the record, as may be

required, or may produce the same, duly certified, without such order. If the attorney of the

adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion,

except when a certified copy is produced at the time, must be accompanied by an affidavit

showing the existence of the error or defect alleged.

RULE VIII.

Exceptions—Diminution of Record.

Exceptions or objections to the transcript, statement, the undertaking on appeal, notice of

appeal, or to its service or proof of service, or any technical exception or objection to the

record affecting the right of the appellant to be heard on the points of error assigned, which

might be cured on suggestion of diminution of the record, must be taken at the first ��


term after the transcript is filed, and must be noted in the written or the printed points of the

respondent, and filed at least one day before the argument, or they will not be regarded.

RULE IX.

Substitution in Case of Death.

Upon the death or other disability of a party pending an appeal, his representative shall be

substituted in the suit by suggestion in writing to the court on the part of such representative,

or any party on the record. Upon the entry of such suggestion, an order of substitution shall be

made and the cause shall proceed as in other cases.

RULE X.

Calendar to Consist of—Upon Motion.

1. The calendar of each term shall consist only of those cases in which the transcript shall

have been filed on or before the first day of the term, unless by written consent of the parties;

provided, that all cases, both civil and criminal, in which the appeal has been perfected and

the statement settled, as provided in Rule II, and the transcript has not been filed before the

first day of the term, may be placed on the calendar, on motion of either party, after ten days'

written notice of such motion, and upon filing the transcript.

Subdivision 2 is hereby abrogated.

2. Causes shall be placed on the calendar in the order in which the transcripts are filed by

the clerk.

RULE XI.

Time for Appellant to Serve Brief—Respondent.

1. Within fifteen days after the filing of the transcript on appeal in any case, the appellant

shall file and serve his points and authorities or brief; and within fifteen days after the service

of appellant's points and authorities or brief, respondent shall file and serve his points and

authorities or brief; and within fifteen days thereafter, appellant shall file and serve his points

and authorities or brief in reply, after which the case may be argued orally.

2. The points and authorities shall contain such brief statement of the facts as may be

necessary to explain the points made.

Oral Argument.

3. The oral argument may, in the discretion of the court, be limited to the printed or

typewritten points and authori��


ties or briefs filed, and a failure by either party to file points or authorities or briefs under the

provisions of this rule and within the time herein provided, shall be deemed a waiver by such

party of the right to orally argue the case, and such party shall not recover cost for printing or

typewriting any brief or points and authorities in the case.

4. No more than two counsel on a side will be heard upon the oral argument, except by

special permission of the court, but each defendant who has appeared separately in the court

below may be heard through his own counsel.

Optional in Criminal Cases.

5. In criminal cases it is left optional with counsel either to file written, printed or

typewritten points and authorities or briefs.

When Submitted.

6. When the oral argument is concluded, the case shall be submitted for the decision of

the court.

Stipulation as to Time.

7. The times herein provided for may be shortened or extended by stipulation of parties or

order of court, or a justice thereof.

RULE XII.

Printing and Paper To Be Uniform.

In all cases where a paper or document is required by these rules to be printed, it shall be

printed upon similar paper, and in the same style and form (except the numbering of the

folios in the margin) as is prescribed for the printing of transcripts.

RULE XIII.

Number of Copies To Be Filed.

Besides the original, there shall be filed ten copies of the transcript, briefs and points and

authorities, which copies shall be distributed by the clerk.

RULE XIV.

Opinions Recorded.

All opinions delivered by the court, after having been finally corrected, shall be recorded

by the clerk.

RULE XV.

Rehearing—Remittitur to Issue, When.

All motions for a rehearing shall be upon petition in writing, and presented within fifteen

days after the final judgment is rendered, or order made by the court, and publication ��


of its opinion and decision, and no argument will be heard thereon. No remittitur or mandate

to the court below shall be issued until the expiration of the fifteen days herein provided, and

decisions upon the petition, except on special order.

RULE XVI.

Opinion To Be Transmitted.

Where a judgment is reversed or modified, a certified copy of the opinion in the case shall

be transmitted, with the remittitur, to the court below.

RULE XVII.

No Paper To Be Taken Without Order.

No paper shall be taken from the court room or clerk's office, except by order of the court,

or of one of the justices. No order will be made for leave to withdraw a transcript for

examination, except upon written consent to be filed with the clerk.

RULE XVIII.

Writ of Error, or Certiorari.

No writ of error or certiorari shall be issued, except upon order of the court, upon petition,

showing a proper case for issuing the same.

RULE XIX.

Writ of Error to Operate as Supersedeas.

Where a writ of error is issued, upon filing the same and a sufficient bond or undertaking

with the clerk of the court below, and upon giving notice thereof to the opposite party or his

attorney, and to the sheriff, it shall operate as a supersedeas. The bond or undertaking shall be

substantially the same as required in cases on appeal.

RULE XX.

When Returnable.

The writ of error shall be returnable within thirty days, unless otherwise specially directed.

RULE XXI.

To Apply.

The rules and practice of this court respecting appeals shall apply, so far as the same may

be applicable, to proceedings upon a writ of error.

RULE XXII.

Time Concerning Writ.

The writ shall not be allowed after the lapse of one year from the date of the judgment,

order, or decree which is sought to be reviewed, except under special circumstances.


RULE XXIII.

Concerning Change of Venue—Additional Notice Given.

Appeals from orders granting or denying a change of venue, or any other interlocutory

order made before trial, will be heard at any regular or adjourned term, upon three days'

notice being given by either appellant or respondent, when the parties live within twenty

miles of Carson. When the party served resides more than twenty miles from Carson, an

additional day's notice will be required for each fifty miles, or fraction of fifty miles, from

Carson.

RULE XXIV.

Notice of Motion.

In all cases where notice of a motion is necessary, unless, for good cause shown, the time

is shortened by an order of one of the justices, the notice shall be five days.

RULE XXV.

Transcripts May Be Typewritten—To Be Bound in Boards with Flexible Backs.

1. Hereafter all transcripts of the record in any action or proceeding may be typewritten.

The typewriting shall be the first impression, clearly and legibly done, with best quality of

black ink, in type not smaller than small pica, upon a good quality of typewriting paper,

thirteen inches long by eight inches wide, bound in boards with flexible backs, in volumes of

a size suitable for convenient handling and ready reference, and arranged and indexed as

required by the rules of this court. When so typewritten such transcript, in the discretion of

the party appealing, need not be printed; but, if printed, all the rules concerning the same shall

still apply thereto.

Briefs May Be Typewritten.

2. Briefs and points and authorities, instead of being printed, may be typewritten upon the

same paper and in the same style and form as is prescribed for typewritten transcripts.

Copy To be Served—Two Copies To Be Filed.

3. When so typewritten, but one copy of such transcript need be filed in the case; but a

copy thereof shall be served upon the opposite party. Two copies of the briefs and points and

authorities, viz.: the first impression and a copy thereof, shall be filed with the clerk, and a

copy shall be ��

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served upon each opposite party who appeared separately in the court below.

RULE XXVI.

Concerning Certificate of Naturalization.

Under no circumstances shall this court, or any of the district courts of the State of

Nevada, hear proof for the issuance of, or issue final papers or certificates of naturalization to

any applicant therefor, at any time within the sixty days immediately preceding any general or

special state election of this state.

RULE XXVII.

Payment of Advance Fee Required—Clerk Prohibited from Filing.

No transcript or original record shall be filed or cause registered, docketed or entered until

an advance fee of twenty-five dollars is paid into the clerk's office, to pay accruing costs of

suit. The clerk of the court is prohibited from filing or registering any record without first

having received as a deposit the aforesaid fee.

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��26 Nev. 11, 11 (1900) Rules of District Court��

RULES

OF THE

District Court of the State of Nevada

___________

RULE I.

The hour of 10 o'clock a.m. is fixed for the opening of court, unless otherwise ordered.

RULE II.

The clerk of each county of the state shall make three calendars for the district court of his

county, upon one of which he shall place all civil causes at issue upon questions of fact as

soon as the issue is made; upon another of which he shall place all civil causes at issue upon a

question of law, and all motions of every nature, except ex parte motions, as soon as the issue

is made, or as soon as notice of motion is filed; and upon the third of which he shall place all

criminal business of every kind. The names of the attorneys of the respective parties shall be

appropriately placed on such calendars. The clerk shall, on every Saturday, forward to the

presiding judge of the court, and also to the judge who is to sit in his county, a full statement

of the condition of the business of the court as shown by the calendars.

RULE III.

The judge who is to hold court in any county shall give the clerk of such county notice of

the time when court will sit. The clerk shall, immediately upon receiving such notice, give all

the attorneys having business in said court, as shown by the calendar, and also all attorneys

practicing in his county, notice in writing of the time when court will be held. He shall also

give notice of the time of holding ��

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court, in some newspaper printed and published at the county seat of his county, provided it

can be done without expense.

RULE IV.

Upon the meeting of the court, as provided in Rule III, the law calendar will first be called

and disposed of. The trial calendar will then be called, and causes at issue upon questions of

fact disposed of. When the calendar is called the causes will be set for a time certain. Parties

are expected to be ready to try their causes, whether at issue upon questions of law or fact,

when the calendar is called, and in the order in which they are set. Parties may, prior to the

meeting of the court, fix the day of trial by stipulation in writing, subject to the approval of

the court or judge. The daily business of the court will be disposed of in the following order:

First—The minutes of the previous day's business shall be read, approved, and signed by

the judge.

Second—Ex parte motions.

Third—Probate business, when there is no contest.

Fourth—Issues arising subsequent to the calling of the calendar shall be set.

Fifth—Trial of causes, as previously set.

Sixth—Questions of law.

RULE V.

On each Saturday of any session of court held by any district judge, law questions shall

take precedence, and be heard without previous setting or notice.

RULE VI.

When any motion or proceeding has been noticed, or set for a time certain, and for any

cause is not heard at the time appointed, the hearing of the same shall be continued without

further order, and the motion or proceeding shall be placed upon the calendar and disposed of

as other issues thereon.

RULE VII.

Any issue of law, and any motion of any nature or kind, may be heard orally by stipulation

of the parties, at any time or place agreed on in the state, with the consent of the judge first

having jurisdiction of the cause, or such questions of law, or motions, as the case may be,

may be submitted on ��

��


briefs of such judge, with his consent, and the decision may be filed thereafter at any time,

which decision shall fix the time when the decision of the court is to be complied with; and in

all such cases the party who is required to act by such decision shall receive due written

notice thereof from the opposite party. Time for complying with such decision shall

commence to run from the time when service is made in the manner required by the statutes

for service of pleadings in a case; provided, that when the parties are present by their

respective attorneys when the decision is rendered, no notice shall be required.

RULE VIII.

When a demurrer is interposed in any case, if it be made to appear to the satisfaction of the

court that such demurrer has not been interposed in good faith, but merely for delay, the

defendant shall only answer upon such terms as the court may prescribe, and upon the filing

of the answer, the case shall be set down for trial for as early a day as the business of the court

will permit. In cases other than those above mentioned, ten days shall be allowed to amend or

plead, as the case may be, unless the court by its order fix a different time.

RULE IX.

All documents and pleadings, intended for the files of this court shall be on paper known

as “legal cap,” of good quality, and without interlineations, unless noted thereon by the clerk

at the time of filing. No original pleading or paper shall be amended by making erasures or

interlineations thereon, or by attaching slips thereto, except by leave of court. Copies of all

papers issued from this court, or to be used therein, which are required by law, or rule of court

to be served, shall be upon legal cap paper in a legible hand, and in default of so doing, the

party failing shall be compelled to renew the paper, or be precluded from using the original,

as the court may deem proper.

RULE X.

Motions in all cases, except ex parte motions, motions for continuance, and motions to

amend pleadings pending a trial, shall be noticed at least five days before the day specified

for a hearing, and a copy of all papers to be used by the moving ��


party, except pleadings or other records of the court, shall be served with the notice of

motion. The notice of motion shall be in writing, and shall specify the papers to be used and

the names of witnesses to be examined by the moving party, and the grounds upon which the

motion is made; provided, that the court may, upon good cause shown, shorten or enlarge the

time for hearing. For a failure to comply with this rule the motion shall be denied.

RULE XI.

Upon reading and filing the notice of motion, with due proof of service of the same, and of

the papers mentioned therein, if no one appears to oppose the motion, the moving party shall

be entitled to have the motion decided. Upon the hearing, the affidavits to be used by either

party shall be endorsed and filed before the affidavits shall be used. The manner of making

motions shall be as follows:

First—The moving party shall read the moving papers, or state the contents thereof, or

introduce his oral evidence.

Second—The party opposing shall then read or state the contents of his opposing papers,

or introduce his oral evidence.

Third—The moving party may then read his rebutting papers, or introduce oral evidence, if

admissible under the rules of practice in law or equity. The counsel for the moving party shall

make his argument, to be followed by the counsel of the opposing party, and the counsel for

the moving party may reply.

RULE XII.

All motions for the continuance of causes shall be made on affidavit; and, when made on

the ground of absence of witnesses, the affidavit shall state:

First—The names of the absent witnesses, and their present residence or abiding place, if

known.

Second—What diligence has been used to procure their attendance, or depositions, and the

causes of a failure to procure the same.

Third—What the affiant has been informed and believes will be the testimony of each of

such absent witnesses, and whether or not the same facts can be proven by other wit��


nesses than parties to the suit, whose attendance or depositions might have been obtained.

Fourth—At what time the applicant first learned that the attendance or depositions of such

absent witnesses could not be obtained.

Fifth—That the application is made in good faith, and not for delay merely. And no

continuance will be granted unless the affidavit upon which it is applied for conforms to this

rule, except where the continuance is applied for in a mining case, upon the special ground

provided by statute. A copy of the affidavits upon which a motion for a continuance is made,

shall be served upon the opposing party as soon as practicable after the cause for the

continuance shall be known to the moving party. Counter affidavits may be used in

opposition to the motion. No amendments or additions to affidavits for continuance will be

allowed after they have been read, and no argument will be heard on motions for a

continuance, except such as relate to the sufficiency of the affidavits read on the hearing.

RULE XIII.

If the attorney or counsel of either party offers himself as a witness on behalf of his client,

and gives evidence on the merits of the cause, he shall not argue the cause, or sum it up to the

jury, without the permission of the court.

RULE XIV.

No attorney will be received as surety on any bond or recognizance to be filed or entered

into in any action or proceeding in this court.

RULE XV.

A party making application for a commission to take the deposition of a witness out of the

state, shall serve, with the notice of such application, a copy of the direct interrogatories; and,

at least one day before the hearing of the application, the adverse party shall serve upon the

moving party a copy of the cross-interrogatories. The direct and cross-interrogatories shall be

settled at the time of hearing the application, unless the court or judge otherwise direct;

provided, that parties may agree to the interrogatories without submission to the court or

judge, or may stipulate that the depositions may be taken without written interrogatories.


RULE XVI.

When a deposition is received by the clerk, he shall endorse upon the envelope the time of

receiving it, and immediately file it with the papers of the case in which it was taken; and at

any time afterward, upon the application of any attorney in the case, he shall open the same,

and endorse upon the envelope the time of opening, and the name of the attorney upon whose

application it was opened, and shall then file the deposition.

RULE XVII.

In cases where the right to amend any pleading is not of course, the party desiring to

amend shall serve, with the notice of application to amend, an engrossed copy of the

pleading, with the amendment incorporated therein, or a copy of the proposed amendment,

referring to the page and line of the pleading where it is desired that the amendment be

inserted, and, if the pleading were verified, shall verify such amended pleading, or such

proposed amendment, before the application shall be heard.

RULE XVIII.

The party moving to strike out any part of a pleading shall, in the notice of motion,

distinctly specify the part asked to be stricken out.

RULE XIX.

No paper or record belonging to the files of the court shall be taken from the office and

custody of the clerk, except upon the special order of the judge in writing, specifying the

record or paper, and limiting the time the same may be retained; but in no case shall original

documentary evidence be taken from the office of the clerk.

RULE XX.

If the undertaking required before issuing a writ of attachment is shown to the satisfaction

of the court or judge, upon proper notice, to be insufficient to secure the party whose property

is attached, against damages, the court or judge may require an additional undertaking to be

filed, and if not filed, the attachment shall be dissolved. No attachment shall be dissolved by

reason of any defect in the attachment ��

��


papers that can be amended without affecting the substantial rights of the parties.

RULE XXI.

Upon a reference to try all the issues, both of fact and law, and to report a judgment

thereon, the referee shall set forth in his report the facts found and conclusions of law

separately, and shall, upon the day when his report is filed, serve upon the respective parties,

or their attorneys, notice that such report is filed; and the trial of the cause for the purpose of

notice and motion for new trial shall not be deemed concluded until such notice is served.

RULE XXII.

When an appeal is perfected and a proper undertaking to stay proceedings is filed, it shall

stay all further proceedings in the court below, upon the judgment or order appealed from, or

upon the matter embraced therein; and if an execution or other order shall have been issued to

the sheriff, coroner, or elizor, he shall return the same, with the cause therefor, and his

proceedings thereunder, endorsed thereon upon receiving from the clerk a certificate, under

the seal of the court, of the perfecting of the appeal. The certificate shall state the title of the

action, the filing and service of the notice of appeal and the date of such filing and service,

together with the filing and approval of the undertaking staying all proceedings, and the date

of such filing and approval; and such certificate shall operate as a supersedeas of the

execution, or a vacation of the order.

RULE XXIII.

If, in an action to foreclose a mortgage, the defendant fails to answer within the time

allowed for that purpose, or the right of plaintiff as stated in the complaint is admitted by the

answer, the court may make an order referring it to some suitable person as referee, to

compute the amount due to the plaintiff, and to such of the defendants as are prior

incumbrancers of the mortgaged premises, and to examine and report whether the mortgaged

premises can be sold in parcels, if the whole amount secured by the mortgage has not become

due. If any of the defendants have been served by publication, the order of reference shall also

direct the referee to take proof of the facts and circumstances stated in the ��

��


complaint, and to examine the plaintiff, or his agent, on oath, as to any payments which have

been made, and to compute the amount due on the mortgage, preparatory to the application

for decree of foreclosure.

RULE XXIV.

When an order shall be made enlarging the time to file a statement or affidavits on motion

for new trial, the adverse party shall have the same number of days to propose amendments or

file counter affidavits as was allowed by such order to file such statement or affidavits.

RULE XXV.

When a motion for a new trial is made in a cause tried before a referee, the statement shall

be settled by the referee.

RULE XXVI.

No stay of execution upon motion for a new trial shall be granted or allowed, nor

execution or other proceeding be stayed in any case, except upon the giving of a good and

sufficient undertaking, in the manner and form as other undertakings are given, to be

approved by the judge, with at least two sureties, for the payment of the judgment or debt, or

performance of the act directed by the judgment or order, in such amount as may be fixed by

the judge. An order to stay execution, or other proceedings in an action, shall be of no effect

until a copy of notice thereof is served upon the opposite party, or his attorney, and any other

party or officer whose proceedings are to be stayed thereby, unless said attorney or officer be

present at the time of making such order. And if an execution or other order shall have been

issued to the sheriff, coroner, elizor, or other person, he shall return the same with the cause

therefor and his proceedings thereunder endorsed thereon, upon receiving from the clerk a

certificate, under the seal of the court, of the granting of the stay of execution or other

proceedings. The certificate shall state the title of the action, the order staying the execution

or other proceedings, and the date of such order, together with the filing and approval of the

undertaking above required, and the date of such filing and approval; and such certificate

shall operate as a supersedeas of the execution or a vacation of the order.


RULE XXVII.

No agreement or stipulation between the parties in a cause, or their attorneys, in respect to

the proceedings therein, will be regarded, unless the same shall be entered in the minutes in

the form of an order, by consent, or unless the same shall be in writing, subscribed by the

party against whom the same shall be alleged, or by his attorney or counsel.

RULE XXVIII.

No juror shall be excused except in open court; and when a juror is excused, the clerk shall

immediately withdraw his name from the box for the period for which he has been excused.

RULE XXIX.

No person shall be appointed guardian ad litem, either upon the application of the infant or

otherwise, unless he be the general guardian of the infant, or an attorney or other officer of

this court, or is fully competent to understand and protect the rights of the infant; has no

interest adverse to that of the infant, and is not connected in business with the attorney or

counsel of the adverse party, nor unless he be of sufficient pecuniary ability to answer to the

infant for any damage which may be sustained for his negligence or misconduct in defense of

the suit.

RULE XXX.

Every attorney, or officer of this court, shall act as guardian of an infant defendant,

whenever appointed for that purpose by an order of the court. He shall examine into the

circumstances of the case, so far as to enable him to make the proper defense, and shall be

entitled to such compensation as the court may deem reasonable.

RULE XXXI.

No guardian ad litem shall receive any money or property, or proceeds of sale of real

estate, until he has given security by bond, in double the amount of such property or money,

with two sureties, who shall justify as in other cases, approved by the judge and filed by the

clerk, conditioned for the faithful discharge of his trust.

RULE XXXII.

The counsel obtaining any order, judgment or decree, shall furnish the form of the same to

the clerk.


RULE XXXIII.

The sheriff shall file with the clerk the affidavit and order on which any arrest is made,

within five days after such arrest is made.

RULE XXXIV.

The party against whom judgment is entered shall have two days after service of a copy of

the cost bill in which to move to retax costs.

RULE XXXV.

In actions to enforce mechanics' liens, other lienholders coming in under the notice

published by the plaintiff, shall do so by filing with the clerk and serving on the plaintiff, and

also on the defendant, if he be within the state, or be represented by counsel, a written

statement of the facts constituting their liens, together with the dates and amounts thereof,

and the plaintiff and other parties adversely interested shall be allowed five days to answer

such statements.

RULE XXXVI.

No motion once heard and disposed of shall be renewed in the same cause, nor shall the

same matters therein embraced be reheard, unless by leave of the court granted upon motion

therefor, after notice of such motion to the adverse parties.

RULE XXXVII.

When an appeal from the justices court to this court has been perfected, and the papers are

not filed in this court within fifteen days from the day of filing the undertaking on appeal, this

court, on the production of a certificate from the justice to the effect that an appeal has been

taken and perfected, but the papers had not been ordered up, or the proper costs not paid, or

upon showing that any other necessary steps have not been taken, shall dismiss the appeal at

the cost of the appellant.

RULE XXXVIII.

The plaintiff shall cause the papers in a case certified to this court under the provisions of

the 539th section of the practice act, to be filed in the office of the clerk of this court within

fifteen days from the day upon which the order of the justice is made directing the transfer of

the case. If the papers are not so filed the case shall be dismissed, upon filing ��


a certificate from the justice to the effect that he has certified the papers as required by said

section, but that the same have not been ordered up, or the proper costs paid; or if it shall

appear that such papers are not filed in this court by reason of the neglect of the plaintiff to

pay the fees of the clerk for filing the same.

RULE XXXIX.

During the time the court remains in session it shall be the duty of the sheriff in attendance

to prevent all persons from coming within the bar, except officers of the court, attorneys and

parties to, or jurors or witnesses in the cause or matter being tried or heard. The sheriff shall

also keep the passage way to the bar clear for ingress or egress.

RULE XL.

Before the argument begins, counsel shall prepare their instructions, submit them to the

inspection of the opposite party, and then deliver them to the court. The court will hear

objections to instructions, and will, when practicable, settle the instructions in advance of the

agreement, and permit counsel to use them when addressing the jury.

RULE XLI.

When any district judge shall have entered upon the trial or hearing of any cause or

proceeding, demurrer or motion, or made any ruling, order or decision therein, no other judge

shall do any act or thing in or about said cause, proceeding, demurrer or motion, unless upon

the written request of the judge who shall have first entered upon the trial or hearing of said

cause, proceeding, demurrer or motion.

RULE XLII.

When an application or petition for any writ, rule or order shall have been made to a

district judge and is pending, or has been denied by such judge, the same application or

motion shall not again be made to the same or another district judge, unless upon the consent

in writing of the judge to whom the application or motion was first made.

RULE XLIII.

No judge, except the judge having charge of the cause or proceeding, shall grant further

time to plead, move, or do ��


any act or thing required to be done in any cause or proceeding, unless it be shown by

affidavit that such judge is absent from the state, or from some other cause is unable to act.

RULE XLIV.

When a cause shall have been certified by the state land register to the district court for

trial, it shall be the duty of the first applicant, within thirty days after receiving notice of such

certification, to file and serve upon the adverse party a complaint setting forth the facts upon

which he claims to be entitled to the land. The adverse party shall, within ten days after

service of the complaint, file and serve his answer, in which answer he shall set forth the facts

upon which he relies.

RULE XLV.

No judgment, order, or other judicial act or proceeding, shall be vacated, amended,

modified or corrected by the court or judge rendering, making, or ordering the same, unless

the party desiring such vacation, amendment, modification or correction shall give notice to

the adverse party of a motion therefor, within six months after such judgment was rendered,

order made, or action or proceeding taken.

____________

To the Honorable Judges of the District Court of the State of Nevada:

Your Committee appointed to prepare Rules of Court, submit for your approval and

adoption the foregoing rules, forty-five in number.

TRENMOR COFFIN,

ROBT. M. CLARKE,

R. H. LINDSAY,

W. E. F. DEAL,

H. F. BARTINE,

Committee.

Attest: James D. Torreyson, Secretary.

____________

It is hereby ordered that the foregoing rules, forty-five in number, be and they are hereby

adopted as the Rules of Practice of the District Court of the State of Nevada, and �� !��


that they be in force in each county thirty days after the date of their filing in the clerk's office

of such counties.

RICHARD RISING,

Presiding District Judge.

R. R. BIGELOW,

A. L. FITZGERALD,

District Judges.

____________

26 Nev. 31, 31 (1900)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

OCTOBER TERM, 1900.

____________

��26 Nev. 31, 31 (1900) State v. Guilieri��

[No. 1581.]

THE STATE OF NEVADA, Respondent, v. PETER

GUILIERI, Appellant.

Criminal Law—Homicide—Evidence—Sufficiency. Deceased, and defendant, his employer, returned home

from town together, the former being very drunk. Defendant and the Indian woman with whom he lived

gave deceased his supper, and then defendant left the house to care for his team. On hearing the squaw

calling for him, defendant returned to the house, and met deceased, armed with a miner's candlestick,

whereat defendant armed himself with a dagger, and in the ensuing fight, in which deceased was the

assailant, the latter was stabbed five or six times, and died instantly. Defendant was wounded in the neck

and slightly in the ear, the latter possibly self-inflicted. There were no witnesses to the fight. Defendant

knew that deceased had made improper proposals to the squaw shortly before, and suspected a repetition

when he heard her calling him: Held, that the jury may have reached the conclusion that the punishment

was not in necessary self-defense, but in the execution of an intent to kill, and therefore a verdict of murder

in the second degree was sustained by the evidence.

Idem—Record of Preliminary Examination. In a prosecution for homicide the state is not bound to introduce in

evidence the proceedings on preliminary examination.

Idem—Practice on Appeal—Instructions. Where no particular error is alleged against instructions, the appellate

court will not examine them.

Appeal from the Third Judicial District Court, Lander County; A. L. Fitzgerald, Judge.


Peter Guilieri was convicted of murder in the second degree, and appeals. Affirmed.

The facts sufficiently appear in the opinion.

T. H. Haydon and A. J. Maestretti, for Appellant.

W. D. Jones, Attorney-General, S. A. Crescenzo, and Peter Breen, for Respondent:

I. The answer to the first point is that the law does not require the state to use the

testimony taken at a preliminary examination to make out a case, any more than it requires

the state to produce and use in its ease in chief any and all witnesses or testimony heard or

taken before the grand jury on finding the indictment. All the law requires of the state is to

make a prima facie case by legal testimony. It may be the testimony of witnesses who

testified at the preliminary hearing, if it be shown that the witness was “sick, out of the state,

dead or that his personal attendance could not be had in court.” (Comp. Laws, 4121; State v.

Parker, 16 Nev. 84.) But it will not do to say that, although the state might have availed itself

of such testimony, on proper showing “that the witness was sick, out of the state, dead, or that

his personal attendance could not be had in court,” it was compelled to do so. The state is

only required to make a prima facie case in chief, to avoid acquittal; but upon the whole must

convince the jury of the guilt of the accused “beyond a reasonable doubt,” to be entitled to a

conviction.

II. The rule is thoroughly established in this state that a verdict in a criminal case will not

be reversed where there is any evidence to support it. (State v. Huff, 11 Nev. 17; State v.

Glovery, 10 Nev. 24; State v. Crozier, 12 Nev. 300; State v. Raymond, 11 Nev. 98; State v.

Mills, 12 Nev. 403; State v. McGinnis, 6 Nev. 109.)

III. Appellant fails to point out any error in any of the instructions complained of. Counsel

content themselves with asserting, in their opening brief, that “the court erred in giving upon

the request of the prosecution these instructions (fifteen) designated by their number.” In their

second brief these instructions are not referred to. It would be difficult for this court to

understand what error is meant, and, since ��


appellant does not point it out, this court should disregard the complaint.

By the Court, Belknap, J.:

Appellant was convicted of murder of the second degree. He appeals from the judgment,

and relies upon the following specifications of error: (1) Insufficiency of the evidence to

support the verdict; (2) error of law in not requiring the prosecution to use as part of its case

in chief the record of the proceedings taken at the preliminary examination; (3) error in giving

fifteen of the instructions (numbered) asked for by the prosecution.

1. It was shown at the trial that the appellant lived at Big Creek, in Lander county.

Dougherty, the deceased, was in his employ. They had been at Austin during the day of

December 24, 1898, and returned home in the evening together. Deceased was so much under

the influence of liquor that he fell off the wagon near appellant's house. Appellant and an

Indian woman, with whom he lived, helped him to the house, gave him a chair by the fire,

and supper. Appellant then left to care for the team. Soon the squaw ran out of the house,

calling for him. He returned, met deceased in the house, armed with a miner's candlestick. A

fight ensued, in which he armed himself with a dagger. No one was present except the two

men. Dougherty was stabbed five or six times, and died instantly. Appellant received one

wound in the neck, and another upon his ear; but there was testimony tending to show that the

latter wound was slight, and might have been self-inflicted. A motive for the killing was

shown from the fact that deceased had made improper proposals to the squaw a fortnight

before, which appellant knew; and when she ran out crying, and calling him, he surmised a

repetition of that occurrence. According to appellant's testimony, deceased was the assailant.

We will assume that he was. But the jury may have reached the conclusion that the

punishment was not in necessary self-defense, but in the execution of an intent to kill. The

testimony supports this view.

____________


2. We know of no rule of law, and counsel has not referred us to any, by which the court

could have required the prosecution to introduce the record of the preliminary examination or

any of it.

3. No suggestion has been made directing our attention to any particular error in any of

the instructions mentioned, and for this reason we decline to examine them.

It is ordered that the judgment be affirmed.

____________

��26 Nev. 34, 34 (1900) State v. Bouton��

[No. 1585.]

THE STATE OF NEVADA, Respondent, v. VICTOR

BOUTON, Appellant.

Criminal Law—Practice on Appeal—Defective Certificate—Amendment. A motion to dismiss an appeal

because of the insufficiency of the clerk's certificate attached to the record will be denied, where the

appellant asks leave to have the defective certificate corrected, since such certificate under Rule VII of this

court can be amended.

Idem—Idem—Instructions—Failures to Except. Instructions given by the court of its own motion cannot be

considered on appeal in the absence of exceptions thereto, since, under Comp. Laws, 4391, only

instructions presented and given or refused need not be excepted to or embodied in a bill of exceptions.

Idem—Idem—Idem—Record. Instructions based on evidence not embodied in the bill of exceptions cannot be

considered on appeal.

Idem—Larceny—Property Brought from Other State. Where a party commits larceny in one state and carries the

stolen goods into another state, and there makes any removal or asportation of them with intent to steal the

same, he may be properly indicted and tried for the larceny in the latter state.

Appeal from the Fifth Judicial District Court, Humboldt County; S. J. Bonnifield, Jr.,

Judge.

Victor Bouton was convicted of grand larceny, and from the judgment and an order

denying his motion for a new trial, he appeals. Affirmed.


H. Warren, J. F. Dennis, B. L. Hood, and D. S. Truman, for Appellant:

I. The sixth instruction given by the court in this case of its own motion is foreign to the

issues. It is an abstract proposition of law so far as the same refers to a larceny in any other

place or county than in Humboldt, and the same ��


even then does not correctly state the law. Under the issues in this case, and the rulings of the

court, this instruction as given could only tend to and actually did mislead the jury, and was

highly prejudicial to the rights of the defendant. Before the defendant here could be connected

with this crime, if one was committed, and convicted under the indictment, it would have to

be found that he did every act going to make the completed crime, in this state and in the

county of Humboldt, and, as a matter of law and fact, whatever may have transpired in

another state in regard to the same could have no tendency to prove the commission of the

crime here unless it were first shown that the defendant charged with such a crime took the

property originally in the other state, and there never was any pretense in this case that such

was the fact.

II. It is true it is competent to show a person who has in his possession, in this state,

property which he is shown to have stolen in another state, that the relations of the party to

the property here have not changed, and right here is where we believe the court committed

error in giving this instruction, viz: It authorizes the jury to presume that the defendant had

something to do with the original taking of the animal mentioned in the indictment, in the

State of California, and in bringing it into Humboldt county and there performing the acts

which the court instructs would constitute a larceny in that county. If it does do this, then the

instruction is erroneous under the rulings of the court when it sustained the objection of the

state to the question asked of witness McKissick. By this ruling the court excluded the

proposition of whether or not the animal was originally stolen in California by anyone

whatsoever, and was then brought to this state and county from that state, or whether this

defendant had any hand therein.

III. The attorney-general, in his statement to the court on the trial, says: “It makes no

difference where the animal was originally taken. It is where it is found with intent to steal,

take or drive away in this case, without the knowledge and consent of the owner.” This comes

pretty near stating the law of the case, and shows that this instruction should not have been

given at all under the state's theory of the case, or ��


upon any other theory. It could not help but mislead the minds of the jury and direct them to a

false issue in the case, especially when the instructions are taken together as a whole, as

Instruction No. 6 points to the effect of the recent possession of stolen property, and although

there was absolutely no evidence in the case to warrant it. The jury could easily, under this

instruction, have taken the position that because Bouton was found in the possession of this

animal, which for the purposes of this argument will be admitted was stolen, that because he

did not give an explanation of how it came from California, they would be and were justified

in convicting him. There can be no question but what such an instruction in a case of this

kind would be misleading to any jury, even if it correctly stated the law.

IV. There was no attempt upon the part of the state to show that the defendant stole this

animal in California, or in any other county in the State of Nevada other than Humboldt;

therefore, this court can readily perceive the viciousness of directing the jury's attention to any

such issue of law in this case. The rule in criminal cases is this: “A charge must meet and be

strictly limited by the case set forth in the indictment; it must not go outside of and beyond

the allegations.” (Tooney v. State, 5 Tex. App. 163; Nee Gee v. State, 5 Id. 492; Bacous v.

State, 18 Id. 15; Mason v. State, 7 Id. 623; 43 Id. 414; State v. Walton, 74 Mo. 271; People v.

Mulkey, 65 Cal. 501.)

V. It might be claimed here that because the record itself shows that it does not contain all

the material evidence given in the case that the court will presume that there was some other

evidence given which made this instruction proper, but this is fully and completely answered

by reference to the indictment in the case which alleges, as above stated, a completed offense

in Humboldt county, exclusive and wholly disregarding any original taking in California or

any other state, and by the evidence excluded by the court on the State's objection, supra, and

is improper under any conditions that could legally arise upon this trial. In other words, the

vice of the instruction, in this respect, rests upon the position that it does not cover any issue

made by the indictment and plea ��


of defendant thereto. The court has heretofore adopted this view of the law. (State v.

Vaughan, 22 Nev. 285, 10 Ins. P. 302.)

VI. This instruction is an incorrect statement of the law even were it pertinent. It will be

seen that the court under the conditions mentioned in the instruction places the taking from

another state and another county upon the same basis, and that basis is improperly made the

foundation of the instruction, and does not correctly state the law. The court says: “If a person

commits larceny in one county or state and carries the property stolen into another county or

state, and then makes any removal or asportation of it having in his mind the intent to steal,

he may be properly indicted and tried for the larceny of said property in the latter locality.”

What is this but a direct pointing of the minds of this jury to the fact that if the defendant

stole the property in California and removed it to this state, and then made any removal or

asportation of it having the intent to steal, he could be convicted in this state. Certainly such

is not the law, but it is the law that he must do every act in this state which would fully

constitute the completed crime, but if it was stolen in one county and taken into another

county in the state the court could see the continued relation of the party to the property and

to the crime, and that the title being in the true owner, every moment's continued possession

feloniously is a new crime under the same law.

VII. After a careful investigation of this instruction, it will be found that one of the

essential elements which go to constitute the completed crime where the property is taken

abroad and found in the possession of the party within the jurisdiction which is seeking to

punish, when it is not clearly shown that the person in whose possession it may be found, did

the taking abroad is wholly omitted here, and that is, that the defendant's acts done here were

done “with the knowledge of the ownership being in another.” The theory of the defense,

sustained by evidence, was that defendant had purchased this property bona fide, and paid a

valuable consideration for this animal, among others, and had committed no larceny at all, at

any place whatever.


W. D. Jones, Attorney-General, for Respondent:

I. The record shows, by the judge's certificate, that it does not comprise all of the

testimony given, and that other witnesses were sworn and gave testimony, and that other and

material evidence was offered, given and admitted in the case. This being so this court cannot

examine that the case on the merits. It is fundamental that every presumption is in favor of the

judgment of conviction, and before appellant can avail himself of error he must affirmatively

show it. No presumption is indulged in favor of error. If there is any evidence to support it,

the judgment will not be reversed. (State v. Huff, 11 Nev. 17; State v. Glovery, 10 Nev. 24;

State v. Crozier, 12 Nev. 300; State v. Raymond, 11 Nev. 98; State v. Mills, 12 Nev. 403;

State v. McGinnis, 6 Nev. 109.)

II. Instruction No. 6 complained of was taken, word for word, from State v. En, 10 Nev.

281, except the last nine words of it. (See also, People v. Ah Ki, 20 Cal. 178; People v. Gill,

45 Cal. 286.)

III. The objection to Instruction No. 8 is as follows: “The court erred in giving Instruction

8, in this, that it did not correctly state the law concerning property stolen in another state as

applied to the facts and circumstances of the case at bar.” At page 264 the court certified that

as to “the instructions given to the jury by the court of its own motion, neither party objecting

or excepting thereto.” Instruction 8 was one of the instructions given by the court of its own

motion. Unless the instruction was excepted to by appellant at the time it was given he cannot

be heard to object to it now. (State v. Burns, 8 Nev. 251; Wilkinson v. Parrott, 32 Cal. 105;

Mallet v. Swain, 56 Cal. 171; Hicks v. Coleman, 25 Cal. 146.)

IV. But, aside from the fact that the court's instruction was not excepted to by appellant, it

correctly states the law. (State v. Newman, 9 Nev. 48; 1 Bishop Crim. Law, 108.)

V. The proof showed that defendant stole fifty-seven head of cattle from Lassen county,

California, drove them to Egbert Camp in Limbo range in Humboldt county, Nevada, then

mutilated the brands on the cattle by changing them, changed the earmarks, tried to sell them

to F. A. Preston of Lovelock, then drove them to a point five or six miles east of "�� #��$�� %&'�� $�� (�)�� $�� #��(�)��"��


Lovelock, showed them to J. H. Theis, and sold fifty-three of them to Theis for $14 per head,

and delivered them into his pasture, where Howard McKissick found, identified and

recovered the cattle, and that the steer described in the indictment was born and raised the

property of Howard and Jacob McKissick in Lassen county, and was with the stolen cattle all

through the transaction, and was produced at the trial, slaughtered, and his hide produced as a

witness in the case. From the testimony it will be seen that it was impossible to trace the steer

described in the indictment through all the transactions from the time he was stolen in Lassen

county to his recovery by McKissick from Theis in Humboldt county, without also tracing

and connecting the other cattle, and also the brands of the various cattle in company with the

steer. But whether this be so or not the defendant waived all objections to the testimony as to

the different brands.

By the Court, Bonnifield, C. J.:

The defendant was convicted of the crime of grand larceny in the Fifth Judicial District

Court, in and for Humboldt county, and was sentenced to the state prison for the term of

seven years. He appeals from the judgment, and the order of the court denying his motion for

a new trial. The respondent moves for a dismissal of the appeal on several grounds, one of

which is that the certificate of the clerk, attached to what purports to be the record, is

insufficient. The appellant asks leave to have the record properly certified. As the certificate

can be amended, under Rule 7 of the supreme court, the motion to dismiss is denied. The

other grounds of the motion to dismiss need not be noted here.

The papers that constitute the record in a criminal case, under Sections 4415, 4445, Comp.

Laws, were attached together, and filed with the clerk of this court. We will regard them as

though they were properly certified, as there is no intimation that they are not what they

purport to be. We again call attention to “An act regulating appeals to the supreme court”

(Comp. Laws, 3862), and to the several decisions of this court as to the proper authentication

of the record on appeal. (Holmes v. Mining Co., 23 Nev. 23; Streeter v. Johnson, 23 Nev.

194; Peers v. Reed, 23 Nev. 404; *��*��+'�,��'-�


Becker v. Becker, 24 Nev. 476.) It is the duty of the appellant in all appeals to furnish this

court with a record properly certified. When proper attention is paid to the above statute,

motions to dismiss appeals on the ground of defective certificates, and motions for leave to

withdraw the records for the purpose of having them properly certified, will not be of such

frequent occurrence as heretofore, and delay and unnecessary expense with respect thereto

will be avoided.

Indictment: The indictment charges that the defendant on the 1st day of July, A. D. 1899,

or thereabout, at the county of Humboldt, State of Nevada, did feloniously steal, take, and

drive away one steer, of the personal property of Howard McKissick and Jacob McKissick.

There is evidence tending to show that said steer, together with fifty head of other neat-foot

cattle, of the personal property of Howard McKissick and Jacob McKissick, were stolen in

Lassen county, State of California, and driven to the “lava beds,” in Humboldt county, State

of Nevada; that said steer and said other cattle were plainly marked and branded with the

lawful marks and brands of said Howard and Jacob McKissick in said Lassen county; that at

said lava beds the defendant claimed to be the owner of all of said cattle, and claimed that he

brought them from California; that the defendant, at said lava beds, marked and branded all of

said cattle with marks and brands he claimed to be his own, and in such manner as to

obliterate the earmarks and partially to obliterate the said brands of McKissick on said cattle;

that at said lava beds the defendant, after his said marking and branding of said cattle, tried

and offered to sell all of said cattle to F. A. Preston; that defendant subsequently drove the

fifty-one head of said cattle belonging to said Howard and Jacob McKissick, including said

steer, from said lava beds, a distance of fifty miles, to a point in said Humboldt county five

miles east of Lovelock, and there sold all of said cattle, including said steer, to J. H. Theis, for

$14 per head, and delivered all of them to said Theis at his ranch in said Humboldt county;

that defendant at the time he so sold said cattle to Theis claimed that he had raised said cattle

on Willow creek, in said Humboldt county; that upon the said delivery of said �� %&'��


cattle to Theis the defendant received said sum of $14 per head, and soon after left the state.

There is a great deal of other evidence in the record tending to show the guilt of the

defendant of the felonious stealing, taking, and driving away said steer in Humboldt county as

charged in the indictment.

Instructions: The court, of its own motion, gave Instruction No. 6, relative to property

recently stolen, and found in the possession of the person accused of the theft, and also

Instruction No. 8, to effect that if a person commit a larceny in one county or state, and

carries the property stolen into another county or state, and there makes any removal or

asportation of it with intent then and there to steal the same, he may be properly indicted and

tried for the larceny of the property in the latter place. Counsel argue at great length that said

instructions are erroneous. It would be sufficient to say that the record shows that no

exception was taken to the giving of either of said instructions. It is only the instructions

presented and given or refused that need not be excepted to or embodied in a bill of

exceptions. (Comp. Laws. 4391; State v. Forsha, 8 Nev. 137; State v. Burns, 8 Nev. 251;

State v. Rover, 11 Nev. 343.)

But Instruction No. 6 is clearly correct, under the decision in State v. Clifford, 14 Nev. 72;

State v. I. En, 10 Nev. 277;

And No. 8 is supported by State v. Newman, 9 Nev. 48, and other authorities.

The bill of exceptions shows that it does not contain all of the material testimony and

evidence given in the case. The defendant offered certain instructions which were refused,

and the refusal is assigned as error. Counsel claims that said instructions were based on

certain evidence given in the case, but which is not embodied in the bill of exceptions. We

cannot consider such instructions.

Other instructions were offered by defendant and refused, and we think they were properly

refused. Some of them assumed the existence of a fact, while others stated erroneous

propositions of law. The jury were fully and properly instructed by the court on all material

matters involved in the case.


Finding no error in the record, the judgment and order appealed from are affirmed.

____________

��26 Nev. 42, 42 (1900) Quinn v. White��

[No. 1587.]

JOHN J. QUINN, Appellant, v. ALBERT WHITE,

Respondent.

Account Stated. Plaintiff leased his hotel to defendant, and agreed to purchase supplies with his own funds, to be

used by defendant and paid for out of the receipts. Plaintiff afterwards submitted to defendant a statement,

which included the amount due for rent and for supplies furnished by plaintiff, and accounts of creditors for

which plaintiff was liable. Defendant told plaintiff that, if he would give him a day or two, he would secure

the amount, and this was acceded to: Held, that action would lie as for an account stated.

Idem—Compromise. The promise of defendant to secure the debt in two days, and to pay future rent in advance,

as required by the lease, was not inadmissible as an attempt to compromise, being but a promise to do what

he was legally bound to do.

Practice—Proposed Evidence—Discretion of Court. It is in the discretion of the court to require counsel to

reduce to writing the substance of evidence about to be offered, in order to determine its competency,

though opposing counsel do not object to an oral statement of such evidence.

On Petition For Rehearing

Account Stated—Promise to Pay—Conflict of Evidence—Promise Implying Correctness of Account. Where the

issue in a case was whether an account had been stated, and there was uncontradicted evidence that

defendant had promised to secure payment of the account as rendered, the latter's testimony that he never

promised to pay it was immaterial, and could not give rise to a material conflict in the evidence on such

issue, so as to preclude the disturbance of a verdict thereon, since any promise from which it might be

legitimately inferred that the account was correct was sufficient to show an account stated.

Appeal from the Second Judicial District Court, Washoe County; B. F. Curler, Judge.

Action by John J. Quinn against Albert White. There was a judgment for plaintiff, and

from an order granting a new trial he appeals. Reversed. Rehearing denied.


Thomas E. Haydon, for Appellant:

I. The judgment in this case had substantial evidence on all points to support it, and

should not have been disturbed by the court below, on the ground that the verdict of the jury��

��26 Nev. 42, 43 (1900) Quinn v. White��

was contrary to or against the weight of evidence, even had there been a substantial conflict in

the evidence; but in this case there was no substantial conflict in the evidence. (Taft v. Kyle,

15 Nev. 416; Allen v. Reilly, 15 Nev. 453; Tognini v. Kyle, 15 Nev. 464; Hixon v. Pixley, 15

Nev. 475; Simpson v. Williams, 18 Nev. 432; Langworthy v. Coleman, 18 Nev. 440; Winter

v. Fulstone, 20 Nev. 260.)

II. The finding of a jury will not be reversed unless it is so palpably against the evidence

as to raise a presumption of mistake or prejudice on the part of the jury. (Geremia v.

Mayberry, 14 Nev. 199; Ivancovich v. Stern, 14 Nev. 341; Cohen v. E. P. R. Co., 14 Nev.

376; Overman S. M. Co. v. Corcoran, 15 Nev. 147; 5 Nev. 415; 4 Nev. 304; 5 Nev. 281.)

III. The court in this case did not grant the new trial upon any of the points or errors

assigned or authorities cited or objections made by defendant to the verdict of the jury or to

the instructions of the court, hence none of defendant's errors assigned upon his motion for

new trial can be considered on this appeal. Defendant being the respondent herein, the

appellate court is not called on to examine any errors assigned by respondent. (Maher v.

Swift, 14 Nev. 332, affirmed in Moresi v. Swift, 15 Nev. 220; California cases cited in Maher

v. Swift, 14 Nev. 332; Jackson v. Feather River Water Co., 14 Cal. 18; Seward v. Malotte, 15

Cal. 304; Paul v. Magee, 18 Cal. 698.)

IV. The court below can only grant a new trial where there is a substantial conflict in the

evidence. When a verdict and judgment are in accordance and there is no substantial conflict

in it upon any material issue, the court below has no right to disturb such verdict and

judgment. (McLeod v. Lee, 14 Nev. 400.)

V. In the case at bar there is no substantial conflict whatever on the point that the court

granted the new trial upon, to wit: That plaintiff owned the property or any part of it, upon

which his account stated was based, or that such account stated, embraced any property of

plaintiff or defendant whatever then in existence. The account stated, as shown in the

evidence, consisted of claims for goods purchased by plaintiff for defendant, and delivered to

him, according to a mutual agreement and at defendant's request.

��26 Nev. 42, 44 (1900) Quinn v. White��

A. E. Cheney and Wren & Julien, for Respondent:

I. Upon this appeal from the order granting a new trial, the court will consider all the

points which were urged in favor of the motion for a new trial and insist that, if the order was

right for any reason, it should be sustained. Every presumption is in favor of the action of the

district court in granting the new trial and the appellant must show affirmatively that it was

erroneous. (2 Ency. Pl. & Pr. 323-324.) If the district court had refused to grant the motion for

a new trial, the rule stated by appellant that the judgment would not be disturbed if it had

substantial evidence to support it, would be applicable. But, “when a new trial is granted by

the judge at nisi prius upon the ground that the verdict is not warranted or sustained by the

evidence, and an appeal is taken from such order, the rule invariably governing the appellate

tribunal is not to disturb the action of the judge below if there is a material conflict in the

evidence.” (Worthing v. Cutts, 8 Nev. 118-121; Treadway v. Wilder, 9 Nev. 67; Margaroli v.

Milligan, 11 Nev. 96.)

II. It is claimed by respondent that the statement handed by Quinn to White did not

constitute an account stated—that it was not delivered or accepted as such. The testimony as

to what took place at the time the statement was delivered is conflicting. There is a substantial

conflict in the evidence as to whether White examined the items and knew its contents. There

is no pretext that he ever saw it afterwards. The court, by granting the motion for a new trial,

has found in favor of White, and the supreme court, upon review, will not disturb the finding.

III. The appellant cannot complain that the district court accepted his version of the

contract as correct. Quinn's testimony, as set forth in the statement, shows that the goods

which he ordered from San Francisco firms were purchased by him in his own name upon his

own credit, and shipped to him in his name and were delivered at the hotel and retained in his

possession and under his control until used by White, and that White was not liable therefor

until they were so used and was not liable at all, except to the extent that he received moneys

out of the hotel business over and above what was necessary to pay his help and the town

bills.

��26 Nev. 42, 45 (1900) Quinn v. White��

IV. “An account stated must be founded upon previous transactions of a monetary

character creating the relation of creditor and debtor between the parties.” (1 Am. & Eng.

Ency. Law, 2d ed. 440.) An account cannot be stated of a debt due upon a contingency. (2

Chitty on Contracts, 11 Am. ed. 962; Tuggle v. Miner, 76 Cal. 101.) “It only determines the

amount of the debt where a liability exists. But it cannot be made the instrument to create per

se a liability where none previously existed. (1 Am. & Eng. Ency. Law, 2d ed. 440, note 1;

Davis v. Seattle N. Bank, 52 Pac. 526.) As White was not liable to Quinn for the larger

portion of the items contained in the account, the rendering and acceptance of that account

even would not make it an account stated. As an account stated, it has not created a liability

where none existed before.

V. The paper delivered by Quinn to White on January 5, 1899, is not an account stated

and was not so contemplated and understood by the parties. Upon its face, it purports to be a

statement of White's liabilities to several parties—not the statement of any account which was

then due from White to Quinn. Most of the items were not due. Considering this point, it

should be remembered that Quinn, as White's bookkeeper, from time to time, made, for

White, statements showing White's liabilities—such a statement as a bookkeeper (in the

performance of his duties) would make for the information of his principal. This statement

was made for that purpose, and no other. If this statement constituted an account stated, those

previously stated did also. The implication that the previous statements, by not being

disputed, were accepted as correct and as accounts stated is much stronger because the lapse

of time is much greater. But the evidence is conclusive that Quinn did not consider the former

statements accounts stated because, in making each statement, he brought forward into it (not

the balance of the previous statement, treating it as an account stated) but the several items

which had been set forth in those statements. The parties, by their conduct, have shown that

there was no agreement or understanding, express or implied, that these statements which

Quinn rendered to White, from time to time, were rendered or received as accounts stated.

Even in ��

��

��26 Nev. 42, 46 (1900) Quinn v. White��

construing written contracts, the practical interpretation put upon them by the parties,

themselves, as shown by their acts and conduct, is entitled to great, even controlling, weight.

(11 Ency. Pl. & Pr. 518-9.)

VI. Taking the facts as testified by plaintiff, and considering them undisputed, it then

becomes a question of law whether the statements rendered constituted an account stated. (1

Am. & Eng. Ency. Law, 2d ed 454; Lockwood v. Thorne, 18 N. Y. 170.) The defendant's

contention is that, upon the undisputed facts, the court should find as a matter of law that the

statements made by Quinn to White, as his bookkeeper, and which simply show White's

liability to various persons, including Quinn, does not constitute an account stated, which

justifies a judgment in Quinn's favor for the full amount of White's liabilities to the several

parties.

VII. The record shows that there was an attempt to compromise and settle the difference

between Quinn and White, and, as part of that proposed settlement, White proposed to secure

and settle the amount of $1,224.51. Over White's objection that the evidence was incompetent

because part of negotiations for compromise and settlement, plaintiff was permitted to prove

what White said about securing the payment of Quinn's claim. The court erred in admitting

this evidence, and a new trial was properly granted.

VIII. The court erred in refusing to permit counsel for the defendant to make an offer of

proof of certain evidence which was deemed material for defendant. No objection to the offer

was made by the plaintiff's attorney. Why should the court object? The good faith of the offer

had not been questioned. Its materiality would have been disclosed by the offer. Where the

good faith of the offer is not questioned, there is no law which requires the offer to be

reduced to writing. (Scotland County v. Hill, 112 U. S. 183, 187.)


The action was upon an alleged account stated.

In April, 1896, plaintiff leased defendant the Arcade Hotel, at Reno. Defendant was

financially embarrassed, and property that he might acquire would be subject to process by

his ��

��26 Nev. 42, 47 (1900) Quinn v. White��

creditors. To avoid this, it was agreed that plaintiff, in his own name and with his own funds,

should purchase and keep in his possession and under his control the necessary supplies to be

used by defendant in the business of the hotel, to be paid for out of the receipts of the

business, after deducting certain mentioned expenses.

In pursuance of this plan, plaintiff from time to time purchased supplies, storing them in a

cellar of the hotel, of which he kept the key, and defendant used them as the business

required. Upon January 23, 1899, plaintiff gave to defendant a statement containing the

monetary transactions between them down to January 1, 1899, showing an indebtedness of

$1,224.51. Of this amount, $838.26 was for supplies furnished by San Francisco merchants,

itemizing the amount due each, and $386.25 for balance of rent of hotel, and supplies

furnished by plaintiff himself. It was shown that plaintiff kept defendant's books, that the

account of each creditor was separately kept therein, and that similar statements of accounts

to the one in suit, showing from time to time different balances, had been delivered to

defendant.

In reference to the account, plaintiff testified: “Q. Who is the person charged? A. I made it

that way to show him (defendant) what was due for liquors, but it was due me. I was owing

the firms. I simply did that so he could keep track of his business—know when he got liquors

and what he paid for them.

“Q. Does he know who he got them (it) from? A. Yes, sir; every time.”

About five days afterwards the parties met.

Plaintiff testified:

“I went up to see Mr. White after I had sent my attorney, Judge Haydon, and I agreed to let

him have the hotel, and on that I went to his room. He told me, in bed, then, that if I would

give him a day or two he would secure me the amount, $1,224.51, and pay me the rent sum in

advance thereafter, and that he would like to keep the hotel. I accepted his proposition, and

that is all. In regard to the statement, he proposed to settle it in not more than two days. He

did not comply with his agreement, and the negotiations failed.”

There was other testimony, but in our view these were the ��

��26 Nev. 42, 48 (1900) Quinn v. White��

controlling facts. A jury returned a verdict in favor of plaintiff. A new trial was allowed, and

from the order plaintiff appeals.

An account stated may not be in writing, and, if in writing, its form is immaterial. (Watkins

v. Ford, 69 Mich. 362.)

It was not necessary to have proven an express agreement to it. It may be implied from

circumstances. (Lockwood v. Thorne, 18 N. Y. 290.)

No objection was made to any item, and when defendant promised to secure its payment

the inference became irresistible that the minds of the parties met, and that the defendant

assented to it as correct. Counsel for defendant have not attached importance to this promise,

presumably for the reason that objection was taken to this evidence, as being an attempt to

compromise. There is no such attempt shown by the record. The promise either to secure or

pay the debt in two days, and to pay the rent in advance, according to the terms of the lease,

was nothing more than the naked promise of defendant to do what in law he was bound to do

instanter.

The record contains the following statement:

“During the cross-examination of the plaintiff, and after certain objections made by the

attorneys of the plaintiff had been sustained, counsel for defendant stated that he desired to

make an offer to prove certain things which he believed were material, and was about to state

what he desired to prove and would offer to prove, when he was stopped by the court, without

objection by the attorneys for the plaintiff, and informed that he could not orally state what

his offer was, and that if he desired to make an offer he must reduce it to writing and submit it

to the court, to which refusal, order, and request of the court counsel for defendant duly

excepted, upon the grounds that counsel had the right to make the offer orally; that no

objection thereto had been made by the attorneys for the plaintiff, to his so doing; that until

the offer was made, or it was shown that it was not being made in good faith, the court could

not determine that it was immaterial, or that it would prejudice any of the rights of the

plaintiff.”

It was in the discretion of the court, of its own motion, to ��

��

��26 Nev. 42, 49 (1900) Quinn v. White��

require a statement containing the substance of the evidence about to be offered, in order to

determine its competency.

“There are times when it is not advisable to apprise the witness about to be examined of

the facts expected to be proved by him. These or any other sufficient reasons are to be

weighed by the justice upon such questions. But in every case counsel are bound, if required,

to inform the court how the evidence is relevant, so that he may act understandingly in

relation to the admission of the evidence. This may be done by making the statement in

writing and handing it to the court. (3 Wait, Law & Prac., 5th ed. 474.)” (1 Rice, Ev. P. 512.)

The court properly struck out as immaterial the portion of the testimony of Thomas

McGovern relating to plaintiff's statement to him as to loss upon defendant's account.

The contention of respondent that defendant was liable only to the extent of the value of

supplies used is not in any wise presented by the record.

The order granting defendant a new trial should be reversed, and it is so ordered.

On Petition for Rehearing.


In his answer, defendant denied that an account had been stated between himself and

plaintiff, and charged fraud.

The charge of fraud is unsupported. The only issue, therefore, was whether or not an

account had been stated. Whether the supplies had been used by White, or that White had

received a surplus applicable to the claim of plaintiff, or that he was entitled to discounts, if

relevant at all, were only so for the purpose of tending to establish, or not, the cause of action

made by the pleadings.

It is claimed that a material conflict exists in the evidence touching the promise of

defendant to pay the account, and for that reason the verdict should not be disturbed. It was

unnecessary for Quinn to show an express promise to pay. An implied promise from which

the inference could legitimately be drawn that the account was correct was as good. Upon this

view Quinn testified, and it was uncontradicted, that White said that, if he were given a day or

two, he would ��

��26 Nev. 42, 50 (1900) Quinn v. White��

secure its payment. In this condition of the case, White's testimony that he never promised to

pay the account became immaterial, and did not raise a conflict.

Attention is again directed to the ruling of the district court requiring counsel for

respondent to reduce to writing testimony sought to be adduced upon the cross-examination

of plaintiff.

A reexamination has convinced us that our opinion is correct.

As a further reason, it may be added that the record fails to show what was expected to be

proven by the witness.

“In order to determine whether prejudice resulted to defendant by reason of the exclusion

of the evidence, the answer, or the facts that they tend to establish, should appear in the

record.” (Jenks v. The Knotts M. Co., 58 Iowa, 549.)

Rehearing denied.

____________

��26 Nev. 50, 50 (1900) So. Dev. Co. v. Douglass��

[No. 1595.]

THE SOUTHERN DEVELOPMENT COMPANY OF NEVADA, a Corporation, Petitioner,

v. W. J. DOUGLASS, et al., Constituting the Board of County Commissioners of

Esmeralda County, Respondents.

Certiorari—County Commissioners—Lease of Toll Road. County commissioners made an order granting a lease

to the proprietors of a toll road, in accordance with Comp. Laws, 459, authorizing such a lease when the

franchise expired; but the proprietors did not then accept its conditions, or agree to perform them, and the

board subsequently refused to execute a lease submitted for that purpose, and later made an order

rescinding its original order therefor: Held, that in making the later order the board did not exercise judicial

functions, and hence certiorari would not lie to set the same aside.

Idem—Idem—Idem. If the proprietors obtained any right under the original order, and the subsequent order

infringed the same, certiorari is not a remedy therefor.

Original proceeding. Certiorari by The Southern Development Company, a Corporation,

against W. J. Douglass and others, constituting the Board of County Commissioners of

Esmeralda County. Writ dismissed.

M. A. Murphy, for Petitioner:

I. The questions that are presented by this writ and to be �� ./�� 0��'12��3�� "��4


considered by this court are: What is the character of the action that is to be exercised under

the provisions of Section 459 of the Compiled Laws? Is it legislative, ministerial, or judicial,

and when the power has been once exercised, can it be reversed, reviewed, or reconsidered

and annulled by the board until such time as the term therein specified has expired? We claim

that the action of the board of county commissioners, in making and entering the order of the

5th day of December, 1899, was in its nature judicial. By judicial action is meant, in legal

understanding, that sort of action which requires the exercise of judgment or discretion, by

one or more persons, or by a corporate body, when acting as public officers, in an official

character, as shall seem to them to be equitable and just. Have the boards of county

commissioners, being a body of inferior and limited jurisdiction, who derive their power from

the statute, the authority to reconsider, to review, reverse, and annul their own action, after it

has been discussed, entered in the proceedings, said proceedings have been entered in the

minutes of the board, and signed by the presiding officer? If they do not possess this power,

then the order made on the 5th day of December, 1899, by the unanimous consent of every

member of the board, is still in force, and the order made on the 1st day of October, 1900, is

absolutely null and void. (Am. & Eng. Ency. Law, 2d ed. vol. 7, 1007; People v. Supervisors

of Schenectady, 35 Barb. 408; State v. Darke County, 43 Oh. St. 311; State ex rel. Flowers v.

Board of Education, 35 Oh. St. 368; Hanna v. Putnam Co., 29 Ind. 170; Delaware County

Supervisors v. Foote, 9 Hun, 527; Wren v. Fargo, 2 Or. 19.)

II. “Where a board of county commissioners is clothed by law with exclusive jurisdiction

over roads and highways, its judgments and orders are final and conclusive upon the board,

the parties in interest, and third parties.” (Humboldt Co. v. Dinsmore, 75 Cal. 607; Am. &

Eng. Ency. Law, 2d ed. 1009; Miller et al. v. Bd. Co. Commrs. of Carroll Co. et al., 89 Ind.

14; Waugh v. Chauncey, 13 Cal. 11; Brewer v. Boston R. Co., 113 Mass. 52; 7 Am. & Eng.

Ency. Law, 1008; Indiana cases, ibid.; Heazy v. Black et al., 90 Ind. 334; Howard v. Brow, 37

Neb. 905.)

III. “Having shown from the foregoing authorities that ��

�� 5


the subject matter under investigation was judicial in its character, and the board of

commissioners having, in due course, acted as the statute required, upon the statement, the

board exhausted its powers, and could not, after the close of the term at which it had been

made, as such an order is a judicial act.” (Weir v. The State, 96 Ind. 311; Board of Co.

Commrs. Cass Co. v. Gogansport Co., 88 Ind. 199; Graham v. Parham, 32 Ark. 676; Dorsey

v. Berry, 24 Cal. 453; People v. Board of Supervisors, 35 Barb. 418; People v. Delaware

Com. Pleas, 18 Wend. 558; Winter v. Fitzpatrick, 35 Cal. 269; O'Connor v. Blake, 29 Cal.

316; Harris v. Board of Supervisors, 49 Cal. 662; In the Matter of Canal Street, 11 Wend.

154; In the Matter of Mount Morris Square, 2 Hill. 19, Pettee v. Elvira P. Wilmarth, 5 Allen,

144; McFarland v. McCowen, 98 Cal. 331.)

G. S. Green, District Attorney, for Respondent:

I. The writ does not lie to review the action of any tribunal, board or officer in the exercise

of legislative functions. (State v. Osborn, 24 Nev. 194, and cases cited; People v. Board of

Education of Oakland, 54 Cal. 375.) The fact that a tribunal or officer exercises judgment or

discretion in the performance of a duty does not make the action or power judicial in

character. (People v. Walter, 68 N. Y. 403; McCord v. High, 24 Iowa, 336; 4 Ency. Pl. & Pr.

78.)

II. “The principle is uncontroverted that certiorari does not lie to review matters or

proceedings of inferior tribunals, boards, officers, etc., in the proper exercise of discretion

confided in them.” (State v. Bassett, 33 N. J. L. 226; State v. Trinity Church, 45 N. J. L. 230;

Parcel v. State, 30 N. J. L. 363; State v. Pierson, 37 N. J. L. 530; Alexander v. Municipal

City, 66 Cal. 387; Hayward v. Petitioner, 10 Pick. (Mass.) 358; Sannis v. Brice, 4 Den. (N.

Y.) 576; People v. Board of Police, 6 Hun, 229, 52 How. Pr. (N. Y.) 289; People v. Fire

Commrs., 100 N. Y. 82; Burrow v. Senickley, 36 Pa. St. 80; Polk Co. v. Des Moines, 70 Iowa,

351; Midland Co. v. Auditor-Gen., 27 Mich. 165; 4 Ency. Pl. & Pr. 81, note 4; Freeman v.

School Directors, 37 Pa. St. 385.)


In the year 1881 or 1882 the petitioner constructed the /��"�� *� ��

�� 6��


Walker Lake and Bodie toll road, situated in Esmeralda county, and continued from that date

up to a recent period to operate the same, and collect tolls thereon.

The petitioner's franchise expired in 1891 or 1892 by limitation. (Section 454, Comp.

Laws.) Upon the expiration of the franchise, the ownership of said road, with all the rights

and privileges theretofore belonging to the same, vested in Esmeralda county (Section 459,

Comp. Laws); and the county commissioners were authorized by said last section to declare

said road a free highway, “provided, that in all cases falling within this section, the county

commissioners of the proper county may give a lease at a nominal rental of any such road

whereon tolls are now collected * * * to the proprietors * * * for a term not to exceed five

years, giving to such lessees the right to collect tolls on such road.” * * * (Section 459.)

On December 4, 1899, the petitioner made application to said board for a lease of said toll

road for the period of five years, with the privilege of collecting tolls thereon.

On the next day, December 5th, the board “ordered that a lease be, and the same is hereby,

granted to the Southern Development Company for a period of five years, commencing

January 1, 1900, * * * upon the following conditions: * * *.” The conditions were to be

performed by the petitioner.

On the 3d day of February, 1900, the petitioner presented to the board for execution a

written lease of said road for the above-named term. Subsequently the board rejected and

refused to execute the lease, and notified the petitioner thereof.

At a later date, on the 1st day of October, 1900, the board ordered that the action of the

board of December 5, 1899, granting the Southern Development Company a lease of the

Walker Lake and Bodie toll road for the period of five years, commencing January 1, 1900,

“be, and the same is hereby, rescinded.

The contention of the petitioner is that the action of the board in making and entering the

order of December 5, 1899, was in its nature judicial, and that the board exceeded its

authority in rescinding said order by the order made on the &�� 7��&288��

��


1st day of October, 1900, and we are asked to set aside the latter order. Unless the board in

making the order complained of was exercising judicial functions, the writ of certiorari will

not lie. (Section 3531, Comp. Laws.) This rule is conceded by petitioner.

The order of December 5, 1899, was not a lease in contemplation of the parties, but a

promise or agreement on the part of the board to lease the road on certain conditions. The

petitioner did not then accept the conditions, or agree to perform them, so far as the record

shows. It was so understood evidently by the petitioner that it was not a lease, or it would not

have subsequently prepared and submitted to the board the written lease for execution. After

said promise or agreement to lease was made, the board refused to execute the lease, and, as

stated above, made the order vacating or rescinding the said former order made December 5,

1899.

We are of opinion that even if the board had no authority to make the order of said date,

October 1, 1900, the order cannot be set aside in this proceeding, as in making the order the

board did not exercise judicial functions; neither was the order which was vacated a judicial

act. If the petitioner acquired any legal right under the order of December 5, 1899, it cannot

enforce it by writ of certiorari. If the order made October 1, 1900, infringed any such right of

petitioner, its remedy is not by writ of certiorari. The writ will not lie to compel the

performance of the promise or agreement made by the board, or to set aside its order revoking

said promise or agreement.

The writ is dismissed.

____________

��26 Nev. 55, 55 (1900) Stanley v. Hirsching��

[No. 1596.]

WILLIAM B. STANLEY, Appellant, v. THE MINERAL UNION LIMITED, a Corporation,

and H. HIRSCHING, et al., Respondents.

Mines—State Lands—Rights of Patentee. The act of Congress of June 16, 1880 (21 Stat. 287), granting certain

lands to the State of Nevada, authorized the state to dispose of them under such regulations as the

legislature should prescribe. The act of March 5, 1887 (Comp. Laws, 325, 327), after providing for the sale

of such lands, provided that nothing in the act should be construed to prevent any person entering on the

lands to prospect for minerals, or to prevent the economical working of any mine which might be

discovered therein (Stats. 1887, 102; Comp. Laws, 281-282), provided, that any citizen might enter on any

mineral lands in the state, notwithstanding the state's selection of it under grants, and explore for minerals,

and, on the discovery thereof, mine the same, except that improvements made by persons purchasing the

land from the state should not be taken or injured without compensation, and that thereafter all patents

made by the state should reserve all mines that might exist on the land: Held, that one taking a patent to

such lands, with such reservation, acquired no interest in a mine located after his application was filed, and

before the patent issued, notwithstanding that the selection by the state under the grant from the

government determined that the lands were agricultural and non-mineral, within the meaning of the grant.

Practice on Appeal—Instructions. Where the instructions are not in the statement, and where no objection was

made or exception taken to the action of the court, alleged error, based upon the giving and refusal to give

certain instructions, is not properly before the court for consideration.

Appeal from the Fourth Judicial District Court, Lincoln County; G. F. Talbot, Judge.

Action by William B. Stanley against the Mineral Union Limited, a Corporation, and H.

Hirsching and others. From a judgment for defendants, plaintiff appeals. Affirmed.


Henry Rives, for Appellant:

I. For the purposes of the argument in this case, but without an admission of the truth of

the testimony, it may be said that the defendants established on the trial that in January, 1889,

they discovered, located and have since occupied and developed a mineral ledge, lode, vein or

deposit within the confines claimed by them, as constituting the “Hirsching Lode-Mining

Claim,” and it may also be said that neither the government of the United States, nor of the0��,��


State of Nevada, should have issued a patent to valuable mineral land to the appellant under

the circumstances of this case. Still it is patent that they have done so, and that under proper

conditions the authority existed in both the general government, through its officers, and the

State of Nevada, likewise, through its officers, to issue a patent to this land. It must be held,

and it is evident that in order to issue such a patent as is in controversy in this cause, the land

officers of the general government in the first place, and those of the State of Nevada in the

second place, are invested with discretion and authority to determine whether the land listed

or patented to the State of Nevada, and by it to its grantees, contained any “valuable

minerals”; and it is also evident that up to the date of such patent, this discretion and

authority is invested solely in these respective officers, and from the fact of the issuance of

this patent, it is also evident, and must be conclusively determined, that they have judiciously,

carefully, prudently and finally (at least to the date of patent) exercised their discretion and

authority in this respect in favor of the appellant; hence the appellant contends that his patent

amounts to an adjudication in his behalf by each and every possible authority which could

exercise any determination in the matter, to the date of his patent, in his favor, that all of the

land described in the patent is subject to such a patent, and that they had authority to issue it,

and that they had adjudged it to be of that character of land for which they had authority to

issue such a patent.

II. Since the erroneous contentions of counsel for the defendants and the ruling of the

court in this case, I may be permitted to indulge in and reiterate the surprise, which is

expressed by the Supreme Court of the United States, in a similar case (Steel v. Refining

Company, 106 U. S. 447) wherein that court used the following language: “We have so often

had occasion to speak of the Land Department, the object of its creation, and the powers it

possesses in the alienation, by patent of portions of the public lands, that it creates an

unpleasant surprise to find that counsel in discussing the effect to be given to an action of

that department, overlook our decisions on that subject.”


III. The appellant contends that the land officers of the general government, through

whom this land was listed or patented to the State of Nevada, had the authority to determine

every preliminary fact necessary and incident to the issuing of said “list,” or patent to the

State of Nevada; he further contends that similar authority existed in the land officers of the

State of Nevada, before they issued the patent, in evidence in this case, to him. In this

connection he also contends that this exercising of authority by these two respective sets of

officers involved the duty on their part to determine whether the land embraced in this patent

to plaintiff was of such “character” as, under the statute and grant to the State of Nevada,

they had the right or authority to list and patent in the first place, and in the second place to

finally patent to plaintiff. He also contends that this authority having been vested in them, and

they having exercised it, the exercise of that authority cannot be called in question, except in

a direct action to correct their judgment in respect to the matter in which they have acted.

IV. The appellant might safely rest this cause by citing a few decisions from the Supreme

Court of the United States on the foregoing points, but in order to establish to the court, that

the rule laid down in a number of the decisions of the Supreme Court of the United States,

with few (less than one-half dozen) exceptions, the state courts have invariably followed

these decisions; and these exceptions (which occur in California in similar cases) have later

been expressly overruled, and the only decision which I have been able to find which in the

slightest upholds the contention of the defendants is an early case in the 5th Oregon. (Gold

Hill Quartz Co. v. Ish, 5 Or. 104, or 11 Morrison's Mining Reports, 635.)

V. The appellant cites the court to the case of French v. Fyan, 93 U. S. 169, because that

case in particular appears to be exactly like the one at bar. In that case a patent had been

issued to the State of Missouri for certain swamp and overflowed land, under a certain act of

Congress; a party claiming the land under a grant to a railroad company which would have

carried the title, if the land were not swamped, brought an action of “ejectment,” and sought

to introduce parol evidence to prove that as a matter of fact the land was ��


not of that character, and to thus impeach the validity of the patent. There, as in the case at

bar, the question was as to the character of the land. The court below rejected the offered

evidence, and held that the patent concluded the question. The Supreme Court of the United

States, in French v. Fyan, supra, sustained the ruling of the court below, and in delivering its

opinion said: “We are of the opinion that in this action of law it would be a departure from

sound principle and contrary to the well-established judgments in this court, and in others of

high authority, to permit the validity of the patent to the state to be subject to the test of the

verdict of a jury on such oral testimony as might be brought before it; it would be substituting

the jury, or the court sitting as a jury, for the tribunal which Congress had provided to

determine the question, and would be making a patent of the United States a cheap and

unstable reliance as a title for lands which it purported to convey.”

VI. In the case of Steel v. Smelting Co., 106 U. S. 447, 1 Sup. Ct. Rep. 389, the court says:

“We have often had occasion to speak of the land department, the object of its creation, and

the powers it possesses in the alienation by patent of portions of the public lands. * * * That

department, as we have repeatedly stated, was established to supervise various proceedings,

whereby a conveyance of the title of the United States to portions of the public domain is

obtained, and to see that the requirements of different acts of Congress are fully complied

with. Necessarily, therefore, it must consider and pass upon the qualifications of the

applicant, the acts he has performed to secure the title, the nature of the land, and whether it

is of the class which is open to sale. Its judgment upon these matters is that of a special

tribunal, and is unassailable except by direct proceedings for its correction or annulment.

Such has been the usual language of this court in repeated decisions.”

VII. The pith of the whole matter is aptly expressed by the same court in Smelting Co. v.

Kemp, 104 U. S. 641-646, where, speaking of the land department, it says: “Indeed the

doctrine as to the regularity and validity of its acts, where it has jurisdiction, go so far that if

in any circumstances, under existing law, a patent would be held valid, it ��

�� 5


will be presumed that such circumstances existed.” Further, that court, in the case last cited

used the following language: “When the authority depends upon the existence of true facts, or

upon the performance of certain antecedent acts, and it is the duty of the land department to

ascertain whether the facts exist, or the acts have been performed, its determination is as

conclusive of the existence of the authority against any collateral attack, as is its

determination upon any other matter properly submitted to its decision.” (Beard v. Federy, 3

Wall. 478-492; Polks, Lessee, v. Wandell, 9 Cranch; Patterson v. Winn, 11 Wheat.; 11

Morrison Mg. R. 682; Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Lessees of Reed, 6

Pet. 328; Bognell v. Broderick, 13 Id. 436; Johnson v. Towsley, 13 Wall. 72; Moore v.

Robbins, 96 U. S. 550.)

VIII. The Supreme Court of California, more than any other state, has had occasion to

pass upon the question as to the conclusive character of patents, both state and federal, and

all of her earlier decisions seem to correspond with the doctrine invariably laid down by the

Supreme Court of the United States, except in three instances, viz: McLaughlin v. Powell, 50

Cal. 64; Carr v. Quigley, 57 Cal. 394; Chicago Q. M. Co. v. Oliver, 16 Pac. 780. And in Gale

v. Best et al., 20 Pac. 552-3, that court expressly overrules each of these three vicarious

rulings, and again reverts to its former position and rulings, and therein quotes and approves

the rulings of the United States Supreme Court on this subject and to which it has since

adhered.

IX. The later cases in California strictly follow the Supreme Court of the United States as

set forth in French v. Fyan, 93 U. S. 169; Refining Co. v. Kemp, 104 U. S. 636; Steel v.

Refining Co., 106 U. S. 447; Sparks v. Pierce, 115 U. S. 408; Wright v. Roseberry, 121 U. S.

488; Borden v. R. R. Co., 154 U. S. 288, all of which declare that a patent cannot be

invalidated, or called in question in any collateral manner, but it may be done, only, in a

direct action—undoubtedly by the general government—for that purpose; and all of these

cases also declare that the “character” of the land or any other reason why the patent ought

not to have been issued cannot be set up in defense, or these matters ��


inquired into by a court or jury, in an action founded upon a patent, which is prima facie good

on its face. (Gale v. Best, 78 Cal. 235; 20 Pac. 558; Irvine v. Tarbot, 105 Cal. 237; 38 Pac.

896.)

X. It may be claimed that some of the above cited cases appear to hold that the above

doctrine obtains only in cases where “the patent contains no reservation,” and that, as the

patent in this does contain a reservation, therefore the converse of the proposition holds. In

reply to this claim, in case it should be made, I venture that the reference in any of these

decisions to a reservation in the patent is mere obiter dictum, for I am unable to find that any

such point was made or any such distinction urged in either of them, while in several cases,

where reservations have existed in patents, and this distinction urged as cause to open the

door to testimony and collateral attack, the courts have swept it aside, and have held that no

law ever existed which authorized any land office official to insert any reservation, and that

therefore, such reservations, when found in patents, have only found a place therein ex

industria some official. (Cowell v. Lammers, 10 Saw. 246, 21 Fed. 200; McGarroghan v.

New Indria Co., 5 Morrison M. 641; Foscalina v. Doyle, 47 Cal. 437; Gale v. Best et al., 20

Pac. 552.)

XI. Certainly it must be admitted that because the surveyor-general of Nevada recited in

the patent in this case “that all mines of valuable minerals are excepted,” it does not make

that part of the law any more or less binding on the patentee, for he accepts the patent subject

to the conditions imposed in the grant to this state, and is as much admonished by the

language of the law, granting the land to Nevada, as he could be, by any industrious recital,

or so-called reservation, inserted by an over-cautious executive officer, whose zeal may have

led him to make the reservation, and the most that can be claimed for such a clause in a patent

is that it is simply a reiteration of the statute. Besides, when one such officer issues such a

patent, it is a declaration on his part that, notwithstanding the granting act reserves all

valuable minerals, still he has found none to be contained in the land; that the land is of a

“character” which should be patented in such a case; that he had the authority to issue it, � ��


and that the patentee had complied with all the forms of law requisite to entitle him to the

patent.

XII. The statute quoted in the two instructions given at the request of defendants expressly

disclaims all interest in lands which are mineral in character, and which have been, or which

may hereafter be, granted by the government to the state. It likewise also disclaims any such

interest for its grantees, and expressly declares that all title to lands containing minerals must

be obtained from the general government. So far as this disclaimer is concerned, it is simply

supererogation, for the grants themselves reserve the valuable minerals and the rights of the

government concerning them is neither increased or diminished by the statutory enactment.

So far as the declaration in the statute, to the effect that all title to mineral lands shall be

obtained from the general government, is concerned, it must be admitted that this is equally

idle and useless, no title to any mineral ever having been obtained west of the Mississippi,

except from the government direct. The statutes of Nevada also provide that in all contracts

and patents issued by it, all minerals shall be expressly reserved, and each of these

declarations are as inoperative as possible for any useful purpose, and come under the same

rules as laid down by the supreme courts of the United States, California, Montana, Colorado,

and Utah, which all declare them of no force or effect, have held that patents issued for such

land as is in controversy in this case, can only be questioned by the United States, and then

only in a direct action for that purpose. Hence, the legislature has given us no new law, for its

declaration, disclaimers, and reservations were decided to exist and be the law before our

sapient statement went to such unnecessary display.

F. R. McNamee, for Respondents:

I. The plaintiff contends that the defendants in their answer seek to attack a patent

collaterally, while in truth and in fact they simply claim possession to the ground under a

lawful location of mineral lands, which said mineral was never by any grant, either from the

general government or from the State of Nevada, conveyed to the plaintiff, but was in the

granting clause of the patent, issued to Stanley by ,��


Nevada, expressly reserved to the state. (Stats. 1887, 102-103; Stats. 1897, 36.) Mining being

the paramount interest in this state, this special industry is protected to the extent of special

reservations in all patents issued by the state purporting to convey agricultural lands.

II. The decisions cited by plaintiff sustaining his contention that a patent cannot be

attacked collaterally cite good law, but are wholly foreign to the issue of the case at bar, for in

this case no minerals or mines are granted by the patent, but are reserved expressly for the

miner to enter upon, prospect and mine the precious metals.

By the Court, Massey, J.:

This is a proceeding in ejectment and or damages. The verdict of the jury was for the

respondents. From the judgment rendered thereon, and the order denying the motion for a

new trial, this appeal was taken.

Briefly, that part of the answer of the respondents pertinent to the question presented on

the appeal sets up as a defense that the respondents were in possession of the premises in

controversy under and by virtue of a valid mining location made on the 14th day of January,

1899, by the respondent, Henry Hirsching, known as the “Hirsching Lode-Mining Claim,”

record of which had been duly made upon the records of the Yellow Pine mining district, and

upon the records of the recorder's office of Lincoln county, wherein said mining claim and

mining district are situated; that said claim contains large deposits of gold, silver, and copper

ore, and is valuable only for the precious metals therein contained; that after making the

location the respondents had done a large amount of development work thereon, and had

erected thereon certain buildings and a plant for the reduction of ores, at a cost of about

$40,000.

The appellant showed title to the lands from the state by purchase under patents issued on

the 23d day of May, 1899.

It was further shown, and is not disputed, that in the year 1893 the appellant made

application to purchase the lands in controversy from the State of Nevada, as agricultural

lands, under the grant made by the act of Congress of June 16, 1880 (21 Stat. 287), of

2,000,000 acres, in lieu of the sixteenth � ��

��


and thirty-sixth sections, before that time granted for the support of the common schools.

It is also conceded that all necessary and proper steps were taken for the selection of the

lands by the state, and its approval by the proper officers of the government.

It was also shown that on the 7th day of February, 1896, and after the act of selection had

been made, the state entered into a contract for the sale of the lands to the appellant, and

thereafter patents were issued to the appellant under said contract of purchase. The evidence

offered by the respondents supports the defense made by that part of the answer above set out,

and the jury by its verdict so found.

Appellant contends that these averments of the answer, and the facts shown thereunder,

conceded to be true for the purpose of the argument, are no defense as against his rights under

the patents from the state, and are not sufficient to authorize either the verdict of the jury or

the judgment of the court.

It is ably argued in support of this contention that the selection of the lands by the state

under the grant, and the approval of such selection by the proper officers of the government,

were a conclusive determination by the tribunal having authority for that purpose that the

lands were agricultural and non-mineral, within the meaning of the act making the grant; that

the act of selection by the state, and its patents to him, gave him the right to the exclusive

possession of the lands embraced therein from the time he made his application, or at least

from the date of the contract of purchase; that the subsequent discovery of valuable mineral

lodes by the respondents gave them no rights as against the selection by the state, and his

rights under the state's patents; that any attempt to defeat his rights in this proceeding under

the patents is a collateral attack upon the findings of the authorized tribunal that the lands

were agricultural and non-mineral in character, and excepted by the act from the grant; that an

attack involving the character of the lands could only be made in a direct proceeding

instituted for that purpose, and that the entry of the respondents upon the lands after selection

by the state, and after appellant's contract of purchase had been executed, was a trespass, and

such entry, even ��

��


though the mining rules, laws, and regulations had been strictly complied with, did not

initiate any right in the respondents as against the appellant.

A large number of the authorities are cited by the appellant to support this contention, and,

in a proper case, would control; but as the cases cited do not, as we believe, apply to the case

at bar, we do not deem it necessary to discuss or review them.

The question must be determined, as we view it, by the application of certain statutory

rules, the enactment of our legislature. While it is probably true that under the act of June 16,

1880, supra, making the grant, and excepting therefrom mineral lands, the selection by the

state, and the approval of such selection by the authorized officers of the government, is such

a determination of the agricultural and non-mineral character of the land, within the meaning

of the grant, as to preclude any investigation involving that question in proceedings of this

character, based upon the subsequent discovery of valuable mineral deposits, it does not

necessarily follow that the state must, under its laws regulating the sale of the lands thus

acquired, by its conveyance vest in its grantee the same title and right acquired from the

government under the grant.

By Section 3 of the act of June 16, 1880, supra, the state is, in direct terms, authorized to

dispose of the lands under such laws, rules, and regulations as may be prescribed by the

legislature. The only restriction or limitation found in the act relates to the use of the funds

arising from the sale of the lands granted.

The language used is clear and explicit. The laws, rules and regulations for the disposal of

the lands should be such as were prescribed by the legislature of the State of Nevada. In this

matter power was delegated by Congress to the legislature. The disposal of the land was left

to its judgment and wisdom, and long before any steps were taken by the appellant to acquire

or even initiate any right to the lands in controversy the legislature of this state, by law,

defined his rights, as an applicant and contractor, to purchase the lands under the grant, and

made provision for the maintenance of actions to sustain and protect the same.


By the act of March 5, 1887, the legislature, in the exercise of this delegated authority,

prescribed by law to the effect that every person who has applied or may thereafter apply to or

contract with the state to purchase land under the grant, in good faith, and who has paid or

may thereafter pay to the proper officers of the state the required amount of money under

such application or contract, shall be deemed and held to have the right to the exclusive

possession of such land, provided that no actual adverse possession thereof existed in another

at the date of the application.

It was further provided that every person who has contracted with the state in good faith to

purchase such land shall be entitled to maintain or defend any action at law or in equity

concerning the same or its possession which may now be maintained or defended by persons

who own land in fee, and that every person who has applied or shall thereafter apply to

purchase, in good faith, such land, and has paid or shall thereafter pay the required amount of

money under the application to the proper officer, shall be deemed and held to have the right

to the exclusive possession of such land, and shall be entitled to maintain and defend any

action at law or in equity concerning the same or its possession which may be maintained or

defended by persons who own land in fee, provided no actual adverse possession of such land

existed in another at the date of the application. If the legislature had gone no further, then,

under this statute, should the contention of the appellant be sustained, but it did not stop with

these provisions.

By Section 3 of the act it provided in direct terms that nothing in the act contained should

be so construed as to prevent any person or persons from entering upon such lands for the

purpose of prospecting for any of the precious metals, or to prevent the free and economical

working of any mine which may be discovered therein. (Comp. Laws 1900, 325-327.)

At the time the respondent Hirsching entered the lands in controversy and made the

mining location, the appellant claimed them under his application and contract to purchase;

and, by the provisions of Section 3 of the act, Hirsching had a right to enter for that purpose.

He was not trespassing at ��

��


the time he entered, and by making his mining location he initiated the right by which he was

enabled to work in a free and economical manner the mine which he discovered. The strength

and infirmity of this act entered into and became a part of appellant's contract. He took

possession of his land with his rights of action and right to exclusive possession limited by

the provisions of said Section 3. By its terms he could neither hold possession as against

respondents, nor could he maintain an action to recover possession as against them, under the

showing of the record.

It cannot be successfully claimed that the issuance of the patents of the state at the date

subsequent to the entry of the respondents in any manner terminated or concluded their rights.

The legislature at the same session, and only a few days prior to the passage of the act, and in

harmony therewith, declared, among other things, in an act to encourage mining, that any

citizen of the United States, or person having declared his intention to become such, might

enter upon any mineral lands in the state, notwithstanding the state's selection of it under the

grants, and explore for gold, silver, copper, lead, cinnabar, or other valuable mineral, and,

upon the discovery of any such mineral, might work and mine the same in pursuance of the

local rules and regulations of the miners and the laws of the United States, provided that, after

a person who has purchased lands from the state has made valuable improvements thereon,

such improvements shall not be taken or injured without full compensation, but such

improvements should be condemned for the uses and purposes of mining in like manner as

private property is by law condemned and taken for public use.

It further declared mining to be of paramount interest and a public use. It still further

declared that every contract, patent, or deed thereafter made by the state or its authorized

agents should contain a provision expressly reserving all mines of gold, silver, copper, lead,

cinnabar, or other valuable mineral that may exist in such land, and disclaimed for the state

and its grantees any interest in mineral lands selected by the state on account of any grant

from the United States. (Stats. 1887, 102; Comp. Laws 1900, 281, 282.)

The patent issued to the appellant contains the reservation �� $��


provided for in the act last cited; and without entering upon a discussion as to what, if any,

limitation should be placed upon the construction of the clause of the statute providing for the

reservation, it is sufficient to say that under the showing of the record the Hirsching lode was

located, worked, and improved, and known to exist, before the patent of the state was issued,

and, if this clause of the statute is to be applied to any case, it seems especially appropriate

that it should be made to apply to the case at bar.

In other words, the state did not by its patent convey or attempt to convey the Hirsching

lode. It did not terminate any rights of the respondents to the possession of the claim. It did

not, under the facts of the case, divest or attempt to divest the respondents of any rights

initiated by their location, work, and improvements made upon the claim; and it was proper in

this action to set up and have determined their rights under these statutes.

By the terms of the statutes the respondents were lawfully in the possession of the mine,

and lawfully entitled to the possession thereof. This right was not violative of any of the

terms of the appellant's contract to purchase. It does not conflict with any of his rights under

his patent, as defined by the statutes. If these statutes cannot be applied to the facts of this

case, then they are nugatory. If they render unstable and have a tendency to unsettle titles, the

remedy must be, if it can be, found in the legislative department. We do not make the laws. It

is our duty to construe and apply them.

Error based upon the giving and refusal to give certain instructions is not properly before

us. The instructions are not in the statement. No objection was made or exception taken to the

action of the court in this matter. (McGurn v. McInnis, 24 Nev. 370.)

The other questions not waived are without merit.

The judgment and order appealed from are, for the reasons given, affirmed.

____________

��26 Nev. 68, 68 (1900) Lewis v. Hyams��

[No. 1582.]

HARRIS LEWIS, Respondent, v. WILLIAM HYAMS,

Appellant.

Limitation of Actions—Bar—Operation—Remedies in Other States. Where default is made in the payment of a

firm note executed in California by a partner residing there, and the other partner is a resident of New

York, the right of action, as against the latter, accrues in New York, and not in California; and, if no action

is brought on the note in New York within the time prescribed by the statutes of limitation of that state, the

holder cannot maintain an action against him in Nevada by reason of Comp. Laws, 3736, 3603, providing

that when a cause of action has arisen in any other state, and by the laws thereof an action there cannot be

maintained by reason of lapse of time, no action shall be maintained in Nevada.

On Petition for Rehearing

Limitations—Action Barred Abroad—Citizen Holding Cause of Action from Time it Accrued. Under Comp.

Laws, 3603, providing that, when an action arising in another state is barred there by limitations, an action

thereon shall not be brought in Nevada, except by a citizen thereof who has held the cause of action from

the time it accrued, a citizen of Nevada, who held a note on which action was so barred abroad, but who

had not held it from the time the cause of action accrued, cannot maintain suit thereon.

Appeal from the First Judicial District Court, Storey County; C. E. Mack, Judge.

Action by Harry Lewis against Edward Hyams and William Hyams. From a judgment

against William Hyams, and from an order denying his motion for a new trial, he appeals.

Reversed. Rehearing denied.


Trenmor Coffin, M. S. Eisner, F. M. Huffaker, and W. D. Jones, for Appellant:

I. The cause of action set forth in the complaint is barred under the provisions of Section

32 of the Nevada statute of limitations. The plaintiff, when the motion for a non-suit was

made, conceded that, as to the defendant Edward Hyams, under Section 33, it was well

grounded, and his counsel made no objection to the granting of a non-suit as to said

defendant. As to the motion under Section 32, the plaintiff contended that the action was not

barred as to this appellant because he had been absent from the State of Nevada during �� 0��+&��0��9+�� /��$��!��

��26 Nev. 68, 69 (1900) Lewis v. Hyams��

the entire period mentioned in the complaint, and that by reason of the provisions of Section

21 of the statute, Section 32 had never run in William Hyams' favor. The appellant contends,

firstly, that Section 21 does not apply to persons who have never been residents of this state,

but only to persons who have been residents of this state and have since departed or absented

themselves therefrom; and, secondly, that even if Section 21 does apply to persons who have

never resided here, it does not and cannot apply to causes of action arising outside the State

of Nevada. The trial court, in denying the motion, lost sight entirely of this second

proposition, and decided the first, erroneously, in respondent's favor.

II. The provisions of Section 21 of the Nevada statute of limitations do not apply to

natural person who have never been residents of Nevada, but only to such as, having been

residents, have departed or absented themselves therefrom, and to foreign corporations; and

the provisions of that section do not apply in favor of a non-resident plaintiff. We respectfully

submit that to hold that the provisions of Section 21 apply to persons who have never resided

in this state would be not only to disregard the intention of the legislature, clearly expressed

in the section itself, but would be contrary to the great weight of authority in this country

upon that proposition. (Treadway v. Wilder, 12 Nev. 108, 113-114.)

III. Addressing ourselves then to the question of intention, as gathered from the words

used, what do we find? Sections 3, 4, 5, 16, 17, 18, 32 and 33 of the statute provide for

certain periods of limitation for the various classes of actions therein respectively provided

for. The remaining sections of the statute provide for certain exceptions to or qualifications of

the general provisions of limitation contained in the sections above enumerated. Section 21

provides for an exception to the general rule of limitation in two instances, and the case at bar

comes, if at all, within the first provision. That provision is as follows: “If, when the cause of

action accrue against a person, he be out of the state, the action may be commenced within

the time herein limited after his return to the state.” Clearly, it does not require any

construction of the language in question to determine that a person cannot “return” to a place

from which he never departed and ��

��26 Nev. 68, 70 (1900) Lewis v. Hyams��

in which he never was. To hold that such a provision applies to persons who were never

resident within the state, is not only contrary to the intention of the legislature, as expressed in

the language used by it, but also contrary to the spirit and policy of the law prompting the

enactment of statutes of limitation.

IV. A construction holding that Section 21 applies to non-resident persons who have

never been within the state, as well as to departed or absent residents, is contrary to both the

intention of the legislature clearly expressed in the language used by it, and to the spirit of the

section in question, and the purpose for which it was passed. It is likewise opposed to the

great weight of authority in this country. (Hyman v. Bayne, 83 Ill. 256; Snoddy v. Cage, 5

Tex. 107-116; Love v. Doak, 5 Tex. 343, 348; Moore v. Hendrick, 8 Tex. 254-6; Lynch v.

Ortlieb, 87 Tex. 592 (1895); Cotton v. Rand (Tex.), 29 S. W. 685; McCormick v. Blanchard,

7 Or. 235-7, affirmed in Crane v. Jones, 24 Or. 420; Van Santvoord v. Rotthler, 57 Pac. 628

(Or. 1899); Pare v. Mahone, 32 Ga. 255-6; Moore v. Carroll, 54 Ga. 127; Haviland v.

Hargis, 9 Fla. 17.)

V. The authorities cited by us upon this proposition are supported by sound reasoning and

are in consonance with the plainly expressed intention of the legislature in passing Section

21. Any construction holding that Section 21 applies to non-residents who have never resided

within the state is, we submit, contrary to both reason and to the well-settled rules of statutory

construction. The decisions in the cases favoring this latter construction are to be viewed also

in connection with the fact that they are all based upon the two original decisions in New

York and Massachusetts, in both which states there was no provision, at the time of their

rendition, corresponding to Section 33 of our statute. This being an original question in this

state, the court should adopt that construction of the statute which the language used by the

legislature seems to require, a construction which will not do violence to “the usual meaning

of the words used,” and which is supported by the soundest reasoning and the great weight of

authority.

VI. But, even conceding Section 21 to apply to persons ��

,�� 0��+&� �� 0��,��

��26 Nev. 68, 71 (1900) Lewis v. Hyams��

who have never resided in Nevada, Section 21 does not and cannot apply to causes of action

arising outside the State of Nevada. The cause of action upon the note in suit did not arise

within the State of Nevada, and Section 21 can have no possible application to it. For this

reason alone the bar of Section 32 is complete. The question as to whether or not Section 21

applies to actions arising outside the State of Nevada is to be viewed from two standpoints.

Firstly, does the language of the section itself, independently of any other provision in the

statute justify its application to a foreign cause of action; and, secondly, is it possible to apply

Section 21 of the statute to a foreign cause of action without rendering Section 33 of the

statute absolutely nugatory? We respectfully submit that both of these propositions must be

answered in the negative. Taking Section 21 by itself, can it by any reasonable interpretation

be held that it was intended to apply to causes of action arising outside the State of Nevada?

The manifest purpose of the legislature in passing this section was, as we have already seen,

to preserve to resident plaintiffs their rights of action in this state during the absence of

departed or absconding defendants, and to save them the necessity of pursuing such

defendants into a foreign jurisdiction. It is not reasonable to suppose, therefore, that the

legislature had in mind, when it passed this section, causes of action arising within a foreign

jurisdiction, for such actions could have been no concern of theirs. And when the legislature

declared that “If, when the cause of action shall accrue against a person, he be out of the

state,” etc., is it not apparent that they had reference to causes of action arising within the

state, and to none other? For instance, the section declares that “the action may be

commenced within the time herein limited after his return to the state” without expressly

declaring that it may be commenced “in this State” within the time thus specified, yet would

it not be ridiculous to assert that the legislature intended to declare that the action may be

commenced, without reference to place, within the time limited, merely because the words

“in the state” had not been inserted after the word “commenced”? And so when the

legislature used the expression, “if, when the cause of action shall accrue against a person, he

be out of ��5��

��

��26 Nev. 68, 72 (1900) Lewis v. Hyams��

the state,” it is equally apparent that they must have referred to actions accruing within the

state and to none other.

VII. Section 21 does not, and in the very nature of things cannot, apply to causes of action

arising outside the State of Nevada. And this is not only consistent with, but entirely within,

the doctrine laid down in the case of Sutro Tunnel Co. v. Seg. Belcher M. Co., above cited,

and the case of Robinson v. Imperial Mining Co., upon which the first-named decision is

based. The case of Robinson v. Imperial Mining Co. was an action in ejectment involving the

title to land in Lyon county; the cause of action arose necessarily within the State of Nevada.

In the case of Sutro Tunnel Co. v. Seg. Belcher M. Co., the contract, upon which the cause of

action was based, although executed in California, provided that the work therein referred to

should be performed in the State of Nevada. The defendant corporation was organized under

the laws of the State of California. Under the law, therefore, its residence was in California,

and it was not possible for it to have a residence in the State of Nevada. The defendant

pleaded the bar of Section 32 of the statute, and contended that Section 21 did not apply to

the provisions of Section 32, and that, therefore, the bar of Section 32 was complete. The

court held that Section 21 applied to every other provision of the statute, that it applied to

foreign corporations as well as to individual defendants absent from the state (not to

individual defendants who had never resided within the state), and that the defendant, being a

foreign corporation, could never have a residence within the State of Nevada, and was

therefore absent within the meaning of Section 21. But the question as to whether or not

Section 21 applies to causes of action arising outside the State of Nevada was not involved in

that decision, nor could it have been passed upon, for the very simple reason that the cause of

action in the case referred to arose, admittedly, in the State of Nevada. The case at bar is the

first instance in the history of this State where the provisions of Section 21 have been

attempted to be applied to a cause of action accruing outside of the State, and we apprehend

that this court, at the instance of a non-resident plaintiff, who has allowed the statute of

limitations of the state of his own residence, and �� :�� ;�� 0��99��

��26 Nev. 68, 73 (1900) Lewis v. Hyams��

of the states of residence of both of the defendants to run against and bar his cause of action

(if he ever had any), will not force a construction of the statute which is utterly at variance

with the clearly expressed intention of the legislature, and which would have the effect, as we

shall see, of absolutely nullifying Section 33 of the statute.

VIII. The language of Section 32 is general in its nature, and applies to all contracts made

outside the State of Nevada. A cause of action on a contract made outside of this state may,

however, belong to one of two different classes. If the contract is made outside the State of

Nevada, but is to be performed within it, then the cause of action arises within the State of

Nevada, as was the case in Sutro Tunnel Co. v. Seg. Belcher M. Co. But, on the other hand, if

the contract is made outside the State of Nevada, and is to be performed outside of the state,

as is the fact in the case at bar, then the cause of action upon it arises, not in the State of

Nevada, but in the place of performance. When the cause of action, upon a foreign-made

contract, arises in the State of Nevada, then it may be argued, with some degree of

plausibility, that Section 21 applies to and limits Section 32, but not otherwise. It must be

apparent, therefore, that the point now made could not have arisen and was not passed upon

in the case of Sutro Tunnel Co. v. Seg. Belcher M. Co., for the cause of action in that case

arose unquestionably in the State of Nevada.

IX. Section 21 does not limit Section 33 because Section 21 cannot apply to causes of

action arising outside the State of Nevada without rendering Section 33 void. Manifestly,

then, Section 21 cannot limit Section 32, or any other section of the statute, when the cause of

action arises outside the State of Nevada, for two inconsistent rules of construction cannot be

applied to the same thing in its relation to different provisions of the same statute.

X. What ever may be said as to the application of Section 21 to non-resident defendants,

yet it must be clear that Section 21 can apply only to causes of action arising within the State

of Nevada. The cause of action on the note in suit arose as to Edward Hyams in California

and as to William Hyams in New York. Unquestionably the cause of action �� 0��,��

��26 Nev. 68, 74 (1900) Lewis v. Hyams��

on the note did not arise in the State of Nevada. We submit that Section 21 can have no

possible application to the cause of action in this case, that the note in suit was barred in the

State of Nevada two years after maturity, and that the motion for a non-suit, as to both

defendants, should have been granted. We take it, therefore, to be clear that Section 21 of the

Nevada statute of limitations, firstly, does not apply to persons who have never resided in

Nevada; secondly, that it cannot be invoked in favor of a non-resident plaintiff; and, thirdly,

that even if the negative of the two first propositions be true it does not apply and cannot

apply to causes of action arising outside the state. If all or any of these conditions be true, the

bar of Section 32 of the statute is complete as to both defendants, and the judgment must be

reversed.

XI. The cause of action set forth in the complaint is barred as to the defendant William

Hyams, as well as to the defendant Edward Hyams, under the provisions of Section 33 of the

Nevada statute of limitations. The note in suit was executed at San Francisco by the

defendant, Edward Hyams, for the firm of Hyams Bros. No place of payment is named in the

note. The respondent contended in the lower court, and the court so held, that, upon the

failure to designate the place of payment in the note itself, the law presumed that the place of

date was the place of payment. The authorities are uniform to the effect that no such

presumption arises either as matter of law or of fact. The only presumption arising as matter

of law from the fact stated, and then only in the absence of any evidence to the contrary, is

that, where a note fails to specify the place of payment, the law presumes that the maker

resides or has his place of business at the place where the note is dated. The place of payment

of a note payable generally is at the place of residence of or business of the maker. The

maker's place of residence or of business being established, either by presumption or through

proof, the law then fixes the place of payment at the place of business or of residence of the

maker. Upon the failure of the maker to pay the note at the place of payment, the cause of

action accrues against him at that place.

XII. The sole question to be determined by the court ��

�� 0��99��.�</�� /��$��45

��26 Nev. 68, 75 (1900) Lewis v. Hyams��

with relation to the defense pleaded by appellant under Section 33 is: “Where was the place

of payment of the note in suit, as to the defendant William Hyams?” If the place of payment

as to him was in New York, then upon his failure to pay the note at maturity the cause of

action accrued against him in the State of New York. This being so, the court should have

permitted proof as to the statute of limitations of the State of New York, or in the absence of

such proof was bound to presume that the laws of New York upon the subject of limitation

were the same as the laws of this state. (Daniel on Negotiable Instruments, sec. 90, 4th ed.; 2

Am. & Eng. Ency. Law, 1st ed. vol. 2, 328; Hartford Bank v. Green Thomas Co., 11 Iowa,

477-9; Burrows v. Hannegan, 1 McLean (U. S.) 310; Story on Promissory Notes, 251;

Simmons v. Belt, 35 Mo. 466; Adams v. Leland, 30 N. Y. 311; Taylor v. Snyder, 3 Den. 145;

Holtze v. Botte, 37 N. Y. 635; Taylor v. Snyder, 3 Den. (N. Y.) 148-157; Lightner v. Will, 2

Watts & Sarg. (Pa.) 141-2; Browning v. Armstrong, 9 Phil. 59; Woodworth v. Bank of

America, 10 Am. Dec. 239; Oxnard v. Varnum, 111 Pa. St. 201; Pierce v. Whitney, 28 Me.

195; Fisher v. Evans, 5 Binney (Pa.) 542; Parsons on Notes and Bills, vol. I, 453; Luning v.

Wise, 64 Cal. 411; Haber v. Brown, 101 Cal. 451.)

W. E. F. Deal, Edmund Tauszky, and Lester H. Jacobs, for Respondent:

I. The note in suit was a partnership note, dated “San Francisco, March 1, 1882,” payable

three months after date to order of “ourselves,” signed “Hyams Bros.,” endorsed “Hyams

Bros.,” and delivered in San Francisco; no place of payment being specified. On June 1,

1882, when the note matured, the firm of Hyams Bros. was still in existence, having its

principal place of business in San Francisco, the residence of Edward Hyams. Payment not

having been made on that date, the cause of action thereupon immediately accrued. No

demand of payment was necessary. (Randolph on Commercial Paper, 2d ed. vol. 2, 1071;

Byles on Bills, Sharswood's ed., 346; Civil Code of California, 3130, stating only the general

law.)

II. The note was presumptively payable at the place of ��

��26 Nev. 68, 76 (1900) Lewis v. Hyams��

its date. It is admitted that it was payable in San Francisco, though counsel for appellant claim

that it was also payable in New York. There could have been but one place of payment. It

would lead to ludicrous results to hold that, in so far as Edward Hyams was concerned, the

note was to be paid in California, and, as to him, the questions depending on the place of

performance were to be governed by the laws of that state, while, as against William Hyams,

his partner, it was to be paid in New York and to be interpreted according to the laws of the

latter state. Even if the note had been expressly made payable at San Francisco or New York,

the place of payment would have been optional with the holder. (Leake on Contracts, 3d ed.

587.)

III. If the question was: “Where would it have been necessary to make a presentment in

order to charge an endorser on this note?” it would still be answered: “In San Francisco.”

(Luning v. Wise, 64 Cal. 410.) Though this is an entirely false test, because the contract of an

endorser is conditional and different from the contract of the maker. The agreement of the

latter being to pay to the holder where he, the holder, may be; the agreement of the endorser

being that, if the note is presented to the maker at the maker's place of residence, and payment

demanded and refused and prompt notice given, he, the endorser, will pay. Even if the

question of the liability of an endorser were involved, presentment and demand on either

partner would be sufficient and as demand was in fact made on Edward in San Francisco, it

would have been unnecessary to make demand on William Hyams. (Story on Promissory

Notes, 239; Gates v. Beecher, 60 N. Y. 518; Otsego County Bank v. Warren, 18 Barb. 290;

Brown v. Turner, 15 Ala. 832; Fourth National Bank of St. Louis v. Altheimer, 91 Mo. 104;

Hume v. Watt, 5 Kan. 34.) “No principle is more fully settled or better understood in

commercial law than that the obligation of the endorser is a new and independent contract,

subject to the law of the place where the endorsement is made.” (Am. & Ency. of Law, 2d ed.

vol. 4, 477-8.)

IV. The contract of the maker of a promissory note binds him to pay at the place it is made

or the place named for payment. The contract of the endorser, however, is a con ��

��

��26 Nev. 68, 77 (1900) Lewis v. Hyams��

ditional obligation; the law of the place of acceptance or payment has nothing to do with his

contract. (Hunt v. Standart, 15 Ind. 33-38; 77 Am. Dec. 79-84.)

V. The questions relating to where demand should have been made in order to charge

endorsers were discussed at length in our brief, not because we admitted their applicability,

but because counsel for appellant attempted to throw the court off the track by this false

analogy. We showed that even if the liability of an endorser were involved, demand in San

Francisco would have been sufficient to make the endorser liable, but that such questions

were irrelevant and furnished a false test. Independent of authority, it would seem clear on

principle that if A makes a binding promise to pay B. $500, it is the duty of A to go and seek

B and pay him; for B is presumed to have done whatever was necessary on his part to make a

valid consideration for this promise before the execution of the note. The note contains only

the promise of A, and it is not conditional upon B's finding him. It must be unconditional or it

would not be a good negotiable instrument.

VI. The maker of a note is bound in ordinary cases to seek the holder. His contract is

entirely different from that of the endorser, which is separate and conditional. (Bigelow on

Notes and Bills, note on p. 86; Parsons on Notes and Bills, 431-432.) It is a fundamental rule

of law, and one of the most ancient, that it is the duty of a debtor to seek his creditor and pay

him. (Coke upon Littleton, 210a, 1st Am. from 19th London ed. 340;) Shepard's Touchstone,

136; Barbour's Law of Payment, sec. 36, p. 80; see also sec. 678; Leake on Contracts, 3d ed.

734-735; see also p.560.) “The general rule is that the payer must, if no place of payment is

designated or agreed upon seek out the creditor and pay him.” (18 Am. & Eng. Ency. Law,

1st ed. 198; McIntyre v. Insurance Company, 52 Mich. 188; Thompson v. Insurance

Company, 104 U. S. 252-258; Littel v. Nichols, Admr., Hardin (Ky.) 66; Story on Prom.

Notes, 7th ed. sec. 230, p. 328, foot note citing Chitty on Bills; Goodsell v. Benson, 13 R.I.

242; Newbury v. Richards, 35 Vt. 283; Ballard v. Webster, 9 Ab. Pr. 404-408; Goodwin v.

Holbrook, 4 Wend. (N. Y.) 377; Galloway v. Standard Fire Ins. Co., 31 S. E. Rep. 970;

Towne v.�0��&�/��

��26 Nev. 68, 78 (1900) Lewis v. Hyams��

Smith, 1 Woodb. & M. 115 Fed. Cases, No. 14, 115 (U. S. Circuit Court, Mass.); Campbell v.

Brown, 86 N. C. 376-378; Robey v. Snaeffell Mining Co. Ld., Law Rep. 20 Q. B. Div. 152

(1887); Miles v. Roberts, 34 N. H. 245-254; Thorne v. City Rice Mills, Law Rep. 40 Ch. Div.

357 (1889); Walton v. Mascall, 13 M. & W. 452; Bell v. Antwerp Line, 1 Q. B. Div. 107

(1891); Reynolds v. Davies, 1 Bosanquet & Puller, 627; Haldane v. Johnson, 8 Exch. 689

(Welsby, Hurlstone & Gordon); Bank v. Richards, 35 Vt. 281; Sutherland v. First National

Bank, 31 Mich. 230; King v. Finch, 60 Ind. 423; Gale v. Corey, 13 N. E. Rep. 108 (Ind.);

Allshouse v. Ramsey, 6 Whart. (Penn.) 331; Hale v. Patton, 60 N. Y. 233-236; Grussy v.

Schneider, 55 How. Pr. 188; Smith v. Smith, 25 Wend. 405-406.)

VII. As the holder of the note (as well as the firm of Hyams Bros.) was in San Francisco,

it was not only the intention of the parties that it should be paid there, and the presumption

arising from its date and delivery there, but the law made it payable there absolutely. The

situs of the debt is the residence of the creditor. (Atwood v. Protection Ins. Co., 14 Conn.

555; Clark v. Conn. Peat Co., 35 Conn. 303.)


This action was commenced on December 31, 1897, in the District Court of the First

Judicial District in and for Storey County, against Edward Hyams and William Hyams upon a

promissory note executed in the State of California, of which the following is a copy, to wit:

“San Francisco, March 1st, 1882. $5,000.00. Three months after date, without grace, we

promise to pay to ourselves or order the sum of five thousand dollars, payable only in gold

coin of the government of the United States, for value received, with interest in like gold coin

at the rate of one (1) percent per month from __ until paid. Hyam Bros.” Indorsed: “Hyam

Bros.”

The case was tried by the court sitting with a jury. The trial resulted in a judgment in favor

of the plaintiff against defendant William Hyams for the sum of $14,475, together with

interest on the sum of $5,000 thereof from the 17th day ��(��&=22��

��%&�8+&�18��

��26 Nev. 68, 79 (1900) Lewis v. Hyams��

of May, 1899, till paid, at the rate of one percent per month, together with the further sum of

$1,021.50 taxed as costs. This appeal is taken by William Hyams from said judgment, and

from the order of the trial court denying his motion for a new trial.

It appears that the plaintiff and Edward Hyams were, at the time of the execution of said

promissory note, ever since have been, and now are, residents of the State of California; that

said Edward has not been absent from the State of California, the place where the note was

executed, altogether more than eighteen months since the execution of said note.

It also appears that William Hyams was at the time of the execution of said note, ever

since has been, and now is, a resident of the State of New York, and that he has not been

absent from said State of New York altogether more than eighteen months since the

execution of said note.

It appears that at the time of the execution of said note Edward Hyams and William Hyams

were copartners, and for a number of years prior thereto had been copartners, under the firm

name of Hyams Bros., carrying on business as wholesale manufacturers and dealers in

clothing, both at the City of San Francisco, State of California, and at the City of New York,

State of New York. The manufacturing of clothing for the firm was carried on in the City of

New York, and the business there was conducted by William Hyams, and the business of the

sale of the clothing by Hyams Bros. Was carried on in San Francisco, Cal., and conducted by

Edward Hyams; and that Edward Hyams made, executed, and indorsed said note, and

delivered the same to the plaintiff, for and in the name of said firm of Hyams Bros. In 1884

said copartnership was dissolved.

Among other defenses, the defendants pleaded Sections 32 and 33 of the statute of

limitations of this state. Section 32 limits the time in which an action may be commenced on

a contract, etc., made out of the state, to two years after a cause of action has accrued. (comp.

Laws, 3735.)

Section 33 provides: “When the cause of action has arisen in any other state or territory of

the United States, or in a foreign country, and by the laws thereof an action there can��

�� 5

��26 Nev. 68, 80 (1900) Lewis v. Hyams��

not be maintained against a person by reason of the lapse of time, no action shall be

maintained against him in this state.” (Comp. Laws, 3736.)

The defendants also pleaded certain laws of the State of California, in connection with said

Section 33 of the Nevada statute, by which the period is limited to four years for commencing

an action after it has accrued upon any contract, obligation, or liability founded upon an

instrument in writing executed in that state, and also the laws of the State of New York,

which limits the time to six years for commencing an action upon a contract, obligation, or

liability, express or implied, except a judgment or sealed instrument.

It is contended by counsel for appellant that an action upon said note was barred as against

him, long before the commencement of this action, by the laws of the State of New York, and

that, therefore, by reason of the provisions of said Section 33 of our statute, no action can be

maintained against him in this state. It is admitted by respondent's counsel that, if the cause of

action against appellant arose in New York, this action cannot be maintained, provided said

Section 33 has not been repealed.

Counsel in their brief say: “We admit that if respondent's cause of action against appellant

arose in New York, and if Section 33 of our statute has not been repealed, appellant's motion

for a non-suit should have been granted.”

Appellant's motion for non-suit was granted as to Edward Hyams, it appearing that the

cause of action against him arose in California, and by the laws of that state an action thereon

had been barred there. It is contended on the part of respondent that the cause of action

against both of the defendants arose in the State of California, and that by reason of the

non-residence of William Hyams, and his absence from that state, an action against him was

not barred there, the place where the cause of action arose, and that, therefore, it is not barred

here, under said Section 33.

Appellant's counsel contend that the cause of action against him arose in New York, and,

an action thereon having been barred in that state, no action can be maintained against him in

this state, as it is barred by said Section 33.

A “cause of action” is defined by Bouvier to be a right to ��

��26 Nev. 68, 81 (1900) Lewis v. Hyams��

bring an action. The cause of action is a claim which may be enforced. (Bucklin v. Ford, 5

Barb. 393; Halsey v. Reid, 4 Hun. 777.)

It is the right which a party has to institute and carry through an action. (Meyer v. Van

Collem, 28 Barb. 230.)

The right to prosecute an action with effect. (Douglas v. Forrest, 4 Bing. 704; 15 E. C. L.

120.)

The term “cause of action” is synonymous with “right of action.” (Am. & Eng. Enc. Law,

46, note.)

The phrase in said Section 33, “when the cause of action has arisen,” is the same, in the

sense of the statute, as if the following expression had been used in its stead, “when a cause

of action has accrued.”

Did the right to bring an action on said note accrue in California against the appellant, a

non-resident of that state, and absent therefrom? Could the claim of the respondent have been

enforced in that state through the process issued by any court of that state? Did the respondent

have the right to institute and carry through an action against the appellant in California?

Could he have prosecuted an action against the appellant with effect in that State? We answer

“No” to each of the above questions. No court in California could have acquired jurisdiction

of the person of the appellant by any process it could have issued.

But the right to bring an action on said note by respondent against the appellant accrued in

the State of New York, his place of residence; the place where any competent court of New

York could, by its process, have acquired jurisdiction of his person; the place where the

respondent's claim against the appellant could have been enforced; the place where the

respondent had the right to institute and carry through an action against the appellant; and the

place where the respondent could have prosecuted the action against the appellant with effect.

We are of opinion that, when default was made in the payment of said note, the cause of

action thereon against the appellant arose or accrued in the State of New York; that in such

case as this the cause of action accrues in any state against the defendant where he may be

found.

We are of opinion that Section 9 of the statute of 1867, �� 0��99��

��&=�&�� &=�-��

��26 Nev. 68, 82 (1900) Lewis v. Hyams��

which amends Section 33 of the statute of 1861 and incorporates it or makes it a part of the

statute of 1867, is not repealed. But if it was repealed it would not avail the respondent.

Section 508 of the civil practice act which was enacted in 1869 (Comp. Laws, 3603)

provides: “When a cause of action has arisen in another state, or in a foreign country, and by

the laws thereof an action thereon cannot be maintained against a person by reason of the

lapse of time, an action thereon shall not be maintained against him in this state, except in

favor of a citizen thereof who has held the cause of action from the time it accrued.” The

respondent is not a citizen of this state.

The appellant offered to prove the laws of New York to show that by said laws an action

on said promissory note cannot be maintained there against the appellant by reason of the

lapse of time. The court refused the offer, but from the admissions of respondent above given,

we take it that he admits that the laws of that state are as appellant claims them to be.

We do not deem it necessary to pass upon the contention of the respective counsel with

respect to the proper construction of Section 21 of our statute of limitations, for, if we are

correct in our conclusion that the cause of action arose or accrued against the appellant in the

State of New York, and we think we are, then an action thereon was barred there by reason of

the lapse of time and it is, therefore, barred here.

The judgment and order appealed from are reversed.

Upon Petition for Rehearing.

By the Court, Massey, C. J.:

The petition for a rehearing herein involves the same question passed upon by the court

relating to the construction of our statute of limitations. We have given the matter an

exhaustive and careful reexamination, and are unable to reach a conclusion different from the

one announced.

The question must be determined by the construction to be placed upon the words, “when

a cause of action has arisen,” used in Section 33 of our statute of limitations. (Comp. Laws,

3736.)

The State of Illinois has a statute in substance, and almost ��

0��99�

��26 Nev. 68, 83 (1900) Lewis v. Hyams��

in language, similar to our Section 33. The supreme court of that state, in construing the

precise words, “when a cause of action has arisen,” found in the section of their statute, gave

to them the meaning we have placed upon them, as used in our statute.

In the case of Hyman v. McVeigh, reported in the 10th Chi. Leg. N. 157, the court of that

state say that “the words, when a cause of action has arisen, as they occur in the statute

pleaded, should be construed as meaning when jurisdiction exists in the courts of a state to

adjudicate between the parties upon the particular cause of action, if properly invoked; or, in

other words, when the plaintiff has the right to sue the defendant in the courts of the state

upon the particular cause of action, without regard to the place where the cause of action had

its origin.”

The same construction was placed upon the words by that court in the case of Hyman v.

Bayne, 83 Ill. 256, and is cited by the court in Hyman v. McVeigh, as authority for the

doctrine.

This construction was subsequently adopted by the appellate court of that state in

Humphrey v. Cole, 14 Bradw. 56; and while the same court in Story v. Thompson, 36 Ill.

App. 370, disapproves of Humphrey v. Cole, it bases its disapproval upon the application of

the statute to the facts of the case when construed with the provisions of Section 18 of their

statute. This is manifest from the language used by the court in Story v. Thompson. It does not

attempt to disapprove of Hyman v. Bayne and Hyman v. McVeigh, but makes a distinction

between those cases and the case of Humphrey v. Cole.

In making the distinction the court say (speaking of Hyman v. Bayne and Hyman v.

McVeigh): “Both the maker of the note and the payee resided outside the State of Illinois

when the cause of action accrued, and till after the bar in the other state was established. The

expressions of the supreme court in that case, and quoted in the 14th Ill., supra, were made

with reference to the facts in that case, but have no application here. The decision in

Humphrey v. Cole, supra, must have been made under a mistaken idea of what was really

decided in Hyman v. McVeigh, 87 Ill. 708.”

��26 Nev. 68, 84 (1900) Lewis v. Hyams��

It will also be noted that the case from which we have quoted turned upon the rights of a

resident creditor under another provision of the statute.

As late as 1892, in the case of Wooley v. Yarnell, 142 Ill. 449, the supreme court of that

state, in express terms, approved the doctrine laid down in Hyman v. Bayne and Hyman v.

McVeigh. “Where the maker of a promissory note and the payee,” say the court, “reside out of

this state when the note becomes due, and the cause of action accrues in another state, and the

maker continues to reside out of the state and in another state, until, by the laws of such state,

an action on the note is barred, the section of the limitation law, supra, when pleaded to an

action brought on such note in this state, may constitute a bar to such action. This is the

doctrine of Hyman v. Bayne, 83 Ill. 256, and also of Hyman v. McVeigh, unreported, but

mentioned in 87 Ill. 708. In each of these cases, as will be found upon an examination of the

record, the maker and payee both resided out of this state at the maturity of the cause of

action sued on, and when the cause of action accrued, and so remained until an action was

barred in and by the laws of a foreign state where the domicile existed.”

Our position also seems to be fortified by the subsequent enactment of Section 508 of the

civil practice act (Comp. Laws, 3603), in which the legislature created an exception in favor

of a citizen of this state who has held such cause of action from the time it accrued.

The claim of citizenship in this state, made by the respondent in his petition for a

rehearing, is, as we believe upon the showing made in his own deposition, without merit; but,

if that claim were well taken, he still fails to come within the Section 508, supra, in that he

has not held the note from the time the cause of action accrued thereon.

The petition is denied.

____________

26 Nev. 85, 85 (1901)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JANUARY TERM, 1901.

____________

��26 Nev. 85, 85 (1901) State v. Mack��

[No. 1583.]

STATE OF NEVADA, ex rel. E. COHN, Relator, v.

C. E. MACK, District Judge, etc., Respondent.

Mandamus—Necessary of Court Record. Where the record on appeal does not show that the transcribed

testimony was read or referred to one the hearing of a motion for a new trial, mandamus will not be

granted, on conflicting testimony, to compel the trial court to certify that it was so read or referred to, under

Comp. Laws, 3292, requiring the court to certify to the papers presented on the hearing of such motions.

Original Proceeding. Mandamus by the State, on the relation of E. Cohn, against C. E.

Mack, District Judge of the First Judicial District in and for the County of Douglas.

Writ denied.

Trenmor Coffin, D. W. Virgin, and Samuel Platt, for Relator.

W. D. Jones and Alfred Chartz, for Respondent.


The relator brings this action to compel the respondent, the district judge, to certify, under

the provisions of Section 197 of the civil practice act (Comp. Laws, 3292), that the testimony

taken and written out by the reporter in the case ��>��3��

��

��26 Nev. 85, 86 (1901) State v. Mack��

of Yori against Cohn was read or referred to on the hearing of the motion for a new trial in

the last-named action.

The determination of the relator's right to the peremptory writ rests upon one issue, as we

view it, made by that part of the respondent's answer, in which he denies that the paper sought

to be certified was read or referred to on the argument of the motion for a new trial.

The minutes containing the record of the proceedings of the court do not show that this

testimony, as taken and written out by the shorthand reporter, was used on the hearing of said

motion.

It may well be doubted whether secondary evidence of the regular and authorized

proceedings of the district court may be offered except upon the showing of the loss or

destruction of the record.

It is a general rule, not requiring citation of authorities, that the action of the court in

matters authorized or directed must be proven by its records. In the absence of such proof,

and without a showing as to the loss or destruction of the record containing the evidence of

the fact sought to be established, we are asked to grant the peremptory writ to compel the

respondent to act, upon conflicting testimony of witnesses based upon their memories of a

transaction in court which should and could have been shown by the records of the court

made at the proper time.

This court has held that the writ should be awarded only in a case when the party applying

shows a clear right to have the respondent do the thing which he is sought to be compelled to

do. (State v. LaGrave, 22 Nev. 417.)

Such showing not having been made, the peremptory writ will be denied.

____________

��26 Nev. 87, 87 (1901) State v. April Fool Gold Mining & Milling Co.��

[No. 1600.]

STATE OF NEVADA, Respondent, v. THE APRIL FOOL GOLD MINING AND MILLING

COMPANY, Appellant.

Taxation—Assessment—Assessor—Reassessment—Mines. When an assessor has regularly entered a complete

record of the proceeds of a mine upon the assessment roll, and made affidavit that it is a true and correct

assessment, he has no right to reassess, since his power, once exercised, is exhausted for that period.


Action by the State of Nevada against The April Fool Gold Mining & Milling Company.

From a judgment in favor of plaintiff, defendant appeals. Reversed.


Pierce, Critchlow & Barrett, and T. J. Osborne, for Appellant:

I. Reassessments cannot be made without statutory authority. This principle is

fundamental. We do not know of a case holding the contrary view. We have concluded to

examine the law on this subject and respectfully invite your attention to some of the

authorities. (Perry County v. Railroad Co., 58 Ala. 561; Cooley on Taxation, 2d ed. 309;

Hubbard v. Garfield, 102 Mass. 73; Overing v. Foote, 43 N. Y. 290; Bryam v. Detroit, 50

Mich. 56; Kaehler v. Dobberpuhl, 56 Wis. 480; Trustees v. Guenther, 19 Fed. Rep. 395;

People v. Brooklyn, 92 N. Y. 430; Harwood v. North Brookfield, 130 Mass. 561; Emporia v.

Norton, 13 Kan. 569; Emporia v. Bates, 16 Kan. 495; Fairfield v. People, 94 Ill. 244;

Scheiber v. Kahler, 49 Wis. 291; State v. Jersey City, 37 N. J. Law, 39; Davis v. Boston, 129

Mass. 377; Mattingly v. District of Columbia, 97 U. S. 687; Locke v. New Orleans, 4 Wall.

271; State v. Newark, 34 N. J. Law, 236; In re Van Antwerp, 56 N. Y. 261; Bass v. Fond du

Lac County, 60 Wis. 516; Mills v. Charleston, 29 Wis. 400.)

II. We have made a careful examination of the laws of Nevada and do not find any

authority in the statutes authorizing or permitting reassessments unless it is contained in

Section 1085 of the Compiled Laws of 1900. This section, ��

��


however, only permits reassessing omitted property when the owner has refused to furnish a

statement. There is no refusal in the case at bar. The plaintiff does not claim that there was a

refusal to furnish the statement, but on the contrary bases the alleged tax on “the sworn

statement furnished by W. J. Dooley, the secretary and agent of said company to the

assessor.” Furthermore, the evident purpose of Section 1085, supra, is to provide for the

punishment of a negligent assessor.

III. The assessor is a quasi-judicial officer and his judgments are final unless appealed

from in some manner provided by law. This principle is fundamental, and is supported by

precedent and reason. The assessor's judgment, entered at the proper time and in the proper

manner, that is, “between the first Monday in October and the first Monday in November,”

1898 (Comp. Laws, 1149), and “on the roll of the proceeds of the mines for the preceding

quarter” (Comp. Laws, 1156), conclusively shows that the defendant produced no taxable net

proceeds in the quarter ending September 30, 1898. The state was satisfied with this

judgment. It did not appeal to the board of equalization. In support of the foregoing

propositions we cite the following cases and authorities: Cooley on Taxation, 2d ed. 788;

Weaver v. Davendorf, 3 Denio, 119; Western Railroad Co. v. Nolan, 48 N. Y. 513; San José

Gas Co. v. January, 57 Cal. 616; Ballerino v. Mason, 83 Cal. 447; Bailey v. Berkey, 81 Fed.

737; Taylor v. Robertson, 52 Pac. 1.

IV. That the duties of assessors, in estimating the value of property for purposes of

general taxation, are judicial, see the following cases: Barhyte v. Shepherd, 35 N. Y. 238,

250; Hassan v. Rochester, 67 N. Y. 528, 536; Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep.

289; Williams v. Weaver, 75 N. Y. 30, 33; Burroughs, Taxn. 102; Jordan v. Hyatt, 3 Barb.

275; Ireland v. Rochester, 51 Barb. 416, 430, 431; State v. Jersey City, 21 N. J. L. 662; State

v. Morristown, 34 N. J. L. 445; Griffin v. Mixon, 38 Miss. 424, 437, 438; State v. Wood, 110

Ind. 83; Kuntz v. Sumption, 2 L. R. A. 655, 117 Ind. 1; Hyland v. Brazil Block Coal Co., 128

Ind. 335; Garrigus v. State, 93 Ind. 239, 1 High, Inj. 493, Mechem, Pub. Off. & Officers,

616; Shoultz v. McPheeters, 79 Ind. 378; Steele v.�?��+��/��


Dunham, 26 Wis. 393; South Nashville St. R. Co. v. Morrow, 2 L. R. A. 853, 87 Tenn. 406;

Van Steenbergh v. Bigelow, 3 Wend. 43; Martin v. Mott, 25 U. S., 12 Wheat. 31, 6 L. Ed.

541; Jenkins v. Waldron, 11 Johns. 121, 6 Am. Dec. 359; Kendall v. Stokes, 44 U. S., 3 How.

98, 11 L. Ed. 512; Porter v. Haight, 45 Cal. 637.

William Woodburn, Attorney-General, and F. R. McNamee, for Respondent:

I. The appellant herein and defendant in the lower court never in any way denied the taxes

being due for the quarter ending September 30, 1898, but claims that the action of the

assessor in making a subsequent assessment (assuming that there was a prior assessment) was

absolutely void, and that the assessor had no jurisdiction for the reason that the statutes of

Nevada do not provide any express terms for reassessment, or second assessment. A second

assessment (assuming that there was a first assessment) or reassessment can be made, and the

time in which to make the same is merely directory, unless the taxpayer has been injured

thereby. (State v. Northern Belle M. Co., 15 Nev. 386; see also Vol. 25, Ency. of Law, p. 447,

and notes.)

II. Were it otherwise, the assessment made by the assessor on the 21st day of April, 1900,

would be valid, for it is shown from the evidence and undisputed, that the assessor, either

intentionally or under an implied agreement with appellant or defendant, made an

under-valuation and an under-assessment of the net proceeds of appellant's mine for the

quarter ending September 30, 1898, and this being the case the first assessment, if an

assessment at all, is invalid and totally void. (25 Ency. of Law, 227, and note 5.)


This is a suit for delinquent taxes upon the proceeds of defendant's mines for the quarter

year ending September 30, 1898.

At the trial it was shown that the assessment was made upon the 21st day of April, 1900.

Theretofore, and between the first day of October and November, 1898, defendant had

furnished the assessor with a verified statement showing the ��

�� !�� "�� 0��98��&=2=��

� �� 0��98��&=2=�


gross yield of the mines and the expenses to be deducted therefrom, that the expenses, as so

shown, exceeded the gross yield, and that there were no taxable proceeds to be assessed. The

assessor entered the figures given by defendant's statement in appropriate columns in the

quarterly assessment roll of the proceeds of mines of Lincoln county for the quarter ending

September 30, 1898, and made his affidavit thereunder to the effect that it was a true and

correct assessment of the proceeds of mines, etc., for the quarter ending September 30, 1898.

Following this the county auditor certified that he had extended the tax on the

above-mentioned roll, and that he had compared the same with the original statement of the

assessor, and that it was correct.

No legal objection is taken to these acts of the assessor and auditor, but it is claimed that

the assessor had power to reassess, and State v. Northern Belle Mill & Mining Co., 15 Nev.

386, is cited as an authority supporting this view. In that case the assessor had made an

irregular and insufficient assessment, failing to show the cost of extracting, transporting, and

reducing the ore, and afforded no means for ascertaining the net proceeds. The second

assessment was according to the form prescribed by the statute, and upon the facts shown it

was held valid.

The authority of that decision is supported by Himmelmann v. Cofran, 36 Cal. 411, and

other cases. But the case does not go to the extent of sanctioning reassessments of property

already regularly assessed.

It is a general rule that, when the legislature confers a power upon an officer, and he acts

under it, the power is exhausted for that period of time, unless the statute authorizes its

subsequent exercise.

In Oliver et al. v. Carsner, 39 Tex. 396, it was held under a statute vesting discretionary

power in a board of school directors regarding the levying of a tax for school purposes, in

which the maximum rate was one per cent, and the board had fixed the rate of one-half of one

per cent, a succeeding board during the same fiscal year could not virtually set aside the first

levy, and levy a tax for the full amount of one per cent, for the reason that the power, once

exercised, was exhausted for that period. (St. Louis B. & T. R. Co. v. People, &+-�@�


127 Ill. 627, 21 N. E. 348; State v. Van Every, 75 Mo. 530; People v. Supervisors of Town of

Waynesville, 88 Ill. 469; 25 Am. & Eng. Enc. Law, 193.)

When the assessor, by the assessment roll, determined that defendant was not liable for a

tax for the quarter year ending September 30, 1898, his power was exhausted, and his

subsequent reassessment was without authority, and void.

Judgment reversed, and cause remanded.

____________

26 Nev. 93, 93 (1901)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

APRIL TERM, 1901.

____________

��26 Nev. 93, 93 (1901) State v. Howell��

[No. 1604.]

STATE OF NEVADA, ex rel TRENMOR COFFIN, v. EUGENE HOWELL, as Secretary of

State of the State of Nevada, Respondent.

Statute—Enactment—Passage Over Governor's Veto—Initial Bill—Signatures of Presiding Officers. Const., art.

IV, sec. 18, requires that all bills passed by the legislature shall be signed by the presiding officers of the

house and senate. Section 35 provides that, when a bill is received by the governor, within five days of the

final adjournment of the legislature, he may prevent it from becoming a law by returning it to the secretary

of state, with his objection, within ten days after the adjournment, but that such bill shall be referred to the

succeeding legislature, which may pass it over the veto by a two-thirds vote. A bill was passed by both

houses of the legislature, and signed by the presiding officers, who transmitted it to the governor, who

returned it, with his objections, to the secretary of state after the adjournment of the session: Held, that the

failure of the presiding officers of the succeeding legislature to sign the bill, which was passed over the

veto, rendered the law invalid, since Section 18 is mandatory, and applies to the passage of bills over the

governor's veto. (Fitzgerald, J., dissenting.)

Original Proceeding. Mandamus by the State, on relation of Trenmor Coffin, against

Eugene Howell, as Secretary of State, to require the latter to furnish him a copy of a certain

act of the legislature, and to include such act in the volume containing the published laws.

Writ denied.



Trenmor Coffin, in pro. per., and James R. Judge, for Relator:

I. Counsel quote Sections 18 and 35 of Article IV of the Constitution of Nevada.

II. The question of the proper authentication of bills which have passed the legislature and

have been approved by the governor and thereby became laws, and the proof that this court

will consider as to the passage, the existence, and the term of a law, has been before this court

in the following cases: Birdsall v. Carrick, 3 Nev. 154; State v. Swift, 10 Nev. 176; State v.

Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34; State v. Nye, 23 Nev. 99; State v. Beck, 25

Nev. 105. See, also, Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495; State v. Jones, 6 Wash.

452.

III. The question of the proper authentication and proof of a bill passed over a governor's

veto has never been before this court, but we see no reason why such a bill should be made an

exception to the rule established by the decisions above cited. (State v. Carrick, 3 Nev. 156;

Constitution, art. IV, sec. 35.) The bill in question as shown by the affidavit filed on the

application for writ of mandate is regularly signed by the presiding officers of the respective

houses, and by the secretary of the senate and clerk of the assembly of the nineteenth session

of the legislature of this state, and filed in the office of the secretary of state on February 12,

1901. All public officers are presumed to do and to have done their duty and to have

proceeded regularly according to the directions of the constitution, and this bill must be

presumed to have been properly and regularly filed in the office of the secretary of state. The

rule seems to be inflexible in this state that this court will not look beyond the enrolled bill. It

cannot be presumed that a bill found on file in the office of the secretary of state, regularly

enrolled and properly signed by officers of the senate and assembly, as required by the

constitution, has not become and is not a law.

IV. The memoranda on the back of a bill, commonly known as the history of the bill, are

not evidence of any material matter to be considered in this case. (State v. Nye, 23 Nev. 99.)

Without looking at the memoranda on the back of the bill or otherwise going behind the

enrolled ��


bill, this court cannot determine whether the bill became a law.

V. “By receiving a two-thirds vote of both houses of the legislature after it has been

vetoed and returned by the governor,” or “by a failure, on the part of the governor, to return it

to the house where it originated, within five days after its reception by him whilst the

legislature is in session, or within ten days after the adjournment of that body.” In both of

these cases, the act becomes a law without the signature or approval of the executive.

However, it could make no difference in which of these two ways the bill became a law. The

enrolled bill in the office of the secretary of state is the law.

VI. There is no conflict, nor necessity for construction between Sections 18 and 35 of

Article IV of the constitution. (State v. Denny, 118 Ind. 449; City of Evansville v. State, 118

Ind. 426; H. & T. Co. v. Odum, 53 Tex. 351; Ex Parte Wall, 48 Cal. 314.) Section 18

provides how bills shall be passed through the respective branches of the legislature in the

first instance, and how they shall be authenticated after having received a majority of the

votes of all the members of each house, respectively. Section 35 provides that every bill

which has passed both houses according to the provisions of Section 18 shall, before it

becomes a law, be presented to the governor, and also provides three ways by which such bill

may become a law, after it has been presented to the executive: First—By receiving the

approval and signature of the governor. Second—By receiving a two-thirds vote of both

houses of the legislature after a veto by the governor. Third—By remaining in the hands of

the governor without action for five days while the legislature is in session, or for ten days

after the final adjournment of that body. The constitution, however, does not direct what the

governor shall do with an enrolled and authenticated bill after he has approved it; nor how it

shall be ascertained or determined that a bill has received a two-thirds vote of both houses,

after it has been vetoed and returned by the governor; nor how the fact shall be ascertained or

established that a bill has remained in the hands of the governor without his action thereon for

five days during the session of the legislature, or for ten days ��

��


after the final adjournment of that body; nor how a bill after it has become a law in any of the

three modes provided shall find its way into the office of the secretary of state. The

constitution rather presumes and assumes that where a plain and simple duty is enjoined upon

a high official of the state, he will find some plain and simple way of performing it. “The

constitution does not deal in details.” (18 Nev. 42.)

A. E. Cheney, T. C. Coogan, E. R. Dodge, and William Woodburn, Attorney-General, for

Respondent:

I. It is conceded that a bill in order to become a law at the session at which it is introduced

must have the signature of the officers named in the constitution, and that the enrolled bill so

certified is the only evidence that it has been legally enacted. (State v. Swift, 10 Nev. 176;

State v. Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34; State v. Nye, 23 Nev. 99; State v.

Beck, 56 Pac. 1008.) It is the duty of these officers to certify to the correctness of all laws that

have been enacted. (State v. Rogers, 10 Nev. 250, 261.) The various objections urged by

relator are fully answered in many cases. (See, especially, Scarborough v. Robinson, 81 N. C.

420.) Section 18 of article IV of the constitution declares that bills shall be signed by certain

officers named. Its provisions are held mandatory, and their signatures are the only evidence

that the law has been regularly enacted. Section 35 of the same article relates to a different

subject; it refers exclusively to what action is necessary in order to pass a bill over a

governor's veto. It prescribes what shall be done, not what shall constitute evidence that it has

been done. It is entirely consistent with Section 18. In determining whether vetoed bills

passed by a succeeding legislature are intended by the constitution to be signed by the officers

named in Section 18, the following rules of construction are deemed pertinent: First, both

sections are presumed to be consistent. (Endlich on Interpretation, 40, 182.) Both must be

given force unless irreconcilably repugnant. (State v. Donnelly, 20 Nev. 216.) That which is

clear must prevail over that which is obscure. (Endlich on Interpretation, 183.) Courts will not

raise an exception not found in the act itself or necessary to its reasonable enforcement.

(Endlich on Interpretation, 17.) That ��

��


construction will be adopted which is least likely to produce mischief, and which will afford

the most complete protection to all parties. (Arnold v. Stevenson, 2 Nev. 234; Haydon v.

Supervisors, 2 Nev. 371; O'Neil v. N. Y. Mg. Co., 3 Nev. 141.) “It is a rule of law, well

established, that where questions involved are purely political, and depend upon the

construction to be given to provisions of doubtful interpretation, the court will not only give

great consideration to the construction given by the political departments of the state, but will

generally follow such construction implicitly.” (State v. Grey, 21 Nev. 378, 383, 387.) The

rule that the court will not look beyond the enrolled bill to determine whether a law has been

enacted in a constitutional manner is confined to the fact of its passage by the legislature, and

not to the time when it became a law. The court is limited as to what evidence it shall receive

only so far as the constitution has restricted it; and as that restriction applies solely to the

question as to what shall be competent evidence of the fact of its passage, the court may

examine the journals of both houses, or any other record suitable and proper to ascertain the

time that it became a law, and in this way determine whether a bill, properly attested by the

officers of the legislature, but without the governor's signature, became a law by expiration of

time or otherwise. (Gardner v. The Collector, 6 Wall. 499, 511; Field v. Clark, 143 U. S.

678.)

II. The two sections relating to this subject matter—Sections 18 and 35—are found in

Article IV, which is devoted to the legislative department. They relate to the same subject

matter, and, under the familiar rule, should be read and construed together. As we have before

stated, it was conceded on the oral argument that all bills in order to become a law must be

“signed by the presiding officers of the respective houses, and by the secretary of the senate

and clerk of the assembly”; but it is contended that this plain mandate of the constitution has

no application to bills which passed the legislature over the objections of the governor. If it is

essential that such an attestation must be had to show that the constitutional requirements in

the one instance have been complied with, a fortiori is it necessary to show the constitutional��


requirements in case of the passage of bills that have met with executive objections.

III. It was urged by our learned opponent that Section 18 did not in express terms call for

this constitutional attestation; but, as we have shown, the two sections read together call for

it, and the rules of construction and the reasons given by the supreme Court of the United

States. In Field v. Clark, 143 U. S. 649, Justice Harlan, speaking for the court, said:

“Although the constitution does not expressly require bills that have passed Congress to be

attested by the signatures of the two houses, usage, the orderly conduct of legislative

proceedings, and the rules under which the two bodies have acted since the organization of

the government, require that mode of authentication.”

IV. The construction for which we respectfully contend accords with the practice that has

prevailed in our state since the adoption of the constitution. In the statutes, from 1864 down

to those published in 1899, there are to be found very many instances. If the court will look at

the statutes first referred to, at pages 99, 109, 143, 147, 183, 331 and 399, they will find

evidences of this practice, and by referring to the session of 1899, at page 124, they will find

still another. The effect of such a long-continued, contemporaneous construction should be

considered by the court and should be given great weight. Our own supreme court has

followed this rule and forcibly stated it in State v. Glenn, 18 Nev. 35, and State v. Grey, 21

Nev. 378.

V. The court has been referred to rulings made in Indiana that are claimed to be contrary

to the construction contended for by respondent. This is not the case; indeed, the decisions

cited sustain our view. In that state, the constitution, section 14, article V, provides that, if a

bill is passed over the governor's objections, “it shall be a law,” not, as in our constitution,

that “it shall become a law.”


The relator by this action seeks to compel the respondent, as secretary of state, to furnish

him a duly certified copy of that certain act entitled “An act to regulate the payment of losses

sustained by holders of full paid up fire insurance ��5� �� !��&+�� A��&28&��


policies,” deposited and filed in the respondent's office on the 12th day of February, 1901,

and to further compel respondent to include said act in the volume containing the published

laws enacted by the twentieth session of the legislature of this state.

The controlling facts set up in the petition, and which are admitted to be true, are that the

above-entitled act was regularly passed by the legislature of this state at its nineteenth session,

regularly signed by the proper officers of the two houses thereof, and presented to the

governor of the state at a time less than five days before the final adjournment of said session;

that within ten days after the adjournment the governor filed said act, with his objections

thereto, in the office of the respondent; that thereafter and in due time the respondent

regularly laid said act, together with the objections of the governor, before the twentieth

session of the legislature of Nevada, and the same was regularly reconsidered and passed by a

vote of more than two-thirds of the members elected to each house thereof, notwithstanding

the governor's objections, and was filed in the office of the respondent on the 12th day of

February, 1901; that the act when so filed was not signed, and has not since been signed, by

either of the presiding officers of the senate or assembly of the twentieth session of the

legislature, nor by the secretary of the senate or clerk of the assembly of said session.

The respondent contends that the act is not a law without the attestation of the proper

officers of the twentieth session of the legislature, and bases his refusal to comply with

relator's demands upon that fact. The question presented by this contention is the only one to

be considered, and it must be determined by the construction placed upon Sections 18 and 35

of Art IV of our constitution. While the question is a new one, and has come before this court

in this proceeding for the first time, yet the construction of Section 18 has been repeatedly

before this court. In all the cases involving a construction of said Section 18 it has been

invariably held that the last clause of the section, requiring the signatures of the officers

named therein, is mandatory, and that the enrolled bill so authenticated is the only and

conclusive evidence that it has been legally enacted. (State v.�0��&8�,��&-�


Swift, 10 Nev. 176; State v. Rogers, 10 Nev. 250; State v. Glenn, 18 Nev. 34, 1 Pac. 186;

State v. Nye, 23 Nev. 99, 42 Pac. 866; State v. Beck, 25 Nev. 68.)

It is not necessary to discuss the reason of the rule, or quote from the opinions the reasons

given. The question was exhaustively treated in State v. Swift, supra, in which the authorities

from all sources were collected, analyzed, and explained, and approved or disapproved.

In State v. Glenn the rule laid down in State v. Swift was approved, and Justice Hawley,

speaking for the court, declared that “the signing of the bill by the officers designated in the

constitution is absolutely essential to its existence as a law.”

So well settled is this rule in this state that the court as late as 1899, when asked to modify

it in State v. Beck, declined to make any modification, and upon full consideration declared

that the great weight of the decided cases, considered with reference to the reasoning and

argument, supported the rule. Shall we, then, apply the mandatory requirement of Section 18,

relating to the attestation of bills, to acts which have been vetoed by the governor, and by the

provision of said Section 35 are required to be laid before the next legislature for

reconsideration, and have passed over his veto? This is the precise question.

Section 35 reads as follows: “Every bill which may have passed the legislature, shall,

before it becomes a law, be presented to the governor. If he approve it, he shall sign it; but if

not, he shall return it with his objections to the house in which it originated, which house

shall cause such objections to be entered upon its journal, and proceed to reconsider it. If,

after such reconsideration, it again pass both houses by yeas and nays by a vote of two-thirds

of the members elected to each house, it shall become a law, notwithstanding the governor's

objections. If any bill shall not be returned within five days after it shall have been presented

to him (Sundays excepted) exclusive of the day on which he received it, the same shall be a

law in like manner as if he had signed it, unless the legislature, by its final adjournment,

prevents such return, in which case it shall be a law, unless the governor within ten days next

after the adjournment :0�� ;��

�� 5


(Sundays excepted) shall file such bill, with his objections thereto, in the office of the

secretary of state, who shall lay the same before the legislature at its next session, in like

manner as if it had been returned by the governor; and if the same shall receive the vote of

two-thirds of the members elected to each branch of the legislature, upon a vote taken by the

yeas and nays to be entered upon the journals of each house, it shall become a law.”

It will be observed that Sections 18 and 35 are found in the same article—the article

devoted to the legislative department of the state government—and, under the familiar and

well-established rule, when construction is necessary should be read and construed together.

It is claimed by the relator that notwithstanding the mandatory requirements of Section 18,

relating to the attestation by the officers of the respective houses as applied to bills which

become laws with or without the governor's approval, such mandatory requirement can have

no application to bills which are passed over the governor's objections at the next session of

the legislature, for the reason that the provisions of Section 35 authorize the court to go to the

journals of the respective houses for the evidence of the constitutional requirements of its

enactment and existence as a valid law.

For the same reason and by the same logic it could be as well said that the requirement of

Section 18, relating to the signatures of the proper officers to bills which are laws with the

governor's approval, or without his approval by lapse of time, is not mandatory, and therefore

not essential to the existence of the law, as Section 18 contains the provision that the “vote on

every bill or joint resolution shall be taken by yeas and nays to be entered on the journals of

each house, and a majority of all members elected to each house shall be necessary to pass

every bill or joint resolution.”

If we so hold, we place the framers of our constitution in the anomalous position of

requiring acts passed by a mere constitutional majority to be attested by the signatures of the

chief officers of the legislature, as the only and conclusive evidence of their enactment, and in

the same article, treating of the same subject, permitting the existence of another act which

meets the disapproval of a coordinate branch of the ��

�� #��

*��0��0��

�� 0��3��@� ��:3��6��0��&&=�@� ��'+�� 0��?��&&=�@� �


government, exercising a constitutional power over legislation, and which act must again be

considered by the legislature, and receive more than a majority of the members elected to

each branch thereof, in order to overcome such disapproval, to rest upon a record which may

be, as pointed out by Justice Beatty in State v. Swift, so uncertain, inaccurate, and incomplete

as to unsettle the entire statute law of the state.

The relator cites two cases decided by the Supreme Court of Indiana (City of Evansville v.

State, 118 Ind. 426; and State v. Denny, 118 Ind. 449), which he claims support his

contention. While there are many points of similarity between the cases cited and the case at

bar, we are of the opinion that the constitutional provisions of the State of Indiana are such as

to easily distinguish those cases from the one we are considering, and render the application

of the rule of construction adopted by that court inapplicable here. Section 14 of the

constitution of Indiana, which corresponds to our Section 35, is found in Article V of the

Indiana constitution. That article is devoted to the duties and powers of the executive

department of the government. Section 25 of the Indiana constitution, which corresponds to

our Section 18, is found in Article IV of the Indiana constitution, which is devoted to the

legislative department of that government.

Both sections under consideration in this proceeding are incorporated in the same article,

and while this difference may not be very material, it shows at least that the framers of our

constitution had but one subject under consideration, and fully treated the matter in the one

subject as closely connected and related before they passed to some other subject.

It will be further observed that in the reported case Section 14 of the Indiana constitution is

not set out in its entirety.

That provision which relates to the filing of a bill with the governor's objection thereto,

with the secretary of state, and its subsequent submission by that officer to the next

legislature, is omitted.

The omitted provision reads as follows: “If any bill shall not be returned by the governor

within three days (Sunday excepted) after it shall have been presented to him, it shall ��


be a law without his signature unless the general adjournment shall prevent its return, in

which case it shall be a law, unless the governor within five days next after such adjournment,

shall file such bill, with his objections thereto, in the office of secretary of state, who shall lay

the same before the general assembly at its next session in like manner as if it had been

returned by the governor. But no bill shall be presented to the governor within two days next

previous to the final adjournment of the general assembly.”

If the bills considered by the court in the Indiana cases had been passed over the governor's

objections by the general assembly at its next session, as was the case here, we cannot say,

under the provisions above quoted, what would have been their fate. There is also a very

marked and sharp distinction to be made from the use of the language in our constitution. In

the Indiana cases cited the court places great stress upon the language used in the provisions

of the constitution applying to the facts before it, which involved the constitutionality of acts

passed over the governor's veto at the same session of the general assembly in which the act

originated. The constitution provides in terms that if after such reconsideration a majority of

all the members elected to each house shall agree to pass or approve, as the case may be, “it

shall be a law.”

The corresponding provision of our constitution provides that, in the case covered by the

Indiana constitution, if after reconsideration it again pass both houses, by yeas and nays, by a

vote of two-thirds of the members elected to each house, “it shall become a law”; and in the

last clause of Section 35, covering a bill laid before the next session of the legislature by

reason of the governor's objections, the same language is used.

There is a marked difference of meaning, as we view it, in the language used in the two

constitutions.

Section 35 of our constitution emphasizes this difference of meaning. The first clause of

that section, requiring every bill passed by the legislature to be presented to and signed by the

governor “before it becomes a law,” presupposes by the force of the term the subsequent act

of presentation and signing. Further along in the section it provides for action �� <��5��


by the legislature upon the objections of the governor, and in the event of certain action “it

shall become a law,” again, as we believe, presupposing the subsequent act of attestation by

the proper officers.

Again, in the last clause of the section, covering the submission of a vetoed bill to the next

session of the legislature in the event of certain legislative action, “it shall become a law,”

presupposing the subsequent mandatory attestation by the officers.

It seems to us that the framers of the constitution used these words with the intention that

they should be given the construction we place upon them, and, as we have before stated,

emphasized this meaning by declaring in the same section that a bill which remains in the

governor's hands beyond a certain limit of time without his approval or disapproval “shall be

a law.”

Further, this section provides in case final adjournment of the legislature has been had, and

the governor does not within the time limited by the section file the bill, with his objections

thereto, in the office of the secretary of state, then, in that event, “it shall be a law.” In both of

these clauses the precise language of the constitution of the State of Indiana is used, while the

clause of our constitution covering the case presented uses the language “it shall become a

law.”

Not only is this construction of Section 35 supported by the language used, but it is in

harmony with the construction placed upon it by the legislative department of government

since the adoption of the constitution.

We believe it is well settled by the decisions of this court that long continued and

contemporaneous construction placed by the coordinate branch of government upon a matter

of procedure in such coordinate branch of government should be given great weight. This rule

has been followed in a number of cases, and most clearly and forcibly stated in the case of

State v. Grey, 21 Nev. 378, 32 Pac. 190.

In the case of Dayton Mining Co. v. Seawell, 11 Nev. 399, Justice Hawley, discussing this

matter, uses the following language: “But in this connection it must, as we think, be admitted

that, although the action of the legislature is not �� 5


final, its decision upon this point is to be treated by the courts with the consideration which is

due to a coordinate department of the state government, and in case of a reasonable doubt as

to the meaning of the words the construction given to them by the legislature ought to

prevail.”

Commencing with the first session of the legislature after the adoption of the constitution,

and continuing down to the nineteenth session, in 1899, in every instance, with possibly one

exception, when legislative action was taken upon vetoed bills, and such bills were passed

over the veto, the legislature by its act of attestation has construed Section 35 as we construe

it. In the first session a large number of bills were returned to the legislature with the

governor's objections, and in every instance after passage over his objections they were again

attested by the officers named in Section 18 of the constitution, two of whom (the president

of the senate and the speaker of the assembly) were fresh from the convention which framed

the constitution.

The Supreme Court of the United States, we believe, has even gone further, and in the case

of Field v. Clark, 143 U. S. 649, has approved the doctrine laid down in the case of State v.

Swift, notwithstanding the federal constitution contains no provision expressly requiring

enrolled bills which have passed Congress to be attested by the signatures of the presiding

officers of the two houses, and bases its conclusion upon the usage, orderly conduct of

legislative proceedings, and the rules under which Congress has acted since the organization

of the government.

The relator further contends that the construction placed upon these sections by the

legislature is without force, for the reason that the officers have inserted over their signature,

in many instances, a history of the action taken, and have not uniformly placed their

attestation upon the face of the bill. It is sufficient to say in answer to this contention that we

are not willing to declare that, because of an abundance of precaution manifested by the

officers, their work should fail; neither are we willing to sacrifice the substance of the

constitution to a mere matter of form, when form is not the essence.


For the reasons given, we are clearly of the opinion that the peremptory writ should be

denied.

Belknap, J.: I concur.

Fitzgerald, J.: I dissent.

____________

��26 Nev. 106, 106 (1901) In Re Singleton's Estate��

[No. 1593.]

In the Matter of the Estate of SAMUEL SINGLE-

TON, Deceased.

Probate Court—Jurisdiction. The probate court, in the absence of statute, has no jurisdiction to adjudicate

dispute rights against an estate.

Appeal from the First Judicial District Court, Douglas County; C. E. Mack, Judge.

In the Matter of the Estate of Samuel Singleton, deceased. From a judgment in favor of

Agnes Scossa, executrix, construing a deed of a testamentary writing, the heirs of Rebecca

Singleton, widow of deceased, appeal. Appeal dismissed.


Torreyson & Summerfield, for Appellants:

I. Samuel Singleton, on the 17th day of March, A. D. 1888, made a deed to his wife of all

his property, real and personal, wheresoever found. A copy of this deed is set out in the

objections. It was duly acknowledged and recorded and has been on record since the 2d day

of December, 1888, and is in words as follows: “Know all men by these presents: That I,

Samuel Singleton of the Town of Sheridan, County of Douglas, State of Nevada, in

consideration of the love and affection which I have and bear for my wife, Rebecca Singleton,

and also for divers other and good causes and considerations, me, the said Samuel Singleton,

moving, have given, granted and confirmed, and by these presents do give, grant and confirm

unto the said Rebecca Singleton, all and singular my lands, tenements and hereditaments

wheresoever situated, lying or being, whether in the County of Douglas, State of Nevada,

aforesaid, or elsewhere, together with all and singular my goods, chattels and personal estate

of every name and nature, in whose hands, custody or possession soever they may be; unto

and for her sole use and ��

�� B��0��


behoof forever and unto her heirs, administrators and assigns; this conveyance to be of force

and effect at and upon the event of my death, the said Rebecca Singleton, my wife, surviving

me. To have and to hold, all and singular, the premises, lands, chattels and personalities

aforesaid with the appurtenances and belongings of whatever nature and kind unto the said

Rebecca Singleton, my wife, her heirs, administrators and assigns forever. In witness

whereof, I have hereunto set may hand and seal at the County of Douglas, State of Nevada, on

this 17th day of March, A. D. 1888. Samuel Singleton (Seal). The foregoing was

acknowledged in the usual form of the statute before G. W. Dungan, County Recorder, on the

said 17th day of March, 1888, and filed for record, December 2, 1888, at 1 o'clock p. m.”

II. Samuel Singleton died on the 6th day of November, 1897, and his wife, Rebecca

Singleton, survived him. The sole question to be determined in the case is this: Is the

instrument set forth a deed, or is it a will, testamentary in character. By “testamentary” is

meant: pertaining to a will or testament; derived from, founded on or appointed by a

testament. “Testamentum: a testament or will; a disposition of property made in

contemplation of death.”

III. When the deed from Singleton to his wife was executed only ordinary and

nuncupative wills were recognized under our law. There was not such an instrument as an

olographic will until the act of the legislature of this state, March 20, 1895. (Stats. 1895, 112.)

IV. The document in question cannot be a will, for it has not the formalities required by

statute. If not a will, the question of the intention of the grantor cannot arise. If not a will, it

cannot be revoked. Counsel urge upon the court that the document is revocable, but, at the

same time, insist it is not a will. If our position be correct, that this document is not a will,

because it has not the formalities required by the statute, then it could not be revoked by a

subsequent will, and contestant should prevail.

V. To construe it as a will the intention of the grantor will be defeated, because it cannot

be set up as a will, not having the formalities prescribed by statute. Supporting these

principles, we call the attention of the court to the ��.�*��,��18�C��

9�-��/��*��18�(��&92��C��$��-+�(��+2=��#��C ��+-�0�

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following cases: Bunch v. Nicks, 50 Ark. 367; Wyman v. Brown, 50 Me. 139; Abbot v.

Holway, 72 Me. 298; Jenkins v. Adock, 27 S. W. Rep. 21-23; Cains v. Jones, 5 Yerg. (Tenn.)

249-254; Jones on Law of Real Property in Conveyancing, sec. 1, p. 32; Cates v. Cates, 135

Ind. 272; Wilson v. Correcco, 140 Ind. 533; Johnson v. Hines, 31 Ga. 720-727; White v.

Hopkins, 80 Ga. 154-157; Golding v. Golding, 24 Ala. 122-123-126; Rawlins v. McRoberts,

95 Ky. 346; Phillips v. Thomas Lumber Co., 94 Ky. 445; Spencer v. Robbins, 106 Ind. 580;

Well v. Well, 30 Miss. 92; Shackleton v. Sebre, 86 Ill. 617; Dismukes v. Parrott, 56 Ga. 513;

Graves v. Atwood, 52 Conn. 512; Youngblood v. Youngblood, 74 Ga. 617; Love v. Blauer, 59

Pac. Rep. 1059-61; Brown v. Mattocks, 103 Pa. St. 16-17.

VI. The instrument is a deed, for it uses language which creates a vested remainder, and a

vested remainder subject to a divesting contingency has, until the contingency happens, all

the incidents of an indefeasible interest. There was a person in esse who, upon the death of

the grantor, immediately became vested with the whole estate. (20 Am. & Eng. Ency. Law,

854, note 1-2; Watson v. Cressy, 79 Me. 383; Wainwright v. Sawyer, 150 Mass. 168;

Loufburrow v. Koch, 75 Ga. 448; Mercantile Bank v. Ballard, 83 Ky. 481; Gen. Stats. Nev.

2611-2613.)

Trenmor Coffin and D. W. Virgin, for Respondents:

I. The question to be determined is whether or not the document in question is a deed

irrevocable, or a document testamentary and revocable in nature and character. If it was

revocable, it is a fact in this case which seems to be ignored by counsel for appellants that it

was in terms revoked by the subsequent will of Samuel Singleton, deceased, which has been

heretofore admitted to probate and under which these proceedings are had.

II. The probated will referred in terms to this alleged deed, and in terms revoked it, and

gave all of the property of the testator to his wife for life, and then to his sister, the executrix

of his will, the respondent herein.

III. A document which is a deed in form is testamentary in its nature and character, if by

its terms it is to take ��


effect only upon the death of the party executing it. Such a document or deed may be revoked

during the lifetime of the maker. (Habergam v. Vincent, (1793) 2 Ves. Jr. 204-238; Turner v.

Scot, (1867) 51 Pa. St. 126, 130-34; Frederick's Appeal, 52 Pa. St. 338; Frew v. Clark, 80 Pa.

St. 170; Hester v. Young, (1847) 2 Ga. 31-2-51; Robinson v. Schly, 6 Ga. 516, 527; Symmes

v. Arnold, 10 Ga. 506, 508-9; Sperber v. Balster, 66 Ga. 317; Shepherd v. Nabors, (1844) 6

Ala. 631-2, 636; Crocker v. Smith, (1891) 94 Ala. 295-6; Carleton v. Cameron, (1880) 54

Tex. 72, 38 Am. Rep. 620-21, notes and authorities 621-2; Carey v. Denis, (1858) 13 Md. 1,

16-17; Cover v. Stem, (1887) 67 Md. 449, 453; Sartor v. Sartor (1861) 39 Miss. 760-61,

771-2; Burlington University v. Barret, (1867) 22 Iowa, 60, 72-4, 92 Am. Dec. 316, 381-2,

also extended notes and authorities pp. 383-89; Leaver v. Causs, 62 Iowa, 314; Will of

Belcher, (1872) 66 N. C. 51-2, 53-4; Reed v. Hazelton, (1887) 37 Kan. 321-2; Hazelton v.

Reed, 46 Kan. 73, 7 Am. Prob. Rep. 268; Armstrong v. Armstrong, 4 Baxt. (Tenn.) 357, 1

Am. Prob. Rep. 206, notes, 208-10; Lautenschlager v. Lautenschlager, (1890) 80 Mich. 285;

Massy v. Huntington, (1886) 118 Ill. 80, 89; Nichols v. Emery, (1895) 109 Cal. 324, 329-32;

Rawlings v. McRoberts, 95 Ky. 345-52; 29 Am. & Eng. Ency. Law, “Wills,” pp. 138-144,

“Deeds in form held testamentary in character,” pp. 145-149, and authorities cited; same

Ency. 2d ed. vol. 9, p. 91, “Deeds,” and notes and authorities.)

IV. By an almost universal current of authority and decision in the various states, a

warranty deed, or a document in the form of a warranty deed, expressing a valuable

consideration which, by its terms, is made to take effect at the death of the maker, although

testamentary in its character, if allowed to stand unrevoked until the maker's death, has been

held to be the equivalent of a covenant to stand seized to the use of the grantee, under the

statute of uses of 27 Henry VIII (A. D. 1536), which is generally held to be part of the

common law of this country. (1 Nev. 40; 17 Nev. 124.) Such warranty deed as a covenant to

stand seized to the use of another, has also, with but few exceptions, if unrevoked, been held

to pass a fee simple title to the grantee upon the death of the maker. (Jackson v. Wood, 20

Johns. (N. Y.) 85; /��/��'�(��&91��9-+��/��*��18�(��&92��&1&�

��0��1&�D��0��&+��&9+�;


Wallis v. Wallis, 4 Mass. 135, 372; Wyman v. Brown, 50 Me. 139, 151; Turner v. Scot, 51 Pa.

St. 126, 132.)

V. The alleged deed in question was not a warranty deed, nor even a bargain and sale

deed, and was not allowed to stand unrevoked until the death of Mr. Singleton, thereby taking

the case out of the line of decisions cited by appellant.

VI. In the following cases, among others cited by counsel for the administrator and heirs

of Rebecca Singleton, the documents, or instruments, or deeds under consideration were

warranty deeds in form, expressing a valuable consideration, with no attempt at revocation

during the lifetime of the maker: 6 Ark. 109; 50 Ark. 367, 371; 4 Mass. 135; 86 Ill. 616; 72

Me. 298, 299-300; 1 Rich. L. (S. C.) 166; 5 Rich. L. (S. C.) 189, 191; 114 Ind. 179-80; 135

Ind. 272, 274; 140 Ind. 533-4; 56 Ga. 513; 80 Ga. 155-6; 20 Johns. (N. Y.) 85; 24 Ala. 122-3,

125; 52 Conn. 512; 33 N. H. 18, 21; 95 Ky. 348. The two lines of decisions above cited seem

to have run a course of parallel consistency for near a century without the slightest

consciousness on the part of the able judges who rendered them that they were making

decisions in any way inconsistent, or in conflict with each other.

VII. We submit that, upon all of the foregoing authorities, the document set out in the

objections to final distribution herein as prayed was testamentary in character, subject to

revocation, and was revoked by the subsequent last will and testament of Samuel Singleton,

which expressed his last intentions and will as to the disposition of his property after death,

and which has now become final and conclusive by its admission to probate by this court.


Ten years before his death, Samuel Singleton executed a writing in the form of a deed

purporting to convey all his real and personal property to his wife. Afterwards he made a will

bequeathing his property to his wife for life, and upon her death to his sister, Agnes Scossa,

the executrix. Singleton died in November, 1898. His wife died a week later. Upon the

settlement of the final report of the executrix, a contention arose as to the construction to be

given to the deed. The executrix claimed that she was entitled to the �� (��


property, for the reason that the writing is testamentary in character, and revocable, and was

revoked by the subsequent will, and that upon the death of Mrs. Singleton she became sole

distributee. The heirs of the wife claimed under the deed. The district court sustained the

contention of the executrix, and the heirs of Mrs. Singleton have appealed.

This statement of facts shows that there is a controversy in the probate court between the

executrix of the above-named estate and the heirs of Mrs. Singleton claiming adversely to the

estate of Samuel Singleton.

The merits of the controversy have been twice argued upon this appeal, but no question

made by counsel upon either side touching the jurisdiction of the district court in a probate

proceeding upon an issue of title.

After the submission of the second argument, and during our investigation of the case, the

question of jurisdiction was suggested by a member of the court. The inquiry should be

pursued by the court of its own motion, if not otherwise presented.

It is a familiar doctrine of the law that want of jurisdiction by the court will render its

judgments unavailable for any purpose; and, when a court is satisfied that it has not

jurisdiction, it should proceed no further with the case.

It is well established that the jurisdiction of probate courts does not extend to controversies

between the estate and third persons not claiming under such estate or as creditors of it.

“Questions of title to such estate—for example, arising not under a claim to receive it in

the distribution of the estate, but adversely to such estate—do not fall within the jurisdiction

of a probate court, nor can it determine the rights of strangers to property in the course of

administration.” (Works, Courts & Jur. p. 441.)

“Since the functions of probate courts are limited, in respect of executors and

administrators, to the control of the devolution of property upon the death of its owner, it is

not their province to adjudicate upon collateral questions. The right or title of the decedent to

property claimed by the executor or administrator against third persons, or by third person

against him, as well as claims of third persons against creditors, heirs, legatees, devisees, or

distributees, must, if an ��

�� 5


adjudication becomes necessary, be tried in courts of general jurisdiction, unless such

jurisdiction be expressly conferred on probate courts.” (1 Woerner, Admn. 151.)

In Stewart v. Lohr, 1 Wash. St. 341, it was decided that the probate court had no

jurisdiction to try the title to real estate as between the representatives of an estate and the

husband of the decedent, when the latter claims an interest adverse thereto. The court said:

“The person claiming adversely to the estate was the husband of the deceased party, and it

appears that this fact was thought to affect the question. We, however, do not think so; for,

while it is true that the probate court has jurisdiction to determine the claims to property as

between those interested in the estate, this authority only goes to the extent of determining

their relative interests as derived from the estate, and not to an interest claimed adversely

thereto. In the case before us the husband, though interested in the estate of his deceased wife,

was, so far as the claim he was attempting to assert, an entire stranger thereto. * * * The

probate court had no jurisdiction of the subject-matter of the action, from which it follows

that the higher courts could get no jurisdiction on appeal.”

In re Burton's Estate, 64 Cal. 428, which was an appeal from an order setting apart a

homestead, the appellants opposed the application upon the ground that they were the owners

of the property. It was determined that the superior court, sitting as a court of probate, had no

jurisdiction to try title between adverse claimants. See, also, In re Kimberly's Estate, 97 Cal.

281; In re Haas' Estate, 97 Cal. 232; In re Bolander's Estate, (Or.) 63 Pac. 689.

Our statute regulating the settlement of the estates of deceased persons confers no

jurisdiction upon probate courts to adjudicate disputed rights against an estate. Title must be

tried in another forum.

The appeal should be dismissed.

It is so ordered.

____________

��26 Nev. 113, 113 (1901) State v. Ernst��

[No. 1597.]

THE STATE OF NEVADA, Respondent, v. ERNST & ESSER, MONITOR LAND AND

LIVE STOCK COMPANY, a Corporation, and M. S. EISNER, and all Owners, Known

or Unknown, and the Real Estate and Improvements Situate in the County of Nye, State

of Nevada, and Described in the Complaint in this Action, Appellants.

Taxation—Board of Equalization—Authority—Assessment—Change—Validity. Comp. Laws, 1098, provides

that the board of equalization shall have power to determine the valuation of any property assessed, and

may change and correct any valuation, either by adding thereto, or deducting therefrom, and to require the

assessor to enter upon the assessment roll property which has not been assessed. The assessor returned an

assessment of E.'s property for 1897, and subsequently the board of equalization ordered the assessor to

add to E.'s assessment the name of the M. L. & L. Co., and to add certain land and 10,000 head of sheep to

the assessment of E. and the land company. The assessor had returned no assessment against the land

company, and there was no evidence that it had any interest in the property assessed against E., or that E.

had any interest in the land company, except as a stockholder, and there was evidence before the board that

the land added to the assessment of E. and the land company belonged to a third party, and that E. did not

own sheep: Held, that the order of the board was void, as exceeding its powers, since it had no authority to

make an original assessment, or to assess property to a person who is not shown to be the owner of it.

Appeal from the Third Judicial District Court, Nye County; A. L. Fitzgerald, Judge.

Action by the State against Ernst & Esser, and others, for delinquent taxes. From a

judgment in favor of plaintiff and from an order denying a new trial, defendants appeal.

Reversed.

The facts sufficiently appeal in the opinion.

Trenmor Coffin, for Appellants:

I. The action of the board of equalization in adding the names of “The Monitor Land and

Live Stock Company and M. S. Eisner” to the name of Ernst & Esser upon the assessment

roll rendered the assessment invalid. It certainly was invalid as to all additions made by the

board of equalization. The action of the board of equalization rendered the whole assessment

fictitious and unreal. (People v. Sneath & Arnold, 28 Cal. 613-15.) An assessment which

includes more land or ��

��26 Nev. 113, 114 (1901) State v. Ernst��

property than belongs to one firm, corporation or individual is void. A judgment obtained

upon such an assessment cannot stand. (Welty on Assessments, secs. 64 and 112, and

authorities cited; People v. Sneath & Arnold, 28 Cal. 614-15; Roe v. Williams, 20 Wis. 228;

Baker v. Blake, 36 Me. 435-6; Whitney v. Thomas, 23 N. Y. 281, 284-5.)

II. The situs of the sheep, for the purpose of taxation, was in Elko county. Their home

ranch was in that county. They were bred, born, branded, marked, raised, docked, dipped, and

otherwise cared for in that county until the lambs became sheep (till they were weaned and

had their tails cut off), and until they could travel and get their own living. (State v. Shaw, 21

Nev. 222, 229, 233; Barnes v. Woodbury, 17 Nev. 383; also dissenting opinion at pp.

389-401, and authorities cited; Ford v. McGregor, 20 Nev. 446; Whitmore v. McGregor, 20

Nev. 451.)

III. It is within the province of the legislature to fix the situs of all personal property for

the purpose of taxation. “All property, both real and personal; property of every kind

susceptible of taxation, whether owned by residents or non-residents, corporations or

individuals, is subject to legislative control. It may be assessed and taxed in the county where

it is situated or elsewhere, and the taxes made payable where the assessment is made, where

the property is situated, or such other place as the legislative will may have directed.” (Welty

on Assessments, secs. 51, 52, 53, and authorities cited; Dubuque v. Chicago M. R. Co., 47

Iowa, 196; Vanatta v. Runyon, 41 N. J. Law, 98, 104-5; People v. McLean, 80 N. Y.

255-258.)

IV. Property must be assessed in the name of the true owner if known, or the assessment

will be void. (Comp. Laws, 1093; Stats. 1893, pp. 45-6, sec. 17; State v. C. P. R. R. Co., 21

Nev. 256; Reese v. Shearer, 49 N. J. L. 610; Kelsey v. Abbott, 13 Cal. 609; Blatner v. Davis,

32 Cal. 328; Hearst v. Eggleston, 55 Cal. 365; Bosworth v. Webster, 64 Cal. 1; People v.

Whipple, 47 Cal. 591; Crawford v. Schmidt, 47 Cal. 617-18; Grotefend v. Ultz, 53 Cal. 666;

Grimm v. O'Connel, 54 Cal. 522; Brady v. Dowden, 59 Cal. 51; Lake Co. v. S.B.Q.M. Co., 66

Cal. 21; 25 Am. & Eng. Ency. Law, 214; Welty on Law of Assessments, secs. 63 and 64, and

notes.)

��26 Nev. 113, 115 (1901) State v. Ernst��

V. If each subdivision of land entered upon the assessment roll is not assessed separately,

and a separate valuation placed thereon, the assessment is void. (Comp. Laws, 1105; Stats.

1891, p. 146, sec. 33; Peers v. Reed, 23 Nev. 404, 408; State v. C. P. R. R. Co., 21 Nev. 94,

105-6; Cooley on Taxation, 279-80; People v. Hollister, 47 Cal. 408; Welty, sec. 111, p.

214-15, also note 4 on p. 215; People v. Moore, 1 Idaho, 667-70; Terrell v. Groves, 18 Cal.

149; Doster v. Sterling, 33 Kan. 385-6-7; Mason v. Ricker, 63 Me. 382; Welty, sec. 303, p.

451.)

VI. A suit to enforce tax in gross upon several subdivisions of land brought for a gross

sum, assessed against such subdivisions jointly, cannot be maintained. (Const. of Texas,

1869, art. XII, secs. 20-22; State v. Baker, 49 Tex. 768; Edmunds v. Galveston, 53 Tex. 157;

Jordan v. Brennhan, 57 Tex. 656-7; 25 Am. & Eng. Ency. Law, 272, and authorities cited.)

VII. “Our statute does not require a separate assessment or valuation of lands and

improvements, where both belong to the same owner, but on the contrary expressly directs

that both be valued together.” (State v. C. P. R. R. Co., 10 Nev. 48, 59-60; Comp. Laws Nev.

1873, vol. 2, sec. 3136; Stats. 1864-5, p. 277, sec. 12; Stats. 1891, pp. 141-2, sec. 17; Comp.

Laws 1900, sec. 1093.)

VIII. In this case the board of equalization fixed the value of the 10,000 sheep and 100

cattle. The sheep and cattle were not assessed by the assessor. The attempt of the board to

assess them was without authority of law. Boards of equalization are creatures of the statute,

and every act of such a board must be by express authority of the legislature, and its records

must show affirmatively the necessary jurisdictional facts. (State v. Commrs., 5 Nev. 319;

State v. Commrs., 6 Nev. 95-97; Finch v. Tehama Co., 29 Cal. 453.)

IX. The legislature has never authorized boards of equalization to assess property. They

may equalize, but not assess. The legislature has provided that assessors are the sole and

exclusive officers whose duty it is to assess property. The attempted valuation and assessment

by the board of equalization was a nullity. (Comp. Laws, 1084, 1093; Stats. 1893, pp. 44-5,

secs. 8, 17; State v. Kruttschnitt, 4 Nev. 209-10; D��B�� +=�3��&8-��D��

$��+2�3��'1&��D��0��A��0��E��9&�3�

��26 Nev. 113, 116 (1901) State v. Ernst��

People v. Reynolds, 28 Cal. 107; People v. Hastings, 29 Cal. 451; People v. S. F. Savings

Union, 31 Cal. 132, 137-9; People v. Hastings, 34 Cal. 571, 574; Farmers' Bank v. Board, 97

Cal. 318, 323, et seq.; Lyman v. Howe, 64 Ark. 437; Welty, secs. 2, 10, 451, p. 7, note 3, sec.

4, p. 9, note 6a; Cooley on Taxation, 351; Black on Tax Titles, secs. 133-4.)

X. We venture the assertion that there was never an assessment roll or a pretended

delinquent list offered to a court as evidence that showed a wider departure from or greater

disregard for the requirements of the law than those offered and admitted in this case. Tax

proceedings are in invitum, and to be valid must strictly follow the statute. The proceedings to

be valid from the levy to the collection of the tax must be strictissimi juris. (Whitney v.

Thomas, 23 N. Y. 286; Cooley on Taxation, 353; Kelsey v. Abbott, 18 Cal. 618-19; People v.

Mahoney, 55 Cal. 288; Lake County v. S.B.Q.M. Co., 66 Cal. 20; Emeric v. Alvarda, 90 Cal.

446, 465.)

XI. An assessment made to a firm or in a firm name after the firm has been dissolved by

the death of one of the copartners is void. (Welty on Assessments, sec. 63; People v. Sneath

& Arnold, 28 Cal. 613-15.) There was no firm of “Ernst & Esser” in 1897. M. W. Esser, who

had been a member of that firm, had died, and his estate had been administered upon and

finally distributed prior to 1897.

P.M. Bowler, Jr., and Peter Breen, for Respondent; Wm. Woodburn, Attorney-General,

and T. L. Oddie, District Attorney of Nye County, also for Respondent:

I. This case does not require any discussion of the principle of legislative control over the

assessment and taxation of property, and it may be conceded that the legislature has full

control, an almost absolute control, subject only to the constitutional requirement that the rate

shall be uniform and equal. There is, however, involved the question of legislative intent. The

legal fiction that the situs of personal property for the purpose of taxation follows the person

and residence of the owner does not obtain in this state. It is made the duty of each board of

county commissioners to fix a rate of tax for county purposes on or before the first Monday of

March of each year, and to levy the state and county ��

��26 Nev. 113, 117 (1901) State v. Ernst��

taxes upon the taxable property of the county, and from the date of levy a lien attaches on the

real property for the tax levied upon personal property. (Comp. Laws, 1078, 1079.)

II. It is contended by counsel for appellant that Elko county is the situs of the sheep for the

purpose of taxation, because their home ranch is in that county. We maintain that stock

running at large, or sheep herded and grazed from one county into another in search of feed

and water, and to avoid the storms of winter, have no home ranch; that it is not true, in the

nature of the herd and the way they are handled and conducted, the sheep have no home,

though they have a situs for the purpose of assessment and taxation. The home of cattle,

horses, or other animals running at large, or of sheep, herded, driven and grazed, is, we

respectfully submit, wherever they can get feed and water. So it is with the sheep in

question—their home, as contradistinguished from situs, is wherever they may be found.

III. We respectfully submit that the situs of the sheep for the purpose of taxation was, and

is, a question of fact, to be found by the jury, and is not a question of law. The court in State

v. Shaw (p. 227) said: “Where personal property is used in different counties during the year,

or stock is driven from one county to the other, or in pursuit of food naturally wanders across

the lines, there is often difficulty in determining where for the purpose of taxation its home or

situs is, but as it certainly may have a situs or locality of its own as well as real estate (People

v. Niles, 35 Cal. 286), this difficulty does not relieve us from the duty of endeavoring to

ascertain where it is. Like all disputed questions of fact, it must be determined by the

evidence.” It will be perceived that the court treats the question of situs as a question of fact, a

fact to be found by and from the evidence. It is in no wise a question of law; the jury is the

exclusive judge of the fact of the evidence, and it found for the state in this action, upon the

evidence which was substantially ponderous in favor of the state. We apprehend it will not be

set aside if there be any evidence to support it. Barnes v. Woodbury, Ford v. McGregor,

Whitmore v. McGregor, commonly known as the home-ranch cases, can readily be

distinguished from the case at hand. Ford and Whitmore ��,��

��

��26 Nev. 113, 118 (1901) State v. Ernst��

were temporarily in Nye county; they did not either of them hold or own any real property in

that county upon which a lien could attach for a tax on personal property. Their, and each of

their, personal property did not form any part of the wealth of Nye, hence there is a broad

difference between those cases and the one we are dealing with. The State has as good and

better claim for taxes on the home-ranch theory in Nye than appellants have in Elko, for it is

as essential, and even more so, to have a winter range for sheep as a summer range; it is a

matter of common knowledge that there is greater loss from the hardships of winter than in

summer; while feed may be easily obtained almost anywhere in summer, it is hard to find

suitable winter range, and Nye for fall, winter and spring is the counterpart of that ideal

summer range in Elko. (Graham v. Chautauqua, 2 Pac. 550; Price v. Kramer, 4 Colo. 547;

Metcalf v. Fisher, 31 Pac. 175; Smith v. Mason, 30 Pac. 170.)

IV. Counsel for defendants insists that all property should be assessed to the true owner, if

known, and, if unknown, then to unknown owners; this is true as an abstraction; this is the

requirement, but it does not necessarily follow that, because property is not so assessed, it

will, ipso facto, invalidate the assessment made in all cases, and under all circumstances;

there is an old saying and a true one that “circumstances alter cases,” and no better

application of that saying can be had than in the very identical case we are considering. To the

extent at least of the entries in black ink on the roll, which is of the property returned by Mr.

Ernst in the sworn statement, he (Mr. Ernst) gave in that property; it is listed as he gave it in;

it follows, therefore, as a matter of course, that he thereby became a party to the listing and

assessment of that property. That a statement was demanded of him by the assessor, that he

complied with the request, he returned the entire property as the property of Ernst & Esser,

whereas, in truth and fact according to the claim made by his evidence, the firm of Ernst &

Esser was non est, he listed the land of the Monitor Land and Live Stock Company, the

ranches known as the Pine Creek, Hay Stacks and Mosquito Creek, as the property of Ernst &

Esser. Mr. Ernst was a partner in the firm of Ernst & Esser; he also at that time ��

�� (��3�� (��3�� !��

��26 Nev. 113, 119 (1901) State v. Ernst��

was director, general manager and managing agent of the Monitor Company, and the owner

and holder of nearly all the shares of that company; if the property was listed to the wrong

person, and if assessed and taxed to the wrong owner, there is no one to blame but him, for

he, being a member of the firm, and an officer, agent of the Monitor Company, knew the land

was the company's land, therefore, when he made the return to the assessor, he made a false

return, which is made a misdemeanor by our law; when he made that statement, it being

verified, he made it under the pains and penalties of the law, yet his perfidy is relied upon to

defeat this action. This, we say, courts will not permit, or even tolerate, for in the language of

Hardwood, Judge: “Applying the maxim that one should not be allowed to take advantage of

his own wrong, plaintiffs ought not to be heard to assert such irregularity as a ground for

avoiding said tax.” (Ward v. Board, 29 Pac. Rep. 663.) Nor can the Monitor Company, of

which Mr. Ernst is director and managing agent. (State v. D. V. L. S. & L. Co., 21 Nev. 86.) It

was the duty of Mr. Ernst, when returning the statement which he made to the assessor, to

also return a statement of the property assessed in Elko county, and, when the property of the

company was assessed in Elko, to also return to the assessor there whatever of property the

company owned in Nye. (Comp. Laws, 1086.) Counsel said in his brief (p. 17, lines 7 and 9):

“The board and assessor of Nye knew that the sheep were the property of the Monitor

Company.” They knew that Mr. Ernst returned a sworn statement that the ranches before

mentioned as the property of the firm of Ernst & Esser, and all the other lands set forth

therein, which statement was not true; the answer of defendants avers the ownership to be in

the Monitor Company, which answer is sworn to by Mr. Ernst also. What can be said for the

omission of the 100 head of cattle and the 200 bucks which were, are, and never were out of

Nye since they came into it, which but for the board and assessor would have escaped

taxation? We maintain that the matter of ownership of the property assessed was a question of

fact; that when the assessor and the board brought their judgment upon questions of fact, and

honestly and fairly exercised their judgment in the manner prescribed ��

��

��26 Nev. 113, 120 (1901) State v. Ernst��

by law, courts will not interfere with their judgment. That on all matters committed to the

assessor or board of equalization such as to determine the quantum of property, its situs and

the value, which are each and all questions of fact, they act judiciously, and their judgment

thereon has the same force and effect of a judgment of a court of record, and can not be

interfered with except for fraud or the other defenses permitted in a tax suit. (State v. C. P. R.

R., 21 Nev. 178; Comp. Laws, 1124; Tehama Co. v. Bryan, 68 Cal. 57; Butte Co. v. Boyden,

68 Cal. 189; Humboldt Co. v. Dinsmore, 75 Cal. 607; Gaines v. Thompson, 7 Wall. U. S.

347; Porter v. Haight, 45 Cal. 639; People v. Hagar, 52 Cal. 179; Younger v. Board, 68 Cal.

243.)

V. Assessments are not invalidated except for cogent reason. (O'Neal v. Bridge Co., 79

Am. Dec. 669; Stoddert v. Ward, 100 Am. Dec. 84; State v. W. U. Tel. Co., supra; State v. D.

L. S. & L. Co., 21 Nev. 86; People v. Home Ins. Co., 29 Cal. 533.)

VI. An assessment of a tax against a lot is not vitiated by an error in respect to the

ownership thereof. (City of St. Louis v. De Noue, 8 Am. Law Reg. N. S. 383.)

VII. It is a universal principle that, where authority and jurisdiction is delegated to any

public officer or tribunal over a subject matter, and its exercise is confined to his or her

discretion, the acts so done are binding and valid as to the subject matter and parties.

(Freeman on Judgments, vol. 1, sec. 249 and cases cited in note 5; U. S. v. Arredendo, 6 Pet.

729; Waugh v. Chauncey, 13 Cal. 12.) The authority of the board of county commissioners in

respect to matters of equalization of taxes is judicial, and its determination thereon is

conclusive. It can only be set aside by competent authority, for one or all of the causes of

defense authorized by the statute. (Comp. Laws, 1124; Freeman on Judgments, vol. 2 sec.

531; State v. C. P. R. R. Co., 21 Nev. 178.)

VIII. The board, by its order, directed the assessor to enter upon the roll the property listed

in red ink, as well also the names of M. S. Eisner and Monitor Land and Live Stock

Company. The property or persons thus entered had not been assessed, and, having

information that they owned therein, ex industria included them in their order of direction,��

��26 Nev. 113, 121 (1901) State v. Ernst��

shows a diligence in the discharge of a public duty which is commendable, to say the least,

and is worthy of notice by other boards to which is confided this special jurisdiction. The

decision of the board was, and is, final and conclusive, as before stated, and cannot, in view

of the record, and the answer of defendants in particular, be gainsaid. All acts of the officers

whose duty it was to attend such matters was clearly within the law. (2 Dillon's Mun. Corp.

825; Gaines v. Thompson, 7 Wall. 347; U. S. v. Wright, 11 Wall. 648; Johnson v. Townsley,

13 Wall. 72; Wells Res Adjudicata, 223, 341, 342; Stanford v. Taylor, 18 How. U. S. 409; U.

S. v. Flint, 4 Saw. 43; Desty on Tax. 510; Bigelow on Estoppel, 4th ed. 66, 68; Herman on

Estoppel, 519, 526; Spaulding v. Home Assn., 87 Cal. 40; Maxwell v. Board Comrs., 119 Ind.

20; Streib v. Cox, 111 Ind. 299; State v. C. P. R. R., 21 Nev. 179; State v. V. & T. R. R., 23

Nev. 292; State v. V. & T. R. R., 23 Nev. 436.)

IX. The authority of the board being established, a mere error, or any irregularity in its

exercise, cannot make the decision void, nor subject it to collateral attack. (Freeman on Judg.,

vol. 1, 531; Logansport v. Rose, 99 Ind. 117; Farmer's Bank v. Board, 97 Cal. 327.)

X. The fact so strenuously claimed and so confidently relied upon by appellant, to wit:

That the sheep were first assessed in Elko in April or May and were not assessed in Nye until

the meeting of the board of equalization in September, “that he who is first in time is first in

right,” so to speak, and that the taxes were paid in Elko county, cannot avail appellant, and is

not the law. For, as we have already shown, the sheep were in Nye at the date of the levy of

the tax rate, eo instanti a lien attaches to the real estate, Pine Creek Ranch, and all the other

lands in Nye, for payment of personal property tax.

XI. In State v. Easterbrook, supra, the court, Beatty, C. J., said: “The citizen could not

avoid the payment of the tax by removing the property after the tax was levied. Respondent,

however, claims that this property is to be held exempt, not because it was removed from the

state before any levy was made, but before there was any assessment thereof. The revenue act

requires the county assessors to make their �� (��

(�� (�� 0��

��26 Nev. 113, 122 (1901) State v. Ernst��

assessments between the second Monday in May and the second Monday of September in

each year. But this, it appears to us, is wholly immaterial. The tax was levied prior to the 6th

of April, when defendant left the state. From the moment of the levy there was a duty or

obligation imposed on the owner of the property to pay a certain percentage of its value to the

state for taxes. The removal of the property from the state before the value thereof was

ascertained by the assessor might render it more difficult in some cases to ascertain the real

value of the property, but could not release the owner from his legal liability to pay the tax

when the amount thereof was once ascertained. We think that the property, having remained

in the state after the first Monday in April, was clearly liable for both state and county taxes.”

Precisely the same contention made in this case, that the payment made in Elko county should

defeat this action, though the property was in Nye at the date of levy.

XII. It is further contended that the board made the assessment; the facts of the case refute

this contention. The board had no assessorial power, and therefore did not attempt to exercise

any such power, but directed the assessor to assess and list on the roll the property. It simply

directed the assessor to add to the roll, to assess the property which the board found had not

been assessed. This the board was authorized to do.

Trenmor Coffin, for Appellants, in reply:

I. It was the duty of the assessor to make diligent inquiry and examination concerning all

property in his county, and to seek for such information as it was necessary for him to have,

in order to make a good and valid assessment, and not to ignore or disregard facts and

information when given him by the owners of property, or their agents. (Comp. Laws, 1084.)

In Hearst v. Egglestone, 55 Cal. 366-7, the owner of a mine and water ditch permitted his

business to be carried on under the name of “The Blue Range Mining Company.” This was

not the name of the owner. The agent of the owner told the assessor to assess the property to

“The Blue Range Mining Company.” The court held the assessment void. The �� .<C�� F��5

��26 Nev. 113, 123 (1901) State v. Ernst��

court said: “Assessors should look to the statute for directions as to their duty, not to

citizens.”

II. The sheep in question were in Nye county at the beginning of the year 1897, but left the

county early in March, and were assessed in Elko county at the end of April or the beginning

of May of that year. They were the property of The Monitor Land and Live Stock Company.

The live stock company owned no land in Nye county at Pine Creek, or elsewhere, until the

end of August, 1897. The tax levy of Nye county was on January 5, 1897. How could a lien

for the taxes on these sheep, which left Nye in March attach eo instanti on January 5th to

lands which the live stock company did not own till the end of August?


This is the statutory form of action to recover a judgment for taxes alleged to be delinquent

in Nye county for the year 1897. The verdict of the jury and the judgment of the court were

for the respondent. This appeal was taken from the judgment and from the order denying the

motion for a new trial. A great number of errors have been assigned, but it is necessary to

consider and determine one only, and that one presents the question of the validity of the

action of the board of county commissioners of said county acting as a board of equalization,

raised by the answer and proof.

It appears that the appellants Ernst & Esser, a copartnership, by George Ernst, a member

thereof, returned in the year of 1897 a statement of the taxable property of said firm to the

assessor of said county, upon which, and apparently other sources of information, the assessor

made an assessment against that firm for that year, and carried the same upon the assessment

roll.

On the 22d day of September, 1897, the board of equalization made an order to the effect

that the Monitor Land and Live Stock Company, one of the appellants herein, a corporation

organized and existing under the laws of the State of California, be added to the assessment

list of Ernst & Esser, and directed the assessor to add to the assessment of Ernst & Esser and

the said Monitor Land and Live Stock Com��

�� &8�888�� %&�18�� (��0��6��

��26 Nev. 113, 124 (1901) State v. Ernst��

pany certain lands and personal property described therein, including 10,000 head of sheep at

$1.50 per head, and certain other described land owned by one M. S. Eisner.

It appears from the assessment roll that the order was literally complied with. Prior to this

action, but on the same day, it appears that witnesses were called before the board, sworn, and

examined as to the ownership of the sheep, and it was shown by their testimony that said

sheep were owned by the Monitor Land and Live Stock Company.

It further appears, and is not disputed, that the Monitor Land and Live Stock Company had

no interest in, or claimed any in, the property included in the statement of Ernst & Esser, and

assessed by the assessor to said firm.

It further appears that the Monitor Land and Live Stock Company was the sole and

exclusive owner of the sheep, and that neither the firm of Ernst & Esser nor M. S. Eisner had

or claimed any interest in said sheep, other than such interest George Ernst may have had in

the same as one of the stockholders of said corporation. It is not claimed or pretended that

either the firm of Ernst & Esser or the Monitor Land and Live Stock Company owned or

claimed any interest in the land added to the assessment as the land of M. S. Eisner.

Under these facts the jury returned a verdict for the gross amount of the tax against all

appellants, and judgment was rendered thereon accordingly. The appellants contend that the

order of the board of equalization of September 22d is absolutely null and void, and, if this

contention is tenable, then the order and judgment should be reversed.

The board of equalization in this state is a creature of the statute. It possesses only limited

and special powers, and in the exercise of those powers its action must comply with the

provision of the statute creating it. It can only exercise such powers as are expressly granted.

(State v. Board of Washoe Co. Comrs., 5 Nev. 319; State v. Ormsby Co. Comrs., 6 Nev. 95;

State v. Central Pac. R. Co., 9 Nev. 89; Id., 21 Nev. 270, 30 Pac. 693.)

It is made the duty of the county assessor by our statute to ascertain by a diligent inquiry

and examination during a certain period of each year all real and personal property in ��

��26 Nev. 113, 125 (1901) State v. Ernst��

his county subject to taxation, to determine its true cash value, and list and assess the same to

the person, firm, corporation, association, or company owning it, and in certain contingencies

he may assess the same to unknown owners. (Comp. Laws, 1084.)

The assessor is also required to prepare a tax list or assessment roll containing certain

matters, and, when so prepared, and verified by his oath, he is required to turn the same over

to the clerk of the board of county commissioners for the subsequent action of said board

sitting as a board of equalization. (Comp. Laws, 1093, 1095, 1096.)

A subsequent section specifically defines the powers of the board of equalization. It

declares that: “The board shall have power to determine the valuation of any property

assessed and may change and correct any valuation either by adding thereto or deducting

therefrom such sum as shall be necessary to make it conform to the actual cash value of the

property assessed, whether said valuation was fixed by the owner or assessor, except that in

case where the person complaining of the assessment has refused to give the assessor his list

under oath, as required by this act, no reduction shall be made by the board in the assessment

made by the assessor. * * * The recorder of the county shall be also present and attend on the

board with an abstract of all unsatisfied mortgages and liens remaining on record in his office,

arranged in alphabetical order, for which service he shall receive no compensation, and the

board of equalization shall make use of such abstract and all other information that they can

procure from the recorder in the recorder's office, or otherwise, in equalizing the assessment

roll of the county, and may require the assessor to enter upon such assessment roll any

mortgage or lien, or other property which has not been assessed, and the assessment and

equalization so made shall have the same force and effect as if made by the assessor before

the delivery of the assessment roll by him to the clerk of the board of county commissioners.

* * *” (Comp. Laws, 1098.)

Two powers are conferred upon the board by the provisions of this section: First, it is

authorized to determine the true cash value of the property upon the tax roll as made by the�� <�� 5

��26 Nev. 113, 126 (1901) State v. Ernst��

assessor; second, to require the assessor “to enter upon such assessment roll property which

has not been assessed.” It can make but two changes in the roll as prepared by the

assessor—change the valuation, and the necessary change required by the entry of property

not assessed. The language used is plain and clear. No authority is given to the board of

equalization, either expressly or impliedly, to add the name of the Monitor Land and Live

Stock Company to the assessment of Ernst & Esser, and thereby create a liability, as in this

case, against the company, for property properly assessed in its owner's name, where the

person whose name has been added by the order makes no pretense to the ownership of the

property. It was, in effect, an assessment by the board of equalization of the Monitor Land

and Live Stock Company for the property of Ernst & Esser.

It is neither pretended nor claimed that the Monitor Land and Live Stock Company ever

owned or claimed any right, title, or interest in or to the property included in the statement of

Ernst & Esser for the year 1897; yet the order of the board, the verdict of the jury, and the

judgment rendered thereon fix a liability upon the company for the taxes upon the said

property.

Again, the board, by its order, directed the assessor to add to the assessment of Ernst &

Esser and the Monitor Land and Live Stock Company certain real and personal property,

including the 10,000 head of sheep.

It does not appear that the company was assessed, except by the void action of the board,

above referred to. The board had the evidence before it that Ernst & Esser did not own the

sheep; yet the order, the verdict of the jury, and the judgment rendered thereon fixed a

liability upon Ernst & Esser for the taxes upon the property of the company, which could not

have been properly assessed to them by the assessor.

If it can be claimed that under the last clause of Section 1098, quoted and cited above, the

board of equalization possesses the power to assess property which has not been assessed by

the county assessor, it does not necessarily follow that it has the power to assess it to a person

who is shown not to be the owner before such assessment is made, and thereby create any

personal liability for the taxes thereon.

��26 Nev. 113, 127 (1901) State v. Ernst��

The fallacy of any such assumption is illustrated by the order of the board of equalization,

by which it arbitrarily directed the assessor to add to the amended assessment list of Ernst &

Esser and the Monitor Land and Live Stock Company certain “lands owned by M. S. Eisner.”

If this method of procedure is upheld, then can the burdens of taxation be made unequal,

and persons and property can be held for taxes which are neither in law nor equity a charge

against either.

It is made the duty of the assessor to assess all property to the person, firm, etc., owning it,

except in a certain contingency, when he may assess it to unknown owners.

It has been held by the courts of other states under similar provisions that property must be

assessed to the true owner, if known, otherwise the assessment is void; and this court has

intimated that such is the rule of our statute. (State v. Central Pac. R. Co., 21 Nev. 256, 30

Pac. 686; Reese v. Sherrer, 49 N. J. Law, 610; Kelsey v. Abbott, 13 Cal. 609; Blatner v.

Davis, 32 Cal. 328; People v. White, 47 Cal. 617; Grotefend v. Ultz, 53 Cal. 666; Hearst v.

Egglestone, 55 Cal. 365; Bosworth v. Webster, 64 Cal. 1, 27 Pac. 786; Grimm v. O'Connell,

54 Cal. 522; Crawford v. Schmidt, 47 Cal. 617; Brady v. Dowden, 59 Cal. 51; 25 Am. & Eng.

Enc. Law, 213, 214.)

It therefore seems clear to us that the board of equalization exceeded its power in making

the order of September 22, 1897, and that its action in the premises is absolutely void. It

appears from the record that the appellants Ernst & Esser have tendered (and kept good their

tender) the amount of taxes due upon the property assessed to them, and that a retrial of the

case will not be necessary. We have, therefore, not determined the many other questions

argued and submitted, deeming it unnecessary so to do.

For the reasons given, the judgment and order appealed from will be reversed.


Fitzgerald, J., being disqualified, did not participate.

____________

��26 Nev. 128, 128 (1901) Schwartz v. Stock��

[No. 1592.]

R. H. SCHWARTZ, a Surviving Partner of the Firm of Stock & Schwartz, a Copartnership,

Appellant, v. WILHELMINA STOCK, and WILHELMINA STOCK, as Executrix of the

Last Will and Testament of William Stock, Deceased, Respondents.

Appeal and Error—Presumption of Regularity of Proceedings—Special Findings After

Judgment—Statutes—Failure to Assign Error—Evidence—Pleading New Cause of Action.—Limitation of

Action.

1. Though the record showed that the court refused to make certain specific findings on the issues made by the

pleadings, such refusal will not constitute reversible error, in the absence of any affirmative showing in the

record that the court failed or refused to make findings of fact as required by Comp. Laws, 3277, providing

that, on the trial of every issue of fact by the court without a jury, its decision in writing, stating the facts

found and the conclusions of law, shall be filed with the clerk within ten days after trial, since a

presumption of the regularity of the proceedings exists.

2. Under Comp. Laws, 3277, requiring the court, on the trial of every issue of fact without a jury, to file its

decision in writing, stating the facts found and conclusions of law, within ten days after the trial, specific

findings of fact, on the issues made by the pleadings, requested after the rendition of judgment, were

properly refused, as the statute does not authorize such practice.

3. It was not error for the court to invite another judge, who had not heard the testimony, to sit with him during

the argument of a case, and to consult with such judge in regard to the same.

4. In an action to recover alleged partnership property after the decease of an alleged partner, plaintiff's

testimony authenticating books containing the alleged partnership transactions, and also plaintiff's

individual business accounts, was properly excluded as relating to transactions with a deceased person.

5. Under Comp. Laws, 3292, prescribing that on motion for a new trial the statement of the action shall specify

the particular errors relied on, and Section 3427, requiring a statement of the case annexed to the record for

appeal to specify the particular errors, an alleged error in refusing to allow plaintiff to rebut, by his own

testimony, the testimony of other witnesses, will not be considered, where such action of the court was not

assigned as error.

6. Under Comp. Laws, 3286, requiring that the point of exceptions shall be particularly stated, an exception to

the rejection of certain evidence will not be considered where no point to the exception was stated.

7. In an action to recover alleged partnership property, as the survivor of the partnership, where the court, after

the submission of the case, set aside the submission, and permitted plaintiff to amend his complaint by

stating that plaintiff owned only a certain proportion of the property, instead of all, such amendment stated

a new cause of action, and hence an amended answer, setting up the statute of limitations, was properly

allowed.


8. An action to recover sheep alleged to have been owned jointly with defendant's testator, where the joint

ownership was denied by the deceased in 1895, was barred by Comp. Laws, 3718, providing that an action

for the recovery of personality must be commenced in three years, since an action of replevin could have

been maintained on the denial of ownership, the property being severable.

9. Where the record discloses a substantial conflict in the evidence, the judgment of the trial court will not be

disturbed by the supreme court on appeal, as against the weight of the evidence.

Appeal from the Fifth Judicial District Court, Humboldt County; G. F. Talbot, Judge.

Action by R. H. Schwartz, as surviving partner of the firm of Stock & Schwartz, against

Wilhelmina Stock, as executrix of the estate of William Stock, deceased. From a judgment in

favor of defendant, plaintiff appeals. Affirmed.


R. M. Clarke and H. Warren, for Appellant:

I. When two or more persons, upon an express or implied agreement, unite in a common

fund their separate property, and thereafter contribute their services and money in fixed

proportions to its management and control thereof, with a view to joint profit, and in the same

proportion divide the profits and losses of the business, each acting and standing in relation of

principals to each other in the transaction of the business, the enterprise and management of

the property, as between such persons, relation of partnership is created, and is presumed to

continue until a dissolution and settlement of the partnership affairs. (Civil Code N. Y. 1283;

Dixon Law of Part. 1; 111 Kent, secs. 23, 26, 27; Pollock Dig. Law of Part., sec. 4, 3d ed.;

Parsons on Part. 59; I Lindley on Part. 174; Dwinel v. Stone, 30 Me. 384; Everett v.

Chapman, 6 Conn. 374; Terrill v. Richards, 1 Nott & McCord, 20; Daggett v. Jordan, 2 Fla.

541; Brow's Executors v. Higginbotham, 27 Am. Dec. 618; Seabury v. Johnson, 11 L. R. A.

136; Spalding v. Stubbing, 39 Am. St. R. 889; Krusler v. McCants, 53 Am. D. 713; 1 Jones

on Evidence, 48; 1 Greenleaf on Evidence, 42, and authorities there cited; Campbell v.

Whitney, 39 Ala. 172; Kayser v. Maugham, 6 Pac. R. 805; Groves v. Tallman, 8 Nev. 178.)

II. Adverse possession of partnership property is no ��


defense, except it shall have continued long enough to raise the bar of the statutes. (19 Am. &

Eng. Ency. Law, pp. 362-66; 35 Dak. 576; Stevens v. Yeatman, 19 Mo. 480; 1 Lindley on

Part., note 1, p. 526; 5 Ark. 270; 1 Lindley on Part., p. 284 and note 1; 3 Cal. 347; Krusler v.

McCants, 53 Am. D. 712; Crossman v. Lehman, 25 Am. R. 684; Damer v. Hautfer, 21 Am.

D. 370.)

III. This action being commenced within the time prescribed by the law of this state for

the commencement of civil action, and before any settlement of the partnership affairs, the

defense of the statute of limitations has no application. (Comp. Laws, 3718, 3722, 3727;

Gleason v. White, 34 Cal. 253; 54 Cal. 463; Hill v. Haskins, 42 Cal. 159; 9 Cal. 616;

Goldsmith v. Echold, 33 Am. St. R. 97; Sindlers v. Walter, 31 Am. St. R. 353.)

IV. When a partnership is dissolved by the death of one of its members, the surviving

partner is entitled to the possession of the partnership property. (Allen v. Hill, 16 Cal. 113;

Gen. Laws Nev. (Bailey & Hammond), sec. 2867; Parsons on Partnership, sec. 377; 9 Cal.

616; 10 Cush. 462; Hogle v. Lowe, 12 Nev. 286; Beck v. Thompson, 22 Nev. 109; 1 Lindley

on Part., star p. 664, bottom page 893, star p. 652, note 1; Cobble v. Tomlinson, 50 Ind. 550;

Arnold v. Haggerman, 14 Am. St. R. 712; Goldsmith v. Echold, 33 Am. St. R. 97, and cases

cited; Parker v. Parker, 99 Ala. 239.

V. In the case of Groves v. Tallman, 8 Nev. 180, in its opinion the court says: “As

between partners the ultimate facts from which a partnership is deduced are, first, the

agreement, second, its execution, summed up as an executed agreement. There can be no

partnership between parties, so far as they are solely concerned, without a consent thereto and

fulfillment thereof. A partnership agreement may be implied, as well as expressed, that

property was owned, losses shared, and profits divided in a certain ratio; uncontradicted,

would prove a partnership between the parties. In the absence of an express agreement so to

own, or in the face of an express agreement to the contrary, they might be susceptible of

explanation. The ultimate fact to be proven between the partners is the executed agreement;

that, of course, may be shown in various ways. From that proven ultimate fact, �� 5


the aggregation perhaps of many, the law draws the inference of partnership.” Citing: Dwinel

v. Stone, 30 Me. 384; Everett v. Chapman, 6 Conn. 347, Terrill v. Richards, 1 Nott &

McCord, 20; Daggett v. Jordan, 2 Fla. 541.

VI. Lindley, in his work on Partnership (5th ed., vol. 1, pp. 178-180), says: “As

partnerships often exist in this country for long terms of years without any written agreement,

the absence of direct, documentary evidence of any agreement for a partnership is entitled to

little weight. As between the alleged partners themselves, the evidence relied on, where no

written agreement is forthcoming, is their conduct, the mode in which they have dealt with

each other, and the mode of which each has, with the knowledge of the other, dealt with other

people.”

VII. It is an admitted fact that Stock excluded Schwartz August 10, 1895, and from that

day until he suddenly died, November 25, 1898, he kept Schwartz out and refused to settle, or

permitted Schwartz any hand in the management of proceeds of the business. This is an

action for conversion, and could not have been maintained in his lifetime against Stock, for

the reason, in his lifetime, Stock was equally entitled with the plaintiff to the possession of

property and proceeds of sale, and one partner cannot maintain an action against his copartner

for the delivery of personal property belonging to the partnership, or for the proceeds of sale.

In the case of Buckley v. Carlisle, infra, the court says: “The jury found specially that the

plaintiff and defendant were partners in reference to the subject matter of action. The mere

statement of the finding is sufficient to show that the plaintiff has no right to recover.” The

same court, in Miller v. Brigham, infra, says it is unnecessary to go over the authorities which

support this proposition. (Buckley v. Carlisle, 2 Cal. 420; Miller v. Brigham, 50 Cal. 615;

Whitesides v. Collin, 7 Dana, 283.) Not being maintainable against Stock, the statute was not

in motion in his lifetime as to this action or cause thereof. Stock died November 25, 1898.

About this time, and not before, the defendant took possession of the property declared on,

and January 28, 1899, filed an inventory as executrix, including the property as property of

the estate of William Stock, deceased. This action was �� (��&1��&=22��

��


commenced May 15, 1899, or less than six months after the wrongful taking, as to these

defendants. It is therefore manifest the defense of the statute is of no avail. It may be that

counsel, in pleading the statute, take the position that, had any kind of action been

commenced by Schwartz, say for accounting, the defense of the statute of limitations would

have, if pleaded, been a bar. For the sake of the argument we will assume that November 25,

1898 (the day Stock died and the extreme limit of his possession after his exclusion),

Schwartz had sued Stock for an accounting, alleging a partnership, and that Stock had

pleaded the statute to the action as a defense. Divesting the question of all intricacy, we will

admit that the statute of limitations is a good defense for an account of the dealings and

transactions of a partnership which had been dissolved for more than four years. We will go

further, and admit that the exclusion of Schwartz by Stock was a dissolution of the

partnership, and set the statute in motion. On the contrary, it will, of course, be admitted,

being the law, that the statute invoked has no application before the exclusion; that before

that time the partnership was subsisting, and each partner enjoying and exercising all his

rights in his affairs. The dissolution occurring August 10, 1895, the action for accounting

would be barred August 10, 1899, that is to say, in four years. The supposititious action being

commenced November 25, 1898, was not within the bar, and the defense would have availed

Stock nothing. The fact that Stock died November 25, 1898, does not aid this defendant, as

the statute in such cases is extended to one year after the issuance of letters testamentary, or

administration, which in this case were granted January 28, 1899. (Comp. Laws, 2722, 3727;

White v. Conroy, 66 Cal. 383.) The cause of action in this case in truth arose at the time of the

unlawful taking; but, however viewed, it will be seen that the statute of limitations has no

application to these cases, and the defense is unavailing.

VIII. The further plea, to wit: That ever since August 10, 1895, to the time of his death,

Stock excluded Schwartz, is neither an equitable or legal defense, unless the exclusion

contained continued long enough to raise the bar of the ��


statute of limitations. The exclusion, at the most, amounted only to a dissolution; the

partnership still continued, restricted only in the authority of the parties to bind each other in

a new contract. (1 Lindley on Partnership, note 1, p. 526.) Stock acquired no title by

exclusion, nor was he freed from the obligation to account (5 Ark. 270), each having an

equitable lien on the partnership property for the purpose of having it applied in discharge of

the partnership debts, if any; if none, for the payment of what might be due to either

respectively after deducting what might be due from them as partners to the firm (2 Lindley

on Part., and authorities cited in note 1, p. 284; 3 Cal. 347.)

IX. Nor did the possession by Stock of the partnership property sever the joint estate, or

vest in him a separate interest. After dissolution, inter vives, mutual agency continues with

some restriction until the affairs of the partnership are administered. (Krusler v. McCants, 53

Am. Dec. 712; Crossman v. Lehman, 25 Am. R. 684; Donner v. Stauffer, 21 Am. Dec. 370.)

X. The court erred in denying the right of plaintiff by his own testimony to rebut the

testimony of Harvey and Stevens. The exclusion is admitted, but the denial of interest is not

admitted, neither is it the truth. Harvey's complete testimony refutes this, even taken most

strongly against the plaintiff. But Harvey and Stevens both testified that, in the quarrel

between Stock and Schwartz, Stock denied the interest of Schwartz. The denial is of no

greater consequence, if true, than the admitted exclusion, but it was not a transaction with the

deceased person in any sense. The question was on the fact whether or not the denial was

made as testified to, and plaintiff was a competent witness in rebuttal of the testimony

offered. Schwartz being the survivor of a partnership and suing in that capacity, is not in law

within application of Section 379 of the act of civil procedure. The action is brought for the

benefit of the firm of Stock & Schwartz, and not for the benefit of Schwartz personally. The

fact that the widow of the deceased partner is defendant, either personally or as executrix, in

no sense affects the question. Schwartz, as the surviving partner, was a com��

��


petent witness under the common law, and is not within the class designated as incompetent

under our statute. (2 Greenleaf, 15th ed. sec. 486; 13 Nev. 279.)

N. Soderberg, also for Appellant:

I. The court erred prejudicially to appellant in refusing his requests for findings. (Stats.

1893, 116; Warren v. Quill, 9 Nev. 259, 264; Welland v. Williams, 21 Nev. 230, 234; Speegle

v. Leese, 51 Cal. 415, 28 Cal. 304; 35 Cal. 191; 62 Cal. 515; 19 Cal. 109; 42 Cal. 386.)

II. The evidence established a copartnership relation between Stock and Schwartz as to

the property in controversy. But, even if it had been true that they owned it in a different joint

relation, plaintiff was entitled to recover. No statute of limitations was pleaded until several

weeks after the trial, and after the arguments. The attempted plea of “prescription” was

nugatory. Courts administer relief, whether legal or equitable, as required by the facts of each

case. A plaintiff can be sent out of court only when upon his facts he is entitled to no relief

either in law or in equity. (Crain v. Aldrich, 38 Cal. 520; 20 N. Y. 64.)

III. Where several persons carry on the same business together, they are presumed to be

partners. And for stronger reason, when several persons participate in the profits of a business

a partnership is presumed. Upon this principle the partnership agreement and relation

between Stock and Schwartz was clearly established by the evidence. And there is no

countervailing evidence in the record worthy of mention. (1 Burr W. Jones, Law of Evidence,

48; McMullan v. Mackenzie, 2 G. Green (Ia.) 368; Forbes v. Davidson, 11 Vt. 660.)

IV. A mere joint ownership in personal property, it is true, does not constitute a

partnership. But Stock and Schwartz not only owned the property jointly, but they carried on

the business of sheep-raising in the partnership name and style of Stock & Schwartz,

conducting themselves as partners, which raises a presumption of a partnership. (17 Am. &

Eng. Ency. Law, p. 912.) The question whether the sheep were or were not copartnership

property is “one of the intention of the partners to be deduced from their �� 5


acts and all the circumstances of the case.” (17 Am. & Eng. Ency. Law, 935-36.)

V. Schwartz's supplementary oath was competent for authenticating and laying foundation

for introduction of the copartnership books. (Jones v. Gammans, 11 Nev. 249; Buckley v.

Buckley, 12 Nev. 442; 16 Nev. 180; Roch v. Ware, 71 Cal. 375; Landis v. Turner, 14 Cal.

573; Strickland v. Brazee, 27 Ill. App. 595; Lewis v. McGinnis, 30 Fla. 419; Dysart v.

Furrar, 90 Iowa, 59.)

VI. Presentation of plaintiff's demand to executrix before bringing action was

unnecessary. Any property in the hands of the executrix, which is not a legal asset, may be

recovered without presenting a claim against the estate. (People v. Houghteling, 7 Cal. 348,

352; Gunter v. James, 9 Cal. 643; In re Williams' Estate, 32 Pac. Rep. 242, bottom of page;

Hardin v. Sinclaire, 115 Cal. 460; Eldred v. Warner, 6 Ariz. 194-5; Stuttmeister v. Superior

Court, 72 Cal. 489; Pardin v. Archeo, 7 So. Dak. 54.)

VII. The court abused its discretion in permitting defendant, after the trial and arguments,

to plead the statute of limitations. In deference to the suggestion of the court, and to meet the

erroneous opinion of the court that the testimony showed that Stock and Schwartz were

cotenants in the sheep, plaintiff amended his complaint. After this amendment, “in

furtherance of justice,” the court, without any showing by affidavit or otherwise, permitted

defendant to plead that the demand of plaintiff was barred by lapse of time. Having

announced that plaintiff was equitably entitled to recover, plaintiff's recovery was prevented

by pleading the three-years statute of limitations, and this without any evidence in support of

the pleas. All this was erroneous. Amendments to pleadings are only allowable in furtherance

of justice, never for the purpose of defeating it. (Heegaard v. Dacota La. T. Co., 3 So. Dak.

569, 573-77; Cook v. Spears, 2 Cal. 409; Fielding v. Fitzgerald, 130 Ill. 437, 440-41;

Steward v. Sander, 16 Cal. 372; Robbins v. Treadway, 19 Am. Dec. 152; Newall v. Hussey,

36 Am. Dec. 717; Todman v. Purdy, 5 Nev. 238; Bullion M. Co. v. Croesus M. Co., 2 Nev.

168; Tucker v. Mayor, 4 Nev. 30.)

VIII. The conduct of the acting judge, in permitting Mr.


Curler, during the argument, to act as “advisory judge,” was a great irregularity and reversible

error. Mr. Curler was neither de facto nor de jure a judge in the cause. He was a stranger, and

he manifestly participated in the decision of the case to the injury of appellant. The power and

duties of a judge are strictly personal in their nature, and are to be performed by such officer

alone. (17 Am. & Eng. Ency. Law, 2d ed. p. 717; State v. Noble, 113 Ind. 362, 363, 364, 369;

Brittan v. Fox, 39 Ind. 369; McClure v. State, 77 Ind. 287; Van Slyke's Case, 39 Wis. 390;

Corgor v. Fee, 119 Ind. 536; Brownlee v. Hewitt, 1 Mo. App. 360.)

A. E. Cheney and Frank X. Murphy, for Respondents:

I. The real and only substantial questions involved were: (1) Was there a copartnership

between plaintiff and William Stock, as alleged? (2) Did the defendant as executrix convert

the property to her own use or wrongfully detain it from the plaintiff? The value of the

property was not questioned.

II. The first case, No. 1591, is an action for damages for the conversion of 1,800 mutton

sheep and 3,200 lambs.

III. As the very substance of the action is that the defendant, as executrix, converted the

property of the plaintiff, the failure to prove any conversion by her as executrix ends this case.

IV. It is equally essential to allege and prove the conversion, whether the action is

founded upon a claim as surviving partner or joint owner, and, as no conversion by this

defendant was proven, both claims must fail.

V. It is also plain that for R. H. Schwartz to recover, in either capacity, for a conversion

by William Stock, before an action thereon can be maintained against his estate, that claim

must have been presented to the executrix for allowance.

VI. The second action is in replevin to recover a band of 5,000 sheep and their increase.

Although the engrossed and amended complaint sets forth the share or interest claimed by the

plaintiff in the copartnership, he still seeks to recover the whole band and their increase. If the

plaintiff is the surviving partner, he probably is entitled to recover the possession of the

partnership property from the representative ��


of the deceased partner. But, if he is simply a joint owner or tenant in common, he certainly is

no more entitled to the exclusive possession of the whole than his cotenant, and cannot

maintain replevin for the whole of the common property. (Freeman on Cotenancy, 2d ed. 289;

Alford v. Bradeen, 1 Nev. 229; Hewlett v. Owens, 50 Cal. 474; Balch v. Jones, 61 Cal. 234.)

VII. We contend that the court was wrong in allowing the amendment inserting the claim

as joint owner, under an application to make the pleadings conform to the proof, because the

amendment set up a new and distinct cause of action. (1 Ency. Pl. & Pr. 583, 569; Allen v.

Brooks, 60 N. W. 253; Arnold v. Angell, 62 N. Y. 508; Freeman v. Grant, 132 N. Y. 22;

Marshall v. Golden Fleece Mg. Co., 16 Nev. 156.) “If an amendment is allowed in favor of

one party to a suit, and a corresponding amendment is rendered thereby necessary on the part

of the adverse party, a refusal to allow the latter would be appealable.” (Smith v. Smith, 31 S.

E. 471; McCausland v. Ralston, 12 Nev. 202.) “But if the plaintiff amend his declaration, the

defendant may plead the statute anew.” (State v. Green, 4 Gill & J. 381; Harriott v. Wells, 9

Bosw. (N. Y.) 631.) The doctrine that the plea of the statute of limitations is an

unconscionable defense, no longer prevails. (1 Ency. Pl. & Pr. 520; Wood v. Carpenter, 101

U. S. 135; Mitchell v. Campbell, 13 Pac. 190.) All legal defenses stand upon an equal footing.

(1 Ency. Pl. & Pr. 520, note 3.) Amendments are allowed or refused in the sound discretion of

the court, and such action is never disturbed, except where there has been a palpable abuse of

that discretion. (1 Ency. Pl. & Pr. 524-527.) When a new cause of action is brought in by way

of amendment, the statute runs until the amendment is made and filed. (Holmes v. Trout, 7

Pet. 171; Anderson v. Mayers, 50 Cal. 525; Aitkinson v. Amador C. Co., 53 Cal. 102; Nugent

v. Adsit, 93 Mich. 462, 53 N. W. 620.)

VIII. An action for conversion probably is governed by the four-year clause (Section 18 of

the statute of limitations), and the four years had no more than expired before this amendment

was allowed. (Comp. Laws, 3722.)

IX. An action in replevin, or for the recovery of specific ��


personal property, is barred in three years. (Comp. Laws, 3718.)

X. If it is contended that sheep are property of equal value and divisible by numbers, so

that each cotenant may claim a division by numbers, then the exclusive appropriation of the

whole flock in August, 1895, constituted a conversion and an unlawful withholding, and a

right of action commenced then, which was never asserted until the engrossed complaint was

filed, more than four years thereafter. (Freeman on Cotenancy, 2d, ed. 319.) It is therefore

submitted that a right of action as joint owner of a part of these sheep arose, if at all, against

William Stock when he took and asserted exclusive control and possession of the whole band

in August, 1895, and wholly excluded R. H. Schwartz therefrom; that action was not

commenced until the engrossed complaints were filed February 9, 1900; that the court

properly allowed the defense of the statute of limitations to be pleaded, and that, under the

facts as stipulated and proven, those pleas constitute a perfect defense to each action, and

require that the judgment in each case be affirmed.

XI. No action as joint owner can be maintained against this defendant, because no claim

was ever presented against the estate which she represents.

XII. None of the errors assigned, respecting the rulings of the court upon admission or

exclusion of evidence, can be considered, because no valid exceptions were taken to such

rulings. (Comp. Laws, 3286-7; Sharon v. Minnock, 6 Nev. 382; Gooch v. Sullivan, 13 Nev.

81; Rosina v. Trowbridge, 20 Nev. 118; McGurn v. McInnis, 24 Nev. 372; McNamee v.

Nesbitt, 24 Nev. 400; Lewis v. Hyams, 25 Nev. 242; Paul v. Cragnaz, 25 Nev. 293.) The

statement shall specify the particular errors upon which the party will rely, and, if no

specifications be made, the statement shall be disregarded. (Comp. Laws, 3427; Corbett v.

Job, 5 Nev. 205; Sherman v. Shaw, 9 Nev. 151; Roberts v. Webster, 57 Pac. 180.)

XIII. The failure of the court to make findings was not erroneous or prejudicial. No

sufficient request was made, nor any valid exception reserved. “In cases tried by a court

without a jury, no judgment shall be reversed for want of a finding, * * * unless exceptions be

made in the court �� G�G�G�� G�G�G

�� G�G�G �� 5


below to the want of a finding; * * * provided, such exceptions to * * * want of a finding

shall be filed in the court within five days after the making of the * * * decision to which

exception is made.” (Comp. Laws, 3858.) The exceptions covered by the provisions of the

practice act are those made to some action taken by the court, at any “time from the calling of

the action for trial to the rendering of the verdict or decision.” (Comp. Laws, 3285.) And it is

only “errors of law occurring at the trial” that is ground for a new trial. (Comp. Laws, 3290.)

This action of the court, of which complaint is made, occurred after trial and decision, and is

not a ground for a new trial, which can be reached upon this motion, because the ruling was

made after the decision of the cause. Neither does it appear that the request to find was

entered in the minutes of the court at the time of the submission of the cause, and it was not

error to refuse to find. (City of San José v. Shaw, 45 Cal. 178.) “But no exception shall be

regarded on a motion for a new trial or on appeal, unless the exception be material, and affect

the substantial rights of the parties.” (Comp. Laws, 3285, 3166.) “The findings of the court

shall be statements of the ultimate facts only, and not of the probative facts.” (8 Ency. Pl. &

Pr. 941; Perkins v. Sierra Nevada S. M. Co., 10 Nev. 413.) “If the request is for several

findings, and the court refuses them as a whole, a general exception to the refusal is

insufficient, if any of the requested findings was properly denied.” (8 Ency. Pl. & Pr. 278.)

XIV. R. H. Schwartz was not competent to testify as to any fact which transpired before

the death of William Stock. “No party shall be allowed to testify * * * when the facts to be

proven transpired before the death of such deceased person.” (Comp. Laws, 3474.) “As to

such transactions, neither party is allowed to testify.” (Gage v. Phillips, 21 N. Y. 155-156.) It

makes the party incompetent to testify, and does not go to the competency of the evidence

itself. (McDonald v. Young, 81 N. W. 155; Burdick v. Raymond, 77 N. W. 833; McHigh v.

O'Dowd's Est., 49 N. W. 216.) The statutory prohibition includes proof of transactions with

deceased persons by facts and circumstances which indirectly or by deduction lead to and

prove such transactions as well as the ��


direct proof of the transaction itself. (Dooley v. Bacon, 70 N. Y. 34; Koehler v. Addler, 91 N.

Y. 657; Cliff v. Moses, 112 N. Y. 431; Mills v. Davis, 113 N. Y. 243.) The statute covers all

cases coming within its terms. “The safe guide and decisive test is found in the inquiry: Were

the deceased alive, could he testify to the same matters?” (Perkins v. Perkins, 58 N. H. 405,

38 Atl. 1049.) “The words of exclusion are as comprehensive as language can express.”

(Holcomb v. Holcomb, 95 N. Y. 325.)

XV. A person claiming to be a partner cannot testify that a deceased person was his

partner in an action against his representatives, nor can he establish that fact by his own

testimony indirectly, and by verifying the correctness of his accounts, identifying the

signatures of letters, receipts, bills of sale or other documentary evidence, nor that the

deceased made an entry in a book, show such partnership. (Adams v. Morrison, 113 N. Y.

152, 20 N. E. 829; Charlotte Oil Co. v. Ripley, 123 N. C. 656, 31 S. E. 879; Lyon v. Pender,

118 N. C. 150, 24 S. E. 744; McCorkendale v. McCorkendale, 87 N. W. 754; Smith v. Perry,

73 N. W. 282; Henderson v. Henderson, 98 Ga. 147, 26 S. E. 482; Berry v. Stevens, 69 Me.

290; 3 Jones on Evidence, sec. 794, p. 1732; Cooper v. Wood, 27 Pac. 884; Underhill on

Evidence, p. 441; Dennison v. Dennison, 35 Md. 361; Adams v. Edwards, 115 Pa. St. 211;

Downie v. Andrus, 43 Mich. 65; Silver v. Wooster, 73 Me. 322; Kimball v. Kimball, 16 Mich.

211; Rice v. Martin, 7 Saw. 337, 346; Peck v. McKean, 45 Iowa, 18; Wilson v. Wilson, 52

Iowa, 42; Kurd v. Brown, 49 S. W. 999; Sabre v. Smith, 62 N. H. 663; Howard v. Zinkelman,

14 S.W. 59.) Entries made by Schwartz in his own book are not competent to prove that

Stock was his partner. (Robbins v. Warde, 111 Mass. 244; McNamara v. Draft, 40 Iowa, 413;

Abbott v. Pearson, 130 Mass. 191.)

XVI. A partnership is created solely by the voluntary contract of the parties, which

supplies the rules of its government. It never arises by operation of law. (Groves v. Tallman,

8 Nev. 178, 180; Story on Partnership, 7th ed. 3, 5/6; Sargent v. Collins, 3 Nev. 260, 264;

Freeman on Cotenancy, sec. 111, pp. 177-8; Hallenback v. Rodgers, 40 Atl. 516.) “It is

requisite that they shall share something by virtue of ��5


an agreement to that effect.” (1 Lindley on Partnership, 2d ed. pp. 1, 2.) “The intention of one

party alone cannot create a partnership without the assent of the other.” (Phillips v. Phillips,

49 Ill. 437; Porter v. McClure, 15 Wend. 189.) “No man can be a partner of others without

their consent.” (Channel v. Fassitt, 16 Ohio, 169.) “Persons cannot be made to assume the

relationship of partners, as between themselves, when their purpose is that no partnership

exists.” (London Assurance Co. v. Drennan, 116 U. S. 472.) “It is essential to the existence of

every contract that there should be reciprocal assent to a definite proposition.” (Hillyer v.

Overman S. M. Co., 6 Nev. 51; Morrill v. Tehama M. & M. Co., 10 Nev. 125.) “Actual

intention is necessary to constitute a partnership inter esse. There must be a joint undertaking

to share in the profits and losses. Each party must, by agreement is some way, participate in

the losses as well as the profits.” (Wheeler v. Farmer, 33 Colo. 213.)

H. Warren and N. Soderberg, for Appellant, in reply:

I. As to what constitutes proof of copartnership inter esse: Abbott's Trial Evidence, pp.

207, 209, 226, 227, paragraphs 11, 14, 47; Robinson v. Greene, Admr., 5 Harring. (Del.) 115;

Tuck v. Barbour, 64 Penn. St. 120, 121; Lirtner v. Milliken, 47 Ill. 178, 179.

II. As to the competency of Schwartz to testify concerning the partnership books: Higgs v.

Hanson, 13 Nev. 356; Abbott's Trial Ev. p. 205, par. 4.

III. That Mrs. Stock is liable in her representative capacity: 11 Am. & Eng. Ency. Law, 2d

ed. 942, 944; Simpson v. Snyder, 54 Iowa; DeValengin v. Duffy, 14 Pet. U. S. 261.

IV. That one cotenant may maintain replevin against another for sheep: Piazzek v. White,

33 Am. St. Rep. 211.

[The foregoing briefs were filed in Cases No. 1591 and No. 1592.]


This action was instituted by the appellant on the 15th day of May, 1899, to recover the

possession of 5,000 head of sheep, of the value of $15,000. He bases his right to recover ��0��H�0��F��/��0�� +1�� ,��&=2=�


as the surviving partner of the firm of Stock & Schwartz, of which firm the testator, William

Stock, died on the 25th day of November, 1898.

The appellant alleges in his complaint, among other matters, that he and the said decedent,

on the ___ day of June, 1890, entered into an agreement of copartnership to engage in, and

under said agreement did engage in, the business of buying, selling, and raising sheep under

the firm name of Stock & Schwartz, and were so engaged at the time of the death of said

Stock; that at the time of the death of said Stock he and appellant were the owners in

copartnership of the sheep in controversy; that the respondent, in 1899, wrongfully took, and

ever since unlawfully withholds and detains, the said property from the appellant.

The answer denies the partnership and all other material averments of the complaint. It

affirmatively shows that Wilhelmina Stock was, at the time of his death, the sole and

exclusive owner of the property in controversy, and that she, as executrix, was, from the time

of her appointment, the owner, and entitled to the exclusive possession, of the property. She

further denied, by plea, that the appellant had any right, title, or interest in or to the property

in controversy as an individual surviving partner, or in any capacity whatever. Upon the trial,

judgment was for the respondent.

The appeal is taken from the judgment and the order denying the motion for a new trial.

It is claimed by the appellant that the court erred in refusing to make findings of fact, and

in refusing to make findings of fact as requested by him.

It appears from the record that after judgment the appellant requested certain specific

findings upon the issues made by the pleadings, which request was refused, and an exception

taken to the action of the court in so ruling.

It does not appear from the record why this request was refused, neither does it appear

from the exception taken or otherwise how or in what manner the appellant was injured by

this action of the court.

By Section 182 of the civil practice act (Comp. Laws, 3277) it is provided that, upon the

trial of every issue of fact by the court when sitting without a jury, its decision shall be

ren ��

��


dered in writing by the court or judge who tried the cause, and filed with the clerk within ten

days after the trial. In rendering such decision the court or judge shall briefly state the facts

found and the conclusions of law reached, and within a specified time the attorney for the

prevailing party shall draw complete findings of fact and conclusions of law, and present

them to the judge for his signature, and judgment shall be entered in accordance therewith.

Whether or not failure to comply with the requirements of this section would invalidate the

judgment is not before us in this case. The record does not affirmatively show that the court

either failed or refused to make the findings of fact required by the section.

This court will not indulge in presumptions against the regularity of the proceedings of the

trial court. It has repeatedly held that all presumptions favor the regularity of the proceedings

of that court, and that where error is alleged it must be affirmatively shown by the record

before this court will reverse an order or judgment of the lower court. (Champion v. Sessions,

2 Nev. 271; Nosler v. Haynes, Id. 53; Lady Bryan Gold & Silver Min. Co. v. Lady Bryan Min.

Co., 4 Nev. 414; Mitchell v. Bromberger, 2 Nev. 345; Allison v. Hagan, 12 Nev. 38; Nesbitt

v. Chisholm, 16 Nev. 39; Leete v. Sutherland, 20 Nev. 71, 15 Pac. 472.)

The fact that the court refused to find as requested does not show that the court did not

find at all. The findings of the court are no part of the judgment roll (Comp. Laws, 3300), and

can only be presented, as repeatedly held, on appeal, by the statement. The fact that there are

no findings in the record does not raise a presumption that no findings were made, there being

no showing otherwise by the record.

An unanswerable reason exists which justified the trial court in refusing to make the

findings of fact after judgment, as requested by the appellant. The section of the practice act

above quoted does not authorize any such practice, and we have been unable to find any other

provision which does. If the court did not make the findings required by the section quoted, or

had made defective findings, the appellant had ample remedy, under the requirements of

another section, to correct the action of the court in the premises, and, in case ��


of refusal to make the correction, the matter could have been, by following the plain

directions of the statute, presented to us for review.

Section 2 of an act to regulate appeals in the courts of justice in this state (Comp. Laws,

3858) expressly prescribes the method of presenting such matters to the appellate court. It

provides that, in cases tried by the court without a jury, no judgment shall be reversed for

want of findings or for a defective finding of fact, unless exceptions be made in the court

below to the finding or to the want of finding, and, in case of defective finding, the particular

defects shall be particularly and specifically designated; and, upon failure of the court below

to remedy the alleged error, the party moving shall be entitled to his exceptions, and the same

shall be settled by the judge as in other cases. It further prescribed the time within which such

exceptions shall be filed.

The record does not show that there was a want of finding or defective finding; neither

does it show that any of the steps required by the statute were taken to correct any want of

findings or defective findings, or that any exception or other action was taken in the matter

further than is indicated above. This matter has been before this court, considered, and

determined, and, under the cases presented and decided, we must hold that the appellant's

claim is without merit. (McClusky v. Gerhauser, 2 Nev. 52; Whitmore v. Shiverick, 3 Nev.

312; State v. Manhattan Co., 4 Nev. 336; Warren v. Quill, 9 Nev. 263; Welland v. Williams,

21 Nev. 230; 29 Pac. 403.)

It appears that, after the testimony had been taken by the district court, Judge Talbot

presiding, at Winnemucca, it was stipulated by counsel, as a matter of convenience, that the

oral argument should be heard at Reno, Washoe county, Nevada; that, pursuant to such

agreement, argument was had at the court room of the district court for that county on the

16th and 17th days of January, 1900.

During the argument, or at least during a part of the argument, by the courtesy and upon

the invitation of Judge Talbot, Judge Curler sat with Judge Talbot, and was consulted by him

regarding the case. No objection was made or interposed at the time to this action.

Subsequently this fact ��

� �� #� ��#� ��3��


was presented on motion for a new trial by the affidavit of counsel, and the refusal of the

court to grant a new trial because of this alleged misconduct of Judge Talbot or Judge Curler,

the record not distinctly showing which of the judges was guilty of the misconduct, is

assigned as error.

The record shows that the judgment was rendered by the court, Judge Talbot presiding, in

Winnemucca, in the following March. It is hardly necessary to discuss this matter. The rule

relied upon and the authorities cited have no application whatever to the facts of this record.

The text of 17 Am. & Eng. Enc. Law (2d ed.), p. 717, cited, no doubt states a correct rule of

law. A judge has no power to delegate his authority to act. It does not appear that the judge in

this action delegated his power, or attempted to delegate his power, to any person. He acted in

the premises.

The cases cited are in harmony with the text. In Van Slyke v. Insurance Co., 39 Wis. 390,

20 Am. Rep. 50, it was held that on an appeal from a judgment signed by the clerk, where the

record shows that on the trial in the court below the judge of that court left the bench, and that

his place was assumed by another person, a member of the bar of the court, but not a judge,

who tried the cause, and upon whose consideration the judgment was rendered, such

judgment was void.

In Britton v. Fox, 39 Ind. 371, it was held that a judge could not, because he was “weary,”

orally authorize an attorney to receive a verdict during his absence.

The other cases cited are to the same effect, and require no further consideration.

During the progress of the trial the appellant was sworn, and offered himself as a witness

to testify in support of the issues made in his behalf. The facts to be proven by the testimony

of the appellant are set out in the record. He offered to show by his own testimony that he

kept a set of books, consisting of a daybook of original entry, a journal, and a ledger, in which

all transactions relating to the milling, merchandising, and sheep business were recorded at

the time they occurred; that these books were true and correct, and contained a partnership

account between the witness and William Stock, deceased, showing all the transactions in

con�� &=28��&=2��:��;��


nection with a certain ranch and the sheep in controversy; that the books and the transactions

therein extend over and cover a period from 1890 to about 1896; that he (the witness)

furnished the decedent in his lifetime bills of these different accounts taken from the books.

The offer contains other facts in support of appellant's case not necessary to be stated.

It should also be stated here, as an admitted fact, that the appellant and William Stock

were partners in the milling business; also that R. H. Schwartz carried on in his individual

name a mercantile business. An objection by the respondent, based upon the incompetency of

the witness to testify to these facts under the provisions of Section 379 of the civil act (Comp.

Laws, 3474), was sustained, and this action of the court is assigned as error. The appellant

insists that he was a competent witness for the purpose of authenticating his books, and

testifying to the correctness of the transactions therein contained.

Section 379 of our practice act, supra, has been repeatedly changed by amendment. At this

time, and at the time of this trial, that part of the section material to the question presented is

as follows: “No person shall be allowed to testify under the provisions of Sections 376 and

377 when the other party to the transaction is dead, or when the opposite party to the action,

or the person for whose immediate benefit the action or proceeding is prosecuted or defended

is the representative of a deceased person, when the facts to be proven transpired before the

death of such deceased person. * * *” (Comp. Laws, 3474.)

The principal issue made by the pleadings involved the existence of the partnership. The

appellant alleged the existence of the partnership, and the respondent denied it. The appellant

was not seeking an accounting, and there was no question involving partnership accounts. He

was seeking to establish the existence of the alleged partnership, that he might recover the

possession of the partnership property as the surviving member of the firm. While

copartnership books might be competent for the purpose of establishing the existence of a

partnership, these books were not claimed in the record to be partnership books. It was not

admitted, or otherwise shown, that they were partnership books. In fact, the ��


offer disclose that they were kept by the appellant, and contained the transaction of his

individual mercantile business and the copartnership milling business. If the record of

transactions with the deceased in his lifetime, entered by the appellant in these books, was

competent for the purpose of establishing the existence of a partnership, when authenticated

by the oath of the appellant, then why was not appellant competent to testify directly to the

transactions without regard to the books? If he could by his testimony render the transactions

shown by the books material to the issue, then he was competent to testify in this action to the

transactions had with Stock in his lifetime.

If such were the rule of the statute, we can see no reason why he would not be competent

to testify to the terms and conditions of the agreement of copartnership. It seems to us that the

plain language of the statute quoted closed the mouth of the appellant, as death had sealed the

lips of Stock.

The appellant has cited a number of cases decided by this court in support of his

contention, but an examination of those cases shows that they can have no application to the

facts of this case.

In the case of Buckley v. Buckley, 12 Nev. 442, and 16 Nev. 180, cited as an authority in

support of appellant's contention, no such question as the one presented by this record was

presented and decided. That case was brought by the appellant to recover the possession of

certain sheep of which he alleged he was the owner. The respondent was the surviving

widow, as in this case, and the administratrix of her deceased husband's estate. She claimed,

among other matters, that the sheep belonged to her deceased husband, and that she held them

as administratrix of his estate, as a part thereof. It appears that the books of Henry A.

Buckley, the deceased husband, were offered for a purpose, after the respondent, his widow

and legal representative, had testified to their correctness. The competency of the widow to

testify to the correctness of the book, or to any other fact under the statute, was neither

presented nor decided by the court.

The case of Jones, Admr., v. Gammans, 11 Nev. 249, is not in point. In that case Jones, the

administrator, sought to recover a judgment against Gammans upon an account for ��


services, etc. Gammans, by answer, pleaded, among other matters, a counterclaim. On the

trial Gammans offered his books of account in support of some of the items of his

counterclaim, and supported the books by his own testimony. One of the objections made to

the book was that Gammans could not testify to this matter after the death of the

administrator's intestate, and was, in effect, permitting Gammans to testify to matters which

transpired between him and the deceased before death, and in the lifetime of the deceased.

The objection made presents the question in the case at bar, but the court did not and was

not required to pass upon the objection. It appears that the trial court did not rule upon the

objection at the time it was made, but reserved its ruling, and afterwards announced, as one of

its findings, that the book had been improperly kept, and that it appeared from the book itself

that it was not a proper book to be admitted as showing the state of the accounts between

Gammans and the deceased, and for these reasons excluded it. On the appeal the respondent

abandoned his objection based upon the competency of Gammans, and sought to sustain the

action of the trial court for the reasons given by it in the findings.

Justice Beatty, discussing the matter, says: “It must stand or fall upon the correctness or

incorrectness of the ruling as it was originally made and announced, and, as to that question,

the whole ground seems to be covered by the admission in his argument by counsel for

respondent that ‘the book was before the court sitting as a jury, by consent of plaintiff.' If it

was evidence before the court by consent of plaintiff, it was certainly error in the court to treat

it as not evidence.” It will therefore be seen that this court did not pass upon the competency

of the witness, as that objection was expressly waived, and the case was reversed upon the

exclusion of the book, for the reason contained in the findings of the trial court.

Nor does the case of Crane, et al., v. Gloster, 13 Nev. 279, cited, support the appellant's

contention. That action was brought by the surviving partners of one Hayes, deceased, against

Gloster. In support of his counterclaim, Gloster was permitted to testify that Hayes, the

deceased partner, � ��

��


had in his lifetime employed him to perform certain services at a fixed salary and

commission, for which there was due a considerable sum. The discussion by the court of the

objection made to the competency of Gloster to testify, under the provisions of Section 379,

Civ. Prac. Act, as it then stood, makes a very clear distinction between that case and the case

at bar, based upon the difference between the statute as it then was and now is.

That part of Section 379, pertinent to the question, at the time the case of Crane v. Gloster

was decided, is as follows: “No person shall be allowed to testify under the provisions of

Section 377 where the other party to the transaction, or opposite party in action, or the party

for whose immediate benefit the action or proceeding is prosecuted or defended, is the

representative of a deceased person, when the facts to be proved transpired before the death

of such deceased person. * * *.” (Stats. 1877, 160.)

Crane, et al., contended that they were the representatives of the deceased partner, Hayes,

within the meaning of Section 379, above quoted. Therefore they claimed it was error to

permit Gloster to testify. The court held that they, as surviving partners, were not the

representatives of Hayes, within the meaning of that statute, and therefore Gloster was not

incompetent under the provisions of said section, for the reason that the legislature ex

industria omitted the words “is dead,” which should have followed the phrase, “other party to

the transaction.”

The court severely criticised the section as it then stood, and we presume, as the result of

this criticism, the first session of the legislature after the decision was announced amended it

by inserting the omitted words; thereby making the provisions of the section substantially as

it was at the time when the case of Roney v. Buckland, 4 Nev. 59, was before the court under

the territorial act, and substantially as the law is at the present time.

A large number of cases decided by other courts, under statutes similar to ours, have been

cited by the respondent in support of the action of the trial court, but we do not deem it

necessary to criticize or refer to them, as the clear, plain language of the statute is sufficient to

justify the action ��


of the trial court in holding that the appellant was incompetent to testify.

It is also claimed in appellant's brief that the court erred in refusing to allow him to rebut

by his own testimony the testimony of certain witnesses who were sworn and testified in the

ease. It is a sufficient answer to this contention to say that the action of the court in the

premises is not assigned as error, and under the rule of the statute is not before this court.

(Comp. Laws, 3292, 3427; Corbett v. Job, 5 Nev. 205; Sherman v. Shaw, 9 Nev. 151; Earles

v. Gilhan, 20 Nev. 49, 14 Pac. 588; Roberts v. Webster, 25 Nev. 94, 57 Pac. 180.)

During the progress of the trial the appellant offered a chattel mortgage and the assignment

thereof. The mortgage was executed by one Rickard, the lessee of the sheep, under a contract

with William Stock, deceased, upon his interest in the sheep acquired thereunder, to one

Martha Clarke. The assignment of the mortgage was made by M. S. Bonnifield, the attorney

of the mortgagee. Objection to the introduction of the mortgage and the assignment thereof

was sustained, and the appellant excepted, but failed to state any point to his exception.

Our statute provides that “the point of the exception shall be particularly stated,” and this

court has repeatedly held that the record must show a compliance with the requirements of

this provision; otherwise, it will not consider the action of the trial court under the

assignment. (Comp. Laws, 3286; Sharon v. Minnock, 6 Nev. 382; Gooch v. Sullivan, 13 Nev.

81; Lightle v. Berning, 15 Nev. 389; Rosina v. Trowbridge, 20 Nev. 118, 17 Pac. 751;

McGurn v. McInnis, 24 Nev. 372, 55 Pac. 304, 56 Pac. 94; McNamee v. Nesbitt, 24 Nev. 400,

56 Pac. 37; Lewis v. Hyams, 25 Nev. 242, 59 Pac. 376; Paul v. Cragnaz, 25 Nev. 293, 59

Pac. 859, 47 L. R. A. 540.)

In the early case of Sharon v. Minnock, commenting upon this provision of the statute, the

court says: “It would be unjust to the court below and to the opposite party to reverse a ruling

admitting or rejecting evidence upon a ground no way suggested at the time of objection, and

upon which the court was not called upon to decide.”


Much as we may regret that a question which is regarded by counsel of so much

importance must be disposed of under a technical rule of procedure, and not considered upon

its merits, yet so long as the rule of the statute prevails courts and counsel are alike bound by

it, and it is our duty to enforce it in all proper cases.

It appears that, after the argument and submission of the cause, the court, upon the

application of the appellant, set aside the submission, and permitted him to file an amendment

to his complaint, in which, briefly stated, he alleged that on or about the 27th day of June,

1891, the appellant was the owner of 1,600 head of sheep; that on said date the said William

Stock was the owner of 4,936 sheep; that on said date the appellant and said Stock, by mutual

agreement, united in one band all of said sheep, and from that time owned said sheep jointly

in the proportion that the number of the sheep owned by the appellant then bore to the

number owned by said Stock, and that thereafter they carried on and conducted the business

of sheep raising jointly, and shared the expenditures and divided the profits and losses that

grew out of said joint venture in the proportion above stated; that the relation so formed

continued up to the death of said Stock, on the 25th day of November, 1898.

This amendment was permitted over the objection of the respondent, and upon her

application the court permitted her to file an amended answer, in which, among other matters

pleaded, she set up the bar of the statute of limitations. The allowance of this plea by the court

is assigned as error.

The appellant's right to maintain an action to recover all the sheep, under the averments of

the partnership in the original complaint, arose upon the death of William Stock in

November, 1898. There is no provision in our statute which would have barred his right of

action under the averments of the original complaint, at the time he instituted the same; hence

the plea of the bar of the statute could not have been successfully interposed against his right

to recover at that time. He did not seek to recover, as a joint tenant or tenant in common, until

he incorporated the amendment in his complaint on the 7th day of February, 1900. The

amendment contained substantial and new matter. His right to recover ��

��


was based upon new grounds. A new cause of action was set up, and the rule is well

established, and is not in conflict with the provisions of our statute regulating amendments to

pleadings, that, where a complaint to which an answer has been filed is amended in

substantial matter, the defendant has an absolute right to plead de novo. (1 Enc. Pl. & Prac. p.

627, and authorities cited.)

It seems to us that where the appellant, as in this case, asked and was granted permission

by the court, over the respondent's objection, to incorporate into his complaint a new cause of

action, it would have been gross error to have refused to allow her, at the first opportunity, to

avail herself of any valid defense which might exist against appellant's right to recover upon

the new cause of action, or a cause which had been amended by inserting new and substantial

matter. Whether or not it would have been error to allow the respondent to have interposed

the plea of the bar of the statute of limitations at that stage of the proceedings, where no

amendments to the complaint had been asked and allowed, is a question upon which it is not

necessary to express an opinion. It is sufficient for this case to say that, under the facts of the

record, the trial court did not abuse its discretion in permitting the plea.

It is also claimed that the plea of the statute of limitations is not sustained. If the appellant

had a right to recover the sheep under the claim of joint ownership, as set up in the amended

complaint, the record shows that such right was barred by the lapse of time. It appears from

the evidence that on or about the 10th day of August, 1895, Stock absolutely denied that the

appellant had any right, title or interest in or to the sheep in controversy, in a conversation

with appellant in the presence of witnesses; that he immediately, as shown by the stipulation

of the parties, took and held the exclusive control and management of the sheep, and wholly

excluded appellant therefrom, up to the time of his death, and during said time paid all the

expenses and retained all the profits. Generally, one tenant cannot maintain an action in

replevin against his cotenant for the recovery of the common property or his interest therein,

but if the property is severable, and the tenant has a right to sever his part from ��

� ��


the whole, and this right is refused, he may enforce such right by replevin. (Freem. Co-Ten.,

2d ed., 289; 17 Am. & Eng. Enc. Law, 2d ed., p. 700.)

It appears, therefore, that the right of the appellant to recover in this action under his claim

of joint ownership, if he had any such right, accrued on or about the 10th day of August,

1895. He did not attempt to assert this right for more than four years. His right of action is

barred by the three-year clause of our statute (Comp. Laws, 3718), at which time his cotenant,

William Stock, was living.

We have been unable to find any provision of the statute which in any manner changes or

enlarges the rights of the parties as above indicated, or that confers any greater right upon the

appellant in his action against the legal representative of William Stock. In fact, Section 165

of the act regulating the settlement of the estates of deceased persons specifically provides,

among other matters, for the maintenance of actions to recover personal property by or

against executors or administrators, in all cases where the same might have been maintained

by or against their respective testators or intestates in their lifetime. (Comp. Laws, 2951.)

The only remaining question to be considered involves the sufficiency of the evidence to

support the judgment of the court. The appellant earnestly contends that the evidence

establishes the existence of the partnership between him and William Stock, deceased, as

alleged in the complaint, and the respondent as earnestly contends that the evidence shows

that such partnership did not exist. There is no proof of a written agreement between the

appellant and Stock; in fact, the appellant admits in his brief that no such agreement was ever

made. He sought to establish the partnership by proof of facts and circumstances tending to

show the partnership relation.

A careful examination of the record develops proof tending to sustain the contention of

both parties.

A discussion of the various facts relied on by the respective parties would unnecessarily

lengthen this opinion, and would require, to a certain extent, this court to weigh the

testimony, and pass upon the credibility of witnesses, in ��

��


order to reverse the judgment, and thereby, to a certain extent, usurp the province of the trial

court.

To illustrate: It appears that William Stock and R. H. Schwartz each owned separately and

individually, prior to the ___ day of June, 1890, a band of sheep. In proof of the formation of

the partnership in June, 1890, the appellant showed that these two bands were united into one

band, and placed under the control of one person. The witness Rickard, who took charge of

the united band, testified that Schwartz told him that he had sold his sheep to Stock, and an

entry in Rickard's book, in the handwriting of the appellant, Schwartz, was offered, which

corroborates Rickard's testimony. The trial court may have and undoubtedly did pass upon the

credibility of the witness Rickard. It was, at least, the duty of the court so to do.

It is our duty to affirm or reverse a judgment only when such judgment is not supported by,

or is contrary to, the evidence, and, where the record discloses a substantial conflict therein,

the rule has long been settled that this court will not disturb the judgment of the trial court

under the assignment made.

No error having been shown, the judgment and order will be affirmed.


Fitzgerald, J.: I concur in the judgment.

____________


[No. 1591.]

R. H. SCHWARTZ, as Surviving Partner of the Firm of Stock & Schwartz, a Copartnership,

Appellant, v. WILHELMINA STOCK, and WILHELMINA STOCK, as Executrix of the

Last Will and Testament of William Stock, Deceased, Respondent.

Trover—Limitation of Action—Running of Statute—Statutes.

1. Suit was brought against an executrix for the conversion of sheep alleged to have been held by a partnership

composed of plaintiff and defendant's testator. The complaint alleged conversion by the defendant, but, by

an amendment, conversion by defendant's testator was alleged. The partnership had been denied by the

deceased, and the exclusive control of the sheep maintained by him more than four years before the

amendment to the complaint was filed: Held, that the suit was barred by the four-year statute of limitations,

since the cause accrued when the joint ownership of the property was denied, and the statute ran until the

amendment setting forth the conversion by the deceased was filed.

2. Under Comp. Laws, 3727, providing that, if a person against whom an action may be brought die before the

expiration of the time limited for the commencement thereof, and the action survives, the action may be

commenced against his executors or administrators after the expiration of that time and within one year

after the issuing of the letters testamentary or of administration, trover for conversion of sheep by a testator

cannot be maintained against his executrix, where not brought within a year from the issuance of letters

testamentary.

Appeal from the Fifth Judicial District Court, Humboldt County; G. F. Talbot, Judge.

Action by R. H. Schwartz, as surviving partner of the firm of Stock & Schwartz, against

Wilhelmina Stock, as executrix of the estate of William Stock, deceased. From a judgment in

favor of defendant, plaintiff appeals. Affirmed.



By this action, under the complaint as originally filed, the appellant seeks, as the surviving

partner of the firm of Stock & Schwartz, an alleged copartnership, to recover a judgment

against the respondent, the executrix of the last will and testament of William Stock, the

deceased partner, for the conversion of certain property alleged to be the property of said

firm.


The answer makes the same issues as those presented in the case of Schwartz v. Stock

(No. 1592) 65 Pac. 351, 26 Nev. 128, to recover the possession of certain alleged partnership

property, submitted and decided at this term; and the record presents the same questions

passed upon in that case, with one exception.

It will, therefore, be necessary to discuss but one question raised in this action in addition

to the questions discussed and passed upon in the other case, and that question involves the

statute of limitations interposed as a plea to the amended complaint, setting upon the joint

ownership of the property in controversy.

The original complaint alleging the copartnership was drawn upon the assumption that the

respondent, as executrix, had converted the property for which judgment is asked, but the

proof showed that William Stock, deceased, had, in his lifetime, sold and disposed of the

same. Upon this showing the appellant was permitted to amend the complaint showing

conversion by the deceased.

Not being willing or able to reverse the judgment upon the claim that the evidence

established the partnership relation for the reasons given in the other appeal, the only question

to be considered is, was the right to recover in this action for conversion barred by the

four-year provision of Section 3722 of the Compiled Laws?

The facts controlling this question are the same as presented in the other appeal. The

denial by Stock in August, 1895, of the title of Schwartz to the property, and his exclusion

therefrom, and from the management and control thereof, and from the sharing of the

necessary expenses thereto and the profits thereof, from that date, are presented by this

record. Four years' time had not elapsed from the time of the exclusive appropriation of the

property in 1895 to the time of Stock's death, or to the time of the filing the original

complaint, but more than four years had elapsed from the time of such appropriation up to the

time of filing the amended complaint, claiming right to recover as a cotenant.

In this case, as in the other, we do not decide, nor intend to decide, that, under the facts of

the record, this action will lie; but, if the appellant had any right of action under a claim �� &8�� C��&=21��0��


of joint ownership, it accrued on the 10th day of August, 1895, at the time of the exclusive

appropriation by Stock.

It may be stated as a general rule that the action of trover will not lie in favor of one tenant

against his cotenant for the mere detention or exclusive use of the common property, but it is

otherwise where one tenant has lost or destroyed the property, or so converted it or

appropriated it to his own use as to render any further enjoyment by his cotenant impossible,

or when one tenant takes the exclusive possession of the common property, and denies the

right or title of his cotenant thereto, as shown in this case. (Webb v. Mann, 3 Mich, 139; Bray

v. Bray, 30 Mich. 479; Grove v. Wise, 39 Mich. 161; Williams v. Rogers, 110 Mich. 418; 17

Am. & Eng. Enc. Law, 2d ed. 700, 701.)

The appellant never, so far as the record shows, sought to assert his right under the claim

of joint ownership in the amended complaint until the 7th day of February, 1900, more than

four years after the exclusive appropriation of the common property by William Stock; and it

is well settled that, where a new cause of action is brought in by amendment, the statute runs

until the amendment is made and filed. (Holmes v. Trout, 7 Pet. 171; Anderson v. Mayers, 50

Cal. 525; Atkinson v. Canal Co., 53 Cal. 102; Nugent v. Adsit, 93 Mich. 462; 1 Enc. Pl. &

Prac. 622, and cases cited in note.)

If this action will lie against the legal representative of William Stock, and if the running

of the statute was interrupted by the death of Stock, under the provisions of Section 3727 of

the Compiled Laws, even then it was barred, as the appellant did not assert his right to

recover under the claim of joint ownership for more than a year after letters testamentary had

been issued to the respondent. (Wick v. O'Neale, 2 Nev. 303.)

For the reasons given, the judgment and order of the lower court must be affirmed.

____________

��26 Nev. 158, 158 (1901) Foulks Accelerating Air Motor Company v. Thies��

[No. 1528.]

FOULKS ACCELERATING AIR MOTOR COMPANY, a Corporation, Respondent, v. J. H.

THIES, Appellant.

Fraudulent Representations—Subscription to Stock—Enforcement Of. Where plaintiff filed an application for a

patent, and appointed attorneys to prosecute it, giving them power to alter or amend his specifications, and

to transact all business connected therewith, and the application was granted after the specifications were

altered and amended, so that the patent as granted differed from the original application, representations by

plaintiff that the patent was secured as originally applied for, made to defendant to secure a stock

subscription to a corporation, plaintiff's successor in interest, were fraudulent in law, notwithstanding that

plaintiff believed them to be true, and he was without knowledge that they were untrue, and that they were

made without intent to deceive, and hence such subscription cannot be enforced.

Appeal from the Second Judicial District Court, Washoe County, A. E. Cheney, Judge.

Action by the Foulks Accelerating Air Motor Company against J. H. Thies. From a

judgment in favor of plaintiff and order denying defendant's motion for new trial, defendant

appeals. Reversed.


Frank H. Norcross and Torreyson & Summerfield, for Appellant.

Curler & Curler, George H. Foulks, W. E. F. Deal, and Edmund Tauszky, for Respondent.

Frank H. Norcross, for Appellant:

I. Mr. Foulks was a member of the Nevada Legislature of 1893, and proceeded to interest

his colleagues and others in the patent which he represented to them had been allowed him by

the patent office. He claimed, as a matter of fact, that his patent covered all of the features

originally applied for, and he laid particular stress upon the three features which were

rejected. He exhibited a model of his invention at Carson, containing all of these rejected

features, and had on exhibition, at the Mechanics' Fair at San Francisco, another model, to

which he invited the attention of those he was endeavoring to interest in his enterprise. The

defend�� #��D�


ant in this action relied upon these representations of John P. Foulks, and together with others

signed a paper agreeing to take 2,000 shares of stock in a corporation thereafter to be

organized, to carry on the business of manufacturing Foulks' wheels. This subscription paper

was dated February 25, 1893, and was for about 10,000 shares, and is the subscription held by

the lower court to be binding upon the defendant herein.

II. Articles of incorporation of the plaintiff were filed in the clerk's office of Washoe

county, on the 3d day of March, 1893, the one great object of the corporation being to

manufacture and sell the air motor, or windmill, claimed by John P. Foulks to have been

patented to him as hereinbefore stated, and which he agreed to sell or assign to the

corporation in consideration of 60,000 shares of stock in the corporation, the total number of

shares being 100,000 shares. The assignment of the said letters patent of John P. Foulks was

made to the plaintiff corporation of the 6th day of March, 1893, for the consideration above

mentioned.

III. Notice of a fact to an attorney, when engaged properly in the business of his client,

becomes, in law, notice of such fact to the client. (Am. & Eng. Ency. Law, 2d ed., vol. 1 p.

1144; Jones v. Bamford, 21 Iowa, 217; Allen v. McCalla, 25 Iowa, 464, 96 Am. Dec. 56;

Haven v. Snow, 14 Pick, (Mass.) 32.) Regardless of the fact that the law imputed knowledge

of every step in the proceeding to Foulks, there are other facts that show that Foulks knew or

had “sufficient reason for knowing,” at the time he made his representations to the defendant

of the scope of his patent, that it did not cover what he represented. He was informed by letter

in August, 1892, that his application had been rejected “and amended,” and that, if further

amendments were necessary, they would also be made. On August 19, 1892, he requested

specific information as to the air motors in conflict with his application, and in reply was

informed that copies of all the references given would be ordered and sent to him, and by

copies is certainly meant copies of the letters patent of the conflicting patents mentioned by

the examiner. Mr. Foulks' letter of September 8, 1892, shows that he had received copies of

such conflicting letters patent, one of which he enclosed ��

��


in a letter to his attorney, with comments. In the same letter, notifying Mr. Foulks that copies

of the references would be ordered and sent to him, was the further information that “the

examiner still insisted that the references were proper ones,” and that it would be difficult to

get it through satisfactorily without some assistance like a model, which the evidence shows

was never furnished by Mr. Foulks. Certainly, the matter contained in these communications,

taken into consideration with the fact that Mr. Foulks had given his attorneys unlimited power

to alter or amend, was sufficient reason for his knowing or believing that his patent had not

been allowed as applied for.

IV. “A statement recklessly made without knowledge of its truth, but which is in reality

false, is a false statement knowingly made, within the settled rule.” (Cooper v. Schlessenger,

111 U. S. 148; Henderson v. R. Co., 17 Tex. 560, 67 Am. Dec. 680; cases cited in 67 Am.

Dec. 685; Thompson on Corp., vol. 2, sec. 1388; 8 Am. & Eng. Ency. Law, 642-3, and

citations; Cook on Stock and Stockholders, vol. 1, p. 197, secs. 148, 150; Story, Eq. Juris.,

sec. 193; Cooley on Torts, pp. 497, 499; Fishback v. Miller, 15 Nev. 435.)

V. Misrepresentations as to property transferred for stock in a corporation renders the

transaction void. (Coffin v. Rounsdell, 110 Ind. 417, 11 N. E. 20; Coit v. Gold & C. Co., 119

U. S. 343; Sickles v. Martin, 44 Hun, (N. Y.) 623; Blunt v. Walker, 11 Wis. 334, 78 Am. Dec.

709; Crisholm v. Forney, 65 Iowa, 333; Tarkar v. Wallace, 6 Dailey, (N. Y.) 364; Beysich v.

Lieblu, 50 Hun, (N. Y.) 606; Douglas v. Ireland, 73 N. Y. 104; Boynton v. Andrews, 63 N. Y.

96; Edwards v. Sugar Co., 27 La. Ann. 118; Whitehill v. Jacobs, 75 Wis. 476; 35 N. J. Eq.

501; 20 N. Y. State Rep. 769; 3 N. Y. Supp. 293; Thompson on Corp., vol. 1, sec. 1241; vol

2, secs, 1606-1623.)

VI. The entire capital of a corporation must be subscribed by bona fide subscriptions

before the assessments can be made. (Thompson on Corp., vol. 1, secs. 1235, 1241; vol. 2,

secs. 1605, 1608, 1724; 1 Cook on Stock and Stockholders, sec. 176, p. 222; Haskil v.

Worthington, 94 Mo. 560; 66 Am. Dec. 257.)

VII. “The fraud which will entitle a subscriber to shares of a corporation to a rescission,

may be either of a positive ��


or negative kind. It may consist either in a suppression of what is true, or in an assertion of

what is false.” (Thompson on Corp., vol. 2. secs. 1383, 1433.)

VIII. The declarations made by Mr. Foulks concerning his invention were positive

declarations that a certain state of facts existed, which did not in fact exist, and which, if he

did not already know they did not exist, a very slight effort upon his part would have been all

that was necessary to convince him that they did not. Under these circumstances, it is

immaterial that he did not know his statements were false, for it was his duty to know it, and

in all such cases negligent ignorance has the same weight in the judicial balance as actual

knowledge. (Thompson on Corp., vol. 2, sec. 1388, and cases cited in note; Cook on Stock,

etc., vol. 1, p. 197, sec. 148; Anson on Contracts, 6th ed. 158; Story, Eq. Juris., sec. 193;

Cooley on Torts, pp. 497-499; Cooper v. Schlessenger, 111 U. S. 148; Henderson v. R. Co.,

17 Tex. 560, 67 Am. Dec. 680; cases cited in 67 Am. Dec. 685.)

IX. A subscription for stock in a corporation, made before the corporation comes into

existence, is not enforceable by or against the corporation unless, when the corporation comes

into existence, it accepts the subscriptions either expressly by formal acceptance, or by issue

of a certificate to the subscriber, or impliedly by acts amounting to the recognition of the

subscriber in the capacity of a shareholder. (Alger on Law of Promotors, etc., of

Corporations, secs. 194-217, especially sec. 211, p. 212; Strasburg R. Co. v. Echlernachit, 21

Pa. St. 220, 60 Am. Dec. 49.)

X. “Repudiation by any act or acts of the subscriber which in law amount to a rescission,

as, for example, when the subscriber notifies the corporate authorities that he repudiates the

contract, and tenders back his shares, is effective without a suit against the corporation to set

the contract aside.” (Alger on Law of promotors, etc., sec. 193, p. 196, and cases cited; Cook

on Stock, etc., vol. 1, pp. 201, 208; Thompson on Corp., vol. 2, secs. 1431, 1438-1456; Upton

v. Tribilock, 91 U. S. 45-55; Cunningham v. Edgifield R. Co., 2 Head, 10 Tenn. 23; Upton v.

Englehart, 3 Dill, U. S. 496, 505; Savage v. Bartlette, 78 Md. 561; Fear v. Bartlette, 32 Atl.

Rep. 322.)


XI. “The burden of proof to establish laches or waiver is on the corporation plaintiff. In an

action for calls on shares, when the defendant pleads that he was induced to take the shares by

fraud, it is not for him to show that he repudiated the contract as soon as he became aware of

the fraud, but it is for the plaintiff to show that the defendant adhered to the contract

notwithstanding his discovery of the fraud.” (Alger on Stock, etc., sec. 190.)

XII. “The subscriber has a legal right to rely upon a representation of a material existing

fact, the truth of which is not known to him. He is not bound to investigate, unless he has had

actual notice sufficient to put him on his guard.” (Alger on Stock, etc., sec. 155; McLellan v.

Scott, 24 Wis. 81; Mead v. Bunn, 32 N. Y. 275; Warner v. Seymour, 89 Wis. 290; Salem

Rubber Co. v. Adams, 23 Pick. 256.)

XIII. In an action to recover damages for misrepresentation it is essential to show that the

party who made the misrepresentation had knowledge of its falsity at the time it was made.

But a misrepresentation may be an invalidating circumstance in a contract induced by it,

although knowledge of its falsity is not shown. (Alger on Law of Promoters, etc., secs. 184,

186-187; Groppengresser v. Lake, 103 Cal. 37; Marriner v. Dennison, 78 Cal. 202; Bank v.

Hiatt, 58 Cal. 234; Alvarez v. Brannan, 7 Cal. 503; Wilcox v. University, 32 Iowa, 367; Moler

v. Carder, 73 Iowa, 582; Yeater v. Hines, 24 Mo. App. 619; Kountze v. Kennedy, 147 N. Y.

124; Gardner v. Loan & Trust Co., 152 Mass. 201; Home's Appeal, 77 Penn. 50; Swimm v.

Bush, 23 Mich 99; 1 Bigelow on Frauds, 414.)

XIV. The ground upon which relief is asked is that principle of equity which declares that

the wilful misrepresentation of one contracting party which draws another into a contract

shall, at the option of the person deceived, enable him to avoid or enforce that contract. (2

Thompson on Corp., secs. 1382, 1361, 1363, 1364, 1372, and note 3, 1373; Henderson v. R.

Co., 17 Tex. 560, 67 Am. Dec. 675; Vreeland v. N. J. Stone Co., 29 N. J. Eq. 190; Upton v.

Englehart, 3 Dill. U. S. 496; Farm v. Walker, 3 Dill. U. S. 506; Mead v. Bunn, 32 N. Y.

275-280; McLellan v. Scott, 24 Wis. 81, 86; Eaton v. Winnie, 20 Mich. 156; 4 Am. Rep. 377;

Foreman v. Bigelow, 4 Cliff. U. S. 508.) The defense is complete when ��


fraud is shown. (Thompson, supra, vol. 2, sec. 1391; 4 Am. & Eng. Ency. Law, 259, 265;

Phila. R. Co. v. Derby, 14 How. U. S. 468; Henderson v. R. Co., supra; Hale v. Union M.

Co., 32 N. H. 295; N. Y. R. Co. v. Schuyler, 34 N. Y. 50; 11 Wheat. U. S. 59.)

XV. Any misrepresentations or concealments of facts, which materially affect the success

of the undertaking, will, as between the company and the person who, on the faith of such

misrepresentations or concealments, has been induced to take shares, entitle him to a

rescission of the contract; and will be a defense to suits for calls. (Thompson, supra, vol. 2,

sec. 1424; Waldo v. Chicago R. Co., 14 Wis. 575; Henderson v. R. Co., supra; Davis v.

Dumont, 37 Iowa, 47; Water Man. Co. v. Seaman, 53 Miss. 655; Occidental v. Gonzhorn, 2

Mo. App. 205; Crump v. U. S. M. Co., 7 Gratt. Va. 352, 56 Am. Dec. 116; Rives v.

Montgomery R. Co., 30 Ala. 92.)

XVI. If the evidence is sufficient to satisfy the mind and conscience of the existence of the

fraud, it will suffice, although it does not lead to a conviction of absolute certainty. (8 Am. &

Eng. Ency. Law, 656, and citations; Buller v. Creditors, 56 Cal. 600; Gruber v. Baker, 20

Nev. 476.)

XVII. The purchasers of a patent are not bound by the doctrine of caveat emptor. (Iowa

Econ. Heat Co. v. American, 32 Fed. 735; McKee v. Eaton, 26 Kan. 226; Peffley v. Noland,

80 Ind. 164.)

Curler & Curler, George H. Foulks, W. E. F. Deal, and Edmund Tauszky, for Respondent:

I. The rule in regard to cases for rescission of contracts on the ground of fraud was laid

down by the Supreme Court of the United States in the case of Southern Development Co. v.

Silva, 125 U. S. 247, as follows (p. 249): “The burden of proof is on the complainant; and,

unless he brings evidence sufficient to overcome the natural presumption of fair dealing and

honesty, a court of equity will not be justified in setting aside a contract on the ground of

fraudulent representations. In order to establish a charge of this character, the complainant

must show by clear and decisive proof: First—That the defendant has made a representation

in regard to a material fact. Second—That such representation ��


is false. Third—That such representation was not actually believed by the defendant on

reasonable grounds to be true. Fourth—That it was made with intent that it should be acted

upon. Fifth—That it was acted upon by complainant to his damage. And, sixth—That, in so

acting on it, the complainant was ignorant of its falsity and reasonably believed it to be true.

The first of the foregoing requisites excludes such statements as consist merely in an

expression of opinion or judgment honestly entertained; and again (excepting in peculiar

cases) it excludes statements by the owner and vendor of property in respect to its value.”

II. “A purchaser is bound to exercise ordinary prudence and discretion, and, if the means

of knowledge are within his power, and he neglects to make the proper inquiry, he loses his

remedy against the vendor for any fraudulent representations the latter may make.” (Chapman

v. Shilleto, 7 Beav. 149; Bell v. Byerson, 11 Iowa, 233; Shermerhorn v. George, 13 Ab. Pr.

315; White v. Seaver, 25 Barb. 235; Burton v. Willers, 6 Litt. 32.) In the case at bar, defendant

knew that Dewey & Company of San Francisco were the solicitors for the patent, and, after

representations were made to him by four of the subsequent directors of plaintiff, and before

his first subscription, he went to San Francisco and viewed the model; before his second

subscription, he and others sent two directors of plaintiff to San Francisco to construct a

windmill who, afterwards, reported to defendant that the invention was a success, and

submitted drawings of the invention to him; which, we submit, shows that defendant relied on

the results of his own investigation and inquiry as to the merits of the invention, and not on

the statements of the inventor.

III. Kerr, P. 82: “Misrepresentation, to be material, should be in respect of an

ascertainable fact, as distinguished from a mere matter of opinion. (5 Johns 354.) A

representation which merely amounts to a statement of opinion, judgment, probability, or

expectation, or is vague and indefinite in its nature and terms, or is merely a loose,

conjectural, or exaggerated statement, goes for nothing, though it may not be true, for a man

is not justified in placing reliance on it. An indefinite representation ought to put the per��


son to whom it is made upon inquiry. If he chooses to put faith in such a statement, and

abstains from inquiry, he has no ground of complaint. Mere exaggeration is a totally different

thing from misrepresentation of a precise and definite fact. Such statements * * * are only

expressions of opinion or judgment, as to which honest men may differ materially.”

IV. Bigelow on Fraud, 1888 edition, p. 180: “So where the gist of an action is a false and

fraudulent representation made by the defendant in the course of negotiations, as an

inducement to a contract, the plaintiff will have to prove that the defendant knew the

representations to be false when he made them, or the equivalent.” Litchfield v. Hutchinson,

117 Mass. 195: “And this is not established by showing that, though the defendant believed it

to be true when he made it, yet, after the negotiations were concluded, and had been merged

in a written contract without warranty, he ascertained it to be false, and neglected to

communicate his knowledge to the plaintiff.”

V. The allegations in the affirmative defense set up in defendant's answer are allegations

of actual fraud, and raise an issue of actual fraud only; while all the evidence introduced by

defendant on the defense of fraud did not reach beyond an effort to establish constructive

fraud, and did not even tend to establish that; but even the proof of constructive fraud would

not establish a charge of actual fraud. Bigelow on Fraud says, at p. 179: “The fraud alleged

must be proved; other fraud will not answer.” (Jackson v. Collins, 39 Mich. 557.)

VI. “Where there is some evidence to support the decision, and a motion for a new trial is

denied, this court will not interfere.” (Baxter v. McKinlay, 16 Cal. 76; Doherty v. Enterprise

Mg. Co., 50 Cal. 187.) A motion for a new trial on the ground, amongst others, that the

evidence was insufficient to justify the verdict, was denied by the lower court. On appeal, the

Supreme Court of California said: “If there is any evidence to sustain that verdict, this court

will not disturb the order of the court below. For the purpose of determining that question, it

will only be necessary to consider such portions of the testimony as are most favorable to the

defend��5


ant.” (Helm v. Martin, 59 Cal. 61.) Where there is material evidence to support all the

findings of the court, or sufficient to create a substantial conflict, the judgment and order of

the court below, refusing a new trial, will be affirmed. (Stearns v. Hooper, 78 Cal. 341.)

VII. A corporation may give credit for its stock, as well as for any other property sold by

it. Nor is it necessary that certificates should have been issued. These only constitute proof of

property which may exist without them. When the corporation has agreed that a person shall

be entitled to a certain number of shares in its capital, to be paid for in a manner agreed upon,

and that person has agreed to take and pay for them accordingly, he becomes their owner by a

valid contract made upon a valuable consideration. (Mitchell v. Beckman, 64 Cal. 117.)

VIII. Counsel overlooks the distinction between an assessment levied by the board of

directors of a corporation for the purpose of paying debts, etc., and a call made upon

subscribers to stock to pay for the stock. Assessments may be levied upon stock that has been

fully paid for. Calls are levied upon stock that has not been fully paid for.

IX. In the case of Bailey v. Fox, 78 Cal. 389, which was an action to rescind a contract on

the ground of false representations, the Supreme Court of California said, at page 396, that “it

is a well-established and just rule of equity that a party, who seeks to avoid a contract for

fraud, must rescind the same promptly after the fraud is discovered, or he will be deemed to

have waived it.” In that case, four months intervened between the time of the discovery and

the time of the offer to rescind, and it was held that it would be entirely inequitable to permit

a party to rescind a contract after such a delay, under the circumstances of the case. It is clear,

from the evidence, that defendant made his first alleged discovery in August or September,

1893, and made a second discovery in February or March, 1894. Kerr on Fraud and Mistake

says, at p. 236: “Whatever is notice enough to excite the attention of a man of ordinary

prudence and call for further inquiry, is, in equity, notice of all facts to the knowledge of

which an inquiry suggested by such notice, and prosecuted with due and reasonable diligence,

would have � �


led. (Blaisdell v. Stevens, 16 Vt. 173; Stanford v. Ballou, 17 Vt. 329.) Notice of this sort is

called constructive notice. Constructive notice, as distinguished from actual notice, is a legal

inference from established facts, and like other legal presumptions, does not admit of dispute.

If a man has actual notice of circumstances sufficient to put a man of ordinary prudence on

inquiry as to a particular point, the knowledge which he might, by the exercise of reasonable

diligence, have obtained will be imputed to him by a court of equity. The presumption of the

existence of knowledge is so strong that it cannot be allowed to be rebutted.” Page 238: “The

consequences of an actual discovery of the fraud will be imputed to a person who might, by

the exercise of reasonable diligence, have made the discovery.” (Parker v. Kuhn, 21 Neb.

413; Penobscott v. Mayo, 67 Me. 470; Boyd v. Blankman, 29 Cal. 19; Gillett v. Wiley, 126 Ill.

310.) “Whatever is notice enough to excite attention, and put a party on his guard and call for

inquiry, is notice of everything to which such inquiry might have led. When a person has

sufficient information to lead him to a fact, he shall be deemed conversant of it.” (Kennedy v.

Green, 3 Myl. & K. 722.) “There must be concealment on the part of the defendants, and the

fraud must be actual, not constructive.” (Farnam v. Brooks, 9 Pick. 212; State v. Giles, 52

Ind. 356; Boyd v. Boyd, 27 Ind. 429; Wood v. Carpenter, 11 Otto, 140; Nudd v. Hamblin, 8

Allen, 130.) Appellant here had the means of knowledge, and therefore constructive

knowledge, of the alleged fraud, when he was in San Francisco in February or March, 1893,

and knew that Dewey & Company were the patent attorneys who had obtained the Foulks

patent, and who would naturally have a record of the patent case in their office. The statute of

limitations certainly began to run against this defendant in August or September, 1893, when

he saw the patent; and any subsequent alleged discoveries, previous to the death of John P.

Foulks, or intimations since his death, can avail this defendant nothing.

X. “If a stockholder fails to take the trouble of inquiring into the affairs of a corporation of

which he is a member, or attend its meetings, it seems no more than just that his supineness

should be construed as an acquiescence in the �� 5


proceedings of the majority.” (2 Morawetz on Private Corporations, 2d ed. sec. 630.)

“Stockholders are chargeable with knowledge of all the acts of the directors which were

spread upon the records of the corporation, and of all the facts connected therewith that the

inquiry suggested thereby would have disclosed.” (Lady Washington Cons. v. Wood, supra.)

XI. “Fraud may be waived and condoned; and a defrauded party must act consistently, or

he will lose his right to complaint of it.” (Craig v. Bradley, 26 Mich. 369; Godden v. Kimmel,

99 U. S. 211; March v. Whitmore, 21 Wall. 184; U. S. v. Flint, 4 Saw. 57; Foot v.

Farrington, 4 N. Y. 169; Angell on Limitations, sec. 183, note 3; Harwood v. Railroad Co.,

17 Wall. 81; Stearne v. Page, 17 How. 819.) “The defrauded party to a contract has but one

election to rescind the same. If he once determine his election, it is determined forever.

(Kinney v. Kiernan, 49 N. Y. 164.) Hence, if it be shown that he has at any time after

knowledge of the fraud, either by express words or by unequivocal acts, affirmed the contract,

his election is irrevocable. (Kennedy v. Thorp, 51 N. Y. 174.)”

Frank H. Norcross, for Appellant, in reply:

I. “A purchaser of a patent right may rely on the representations of the seller as to what is

covered by the patent.” (Rose v. Hurley, 39 Ind. 77; David v. Park, 103 Mass. 501; Gaty v.

Holcomb, 44 Ark. 216; Tabor v. Peters, 74 Ala. 90; Page v. Dickerson, 28 Wis. 694; Fargo

Coke Co. v. Electric Company, (author's note) 37 L. R. A. 593. “The representations of an

inventor for the purpose of effecting a sale of his invention, may be relied upon.” (Hicks v.

Stevens, 121 Ill. 186.)

II. The respondent cites, seemingly with a good deal of satisfaction, the case of Southern

Development Co. v. Silva, 125 U. S. 249, in which it is held: “In order to establish a charge of

this character, the complainant must show by clear and decisive proof: First—That the

defendant has made a representation in regard to a material fact. Second—That such

representation is false. Third—That such representation was not actually believed by the

defendant on reasonable ��


grounds to be true. Fourth—That it was made with intent that it should be acted upon.

Fifth—That it was acted upon by complainant to his damage, and, sixth, that in so acting on it

the complainant was ignorant of its falsity and reasonably believed it to be true.” Now, then,

without questioning the applicability of the foregoing rules to the case at bar, appellant

contends that the findings of the lower court show that all of the above-mentioned requisites

exist in this case, save and except the third, and it is the finding that this requisite is not

established that appellant complains of. Let us briefly consider this third requisite: “That such

representation was not actually believed by defendant on reasonable grounds to be true.”

Now, then, the party making the representations must not only actually believe them to be

true, but he must have “reasonable grounds” for so believing. It is appellant's contention that

Mr. Foulks had not reasonable grounds for believing his representations to be true. In

appellant's former brief was cited the law as held by the same court that decided the Silva

case, supra, and by it we may know what it meant by “reasonable grounds.” In Cooper v.

Schlessinger, 111 U. S. 148, the rule was laid down that “A statement recklessly made

without knowledge of its truth, but which is in reality false, is a false statement knowingly

made, within the settled rule.”

III. Counsel for respondent argues that this court should not disturb the decision of the

lower court because of the well-established rule that where the evidence is conflicting and

there is any substantial evidence in support of the decision the appellate court will not

interfere. But appellant contends that the rule has no applicability in the present case, for the

reason that upon the main points at issue there is no conflict in the evidence, and the only

difference between counsel for appellant and respondent is in the legal effect of the evidence.

IV. The rule of law applicable to the case at bar, upon the question of rescission, may

fairly be stated as follows: “Where the case stands simply as a question between the

corporation seeking to retain an advantage acquired through fraud, and a person who has been

defrauded by its agent, the ordinary rule of equity as to the time which will bar the �� 5


person defrauded from claiming a rescission of his contract would obviously apply in the

same manner as though the question arose between two natural persons.” (Ashmead v. Colby,

26 conn. 287; Thompson, vol. 2, secs. 1453, 1452, 1449, 1438; Fargo Gaslight and Coke Co.

v. Fargo Gas and Electric Co., 4 N. D. 219; 37 L. R. A., 593; see author's note and citations

on subject of fraud.)

V. Respondent's contention, that appellant's defense of fraud is barred by the statute of

limitations, cannot be well taken. Appellant repudiated his contract on April 19, 1894, which

was within the statute of limitations.


W. E. F. Deal, Edmund Tauszky, Benjamin Curler, and George H. Foulks, for Respondent:

I. The constitution of this state (sec. 2, art. VI) provides that the supreme court shall

consist of a chief justice and two associate justices, a majority of whom shall constitute a

quorum; and that the concurrence of a majority of the whole court shall be necessary to render

a decision. It further provides (sec. 8, art. XV) that no judgment of the supreme court shall

take effect and be operative until the opinion of the court in such case shall be filed with the

clerk of said court. Section 12 of the act concerning the courts of justice of this state,

approved January 26, 1865, (sec. 2519, Comp. Laws, 1900) provides that all opinions and

decisions rendered by the supreme court shall be in writing, signed by the justices concurring

therein, and shall be spread at large on the records of the court kept for that purpose. Section

10 of the same act (sec. 2517, Comp. Laws, 1900) provides that the concurrence of two

justices who heard the argument shall be necessary to pronounce any judgment, and, if two

justices, who have heard the argument, do not agree, the case shall be reargued. In this case

the chief justice is disqualified. The two associate justices heard the argument, and one of

them, Justice Belknap, has filed an opinion herein reversing the judgment and remanding the

cause for a new trial, while the other, Justice Fitzgerald, concurs in the judgment without

concurring in the opinion of Justice Belknap, or filing any opinion of his own. It is evident,�� #��A��F��


therefore, that the two associate justices do not agree in the reasons for a reversal, and, while

they agree in the judgment, we are not informed as to the reasons moving Justice Fitzgerald to

concur therein. We respectfully submit that the opinion of one justice is not the opinion of the

court, and that Section 8 of Article XV of the constitution has not been complied with by the

court in this case; and furthermore, that, as the two justices who heard the argument have not

agreed in their reasons for a reversal, the case should be reargued. The opinion of Justice

Belknap can hardly be deemed the law of this case, because it is not the opinion of the court.

The purpose of the requirement of Section 2 of Article VI of the constitution, that the

concurrence of a majority of the whole court shall be necessary to render a decision, was

undoubtedly to insure the concurrence of two justices in the establishment of any legal

proposition as the law of this state, and the requirement of Section 2519, Comp. Laws, 1900,

that all opinions shall be in writing, was certainly enacted so that litigants and the trial court

might be informed of the reasons moving the justices to concur in the judgment.

II. The rule is that where an appellate court is evenly divided, the judgment of the lower

court is affirmed. (Santa Rosa City R. R. v. Central St. R. R., 112 Cal. 436; Frankel v.

Deidesheimer, 93 Cal. 73; Buco v. De Toro, 88 Cal. 26.)

III. Coming to the opinion itself, we respectfully submit that it is based both upon a

misconception of the law and of the issues involved in this case. Justice Belknap recites

certain facts found by the district court; among others, “That until subsequent to July 15,

1893, Mr. Foulks believed, and did not have any reason for not believing, that his application

for a patent had not been allowed by the patent office as originally made and filed.” The

opinion then proceeds: “Upon these facts, the question is whether or not the representations

were fraudulent in law.” “These facts” include the fact that Foulks did not have any reason for

not believing that his application for a patent had not been allowed as originally made. Yet

the learned justice proceeds, in utter disregard of this fact, which he states is one of the facts

upon which his decision depends, and says: “He :A��;��

� ��G�G�G�


(Foulks) knew that amendments had been made * * *. Instead of making the inquiry which

the circumstances suggested, he made no effort to inform himself further. Afterwards, when a

patent was allowed, instead of ascertaining the extent to which his specifications had been

altered or amended by his attorneys under his authority, he represented to defendant and

others that a patent according to the original specifications had been granted. Manifestly he

did not know whether this statement was true or false.” This entirely eliminates the finding

that Foulks did not have any reason for not believing that his application for a patent had not

been allowed as originally made. The learned justice does not hold that this finding of the

district court is not supported by the evidence, but decides the case upon a question of law in

disregard of the finding. In the quotation from Judge Cooley's work on Torts, contained in the

opinion, that eminent jurist says: “The fraud here consists in the reckless assertion that that is

true of which the party knows nothing, and deceiving the other party thereby, and even the

actual belief of the party in the truth of what he asserts is immaterial, unless he had some

apparently good reason for his belief, such, for example, as the positive statements of others

in whom he confided and was innocent of any attempt to mislead.” The court below, in its

finding, negatives the proposition that there was anything reckless in the statements of

Foulks, and expressly affirms that he did not have any reason for not believing that his

statements were true.

IV. Another vital proposition in the case is that the defendant, in his answer, pleaded

actual fraud, while the opinion of Justice Belknap proceeds upon the theory of constructive

fraud. The allegation in the answer is specific, that Foulks made false representations to

defendant “with knowledge that the said representations were false and with intent to deceive

defendant and fraudulently induce him thereby to subscribe to the capital stock of the plaintiff

corporation.”

V. The practical effect of the opinion of Justice Belknap is to determine this case

adversely to the respondent upon the testimony of person as to a transaction with a party who��


is dead. Section 379 of the Act to regulate proceedings in civil cases, approved March 8,

1869, as amended in 1897 (Sec. 3474, Com. Laws, 1900), provides: “No person shall be

allowed to testify under the provisions of Sections 376 and 377, when the other party to the

transaction is dead, * * * when the facts to be proven transpired before the death of such

deceased person.”


Action to collect a call upon a subscription to plaintiff's stock.

In his answer defendant, among other things, sets up, as an equitable defense to the action,

that during the month of February, 1893, and prior to the 25th day of March, John P. Foulks

falsely represented to the defendant and others that he was the inventor and the owner of a

certain patent for an improvement in windmills, the letters patent of which had not been

issued, but would shortly be issued, and when issued would cover all the mechanical features

described in the answer in this case; that defendant, relying upon said representations,

subscribed for a certain number of shares of the capital stock of the plaintiff; that defendant

first learned upon the dates mentioned in the answer that the letters patent issued to Foulks,

and subsequently assigned to plaintiff, did not embrace the mechanical principles claimed for

it by Foulks in his representations or in his application for a patent.

At the trial the district court found that upon March 9, 1892, Mr. Foulks filed his

application for a patent for an improvement in air motors, and appointed Dewey & Co., of

San Francisco, Cal., and A. H. Evans & Co., of Washington, D. C., his attorneys to prosecute

the same, and to alter or amend his specifications, to receive the letters patent when issued,

and to transact all business in the patent office connected therewith; that upon December 27,

1892, the attorneys of Mr. Foulks transmitted to him a copy of a notice from the patent office

to the effect that his application for a patent had been examined and allowed; that while his

application was pending several amendments were made by his attorneys, but no reference

thereto was made by the notice, � �(��


and Mr. Foulks was not informed of the particulars in which his application had been

amended until after the patent was granted.

It was also found that until subsequent to July 15, 1893, Mr. Foulks believed, and did not

have any reason for not believing, that his application for patent had not been allowed by the

patent office as originally made and filed; that he believed his representations to the

defendant as to the scope of the patent were true, and without any knowledge that they were

untrue, and without intent to deceive. It was also found that the contents of the patent

materially differed from the representations made concerning it by Mr. Foulks.

Upon these facts, the question is whether or not the representations were fraudulent in law.

The notification to Mr. Foulks that his application had been approved should be

considered in connection with his authorization of Dewey & Co., of San Francisco, and A. H.

Evans & Co., of Washington, to alter or amend the specifications. Under the authority given

his attorneys, no one could have known, prior to final action by the patent office, the extent to

which the specifications had been altered or amended. He knew that amendments had been

made. That fact may well have excited his inquiry, and investigation would have readily

revealed the fact that the patent office had determined that Mr. Foulks' application infringed

upon the Kirkwood patent, and that his attorneys had disclaimed all rights conflicting with it.

Instead of making the inquiry which the circumstances suggested, he made no effort to inform

himself further. Afterwards, when a patent was allowed, instead of ascertaining the extent to

which his specifications had been altered or amended by his attorneys under his authority, he

represented to defendant and others that a patent, according to the original specifications, had

been granted. Manifestly, he did not know whether his statement were true or false, and he, or

his successor in interest, is liable if he asserted them to be true not knowing whether they

were true or false.

In Bennett v. Judson, 21 N. Y. 238, the question was whether representations could be

deemed fraudulent unless they were known to be false. It was held that one who, without

knowl� ��

��


edge of its truth or falsity, makes a material representation, is guilty of fraud, in legal

contemplation, as much as if he knew it to be untrue.

The decision in Bennett v. Judson was subsequently qualified by the case of Wakeman v.

Dalley, 51 N. Y. 35, to the extent that the injured party is not compelled to prove that the

person making the representations knew them to be false. If he assume or intend to convey

the impression that he has actual knowledge of their truth, when conscious that he has not

such knowledge, it is enough. (Railroad Co. v. Tyng, 2 Hun, 321; Wakeman v. Dalley, 51 N.

Y. 27.)

Judge Story states the rule applicable to this class of cases as follows: “Whether a party

misrepresenting a material fact knew it to be false, or made the assertion without knowing

whether it was true or false, is wholly immaterial; for the affirmation of what one does not

know or believe to be true is equally, in morals and law, as unjustifiable as the affirmation of

what is known to be positively false, and, even if the party innocently misrepresents a

material fact by mistake, it is equally conclusive, for it operates as a surprise and imposition

upon the other party.” (Story, Eq. Jur. 193.)

“Accordingly,” says Judge Cooley in his work on Torts (page 498), “when either of the

two parties to a negotiation for the purchase of property makes material representations of

matters which he avers or assumes to be within his own knowledge, with intent that the other

party shall act upon them, and these representations are actually relied upon by the other party

in completing the negotiation, and they prove to be false, to his injury, a court of equity will

treat the case as one of fraud, and give the proper relief, although the party making the

representations was not aware at the time of their falsity.”

Again, at page 501: “There are numerous cases in which it has been held that if a person

makes a material representation in relation to a matter susceptible of knowledge, in such a

manner as to import positive knowledge of its truth or falsity, with intent that another should

rely upon such representation, this is sufficient to establish against him a legal fraud, if the

other does rely upon it and it proves untrue. The fraud here consists in the reckless assertion

that that is ��

� �� 5


true of which the party knows nothing, and deceiving the other party thereby; and even the

actual belief of the party in the truth of what he asserts is immaterial, unless he had some

apparently good reason for his belief, such, for example, as the positive statements of others

in whom he confided, and was innocent of any attempt to mislead, or unless his

representations related to matters of opinion.” See cases cited on page 501. (8 Am. & Eng.

Ency. Law, p. 642.)

Judgment reversed, and cause remanded for new trial.

Fitzgerald, J.: I concur in the judgment.

Massey, C. J., being disqualified, did not participate.

By the Court: Rehearing denied.

____________

��26 Nev. 176, 176 (1901) Bonelli v. Jones��

[No. 1603.]

B. F. BONELLI, Respondent, v. T. J. JONES, et al.,

Appellants.

Appeal and Error—New Trial—Conditional Order—Compliance—Failure—Effect. Plaintiff had judgment for

240 square inches of water, under six-inch pressure, for irrigation purposes. On defendant's motion for a

new trial, the court ordered that if written consent to a modification of the judgment limiting plaintiff's right

to 45 square inches of water, running under six-inch pressure, was filed within sixty days, the motion for a

new trial should be denied; otherwise granted. Defendant appealed from the order, and subsequently

plaintiff filed a written statement consenting to the modification on condition that no further proceedings

should be had in the case: Held, that plaintiff had no power to add conditions to his consent, and such

conditional consent did not constitute a compliance with the order, and that therefore defendant's right to a

new trial became absolute, and his appeal must be dismissed.


Action by B. F. Bonelli against T. J. Jones and another. From a judgment in favor of

plaintiff, and from an order denying a new trial, defendant appeals. Dismissed.


T. J. Osborne, Charles Cobb, and T. M. Stewart, for Appellants:

I. The complaint as amended is insufficient. It alleges, ��

�� A��&+��&=-+��


of four hundred inches of water, ownership, possession, and constant use since February 12,

1872, appropriation by survey, need, and appurtenance to certain lands. Ownership of

property in general may be declared as a fact or as a conclusion of law, but, in view of the

peculiarity of property in water and of the legal character of acquisition of such property (and,

especially in view of Gen. Stats. Nev., sec. 356, declaring that “there is no absolute property

in the waters of a natural water course”), it may be very seriously doubted if such an

allegation as to flowing water should ever be regarded other than a legal conclusion, and there

is a very grave doubt, if, even thus, it is anywhere an admissible allegation.

II. Ownership of a water ditch is entirely distinct from and not the same as a right to the

water flowing through it, and the one is not a necessary incident to the other. (McLear v.

Hapgood, 95 Cal. 555; Stocker v. Kiktley, 59 Pac. 891.)

III. A general allegation of ownership is controlled by a statement of the specific facts

relied on. (Hamer v. Seeley, 59 Cal. 495.)

IV. A general finding drawn from the facts previously found cannot stand if the specific

facts do not support it. (People v. Reed, 81 Cal. 76; Geer v. Sibley, 83 Cal. 4; Savings, etc., v.

Burnett, 106 Cal. 539; Niles v. Los Angeles, 125 Cal. 578; Barnes v. Sabron, 10 Nev. 217.)

V. It was after the evidence for the plaintiff was nearly all in, as shown by the record, that

“counsel for plaintiff moves for an order permitting him to amend his complaint, so as to

show that the Muddy river was the source of the water which plaintiff claims, by inserting in

line ___ page ___, after the word ‘survey,' as follows: ‘And that said water was appropriated

from the Muddy river.' Counsel for defendants objected to such amendment on the ground

that the motion comes too late, and on the further ground that no affidavit or notice of motion

was given as required by statute in such cases, as provided by Section 3090, Gen. Stats. (Sec.

68, Practice Act.) The court grants motion to amend the complaint, and counsel for

defendants takes an exception to the ruling of the court, and, on suggestion of counsel for

defendants, the substance of the amendment to the complaint is deemed denied in the

answer.” Special statutory power ��

��


must be exercised as it is given and in conformity with the statute conferring it. (19 Am. &

Eng. Ency. 457, and cases.) “Where a statutory power of jurisdiction is granted, which

otherwise does not exist, whether to a court or officer, * * the mode of proceeding prescribed

must be strictly pursued; the provisions regulating the procedure are mandatory as to the

essence of the thing required to be done.” (Sutherland Statutory Construction, 454; Potter's

Dwarris, 224; Corwin v. Merritt, 3 Barb. 341; Harrington v. People, 6 Barb. 607; People v.

Shermerhorn, 19 Barb. 540; Morse v. Williamson, 35 Barb. 472; Sibley v. Smith, 2 Mich.

486.)

VI. Findings of facts are generally supposed to be induced from evidence introduced.

“The extent of the right originally acquired by plaintiff, to which all subsequently acquired

rights must be subordinated, is one of fact for the jury.” (Black's Pomeroy, sec. 85; Nevada

Water Company v. Powell, 34 Cal. 118.) The amount per acre is to be determined from

evidence taken. (Nephi Irrigation Co. v. Victor, 49 Pac. 892.) But, in the case at bar, “the

court announced in giving his opinion that the evidence submitted was conflicting as to the

quantity of water necessary to irrigate an acre of land, and that he had governed himself

somewhat by the reports of engineers on the subject and by the quantity heretofore allowed in

other suits throughout the state.” None of these were in evidence. Would a court hesitate to

set aside a verdict where a jury made so flagrant an admission of misconduct? Argument

seems unnecessary.

VII. The necessity of the purpose for which water is taken furnishes a limit to the amount

allowed. (Atchison v. Peterson, 20 Wall. 514; Barnes v. Sabron, 10 Nev. 243; Simmons v.

Winters, 27 Pac. 7; Hinman v. Rizor, 27 Pac. 13; Kinney on Irrigation, sec. 150; Kirk v.

Bartholomew, 29 Pac. 40; Cole v. Logan, 33 Pac. 570; Bowman v. Bowman, 57 Pac. 546;

Church v. Stillwell, 54 Pac. 397.) Non-user for a period of five years works abandonment.

(Smith v. Hawkins, 110 Cal. 122.) This is a California case and makes mention of the

California code, but the reason of the holding does not rest wholly on statute. “Water is too

precious an article in the arid region to be permitted to run to waste, and the great weight of

modern authorities hold that where a per��

�� 5


son has diverted a certain portion of the water of a stream, and permits part of the water so

diverted to run to waste, or fails to use a certain portion of the water for some beneficial use

or purpose, he can only hold that part of the water diverted which has been actually applied to

some beneficial use; and his priority only extends to the quantity so used.” (Kinney on

Irrigation, sec. 166.)

Sawyer & Sawyer, for Respondent:

I. There is nothing before this court for consideration, and it will take judicial notice of

that fact. The notice of appeal was filed and served on the 9th day of January, 1901, and states

in part that the appellants appeal from a judgment rendered on the 9th day of November,

1899, more than a year prior to the filing of the notice of appeal. The time in which an appeal

from a judgment can be taken is limited to one year, and an appeal after that time is of no

effect or validity. (Comp. Laws, 3425; Solomon v. Fuller, 13 Nev. 276; Brooks v. Nickel

Syndicate, 24 Nev. 321; Winter v. Winter, 8 Nev. 129.)

II. The attempted appeal from the order overruling the appellants' motion for a new trial

was premature. The order of the 17th day of December, 1900, mentioned in the notice of

appeal, as appealed from, was not an order overruling appellants' motion for a new trial, but

was an order granting the same, unless the respondent would, within sixty days, consent to a

modification of the decree. This he did on the 13th day of February, 1901, over a month after

the appeal was taken. (Kalmes v. Gerrish, 7 Nev. 31; Elko-Tuscarora M. Co. v. Wines, 24

Nev. 305.)

III. The statute relating to appeals must be complied with, or the appeal will be dismissed

by this court of its own motion. (Marx v. Lewis, 24 Nev. 306.) We therefore respectfully

submit that both appeals should be dismissed.


This appeal is taken from a judgment and an order.

The respondent asks us to dismiss both appeals. The appellants confess the motion as to

the appeal from the judgment, and resist the motion as to the appeal from the order.


By the judgment the respondent was awarded 240 square inches, under six-inch pressure,

of the waters of the Muddy river, flowing through certain ditches therein named, for the

purpose of irrigation. The appellants interposed a motion for a new trial, based upon a

statement. On the 17th day of December, 1900, the court ordered “that if written consent to a

modification of the judgment in this case so far as to limit and restrict the right and use of the

plaintiff to 45 square inches of water, running under a six-inch pressure, between noon of the

1st day of July of each year and noon of the 1st day of February of the following year, is filed

herein on behalf of the plaintiff within sixty days, then the motion for a new trial shall be

deemed denied, but otherwise shall be granted.”

The appeal was taken from this order on the 9th day of January, 1901. On the 13th day of

February, 1901, the respondent filed what is termed his “written consent” to the modification

of the judgment as required by the order, in which he states that “in order to avoid the

expense of a new trial, and without waiving any of his rights, but adhering to the same,

consents to such modification, on the condition that no further proceedings shall be had in

said case.”

The respondent claims that the appeal from this order was taken prematurely; that the

order did not become effective as a denial of appellants' motion until the written consent of

the modification was filed on the 13th day of February, 1901.

While this court has refused to consider appeals taken prematurely, and dismissed the

same, yet the showing made for and against the motion presents a new and peculiar question,

which determines the appeal; and we therefore do not consider respondent's motion further

than is necessary in passing upon the main question—as to whether there is anything in the

order, under the showing of the record, from which appellants have the right of appeal. It is a

general rule that, unless the statute restricts the court, it has the power to impose reasonable

terms as a condition to the granting or denying a motion for new trial. (Hayne, New Trials,

166, et seq.; 14 Enc. Pl. & Prac. p. 939.)

We have been unable to find any such restrictive provi��


sion in our statute. While the order of the court quoted is peculiarly worded, yet, when

considered as a whole, it is clear that the order, in effect, granted a new trial unless the

respondent consented to the modification prescribed therein; and, in case of his failure to

comply with the requirements of the order, then the right to a new trial became absolute. No

conditions were imposed upon the appellants, and the acceptance of the conditions imposed

upon the respondent by the order could not be made by him, so as to preclude the rights of

appellants to appeal. The record shows that the respondent did not consent to the conditions

of the order. He, in express terms, imposed conditions in his written consent not authorized

by the order, and which the court, under the record in this case, was powerless to impose.

Respondent could not, by incorporating into his written consent conditions which might

relieve him of the effect of the modified judgment, preclude any rights of the appellants. If he

claimed the benefits of the order, such claim must be made unconditionally. There was, in

effect, no compliance with the terms of the order, and it thereupon became an order

absolutely granting a new trial.

The appellants cannot successfully claim that they are aggrieved, and, so far as this record

shows, there is nothing before this court which can be considered. The case stands for retrial

in the court below.

For these reasons, the appeal will be dismissed.

____________

26 Nev. 183, 183 (1901)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JULY TERM, 1901.

____________

��26 Nev. 183, 183 (1901) Springer v. Clopath��

[No. 1602.]

JACOB SPRINGER, Respondent, v. THOMAS CLO-

PATH, Appellant.

Public Land—Occupancy—When Listed to State—Appropriation—Purchase from State—Title. Mere

occupancy of land at the time it was listed to the state under act of Congress, June 16, 1880, which granted

lands from unappropriated lands, did not constitute an appropriation, so as to render the listing to the state

invalid, and give the occupant title as against a subsequent purchaser from the state.


Suit to quiet title by Jacob Springer against Thomas Clopath. From a judgment in favor of

plaintiff, and order denying defendant's motion for new trial, defendant appeals. Reversed.


Torreyson & Summerfield, for Appellant:

I. It is admitted that plaintiff only claims title to this land by right of possession and

occupancy; that he has no record title to said land; that he has in no way connected ��

�� E��

0��"� �7�� 0��,��


himself with the government title; that he never made or has made any application to the

United States Land Office to preempt or homestead said land; that he has never made any

application to purchase the same from the State of Nevada. Counsel for plaintiff claims that

this land being in the possession and occupancy of plaintiff, and a portion of it improved and

cultivated by him when the State of Nevada made application to select the same, that it was

not of the character of land which the state was entitled to select under the act of June 15,

1880; that it was not at the date of selection “unappropriated, non-mineral public land.” That

under the act of March 5, 1887, the land was in the “actual adverse possession of another” at

the date of the application of the state. (Stats. 1887, 124; Comp. Laws, 325.)

II. Defendant claims: (a) That mere occupancy and improvement of the public lands, no

matter how long continued, gives no title as against the United States or its grantee; (b) That

the statute of limitations has no application to the title of a patentee of the United States

anterior to the issuance of the patent; (c) That the patent from the United States to the State of

Nevada, and from the State of Nevada to defendant's grantor cannot be set aside in a

collateral proceeding. It can only be set aside in a direct proceeding by the United States for

some fraud or mistake; (d) That the possession claimed by plaintiff is not such a possession

as the law requires and therefore the land was “unappropriated, non-mineral public land” such

as the state was entitled to select; (e) That the land department of the government investigates

and determines the character of the land—whether “unappropriated, non-mineral public

land”—and if these officers have been imposed upon the government will step in and correct

the error.

III. Occupation and priority of possession are utterly worthless when opposed to a title, or

right of possession expressly conferred by the proper federal authorities. (Courchaine v.

Bullion M. Co., 4 Nev. 369-374.) It has been often held that mere occupancy and

improvement of the public lands, no matter how long continued, gives no vested right in such

lands as against the United States or any purchaser from them. (Sparks v. Pierce, 115 U. S.

408; Oaksmith "��A��2+�E��0��9'9��?��$��&&1�E��0��'8-�;


Lence v. Franklin, 92 U. S. 343; Deffeback v. Hawke, 115 U. S. 407.)

IV. The statute of limitations has no application to the title of a patentee of the United

States anterior to the issuance of the patent. (Gibson v. Chouteau, 13 Wall. 92; Gardner v.

Miller, 47 Cal. 570.) There can be no adverse possession as against the United States or its

grantees, unless there be a new entry after the grant. The individual making the original entry,

after the grant by the United States, remains an intruder. (Cook, et al., v. Foster, 2 Gilm. Ill,

652; 1 Am. & Eng. Ency. of Law, 2d ed., 875; Jutana v. Smith, 95 Cal. 154-156-157;

Treadway v. Wilder, 12 Nev. 108; Gibson v. Chouteau, 13 Wall. 92.)

V. It is within the province of the land department to inquire into the character of these

lands before certifying the same to the state, as to whether it was “unappropriated

non-mineral public land,” and the presumption is they did so, and, if determined by it to be of

the character the state is entitled to select, this determination would be conclusive in the

absence of fraud, imposition or mistake. This determination cannot be attacked in a collateral

proceeding. The only way this certification can be set aside or anulled is by a direct

proceeding instituted by the United States for some fraud practiced upon it, or on account of

some mistake of fact or law occurring when the certification was made. (Carter v. Thompson,

65 Fed. Rep. 329-31; Barden v. R. R. Co., 154 U. S. 288; U. S. v. William, 30 Fed. 309;

Quimby v. Conlan, 104 U. S. 426; Green v. Hayes, 70 Cal. 281; Tubbs v. Wilhoit, 73 Cal. 61;

French v. Fyan, 93 U. S. 169; Refining Co. v. Kemp, 104 U. S. 636; Steel v. Refining Co.,

106 U. S. 447; Sparks v. Pierce, 115 U. S. 408; Wright v. Roseberry, 121 U. S. 488; Standard

Quicksilver Co. v. Habishaw, 64 Pac.; C. P. R. R. Co. v. McCann, 58 Pac. Rep. 1045; 1

Dembitz on Land Titles, 503, 514-518; U. S. v. Mullan, 118 U. S. 271-6-7.)

VI. When the selections are approved by the secretary of the interior, a list of them, with

the certificate of the commissioner of the general land office, is forwarded to the state

authorities. The list thus certified operates to convey the title to the state as fully as by patent.

(Rev. Stats. U. S.


2449; McCheery v. Haskell, 119 U. S. 331; Frasher v. O'Connor, 115 U. S. 102-112-6;

Howell v. Slausen, 83 Cal. 545; Schieffery v. Tapis, 68 Cal. 184-6.)

VIl. “The want of authority, which will make an instrument of this kind void, is a total

want of authority to issue a patent for the subject of the grant; not a latent impropriety in

exercising the authority by reason of unknown imposition, moving to its exercise when the

proofs authorizing it are (or have been) formal and sufficient.” (Kahn v. Old Tel. M. Co. 11

Morrison Mg. Rep. 658.) So also, according to the doctrine in the cases cited, if the patent be

issued without authority, it may be collaterally impeached in a court of law. “This exception

is subject to the qualification that when the authority depends upon the existence of particular

facts, or upon the performance of certain antecedent acts, and it is the duty of the land

department to ascertain whether the facts existed, or acts have been performed, then its

determination is as conclusive of the existence of the authority against any collateral attack,

as is its determination upon any other matter properly submitted to its decision.” (11

Morrison Mg. Rep. 682; Hoofnagle v. Anderson, 7 Wheat. 212; Boardman v. Lessees of

Reed, 6 Pet. 328; Bagnell v. Broderick, 13 Pet. 436; Johnson v. Towsley, 13 Wall. 72; Moore

v. Robbins, 96 U. S. 550.) The only method by which a patent, such as is involved in this

case, can be attacked is by a direct action on behalf of the government of the United States to

set it aside on the ground of some fraud, imposition or mistake.

M. A. Murphy, for Respondent:

I. We claim that the title, as derived by Clopath from the State of Nevada, is absolutely

null and void: First—By reason of the fact that the land is not or was not unoccupied land, it

having been in the possession of Springer and his grantors since the year 1864, about twenty

acres of it being enclosed within the field of the said McGee and Mr. Springer; irrigating

ditches being constructed upon it, and Mr. Springer cultivating from twelve to fifteen acres of

the same. Second—By reason of the fact that Clopath, not being a citizen of the United

States, could not enter the land in his own ��

(��


name, and, from the testimony of himself and Mr. Baird, it is plain to be seen that the

agreement was entered by and between them for the purpose of entering property in violation

of the United States and the state land laws. Third—That the land, being occupied, was not

public land, and, by act of Congress of June 16, 1880, is excluded from the character of lands

granted to the State of Nevada by said act.

II. Section 3287, General Statutes of Nevada, reads: “An action may be brought by any

person in possession, by himself or his tenant, of real property, against any person who claims

an estate or interest therein adverse to him, for the purpose of determining such adverse

claim, estate, or interest.” Under statutes similar to the above, it has been held that: “A party

may maintain an action to quiet title whether he be in or out of possession, and whether his

title be legal or equitable.” (Foree v. Stubbs, 41 Neb. 273; Hall v. Hooper, 47 Neb. 117;

Scorpion S. M. Co. v. Marsano, 10 Nev. 379.) “One in possession of realty may sue another

claiming an interest therein.” (Pomeroy's Remedies and Remedial Rights, sec. 369; Lovelady

v. Burgess, 52 Pac. 25; Cook v. Forsyth, 30 Cal. 662.) “The complaint need not state the

source of plaintiff's or defendant's title.” (Curtis v. Sutter, 15 Cal. 262; Rough v. Simmons, 65

Cal. 227; Scorpion S. M. Co. v. Marsano, 10 Nev. 379; Golden Fleece G. & S. M. Co. v.

Cable Consolidated G. & S. M. Co., 12 Nev. 321; Rose v. Richmond M. Co., 17 Nev. 51.)

III. Under the complaint in this action we can introduce evidence in rebuttal to impeach

this patent, on the ground that the land was not of the character which the state was

authorized to select from, by reason of the fact, that it was not unoccupied public land, and, at

the date of its selection, it was in the adverse possession of the plaintiff. (Parley's Peak M.

Co. v. Kerr, 130 U. S. 260; Ely v. New Mexico and Arizona R. R. Co., 129 U. S. 192; Wall v.

Magnes, 17 Colo. 476; Amter v. Conlon, 22 Colo. 150; People v. Center, 66 Cal. 555; Roy v.

Duluth Iron Range R. Co., 69 Minn. 548; this case is affirmed in 173 U. S. 587; Union M. &

M. Co. v. Warren, 82 Fed. 151.)

IV. The land embraced in the David A. Baird patent, and selected by the state, was known

to be occupied, and not public land, by Baird and Clopath, at the date of such application � ��


and selection. Under the terms of the grant to the State of Nevada, and by the express

provisions of the above act, and not being of the character embraced by the granting act, and

not intended to be granted thereby, its selection by the state and certification by the secretary

of the interior, were null and void, and no right, title, claim or interest was conveyed thereby.

(Weeks v. Bridgman, 159 U. S. 545; English v. Leavenworth, Lawrence & Galveston R. R.

Co., 23 Land Decisions, 343; Stokes v. Pensacola and Georgia Railroad Co., 24 Land

Decisions, 396; Scott v. State of Nevada, 26 Land Decisions, 629.)

V. A party in possession of public land, which he has under his dominion and control, but

who had failed to preempt the same, cannot, after the expiration of the period within which he

could have availed himself of his prior right of entry and purchase, be deprived of such land

by a qualified homesteader making an entry thereon in accordance with the homestead law.”

(Nichals v. Winn, 17 Nev. 192.) And, as said in the opinion of Judge Sabin, in the case of U.

S. v. Williams, 12 Saw. 147: “Under this state of facts, it cannot be contended, under the

repeated decisions of both national and state courts, that this land was unappropriated, public

land at the time of its selection by the state or at the date when it was listed to the state. If,

then, the lands in controversy were not ‘unappropriated public lands,' and within the terms of

the grant at the date of the selection and listing to the state, as they were not, such listing was

without authority of law, and was and is void, and no valid title passed thereby.” This

decision of Judge Sabin's was affirmed by the Supreme Court of the United States. (138 U. S.

514; Whitney v. Taylor, 45 Fed. 616; affirmed by the Supreme Court of the United States, 158

U. S. 88.) In the case of the United States v. Handy, 54 Fed. 447, Judge McKenna says: “The

listing and certification of lands to the state is not conclusive upon a federal court as to the

findings of fact implied by the approval of the land officers, but such court can set it aside for

inadvertence or mistake.” Therefore, we say here that Springer, being in the actual possession

of the land described in his complaint at the date of the application of the said Baird was

made and the selection of the same by ��0��,��

� ��


the State of Nevada, the state had no title to convey, and the patent is absolutely void; as the

patent was inoperative to pass the title, objection to it can be taken at any time and in any

form of action, and the plaintiff, though he has no title except naked possession, can question

its validity. (Cucamonga Fruit L. Co. v. Moir, 83 Cal. 101.) The certifying of the lands to the

state did not transfer the title, because the commissioner of the general land office had no

authority to certify any lands to the state, except those to which the act of Congress applied,

and it being occupied and exempt under the provisions of Section 2 of the act of June 16,

1880. The act of Congress of August 3, 1854, supra, declares that such listing of lands shall

be perfectly null and void when the lands are not embraced in the acts of Congress. Where a

sale of land by officers of the land department of the state is unauthorized, because the tract

named in the patent is not of the class granted to the state by act of Congress, the patent is

void and can be assailed from any quarter, and by parol evidence.

VI. The state has no right to make a selection of land that is in the adverse possession of

another at the date of its selection; and, if the officers do act and make the selection, their acts

are void, and a patent issued thereon is absolutely void. (Polk v. Wendall, 9 Cranch, 87; New

Orleans v. U. S., 10 Pet. 662, 730; Wilcox v. Jackson, 13 Pet. 498; Stoddard v. Chambers, 2

How. 284, 317; Easton v. Salisbury, 21 How. 426, 428; Reichart v. Felps, 6 Wall. 160; Best

v. Polk, 18 Wall. 112, 117; Leavenworth R. R. v. U. S., 92 U. S. 733; Newhall v. Sanger, 92

U. S. 761; Sherman v. Buick, 93 U. S. 209; Steel v. Refining Co., 106 U. S. 447; Railway Co.

v. Dunmeyer, 113 U. S. 629, 642; Reynolds v. Mg. Co., 116 U. S. 687; Edwards v. Rolley, 96

Cal. 409; Hermecilla v. Hubbell, 89 Cal. 7; Klauber v. Higgins, 117 Cal. 456; Garrard v.

Silver Peak Mines, 82 Fed. 578.)


M. A. Murphy, for Petitioner (Respondent):

I. The opinion as rendered by this honorable court holds that the location as made by the

grantors of Springer in the year 1862, and thereafter partially enclosed and cultivated by0�� <��5�� E�� 0�� .�(�3��/��&�0��9''�/��#��&+�D��'8=��,��D��B��B��3��3��&�'�E��0��9=9��)��D��B��B��?��&&9�E��0��+8��$��H�?��B��B��/��&9+�E��0��91-�/��&1=�E��0��=1��"�� ?��&88�E��0��&&9��( ��*��&1��E��0��1''�


Springer and his grantor, did not constitute an appropriation of the land under the definition

as given to the word “appropriation” under the preemption laws of the United States, and

cites as authorities the following cases: McConnell v. Wilcox, 1 Scam. 344; Wilcox v.

Jackson, 12 Pet. 408; Northern Pac. R. R. Co. v. Coburn, 164 U. S. 383; Kansas Pac. R. R. v.

Dunmeyer, 113 U. S. 620; Hastings & Dakota R. R. v. Whitney, 132 U. S. 357; Whitney v.

Taylor, 158 U. S. 85; Lansdale v. Daniels, 100 U. S. 113, Maddox v. Burnham, 156 U. S.

544. We most respectfully submit that the case of McConnell v. Wilcox, reported in 1

Scammon, commencing at page 344, was correctly decided by the circuit court of Cook

county, improperly reversed by the supreme court, and the correct principle established by the

Supreme Court of the United States in the 13th Peters, at page 498.

II. There is quite a difference in the wording of the acts granting lands to the railroads, as

the one granting lands under the 2,000,000-acre grant to the state. In the first it is, “or

otherwise disposed of by the United States, and to which a preemption or homestead claim

may not have attached at the time the line of said road is definitely fixed.” In the case of

Kansas Pacific Railroad v. Dunmeyer, 113 U. S. 629, 644, Justice Miller, speaking for the

court, said: “Of all the words in the English language, this word attached was probably the

best that could have been used. It did not mean mere settlement, residence or cultivation of

the land, but it meant a proceeding in the proper land office, by which the inchoate right to

the land was initiated. It meant that by such a proceeding a right of homestead had fastened to

that land, which could ripen into a perfect title by future residence and cultivation.” In the act

of Congress granting lands to the State of Nevada, the language used is: “The lands hereby

granted shall be selected by the state authorities of said state from any unappropriated,

non-mineral, public land in said state.” For the definition of the word “attached,” in land

laws, see Kansas Pacific R. R. Co., v. Dunmeyer, 113 U. S. 644; Weeks v. Bridgman, 41

Minn. 352.

III. The petitioner in this case wants to be distinctly understood as not claiming any vested

right as against the United States, by the settlement and cultivation of the land ��


by his grantors and himself; but what he does claim is that, he being in the possession,

improving and cultivating the same, the state could not, under the terms of the act granting

land to the state, legally or rightfully select the same, because it was appropriated.

IV. The statutes of this state recognize the right of a party to enter upon and take

possession of the unsurveyed government land, and the courts of this state have always

protected such settlement and possession, and, as between individual citizens, rights to the

possession of the public lands have been recognized and protected by the courts of the

territories and new states and of the United States, and acquiesced in by the government.

(Lamb v. Davenport, 1 Saw. 620, 621.)

V. We claim that, under the definition given to the word “appropriation” by all writers,

the land in controversy was not unappropriated land; but was, and had been, appropriated and

cultivated by Springer and his grantors for years prior to its selection by the state.

VI. It is a well-settled principle that no right can be established by settlement and

improvement on public land where the claimant forcibly intrudes upon the possession of one

who had already settled upon, improved, and enclosed such land. Such intrusion is but a

naked unlawful trespass, and cannot initiate a right of preemption. (Atherton v. Fowler, 96 U.

S. 513; Tremouth v. San Francisco, 100 U. S. 251; Wirth v. Branson, 98 U. S. 118; Quimby

v. Conlan, 114 U. S. 420; Mower v. Pletcher, 116 U. S. 380; Weeks v. White, 41 Kan. 572.)


Action to quit title, brought under the provisions of Section 256 of the practice act

(Section 3351, Comp. Laws.)

It appears from the statement on motion for new trial that plaintiff's predecessor in interest

settled upon twenty acres of the land described in the complaint in the year 1862. It was then

unsurveyed public land. He afterwards fenced it and cleared off a portion of it. After his death

his heirs transferred it to plaintiff, who has been in possession of it ever since. He has not

connected himself with the title of the E�� 0��0��,��

��


United States or of the State of Nevada, and claims to hold by possession and occupancy

only.

In the year 1898 one David A. Baird made application to the proper officer to purchase the

land from the State of Nevada, and upon June 17th of the same year made the first payment of

$10 thereon. Thereafter, and upon final payment, a patent issued to Baird, from whom

defendant deraigns title. The land was listed to the state under the act of Congress approved

June 16, 1880, granting 2,000,000 acres of land from the unappropriated, non-mineral public

lands in the state in lieu of the sixteenth and thirty-sixth sections.

Findings of fact in conformity with the above statement were made. As conclusions of

law, the court decided that, at the date of Baird's application for purchase, plaintiff and his

grantors had appropriated the land, and that its selecting and listing were without authority of

law and void, and judgment was accordingly entered in favor of the plaintiff. The question is

whether the conclusion of law is correct, that the land had been appropriated.

The term “appropriation,” as used in the preemption laws, was defined by the Supreme

Court of Illinois in the case of Jackson v. Wilcox, 1 Scam. 344. That was an ejectment against

an officer of the United States commanding a military post. Plaintiff's lessor claimed a

preemption under the provisions of the act of Congress approved June 19, 1834 (4 Stats. at

Large, 678.) That act revived a preemption law passed May 30, 1830, authorizing settlers or

occupants to enter a certain quantity of land, subject to the restriction “that no entry or sale of

any land shall be made under the provisions of the act, which shall have been reserved for the

use of the United States, or either of the several states, or which is reserved from sale by act

of Congress, or by order of the president, or which may have been appropriated for any

purpose whatsoever.” (4 Stats. at Large, 420.) Defendant, upon his part, insisted that the land

had been appropriated for military purposes.

In its opinion the court say: “We take it for granted that there can be neither a reservation

nor appropriation of the ��

��5


public domain, for any purpose whatever, without the express authority of the law.”

And later: “It is, in our judgment, entirely useless to discuss the precise meaning of the

term ‘appropriated,' in its general and extended sense, because its meaning and application in

the manner it has been used in the preemption law cannot, we think, admit of a doubt. It

means nothing more, in the sense in which it is used, than an application of the lands to some

specific use or purpose by virtue of law, and not by any other power.”

The case went to the Supreme Court of the United States. The judgment of the Illinois

court was reversed upon the ground that certain acts of Congress which that court considered

obsolete and inapplicable were determined by the supreme court to be pertinent and

controlling.

In its opinion the court said: “We now return to the inquiry whether the land in question

falls within any of the prohibitions contained in the act of Congress. Amongst others, lands,

which may have been appropriated for any purpose whatsoever are exempt from liability to

the right of preemption. Now, that the land in question has been appropriated in point of fact

there can be no doubt; for the case agreed states that it has been used from the year 1804 until

and after the institution of this suit, as well for the purpose of a military post as for that of an

Indian agency, with some occasional interruption. Now, this is appropriation, for that is

nothing more nor less than setting apart the thing for some particular use. But it is said that

this appropriation must be made by authority of law. We think that the appropriation in this

case was made by authority of law.

“As far back as the year 1798 (see act of May 3d of that year, vol. 3, Laws U. S. 46) an

appropriation was made for the purpose, amongst other things, of enabling the president of

the United States to erect fortifications in such place or places as the public safety should, in

his opinion, require. By the act of 21st of April, 1806 (vol. 4, Laws U. S. 64), the president

was authorized to establish trading houses at such posts and places on the frontiers or in the

Indian country on either or both sides of the Mississippi river as he should ��

�� @� ��


judge most convenient for carrying on trade with the Indians. And by act of June 14, 1809, he

was authorized to erect such fortifications as might, in his opinion, be necessary for the

protection of the northern and western frontiers.

“We thus see that the establishing trading houses with the Indian tribes and the erection of

fortifications in the West are purposes authorized by law, and that they were to be established

and erected by the president. But the place in question is one at which a trading house has

been established, and a fortification or military post erected.

“It would not be doubted, we suppose, by any one, that if Congress had by law directed the

trading house to be established and the military post erected at Fort Dearborn, by name, that

this would have been by authority of law. But instead of designating the place themselves,

they left it to the discretion of the president, which is precisely the same thing in effect.

“Here, then, is an appropriation, not only for one but for two purposes, of the same place,

by authority of law. But there has been a third appropriation in this case by authority of law.

Congress, by law, authorized the erection of a lighthouse at the mouth of Chicago river,

which is within the limits of the land in question, and appropriated $5,000 for its erection;

and the case agreed states that the lighthouse was built on part of the land in dispute before

the 1st of May, 1834. We think, then, that there has been an appropriation, not only in fact,

but in law.” (Wilcox v. Jackson, 13 Pet. 498.)

The definition given to the word “appropriated” as used in the act of Congress of 1830, is

the opposite of the meaning of the word “unappropriated” as it appears in act of June 16,

1880. The word “unappropriated,” as used in the latter act, means unappropriated by any law

of Congress.

Again, a settler upon a tract of public land, occupying and cultivating it, but without entry

in the land office, acquires no rights against a government grantee.

In Railroad Co. v. Colburn, 164 U. S. 383, one Kelly settled upon the land. The state court

held that his cultivation and occupation created a claim which he could have perfected �� !��


under the public land laws, and therefore excepted the land from the company's grant.

The court said: “If it be true, as matter of law, that mere occupation or cultivation of the

premises at the time of the filing of the map of definite location, unaccompanied by any filing

of a claim in the land office then or thereafter, excludes the tract from the operation of the

land grant, the decision of the Supreme Court of Montana was right. But frequent decisions of

this court have been to the effect that no preemption or homestead claim attaches to a tract

until an entry in the local land office. Thus, in the case of Railroad Co. v. Dunmeyer, 113 U.

S. 629, 644, Mr. Justice Miller, speaking for the court, said: ‘Of all the words in the English

language, this word “attached” was probably the best that could have been used. It did not

mean mere settlement, residence, or cultivation of the land, but it meant a proceeding in the

proper land office by which the inchoate right to the land was initiated. It meant that by such

a proceeding a right of homestead had fastened to that land, which could ripen into a perfect

title by future residence and cultivation.' This language was quoted and the decision

reaffirmed in Railroad Co. v. Whitney, 132 U. S. 357; Whitney v. Taylor, 158 U. S. 85.

“In Lansdale v. Daniels, 100 U. S. 113, 116, it was ruled that ‘such a notice of claim or

declaratory statement is indispensably necessary to give the claimant any standing as a

preemptor, the rule being that his settlement alone is not sufficient for that purpose.' See, also,

Maddox v. Burnham, 156 U. S. 544. Now in this case the allegations are that Kelly never

made any entry in the local land office, and the decision of the secretary of the interior is

based simply on the fact of occupation and cultivation. And, while the decision of that fact

may be conclusive between the parties, his ruling that such occupation and cultivation created

a claim exempting the land from the operation of the land grant is a decision on a matter of

law which does not conclude the parties, and which is open to review in the courts. * * * For

the reasons above indicated, because the decision of the land department was only on matters

of fact, and � ��

�� 5��


did not conclude the law of the case, and because such facts so found were not of themselves

sufficient to disturb the title of the railroad company, the judgment is reversed,” etc.

The judgment of the district court in this case is reversed, and cause remanded, with

instructions to enter judgment in favor of appellant, with costs.

Rehearing denied.

____________

��26 Nev. 196, 196 (1901) State v. Douglas��

[No. 1607.]

THE STATE OF NEVADA, Respondent, v. LESLIE E.

DOUGLAS, Appellant.

Grand Larceny—Indictment—Duplicity—Robbing Different

Owners—Sufficiency—Accomplice—Coconspirator—Testimony—Admissibility—Instructions—Appeal—Bill

of Exceptions—Records.

1. An indictment, charging defendant with stealing and driving away particularly described cattle of four

different owners, charges but one larceny, and is not duplicitous, so as to require the state to elect on which

count it stands.

2. An indictment charging defendant with stealing and driving away particularly described cattle of four

different owners is sufficient under criminal practice act, sec. 243, subd. 6 (Comp. Laws, 4208), declaring

an indictment sufficient when the act charged is clearly and distinctly set forth in ordinary and concise

language, without repetition, so as to enable a person of common understanding to know what is intended.

3. Where, in a prosecution for larceny which was planned and executed by defendant, it appeared that he had

suggested it to a witness who had been appointed deputy sheriff, and was acting as such, without

defendant's knowledge, when invited to join in commission of the theft, and keeping the sheriff fully

informed as to what was transpiring between him and defendant, such witness was neither a coconspirator

nor an accomplice.

4. An accomplice is not incompetent to give testimony, but the weight thereof is for the jury, under proper

instructions, subject to the restriction of Comp. Laws, 4330, providing that a conviction cannot be had on

the uncorroborated testimony of such accomplice.

5. Where, in a prosecution for larceny, it appeared that defendant alone planned and carried out the theft, which

he invited one acting as deputy sheriff without his knowledge to participate in, which deputy kept the

sheriff informed as to what was transpiring between him and defendant, it was not error to refuse to instruct

that officers of the law should never encourage and assist parties in order to arrest and have them punished

for so doing, and that officers, instead of laying a plan to have defendant arrested for the crime as charged,

should have taken all steps in their power to prevent the commission of the offense, since there was no

evidence on which to base such instruction.

6. Where instructions are not embodied in the bill of exceptions, they are not part of the record, and objections

thereto cannot be considered.


Appeal from the Second Judicial District Court, Churchill County; B. F. Curler, Judge.

Leslie E. Douglas was convicted of grand larceny, and appeals. Affirmed.


Torreyson & Summerfield and George D. Pyne, for Appellant:

I. The court will observe that the indictment does not allege that the taking was at the

same time and same place, or that it was the same act, and there is no testimony to show that

they were taken at the same time and same place. On the contrary, the ranches upon which

these individuals live, whose cattle are alleged to have been stolen, are from two to ten miles

apart, and no cattle were found in the possession of defendant. Only certain hides, with

certain brands were found in the possession of the defendant. None of these hides were the

property of Thelan or Douglas or Kaiser, and it cannot be urged that the defendant can be

convicted of stealing Thelan's cattle or the cattle of Douglas or Kaiser, upon the theory that

the hides found in his possession belonged to cattle owned by Wightman, and the court erred

in assuming in its instructions to the jury that the property alleged in the indictment to have

been taken by the defendant was the property of any of the individuals named in the

indictment.

II. An information charging in one count the larceny of two distinct articles of personal

property belonging to different persons, without alleging that the property of the two owners

was stolen at the same time and by the same act, is bad for duplicity. (Joslyn v. State, 128 Ind.

160; Phillips v. State, 85 Tenn. 551; Nichols v. Commonwealth, 78 Ky. 180-2; State v.

English, 14 Mont. 399, 402; People v. Albrey, 49 Colo. 452; People v. Mayors, 65 Cal. 138;

State v. Thurston, 2 McMul. (S. C.) 382; State v. Nelson, 8 N. H. 163; Com. v. Andrews, 2

Mass. 409.)

III. It is equally well settled that if, on the same expedition, there are several distinct

larcenous takings, as taking the goods of one person at one place, and afterwards taking the

goods of another at another place, and so on, as many ��

��


crimes are committed as there are several and distinct takings. (State v. Emery, 68 Vt. 109,

112.)

IV. The testimony of the witness Joe King should have been stricken out upon the ground

that he was a coconspirator, and that, after the conspiracy has come to an end, whether by

success or by failure, the admissions of one conspirator, by way of narrative of past facts, are

not admissible in evidence against others. (Logan v. U. S., 144 U. S. 309; Williams v. State,

40 Tex. Cr. Rep. 569; People v. Davis, 56 N. Y. 95; Heine v. Com., 91 Pa. St. 145; State v.

Larkin, 49 N. H. 39; People v. Aleak, 61 Cal. 138.) After the common enterprise is ended,

whether by accomplishment or abandonment is not material, no one is permitted by any

subsequent act or declaration of his own to affect the others. (State v. Ross, 29 Mo. 50;

Phillips v. State, 6 Tex. Cr. App. 383; State v. Duncan, 64 Mo. 266.)

V. Sheriffs should never encourage and assist parties to commit crime in order that they

may arrest and have them punished for so doing; it is their duty to prevent crime and “nip it in

the bud,” instead of lending aid and encouragement in carrying it out. (Guyer v. State, 37 Tex.

Cr. Rep. 490; Saunders v. People, 38 Mich. 218.) “In this case the sheriff, instead of laying a

plan to have the crime carried out, should have taken steps to prevent it.” (37 Tex. 490.)

William Woodburn, Attorney-General, and Ed T. Dupuis, for Respondent:

I. The demurrer to the indictment was properly overruled. The indictment did not charge

the commission of four distinct offenses. The charge was that “the defendant, Leslie E.

Douglas, on or about the 26th day of May, A. D. 1900, in Churchill county, State of Nevada,

unlawfully and feloniously did steal, take and drive away one roan steer, * * * the property of

Henry Thelan,” and continues with a description of each animal stolen, with its respective

value and ownership. The stealing of the various cattle constituted but one offense. The

indictment is in the exact language of the statute, and that had been repeatedly held sufficient.

The stealing of different articles at the same time and place constitutes but one crime. (State

v. Ward, 19 Nev. 297.) It ��

��


would seem that the stealing of property of different persons at the same time and place and

by the same act may be prosecuted at the pleasure of the government as one offense or several

distinct offenses. (State v. Lambert, 9 Nev. 324; Commonwealth v. Sullivan, 104 Mass. 552;

State v. Thurston, 2 McMul. 382.) Our conclusion is that the stealing of different articles of

property, belonging to different persons at the same time and place, so that the transaction is

the same, is but one offense against the state, and that the accused cannot be convicted on

separate indictments charging different parts of one transaction as a distinct offense. A

conviction on one bars a prosecution of the other. (2 Graham & W. on New Trials, 5455;

Nelson v. State, 45 Tex. 77.) If goods of several persons are stolen at the same time, the

circumstance of different ownerships does not change the offense, in contemplation either of

law or morality, and that, if there be but one transaction, there should be but one indictment,

there being but one felony, every branch of which is punishable by one prosecution, one

indictment and one sentence. (3 Chitty Cr. Law, 960; 4 Carrington & Pyne, 386.) Where the

larceny consists of but a single act, and the goods stolen belong to different persons, it is

unnecessary that there should be different indictments. (Hoiles v. U. S., 3 McAr. D. C. 370.)

II. Demurrer not sufficient. Counsel for appellant, in his brief, argues, because of the

failure of the indictment to allege that the taking of the cattle was “at the same time and place

and that it was the same act,” that it is therefore invalid. If such argument were tenable, the

appellant certainly cannot be heard in this court for the first time, because the point was not

presented on demurrer. The statute says that the demurrer must distinctly specify the grounds

of objection to the indictment, or it shall be disregarded. (State v. Ah Sam, 7 Nev. 127.)

III. It has been held by this court that a motion to strike out all the testimony of a witness,

where a portion thereof is admissible, the motion should be denied. (State v. Hymer, 15 Nev.

53.)

IV. There is nothing in the testimony to confirm the theory of the appellant—that Joe

King was a coconspirator. An examination of the record will show that he was a duly��


appointed officer of the law, specially detailed to capture a criminal, with an honest purpose

of bringing him to justice. Admitting that he counseled and encouraged the commission of the

offense by a person about to offend the law, if he did so with an honest intention to have him

discovered and punished, his testimony is therefore not to be treated as that of an infamous

prisoner. (Campbell v. Com., 84 Pa. St. 187; Wright v. State, 7 Tex. App. 574.)

F. M. Huffaker, also for Respondent:

I. “The stealing of the property of different persons at the same time and place and by the

same act may be prosecuted at the pleasure of the government as an offense or as several

distinct offenses.” (State v. Lambert, 9 Nev. 321.) “The stealing of different articles at the

same time and place constituted but one crime.” (State v. Ward, 19 Nev. 297.)

II. The witness King was not a coconspirator in any sense of the word with defendant, in

the larceny of those cattle, nor is there any conspiracy alleged in the indictment. Wharton, sec.

698, 9th edition of his Criminal Evidence, lays down this rule: “In case of crimes perpetrated

by several persons, when once the conspiracy or combination is established, the act or

declaration of one conspirator, or accomplice in the prosecution of the enterprise, is

considered the act or declaration of all, and therefore imputable to all. * * * A foundation,

however, must first be laid aliunde, by proof sufficient, in the opinion of the court, to

establish prima facie the fact of conspiracy between the parties; the question of such

conspiracy being ultimately for the jury.” No such question was involved in this case. “The

proof of mere cognizance, with active cooperation, is not enough to prove a conspiracy.”

(Evans v. People, 90 Ill. 384.) “An accomplice is a person who, knowingly, voluntarily, and

with common intent with the principal offender, unites in the commission of a crime.”

(Wharton, Crim. Ev., 9th ed. sec. 440.)

III. An informer or decoy is not a coconspirator or accomplice, and while the defendant

may ask the court to instruct the jury that the testimony of such persons as witnesses should

be closely scrutinized, yet they are always competent, � ��

��


and anything said to them by the defendants at any time concerning his connection with the

offense charged can be given in evidence, because such a person is but a feigned

coconspirator or accomplice. In all such cases the testimony is admissible, the credibility of

the witness being left to the jury. (Wright v. State, 7 Tex. App. 574; State v. McKean, 26

Iowa, 343; People v. Farrell, 30 Cal. 316; Com. v. Elliott, 101 Mass. 104; Com. v. Ford, 111

Mass. 394.) This witness, Joe King, was appointed a deputy sheriff by the sheriff of Lyon

county, and directed by the sheriff to get in with the defendant and ascertain about his

supposed theft of beef cattle; this is the purport of the testimony, conclusively showing that

King was acting throughout this transaction as a detective, and the question of his credibility

was properly left by the court to the jury.

IV. If a jury believe from the testimony of an accomplice, who may have been induced to

make disclosures from remorse, or from any motive, why should they not be allowed to credit

him? Is he in a position different from any other witness whose credibility is to be inquired

into? We can see no real difference. * * * “The tendency with us at present is to arbitrarily

exclude as little as possible, but to listen and give credence to whatever tends to establish the

truth. The innocent should not be convicted, nor should the guilty escape punishment, by

reason of any merely arbitrary rule preventing the free and full exercise of the judgment as to

the truthfulness or untruthfulness of testimony, and the reliance to be placed upon it in the

trial of cases. In many, probably in most, cases the evidence of an accomplice, uncorroborated

in material matters, will not satisfy the judgment beyond a reasonable doubt, and then it is

clearly insufficient to authorize a verdict of guilty.” (Collins v. People, 98 Ill. 584.) This is

the rule where the witness is unquestionably a coconspirator, or accomplice in crime, with the

defendant; in such case the legislature has said that the testimony must be corroborated.

V. In addition to the character of errors in questions of law set forth, there is another the

defendant seems to rely on—that is the insufficiency of the evidence to sustain the judgment

of the court or warrant the verdict of the jury.


This in the criminal law goes to the extent only: Is there legal evidence in favor of the verdict

and judgment? If there is, then there is no question of law as to this before this court, and the

judgment and verdict will not be interfered with. (State v. McInnis, 6 Nev. 109.)


The appellant was charged with the crime of grand larceny, was tried and convicted

thereof, and sentenced to imprisonment in the state prison for a term of ten years. He appeals

from the judgment and the order denying his motion for a new trial.

1. He complains that the court erred in overruling his demurrer to the indictment. The

specific objection made by the demurrer is that the indictment charges four distinct larcenies.

At the proper time he asked the court that the state be directed to elect as to which of the

offenses charged he should be placed upon his trial. This request was refused, and the refusal

of the court is assigned as error. As the action of the court in overruling the demurrer and in

refusing to direct the state to elect involves the same question, the assignments may be

properly considered together.

The indictment charges that appellant, on or about the 26th day of May, 1900, at the

county of Churchill, State of Nevada, unlawfully and feloniously did steal, take, and drive

away a particularly described steer, of certain alleged value, the property of Henry Thelan;

certain other particularly described cattle, of certain alleged value, the property of Lee

Wightman; certain other particularly described cattle, of certain alleged value, the property of

W. F. Kaiser; and certain other particularly described cattle, of certain alleged value, the

property of J. M. Douglass.

If the language used in this indictment charges four distinct larcenies, then, under the

provisions of our criminal practice act (Comp. Laws, 4203), appellant's contention is tenable,

and the demurrer should have been sustained, and the request for the election should have

been granted.

This court has intimated that the stealing of property of different persons at the same time

and place, and by the same act, may be prosecuted, at the pleasure of the state, as one ��


offense or several distinct offenses. (State v. Lambert, 9 Nev. 324.)

While the authorities bearing upon the rule that such larceny may be prosecuted as one

offense are not uniform, yet we are of the opinion that the weight of authority, considered

with reference to reason and with the statute defining larceny, is against the claim of

appellant.

In a strong and well-reasoned case, in which a large number of authorities are collected

and cited against appellant's contention, the Supreme Court of Indiana uses the following

language, which we quote with approval: “We recognize no good reason to depart from what

may be considered the great current of authority, and hold the pleading in question bad, when

it can reasonably be said that it discloses that the larceny complaint of was but a single act or

transaction in violation of the law against larceny, although the property which was the

subject of the crime belonged to several different persons. The particular ownership, as

charged in the pleading, of the money stolen, did not give character to the act of stealing, but

was merely a part of the description of the particular crime charged to have been committed.

The information, prima facie, under the circumstances, can be said to charge but one offense

against the state, and is not open to the objection that it is bad for duplicity.” (Furnace v.

State, (Ind. Sup.) 54 N. E. 441.)

This is a later case than Joslyn v. State, 128 Ind. 160, cited by appellant, and overrules that

case.

It seems to us that the language used in the indictment in the case at bar, charging the

defendant, at the same time and place, with having stolen the property of different persons,

charges but one offense, one act or transaction in violation of law, and fills the measure

required by the sixth subdivision of Section 243 of the criminal practice act (Comp. Laws,

4208), by which an indictment is declared sufficient when the act charged is clearly and

distinctly set forth in ordinary and concise language without repetition, and in such manner as

to enable a person of common understanding to know what is intended. Not only does the

indictment sufficiently charge one act of larceny by which the property of different persons

was taken, but the evidence submitted to the jury shows that ��

��


there was but one offense committed. The witness King, to whom appellant made his

confession while still in possession of part of the stolen property, testified that appellant

stated to him that he rode down in the night and sorted out of a band of cattle the eighteen

head, and drove them away.

2. During the progress of the trial one Joe King was called as a witness, and testified to a

confession made to him by appellant. The appellant asked the court to strike the testimony

given by King from the record, for the reason that it appeared that King was a coconspirator

in the commission of the crime charged. The refusal of the court to strike out is assigned as

error. The record does not show that the witness was a “coconspirator,” within the meaning of

that term. He did not participate in the criminal act, and did not suggest or plan it. It does

show that the appellant planned and committed the crime. It further shows that he suggested

the commission of the crime to the witness, who had, in anticipation of some such suggestion,

been appointed a deputy sheriff by the sheriff of Lyon county, and was acting as such, without

the knowledge of the appellant, when appellant invited him to join in the commission of the

crime of larceny; that the witness consented to join in the offense, but did not, and kept his

principal, the sheriff, fully informed as to what was transpiring between him and appellant.

It also shows that all that was done or said by the witness was without criminal purpose or

intent. He was not, under the facts shown, either a coconspirator or accomplice, and his

evidence should not be treated as such. (Campbell v. Com., 84 Pa. 187; Wright v. State, 7

Tex. App. 574; People v. Farrell, 30 Cal. 316.)

But, if it were even shown or admitted that the witness King was an accomplice, that fact

does not render him incompetent to give testimony under our statute (Comp. Laws, 4667).

The weight to be given to his testimony is a question for the jury, under proper

instructions, subject, however, to the statutory restriction (Comp. Laws, 4330) that a

conviction cannot be had upon the uncorroborated testimony of such accomplice. It was not

error, therefore, to refuse to strike out the testimony of King.


3. The appellant requested the court to instruct the jury that the officers of the law should

never encourage and assist parties to commit crime, in order to arrest and have them punished

for so doing; that it is their duty to prevent crime, instead of lending aid and encouragement

in carrying it out, and in this case the officers of the law, instead of laying a plan to have

defendant commit the crime as charged, if the jury believed from the evidence that they did

lay such plan, should have taken all steps in their power to prevent the commission of the

offense. The refusal of the court to give this instruction is assigned as error.

It is settled by the decisions of this court that it is not error to refuse instructions, if there is

no evidence before the jury making them applicable, even though such instructions contained

correct statements of the principles of the law. (State v. Waterman, 1 Nev. 543; State v.

Squaires, 2 Nev. 226; State v. Ah Loi, 5 Nev. 99.)

It is sufficient, without passing upon the correctness of the rule of law contained in the

instruction asked, to say that this instruction was not applicable to the facts of the case at bar.

We believe the evidence shows conclusively that neither the sheriff nor his deputy

suggested the commission of the crime. It further shows that neither of these officers assisted

in the commission of the crime, and that whatever plan was laid for the commission of the

theft was solely and exclusively the plan of the appellant, and by him alone carried into effect.

4. Whether or not there is any merit in the claim that the court erred in refusing to give the

instruction relating to the testimony of detectives is not before us. It appears from the action

of the court in refusing to give the instruction that it had been given in substance, and the

record fails to affirmatively show that such was not the fact. Whatever instructions were

given by the court are not properly brought here, and under the rule announced in State v.

Maher, 25 Nev. 465, there is nothing for us to consider.

5. We cannot consider the objections to instructions given by the court. These instructions,

not having been embodied in the bill of exceptions, are no part of the record. (State v. Forsha,

8 Nev. 173; State v. Burns, 8 Nev. 251; State v. Rover, 11 Nev. 343; State v. Maher, 25 Nev.

465.) ,��


No error having been shown, the judgment and order will be affirmed.

____________

��26 Nev. 206, 206 (1901) Yori v. Cohn��

[No. 1599.]

L. YORI, Respondent, v. ELKAN COHN, Appellant.

Trial—Continuance—Witnesses—Absence. Where a defendant relying on promises of material witnesses, living

without the state, who were not served with process, that they would be present at the trial, fails to take

their depositions, a continuance will be allowed on an affidavit showing that they are prevented from

attending by sickness. (Massey, C. J., dissenting.)


Continuance—Absence of Witness—Failure to Take Deposition—New Trial—Statement of

Case—Impeachment—Sale—Condition—Waiver—Appeal—Harmless Error—Questions Considered.

1. A continuance will not be granted by reason of the absence of witnesses residing outside the state, though

such witnesses have promised to appear and testify, as the party relying on their testimony should have

taken their depositions.

2. Where the parties fail to agree as to the statement of the case on motion for new trial, and the statement is

settled by the court, as required by Civ. Pr. Act, 197, the certificate of the judge that the statement has been

allowed and is correct cannot be impeached on appeal by extrinsic evidence, but can only be modified or

corrected in the trial court.

3. A condition in a contract of sale that title shall not pass until the delivery of the bill of sale, being solely for

the security of the vendor, the non-delivery thereof cannot be urged as a defense to an action for the

purchase price, as showing the commencement of the action before the title has passed, as the vendor may

waive such condition.

4. The admission of evidence having no bearing on any issue in a cause is harmless error.

5. Where the evidence shows that a judgment is so clearly right that it should not be reversed for error in

admitting or excluding evidence or giving instructions, such error will not be considered on appeal.

(Fitzgerald, J., dissenting.) Judgment and order appealed from affirmed, and former opinion reversed.

Appeal from the First Judicial District Court, Douglas County; C. E. Mack, Judge.

Action by L. Yori against Elkan Cohn. From a judgment in favor of plaintiff and an order

denying a new trial, defendant appeals. Reversed.


Trenmor Coffin, Samuel Platt, and D. W. Virgin, for Appellant:

I. The promise of two absent witnesses to attend a trial, � ��

��26 Nev. 206, 207 (1901) Yori v. Cohn��

and their unavoidable absence, is sufficient to justify a continuance. (People v. Brown, 46

Cal. 102; People v. Vermilyea, 7 Cow. N. Y. 368; Mowat et al. v. Brown et al., 17 Fed. Rep.

718; Brown v. State, 65 Ga. 332.)

II. An affidavit for continuance may not be rebutted by a contradiction of its statement of

facts. In a word, an affidavit for continuance is not traversable. (Horn v. St. of Ga., 62 Ga.

362; Salisbury v. The Commonwealth, 79 Ky. 425, see especially 430; Dixon v. State, 2 Tex.

Ct. App. 530; State v. Rainsbarger, 74 Iowa, 200; State v. Dakin, 52 Iowa, 395, especially p.

400; Eslinger v. East et al., 100 Ind. 434.) It is a flagrant usurpation of the powers of a jury

for the trial judge to predicate a decision of a motion for a continuance upon controverted

facts touching the merits of the case. The above-cited cases, we think, clearly sustain this

position.

III. The property involved in this case was inventoried in a bill of sale signed by both

parties. This written instrument (together with a check and two promissory notes) was placed

in the hands of a third party, and carefully sealed in a single envelope. Both parties instructed

the depositary that the envelope should not be opened nor the contents delivered until their

combined assent should be given. The bill of sale and the check and notes were never

delivered by the depositary, because one of the parties to the agreement refused to consent.

As there was no delivery of the bill of sale, no title to the property passed from the plaintiff to

defendant and hence no cause of action for its recovery or value. (11 Am. & Eng. Ency. Law,

p. 336, et seq.; Benjamin Dietz v. John F. Farish, 53 How. Pr. Rep. 217; Miller v. Sears, 91

Cal. 282.)

IV. The admission of the telephone message in evidence, against the general objection of

defendant, was such error as should reverse the case. Defendant was not a party to the

message. It was received in his absence, and without his knowledge, in answer to a message

sent by plaintiff in defendant's absence and without his knowledge. It was purely hearsay. It

was incompetent for any purpose in any view of the case. The infirmity of incompetency

appeared upon the face of the offer, and could not in any possible view of the case, or by any

means, have been obviated. (Bornheimer v. Baldwin, 42 Cal. 32-4; Russell v. Brasseau, 65

Cal.

��26 Nev. 206, 208 (1901) Yori v. Cohn��

605-7; Espalla v. Richard, 94 Ala. 159, 161-2; State v. Patrick, 107 Mo. 147, 152-3-4; Beard

v. Am. Car Co., 63 Mo. App. 390-92.)

V. A general objection to evidence is sufficient where the incompetency or inadmissibility

of the evidence offered appears upon the face of the offer, or where the proper specific

objection, if made, could not be obviated. Hayne, in his excellent work on New Trial and

Appeal, states the rule as follows: “The rule then may be stated to be that objection to the

admissibility of evidence must be specific in all cases where the objections could be obviated

if pointed out, but that where they could not be obviated a general objection is sufficient.”

(Hayne on New Trial and Appeal, sec. 105, p. 297.) Justice Rhodes, in delivering the opinion

of the Supreme Court of California, applies the rule as follows: “The ruling of the court will

be sustained in excluding the testimony, if its introduction is improper, without regard to the

grounds of the objection stated by counsel, if the true objections could not have been obviated

on being stated.” (Miller v. Van Tassel, 24 Cal. 459, 463.) This rule has been followed and

applied in many decided cases, among others the following: State v. Soule, 14 Nev. 453,

455-6; Espalla v. Richard, 94 Ala. 159, 161-2; Nightingale v. Scannel, 18 Cal. 315, 323-4,

followed in Fabian v. Callahan, 56 Cal. 161; Brumley v. Flint, 87 Cal. 474; People v.

Gordon, 99 Cal. 234; Wise v. Wakefield, 118 Cal. 110; Kent v. State, 42 Ohio St. 426, 430;

Spottiswood v. Weir, 80 Cal. 451; Tooley v. Bacon, 70 N. Y. 34; Quinby v. Straus, 90 N. Y.

664; Grant v. Cottrell, 143 N. Y. 677-9; Hodges v. Hodges, 106 N. C. 375; McCadden v.

Lowenstein, 92 Tenn. 614, 621-2; 8 Ency. Pl. & Pr. p. 228d, notes and authorities; Hurlburt

v. Hale, 39 Neb. 889; Clark v. Huber, 25 Cal. 598. See Hayne's New Trial and Appeal, sec.

105, pp. 294-9, where many authorities are cited, compared and commented upon. In denying

defendant's motion for a new trial, orally, from the bench, the learned district judge said: “If

the telephone message had had any effect upon the jury in deciding the case, the ruling might

have been different, but I do not think it had any effect upon the jury.” This declaration from

the bench was in effect a confession of error. No rule of law is better set��

��

��26 Nev. 206, 209 (1901) Yori v. Cohn��

tled than that where error is shown injury is presumed. (Hayne's New Trial and Appeal, sec.

287, pp. 853-6, and authorities cited.) In Santillan v. Moses, 1 Cal. 93-4, it was said: “In such

case the rule is, that, unless it can be seen that the illegal testimony could have had no

influence upon the verdict, we ought to grant a new trial; and it is impossible to tell what

weight the jury allowed to the testimony thus improperly elicited. * * * New trial granted.”

Alfred Chartz, for Respondent:

I. A motion and affidavit for continuance was made and filed. To this point counsel for

appellant address the court, with authorities, to the effect that two absent witnesses to attend

trial is sufficient to justify continuance. This means that, if the lower court in the exercise of

its judicial discretion grants a continuance on the ground of the absence of two witnesses, the

upper or appellate court will not reverse for that cause; and it also means that, if the lower

court in the exercise of its judicial discretion refuses to continue, it will do the same thing. It

is only the question of abuse of discretion that the upper court will look into, and nothing of

the kind is attempted to be shown. The court says: “You depended entirely upon their word

that they would be here.” In a criminal case, as cited in People v. Brown, 46 Cal. 102, where a

defendant is placed at disadvantage on account of his position, greater latitude should be

allowed than in a civil case, where the defendant has every opportunity of defending and

protecting himself. It will be observed that at the time said case was set for trial, according to

the affidavit made on motion to postpone, said witnesses were in California, and defendant

took their word, knowing they were out of the state, and knowing that his principal witness

was sick, and not knowing when or whether she ever would get well, and yet he took no steps

to get her affidavit, thus exhibiting gross negligence.

II. An affidavit of continuance is not traversable, say appellants. True, if it is sufficient.

However, the court states that the evidence given by Mr. Chartz was not considered on the

motion for continuance.

III. The property involved in the case was inventoried by ��

��

��26 Nev. 206, 210 (1901) Yori v. Cohn��

both of the parties a number of times, and a price was set and agreed upon by both parties for

each and every article, and said inventory does not include any real property, or any rights to

the use or enjoyment of real property.

IV. Quinn v. White, 26 Nev. 42: “But if, by the terms of the contract, the note or other

security for the price is to be given at once, payable at the expiration of the time for which the

credit is given, in case of a default in giving the note or security, the seller may bring suit at

once, just as if the contract required an absolute payment in cash.” (21 Am. & Eng. Ency.

Law, 588, and a very long list of authorities therein quoted under note 2; see, also, Parsons on

Contracts, 7th ed. vol. 3, p. 211, which authority is quoted and approved in Hays v.

Weatherman, 14 Ind. 341; Manton v. Gammon, 7 Ill. App. 201; Campbell v. Buller, 32 Mo.

App. 646; McCormick v. Bassal, 46 Iowa, 235; Barron v. McMullen, 21 Minn. 374;

Crawford v. Avery, 35 Miss. 305; Young v. Garrett, 83 Tex. 497; Hanna v. Mills, 21 Wend.

N. Y. 90; Yale v. Coddington, 21 Wend. N. Y. 175; Wheeler v. Harrah, 14 Or. 325;

Stephenson v. Repp, 47 Ohio St. 551; Rinehart v. Olewine, 5 W. & S. Pa. 157; Rice v.

Andrews, 32 Vt. 691; Hale v. Jones, 48 Vt. 227; Foster v. Adams, 60 Vt. 392; Mussen v.

Price, 4 East. 147; Dutton v. Solomonson, 3 B. & P. 582; 2 La. Ann. 562.)

V. When there has once been an acceptance by the buyer it is absolutely binding and

conclusive upon him. It renders him liable for the price agreed on, and he cannot question the

quantity or quality of the goods. (21 Am. & Eng. Ency. Law, 562.)

VI. “The rule, we think, is well settled that a verdict which is undoubtedly right on the

evidence—that is, so clearly right that, if it were the other way it would be considered

contrary to the evidence—should not be set aside because of the admission of improper

evidence, or the giving of incorrect instructions.” (Robinson v. Imperial S. M. Co., 5 Nev. 78;

3 Nev. 157; 33 Cal. 299.) “In order to justify a reversal of the case, the error should be of

such character that its natural and probable effect would be to change or modify the result.”

(Fleeson v. Savage M. Co., 3 Nev. 157.)

VII. The defendant himself testifies to the price agreed to �� (�

��26 Nev. 206, 211 (1901) Yori v. Cohn��

be paid for each article, and that he accepted the articles upon full investigation, and that he

was offered his bill of sale if he would deliver the check and the notes, and that he refused,

and in another part of his testimony he testifies that he was in possession of the lease of M.

Cohn to Yori before he bargained with Yori, and knew the contents thereof, and that said

lease by its terms forbade any transfer thereof, and he further testifies that the agreement

between himself and Yori about the lease was that Yori should go off the ranch and he should

go on the ranch and take his chances about the lease. This is the testimony of the defendant.

Did he want his absent witnesses to testify that his own statements are not true?

VIII. “Error in excluding testimony is cured by its admission at a subsequent stage of the

trial.” (Winter v. Fulston, 20 Nev. 261; Patchen v. Keely, 19 Nev. 404; Mandelbaum v.

Liebes, 17 Nev. 132.) The court at first sustained objections of plaintiff to questions asked

plaintiff with reference to whether or not Yori did not sell defendant a lease with the other

articles, but the court finally permitted the questions to be asked and permitted counsel to go

fully into the matter. Further in the testimony all objections were withdrawn, and the lease

about which so much ado was made was finally introduced in evidence by plaintiff himself.

IX. “The principle has long been settled that the action of the primary courts on an

application for a continuance, whether granting or refusing, is matter of discretion, whether

granting or refusing, and neither revisable on appeal, nor to be controlled by mandamus.” (14

Am. & Eng. Ency. Law, 1st ed. 114; 1 Nev. 73; Locker v. Child, 11 Ala. 640.) Will not

continue for absence of witness, and continuance is discretionary. (Ex Parte Jones, 66 Ala.

202; 1 Brickell's Digest, 874, sec. 2; People v. Superior Ct., 19 Wend. N. Y. 701; Louisiana

v. Judge of Parish Court, 15 La. 521; Territory v. Ortiz, New Mex. 5; Palmer v. Jones, 49

Iowa, 405; State v. Farrer, 20 La. Ann. 99.) See, also, People v. Francis, 38 Cal. 183, where

reasons for belief that witnesses can be procured must be stated, when they reside out of the

state. The character of diligence used in trying to obtain the evidence of the witness, whether

by exhausting the process of the law or other��

��26 Nev. 206, 212 (1901) Yori v. Cohn��

wise should also be stated. (People v. Thompson, 4 Cal. 238, cited in 23 Cal. 158; 24 Cal. 38;

38 Cal. 188; 56 Cal. 6; State v. Gray, 19 Nev. 216.) Affidavit must state the facts. (State v.

O'Flaherty, 7 Nev. 153.)

Trenmor Coffin, Samuel Platt, and D. W. Virgin, for Appellant, in reply:

I. The evidence of Mr. Chartz having been admitted by the court over appellant's

objection, it does not lay in the court's mouth to say, and the court and the judge thereof are

estopped to say, that the testimony would not be considered, or would have no weight in the

decision of the motion, or now to say that such testimony was not considered. Respondent

and his counsel, having procured this testimony to be admitted against appellant's objection,

are now estopped to say that it was not considered or had no weight upon the decision of the

motion. In Mason v. Wolf, 40 Cal. 246, 249, the court said: “We think this evidence

inadmissible, and none the less so because the case was tried by the court without a jury.” “If

the court admits incompetent evidence against objection, no other inference can be drawn

than that the evidence is considered entitled to some weight in the determination of the issue

of fact which is being tried. A judge will not be heard any more than a juror to say that, in

giving his decision, he was influenced by certain portions of the evidence, and not by others.”

Hayne on New Trial and Appeal, sec. 287, pp. 855-7, and authorities cited; Spangle v.

Dillinger, 33 Cal. 282; Carpenter v. Williamson, 25 Cal. 163; Humphreys v. Harkey, 55 Cal.

284; Rogers v. Borchard, 82 Cal. 347, 350.) An examination of pages 11 and 12 of the

statement will show that the words (page 12, at end of line 22, insert): “The evidence given

by Mr. Chartz as to what Mr. Friedman would testify to has no bearing on this motion and

will not be considered in deciding this motion,” which words are upon a rider attached to

page 12, were an inconsistent afterthought. On page 12, line 22, the court, addressing counsel

for appellant, after overruling their objection to this testimony, says: “You may have the

benefit of an exception.” The language upon the rider, which is to follow line 22, makes the

court ��

��26 Nev. 206, 213 (1901) Yori v. Cohn��

say that it will not consider testimony just admitted against objection. Such action is so

entirely inconsistent and contradictory within itself that it is not to be attributed to, or

presumed of, a court presided over by an intelligent and learned judge. The testimony was

offered and admitted for no other purpose than to be considered in deciding the motion.

Indeed, it could not have been offered or admitted for any other purpose, for the reason that

no other question was before the court. The court must have considered this testimony,

because, immediately after having heard it, the court denied appellant's motion. At lines 31

and 32 of the same page (p. 12) the court says: “I shall not grant the continuance, so that

settles it.”

II. Again, an examination of the official shorthand reporter's report of the testimony and

proceedings in the case shows that the words contained upon this rider, attached to page 12 of

the statement, are not contained in the report, and were not used or spoken at the time the

motion was decided, and there is no showing or suggestion in this case that the shorthand

reporter's transcript of the testimony and proceedings is not correct. The shorthand reporter's

report is a part of the record on appeal. (Comp. Laws, 3292.) That section provides that “to

identify any (naming other documents) testimony taken by a reporter * * * read or referred to

on the hearing (of motion for a new trial), it shall be sufficient that the judge designate them

as having been read or referred to in his certificate to be for that purpose by him made

thereon.” The language quoted indicates that it was not the intention of the legislature to

make the identification of the record or parts of the record by the judge's certificate, exclusive

of other modes of identification, but that section only says that that mode shall be sufficient.

The stenographer's transcript of the testimony and proceedings in the record of this case is

certified by the clerk of the court, and is identified as having been read or referred to on the

hearing of the motion for a new trial, by the clerk's certificate and the affidavit of two of

appellant's attorneys. The affidavit states ample reasons why the transcript of testimony and

proceedings was not identified by the judge, and why it was necessary to identify it in the

manner adopted. A ��

��

��26 Nev. 206, 214 (1901) Yori v. Cohn��

judicial error occurring at the trial of a cause may be made less prominent and less apparent

by additions to or diminutions of the record after trial, but neither the legal nor the actual

injury suffered by the party aggrieved or injured by the error is thereby cured or remedied.

III. Counsel for respondent devotes much space in his brief to an endeavor to show that

the transfer of the lease was no part of the sale by Yori to Cohn, but that Yori simply sold the

personal property coupled with an agreement to “go off the ranch,” and let Cohn take his

chances on the lease and the possession of the ranch. Adopting this view for the purpose of

argument, we submit that the evidence, taken altogether, shows that Yori refused to “go off

the ranch,” and that therefore the alleged sale was never consummated, nor the personal

property delivered, as it was agreed that it should be delivered.

Alfred Chartz, for Respondent, in reply:

I. “Equity declares that he who alleges contradictory claims is not to be heard.”

(Carpentier v. Webster, 27 Cal. 562; Myer v. Cohn, 29 Cal. 280; Chaquette v. Orket, 60 Cal.

594.) Defendant alleges in his answer that a certain lease and leasehold right was to be

delivered to him as a part of the contract. At page 72 of the statement he testified that he did

not say anything about the lease. He also testified that he knew the conditions of the lease,

and at page 79 he testified that he was to take his chances on the restrictive clause of the

lease, and at page 80 he testified that Yori stated to him he did not want to assign the lease to

him; it did not make any difference; he would be in possession, and he would take the

consequences. At page 84, et seq., he testified that it was agreed that Yori should go off the

ranch and he should go on the ranch, and take his chances about the lease. Defendant Cohn

should not now be heard on these contradictory statements, and he is bound by his own

admissions made contrary to his interests. The maxim habemus opimum testem, confitentem

reum applies to his case. He made a plenary confession as to the real terms of the contract

about the lease. There was nothing left to explain; Yori was to go off the ranch, and he was to

go on the ranch, and 3��

��26 Nev. 206, 215 (1901) Yori v. Cohn��

Cohn was to take his chances on the lease. It was a self-disserving statement.

II. Counsel cites authorities to show that “A judge will not be heard any more than a juror

to say that in giving his decision he was influenced by certain portions of the evidence, and

not by others.” But the authorities, and particularly cases he cites, do not support his

contention, and are not applicable to this case. Greenleaf on Evidence, vol. 1, sec. 49, says:

“In trials of fact without the aid of a jury, the question of the admissibility of evidence,

strictly speaking, can seldom be raised; since, whatever be the ground of objection, the

evidence objected to must of necessity be heard by the judge, in order to determine its

character and value. In such cases the only question, in effect, is upon the sufficiency and

weight of the evidence.”

III. “A motion for a new trial can be heard only on the record made and settled before the

motion is made. An order granting or refusing a new trial can be reviewed by the supreme

court only on the record made and settled before the order is made.” (Quivey v. Gambert, 32

Cal. 304.)


Alfred Chartz, for Respondent:

I. Insufficiency of affidavit for continuance. The very best time to right a wrong is before

any injury follows from it. A decision of the supreme court of this state becomes a rule of

conduct, and as binding as a statute. This being the fact, petitioner most strenuously urges a

searching and careful review of the authorities and investigation of the probable results of the

rule announced in the majority opinion in this case. This should be granted in deference to the

minority opinion as well as for any other reason; not to intimate that the court did not once

carefully weigh the authorities, but claiming that a review would be beneficial.

II. “The promise of a witness to attend is an insufficient excuse.” (4 Ency. Pl. & Pr. 862,

and the authorities there quoted, as follows: Wilkins v. Moore, 20 Kan. 538; Swenson v.

Autman, 14 Kan. 273; Clouston v. Gray, 48 Kan. 31; Campbell v. McCoy, 3 Tex. Civ. App.

298; Texas R. Co. v. Hall, 83 Tex. 675; Mackubin v. Clarkson, 5 Minn. 247; "��(��F��91�3��'1+��D��I� ��9�$��

��26 Nev. 206, 216 (1901) Yori v. Cohn��

Lightner v. Menzel, 35 Cal. 452; Parish v. Gardner, 3 Harr. (Del.) 495; Hill v. Fond du Lac,

56 Wis. 242; State v. Cross, 12 Iowa, 66; Foster v. Henson, 76 Iowa, 614; Dimmey v.

Wheeling R. Co., 27 W. Va. 32; Doe v. Johnson, 3 Ill. 523; Day v. Gelston, 22 Ill. 103; State

v. Shreve, 39 Mo. 90; Langener v. Phelps, 74 Mo. 189; Rome R. Co. v. Barnett, 94 Ga. 446;

Blount v. Beale (Ga. 1894) 22 S. E. Rep. 52; Freeland v. Howell, Anth. (N. Y.) 198; Marks v.

State, 101 Ind. 353; Toledo R. Co. v. Stephenson, 131 Iowa, 203.)

III. “Continuances on the ground of absent witnesses who are out of the state and beyond

the process of the court will only be enforced in strong and clear cases, in which three

elements must occur: (1) Materiality and admissibility of the evidence; (2) Due diligence; (3)

Affirmative showing that the absent witness can and will be produced at a future term.” “If a

person relies upon the promise of a witness to be present at a trial, he cannot obtain a

continuance if the witness does not attend.” “An affidavit for continuance on account of the

absence of a witness in another state or county must state facts showing whether or not there

is reasonable ground for believing that the future attendance of the witnesses can be procured.

A statement by the defendant in his affidavit that he is ‘confident' that he can procure such

attendance is not sufficient.” (State v. O'Neil, 9 West Coast Rep. (Oregon Sup. Ct. 1886)

151.) In the affidavit at bar it is stated as follows: “Affiant has no doubt but he can obtain the

attendance of both said witnesses.” So, this court must distinguish between the words

“confident” and “no doubt,” under a ruling that affiant must state facts showing whether or

not there is reasonable ground for believing that the future attendance of the witness can be

procured, as stated in State v. O'Neil, ante. It is submitted that words “no doubt” don't show

the facts any better than the word “confident.”

IV. “Affidavits are construed strictly and most strongly against the applicant, and it is not

strengthened by any presumption in its favor. It must show positively that due diligence has

been exercised by the party applying. * * * The statements should be made definite and

specific enough �� 5

��26 Nev. 206, 217 (1901) Yori v. Cohn��

than an indictment for perjury will lie if they are false.” (Am. Eng. Ency. Law, vol. 3, 1st ed.

p. 807.)

V. “Material facts must be stated positively.” Affiant averred on information and belief

that the sheriff had been informed of the place where the witness would be found. Held, that

the fact should have been stated positively in the affidavit.” (State v. Tim O'Flaherty, 7 Nev.

153.)

VI. “An affidavit for continuance in a criminal case on account of the absence of

witnesses should give assurance of their attendance at the time to which it is proposed to

continue, and show the means of affiant's information; and unless such attendance seems

probable, the continuance should be denied. (State v. Rosmurgey, 9 Nev. 308.)

VII. “It (the affidavit) states only the ultimate fact or conclusion, to wit: That they had

reason to believe their attorney would attend to the case, instead of stating the probative facts

upon which the belief was based. * * * Whether they did have reason to so believe was a

question to be determined by the district court upon the facts constituting the grounds of

belief.” (Brown v. Warren, 17 Nev. 420.) Compare that with the affidavit of Cohn that he

used all “practicable and possible diligence,” and it would seem difficult to distinguish them

sufficiently to say that one is good and the other bad.

VIII. It is respectfully submitted that the testimony of Elkan Cohn is all-sufficient to

justify the verdict, irrespective of any other testimony in the case. He bought the goods at an

agreed price; he received them, and accepted them, and dealt with them as his own for weeks,

and never offered to return any of them, but simply refused to pay; he never raised any

question about the lease until after he was sued, and that was an afterthought, raised by his

attorneys; he never asked for any assignment of said lease, and never objected to the character

of his possession until after he was sued.

By the Court, Fitzgerald, J.:

Plaintiff recovered judgment in the trial court for the sum of $18,236.69, being, as plaintiff

alleged, the balance due on �� %+8�+'&��2�� %+�881�� %&=�+9&�

��26 Nev. 206, 218 (1901) Yori v. Cohn��

a contract of sale by the plaintiff to the defendant of certain personal property; the contract

price therefor being $20,241.69, and the defendant having paid the sum of $2,005, thus

leaving unpaid the said sum of $18,231.

Defendant denied that the contract was for the sale of the personal property only, but

alleged that a certain lease and leasehold right was to be assigned by plaintiff to defendant,

and that the sum of $20,241.69 was the price agreed to be paid for both said personal property

and said lease and leasehold right.

Defendant further alleged that the plaintiff failed and refused to assign said lease and

leasehold right to him, thus breaking the contract.

Defendant pleaded the above-mentioned breach of contract as his defense, and claimed of

the plaintiff damages for said alleged breach the sum of $10,000.

Defendant also alleged that the said personal property was not worth the sum of

$20,246.69, or any greater sum than $10,000. The defendant appealed from the said

judgment, and also from the order of the trial court denying his motion for a new trial.

The defendant moved for a continuance in the case. The court denied the motion, and

defendant assigned the said denial as error. The facts concerning this assignment of error, as

they appear by the settled and certified statement on appeal, are as follows:

“The defendant moved for a continuance of said cause upon the ground of the unavoidable

absence of material and necessary witnesses in said cause, to wit, the absence of Joseph

Friedman and Minnie Friedman, his wife. Said motion was made upon the following

affidavit, to wit: ‘In the District Court of the First Judicial District of the State of Nevada in

and for the County of Douglas. L. Yori, Plaintiff, vs. E. Cohn, Defendant. State of Nevada,

County of Douglas—ss. Elkan Cohn, being duly sworn, on oath deposes and says: That

Joseph Friedman and his wife, Mrs. Friedman, are important and material witnesses for him

(defendant) upon the trial of the above-entitled cause. That both of said witnesses are at

present at Stockton, San Joaquin county, California, and that on account of the sick��

�� (��

��26 Nev. 206, 219 (1901) Yori v. Cohn��

ness of said Mrs. Friedman both of said witnesses are unable to attend and be present at the

trial of the above-entitled action.

“‘The affiant, the said defendant, cannot safely proceed to trial in the above-entitled action

without the presence and testimony of both of said witnesses, and that he cannot show or

prove the same matters and facts which he expects to prove by said witnesses by any other

persons, and particularly as to the said witness Mrs. Friedman. That by the witness Joseph

Friedman affiant expects to prove and show and establish all of the allegations, matters, facts,

and statements set out and contained in his answer to the plaintiff's complaint in the

above-entitled action; i.e. expects to prove the agreement between plaintiff and defendant,

and the non-performance of said agreement on the part of said plaintiff as stated in said

answer, and all other material allegations therein.

“‘That by the said witness Mrs. Friedman, affiant expects to prove all of the allegations

contained in his said answer concerning the non-delivery of the property which the defendant

claims in his answer that plaintiff sold him; and the plaintiff has and did deprive this affiant,

the said defendant, of whatever of possession or partial possession of the said property he had

previously placed him in, or delivered to him; and that plaintiff has and did by fraud, force,

and arms, etc., as alleged in the answer, retake and recover from defendant whatever of partial

possession he had previously given and delivered of said property and ranch to defendant; and

other matters alleged in said answer. That affiant has used all practicable and possible

diligence in endeavoring to obtain the presence and attendance of both of said witnesses since

the setting of this action for trial.

“‘That the said witnesses wrote to this affiant that they would be here at the trial of this

action, and according to his best knowledge, information, and belief said witnesses are only

prevented from being here by said sickness of said Mrs. Friedman; and, if the trial of this

action is postponed for a short time, affiant has no doubt but he can obtain the attendance of

both said witnesses. That at the time this case was set for trial said witnesses were in

California, and ��

��26 Nev. 206, 220 (1901) Yori v. Cohn��

beyond the jurisdiction of the process of this court. Wherefore affiant prays that said trial of

this action be continued for two or three weeks to enable him to have the attendance of said

witnesses. Further affiant saith not. E. Cohn. Subscribed and sworn to before me this 16th day

of Oct., 1899. N. Blossom, Clerk.'

“Also upon the following telegram: ‘Stockton, Cal. To Sam Platt: My wife very sick.

Cannot come till twenty-third. Answer. J. Friedman.' Also upon the following letter:

‘Homestead, Oct. 13, 1899. Elkan Cohn, Carson City, Nev.—Dear Sir: Yours of the 11th was

received by me last evening. In answer will state that Mr. Friedman and I will come without

fail to attend the case. I look for Mr. Friedman home from the city Saturday morning. We will

wire, and let you know when we leave here, so you can have the case come up when we get

there. Hoping you are in good health, I will close, with kindest regards to yourself and

brother, Toby. Respectfully, Mrs. J. Friedman.'

“Alfred Chartz, Esq., attorney for plaintiff, was sworn in rebuttal of said affidavit and in

opposition to said motion for a continuance as shown by the stenographer's report of the

testimony and proceedings herein, as shown upon pages 11 to 13 of this statement. Said

affidavit was read to the court, but the court denied plaintiff's motion for a continuance of the

trial of said cause, to which refusal and ruling defendant duly excepted.”

“Monday morning, Oct. 16, 1899. The case of L. Yori, Plaintiff, v. Elkin Cohn, Defendant,

called.

“The Court: Are you ready to try this case?

“Mr. Virgin: If your honor please, the defendant has received a telegram from two

important witnesses in this action. On account of sickness, they are unable to be here at this

time, and the defendant has made an affidavit showing what I consider good grounds for a

continuance. I ask that the case be continued for a week or two, so as to allow these two

witnesses, a man and his wife— The wife is ill; too ill to accompany the husband, and the

husband does not want to leave a sick wife; and we need the attendance of both witnesses. I

will read the affidavit of Elkin Cohn as to the sickness of Joseph Friedman and his wife. If

your ��

��

��26 Nev. 206, 221 (1901) Yori v. Cohn��

honor please, the court cannot understand the materiality of this affidavit without the reading

of the answer. I will read the answer, and then your honor will understand whether these

allegations are material or not. (Answer read.) Now, if your honor please, what we expect to

prove by Joseph Friedman is the whole transaction, and Joseph Friedman knew all about it,

because, as will be shown, made this arrangement as between Mr. Yori; that is, as I

understand it, he was commissioned so to speak by Mr. Yori for so much to sell this lease to

Elkin Cohn. Could you imagine a more material witness?

“Mr. Chartz: We will object to any continuance, on the ground that no diligence has been

taken.

“Mr. Virgin: We offer, if your honor please, this telegram, and we ask permission of your

honor to read it: ‘Stockton, Cal., Oct. 15, 1899. To Sam Platt, Carson City, Nevada: My wife

very sick. Cannot come till 23d. Answer. [Sg.] Joseph Friedman.'

“Mr. Chartz: No proper diligence has been exercised. Here is simply a statement, and no

precaution has been taken to prove it; no certificate from a competent physician; absolutely

nothing to show that this affidavit is true. Furthermore, we claim under the affidavit that the

parties were in California—these two important witnesses. These two important witnesses

were beyond the jurisdiction of this court at the time of the setting of this case, and defendant

had ample time to move the court to take their depositions; but, instead of that, an attempt

was made to get me to subpena them, so as to bind me by their testimony. I will show you

that it is utterly false. I claim that the affidavit is utterly false. I got a telegram, too. ‘Stockton,

Cal., Oct. 13, 1899. Mr. Chartz, Attorney at Law, Carson, Nevada: Please send subpenas by

registered mail for Joseph and Minnie Friedman to Homestead, Cal. [Sg.] Minnie Friedman.'

“Mr. Chartz: And I will show, if your honor please, that Elkin Cohn took a team, and

drove Joseph Friedman out of town, and he knows it very well.

“Mr. Platt: If your honor please, I take an exception to the statement of counsel.

“Mr. Chartz: These people wanted to come through me.

��26 Nev. 206, 222 (1901) Yori v. Cohn��

Now, they claim an undelivery of possession, misrepresentation, and the fraud they charge.

“Mr. Platt: I object to any argument of counsel as to the merits of this case. I interpose an

objection.

“The Court: Argue simply to the motion, Mr. Chartz.

“Mr. Chartz: I claim that they have not used proper diligence, and they should have taken

the depositions of these people. It is a great expense to bring the jury and witnesses here, and

we are ready for trial, and they have used no means at all to accomplish their purpose.

“Mr. Platt: May it please the court, I call your attention to the date of that telegram,

October 15, 1899—yesterday, Sunday. It was sent from Stockton upon that date, and would

have been impossible to secure the certificate of a competent physician to present before this

court. We ask for this continuance on the ground that we have used all due diligence, on the

ground that this telegram came at the last moment, and we could not get any better evidence

than this telegram. If we could have gotten a physician's certificate, we would have done so;

but we claim this is the best evidence of these parties' sickness, and they are unable to be

present.

“Mr. Virgin: I want to call your honor's attention to a letter that was received by Mr. Cohn

on the same day as Mr. Chartz's telegram. ‘Elkin Cohn, Carson City, Nevada: Yours of the

11th was received by me last night. In answer will state that Mr. Friedman and I will come

without fail to attend the case. I look for Mr. Friedman home from the city Saturday morning.

We will wire and let you know when we will leave here, so you can have the case come up

when we get there. Hoping you are in good health, I will close, with kindest regards to

yourself and brother, Toby. Respectfully, Mr. J. Friedman.'

“Mr. Chartz: I will call your honor's attention to the fact that there are no subpenas for

these people at all.

“Mr. Virgin: These parties were both here at the time Mr. Friedman was here, about the

day prior to the time this case was set for trial, and Mr. Cohn supposed he would remain here

all this time.

“Mr. Chartz: I desire to be sworn, if your honor please.

��26 Nev. 206, 223 (1901) Yori v. Cohn��

(Mr. Chartz sworn to testify.) If your honor please, I have many conversations with Mr.

Friedman and a man by the name of Davis. Both told me that the lease was no part of the sale.

The lease was not to pass.

“Mr. Platt: I object to any such testimony. It goes to the merits of this case. The case has

not been tried. He is not a witness capable of testifying until the case is tried upon its merits,

and I contend that he be held now to the record.

“The Court: Proceed. (Defendant excepts.)

“Mr. Chartz: Mr. Friedman so stated in the presence of Mr. Platt in his office.

“Mr. Virgin: Q. You say that Mr. Friedman stated to you that this lease was not to pass? A.

No lease to pass whatever; right in Mr. Platt's office.

“Q. That, according to the original agreement between the parties, there was to be no lease

included in the sale? A. That is right.

“Q. Was there anything said in regard to anything on the part of Mr. Friedman? Did he say

there was anything to pass besides this personal property? A. The price agreed upon was upon

the personal property, and no lease in it. If you will call my attention to the matters, I will tell

you all about it.

“Q. Was it to give him possession of the personal property? A. They were not on the

Klauber ranch at the time.

“Q. Was the possession of the Klauber ranch to go into the sale? A. No possession

whatever except the sale of the personal property.

“Q. Now, didn't Mr. Friedman state—if your recollection is so good—did he not state that

Mr. Cohn was to be put in the possession of the Klauber ranch? A. He was in the possession

of the Klauber ranch.

“Q. Did he so state? A. Nothing of the kind.

“Q. Was there anything to be included in the consideration of the payment of this, Mr.

Chartz—any sum of money besides this personal property that you mentioned in your

complaint? A. No sir. Mr. Platt advised him to deliver those notes over to us.

“Q. What notes? A. There were some notes in Mr. Platt's possession.

��26 Nev. 206, 224 (1901) Yori v. Cohn��

“Mr. Platt: If your honor please, all this testimony is to go in under my objection.

“The Court: You may have the benefit of the exception. ‘The evidence given by Mr.

Chartz as to what Mr. Friedman would testify to has no bearing on this motion, and will not

be considered in deciding the motion.' (C. E. Mack, district judge.) As matters now stand, I

will not continue it on that affidavit and telegram. Your witnesses were not within the

jurisdiction of the court. You relied entirely upon their promise to come. You took no steps to

get their depositions, as shown at the present. I cannot continue this case. If you made an

attempt to get their depositions, I would relieve you in case anything had gone wrong. It

would be unreasonable to continue this case. The case was set down some days ago. I shall

not grant the continuance; so that settles it.

“Mr. Virgin: We ask for an exception.

“Mr. Platt: We ask that the letter and telegram be made a part of the affidavit.

“Mr. Chartz: We object to the affidavit and the letter and telegram on the ground that they

are incompetent, irrelevant, and immaterial.

“The Court: The ruling is made.

“Mr. Platt: I ask there be a ruling upon this.

“The Court: There is nothing to rule upon. (Defendant excepts.)

“Mr. Virgin: I ask to introduce this.

“The Court: I do not know whether it is a telegram from them or not. Upon this mere

statement that they are sick, and unable to be present here at this time, after two weeks in

which to get their depositions—you depended entirely upon their word that they would be

here. No showing is made that you used any diligence in getting testimony that was beyond

the reach of this court. You depended entirely upon their word that they would come. I do not

feel warranted to continue the case. Proceed, and, Mr. Clerk, call the names of twelve jurors.”

We think, under the showing made by the defendant, he was entitled to a continuance, and

we cite the following cases: (Johnson v. Mills, 31 Neb. 524; State v. Roark, 23 )��

��26 Nev. 206, 225 (1901) Yori v. Cohn��

Kan. 147; Knauer v. Morrow, Id. 360; People v. Brown, 46 Cal. 102; Mowat v. Brown,

(C.C.) 17 Fed. 718.)

In Johnson v. Mills, supra, the affidavit stated that a codefendant resided out of the state,

and was the only witness by whom certain material facts could be proved; that affiant had

gone to the home of his codefendant, and obtained his promise to be present at the trial, but

for some unexplained cause he had failed to come; and that his testimony could be procured

at the next term.

The court said: “The witness resided out of the state, and his attendance could not be

compelled by the process of the court. The issuing of a subpena would have been unavailing.

True, his deposition could have been taken, but Johnson had the right to rely upon the

promise of his codefendant that he would be present and testify at the trial.”

In People v. Brown, 46 Cal. 102, defendant was indicted February 10, 1873. The cause

came on for trial March 8th. Witnesses residing in the State of Nevada had promised

defendant that they would be present, and, relying upon their promise, he omitted to take their

depositions. It was held that a continuance should have been granted. Counsel for respondent

contends that this error was cured by the evidence given on the trial of the case. We think the

said evidence did not work a cure. The evidence was conflicting, but it did not cure the error

mentioned. On proper showings being made, motions for continuances should be granted.

The court always has the power to prevent abuse of such motions by imposing terms on

which the motions are granted.

Judgment reversed, and cause remanded for a new trial.


Massey, C. J., dissenting:

I cannot concur.

Our statute provides that a motion to postpone a trial on the ground of the absence of

evidence shall only be made upon affidavit showing the materiality of the evidence expected

to be obtained, and that due diligence has been used to procure it. (Comp. Laws, 3255.)

While it is true the affidavit upon which appellant based ��

�� A��

��26 Nev. 206, 226 (1901) Yori v. Cohn��

his motion states that he had used all possible and practicable diligence to obtain the

attendance of the Friedmans, it utterly fails to state what, if anything, was done to that end.

The statement is a mere conclusion, and not a fact. It should have shown the facts—what

steps had been taken to procure the evidence. And upon such showing it became the duty of

the court to say whether due diligence had been used.

It appears from the affidavit that the witnesses resided in California at the time the cause

was set for trial, which fact the appellant well knew. He also knew that their evidence was

material to his defense. He took no steps whatever to procure their testimony, but relied solely

upon their promise to be present at the trial—a promise which he could not enforce by any

process of the court.

It seems to me that, under the provisions of the statute cited, which makes no distinction as

to the showing required by the affidavit on account of the absence of evidence or without the

jurisdiction of the court, some legal steps should have been taken to procure such testimony,

in order to authorize the court to say that due diligence had been used.

It would be just as reasonable, under the requirements of the statute, to allow continuances

on account of absent witnesses within the jurisdiction of the court, under promise to attend

without service of process, as to allow continuances because of the absence of evidence of

witnesses living without the jurisdiction of the court, under promise to attend the trial, where

no attempt has been made to take the deposition of such witnesses, in a case where such

deposition could have been taken before trial.

No court, so far as I have been able to find, has ever held that the promise of a witness

within the jurisdiction of the court to attend the trial excused the failure of the party to use the

process of the court to procure the attendance of such witnesses. All the authorities seem to

hold the other way. (4 Enc. Pl. & Prac. 862, note 12.)

The facts surrounding a particular case might create an exception to the general rule, and I

believe that the rules of the cases cited in the opinion are based upon the peculiar facts

surrounding each case.

In the case at bar it appears that the depositions of the ��

��

��26 Nev. 206, 227 (1901) Yori v. Cohn��

witnesses could have been taken in time for use upon the trial.

Nothing was done in that direction, and I do not believe that appellant can excuse his

failure in that respect by relying upon their promise to be present.

On Rehearing.


The judgment was reversed upon the ground that a continuance should have been granted.

(Yori v. Cohn, 65 Pac. 945.)

A rehearing has convinced me that the judgment should have been affirmed, for this

reason: The affidavit for continuance shows that at the time the case was set down for trial in

the district court the witnesses for whose absence the continuance was asked were in the State

of California, and beyond the jurisdiction of the courts of this state. Under these

circumstances it was the duty of appellant to have procured their depositions. Their promise

to be present at the trial will not excuse him if they do not attend.

A preliminary motion was made by counsel for respondent to strike from the files a

document styled “Reporter's Transcript of Testimony” for reasons specified in the notice, one

of which was that it is not certified by the district judge, or designated by him as having been

read or referred to on the motion for new trial, nor agreed to by the attorneys in the case as

having been so used.

Practically the same question, and upon the same testimony, was before us in a proceeding

in mandamus commenced by appellant against the district judge requiring him to identify this

same testimony, or to show cause, etc.

At the hearing in that case the testimony of the district judge was to the effect that the

statement had not been agreed to by counsel, and that he had in fact settled it after notice

given, and that the testimony here mentioned was not used or referred to on the hearing of the

motion for new trial. Testimony tending to support appellant's position was also introduced,

but the court held that, as the testimony was conflicting, appellant had failed to establish a

clear legal right to the writ, and it was therefore denied. (State v. Mack, page 80, ante.)

��26 Nev. 206, 228 (1901) Yori v. Cohn��

The purpose of appellant in that proceeding was, and his opposition to this motion is, to

make the testimony which the certificate of the district judge impliedly, and his evidence

directly, shows was not read or referred to upon the hearing of the motion for new trial, a part

of the record on appeal in this case.

By Section 197 of the civil practice act it is made the duty of the judge to settle statements

upon motion for new trial which have not been agreed to. Allowing proper credit to the

certificate, it appears therefrom that the statement was not satisfactory to the opposite party as

originally prepared, and that the judge determined the claims of each side according to the

facts, and made the statement conform to the truth.

His certificate that the statement had been allowed by him, and is correct, is the

authoritative record in this court, and cannot be impeached by extrinsic evidence. If defective

or incorrect, it must be corrected in the district court. (Gardner v. Railway Co., 68 Iowa, 588;

Pennsylvania Co. v. Sears, 136 Ind. 460; Bonds v. Hickman, 29 Cal. 460.)

At the close of plaintiff's case a non-suit was moved upon the ground that the bill of sale

had not been delivered to the vendee; that, therefore, no title had passed, and the suit was

prematurely brought. Testimony had been introduced tending to prove that the property

described in the complaint had been sold and delivered to the defendant. If there was a

condition in the bill of sale or in the agreement of the parties by which title was not to pass

except by the delivery of the bill of sale to the vendee, it was a condition favorable to the

vendor, and solely for his security in the matter of payment. He could have waived the

condition if he chose, and did voluntarily waive it, in fact, by delivering the property to the

vendee. The motion was properly overruled.

Numerous exceptions appear in the record as having been taken at the trial to the rulings

upon evidence. Those to which importance is attached are cured, if error occurred, by the

subsequent admission of the excluded testimony. A telephone message was introduced in

evidence from a bank in Reno to the effect that it would honor appellant's check for the sum

demanded in the complaint. This evidence had no ��

��

��26 Nev. 206, 229 (1901) Yori v. Cohn��

bearing upon any issue, and should have been excluded, but its admission could have done no

possible injury to the appellant.

The exceptions touching the instructions have not been argued, and need not be

considered, for the reason that the facts established show that the judgment is so clearly right

that it should not be reversed for error, if there were error, in admitting or excluding evidence

or the giving of an erroneous instruction.

The action was to recover judgment for $20,246.69, less admitted credits upon a sale of

personal property. Appellant admitted the purchase, but defendant upon the ground that

respondent had agreed, in connection with the sale, to assign a lease which he had of the

Klauber ranch, where the property was; that he had not assigned the lease, and that the

property, without the leasehold right, was of little or no value to appellant; that respondent

had also agreed to sell none but sound and healthy cattle, and the cattle sold were unsound

and unhealthy, and he claimed damages in the sum of $10,000, caused by respondent's

interference with the possession of the property.

At the trial respondent contended that he had never agreed to assign the lease of the ranch

for reasons which need not be stated, but he had agreed that he would leave the ranch, and

appellant could take it, and assume the risk of possession, with the owner of the legal title.

Upon cross-examination appellant himself corroborated this view. He also testified to the

correctness of an inventory containing a list of the property, and the agreed price for each

item; that he counted the cows, weighed the cheese and butter, estimated the value of the hay,

and accepted the property at the prices set opposite the several items; that the price for all was

$20,246.69; that respondent never interfered with his possession, except by the attachment by

the sheriff for its purchase price.

By these admissions appellant abandoned all defense to the action except as to the

condition of the cattle. There was a contention upon this subject, but, conceding all that may

be claimed by the evidence, it could not materially affect the verdict.

��26 Nev. 206, 230 (1901) Yori v. Cohn��

It is ordered that the judgment and order be affirmed.

Massey, C. J.: I concur.

Fitzgerald, J., dissenting:

I dissent for the reasons stated in the original opinion in this case.

____________

��26 Nev. 230, 230 (1901) Southern Development Company v. Douglass��

[No. 1598.]

THE SOUTHERN DEVELOPMENT COMPANY OF NEVADA, a Corporation, Petitioner,

v. W. J. DOUGLASS, et al., Constituting the Board of County Commissioners of

Esmeralda County, Nevada, Defendant.

Toll Roads—Expiration of Franchise—Lease to Proprietors—Mandamus. Under act of March 8, 1865, sec. 7, as

amended February 13, 1877 (Comp. Laws, 459), providing that on the expiration of any toll road franchise

its ownership shall vest in the county, but the commissioners of such county may give a lease at a nominal

rental on any such road whereon tolls are now collected to the proprietors for a term not exceeding five

years, the commissioners cannot grant a lease to a toll road constructed in 1882 under such act, since the

phrase, “whereon tolls are now collected,” limited the commissioners' power to grant extensions to such

roads only as were then in operation.

Original Proceeding. Application for mandamus by The Southern Development Company

of Nevada against W. J. Douglass, and others, as County Commissioners of Esmeralda

county. Denied.


M. A. Murphy, for Plaintiff and Petitioner:

I. There can be no dispute but what the board of county commissioners had the power,

and was authorized to make and enter the order as made and entered on the 5th day of

December, 1899. Such power is delegated to them by Section 459 of the Compiled Laws of

Nevada. The boards of county commissioners, in addition to the general powers conferred

upon them by statute, are vested by the above act with the power to extend the time to the

owners of toll roads to collect tolls thereon, and it is a duty enjoined upon them to do so when

the proper application is made. The order � ��

��F��&�� #��&288��


made by the board of commissioners extending the life of the franchise, authorizing the

petitioner to continue to collect toll for the term of five years from the 1st day of January,

1900, was made by said board upon a petition duly signed and presented to the board, which

gave its jurisdiction of the subject matter.

II. The granting of franchises, or the extending of the time to exercise the rights

thereunder, for or to a toll road, by the board of county commissioners, is a legislative act.

Have the boards of county commissioners, being a body of inferior and limited jurisdiction,

who derive their power from the statute, the authority to reconsider, to review, reverse, and

annul their own action, after it has been discussed, entered in the proceedings, said

proceedings having been entered in the minutes of the board, and signed by the presiding

officer? If they do not possess this power, then the order made on the 5th day of December,

1899, by the unanimous consent of every member of the board, is still in force, and the order

made on the first day of October, 1900, is absolutely null and void. (7 Am. & Eng. Ency.

Law, 2d ed. p. 1008.)

III. The legislature having delegated the power to the boards of county commissioners to

extend the time or refuse the right to collect toll to persons or corporations whose franchise

has expired by lapse of time, after they have once acted, they have exhausted the power

delegated to them and cannot again take control of the subject matter until such time as the

term of the agreement entered into by and between the board and petitioner has expired. “It

has been stated as a general principle that a board of commissioners has no power to review,

reverse, or vacate its own action, and there are several authorities holding, without particular

reference to the character of the act as judicial or otherwise, that certain powers conferred on

such boards are not continuous in their nature but are exhausted by a single exercise, and

cannot, therefore be rescinded in the absence of fraud or imposition.” (Am. & Eng. Ency.

Law, vol. 7, p. 1008.) We call the court's attention to the cases of: People v. Supervisors of

Schenectady, 35 Barb. 408; State v. Darke Co., 43 Ohio St. 311; State ex rel. Flowers v. Bd.

of Education, 35 Ohio St. 368; $��D��3��


Hanna v. Putnam Co., 29 Ind. 170; Delaware Co. Supervisors v. Foote, 3 Hun, 527; Wren v.

Fargo, 2 Or. 19.

IV. “Where a board of county commissioners is clothed by law with exclusive jurisdiction

over roads and highways, its judgments and orders are final and conclusive upon the board,

the parties in interest, and third parties.” (Humboldt Co. v. Dinsmore, 75 Cal. 607; 7 Am. &

Eng. Ency. Law, 2d ed. pp. 1008-9; Miller v. Bd. Co. Comrs., 89 Ind. 14; Waugh v.

Chauncey, 13 Cal. 11; Brewer v. Boston R. Co., 113 Mass. 52; 7 Am. & Eng. Ency. Law,

1008; Indiana Cases, ibid.; Heazy v. Black et al., 90 Ind. 334; Howard v. Brow, 37 Neb. 905;

Damrell v. B. S. San Joaquin, 40 Cal. 158; Siebert v. Linton, 5 W. Va. 57; Humboldt Co. v.

Dinsmore, 75 Cal. 607.) “The judgments of the board of commissioners are as conclusive as

those of a court of record and are only reviewable upon an appeal or some other direct

proceeding.” (Waugh v. Chauncey, 13 Cal. 11; Goesnitz v. Seelinger, 127 Ind. 422, 433;

Singley v. Nichols Co., 131 Ind. 214.)

V. The board of commissioners having, in due course, acted as the statute required and

directed upon the statements as presented to them, and the plaintiff and petitioner having

accepted of the terms and conditions imposed by the board, and had printed and posted at

each of the toll gates along the said road the reduced rates of toll to be collected thereafter,

and worked on and improved said road, the board exhausted its power, and could not, after

the close of the term in which such order was made, change or revoke said order. (Weir v.

State, 96 Ind. 311; Bd. of Comrs. v. Gogansport Co., 88 Ind. 199; Graham v. Parham, 32

Ark. 676; Dorsey v. Berry, 24 Cal. 453; People v. Bd. of Supervisors, 35 Barb. 418; People v.

Delaware Common Pleas, 18 Wend. 558; Winter v. Fitzpatrick, 35 Cal. 269; O'Connor v.

Blake, 29 Cal. 316; Harris v. Bd. of Supervisors, 49 Cal. 662; In the Matter of Canal Street,

11 Wend. 154; In the Matter of Mount Morris Square, 2 Hill, 19; Pettee v. Elvira P.

Wilmarth, 5 Allen, 144; McFarland v. McCowen, 98 Cal. 331.)

VI. Therefore, when the board met in October, 1900, by the order of the board made on

that day, they sought to acquire private property for public purposes, by special pro��

� ��.�� ?��&=22�


ceedings, and not through the will or consent of the owners, to wit: The board took away our

franchise and is seeking to avail itself of the benefit of the money that the company has

expended since December, 1899. (Cal. State Tel. Co. v. Alta Tel. Co., 22 Cal. 423.)

VII. That on the 1st day of October, 1900, when the board of commissioners assumed to

act on the matter of the Walker Lake and Bodie toll road, they had no jurisdiction; there was

no petition filed as required by law to give them jurisdiction. The board voluntarily and

arbitrarily ordered the road to be declared a free public highway. Surely the board possessed

no such power. It has been held time out of mind, and no authority can be found to the

contrary, that, when a board of county commissioners is called upon to do a particular thing,

the record must affirmatively exhibit all the facts necessary to give it the authority to do the

act. (Pinch v. Tehama County, 29 Cal. 455.)

VIII. At their meeting on October 1, 1900, no complaint having been made as to the

manner in which the petitioner had conducted the road, and nothing appearing in the record

authorizing the board to act, the board exceeded its jurisdiction in acting upon the matter; its

acts are null and void. (City of Lowell v. Co. Comrs. of Middlesex, 3 Allen, 550; Swift v. Co.

Comrs., 6 Nev. 97; State v. Bd. of Comrs., 12 Nev. 19; Johnson v. Eureka Co., 12 Nev. 30;

State v. Bd. of Comrs., 5 Nev. 318.)

IX. In most every state in this union the control of streets, roads and bridges is under the

supervision of local tribunals, as boards of supervisors, boards of commissioners, county

judges, and common councils, but, whatever may be the title of the tribunal upon which the

authority to direct the government and control of roads and bridges is conferred, its authority

is in such matters of a judicial nature. We do not pretend to say that these tribunals are, in the

strict sense of the term, courts, but, when acting in the matter of roads and bridges, they are

engaged in the exercise of judicial functions; and when they have acted the only way to

review their proceedings is by writ of certiorari. (Doctor v. Hartman, 74 Ind. 222; White v.

Conover, 5 Black. 462; Stone v. Augusta, 46 Me. 140; State v. Richmond, 6 Foster, N. H.

235; State v.�(�?�� +��(��''2��@��(��3��0��&&�/��


McDonald, 26 Minn. 449; In the Matter of Canal St., 11 Wend. 154; Damrell v. B. S. San

Joaquin Co., 40 Cal. 158.)

George S. Green, District Attorney, and Torreyson & Summerfield, for Defendant:

I. It is admitted by counsel, and conclusively shown by the record, that the contract for the

letting of the road was never advertised; that it extended beyond the term of office of any

member of the board making it; that there was a lower bid presented than the one accepted;

that the lease was to commence in the future; that the term thereof as expressed in the order

was for five years and one day, or one day in excess of the time allowed by law; that the

meeting at which the order was made was not one of the regular quarterly meetings provided

for by law; and that the road was a county road.

II. At a regular meeting of the board of county commissioners of Esmeralda county, held

on the 1st day of October, 1900, a full board being present, and counsel for plaintiff being

then and there present at the request of the board, the alleged order of December 5, 1899,

under which plaintiff claims a right to the execution of a lease of the Walker Lake and Bodie

road, was vacated, rescinded, and set aside, and the road was declared to be a free public

highway and county road, by a unanimous vote of the board, and copies of the order were

duly served upon counsel for plaintiff and its secretary, Mr. R. J. Laws.

III. We contend, first, that the order of December 5, 1899, was illegal and void, and that

the board had no right, power, authority or jurisdiction to make it or to execute the lease

thereunder. And, second, that, even if it had such power, it was discretionary with them

whether they should grant a lease or not, and they had the power to subsequently repeal,

rescind and set aside their former legislative action, thus unwisely, unjustly and

improvidently entered. “The granting of a franchise is a legislative act.” (Blood v. Woods, 30

Pac. Rep. 131.)

IV. That “mandamus will never issue to compel a respondent to do acts which are in

themselves unlawful,” or to compel a technical compliance with the law when it violates the��


spirit thereof, are such elementary rules that they need but passing notice. (Chicot County v.

Kruze, 47 Ark. 80; Gruner v. Moore, 6 Colo. 526; People v. Hyde Park, 117 Ill. 462; Ross v.

Lane, 3 Smed. & M. (Miss.) 695; Rosenthal v. State Bd. Canvassers, 32 Pac. 129; Weidland

v. Dodson et al., 30 Pac. 580.)

V. Mandamus will not lie where the right to invoke the writ rests only on the allegations

of the complaint, and it appears that the rights of many persons not before the court would be

affected by its issuance. (Farmer's Independent Ditch Co., 4 Colo. App. 477.) A petition for

mandamus must show on its face a clear right to that which is demanded. (State v. LaGrave,

22 Nev. 417; People v. Dist. Ct. of Colo., 51 Pac. Rep. 510; Huddleson v. Bd. Co. Comrs.,

supra.) Unless the remedy is clear the court will not attempt to determine rights. (Bd. of

Education v. Spencer Co., 35 Pac. Rep. 221; Ewing v. Turner, 35 Pac. Rep. 951; State v.

Missouri Pac. R. Co., 41 Pac. Rep. 964; Wilterding v. Grum, 45 Pac. Rep. 134; Lynde v.

Dibble, 53 Pac. Rep. 370; Wood on Mandamus, 29; Merrill on Mandamus, 63.)

VI. “Nor will the writ be issued where it is doubtful whether the respondent has the right

by law to do the act sought to be compelled.” (Granham v. Parkham, 32 Ark. 676; Chicot Co.

v. Kruze, 47 Ark. 80; Gruner v. Moore, 6 Colo. 526; People v. Forquer, 1 Ill. 104; People v.

Thompson, 115 Ill. 451; People v. Chicago R. Co., 55 Ill. 95; Rice v. Walker, 44 Iowa, 458;

Bassett v. School Directors, 9 La. Ann. 515; Corby v. Durfee, 96 Mich 11; Chosen

Freeholders v. Vandersdale, 42 N. J. L. 536; State v. Lewis, 35 N. J. L. 377; State v. Perine,

34 N. J. L. 254; Matter of Schwager, 36 N. Y. St. Rep. 534.)

VII. “In no case will the writ issue to control the exercise of discretion.” (13 Ency. Pl. &

Pr. p. 526, and cases cited in note 2.)

VIII. “It does not lie to undo what has been done.” (Merrill on Mandamus, sec. 42, and

cases cited; Maxwell v. Burton, 2 Utah. 595.)

IX. It does not lie to correct errors. “When respondent has acted, its action, however

informal or erroneous, cannot be set aside or reversed by such writ.” (Treadway v. Wright, '

,��&&2


4 Nev. 119; State v. Com. of Eureka Co., 8 Nev. 307; Floral Springs M. Co. v. Rives, 14

Nev. 431; Hoole v. Kinkead, 16 Nev. 217; O'Neil v. Reynolds, 116 Cal. 264, 56 Kan. 244.) It

will certainly not lie to set aside the order of the board of county commissioners made on

October 1, 1900, petitioner having failed to set that order aside by a proceeding in certiorari

in this court.

X. Where the resolution of the board of supervisors, to enforce which an alternative writ

of mandate has been issued, is afterward repealed, the writ must be dismissed. (People v.

Bartlett, (Cal.) 5 Pac. Rep. 674.) We see no essential difference between the case cited and

the case at bar.

XI. That a board of county commissioners has power to reconsider and repeal its former

action is indisputable as a proposition of law. (People v. Broome Co., 65 N. Y. 222; Tildean

v. Sacramento Co., 41 Cal. 68; Neal v. Franklin Co., 43 Ill. 267; People v. Klokke, 92 Ill.

134; Matthew v. Cook Co. Comrs., 87 Ill. 590; Beckwith v. English, 51 Ill. 147; Welsh v.

Bowen, 103 Ind. 253; Hundley v. Finney Co. Comrs., 2 Kan. App. 41; State v. Allen, 35 Pac.

Rep. 609; People v. Bartlett, 5 Pac. Rep. 674; Cassin v. Sevella Co., 70 Tex. 419; Griggs v.

Weston Co., 5 N. Y. 274.) “It is not only competent but it is the duty of county commissioners

to rescind an order improvidently granted.” (Lemby v. Forsyth Co. Comrs., 85 N. C. 379;

Makemson v. Kauffman, 35 Ohio, 444.)

XII. “The board of supervisors of a county has no authority to grant a franchise to collect

tolls on a free public highway, and any attempt of the board so to do does not conclude

inquiry as to the character of the road.” (Blood v. Wood, 30 Pac. Rep. 129; El Dorado Co. v.

Davidson, supra; Comp. Laws, 464.)

M.A. Murphy, for Plaintiff and Petitioner, in reply:

I. We most respectfully submit that a toll road with all its rights and franchises does not

vest in a county until such time as the county commissioners shall have taken action, and we

think that Section 7 of the act of 1865, with the amendments (Sec. 459, Compiled Laws of

Nevada), sustains this conclusion. In the case of Davis v. Police Jury of Concordia, reported

in the 1st Louisiana Annual, at page 296, �� .�</��

��4


the court said: “What are the extent and limits of the grant? The question of its duration we

dismiss from our consideration. Whatever may be the power of the state to limit the duration

of such grants, there is not, to our knowledge, any solemn expression of legislative will fixing

the time beyond which they will cease to have effect; and, so long as the state abstains from

interfering, the grant must endure.”

II. There is nothing in the toll-road act that requires that the leasing of the road should be

advertised. It is a general act delegating to boards of county commissioners, legislative duties,

to wit: The right to collect toll on toll roads, which rights are granted in the first instance by

legislative act; it is not a contract, in the sense in which that term is used, that requires the

same to be advertised, or prevents the commissioners from voting upon it by reason of the

fact that it may extend beyond the term of office of any one or all the members thereof; (1)

because the statute provides that the lease may be given for five years; (2) the board of

commissioners is a continuous body, and, although the individual members may die, the

board of county commissioners still exists.

III. That when the board acted and had under consideration the petitions for the lease of

the Southern Development Company, and T. C. Sharp, they were called upon to exercise their

best judgment and discretion; they did so, and awarded the lease to this plaintiff, and, after

they had acted and entered the order in the minutes of the proceedings for the day, their acts

became final, and they could not revoke or annul the same, except upon the ground of fraud.

IV. The petition for the lease only calls for five years' time, and the lease as presented to

the commissioners for their signatures only calls for five years, “commencing on the 1st day

of January, 1900, and continuing until and including the 31st day of December, 1905.”

V. The meeting of the board held on the 4th and 5th days of December, 1899, was a

regular meeting, by reason of the fact that the board had been meeting on the first Monday in

each and every month for a number of years.

VI. There are a large class of cases in which boards of ��

��


county commissioners and other inferior tribunals act in a two-fold capacity; in one of which

they are required to exercise their best judgment and discretion on a given subject, and, after

having exercised it, will still have to perform a merely ministerial duty in carrying its decision

into effect. The case under consideration falls within that class. In so far as the commissioners

exercising their judgment, as to whether or not a lease should be given on the road, or

whether it should be granted to the Southern Development Company, or to T. C. Sharp, was

the exercising of their judgment and discretion, and in so far as their action went on that point

could not have been controlled by mandamus, but, after having exercised that judgment and

discretion and entered the order granting the lease to the Southern Development Company,

then came the ministerial duty involving the exercise of no discretion, to wit: carrying that

order into execution by the signing of the lease in pursuance of the terms of the order spread

upon their minutes which enjoined that duty upon them. They may be compelled by

mandamus to perform that duty. “Mandamus will issue to a board of commissioners to

compel them to enter upon the minutes of its proceedings an agreement made and entered

into by and between themselves and other parties.” (Milburn v. Comrs. of Glynn Co., 37 S. E.

178.) “A claim presented to a board of supervisors, who permitted their session to expire

without taking any action upon it, is regarded as rejected, and mandamus will lie to compel

them to act.” (People v. Supervisors of Richmond County, 20 N. Y. 253, 256; People ex rel.

Bristo v. Supervisors of Macomb County, 3 Mich. 478.)

VII. “The mere fact that the statute provides a remedy does not, however, 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 statutory remedy will afford him a complete remedy, the

writ should issue.” (State v. Wright, 10 Nev. 172, and authorities therein cited; Babcock v.

Goodvich, 47 Cal. 507; High's Extraordinary Legal Remedies, sec. 17, p. 19.)

VIII. The order of the board, made and entered on the 5th day of December, 1899, was a

lease, and not an agree�� <��

�� 0��?��3�� 5��


ment to make one thereafter; the words, “it was ordered that a lease be and the same is hereby

granted to the Southern Development Company for a period of five years,” was a demise

taking effect from the date of the entry of said order, the terms thereof being accepted on that

day by the plaintiff herein. (Kabley v. Worcester Gas Light Co., 102 Mass. 392; Rice v.

Whitmore, 74 Cal. 621.) And it was such an order as the board did not have the authority to

revoke, or set aside.


The petitioner brings mandamus to compel the respondent, the board of county

commissioners of Esmeralda county, to execute a lease to the petitioner, granting the right to

collect toll on the Walker Lake and Bodie toll road for a term of five years commencing on

the 1st day of January, 1900.

It appears that in or about the year of 1882 the petitioner constructed said toll road under

the provisions of our statute, and since that time has continuously operated the same.

On the 5th day of December, 1899, upon the request of the petitioner, the respondent made

an order granting petitioner the right to collect tolls on said road for a term of five years, but

subsequently rescinded the order, and refused to execute the lease upon demand.

Many questions have been discussed, but it is necessary to consider only one, and that

involves the power of the board of county commissioners to execute the lease under the facts

of this case. Whatever power the board has in this matter is given by Section 7 of the act of

March 8, 1865, to provide for the construction of toll roads and bridges in this state, as

amended February 13, 1877 (Comp. Laws, 459).

The section referred to reads as follows: “Upon the expiration or forfeiture of any toll road

franchise granted under the provisions of this act, and in case of the expiration or forfeiture of

any toll road franchise granted under the provisions of any other act, whether the same shall

have already happened or may hereafter happen, the ownership of said road, with all the

rights and privileges theretofore belonging to the same, shall vest in the county or counties in

which said road shall be located; and whenever the same shall have ��

�� 5


happened or may hereafter happen, the county commissioners of the proper county may

declare so much thereof as is within their county a free highway; provided, that in all cases

falling within this section, the county commissioners of the proper county may give a lease at

a nominal rental of any such road whereon tolls are now collected, either under the provisions

of any act of the legislature of this state or by and with the consent of the county

commissioners aforesaid, to the proprietors, their successors or assignees of such road, for a

term of not to exceed five years, giving to such lessee the right to collect tolls on such road,

subject, however, to all the provisions of this act; and upon the expiration or forfeiture of any

such lease and whenever and as often as the same shall happen, the county commissioners of

the proper county, if they deem it expedient, may give a new lease of such road upon the like

terms and conditions, for a further period of not to exceed five years to the original or any

other lessee, unless said road passes through two or more counties, in which case the original

lessee or his assigns shall have preference.”

This section, as originally enacted, reads as follows: “Upon the expiration, or forfeiture, of

any toll road franchise, the ownership, with all the rights and privileges, shall vest in the

county or counties in which it is located, and the county commissioners may declare it a free

highway, or they may collect tolls on such roads to keep them in good repair; provided, the

county commissioners may extend the time of any expired franchises, so as to allow the

owners thereof to collect tolls thereon for five years, subject to all the provisions of this act.”

(Stats. 1864-5, p. 256.)

In 1875 this section was first amended, and as amended reads as follows: “Upon the

expiration or forfeiture of any toll road franchise, granted under the provisions of this act, or

any other act, the ownership of said road, with all the rights and privileges theretofore

belonging to the same, shall vest in the county or counties in which said road shall be located;

and whenever the same shall have happened, or shall happen, the county commissioners of

the proper county may declare so much thereof as is within their county a free highway, or

may collect tolls thereon, to be used in keeping ��

�� 5


it in repair, or may be resolution, extend the term of said franchise to the former proprietor of

said road, or to his successors or assigns, for the term of five years from the date of such

extension, with all the rights and privileges theretofore at any time belonging thereto, subject,

however, to the general provisions of this act.” (Stats. 1875, p. 156.)

The words “whereon tolls are now collected,” found in the proviso of the section as

amended in 1877, are not found in the section as it originally stood, or in the amendment of

1875; and the question arises as to what restrictive effect, if any, have these words upon the

power of the board. It will be observed that under the provision of the section as it was

originally passed the board was empowered to extend the time of any expired franchise

granted under the act for a term of five years.

By the terms of the amendment of 1875 the extension which the board was authorized to

grant was not limited to franchises granted under the act, but extended to franchises granted

under other acts; and by it the board was also authorized to grant the extension not only to the

owner, but to his successor or assigns.

From the language used it is evident that the amendment of 1877 was intended to work a

radical change in the policy of the law regulating this matter.

It seems to us that the words of that amendment were intended to restrict and limit the

power of the board to grant extensions to such roads only as were then in operation either

under the provisions of the act or other acts, or under extensions granted by the board under

the provisions of the amended section of 1875.

To hold otherwise would require that we disregard the restrictive language found in the

amendment of 1877.

If the legislature had intended that the board should continue to exercise the power

conferred by the original section, or by the amended section of 1875, in granting the

extension of the franchise to roads constructed after the enactment of the amendment in 1877,

it would not have restricted such power to roads “whereon tolls are now collected.” These

words would have been omitted, and by their omission the ��

��


amendment would have been a grant of power claimed by the petitioner in this action.

Under the facts of this case the statute confers no power upon the board to execute the

lease, and the peremptory writ will therefore be denied.

____________

26 Nev. 243, 243 (1901)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

OCTOBER TERM, 1901.

____________

��26 Nev. 243, 243 (1901) Ex Parte McMahon��

[No. 1612.]

Ex Parte McMAHON.

Constitutional Law—Disposition of Fines. Const., art XI, sec. 3, provides that all fines collected under the

general law of the state, and all proceeds derived from such sources shall be devoted to educational

purposes only: Held, that Stats. 1901, p. 121, enacted for the protection of wild game, and directing that a

portion of the fines collected thereunder for violation thereof shall be paid to the informer, is

unconstitutional.

Petition by one McMahon for writ of habeas corpus to secure the petitioner's release from

imprisonment for a violation of the game laws. Petitioner discharged.


F. H. Norcross, for Petitioner:

I. Courts have power to review the acts of the legislature as to whether or not in a given

case a general law can be made applicable. (Hess v. Pegg, 7 Nev. 28; Evans v. Job, 8 Nev.

336, 342; Singleton v. Eureka Co., 22 Nev. 97.)

II. There is no relation between game and population, and a game law that applies to

counties solely according to their population is clearly unconstitutional. (Singleton v. Eureka

Co., 22 Nev. 97.)


III. The act is unconstitutional in that it attempts to regulate interstate commerce. (8 Am.

& Eng. Ency. Law, 1st ed. 1029; State v. Saunders, 19 Kan. 127; Com. v. Wilkinson, 139 Pa.

St. 304; 60 Am. St. Rep. Md. 332.)

IV. A police regulation that is a palpable invasion of rights secured by the fundamental

law (interstate commerce) is unconstitutional. (17 Am. & Eng. Ency. Law, 2d ed. 56-7, and

notes 1 to 6, p. 57.)

William Woodburn, Attorney-General, and E. E. Roberts, District Attorney, for the State:

I. For the further protection of game provision is usually made by statute for having in

possession or exposing for sale, during stated seasons of the year, certain specified animals or

fowls. Much litigation has arisen in this connection as to the right of the legislature to

prohibit the possession and sale of game captured or killed in another state, and the courts

have not been altogether uniform in their decisions. The weight of authority, however, seems

to indicate that such right exists, and that such an act may be punished, notwithstanding the

fact that such game may have been brought from a foreign jurisdiction. This doctrine has

been denied by other courts, which hold that when the game was lawfully taken during the

open season, or imported from another state, the mere possession of it during the close season

constitutes no offense and is without the terms of the statute. This non-conformity of

decisions among the several courts is due to the peculiar wording of the several statutes under

which the decisions were made, and the evident intention of the legislature as evidenced by

the peculiar necessity of the locality. (Philips v. Racey, 60 N. Y. 10; 19 Am. Rep. 140.)

II. The protection and preservation of game has been secured by law in all civilized

countries, and may be justified on many grounds, one of which is for the purposes of food.

The measures best adapted to this end are for the legislature to determine and courts cannot

review its discretion. If the regulations operate in any respect unjustly or oppressively, the

proper remedy must be applied by that body. In general, the constitutionality of the several

statutes for the protection of game has been frequently called in question, but ��


they have been almost universally upheld on the ground of the police power of the state.

(Geer v. Connecticut, 161 U. S. 519; Ex parte Maier, 103 Cal. 476; 42 Am. Rep. 129; Exp.

Co. v. People, 133 Ill. 649; State v. Chapel, 64 Minn. 130-38; Allen v. Wyckoff, 48 N. J. L.

57, 90; Am. Rep. 548.)

Per Curiam:

The petitioner was convicted in the justice's court of Ormsby county, Nevada, of violating

Section 5 of the act protecting wild game (Stats. 1901, p. 121), and sentenced to pay a fine of

$25, and in default to be confined in the county jail at the rate of one day for each $2 thereof

until paid.

By the sentence one-half of the fine was ordered paid to one Robinson, the informer.

The petitioner brings habeas corpus for his discharge from the custody of the Sheriff of

Ormsby county.

He contends that the act under which he was convicted is unconstitutional, and points out

many provisions which he claims contravene our constitution.

Many of the points made against the law are not involved in the case, and it is only

necessary to consider the objection to Section 19, under which authority is given for the

judgment directing that one-half of the fine be paid the informer, and therefore directly

involving the validity of the judgment under which he is held.

Our constitution provides, among other matters (sec. 3, art. 1), that “all fines collected

under the penal laws of the state * * * and all proceeds derived from any or all of said sources

shall be and the same are hereby solemnly pledged for educational purposes and shall not be

transferred to any other fund for other uses. * * *”

The language used in plain, clear, and unambiguous, and does not require construction,

and it seems to us that said Section 19 of the act, supra, clearly contravenes this constitutional

provision.

The case decided by the Supreme Court of Wisconsin (State v. De Lano, 80 Wis. 259),

cited in support of the constitutionality of this section of our statute, was based upon a

constitutional provision very different from ours, and is therefore easily distinguished.


While it is true the language of the constitution of Virginia is similar to the language used

in our constitution, we cannot adopt the construction placed by the supreme court of that state

in the case of Southern Exp. Co. v. Com., 92 Va. 59. So to do would result in a construction

both unwarranted and unwise, and might justify legislation which would impair our school

fund. It also appears that much that was said by the court in the Virginia case was not

necessary to a decision of the question involved, and is therefore mere dicta.

It appearing, therefore, that the section authorizing the judgment given in this particular

case is unconstitutional, the judgment is therefore void, and an order will be made

discharging the petitioner from custody.

____________

��26 Nev. 246, 246 (1901) Hardin v. Guthrie��

[No. 1609.]

C. H. E. HARDIN, Petitioner and Respondent, v. J. W. GUTHRIE,

Assessor of Humboldt County, Nevada, Appellant.

Mandamus—Assessment of Taxes—Reassessment.

1. Under Comp. Laws, 1084, requiring the assessor, between the date of the tax levy and the first Monday in

September in each year, to assess all property in his county subject to taxation, mandamus will not lie to

compel the assessor to make the assessment on petitioner's property in compliance with his demand on a

particular day in July, though the petitioner alleged that he had refused and would continue to refuse, to

make any assessment, the writ never being awarded in anticipation of a supposed omission of duty.

2. Mandamus will not lie to compel the assessor, after once making a valuation of property for the purposes of

taxation, to make a revaluation, though the court finds the valuation fixed to be excessive.

Appeal from the Fifth Judicial District Court, Humboldt County; S. J. Bonnifield, Jr.,

Judge.

Mandamus by C. H. E. Hardin against J. W. Guthrie, Assessor of Humboldt County. From

a judgment awarding the writ, defendant appeals. Reversed.


William Woodburn, Attorney-General, for Appellant:

I. There is no provision of the revenue laws of this state giving the petitioner the right to

demand of the assessor of $�� &�� #��&28&��

�� !��


Humboldt county on the 16th day of July, 1901, to determine the true cash value of the

property described in petitioner's affidavit. Section 1084 of the revenue act approved March

23, 1891, provides that, between the date of the levy of taxes and the first Monday of

September in each year, the county assessor shall determine the true cash value of all taxable

property in his county. Section 1078 of the act provides that the board of county

commissioners shall, on or before the first Monday of March of each year, fix the rate of

taxes for each year. These two sections are still in force, not being repealed by the act of

March 16, 1901, which provides for a more uniform valuation and assessment of property in

this state, and which the court below decided to be unconstitutional. It is therefore clear that

the assessor of Humboldt county had the absolute right to exercise his discretion as to the

time between the first Monday of March, 1901, and the first Monday of September, 1901, to

determine the true cash value of the yearlings belonging to said petitioner. Therefore, there

was no duty imposed by law upon the assessor to comply with the request of the petitioner

made on the 16th day of July, 1901. It is only in cases where an officer has no discretion that

the proceeding by mandamus can be resorted to. I call the attention of the court to the two

following cases: State v. Gracey, 11 Nev. 233-234; State v. Rising, 15 Nev. 166, which

conclusively show that this application for a writ of mandate should have been denied.

II. In the case of The State v. V. & T. R. R. Co., reported in Volume 23 of the Nevada

Reports, the court, in referring to the manner of the assessor in estimating the value of the

company's road, uses the following language: “In making the assessment he seems to have

looked the property over and to have come to the general conclusion that it was worth the

value he placed upon it. This would be all right as far as the assessment was concerned if he

hit it right, because the law does not require the assessor to act upon any particular kind of

evidence.” The assessor hit it right by assessing the said cattle at their true cash value. The

petitioner has no cause to complain if the assessor hit it right, and ought not to vex the courts

with applications of this character.


III. It is for the legislature to decide in what proportions and by what processes and

instrumentalities taxes shall be assessed and collected. (St. Louis v. Ferry Co. 11 Wal. 423,

429; State v. C. P. R. R. Co., 21 Nev. 264.) The legislature has the power to determine the

value of the property to be assessed and the power of discrimination in selecting agents

through which it may fix the taxable values of the state, and can delegate this power to others.

IV. The legislature has the right to devise and carry into effect a distinct scheme of

taxation with different tribunals in the proceeding to value it. The legislature had the power to

create the board of assessors, there being no prohibition in the constitution against its

creation. (Van de Griff v. Haynie, 28 Ark. 270; Sawyer v. Dooley, 21 Nev. 299-400.)

James F. Dennis, for Petitioner:

I. There was no pretense on the part of respondent, in the court below, that he had

assessed petitioner's cattle, in his official capacity, at all, but, on the contrary, he testified that

he had refused to do so, and would continue to refuse to do so, unless compelled by the writ

applied for, and he further testified that $17 per head for the petitioner's cattle was largely in

excess of their actual cash value, and that if he, the said assessor, was determining their value,

he would not place them at a greater value than $14 per head.

II. The legislature cannot delegate to any person or body, the power to determine what the

law shall be, except when authorized by the constitution so to do. (Anderson v. Manchester

Fire Ins. Co., 59 Minn. 182; 50 Am. St. Rep. 400; O'Neil v. American Fire Ins. Co., 166 Pa.

St. 72; 45 Am. St. Rep. 650; State v. Mayor and Council of Des Moines, 103 Iowa, 76; 64

Am. St. Rep. 156; Brewer Brick Co. v. Inhabitants of Brewer, 62 Me. 62.)

III. The guaranty of the due process of law is not confined to judicial proceedings, but

operates as a restriction on every branch of civil government; it confers no new rights upon

the citizens, and only secures those belonging to him, when it was incorporated in the

constitution. (Chicago R. R. Co. v. Chicago, 166 U. S. 226; In re Ziebold, 23 Fed. Rep. 791;

Holden v. Hardy, 169 U. S. 366; Meyers v. Shields, 61 A� �


Fed. Rep. 713; Murray v. Hoboken Land Co., 18 How. U. S. 272.)

IV. The legislature can no more arbitrarily impose an assessment for which property may

be taken and sold than it can render a judgment against a person without a hearing. It is a rule

founded on the first principle of natural justice, older than written constitutions, that a citizen

shall not be deprived of his life, liberty or property, without an opportunity to be heard in

defense of his rights. (Stewart v. Palmer, 74 N. Y. 183; 30 Am. Rep. 289, and cases cited.)

The foregoing case from which we have quoted is an instructive one, and it has been cited

and approved in a long line of decisions, on this question, including nearly every state in the

union, as well as by the United States Supreme Court and the circuit courts. The learned

judge there says: “No case, it is believed, can be found in which it was decided that this

constitutional guaranty did not extend to cases of assessments.” It is cited and approved in the

cases of Burns v. Multommah R. R. Co., 15 Fed. Rep. 117; Santa Clara Co. v. S. P. R. R. Co.,

18 Fed. Rep. 385; Brown v. City of Denver, 3 Pac. Rep. 495; Bowman v. Santa Barbara Co.,

4 Pac. Rep. 31.

William Woodburn, Attorney-General, and Trenmor Coffin, for Appellant, in reply:

I. Universal practice had established, at the time our constitution was adopted, that the

provision that a man shall not be deprived of his property without due process of law was not

understood as applicable to proceedings by the state to obtain from citizens their proper

contributions to the expense of administering the government. (High v. Shoemaker, 22 Cal.

370; Blackwell on Tax Titles, cases cited, 40, 41.)

II. The assessors may act on their own knowledge and judgment without hearing evidence,

and make the valuation in the exercise of such judgment upon all the information in their

possession. (State v. C. P. R. R. Co., 10 Nev. 47; St. Louis R. Co. v. Surrell, 88 Ill. 535.)

III. The means and measures by which an assessor has reached a conclusion will not be

inquired into judicially. (Snell v. Fort Dodge, 45 Iowa, 564; Du Page County v. Jenks, 65 Ill.

275.)


IV. If the opportunity to object is afforded to the taxpayer in an action for the collection of

the tax, he is not deprived of his property without due process of law. (Am. & Eng. Ency.

Law, 55; State v. C. P. R. R. Co., 21 Nev. 260.)

V. The legislature need not prescribe the details nor perform the administrative functions

involving the exercise of the power to tax. It is sufficient if it originates the proceedings and

prescribes the rule of action, leaving the details to administrative officers.


The respondent instituted mandamus in the district court to compel the appellant, the

assessor of Humboldt county, “to immediately determine the true cash value” of the certain

cattle owned by respondent, and “to assess the same at a uniform rate of valuation in

comparison with like property situated in said county.”

It is shown by the petition, inter alia, that on the 16th day of July, 1901, the respondent

applied to the assessor to have him determine the true cash value of said cattle, and to assess

the same at their true cash value, and at a uniform rate; that the assessor refused on said date

to determine the true and actual cash value of said property for the purpose of taxation, or to

assess the same at a uniform and equal rate of assessment; that he refuses and will continue to

refuse to so fix the actual cash value of the property, or to exercise any judgment, official or

otherwise, upon the value of said property.

In response to the alternative writ the assessor answered denying that it was his official

duty on the 16th day of July, 1901, then and there to determine the value of said property, or

at other times except upon some day between the date of the levy of the taxes for the year

1901 and the first Monday in September thereof. He further alleged by his answer that on the

18th day of July, 1901—two days after the respondent's demand and the filing of the

application for the writ—acting in his official capacity, and in conformity with the

requirements of that certain act entitled “An act to provide for a more uniform valuation and

assessment of property in ��5�� (��&��&28&�:0��


this state,” approved March 16, 1901 (Stats. Nev. 1901, p. 61), did fix the value of the

property at $17 per head, as required by the state board of assessors at a meeting held in

April, 1901, under said act, and that he believes that the valuation of $17 per head of said

cattle approximates more closely the average value thereof than any other amount.

Upon the issues made there was a trial, and a judgment awarding the peremptory writ

against the appellant, from which judgment he has appealed.

The evidence is not in the record, but the court found, in effect, that the averments of the

petition are true, and that the valuation fixed was above the actual cash value of the property.

As a conclusion of law the court found that the act above cited is unconstitutional.

Presumably, this proceeding was instituted for the express purpose of determining the

constitutionality of the act cited, but no such question is presented by the record on appeal.

The first question presented—a question of law, rather than a question of fact—must

reverse the judgment of the trial court. It is the settled rule of this court that mandamus will

not lie except upon a showing that the petitioner has a clear legal right to that sought by the

proceeding. (State v. LaGrave, 22 Nev. 417, 41 Pac. 115; State v. Stoddard, 25 Nev. 452, 62

Pac. 237.)

Such showing is not made either by the petition or by the findings. Valuation—one of the

statutory steps of assessment—or the assessment of the respondent's property upon demand

on the 16th day of July, 1901, was not an act especially enjoined by any law of this state as a

duty resulting from appellant's office as assessor.

By Section 8 of our revenue act (Comp. Laws, 1084), upon which the respondent bases his

right, it is not required of appellant, as assessor, to value or assess any property upon

application or demand at any specified time. He is required between the date of the tax levy

and the first Monday in September in each year to assess all property subject to taxation in his

county. No matter what reasons the appellant may have given for his refusal to act at the time

of the demand, it is well settled by the decisions of this court that mandamus is never granted

in anticipation of a supposed ��

��


omission of duty, however strong the presumption may be that the person sought to be

coerced by the writ will not perform his duty in the proper time. (State v. Noyes, 25 Nev. 32;

56 Pac. 946; State v. Gracey, 11 Nev. 223; State v. Rising, 15 Nev. 166.)

Counsel for respondent contends that the case of State v. Arrington, 18 Nev. 412, 4 Pac.

735, does not support this view of the law, but an examination of that case shows a marked

distinction between it and the case at bar. In that case the board of county commissioners had

acted, and acted wrongfully. In the case at bar the assessor had not acted, and was not

required to act, upon the demand of respondent at the time the demand was made, or even at

the time the suit was instituted; and in this proceeding it may as well be doubted, even if the

act of 1901, supra, is unconstitutional—a point upon which we express no opinion—whether

mandamus would lie against the assessor, even conceding that he had acted wrongfully by

making an excessive valuation.

Again, by the averments of the answer it is shown that the assessor, within the time

prescribed by Section 8 of our revenue law, upon which respondent relies, valued the property

for the purposes of taxation.

It is true, the court finds that the valuation fixed is excessive, and by its judgment directs

the appellant to do again what he has shown by his answer he had done—exercised his

judgment. Mandamus will lie to compel judicial and quasi-judicial officers to act, but it can

never be invoked to correct or review errors of judgment or decision when given. In other

words, the court cannot say in mandamus that the particular judgment or conclusion is wrong;

it cannot substitute its judgment for the judgment of the officer or tribunal sought to be

coerced. (State v. Board of Comrs. of Eureka Co., 8 Nev. 309; Floral Springs Water Co. v.

Rives, 14 Nev. 431; State v. Wright, 4 Nev. 119; Humboldt Co. v. Lander Co., 22 Nev. 71, 35

Pac. 300; State v. Murphy, 19 Nev. 89, 6 Pac. 840; Hoole v. Kinkead, 16 Nev. 217.)

It is only necessary to suggest in this connection that, if the act of 1901, supra, is

unconstitutional for the reasons claimed, there is a board created by law to correct any error

of judgment of the assessor in fixing the valuation of prop��

��


erty for the purposes of taxation, to which board the respondent could have applied for

redress, and, in case it refused to act, he might have compelled action by mandamus.

It necessarily follows that, the showing made by the petition and the finding of the court

being insufficient to authorize the issuance of the writ, the judgment must be reversed, and

the district court instructed to dismiss the proceeding.

Let judgment be entered accordingly.

____________

��26 Nev. 253, 253 (1901) State v. District Court��

[No. 1601.]

THE STATE OF NEVADA, ex rel. M. COHN, Petitioner, v. THE FIRST JUDICIAL

DISTRICT COURT OF THE STATE OF NEVADA, ORMSBY COUNTY, and HON.

C. E. MACK, Judge Thereof, et al, Respondents.

Costs—Appeal to District Court—More Favorable Judgment—Discretion of Court—Cost

Bill—Amendment—Certiorari.

I. On Certiorari to review an order in the district court requiring that each of the parties to an action appealed to

such court from a justice pay their own costs in both courts, and one-half the costs of the appeal, and

one-half the jury's fees in the district court, the only question which can be considered is whether the

district court had jurisdiction to make the order sought to be annulled.

2. Under civil practice act, sec. 582 (Comp. Laws 3677), providing that a party appealing to the district court

“shall in no case recover from respondent the cost incurred on appeal unless he recover in the district court

a judgment more favorable to himself than the judgment appealed from,” etc., a party appealing to the

district court from a justice's judgment, and there obtaining a reduction of such judgment, is not entitled to

costs as a matter of right, but the question whether such reduced judgment is more favorable to him is a

question for the sound discretion of the district court, not reviewable on certiorari.

3. Where a party to an action in the district court has filed his cost bill within the time limited by law, and the

matter of the allowance of costs still remains in the hands of the court under a motion to retax or strike out,

the court has the power, under civil practice act, sec. 68 (Comp. Laws, 3163), authorizing amendments in

its proceedings, to permit the cost bill to be amended so as to include the jury fees incurred in such court.

Appeal from the First Judicial District Court, Ormsby County; C. E. Mack, Judge.

Certiorari by the State, on the relation of M. Cohn, to review an order in the District Court

requiring that each ��C� ��3��

��


party to an action by one Anderson against Cohn, appealed to the district court from a justice,

pay his own costs in both courts, one-half the costs of perfecting the appeal, and one-half of

the jury fees in the district court. Order below affirmed.


Trenmor Coffin, for Petitioner:

I. Section 3569, Compiled Laws, is as follows: “The measure and mode of compensation

of attorneys and counselors shall be left to the agreement, express or implied, of the parties,

but there shall be allowed to the prevailing party in any action in the supreme and district

courts, his costs and necessary disbursements, in the action or special proceedings in the

nature of an action.” The action was tried de novo in the district court and falls within Section

3569, Comp. Laws, and by reducing the judgment appealed from, to the extent and amount of

$25, petitioner became the prevailing party. (Ency. Pl. & Pr. vol. 5, pp. 205-7, and notes and

authorities; Jones v. Spencer, 36 Ark. 82; Waterhouse v. Cousins, 40 Me. 331; Park v.

Sweeney, 39 Pa. St. 111; Parham v. Gibbs, 16 Lea, Tenn. 297; Best v. Dean, 8 Iowa, 519.)

See Sections 1811 and 2345 of the Iowa code, which are substantially the same as Sections

3569 and 3677 of our Compiled Laws.

II. We maintain that in the class of cases wherein the appellant, appealing from a money

judgment in a justice's court, secures in the district court a judgment substantially more

favorable to himself than the judgment appealed from, he is entitled as a matter of statutory

right to his costs on appeal, and that the district court has no jurisdiction or power to deny

him these costs nor render judgment against him for any part of the appellee's costs on appeal.

We have not overlooked State v. District Court, 23 Nev. 243, upon which respondents rely.

In that case there must be, in the decision of this court, an implied finding that the judgment

rendered in the district court was not substantially more favorable to appellant than the

judgment appealed from.

III. “The forcible expression, that the power to decide necessarily carries with it the power

to decide wrongly as well ��5�� <��

�� 5


as rightly,” carries with it the exception and qualification, “that the court can render only such

judgment as does not transcend in extent or character the law which is applicable to that class

of cases.” (12 Ency. Pl. & Prac. 119-20.)

IV. The review of the errors of an inferior court or tribunal upon the question of its own

jurisdiction is the very gist of the function of certiorari. The principle contended for by

petitioner was decided by this court in State v. Washoe County, 14 Nev. 66, 70.

V. Respondents exceeded their power and jurisdiction in rendering and entering judgment

for jury fees as costs when no cost bill for jury fees had been filed. The filing of a cost bill is

the foundation for, and a prerequisite to, the court's power and jurisdiction to enter judgment

for costs. (Comp. Laws, 3581.) Costs were not recoverable at common law. McDonald v.

Evans, 3 Or. 445; Wood v. Fitzgerald, 3 Or. 583-4; 5 Ency. Pl. & Prac. “Costs,” p. 110 Orr v.

Haskell, 2 Mont. 353-4.)

VI. The right to recover costs is a statutory right, and the statute giving the right must be

strictly followed, or costs cannot be recovered. Costs can only be recovered by a strict

compliance with the practice act. (Orr v. Haskell, 2 Mont. 350, 354; Jackson v. Seglin, 10 Or.

93; Dwarris on Statutes, 253.)

VII. An attempt was made, upon motion and affidavit, to amend the cost bill that was

filed for clerk's costs and witness fees, by inserting $72 jury fees, but it is alleged and

admitted that this attempt was not made until after the time for filing a cost bill had expired,

without any renewal or extension of the time. Under these circumstances, the court

completely lost jurisdiction of the subject matter of jury fees as costs. (Elder v. Frevert, 18

Nev. 178; Clarke v. Strauss, 11 Nev. 79; Bear River Co. v. Boles, 24 Cal. 354.)

Alfred Chartz, for Respondents:

I. Sections 3569, 3677 and 3163 and 3470, General Laws of Nevada, compilation of 1900,

should be read together, and the intention of the legislature should be considered, and any

conflict, if any, harmonized according to common sense.


II. The authorities are not in accord with the meaning of the words “more favorable

judgment,” but the stronger and better reasoning seems to be that the words “more favorable

judgment” mean a substantially more favorable judgment, and that what constitutes a more

favorable judgment depends upon the facts and circumstances of the particular case. These

facts and circumstances cannot be brought before this court for review in the absence of any

provision therefor.

III. Petitioner did not recover a substantially more favorable judgment. (Baxter & Co. v.

Scoland, 2 Wash. Ter. 88; Winnecoop v. Halbut, 42 Barb. 266; 5 Ency. Pl. & Pr. 195.)

IV. The lower court had jurisdiction to award the costs. “Jurisdiction, as applied to a

particular claim or controversy, is the power to hear and determine that controversy.”

(Phillips v. Welch, 12 Nev. 176.)

V. As to the jurisdiction of district judges to award costs, see: In re Wixom, 12 Nev. 219;

16 Nev. 76; 45 Cal. 246; 23 Nev. 243.


One Anderson recovered a judgment in the justice's court of Ormsby county for $224.

Upon appeal to the district court by the relator, and a retrial of the cause, the judgment was

reduced to $199. Each party filed cost bills, claiming costs in the district court; and each, by

motion, asked that the cost bill of the adverse party be stricken out. Upon the hearing of these

motions the court ordered that each party pay his own costs in the district court and justice

court, and one-half the costs of perfecting the appeal, and one-half of the jury fees in the

district court. Pending the motions to strike out, Anderson asked and was granted leave to

amend his cost bill by inserting therein the jury fees in the district court, claimed to have been

omitted therefrom by inadvertence and mistake. The relator claims, under the facts, that the

district court exceeded its jurisdiction in making the order, and brings certiorari to review the

same.

Under our statute and numerous decisions of the court, the only question which can be

inquired into in this proceeding is whether the district court had the jurisdiction to make �� 0��1=+��:3��


the order sought to be annulled, and this question must be determined by the provisions of

Section 582 of our civil practice act (Comp. Laws, 3677).

This section reads as follows: “All causes appealed to the district court shall be tried anew

in said court, and said court may regulate by rule the practice in such cases in all respects not

provided for by statute; provided, that the appellant shall in no case recover from respondent

the cost incurred on appeal, unless he recover in the district court a judgment more favorable

to himself than the judgment appealed from; but shall, unless he recover in the district court a

judgment more favorable to himself than the judgment appealed from, pay the cost of

respondent on appeal; * * * and in all other cases respondent shall have judgment against the

appellant for the amount of the costs so incurred; provided, that whenever the judge of the

appellate court shall be satisfied from the evidence that the appellant had reasonable grounds

for his appeal, and that such appeal was taken in good faith for the sole purpose of promoting

the ends of justice such judge may then order such costs to be taxed against the respondent or

may apportion the costs between the parties in such manner as will be just.”

The relator contends that the judgment recovered in the district court was “more

favorable” to him than the judgment from which he appealed, and therefore, under the

provisions of Section 582, supra, he was entitled to costs as a matter of right, and that the

court had no power to apportion the costs, as it did, under the last proviso of the section.

As we view the matter, the words “more favorable,” used in the statute, have no precise or

exact meaning. The reduction of a judgment on appeal by a certain amount in one case might

be “more favorable,” within the meaning of the statute; and the reduction of a judgment in

another case by the same amount might not be “more favorable,” within the meaning of that

term. Hence it is uncertain in its meaning, and is to be construed with reference to the facts of

the particular case.

It therefore necessarily follows that whether or not a judgment is “more favorable” in the

particular case, within the meaning of the statute, is a question to be determined by ��


the tribunal having jurisdiction of the matter.

The statute not having fixed the amount of the enhancement or reduction of the judgment

necessary to carry costs, it follows that in each particular case the amount of such

enhancement or reduction sufficient to make the judgment more favorable must be left to the

sound discretion of the district court. (State v. Second Judicial Dist. Ct., 23 Nev. 243, 45 Pac.

467; Baxter v. Scoland, 2 Wash. T. 86.)

That this power is one subject to abuse does not militate against its existence, or give to

this court any authority to correct such abuse.

The relator also contends that Anderson not having claimed the jury fees in his original

cost bill, and until after the time in which cost bills are required to be filed, the court

exceeded its jurisdiction in permitting the cost bill to be amended so as to include these items.

While it has been decided, and undoubtedly correctly so, that failure to file the cost bill

within the time limited by the statute operates as a waiver of costs, we are unable to see why,

where a cost bill has been filed within the time limited, and the matter of the allowance of

costs still remains in the hands of the court under the motion to retax or strike out, the court

should not, under the provisions of Section 68 of our civil practice act (Comp. Laws, 3163),

in furtherance of justice, upon a proper showing, allow the amendment. The court still had

jurisdiction of the matter at the time the amendment was asked and allowed. (Burnham v.

Hays, 58 Am. Dec. 391.)

The proceedings of the district court must therefore be affirmed.

____________

��26 Nev. 259, 259 (1901) Peters v. Jones��

[No. 1606.]

CHARLES H. PETERS, Appellant, v. JOHN P. JONES,

et al., Respondents.

Appeal and Error—Orders Appealable—Change of Venue. As the provision of Stats. 1865, p. 111, expressly

authorizing an appeal from an order granting or refusing a change of venue, was omitted from Comp.

Laws, 3422, which enumerates the judgments and orders appealable, no appeal will lie upon such an order.

(Fitzgerald, J., dissenting.)

Appeal from the First Judicial District Court, Ormsby County; C. E. Mack, Judge.

Action between Charles H. Peters and John P. Jones. From an order changing the place of

trial, Peters appealed. Dismissed.

Trenmor Coffin, for Appellant:

I. An order changing the place of trial of a cause is an appealable order. (Practice Act of

1861; Stats. 1861, sec. 285, p. 363; Comp. Laws, 2513; Table Mt. Co. v. Waller's Defeat M.

Co., 4 Nev. 220; Elam v. Griffin, 19 Nev. 442; Sup. Ct. Rule XXIII, Nev. Repts. vols. 3-24.)

II. Under the old practice act of 1861 (p. 363, sec. 285) the right of appeal was limited to

“an order refusing to change the place of trial of an action or proceeding, after a motion is

made therefor, in the cases provided by law, or on the ground that a judge is disqualified from

hearing or trying the same.”

III. In “An act concerning the courts of justice of this state, and judicial officers,”

approved January 26, 1865, the right of appeal was enlarged to include an order granting a

change of venue. Section 6 of that act is Section 2513, Compiled Laws, and is as follows:

“2513. Sec. 6. The supreme court shall have jurisdiction to review upon appeal: First, a

judgment in an action or proceeding, commenced in a district court, when the matter in

dispute is embraced in the general jurisdiction of the supreme court, and to review upon

appeal from such judgment any intermediate order or decision involving the merits and

necessarily affecting the judgment; second, an order granting or refusing a new trial in such

cases; an order granting or refusing to change the place of trial of an action or proceeding

after motion is made there��

� �� 5


for in the cases in which that court has appellate jurisdiction, and from an order granting or

refusing to grant an injunction or mandamus in the case provided for by law.” This section is

still the law, and under it this court has entertained an appeal taken immediately and directly

from such an order and in a case which is the precise counterpart of the case at bar. (Elam v.

Griffin, 19 Nev. 442.)

IV. There is a dictum to the contrary in State v. Shaw, 21 Nev. 224. The statement in 21

Nev. 224 is purely dictum. In that case there was no direct appeal from the order, and the only

question before the court was as to whether an order granting (not refusing) a change of place

of trial could be reviewed upon an appeal from a final judgment. This question was properly

decided in the affirmative under Sections 2513 and 3433 of the Compiled Laws. It is apparent

that the learned judge who uttered this dictum had not carefully examined the statutes; he

said: “Under our present practice act, however, such an order is not appealable (Gen. Stats.

3352). * * * When Table Mt. G. & S. M. Co. v. Waller's Defeat S. M. Co., 4 Nev. 218, was

decided, the statute made such orders appealable.”

W. E. F. Deal, for Respondents:

I. Section 21, paragraph 3116, provides: “The court may, on motion, change the place of

trial in the following cases: First, when the county designated in the complaint is not the

proper county.”



I. The decision in this case as filed by the majority of the court must at best rest upon the

assumption of a doubtful and remote repeal by implication of Section 2513 of the Compiled

Laws of 1900. To hold such repeal by implication will work great hardship and expense upon

litigants and upon the public generally which may have occasion or necessity of coming into

court, in this: That, as in this case, it may compel parties by a long and laborious and

expensive trial to litigate a case, when after judgment is rendered it may be subject to reversal

by reason of having been tried in ��


the wrong court. Such a case occurred in State v. Shaw, 21 Nev. 222, and may occur in this

and in innumerable cases to arise in the future; whereas, if such appeals should continue to be

allowed as they have heretofore been allowed, the time, labor and expense of such trials

would be avoided. (Table Mt. G. & S. M. Co. v. Waller's Defeat Mg. Co., 4 Nev. 220; Elam

v. Griffin, 19 Nev. 442.)

II. “The intention of the legislature must be found, if possible, within the statute

itself—that is, in the words which the legislature has employed. Outside of the statute, we are

to consider the mischiefs it was intended to suppress, or, as the case may be, the object or

benefits to be thereby attained.” (Maynard v. Johnson, 2 Nev. 25-7.)

III. “When a court is in doubt about the construction of a statute, it will undoubtedly look

to the effect to be produced by one or the other of two constructions, and endeavor to

construe the law so that its operation may be beneficial and not oppressive.” (O'Neil v. N. Y.

M. Co., 3 Nev. 148.)

IV. “There can be no doubt but that whenever the interpretation of a statute or constitution

in a certain way will result in manifest injustice, courts will always scrutinize the act or

constitution closely to see if it will not admit of some other interpretation; for it is not to be

supposed that any legislative body passed an act for the purpose of doing a manifest wrong.”

(State v. Kruttschnitt, 4 Nev. 201.)

V. Section 2513 of the Compiled Laws has never been repealed, unless by implication,

which is not favored in the law or by the courts. In the majority opinion of the court it said:

“Under our former practice act, as amended in 1865 (Stats. 1865, p. 111), an order granting or

refusing to change the place of trial of an action or proceeding was appealable (Comp. Laws,

2513).” (Table Mt. G. & S. M. Co. v. Waller's Defeat S. M. Co., 4 Nev. 218.)

VI. “The rule that courts are bound to uphold the prior law, if it and a subsequent one may

subsist together, or if it be possible to reconcile the two together, is well settled. (McCool v.

Smith, 1 Black, 470; Endlich on Interpretation of Statutes, sec. 210, see the numerous

authorities cited by note 1.) Unless the latter statute is manifestly inconsistent with and

repugnant to the former, both remain in ��


force. (13 N. J. Ch. Rep. 290, and cases cited.) A general statute without negative words will

not repeal the particular provisions of a former one unless the two acts are irreconcilably

inconsistent. (State ex rel. Dunkle v. Beard, 21 Nev. 218.) The repeal, total or partial, of

statutes by implication is not favored. As to this rule there can be no difference of opinion,

and further authorities need not be cited.” (State v. LaGrave, 23 Nev. 379-80.)

VII. Long usage and custom and the acquiescence in a given statutory construction will

always incline courts to adopt and follow such construction unless the same is so clearly

wrong that it cannot be upheld. (Sedgwick on Statutory Construction, pp. 215, 217; Bank v.

Mersereau, 3 Barb. C. 530, 577.) Section 2513 of the Compiled Laws has for more than

thirty-five years been recognized as a valid and existing statute in this state by the bench, bar

and public. Since the statute was originally enacted in 1865 there have been three authorized

compilations of the laws of this state: Bonnifield & Healy, 1873; Baily & Hammond, 1885;

H. C. Cutting, 1900. Each of these compilations contained the section in question.

VIII. The supreme court has adopted a wholesome rule providing for an expeditious and

simple appeal from orders granting or refusing a change of place of trial, and has published

the same in every volume of its decisions published for the last thirty-three years. (Vols. 3-25,

incl., Supreme Court Rule XXIII.) Two appeals have been brought up and entertained by this

court under this rule and statute: Table Mt. Co. v. Waller's Defeat Co., 4 Nev. 220; Elam v.

Griffin, 19 Nev. 442.)


This is an appeal from an order changing the place of trial of this action.

Under our former practice act, as amended in 1865 (Stats. 1865, p. 111), an order granting

or refusing to change the place of trial of an action or proceeding was appealable to this court.

(Section 2513, Comp. Laws; Table Mountain Gold & Silver Min. Co. v. Waller's Defeat

Silver Min. Co., 4 Nev. 218, 97 Am. Dec. 526.)


When the present practice act was adopted in 1869, it was provided in the first section of

title 9, upon the subject of appeals in civil actions, that “a judgment or order in a civil action

except when expressly made final by this act may be reviewed as prescribed by this title and

not otherwise.” (Section 3422, Comp. Laws.)

Section 3425 enumerates the judgments and orders from which an appeal may be taken.

They are: “First—From a final judgment in an action, or special proceedings commenced in

the court in which the judgment is rendered, within one year after the rendition of judgment.

Second—From a judgment rendered on an appeal from an inferior court, within ninety days

after the rendition of the judgment. Third—From an order granting or refusing a new trial,

from an order granting or dissolving an injunction, and from an order refusing to grant or

dissolve an injunction, from an order dissolving or refusing to dissolve an attachment, and

from any special order made after the final judgment, within sixty days after the order is made

and entered in the minutes of the court. Fourth—From an interlocutory judgment or order in

cases of partition which determines the right of the several parties, and directs partition sale,

or division to be made, within sixty days after the rendition of the same.)”

The above provisions omit the provision contained in the prior law that an appeal may be

taken from an order granting or refusing to change the place of trial.

Such orders, therefore, are not appealable by the terms of the statute. This was the ruling in

the case of State v. Shaw, 21 Nev. 222, 29 Pac. 321.

A contrary ruling was made in the case of Elam v. Griffin, 19 Nev. 442, 14 Pac. 582. In

that case the attention of the court was not directed to the change that had been made in the

statute.

It is ordered that the appeal be dismissed.



But one question is discussed in the prevailing opinion in this case, to wit, is an order

changing the place of trial an �� 4


appealable order? The majority of the court hold it is not. In said opinion it is stated: “Under

our former practice act as amended in 1865 (Stats. 1865, p. 111), an order granting or

refusing to change the place of trial of an action or proceeding was appealable to this court.

(See Section 2513, Comp. Laws.)”

That is, I think, a mistake. The civil practice act passed November 29, 1861, was not

“amended” in 1865. But in the last-named year the legislature of Nevada passed an

independent act entitled “An act concerning the courts of justice of this state and judicial

officers,” approved January 26, 1865. (See page 110, Stats. 1865.)

In clause 2 of Section 6 of said last-named act, on page 111 of the Statutes of 1865, is the

following: “The supreme court shall have jurisdiction to review upon appeal. First, * * *.

Second, * * * an order granting or refusing to change the place of trial of an action or

proceeding after motion is made therefor in the cases of which that court has appellate

jurisdiction.”

This enactment has remained upon the statute books of Nevada ever since, and has been

published in every compilation of Nevada's laws: In the Bonnifield & Healy compilation of

1873 (see 1 Comp. Laws 1873, p. 219, sec. 915); the Baily & Hammond compilation (or

General Statutes) of 1885 (see Gen. Stats. 1885, p. 648, sec. 2430); and the Cutting

compilation of 1900 (see Comp. Laws Nev. 1900, p. 540, sec. 2513).

This was not an amendment to the practice act. It was, as stated above, an independent

statute, giving a right that previous to that time had not been in the statutes of the state.

Previous to that time, in the practice act of 1861 a right was given to appeal from an order

refusing to change place of trial, but no such right from an order granting a change of the

place of trial. See, in Stats. 1861, p. 363, sec. 285: “An appeal may be taken to the supreme

court from the district court in the following cases: First, * * *. Second, * * * an order

refusing to change place of trial of an action or proceeding after motion is made therefor.”

Thus it will be seen that if, as stated in the case of State v. Shaw, 21 Nev. 224, 29 Pac.

321, it be true that “when Table (��I� �H�0��(��3��/��!��?��0��

(��3��'�,��+&=


Mountain Gold & Silver Min. Co. v. Waller's Defeat Silver Min. Co., 4 Nev. 218, was

decided, the statute made such orders appealable,” it was the independent statute of 1865, and

not the practice act, that made it so. The practice act of 1861 made orders refusing to change

venue appealable, but not orders granting such change; and in the Shaw case it was granting,

and not refusing, to change place of trial that was under consideration by the court.

The prevailing opinion says: “When the present practice act was adopted in 1869, it was

provided in the first section of title 9 upon the subject of appeals in civil actions that ‘a

judgment or order in a civil action except when expressly made final by this act may be

reviewed as prescribed by this act, and not otherwise. (Section 3422 Comp. Laws.)'“ That was

not then a new provision. This precise provision, in words identically the same, was in the

practice act of 1861 (see Stats. 1861, p. 361, sec. 271), and has just remained in the statutes

the same from the 29th of November, 1861, to the present time.

And while such provision was in the statutes, the legislature, by its enactment of

1865—the independent statute above referred to—gave to the litigants the right to appeal

from orders regarding venue whether such orders granted or refused change of venue. In 1868

the legislature of Nevada made a revision of the practice act, changing a number of things,

but leaving the greater part as it was before. This act came as a new enactment, with the

following title: “An act to regulate proceedings in civil cases in the courts of justice of this

state and to repeal all other acts in relation thereto” (Stats. 1869, p. 196), and the repealing

section at the end of the act expressly repealed the act of 1861.

Yet I do not believe that the legislature intended, or that it is a correct rule of interpretation

to hold, that the sections and provisions of the act of 1861 that appear in the act of 1869

unchanged, but precisely in the identical words as they did in the act of 1861, were, simply by

the force of so appearing, to have the force of later enactments of the legislature, and

therefore to be the latest and true expression of the legislative will.

On the contrary, in my opinion, such sections gain no ��


additional force by reason of their being so enacted. There never has been an instant of time

in which such unchanged sections were not the law, including, of course, the section referred

to.

Then how could a prior become a subsequent statute under such circumstances? No; such

statute would take precedence in priority and rank in the order of time of their original

enactment.

Therefore the statement in title 9 of the act of 1861, repeated in the act of 1869, that “a

judgment or order in a civil action * * * may be reviewed as prescribed by this title and not

otherwise,” is a prior, and therefore subordinate, expression of the legislative will to the later

and controlling expression of the legislative will in the independent act of 1865 that the

supreme court does have jurisdiction to review on direct appeal therefrom an order either

granting or refusing a change of venue.

The words “may be reviewed as prescribed in this title and not otherwise” (italics are

mine) have matter to which they aptly apply, independently of the matter contained in the act

of 1865, to wit, giving notice of appeal, statement thereon, etc. Indeed, if necessary, it might

probably be well claimed that reviewed “as prescribed” means the manner of the

appeal—notice, statement, etc.—and not the things from which appeal may be taken, to wit,

orders granting or refusing change of venue; and this especially as the things from which

appeal may be taken are provided for in another statute. Though this view may be true, it is

not necessary to this case, and is therefore merely suggested here.

In addition to the foregoing consider the following:

1. The independent statute of 1865 providing for direct appeals from orders granting or

refusing change of venue has been retained in every compilation of the laws of Nevada since

its passage, notwithstanding the legislative revision of the practice act in 1869; thus showing

that in the judgment of the gentlemen to whom the wisdom of the legislature intrusted the

various compilations, to wit, Judge M. S. Bonnifield, Judge T. W. Healy, Hon. Dav. E. Baily,

Rev. Dr. John D. Hammond, and Hon. H. C. Cutting, this statute was not repealed, but was

the law of the land.


2. Rule XXIII of this court being published in all the volumes of the reports from 3 to 25,

and last inclusive, shows that in the opinion of the justices of this court for a period of more

than thirty years said independent statute stands unrepealed and is the law, unless for some

reason the said justices have permitted a misleading rule of their court to stand, and be

published in each succeeding volume of the reports of their opinions for over thirty years. The

said Rule XXIII is as follows: “Appeals from orders granting or denying a change of venue,

or any other interlocutory order made before trial, will be heard at any regular or adjourned

term, upon three days' notice being given by either appellant or respondent, when the parties

live within twenty miles of Carson. When the party served resides more than twenty miles

from Carson an additional day's notice will be required for each fifty miles, or fraction of fifty

miles, from Carson.” As may above be seen, this court adopted and published a rule that it

would hear appeals from such orders on three days' notice in cases the parties to which live

within twenty miles of Carson, and one day for each fifty miles in cases in which said parties

live a greater distance than twenty miles; thus showing that such cases, in the opinion of the

justices of this court, should have more than usually prompt and speedy hearing and

determination.

3. This leads to the next and third consideration, to wit: If a statute authorizing direct

appeals from such orders were a vicious and bad statute working injustice, harm, expense,

trouble, and other evils, then, when courts are endeavoring to find the legislative intent—the

pole star of statutory interpretation—they might well let such thought weigh much in

determining that such a statute could not have been within the intention of an intelligent,

patriotic, and benevolent legislature, a legislature seeking only the good of its constituents;

and therefore, if the meaning were doubtful, to lean towards excluding the statute pro bono

publico. On the contrary, if such a statute were remedial, working justice, benefit, speedy

decisions of cases, economy in time and money, and good generally, that the court, in seeking

its true interpretation, guided by the pole star of legislative intent, might well say, if the

meaning were doubtful, that an intelligent, patriotic, � ��J��

�� J��


and benevolent legislature—one seeking the good of its constituents—could not have

intended to repeal such a statute, for, if such a legislature intended repeal, it would have

plainly said so. That such a statute is good, salutary, remedial, working justice, economy,

speedy determination of cases and beneficial results generally, is, in my judgment, undoubted.

Therefore repeal of it by implication should not be favored.

I trust I shall not be misunderstood in the foregoing, and supposed to hold, or even to hint,

that the judicial department of the government is not bound by the legislative. On the

contrary, I hold without reservation of any kind that the legislative department, acting within

its sphere under the federal and state constitutions, is supreme. Each other department of the

government, executive and judicial, and all persons, are bound by their enactments. I claim

only this: That the legislative intent should be carefully sought for, and that in the search for it

the canons of legal hermeneutics, the sound rules of statutory interpretation, should be

applied, and wherever these lead the judiciary should follow, even in cases in which, in their

opinion, the law is vicious and bad; but when these canons and rules lead to what is remedial,

beneficial, and good, then certainly they should be applied and upheld.

4. Two cases formerly decided by this court have upheld the views above stated, to wit,

Table Mountain Gold & Silver Min. Co. v. Waller's Defeat Silver Min. Co., 4 Nev. 218; and

Elam v. Griffin, 19 Nev. 442, 14 Pac. 582. One case heretofore decided has held to the

contrary, to wit, State v. Shaw, 21 Nev. 222, 29 Pac. 321; but I think the law always has been,

and now is, contrary to the last-named case, and in accordance with the two first named. In

the Shaw case the court not only treated the question involved as being destitute of merit, but

disposed of it rather cavalierly. It simply said that when the Table Mountain case was decided

the statute made such an order appealable, but at the time the Shaw case was decided the

statute had been changed! There was no statement or reasoning by the court to show when

and how changed. This was a complete petitio principii. The question under consideration

was, had there been a change in the ��4


statute? Simply to say yes to such a question was to “beg the question,” and prove nothing.

To my mind it seems that there is not only sufficient in the question to merit discussion and

solution and answer, but also that the truth is conclusively against the decision of the court in

the Shaw case.

To my mind, when the legislature, in 1869, struck out from the practice act the

fragmentary, lame, and inadequate provision of 1861 providing for appeals from orders only

refusing to change venue, and leaving in the independent statute of 1865 the full and

complete remedy on this subject, to wit, direct appeals from orders both granting and refusing

to change venue, it is judicial legislation, rather than interpretation, that says such legislation

repeals the act of 1865. If, when the legislature of 1869 took up the subject of revision of the

practice act, it found two statutes, each providing for precisely the same thing, each giving a

full and complete remedy, and it struck out only one of these statutes and left the other, even

then, in my judgment, the reasonable interpretation of their act would be that they thought one

statute on one subject was enough, and that the symmetry of the statutory law demanded that

one of them be stricken out, rather than that they aimed at a change in the law. One of the

laws was superfluous, and therefore useless and should have been stricken out. It would be

merely a removal of superfluous matter. If the legislature of 1869 had aimed at the symmetry

and regularity of the law, its action was perfectly and precisely adapted to accomplish that

result. If it aimed at change and intended change in the law, its action was poorly adapted to

accomplish it. It went only half way. It should have stricken out both enactments. Then its

action would have been adapted to its object and aim. As it is, its action was adapted only to

symmetry and harmony.

For the foregoing reasons, I dissent from the prevailing opinion in this case.


Per Curiam:

Rehearing denied.


Fitzgerald, J.:

I dissent from the order denying a rehearing herein for the reasons mentioned in my

original dissenting opinion in this case. The following authorities sustain the views therein

stated: End. Interp. St. 194, citing Morisse v. Royal British Bank, 1 C. B. (N. S.) 67; Wallace

v. Blackwell, 3 Drew. 538; Rex v. Dove, 3 Barn. & Ald. 596; and Powers v. Shepard, 48 N.

Y. 540. Also Sections 567-569, and Section 490 of Endlich; Suth St. Const. 137, and cases

cited; also Section 161.

Endlich, in said Section 194, says: “It has been held that where a statute merely reenacts

the provision of an earlier one it is to be read as part of the earlier statute, and not of the

reenacting one, if it is in conflict with another passed after the first, but before the last, act;

and therefore does not repeal by implication the intermediate one. And the reenactment, at the

same session of the legislature, of certain sections of one act in a subsequent one, providing,

except in the reenacted sections, a different scheme from the first, was held not to work a

repeal by implication of those sections in the first act; and a provision in the second act

suspending the operation of those sections in it did not suspend the operation of the same

sections in the first act, according to which they were to take effect at once.”

In Section 368 Endlich says: “Where, indeed, the two acts in pari materia are almost

precisely alike in the provisions under construction, it is said that the decisions upon the

earlier will be considered as authority in the interpretation of the later act. In other words, the

reenactment of a statute which has received a judicial construction in the same, or

substantially the same, terms, amounts to a legislative adoption of such construction, whether

such reenactment is by way of an isolated and independent statute, of the incorporation of

several former statutes into one, or of their incorporation in a code or revision of statutes.

That is to say, it is a legislative adoption of its known construction; so that that judicial

construction which has been reported is to be deemed to have been adopted, notwithstanding

there may have been other judicial expositions differing from the same, but remaining

unreported at the date of the new enactment.”


And in Section 490 Endlich says: “It seems, indeed, to be the general understanding that

the reenactment of an earlier statute is a continuance, not a repeal, of the latter, even though

the later act expressly repeals the earlier. The mere reenactment of an existing law in the same

or substantially the same terms, without words of repeal, and in the absence of conflict, or an

intention to supersede, does not, of course, necessarily repeal the old law. But even a

repealing act reenacting the provisions of the repealed statute, in the same words, is construed

to continue them in force without intermission; the repealing and reenacting provisions taking

effect at the same time. So it was held that, where an act repealing another, which provided

for the appointment of certain officers, instantly, by the second section, reenacted the repealed

act, the repeal was rendered inoperative, the former law left in force, and the officers

appointed under the same, whose terms of office had not expired, remained in office. So the

repeal of a general corporation law by a statute substantially reenacting and extending its

provisions does not terminate the existence of corporations formed under it, but it is to be

regarded as a continuance, with modifications, of the old law. The principle has been applied

also to a revision which repealed the acts collated and consolidated, but immediately, in its

own provisions, reenacted them literally or in substance, so that there was never a moment

when the repealed acts were not practically in force. So the repeal and reenactment, in a

revision of laws, of a statutory provision authorizing a town to make a certain by-law was

held not to affect the validity of the by-law. And it has been applied to criminal statutes, so as

to permit a conviction for an offense against the reenacted old law, even where the reenacting

law undertook to repeal it; the reenactment being construed a continuance.”

Sutherland, in Section 137 of his said work, says: “Laws are presumed to be passed with

deliberation, and with a knowledge of all existing laws on the same subject. If they profess to

make a change, by substitution, of new for old provisions, a repeal to some extent is thus

suggested, and the extent readily ascertained. Thus, amendment is frequently made by

enacting that a certain section shall be so �� K�� !��

��


amended as ‘to read as follows'; then inserting the substituted provision entire without

specification of the change. The parts of the former law left out are repealed. This intention is

manifest. There is a negative necessarily implied that such eliminated portion shall no longer

be in force. The reenacted portions are continuations, and have force from their original

enactment.”

And in Section 161 Sutherland says: “Where two statutes in pari materia, originally

enacted at different periods of time, are subsequently incorporated in a revision, and

reenacted in substantially the same language, with the design to accomplish the purpose they

were originally intended to produce, the times when they first took effect will be ascertained

by the courts, and effect will be given to that which was the latest declaration of the will of

the legislature, if they are not harmonious. An existing statute is not to be considered as

original because it is embodied in a revision, and therefore is not to be construed on the

theory that none of its provisions have been in effect prior thereto. The appearance of such a

statute in the form and body of a revision has no other effect than to continue it in force.”

The note to page 157 of 15 Am. Dec. is as follows: “What effect reenacting the general

provisions of a statute has upon the exceptions to such general provisions. The doctrine laid

down in this case has been uniformly accepted and approved in Louisiana. In Valsain v.

Cloutier, 3 La. 177, the court say: ‘The question then recurs, does the reenactment in our code

of a general provision existing in the Spanish law repeal the exception which accompanied it

in that law? We have so repeatedly decided the contrary, and the jurisprudence of the court is

so fixed in this matter, that it is unnecessary to refer to cases in which the principle has been

settled.' The court held, in Herman v. Sprigg, 3 Mart. (N. S.) 199, that ‘the reenactment of a

general provision contained in a former law, to which an exception was attached, does not

repeal that exception; because the intention to repeal is never presumed, and both provisions

may well stand together.' The doctrine of these cases is fully sustained by the following

decisions: Nathan v. Lee, 2 Mart. (N. S.) 32; Duncan's Exrs. v. Hampton, 6 Mart. (N. S.) 31;

Verret v. Theriot, 15 La. 110; Le *��"� ��-�(��:,��0�;


Blanc v. Landry, 7 Mart. (N. S.) 688; Urquhart v. Sargent, 2 La. Ann. 201; McCarty v. Press

Co., 5 La. 21.”

I cite also the note on page 67 of 26 Am. St. Rep., and cases there cited.

____________

��26 Nev. 273, 273 (1901) State v. Van Patten��

[No. 1610.]

THE STATE OF NEVADA, ex rel. F. W. DIXON, Plaintiff and Relator,

v. F. P. VAN PATTEN, Respondent.

School Trustee—Official Oath—Proof—Loss of Residence—Quo Warranto.

1. Where the notary public who administered the official oath to a school trustee failed to authenticate the jurat

with his official seal, the trustee may show by oral evidence that the oath was in fact taken.

2. Where a school trustee has in fact taken the oath of office, the failure to indorse such oath on the certificate of

his election, as required by Comp. Laws, 1804, does not affect his qualification, such requirement being

merely directory.

3. A school trustee had been a registered voter of the town for eighteen years, and for sixteen years had resided

with his wife in the same house, when, becoming unemployed, he went to work in another town, returning

home two or three times each month for three months, when he took his wife and children with him, with a

small trunk of clothes. All furniture, bedding, and provisions were left in the house. They remained away

seven months, he always intending to return. The school board met every month, and he attended every

meeting except one. The family returned at the end of seven months: Held, that he had not lost his

residence or right to the office of trustee.

Proceeding in quo warranto by the State of Nevada, on the relation of F. W. Dixon against

F. V. Van Patten. Judgment of ouster of respondent.


William Woodburn, Attorney-General, and Torreyson & Summerfield, for Relator:

I. On an information in the nature of a quo warranto, the burden is on the respondent to

show his own title, and not on the prosecutor or on the state to establish the prosecutor's title.

(Paine on Elections, sec. 899; People v. Mayworm, 5 Mich. 146-8; People v. Miles, 2 Mich.

438-9; Clark v. People, 15 Ill. 217; State v. Gleason, 12 Fla. 265; State v. Beecher, 15 Ohio,

723.)

II. The certificate of election is prima facie evidence of ��:(�3��

6��9 ��


title to the office. (McCrary on Elections, 3d ed., secs. 271, 283, 284; People v. Jones, 20 Cal.

53.)

III. The county superintendent shall have power and it shall be his duty: * * * Sixth—To

appoint school trustees in all the districts in which the qualified voters fail to elect, and to fill

by appointment all vacancies occurring in said office. (Comp. Laws, 1289.)

IV. “Every office shall become vacant: * * * Sixth—The ceasing of the incumbent to be a

resident of the state, district, county, city or precinct in which the duties of the office are to be

exercised or for which he shall have been elected or appointed.” (Comp. Laws, 1816.)

V. “In all cases where trustees are not elected as provided in this act, or whenever

vacancies occur, the superintendent of public schools shall fill such vacancies by

appointment.” (Comp. Laws, 1764.)

VI. It is a condition precedent to the power to appoint that an actual vacancy shall have

occurred. (State v. Harrison, 113 Ind. 438.) The power to make a valid appointment does not

arise until there is a vacancy in fact. The existing title of an incumbent cannot be extinguished

or affected by the ex parte judgment of the executive that the office is vacant. (State v.

Harrison, 113 Ind. 438; Page v. Harden, 8 B. Mon. 648, 669-70; O'Neale v. McClinton, 5

Nev. 329-34; Honey v. Graham, 39 Tenn. 115; Hiel v. State, 1 Ala. 559.)

VII. If a notary public administer an oath, his signature to the jurat without his seal of

office will be sufficient. (Schaefer v. Kienzel, 123 Ill. 443; Stout v. Slattery, 12 Ill. 162;

Ashley v. Wright, 19 Oh. St. 291-5; 16 Am. & Eng. Ency. Law, p. 761, n. 1; Mills v. Dunlap,

3 Cal. 97; Lutz v. Kinney, 23 Nev. 279.)

VIII. Our statute provides: “The legal residence of a person, with reference to his right of

suffrage and eligibility to office, is that place where his habitation is fixed and permanent,

and to which, whenever he is absent, he has the intention of returning.” (Comp. Laws, 1723.)

If a person having a fixed and permanent home in this state break up such home, etc. * * *

(Comp. Laws, 1729.) When one leaves his residence for a time, it is the intention with which

he does so that is to control. (10 Am. & Eng. Ency. Law, + ��


2d ed. p. 599; 11 Phila. 641-3.) Temporary absence, as for travel, the performance of labor,

obtaining an education, or other purpose, will not affect residence. (11 Phila. 647.) an absence

for months or even years, if all the while the party intended it as a mere temporary absence,

for some temporary purpose, will not constitute an abandonment. (Yonkey v. State, 27 Ind.

236-245; Mitchell v. U. S., 21 Wall. 353; State v. Hallett, 8 Ala. 159; People v. Peralta, 4

Cal. 175; Harbaugh v. Cicott, 33 Mich. 242; Moffitt v. Hill, 131 Ill. 239; 10 Am. & Eng.

Ency. Law, 2d ed. p. 601.)

Trenmor Coffin, A. J. Maestretti, District Attorney, and W. C. Gayhart, for Respondent:

I. The relators did not qualify as provided by law after their alleged election. The attempt

to qualify was before a notary public who failed to authenticate his act by his seal, if he had

one, which renders his attempted act incomplete and of no effect. (Comp. Laws, 2411;

Sargent v. Collins, 3 Nev. 260; Proffat on Notaries, sec. 56, and authorities cited; Tunis v.

Withrow, 10 Iowa, Chase v. Street, 10 Iowa, 593.)

II. The statute of this state requires that a public officer must have his official oath

endorsed upon his certificate of election at the time he receives such certificate. This was not

done by the relators at the time of receiving their certificate of election or at any other time.

Therefore they never qualified to fill the offices to which they claim to have been elected.

(Comp. Laws, 1803-4, 1808; State v. Horton, 19 Nev. 199.)

III. If the official oath was taken before a notary public, it was required to be endorsed on

the certificate of election and certified by the notary. (Comp. Laws, 1804.)

IV. The authorities cited by relators hold that all certificates of a notary public to be valid

and effectual must be authenticated by his official seal. This is for the benefit of the public as

well as of the officer, that the people at large may know, or have a ready means of

ascertaining, who are duly qualified and authorized public officers.

V. Nothing beyond the most careless and ineffective attempt at qualification is shown by

the evidence in this case.


A similar ill-advised attempt at qualification was held to be of no avail in State v. Horton, 19

Nev. 200-1.

VI. Admitting, for the sake of argument, that relator Dixon was elected, and that he duly

qualified, his office became vacant by his changing his place of residence from Lander county

to Nye county, and by his neglecting to perform the duties of his office for more than three

months. (Comp. Laws, 1816.) The general law of this country upon the question of residence

is aptly stated and enacted into a statute in Comp. Laws, 1723-29. The testimony of Dixon

himself shows that he removed his residence from Lander to Nye county squarely within the

provisions of Comp. Laws, 1727, 1729.

VII. We submit that a vacancy occurred in the offices claimed by relators by reason of

their failure to qualify, and in the case of relator Dixon by reason of his removing his

residence from Lander county, and by reason of his neglect of the duties of his office for more

than three months, and that it was the official duty of the county superintendent of schools to

take notice of the fact of these vacancies and to fill them by appointment. (Comp. Laws,

1289, 1764, 1816; State v. Sadler, 25 Nev. 131; State v. Jones, 81 Am. Dec. 401 (19 Ind.

356), notes and authorities cited, p. 405.)

VIII. After an office has once become vacant by the change of residence of the incumbent

or from any cause mentioned in Comp. Laws, 1816, and has been properly filled by the

appointment of another, it cannot be resumed or reoccupied by its former holder. (State v.

Allen, (21 Ind. 516) 83 Am. Dec. 367; notes and numerous authorities cited, p. 272, et seq.)


This is an original proceeding in the nature of quo warranto, to determine whether relator

or respondent is entitled to the office of school trustee, long term, of Austin school district, in

Lander county.

The district attorney of the county, who is ex officio county superintendent of schools, and

in whom is vested authority to fill all vacancies in the office of school trustee, deeming that a

vacancy existed for the reason that relator had not taken the oath of office as required by law,

and that he had �� C��

��


ceased to be a resident of the town of Austin, in which the duties of his office were to be

exercised, appointed respondent to the vacancy.

It is tacitly conceded that at the school election in the month of May, 1900, relator was

elected long-term school trustee, and was acting as such when he was displaced by

respondent.

It was shown that relator was regularly sworn, and took and subscribed to the official oath

introduced in evidence in this case before a duly appointed and acting notary public of the

county, but the jurat of the notary is not authenticated by his official seal. The seal of the

officer would have been prima facie evidence that the oath had been taken, but it was not the

only evidence of the fact. It was competent for relator to have shown, as he did show by oral

evidence, that the oath was in fact taken. In this connection it is urged that the oath was not

indorsed upon the certificate of election. Section 1804, Comp. Laws, requires that the oath

shall be indorsed upon the certificate of election and signed by the officer. The substantial

purpose of this requirement is the qualification of the officer, by taking and subscribing to the

oath, and this was accomplished. The provision that the oath shall be indorsed upon the

certificate of election is directory merely, and no penalty is imposed for its non-performance.

Upon the question of residence relator testified that he had been a registered voter of the

town of Austin ever since the year 1882, and had resided with his family for the past sixteen

years in a house owned by Mrs. Stebbins, his wife's mother; that he was by profession a

locomotive engineer, and had been employed as such by the Nevada Central Railroad

Company upon its line of railroad between Battle Mountain and Austin; that he became

unemployed, and, about October 14, 1900, went to Jefferson, in Nye county, to assist his

brother-in-law in caring for a band of sheep which they jointly owned. He returned to his

home in Austin two or three times each month. Christmas day he brought Mrs. Stebbins from

Jefferson to Austin, and remained there until December 31st. January 14th he took his wife

and children with him to Jefferson.

In reply to the question, “What, if anything, was done ��

�� C��45�� .�<,��


with reference to breaking up your household in Austin?” he said: “Nothing whatever. I took

my wife and two children in the light spring wagon, and left everything in the house—bed,

provisions, sewing machine, and the winter's wood—left everything, took nothing, except a

small trunk; no bedding, not a thing in the world except a little trunk.” His wife returned for a

couple of days in the month of March for the purpose of using the sewing machine that they

had left behind. The family finally left Jefferson and went back to Austin during the latter part

of the month of August.

He testified that he attended a meeting of the school board each month except the month of

February, and that he always intended to return to Austin.

This testimony was practically uncontradicted, and needs the aid of no argument to

convince us that relator had not lost his residence in the town of Austin.

It is ordered that a judgment of ouster be entered against respondent, with costs.

____________

��26 Nev. 278, 278 (1901) State v. Gayhart��

[No. 1611.]

THE STATE OF NEVADA, ex rel. ROBERT POHL,

Relator, v. W. C. GAYHART, Respondent.

[For syllabus and briefs, see State of Nevada, ex rel. Dixon v. Van Patten, No. 1610, p. 273,

ante.]

Quo Warranto by the State of Nevada, on the relation of Robert Pohl, against W. C.

Gayhart. Judgment of ouster against respondent.

William Woodburn, Attorney-General, and Torreyson & Summerfield, for Relator.

A. J. Maestretti, District Attorney, Trenmor Coffin, and W. C. Gayhart, for Respondent.

Belknap, J.:

The only question in this case is whether relator took and subscribed to the official oath in

conformity with law.

The facts are similar to those in the case of State v. Van Patten, 26 Nev. 273, and upon the

authority of that case a ��

��


judgment of ouster will be entered against this respondent, with costs.

It is so ordered.

On Motion to Retax Costs.


The respondent asks that the costs claimed by the relator be retaxed. He contends, first,

that the fees for all witnesses should be stricken out, it appearing that all the witnesses

voluntarily appeared, and, under the ruling in Meagher v. Van Zandt, 18 Nev. 230, relator is

not entitled to recover for such fees.

The facts disclosed by the record in this case upon which relator rests his contention are

very materially different from the facts shown by the record in the case cited. In this case

subpenas were issued out of the court for all the witnesses. These subpenas were returned

with the endorsement of the witnesses acknowledging service. This return, in our opinion,

was sufficient upon which to base a process for the compulsory attendance of witnesses in

case they failed or refused to attend. It was in effect and in lieu of the recitals of the return of

an officer serving the process. In Meagher v. Van Zandt, supra, no subpenas had been issued

from the court, no witnesses had been served with process, and none were called, sworn and

examined. The attendance of the witnesses upon the court in that case was in response to

subpenas issued in another action then pending in the trial court. The case cited was

dismissed without trial, and hence cannot apply to the facts of the case at bar.

This objection will therefore be overruled.

Again, it is claimed that the fees of the witness Dixon should be stricken out, he being a

party to the proceeding of The State, ex rel. Dixon, v. Van Patten, consolidated with this

proceeding by stipulation in open court the day of the trial. The two proceedings were

instituted at different times between different character. The consolidation was for the

purposes of the trial. Before there was any consolidation a subpena was issued for Dixon. We

cannot hold that his attendance was not in response to the process. While his ��


attendance upon court in the proceeding in which he was relator might have been necessary,

certainly he could not have been compelled to attend in this proceeding without process, and

his presence was not necessary. He did attend in answer to the process of the court, was

called, sworn and examined, and, in the absence of further showing, we are of the opinion

that his claim for fees should be allowed.

It is also objected that the fees of the witness Hildebrandt should not be allowed. The facts

upon which this claim is based are: That the witness attended court under subpena, was not

called, sworn, or examined in the proceeding. Why he was required as a witness, why he was

not called and sworn and examined, is not shown, and in the absence of such showing, upon

the naked facts stated, it does not seem to us that his attendance was necessary, or that the

fees for his attendance were necessary as a part of the costs of relator. This objection will

therefore be sustained.

The witness Miller was subpenaed, and in response thereto attended court, and was called,

sworn and examined on the trial of the consolidated proceedings. His testimony related to

matters in the Van Patten case, and it does not appear from his testimony, or otherwise, that

his attendance in this proceeding was necessary for any purpose. The claim for his fees should

therefore be disallowed and stricken out.

The fee of $1.25, claimed by relator for typewriting brief upon the authority of The State v.

Sadler, 25 Nev. 131, will also be stricken out.

An order will therefore be made retaxing the costs in accordance herewith, and the

judgment to that extent modified.

____________

��26 Nev. 281, 281 (1901) Ex Parte Doyle��

[No. 1616.]

Ex Parte DENNIS DOYLE.

Criminal Law—Judgment—Recital of Offense—Sufficiency. A judgment reciting that defendant was informed

of an indictment found against him for the crime of escaping from an officer, and that his plea of guilty was

duly entered, and that it was adjudged that he be punished for the crime for which he had “pleaded guilty,”

sufficiently stated the offense for which the conviction was had.

Application by Dennis Doyle for a writ of habeas corpus. Writ dismissed.


Ed. T. DuPuis, for Petitioner:

I. The judgment and the process of commitment issued thereon are void, for the reason

that there is no statement defining the crime for which the prisoner was convicted, as required

by Section 4415 of the Compiled Laws.

II. “There are two essentials to a valid judgment of conviction and a process of

commitment issued thereon, namely, the statement defining the punishment, and the

statement of the offense for which the punishment is inflicted.” (Ex parte Dela, 25 Nev. 350.)

III. “A judgment in a criminal action must show the parties thereto, the court in which it

was rendered, the terms of imprisonment and the offense for which the prisoner is to be

punished.” (Ex parte Salge, 1 Nev. 453.)

IV. “A warrant of commitment must set forth the offense with which the person is

charged or of which he stands convicted, or he will be discharged on habeas corpus.” (Ex

parte Rhoe, 5 Ark. 104; Ex parte Jackson, 45 Ark. 158.)

V. “A commitment must show the offense and a judgment in pursuance of the statute.”

(Sipple v. Rodgers, 5 Harr. Del. 149.)


Dennis Doyle brings habeas corpus for his discharge from the state prison. He claims that

his imprisonment is unlawful because the judgment of the district court sentencing him to

imprisonment is void, in that it fails to state the offense for which he was convicted.


The certified copy of the judgment set out in the warden's return, omitting the title of the

court and the cause, is as follows: “The time having arrived set by the court for passing

sentence on the defendant, Dennis Doyle, the defendant is in court and the district attorney is

in court. The defendant was then informed by the court of an indictment having been found

against him by the grand jury of Lincoln county, Nevada, on the 22d day of November, A. D.

1901, for the crime of escaping from an officer, and of his arraignment on the 22d day of

November, A. D. 1901, and of his plea of guilty duly entered on the 30th day of November,

A. D. 1901. The defendant was then asked by the court why judgment should not be

pronounced at this time. There being no legal cause appearing or being shown to the court

why judgment should not be pronounced at this time, the court renders its judgment: It is

ordered, adjudged, and decreed that the defendant, Dennis Doyle, be punished for the crime

to which you have pleaded guilty by being incarcerated in the state prison at Carson City,

Nevada, for the period of two years. The defendant is remanded to the custody of the sheriff.”

The petitioner bases his claim to discharge upon the decision of this court in Ex parte

Dela, 25 Nev. 346, 60 Pac. 217; but an examination of that case shows that there is a wide

and marked difference between it and the case at bar.

In the Dela case the jurisdiction of the court to render the particular judgment was directly

attacked in the petition. It was shown by the petition that Dela was indicted and tried for the

crime of murder, and upon the trial was convicted by the jury of the crime of rape. A

judgment was based upon this verdict convicting him of rape, by which he was imprisoned

for the crime of murder. The recitals of the judgment did not show that he had been convicted

of rape, neither could such fact be inferred therefrom. An examination of that case will

further show that the judgment did not even recite that Dela had been convicted of the crime

of murder, but left that fact to be inferred from the recital that he had been indicted for

murder, and upon plea and trial there was a verdict of jury.

It was therefore well said in that opinion, under the facts ��<�� 5�� ?��


of that case, that “it appears from the judgment that the petitioner was convicted of some

crime, but it is left to be surmised what the crime is”; and it was proper to treat those recitals

of a judgment as mere matters of procedure, the omission of which could not affect the

validity of the judgment, under the claim of the attorney-general that such recitals raised a

presumption of the conviction of Dela for murder, and that such presumptions could not be

impeached or contradicted.

It may be true that the language used by the justice who prepared the opinion in that case,

in the discussion of these points, may not be as clear as it should, but the final conclusions of

the court on page 355, 25 Nev., supra, show precisely what was decided under the facts of

that record.

In the case at bar the petitioner was not convicted of the offense charged. It is shown by

the judgment, and this fact is not even denied or attempted to be contradicted, that he entered

a plea of guilty to the crime charged by the indictment, to wit, escaping from an officer, and

upon his plea of guilty was sentenced to imprisonment for a term of two years.

It clearly appears from the record in this proceeding that the judgment is not void for the

want of any essential matter, and that the petitioner is detained by the warden by virtue of a

final judgment of a competent court of criminal jurisdiction, and that the time during which

the petitioner may be legally detained has not expired.

The petitioner will therefore be remanded to the custody of the warden, and the writ

dismissed.

Let an order be entered accordingly.

____________

��26 Nev. 284, 284 (1901) Cardelli v. Comstock Tunnel Co.��

[No. 1608.]

ORLANDO CARDELLI, et al., Appellant, v. THE COMSTOCK

TUNNEL COMPANY, a Corporation, et al., Respondent.

Waters—Natural Stream—Drainage—Pumping—Appropriation—Injunction—Facts—Findings—Appeal.

1. Where, on a motion for injunction to restrain defendant from interfering with plaintiff's alleged right to use

one-half the waters flowing through defendant's tunnel, the evidence was conflicting as to the facts, and the

trial court found the facts against the plaintiff, its order denying the injunction should not be reversed.

2. Where all the waters flowing through a tunnel are derived from drainage of a mine and of the country

between the mine and the mouth of the tunnel, and from pumpings into the tunnel from lower levels, and

the water which has been used in the mine for electrical purposes, such tunnel is not a natural stream, and

its waters are not subject to appropriation.

Appeal from the First Judicial District Court, Lyon County; C. E. Mack, Judge.

Action by Orlando Cardelli and others against the Comstock Tunnel Company and others.

From an order refusing an injunction, the plaintiffs appeal. Affirmed.


Torreyson & Summerfield and John Lothrop, for Appellants:

I. The act of Congress of July 25, 1866, entitled “An act granting A. Sutro the right of way

and granting other privileges to aid in the construction of a draining and exploring tunnel to

the Comstock lode in the State of Nevada,” gives to Sutro no right to the waters flowing out

of said tunnel. The tunnel was not run or constructed for the purpose of developing water to

be used or sold for agricultural purposes. In order to give the tunnel company a right to the

use of these waters, they must be appropriated and put to some beneficial use, and they are

only entitled to them to the extent of their appropriation. It is not the exclusive property of the

company and subject to its exclusive disposal. (14 Stats. U. S. at Large, 242; Dick v.

Caldwell, 14 Nev. 167; Barnes v. Sabron, 10 Nev. 217; McKinney v. Smith, 21 Cal. 374;

Union M. & M. Co. v. Dangberg, et al., 81 Fed. 73.)

II. In the absence of special custom it has been held that ��

�� :�� ;��


artificial watercourses are not distinguished from natural ones, and that a title may be gained

by user (for the period of limitation) as well to the former as to the latter. (Angell on

Watercourses, 7th ed. sec. 206, 206a; Arkwright v. Gell, 5 M & W. 220; Wood v. Waud, 3

Exch. 748, 776, 777; Maeris v. Bicknell, 7 Cal. 262.)

III. For a full discussion of the rights in artificial streams see: Goddard's Law of

Easements, pp. 241-247.

IV. The Sutro tunnel was not dug for the purpose of creating an artificial stream of water.

It was not dug or constructed for the purpose of creating or developing water, or for the

purpose of appropriating any waters which might flow from said tunnel upon any agricultural

lands. It would only be entitled to such of the waters flowing therefrom for agricultural

purposes as it may have appropriated or put to a beneficial use. It has no absolute ownership

to the waters flowing out of said tunnel. The plaintiffs have the right to insist that the water

continues to flow as it did when they first made the appropriation. (Kinney on Irrigation, sec.

249; Goddard's Law of Easements, p. 245.)

W. E. F. Deal and W. E. Winnie, for Respondents:

I. Plaintiffs' title to the water is based solely upon the alleged fact that defendants, their

predecessors in interest and grantors, have, since the __ day of ___, 1879, “consented” to

plaintiffs' use of said water and the continuous use thereof.

II. Prescription must rest upon open, notorious, continuous use under a claim of right, and

not upon secret use.

III. Assuming as a fact (but which is not a fact), that for twenty years the plaintiffs used

the waters as alleged in their complaint, and that in the year 1899, for the first time, the

defendant corporation and its lessees took the water from plaintiffs and carried it to their own

land and used all of it by means of a ditch constructed in 1899, which carries the waters

across the Carson river to the defendant corporation's land where it is used by the

corporation's lessees to irrigate land belonging to the corporation, but leased to the defendant

Ceresola, or that it used all of said waters since the year 1899 to irrigate land belonging to the

corporation defendant ��3� ��

��3� ��


lying between the Cardelli ditch and the mouth of the tunnel, or east of the Cardelli ditch near

the ice house, yet we maintain under this state of facts, under the evidence in this case, that

plaintiffs have no right whatever to any of the waters flowing from the tunnel, that such

waters are just as absolutely the property of the corporation defendant as if such water were

manufactured each day from oxygen and hydrogen by the corporation defendant, and that

none of the principles which apply to the waters of natural streams are applicable to the water

of the character here in question.

IV. No right to the waters here in question can be acquired by prescription, or by

appropriation and use as against the owner of the tunnel. The following authorities and

decisions are applicable to waters of the character here in question: Willow Creek Irrigation

Co. v. Sarah C. Michaelson, 6 No. 2, vol. 51, L. R. A. p. 280, and authorities cited in note; 60

Pac. R. p. 948; Kinney on Irrigation, sec. 297, p. 474; Gould on Waters, 2d ed. sec. 225, p.

445; Crescent City M. Co. v. Silver King M. Co., 54 Pac. 244 (Utah); Arkwright v. Gell, 5 M.

& W. 202; Greatrex v. Hayward, 8 Ex. Rep. 291; Gould on Waters, sec. 279, p. 537, sec.

352, p. 634 (2d ed.), sec. 34, p. 62; Kinney on Irrigation, p. 478, sec. 29; Gould on Waters

(Percolations), 2d ed. sec. 280; Hargrave v. Cook, 41 Pac. 18-20; Gould v. Eaton, 44 Pac.

319; Southern Pac. Co. v. Dufour, 30 Pac. 783; Hanson v. McCue, 42 Cal. 307; Barnes v.

Sabron, 10 Nev. 217.

V. Assuming that Adolph Sutro did consent that plaintiffs take and use the water, that

consent conferred no right upon plaintiffs, for the reason that such consent is not shown to

have been within the scope of his authority. (Yellow Jacket Co. v. Stevenson, 5 Nev. 228;

Hillyer v. Overman Co., 6 Nev. 51; Clarke v. Lyon Co., 7 Nev. 76.)

VI. The cases entitled Barnes v. Sabron, 10 Nev. 217; Dick v. Caldwell, 14 Nev. 167;

McKinney v. Smith, 21 Cal. 374, have no bearing upon cases of the character of this case. In

each case the waters of a stream naturally flowing were involved.

VII. The counsel for plaintiffs are unfortunate in the citation of their authorities. For

instance, Goddard's Law of Easements, p. 243, states: “If, for instance, a stream ��


originates from the pumping of water from a mine, there can be no doubt the character of that

stream is temporary, although it may happen that the pumping may continue for a hundred

years. It must be seen that the reason why a right to the uninterrupted flow of water of an

artificial stream * * * is that the temporary nature of the stream precludes a presumption of a

grant of a permanent right, and such a stream as the one here in question is a temporary one,

although it may happen that the pumping will continue for a hundred years.”

VIII. Assuming, for the sake of argument, that consent was given by Mr. Sutro, it cannot

be construed as anything more than a license. “The user to give title must be adverse. It must

be such a specific assertion of right as to expose the party to an action if as a matter of fact he

had no right. It must not in any way be permissive; a license is a complete rebuttal to the

presumption of an adverse user.” (Am. & Eng. Ency. Law, 1st ed. vol. 19, pp. 12 to 15, and

authorities cited in notes.)

Torreyson & Summerfield and John Lothrop, for Appellants, in reply:

I. In Crescent M. Co. v. Silver King M. Co., 54 Pac. Rep., at page 245, the court says:

“The waters issuing from the artificial tunnel into the lake are found to be underground

percolating waters from the mining claim of defendant.” But in the case at bar there is no

testimony to show that defendants are the owners of any mining claim or that said tunnel was

dug for the purpose of draining any mining claim of defendant. On the contrary, the testimony

shows that said tunnel was dug for the purpose of draining mines belonging to other and

different corporations.

II. The testimony shows that nine-tenths of the waters flowing through the tunnel come

from pumping water from other mines and not from percolating waters. What right has this

defendant to say we shall not use the waters pumped into this tunnel by the mining

companies? What control has it over them? If defendant's theory is correct, it would only be

entitled to the percolating waters and to none of the waters pumped into the tunnel from the

mines.


III. The authorities cited upon the doctrine of percolating waters can only apply to such

waters as are percolating, and not to waters pumped into the tunnel and allowed to run or pass

through the same, and the court will see from an examination of the authorities cited by

counsel for defendant that this must be true. Every case cited by counsel for respondent

shows that the water developed was developed upon and in soil belonging to the party

running the tunnel, and upon and in mines belonging to said person.

IV. In McBroom v. Thompson, 25 Or. 559, at page 566, the court says: “An executed

license is treated like a parol agreement in equity; it will not allow the statute to be used as a

cover for fraud; it will not permit advantage to be taken of the form of the consent, although

not within the statute of frauds, after large expenditures of money or labor have been invested

in permanent improvements upon the land, in good faith, upon the reliance reposed in such

consent. To allow one to revoke his consent when it was given or had the effect to influence

the conduct of another and cause him to make large investments would operate as a fraud,

and warrant the interference of equity to prevent it.” To the same effect are: Combs v.

Slayton, 19 Or. 99; Morton Brewing Co. v. Morton, 47 N. J. Eq. 158-162; Lawrence v.

Springer, 31 Am. St. Rep. 717; Lee v. McLeod, 12 Nev. 280-4-5; 18 Am. & Eng. Ency. Law,

2d ed. p. 1145, n. 8. A license may arise from merely permitting another to do a certain thing

repeatedly. (18 Am. & Eng. Ency. Law, 2d ed. p. 1133, n. 4.)

Upon Petition for Rehearing.

Torreyson & Summerfield and John Lothrop, for Petitioner:

I. We do not believe the court intended to decide that the defendant company had the

right, or has the right, to prevent plaintiffs from using the waters flowing from the tunnel at a

time and when defendants are not using these waters. We do not believe the court intended to

decide that the defendant company when not using the waters has the right to turn the same

under the Cardelli ditch and allow them to flow into the Carson river, and prevent plaintiffs

from using them. We do not believe the court intended to decide that ��

��


plaintiffs could make no use of these waters during the non-irrigating season, and when

defendants were not using the same, but such is the effect of the decision. Suppose more

water flows from the tunnel than defendants make any use of? Have plaintiffs not the right to

the surplus? The testimony shows that while the flow from the tunnel was not uniform, yet

there was always a flow. Most of it is water pumped from the mines on the Comstock lode. It

cannot be said that under the decisions cited in support of the opinion of the court that this

defendant, or its predecessors in interest, owned the water pumped from the mines on the

Comstock. This water the mining companies created—not the defendant—and if any one

owns it it is the mining companies. If this be a fact, then this defendant has no more right to

it, except by appropriation and use, than the plaintiff.

II. The Sutro tunnel was constructed for the purpose of draining the Comstock mines, not

for the purpose of procuring water for agricultural or any other beneficial purpose, but solely

for the purpose of making the mining companies on the Comstock lode pay royalty upon each

ton of ore extracted from said mines for the use of the tunnel in permitting the waters from

the mines to flow through it. We think this court by its judgment has given the defendants the

legal power and authority to take and use property, of which in their testimony they expressly

deny being the owners.

III. We respectfully submit that a rehearing should be granted, and we urge upon the court

that, for the benefit of all parties litigant in this case, it determine the question as to the right

of these plaintiffs to divert the waters flowing out of said tunnel when not in use by the

defendant company, and also the right of the plaintiff to divert these waters and make a

beneficial use of them during the non-irrigating season.


This is an action to determine the plaintiffs' alleged right to one-half of the waters flowing

and to flow from the Sutro tunnel, for $2,800 damages for defendants' interference with said

alleged right, and for a perpetual injunction and ��


order restraining said defendants from interfering with said alleged right in future. The waters

in controversy may, from the testimony in the case, be thus described, as to their source,

nature, and situation:

On the 4th of February, 1865, the legislature of the State of Nevada passed an act (Laws

1864-65, c. 26) with the following title: “An act granting the right of way, and authorizing A.

Sutro, and his associates, to construct a mining and draining tunnel.” Sections 1 and 2 of said

act are as follows:

“Section 1. A. Sutro, and his associates, successors and assigns, shall, for the next fifty

years ensuing, from and after the approval of this act, have, possess and enjoy the exclusive

privilege of the right of way, and to run, construct and excavate a tunnel running into the

Comstock lode, from any point to be selected in the foot hills of the Carson River valley,

within the boundaries of Lyon county, and between Corral cañon and Webber cañon; also, to

sink mining shafts along the line or course of said tunnel, and connecting with the same at

such points as may be selected by said parties; provided, however, the right of way hereby

granted for said tunnel shall in no manner or in any wise interfere with any rights heretofore

acquired in and to the said Comstock lode, or any other lode along the line, or in the vicinity

of said tunnel, or any rights of property heretofore acquired by any person or corporation; and

provided, further, that said right of way for said tunnel shall in no wise interfere with the

rights of miners, according to the laws and customs of this state.

“Sec. 2. That the object of said tunnel being for the purpose of draining the Comstock

lode, and all other lodes along its line of direction or course, and for the discovery and

development of other lodes through which the same may pass, and for the general purpose of

advancing the mining interest of this state, the rate, price or sum of money to be charged for

the benefit derived by the persons, companies or corporations along the line of said tunnel,

and others who may be benefited by the drainage of their mines or lodes, and freeing the same

from the flow of water therein, shall be whatever sum or sums of money, or stock, which

may, or shall be agreed upon by and between the corporations, person or persons to be

benefited as aforesaid; and the grantee �� C�


herein, his associates, successors or assigns, and the said A. Sutro and his associates,

successors and assigns, shall have the right to receive and collect all sums of money, or stock

which said persons, companies or corporations shall contract to pay; and in default of the

payment of the same according to the tenor and condition of such contract or contracts, the

said A. Sutro, and his associates, their successors or assigns, shall have the right, and are

hereby authorized and empowered to sue for and collect the same in any court of competent

jurisdiction in this state.”

On the 25th day of July, 1866, an act of Congress was approved, having the following

title: “An act granting to A. Sutro the right of way, and granting other privileges to aid in the

construction of a draining and exploring tunnel to the Comstock lode, in the State of

Nevada.” Said last named act is as follows:

“Be it enacted by the Senate and House of Representatives of the United States of America

in Congress assembled: That, for the purpose of the construction of a deep draining and

exploring tunnel to and beyond the ‘Comstock lode,' so called, in the State of Nevada, the

right of way is hereby granted to A. Sutro, his heirs and assigns, to run, construct and

excavate a mining, draining and exploring tunnel; also to sink mining, working or air shafts

along the line or course of said tunnel, and connecting with the same at any point which may

hereafter be selected by the grantee herein, his heirs or assigns. The said tunnel shall be at

least eight feet high and eight feet wide, and shall commence at some point to be selected by

the grantee herein, his heirs or assigns, at the hills near Carson river, and within the

boundaries of Lyon county, and extending from said initial point in a westerly direction seven

miles, more or less, to and beyond said Comstock lode; and the said right of way shall extend

northerly and southerly on the course of said lode, either within the same, or east or west of

the same; and also on or along any other lode which may be discovered or developed by the

said tunnel.

“Sec. 2. And be it further enacted, That the right is hereby granted to the said A. Sutro, his

heirs and assigns, to purchase, at one dollar and twenty-five cents per acre, a sufficient

amount of public land near the mouth of said ��

�� 3��


tunnel for the use of the same, not exceeding two sections, and such land shall not be mineral

land or in the bona fide possession of other persons who claim under any law of Congress at

the time of the passage of this act, and all minerals existing or which shall be discovered

therein are excepted from this grant; that upon filing a plat of said land the secretary of the

interior shall withdraw the same from sale, and upon payment for the same a patent shall

issue. And the said A. Sutro, his heirs and assigns, are hereby granted the right to purchase, at

five dollars per acre, such mineral veins and lodes within two thousand feet on each side of

said tunnel as shall be cut, discovered, or developed by running and constructing the same,

through its entire length, with all the dips, spurs and angles of such lodes, subject, however,

to the provisions of this act, and to such legislation as Congress may hereafter provide;

provided, that the Comstock lode with its dips, spurs and angles, is excepted from this grant,

and all other lodes, with their dips, spurs and angles, located within the said two thousand

feet, and which are or may be, at the passage of this act, in the actual bona fide possession of

other persons, are hereby excepted from such grant. And the lodes herein excepted, other than

the Comstock lode, shall be withheld from sale by the United States; and if such lodes shall

be abandoned or not worked, possessed, and held in conformity to existing mining rules, or

such regulations as have been or may be prescribed by the legislature of Nevada, they shall

become subject to such right of purchase by the grantee herein, his heirs or assigns.

“Sec. 3. And be it further enacted, That all persons, companies, or corporations owning

claims or mines on said comstock lode or any other lode drained, benefited or developed by

said tunnel, shall hold their claims subject to the condition (which shall be expressed in any

grant they may hereafter obtain from the United States) that they shall contribute and pay to

the owners of said tunnel the same rate of charges for drainage or other benefits derived from

said tunnel or its branches, as have been, or may hereafter be, named in agreement between

such owners and the companies representing a majority of the estimated value of said

Comstock lode at the time of the passage of this act.”


Under the grants, rights, franchises, and privileges of the said legislation, the waters in

controversy were brought into and through the said tunnel; and the defendants are the

successors in interest to said grants, rights, franchises, and privileges. At least, evidence

tending to show the foregoing facts was introduced, and they must have been so found by the

trial court, and we see nothing in the record on file here to justify a disturbance of said

finding.

Counsel for appellants, in their brief, say: “The testimony, without contradiction, shows

that no water flows through the Sutro tunnel, except such water as is drained from the

Comstock lode, or the country between its mouth and the Comstock lode, and such water as

is pumped from below the level of the Sutro tunnel, and such water as is used on the

Comstock lode for electrical purposes. The testimony further shows that the flow of water

from the tunnel has never been uniform.”

Thus it may be seen that the waters get into the tunnel from three sources: (1) Draining of

the land adjacent to the tunnel; (2) pumping from the mines into the tunnel; and (3) such as

were discharged into the tunnel after being used in the machinery.

The evidence further tends to show that the defendant company owns land from the mouth

of the tunnel to the Carson river, over which the waters from the tunnel flow into said river.

Plaintiffs claim one-half of all the waters flowing, and also one-half of all the waters that

may hereafter flow, out of and from said tunnel, to quote from brief of appellants' counsel:

“(1) By appropriation and use; (2) by prescription and adverse use; (3) by acquiescence in the

use of the same.”

A question might arise whether the third claim mentioned does not negative and neutralize

the second—whether acquiescence does not negative and neutralize prescription and adverse

use.

“The user to give title must be adverse. It must be such a specific assertion of right as to

expose the party to an action if as a matter of fact he had no right. It must not be in any way

permissive. A license is a complete rebuttal to the presumption of an adverse user.” (19 Am.

& Eng. Enc. Law, 1st ed. pp. 12-15, and authorities cited in notes.)


As the record stands in this case, this point need not be further discussed.

Evidence for each of these contentions was put in by the plaintiffs, and evidence in

opposition thereto was put in by the defendants. The evidence was conflicting. The district

court must have found for the defendants on one or the other or both of these points. It must

have found on the first point in defendants' favor, since, on the hearing of the order to

defendants to show cause why they should not be enjoined and restrained from interfering

with plaintiffs in their alleged right to use said waters, the court made the following order:

“It is ordered that the said order to show cause be, and the same is hereby, vacated, and the

injunction applied for refused.”

The evidence in the case being conflicting, this court would not be justified in reversing

the case and setting aside said order; for, certainly, if the court found against the plaintiffs, on

the facts involved, on all three of the contentions of plaintiffs, then no reversal could be

properly had there; if on the second or third, or either of them, then, too, no reversal could be

had; for, if the order of the court be right on any ground, then it should be affirmed, and this

court cannot, from the record in this case, see what was the finding of the trial court on each

of said contentions separately.

This would probably dispose of the case, but another and very important question was

before the district court, and by it decided; and that question is now properly before this court,

and we deem it proper that this court should render its decision thereon. The question is this:

Are waters situated as are the waters in controversy here appropriable—that is, subject to

appropriation—under the statutes and decisions of the courts of the State of Nevada? In the

discussion of this question two questions arise: First—Is a stream formed of such waters a

natural or an artificial and temporary stream? Second—If an artificial and temporary stream,

are the waters thereof appropriable; that is, subject to appropriation?

In answer to the first question, we say we think such a stream is an artificial and temporary

stream, and not a natural stream. Certainly nature did not put such waters into and ��0��


through the Sutro tunnel. The waters came therein and therethrough artificially, by means of

the labor and appliances, at great expense of money and labor. We think it makes no material

difference that the waters get into said tunnel from the sources above stated, to wit,

percolation, pumping from the mines, and from the machinery used. When the waters get into

the tunnel, they make an artificial and temporary stream.

In answer to the second question, we say we think waters situated as those above stated are

not appropriable; that is, not subject to appropriation. Such waters are not like waters running

in streams on the public domain of the United States. They are produced by the capital, labor

and enterprise of those developing them, and by such developing they become the property of

those engaged in the enterprise.

They are in the full and complete sense artificial and temporary streams. Certainly thus as

to persons claiming such waters simply by using them; and there is no claim here by the

government of the United States, the owners of the mines from which waters are pumped into

the tunnel, or the owners of machinery by which or from which waters are passed into the

tunnel. Should such claims ever be made, it could then be decided. It would be a question

between those so claiming and the government of the United States, the mine owners, or the

machinery owners, and the tunnel company. It cannot avail plaintiffs in this action.

How could a right to such waters be gained by appropriation and use?

Take the facts in this case. Said facts tend to show, and, the district court must have found,

did show, that there were three periods in the history of said water: First, a period in which

there was pumping of waters from the mines into the tunnel, and then considerable water ran

from the tunnel; second, a long period of time (some eight or ten years, at least) in which

there was no pumping, and then very little, if any, water ran out of or flowed from the tunnel;

and, third, another period, beginning in 1899, in which there was again pumping of waters

from the mines into the tunnel, and then again considerable water ran out of and flowed from

the tunnel. Suppose in the first period above named plaintiffs � ��:��

��&88�� ;��


did use water (say, for illustration, 100 inches, being one-half of the water in the tunnel), and

in the second period that the waters diminished to nothing, or next to nothing; then he had

nothing, or next to nothing, for eight or ten years.

Again, suppose in 1899 1,000 inches of water came out of and flowed from the Sutro

tunnel; how could his use of the 100 inches in the first period, or his use of nothing, or next to

nothing, in the second period, or both of them, give him a right to the extra 900 inches of

water in the third period? How could he use what was not in existence? How could he

appropriate, make property of, make his own, that which did not exist? Appropriation of

water means making property of it by use—making it one's own by use—and a thing cannot

be used until it comes into existence. Hence, if it could be held that plaintiffs gained anything

during the first or second period, that would not avail them during the third period. The best

that could be claimed would be what they gained during the first or second period, and there

was no attempt to show how much that was.

Again, if they gained anything during the first period, they probably lost it all during the

long second period.

One further illustration: A. by artificial means fills a tank or reservoir on his own land

to-day, and permits the waters to flow down to B.'s land and irrigate B.'s land. Probably A.'s

conduct gives to B. the right to that water—that individual tank or reservoir full. But suppose

A. fills the same tank or reservoir to-morrow, but chooses to use this water—this tank or

reservoir full—to irrigate his own land; what right has B. to this last water? We think none,

and it makes no material difference if such a state of things were kept up for a long number of

years. In such case time would raise no presumption of a grant, and A. could at any time stop

the production of such artificial and temporary stream; and he could also, at any time, if he

continued the production of such stream, put the waters thereof to his own use.

The following authorities sustain and illustrate this doctrine: Mosier v. Caldwell, 7 Nev.

363; Gould v. Eaton, 111 Cal. 639; Willow Creek Irrigation Co. v. Michaelson, (Utah) 1&�"�B��C�


51 L. R. A. 280, and authorities cited in note (s. c. 60 Pac. 943); Kin. Irr. p. 474, sec. 297; Id.

p. 478, sec. 298; Gould, Waters, 2d ed. p. 445, sec. 225; Id. p. 537, sec. 279; Id. p. 634, sec.

352; Id. p. 62, sec. 34; Id. sec. 280; Crescent Min. Co. v. Silver King Min. Co., (Utah) 54 Pac.

244; Arkwright v. Gell, 5 Mess. & W. 203; Greatrex v. Hayward, 8 Exch. 291; Hargrave v.

Cook, (Cal.) 41 Pac. 18-20; Railroad Co. v. Dufour, (Cal.) 30 Pac. 783; Hanson v. McCue,

42 Cal. 307, 10 Am. Rep. 299; Barnes v. Sabron, 10 Nev. 217; Godd. Easem. pp. 243, 247.

The order of the district court vacating the order to show cause and refusing an injunction

is affirmed.

Per Curiam:

Rehearing denied.

____________

26 Nev. 299, 299 (1902)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JANUARY TERM, 1902.

____________

��26 Nev. 299, 299 (1902) Walsh v. Wallace��

[No. 1605.]

P. WALSH, et al., Respondents, v. D. T. WALLACE,

et al, Appellants.

Stipulation—Constructions—Irrigation—Appropriation of Water—Riparian Rights—Decree.

1. Stipulation that within forty days appellants may apply for additional findings, file and serve notice of

intention to move for new trial, and file and serve the statement on motion for new trial, allows

performance of any of the acts within the time limited, and does not require the statement of motion for

new trial to be filed, as provided by Comp. Laws, 3292, within five days after the notice of intention.

2. The doctrine of riparian rights does not prevail in Nevada.

3. To constitute a valid appropriation of water, there must be an actual diversion of it, with intent to apply it to a

beneficial use, followed by an application to such use in a reasonable time.

4. There is not an appropriation of water by settling on land on a river and having it surveyed and marking its

boundaries, or by cultivating wild grass produced by overflow of the river, or by grazing the land.

5. Where all the parties have done all the things necessary for a valid appropriation of water, and it is not

claimed that plaintiffs have appropriated all the water, a decree, without any definite finding of amount

appropriated, but only that plaintiffs had appropriated enough to irrigate certain portions of their land,

which enjoins defendants from diverting any of the water, and from interfering therewith so as to prevent

the water from flowing onto plaintiffs' lands in sufficient quantity to irrigate it, is too indefinite to be

sustained.


Appeal from the Third Judicial District Court, Lander County; A. L. Fitzgerald and W. D.

Jones, Judges.

Suit by Patrick Walsh and others against D. T. Wallace and others. Decree for plaintiffs.

Defendants appeal. Reversed.


P. M. Bowler, Jr., and Bigelow & Dorsey, for Appellants:

I. No watercourse, either surface or subterranean, is established by the evidence. No

connection between the waters claimed by the plaintiffs and those appropriated by the

defendants is shown by the proofs. It is well settled that a watercourse consists of bed, banks

and water. It is not contended that the flow of water must be continuous, but it must have a

well-defined and substantial existence. It may be dry at certain seasons of the year, but there

must be a natural and periodic flow in a definite channel. As the plaintiffs here complained of

diversions by the defendants from a natural stream to their injury, the burden of course

devolved upon them of establishing the existence and continuity of the stream at and from the

time plaintiffs' rights accrued to the date of the diversions complained of. (Lux v. Haggin, 69

Cal. 255.) The decisions in England and in the eastern states in this country sustain the

contention that no vested rights can be acquired in any flowing water, other than surface

streams, or underground streams having a distinct and definite channel and a course known

and defined. (Roach v. Driscoll, 20 Conn. 541; Ocean Grove v. Asbury Park, 40 N. J. Eq.

450; Delhi v. Youmans, 50 Barb. 319; Haldeman v. Burkhardt, 45 Pa. St. 521; Cross v. Kitts,

69 Cal. 217; Roach v. Driscoll, 20 Conn. 540; Hanson v. McCue, 42 Cal. 303; Ballard v.

Tomlinson, 24 Am. Law Reg. 636.) In Strait v. Brown, 16 Nev. 317, Judge Belknap,

delivering the opinion of the court approving the cases of Chatfield v. Wilson, 28 Vt. 54;

Haldeman v. Bruckhart, 45 Pa. St. 519, and Mosier v. Caldwell, 7 Nev. 363, says: “It has

been conclusively established by a long line of decisions that percolating water existing in the

earth is not governed by the same laws that have been established for mining streams.


No distinction exists in the law between waters running under the surface in defined channels

and those running in distinct channels upon the surface. The distinction is made between all

waters running in distinct channels upon the surface, whether upon the surface or

subterranean, and those oozing or percolating through the soil in varying quantities and

uncertain directions.”

II. The decree is indefinite and uncertain, and therefore against law. The findings are that

the plaintiffs and their predecessors had, on March 15, 1863, and until the commission of the

grievances complained of, “appropriated and used the water of the said Reese river in

sufficient quantity for irrigating and flowing over and through said lands and for watering

their cattle, horses and stock, and for household and domestic purposes.” The decree

perpetually enjoins the defendants “from diverting any of the water of Reese river, and from

in any way interfering with said water, in such manner as to prevent said water from flowing

on the lands of the plaintiffs in sufficient quantity to irrigate the same.”

III. To avoid future litigation the court should have determined the rights of the

defendants specifically ascertaining and determining whether such rights were prior or

subsequent to the rights asserted by the plaintiffs, and not left the matter at large. (People v.

Gold Run D. & M. Co., 66 Cal. 155; Quint v. McMullen, 103 Cal. 381, 383.)

IV. It does not appear either from the complaint or from the findings or from the decree

whether the quantity of water required by the plaintiffs for irrigation is the whole flow of

Reese river, or only a part of it. The law is clear, of course, that they are entitled to so much

water only as they can apply beneficially; and that the surplus may be appropriated by some

one else. (National W. & M. Co. v. Hancock, 101 Cal. 42; Hague v. Nephi Irr. Co., 67 Am.

St. Rep. 634, s. c. 16 Utah, 421; Milheiser v. Long, 61 Pac. Rep. (N. M.) 111; Fifield v. S. V.

W. W., 130 Cal. 552.)

V. The popular meaning, the one which courts have given the word “irrigation,” the sense

in which the word is employed, is defined to be the application of water to land by artificial

means. (Long on Irrigation, sec. 1; Kinney on Irrigation, sec. 1.) A valid appropriation of

water involves a diversion ��

��


of the water, and every diversion of water from a stream is artificial; it is a disturbance of the

natural order of things. (Charnock v. Higuerra, 111 Cal. 473; Webster's Dictionary; Power v.

Switzer, 21 Mont. 523, 55 Pac. Rep. 32; Tookey v. Campbell, 60 Pac. Rep. 397, and cases

cited, infra.)

VI. In Church v. Stillwell, 54 Pac. 397, the court said, “In a suit to determine the priorities

of such right (i.e., water right), it is not sufficient for the plaintiff to merely allege in his

complaint that he has the priority of right. That is a legal conclusion. He must specifically

aver all of the substantive facts which are necessary to constitute such priority.” (North

Brewing Co. v. Perrot, 60 Pac. Rep. 403; Farmers High Line Canal Co. v. Southworth, 21

Pac. Rep. 1038, and cases post.)

VII. The burden of proof was upon the plaintiffs, and they must recover, if at all, upon the

cause of action, if any, set out in the complaint, and not upon some other which may be

developed by the proofs. (Jones v. Prospect Mt. T. Co., 346; Angell on Watercourses, secs.

408, 413; Mondrau v. Goux, 51 Cal. 151; Bryan v. Torrney, 84 Cal. 136; Shenandoah M. &

M. Co. v. Morgan, 106 Cal. 417; Reed v. Norton, 99 Cal. 617; Ostega v. Corderro, 88 Cal.

225; Morenhout v. Barren, 42 Cal. 284; Gregory v. Nelson, 41 Cal. 284; Green v. Covilland,

10 Cal. 331; Mordock v. Clark, 59 Cal. 693; People v. Elk River, 107 Cal. 215; Gould on

Waters, secs. 263-4.)

VIII. The rights of appropriators of the water of a stream are to be determined by the

condition of things at the time the appropriations were made. (Proctor v. Jennings, 6 Nev. 86;

Hague v. Nephi Irr. Co., 52 Pac. Rep. 769.)

IX. For a watercourse there must be a channel, a bed, to the stream and not merely low

land or a depression in the country over which water flows. It matters not what the width or

depth may be, a watercourse implies a distinct channel, a way cut and kept open by running

water, a passage whose appearance is different from the adjacent land, discloses to every eye

on a mere casual glance the bed of a constant or frequent streams. (Gibbs v. Williams, 25

Kan. 220, 37 Am. Rep. 241; Barnes v. Sabron, 10 Nev. 218; Sweat v. Cutts, 50 N. H. 439, 9

Am. Rep. 473; Chicago, Kan.


& W. R. R. v. Morrow, 42 Kan. 339, 22 Pac. Rep. 413; Simmons v. Winters, (Or.) 27 Pac.

Rep. 7; Am. & Eng. Ency. Law, vol. 28, p. 944, and notes; Edgar v. Stevenson, 70 Cal. 286;

Razzo v. Varni, 81 Cal. 289; Los Ang. C. Assn. v. Los Angeles, 103 Cal. 464; Barkley v.

Wilcox, 86 N. Y. 140, 40 Am. Rep. 520; Green v. Carrota, 72 Cal. 268; McComber v.

Godfrey, 108 Mass. 219, 11 Am. Rep. 349; Kinney on Irr., secs. 43 to 45; Long on Irr., sec.

32; Gould on Waters, secs. 41, 263, 264, and notes; Wait's Law of Cons. Eng. and Arch., sec.

172a.)

X. If the stream known as Reese river, having its source in the mountains, flowed in a

well-defined natural channel with bed, sides or banks, to and through the forks and then

spread out, commingled with and sank in the soil, and the channel ceased, and no water

remained to pass to the plaintiffs' lands in 1863, 1864, 1865, 1866, 1867, 1868, 1869, 1870

and 1871, then it ceased, at the point of sink, to be a watercourse, and plaintiff's have no right

to it. (Walker v. New Mex. and S. P. Ry. Co., 165 U. S. 593; Broadbent v. Raimsbotham, 11

Exch. 602; Buffam v. Harris, 5 R. I. 243; McComber v. Godfrey, 108 Mass. 219, reported in

11 Am. Rep. 349; Green v. Carrota, 72 Cal. 268; Cass v. Dicks, 14 Wash. 75; Razzo v.

Barni, 81 Cal. 295; Giefilan v. Schmidt, 64 Minn, 29; Meyer v. Tacoma L. & W. C., 35 Pac.

Rep. 601; Benthall v. Seifert, 77 Ind. 302.)

XI. The law governing surface streams is not applicable to percolating water or to

subterranean water having no known defined channel or current. (Gould v. Eaton, 11 Cal. 64;

Hanson v. McKue, 42 Cal. 303; Cross v. Kitts, 69 Cal. 217; S. P. B. R. Co. v. Dufour, 95 Cal.

615; Wheatly v. Baugh, 25 Pa. St. 528; Angell on Watercourses, sec. 4d; Gould on Waters,

sec. 280; Haldaman v. Bruckhart, 45 Pa. St. 514; Delhi v. Youmans, 50 Barb. 316; Elster v.

Springfield, 49 Ohio St. 82; Roach v. Driscoll, 20 Conn. 533; Brown v. Illins, 27 Conn. 84;

New Albany R. R. Co. v. Peterson, 14 Ind. 112; Davis v. Spaulding, 157 Mass. 431; Acton

and Blundell, 12 Mees. 431; Blanchard v. Weeks, Leading Case M. W. Rights, pp. 748, 764;

Kannard v. Standard Oil, 89 Ky. 468; Taylor v. Welsh, 6 Or. 200; Lux v. Haggin, 69 Cal.

417, 419; Chasemore v. Richards, 7 H. L. Case, 359; River Co. v. Johnson, 2 "�


L. & E. 444-5; Mosier v. Caldwell, 7 Nev. 363; Taylor v. Tickas, 64 Ind. 161; Frazier v.

Brown, 12 Ohio St. 891; Buffam v. Harris, supra; Bloodgood v. Ayers, 108 N. Y. 400;

Collins v. Chartras G. Co., 131 Pa. St. 143; Lybes' Appeal, 106 Pa. St. 634; Washburn on

Easements, 210, 364; Gould on Waters, secs. 263, 265, 282; Kinney on Irr., secs. 48, 49;

Long on Irr., sec. 33; Wait, Law Cons. Engineering and Arch., secs. 251, 252, 253.)

XII. The ownership of a water right, in the Pacific states, and, particularly in the State of

Nevada, does not depend upon the possessory title or upon the legal title to land upon the

stream. It is simply a possessory right, acquired by a diversion of the water of the stream,

consummated by its application to some beneficial use or purpose, and that prior to its

diversion and such use by anyone else. (Citations supra; Kinney on Irr., secs. 240, 241; Gould

on Waters, secs. 227-9, 230-1 and notes; Broder v. Natoma Co., 50 Cal. 621; Broder v. Water

Co., 101 U. S. 276; Barnes v. Sabron, supra.)

XIII. Whoever was the first to take the water and apply it in good faith to some beneficial

use has the first and best right to so much as was taken and used. (Atchison v. Peterson, 20

Wall. 407; Sturr v. Beck, 133 U. S. 541; Jennison v. Kirky, 98 U. S. 453; Tarter v. Spring

Creek Co., 5 Cal. 398; Stokes v. Barrett, 5 Cal. 39; Irwin v. Phillips, 5 Cal. 143; Conger v.

Weaver, 6 Cal. 556; Hoffman v. Stone, 7 Cal. 46; Sharpe v. Hoffman, 79 Cal. 404; Lux v.

Haggin, 69 Cal. 447; Ruply v. Walch, 23 Cal. 455; Osgood v. Eldorado, 56 Cal. 571; Butte

Canal Co. v. Vaughan, 11 Cal. 143; Hill v. Lonorand, 16 Pac. Rep. 267; Younker v. Nichols,

1 Colo. 551; Stickler v. Colo. Springs, 16 Colo. 61; Drake v. Emhart, 2 Idaho, 716; Lobdell

v. Simpson, 2 Nev. 274; Ophir S. M. Co. v. Carpenter, 4 Nev. 534; Reno Red. Works v.

Stevenson, 20 Nev. 269; Curtis v. La Grande Co., 20 Or. 34; Grand v. Windsor, 2 Utah, 248;

Monroe v. Ivie, 24 Pac. 673; Barnes v. Sabron, 10 Nev. 217; Ophir v. Carpenter, 6 Nev. 393;

Strait v. Brown, 16 Nev. 317; Dick v. Caldwell, 14 Nev. 167; Simpson v. Williams, 18 Nev.

432-6; Dalton v. Bowker, 8 Nev. 190; Hobart v. Wicks, 15 Nev. 418; Reno W. Co. v. Leete,

17 Nev. 203; Chiatovich v. Davis, 17 Nev. 133; Smith v. Logan, 18 Nev. 149; Schulz v.

Sweeney, 19 Nev. 359; D��#��,��=9��#��C ��&2�,��=8


Proctor v. Jennings, 6 Nev. 83; Jones v. Adams, 19 Nev. 80.)

XIV. Defendants had and have the right to change the place of diversion, or to apply the

water to different uses or purposes from that to which it was originally appropriated, so long

as they did not and do not injuriously affect the rights of others. (Kinney on Irr., secs. 154,

233, 234, and notes; Gould on Waters, sec. 237 and notes; Long on Irr., secs. 46, 50 and

notes; Wait on law of Cons. Eng. and Arch., p. 59, sec. 75, and notes; Knowles v. Clear

Creek Mill, 18 Colo. 209; Sieber v. Frink, 7 Colo. 154; Hammond v. Rose, 11 Colo. 524;

Fuller v. Swan River, etc., 12 Colo. 12; Davis v. Gale, 32 Cal. 26; Santa Paula v. Peralta,

113 Cal. 45; Kidd v. Laird, 15 Cal. 161; Stickler v. Colo. Springs, 16 Colo. 61; Ramelli v.

Irish, 96 Cal. 214; Hargrave v. Cooke, 108 Cal. 72; Maeris v. Bicknell, 7 Cal. 262; Butte Mt.

Co. v. Morgan, 19 Cal. 609; Jenkins v. Bergin, 13 Cal. 221; McDonald v. Bear River, 13 Cal.

221; Kirman v. Hunnewell, 93 Cal. 519; Woolmar v. Gariberger, 1 Mont. 535; Union M. &

M. Co. v. Dangberg, 81 Fed. Rep. 115; Hobart v. Wicks, 15 Nev. 418; Jacob v. Lawrence, 98

Cal. 332; Charwick v. Higurra, 111 Cal. 473; Smith v. Corbett, 116 Cal. 587; San L. W. Co.

v. Estrada, 117 Cal. 168, 183; Gallagher v. Montecito, 101 Cal. 245; Pom. W. R., sec. 69;

Hague v. Nephi Irr. Co., 52 Pac. Rep. 769.)

XV. When a stream is a natural one, there can be no doubt that all waters which flow into

it become a part of it, and subject to the same natural rights as the rest of the water. (Goddard

on Easem., p. 51; Wood v. Wand, 3 Exch. 779; Washburn on Easem. 274; Angell on

Watercourses, sec. 95; Eddy v. Simpson, 3 Cal. 249; Hoffman v. Stone, 7 Cal. 47; Butte Con.

v. Vaughn, 11 Cal. 143; Schulz v. Sweeney, 19 Nev. 359; Malad Irr. Co. v. Campbell, 18 Pac.

Rep. 52; Stickler v. Colo. Springs, 26 Pac. Rep. 313; Low v. Shaffer, 33 Pac. Rep. 678.)

XVI. The court erred in sustaining plaintiffs' objection to, and in striking from the record

as evidence in the case as against P. Walsh, against whom they were offered, the documentary

evidence in support of the plea of former adjudication and estoppel, to wit: The judgment roll

in the case of Ahlers, et al., v. B. O'Toole, J. P. Thomas, et al., also the judgment roll and

proceedings for contempt and remittitur ��

��0��


on proceedings on certiorari from the supreme court of this State. A judgment or decree

necessarily affirming the existence of any fact is conclusive upon the parties or their privy

whenever the existence of that fact is again in issue thereafter between them.

XVII. The judgment in the contempt proceeding is a bar, evidence conclusive, against the

plaintiff, P. Walsh, upon the questions involved in the action, and upon which it depended,

and upon all matters which might have been litigated and decided in the proceedings whether

decided or not. (Van Fleet's Former Adj., p. 418, supra; Citations, supra; Croudson v.

Leonard, 4 Cr. 436; Bissell v. Kellogg, 60 Barb. 617; Merritt v. Campbell, 47 Cal. 545;

Newark v. Newark, 22 Mich. 292; Thatcher v. Gammon, 12 Mass. 268; State Bank v. Rude,

23 Kan. 143; Smith v. Whiting, 11 Mass. 446; Bates v. Spooner, 45 Ind. 489; Petersine v.

Thomas, 28 Ohio St. 596; Barrett v. Failing, 8 Or. 152; Baxter v. New Eng. M. I. Co., 6

Mass. 278; State v. Rainsburg, 43 Md. 325; Bruner v. Rainsburg, 43 Md. 560; Aurora City v.

West, 7 Wall. 82; Doty v. Brown, 4 N. Y. 71; Spencer et al. v. Dearth, 43 Vt. 104;

Shepardson v. Cary, 29 Wis. 34; Rodgers v. Higgins, 57 Ill. 244; Phelan v. Gardner, 43 Cal.

306; Thompson v. Myrick, 24 Minn. 4; Betto v. Chicago & S. R. Co., 43 Iowa, 602; Smith et

al. v. Kernocken, 7 How. 198; Lewis v. Lewis, 106 Mass. 309; Howell v. Goodrich, 69 Ill.

556; Blackinton v. Blackinton, 113 Mass. 231; Kern v. Strasberger, 71 Ill. 303; Gates, v.

Preston, 41 N. Y. 113; Cochran v. Couper, 2 Del. Ch. 27; Gunn v. Plant, 4 Otto U. S. 664;

Willis v. Ferguson, 46 Tex 496; Bigelow on Estop., pp. 35, 36, 39, 43; Freeman on Judg.,

secs. 246-7, et seq. to 250, 254, 255, 256.)

XVIII. One who appropriates water for a useful purpose cannot be defeated in his right

because he is not able to apply the whole amount of water to those uses at once. (Barnes v.

Sabron, infra; Kleinsmith v. Greiser, 14 Mont. 484; Low v. Rizor, 25 Or. 503; Senior v.

Anderson, 115 Cal. 503; Simmons v. Winters, 21 Or. 35; Cole v. Logan, 24 Or. 174; Strait v.

Brown, supra.)

XIX. Prescription is a presumption of grant which arises in favor of the claimants against

the true owner by reason of the conditions following: (1) Lapse of time; the time pre��


scribed by the statute in which an action must be brought to recover the possession of lands.

(Angell on Watercourses, secs. 203-4.) (2) Adverse use under claim of right during the period

prescribed, to wit: five years. (Brace v. Yale, 10 Allen, 44; Sterns v. James, 12 Allen, 552;

Thompson v. Pioche, 44 Cal. 517; Thompson v. Felton, 54 Cal. 548.) (3) Knowledge and

acquiescence by the true owner in the claim and adverse uses of the prescriptor. (Angell on

Watercourses, C., secs. 210, 215a.)

XX. There are four elements under the law necessary to make out an adverse possession

sufficient to constitute a defense of prescription: (a) The possession must be open, notorious,

not clandestine. (Angell on Watercourses, p. 375, sec. 215.) (b) It must be hostile to plaintiffs'

title, an invasion of his right. (Angell on Watercourses, sec. 219.) (c) It must be held under a

claim of right, exclusive of any other right, as your own. (Garrison v. McClusky, 38 Cal. 78;

Lowell v. Frost, 44 Cal. 471; Thompson v. Pioche, supra; Angell on Watercourses, secs. 216,

219c.) (d) It must be continuous and uninterrupted for a period of five years, prior to the

commencement of the action. (San Francisco v. Folde, 37 Cal. 379; San José v. Trimball, 41

Cal. 536.) This period of five years need not be next preceding the commencement of the

action. (Cannon v. Stockman, 36 Cal. 535.)

XXI. A right to the use of water may be acquired by prescription; the lapse of time

prescribed by statute not only bars the plaintiffs of their rights, but vests a perfect title in the

adverse holder. (Cannon v. Stockman, supra; Angell on Watercourses, secs. 200, 201, 204,

208; Crandall v. Wood, 8 Cal. 36; American Co. v. Bradford, 27 Cal. 360; Authors v. Bryant,

22 Nev. 246; Boynton v. Longley, 19 Nev. 76; Union W. Co. v. Crary, 25 Cal. 509; Davis v.

Gale, 32 Cal. 35; Evans v. Ross, 65 Cal. 439; Chauvet v. Hill, 93 Cal. 409; Smith v. Hawkins,

110 Cal. 126; Ewing v. Bernett, 11 Pet. 41; Sharpe v. Blankenship, 59 Cal. 288; Johnson v.

Brown, 63 Cal. 391; Arnington v. Liscon, 34 Cal. 381; Langford v. Poppe, 56 Cal. 73; Unger

v. Roper, 53 Cal. 39; P. M. Co. v. Owens, 15 Cal. 135, 136; Irwin v. Town, 42 Cal. 326;

Talbott v. Singleton, 42 Cal. 391; Willis v. Wozencraft, 22 Cal. 608; Lawrence v. Webster, 44

Cal. 385; Dorlin v. McGilten, 47 3�


Cal. 485; Bakersfield v. Chester, 55 Cal. 98; McLeran v. Benton, 73 Cal. 329; Webber v.

Clark, 74 Cal. 11; Silvera v. Hanson, 77 Cal. 579; McCromack v. Sillsby, 82 Cal. 72;

Gallagher v. Montecito, 101 Cal. 244.)

Henry Mayenbaum and J. B. Egan, for Respondents:

I. The stipulation cannot be construed so as to import into it what it does not say, and

what could never have been in contemplation of the parties and what would be senseless and

utterly futile. Nothing of the kind appears in the stipulation. De non apperentibus, et non

existentibus eadam est ratio, says the court in Daniels v. Tearney, 102 U. S. 421. The law

never regards or presumes or requires a vain thing. (Clark v. Crane, 57 Cal. 629.) We cannot

import into a stipulation reservations, or qualifications, which might readily have been

inserted by the parties. If it was the intention of the parties stipulating that the statement may

be filed after five days from the filing of the notice of new trial, the time required by statute,

they could easily have said so in the stipulation. Not having so stipulated, the statute requiring

the statement to be filed within five days from the filing of the notice must be followed.

Having failed to file the statement in the time required by law, the statement is nugatory, and

the court had no jurisdiction to consider or settle the same. True, the notice of motion for new

trial was served earlier than it need to have been. But, having filed the notice, the statement

must be filed in statutory time of five days. The Court, in Chase v. Evoy, 58 Cal. 352, says:

“It is likewise immaterial whether the notice of the motion for a new trial was served earlier

than it need to have been. No other notice was served, and the time, within which the code

requires service of the statement to be made, commences to run from the date of the service

of such notice, notwithstanding the notice could have been filed afterwards.”

II. Hayne, in his excellent work on New Trial and Appeal, sec. 22, says: “If a party elects

to give notice of intention before his time expires, he is bound by his election.” (Cooney v.

Furlong, 66 Cal. 520; Campbell v. Jones, 41 Cal. 518; Burnheimer v. Baldwin, 42 Cal. 32; Le

Roy v. Rassette, 32 Cal. 171.)

III. The rights and limitations under the statute are �� 0��3��+'�,��+++ -


clearly expressed in the case of The State v. Cheney, 24 Nev. 222-7. The Court says: “Where

the rights of either party to an action under this statute, supra, are limited in time, that the

failure of either to exercise such rights within the time limited, unless the same is preserved

by some authorized act, operates as a waiver of the same, and the attempted determination of

such rights upon the merits over proper objection is without authority.” Thus we see: (a) That

the notice of intention for new trial was filed and served October 26, 1900. (b) That the court,

at request of defendants, extended time to file statement sixty days from the 1st of November,

1900. (c) That said extension expired December 31, 1900. (d) That at every act of plaintiffs

they saved their objection to the statement that the statement was not filed in time. (e) That

the stipulation does not extend the time to file statement after the time required by statute;

that the statement was filed January 5, 1901. Reason and authority combine in the conclusion

that the statement be struck out and the appeal dismissed without going into the examination

of this duly cumbersome case of innumerable objections.

IV. The defendants contend that the waters of Reese river do not extend to plaintiffs' land,

because there are no natural channels extending to plaintiffs' lands. It is not necessary to

combat this contention of counsel, because the evidence on the part of plaintiffs not only

tends to show, but by great and overwhelming preponderance does show, that Reese river

does, and ever did, extend to plaintiffs' lands in channels well defined. The cases cited by

counsel are not in point. It was held in those cases that water of mere surface drainage,

occasioned by extraordinary courses, such as unusual heavy rains, may be turned by

defendant, so as to prevent it from overflowing his lands, and he is not liable for damages,

though the water by his act overflowed and damaged his neighbors' land. “If a channel formed

by running water presents to the eye at a casual glance the unmistakable evidence of the

frequent action of running water, then it is a watercourse.” (Gould on Waters, sec. 264.)

Kinney on Irrigation, sec. 44, cited by counsel, says: “At certain periods of the year, in the

arid regions, the ��

��


water flows on the surface in a well-defined course, and there is at all times what is known as

underground flow. These underground streams are probably much greater in volume in some

cases than the water upon the surface, and are, as far as rights of appropriation or riparian

rights are concerned, but a valuable portion of a well-defined surface stream.” Kinney on

Irrigation, sec. 48, cited by counsel, says: “In and near the mountains many streams have a

bed, which was originally a rocky cañon, but has been filled up. In this debris a large portion

of all the water sinks from sight to reappear when some rocky reef crosses the channel and

forces the water to the surface. The moving of this water through porous gravel, owing to the

declivity of the stream, is often quite rapid, and a considerable volume may thus pass down

the channel hidden from sight. Watercourses are divided into two classes—those whose

channels are known to be defined, and those unknown and undefined. The word ‘defined'

means a contracted and bounded channel, though the course of the stream may be undefined

by human knowledge, and the word ‘known' refers to knowledge of the course of the stream

by reasonable inference.” (Black v. Ballymera Comrs., 17 L. R. Ir. 456; Roach v. Driscoll, 20

Conn. 533; Brown v. Illins, 25 Conn. 594; Haldeman v. Burkhardt, 45 Pa. St. 578.) In Cross

v. Kitts, 69 Cal. 221, cited by counsel, the Court says: “Underground water of a stream may

be acquired by appropriation and the appropriator cannot be divested of it by the wrongful act

of another.” Kinney on Irrigation, 478-81, says: “If water reaches a point by either percolating

its way through the soil or by subterranean channels, and at that point is appropriated, the

appropriator has the property in it of which he cannot be divested by the owners of the soil

through which the water courses.”

V. 28 Ency. Law, 994, says: “The test of the appropriation of water is the application

thereof to the beneficial use designed, and the method of diverting or carrying out such design

or making such application is immaterial,” citing Thomas v. Guirand, 6 Colo. 533. 28 Ency.

Law, 994: “It is not necessary that the appropriator shall construct an actual ditch in order to

take possession of water. He may ��5


avail himself of the economy of nature.” Long on Irrigation, sec. 49, says: “If land is rendered

productive by the natural overflow of the water thereon, without the aid of any appliances

whatever, the cultivation of the land by means of water so naturally moistening it constitutes

a valid appropriation of such water,” citing Thomas v. Guirand, 6 Colo. 530.

VI. The decree involves no error injurious to three of the appellants. If it involves error

working injuriously to the rights of the other appellants, they should have severed in the

assignment of it. Assignments of error made jointly by all the appellants as to matters which

are available, if at all, to some of them only, must be disregarded. (Kimbrell v. Rodgers, 90

Ala. 339; Rudolph v. Brewer, 96 Ala. 189). A reversal cannot be granted in a joint assignment

of error unless the error affects all the appellants joining thereon. (Bolt v. Ward, (Ind.) 59 N.

E. 1053 (1901); Paskins, in re., 155 Ind. 173.) It has been repeatedly held that a joint

assignment of errors by two or more persons, which is not good as to all who joined therein,

must be overruled as to all. (Shabata v. Johnston, 73 N. W. (Neb.) 278; Gordon v. Little, 41

Neb. 250; Harold v. Meline, 45 Neb. 618; Small v. Scandall, 45 Neb. 306.)

VII. When inadmissible evidence is received in a trial by the court alone, it will be

presumed on appeal that the court did not consider it in making the findings. (Bowman v.

Sedgwick, 82 N. W. (Iowa) 591; Omaha Bk. v. Kiper, 60 Neb. 34; Ross v. Jones, 58 S. C. 1;

Wells v. Davis, 62 Pac. (Utah) 3; Gage Co. v. Bridge Co., 58 Neb. 827; Grumme v.

Firmenich, 110 Iowa, 505; Smith v. Elrod, 127 Ala. 269; Lumney v. Heeley, 56 Neb. 313;

Merriman v. McCormack, 101 Wis. 619; Miller v. Houston, C. C. App. 55 Fed. 366; Mining

Co. v. Taylor, 100 U. S. 37; Kelsey v. Crowther, 7 Utah, 519; Chicago v. Turner, 42 Kan.

341; White v. White, 82 Cal. 427; Frisk v. Reigelman, 74 Wis. 499; Scarborough v. Borders,

118 Ala. 399; Frank v. Napier, 41 W. V. 481.)

VIII. Where there is sufficient evidence to support the findings, the admission, over

objection, of incompetent evidence, is harmless. (Phillips v. Haddock, 163 Mass. 201; Galvin

v. Palmer, 113 Cal. 46; Ohio Ry. v. Tabor, 98 Ky. 503.)

IX. The court was bound to decide against the defense of ��


the statute of limitations. (Robinson v. Imperial, 5 Nev. 78; Missouri v. Elliott, 102 Fed. 96;

Daniels v. Johnson, 129 Cal. 415; Podolski v. Stone, 186 Ill. 540; Martin v. Marks, 154 Ind.

549; Bowman v. Sedgwick, 82 N. W. Iowa, 491.)

X. In causes tried by the court, the objection to illegal evidence is not tenable unless it is

plainly apparent that the court rested its decision on it. (Mitchell v. Beckman, 64 Cal. 117,

123; Sawyer v. Campbell, 130 Ill. 186; McCullough v. Phoenix, 113 Mo. 606; Bilby v.

Townsend, 29 Neb. 220; Rodrigues v. Hayes, 76 Tex. 225; Salt Lake v. Mammoth, 6 Utah,

315; Eureka v. Stoteman, 69 Wis. 398; Duffy v. Hickey, 68 Wis. 380; Frisk v. Reigelman, 75

Wis. 499; Hooker v. Villiage Brandon, 75 Wis. 8; Farr v. Semple, 81 Wis. 230; Harbison's

Estate, 145 Pa. 456; Simon v. Fagan, 87 N. W. Neb. 21.)

XI. Defendants contend that the proceedings in a contempt case against Walsh is an

estoppel in this case. In the case at bar Walsh does not claim under the deed from Toole, but

dereigns his title, not from Toole, but from the original prior appropriators of the land and

water, seventeen miles below said creek. No man is privy in estate with another unless he

dereigns his title from that other. He is only privy as to the title acquired from the party that

was sued. As to title derived from others not parties to the former suit, he cannot be privy.

Walsh derived his title to the Cottonwood ranch from Toole, a party to the suit; therefore he

was adjudged guilty of contempt. But in the suit at bar he derived his title from original prior

appropriators of land and water seventeen miles below the Cottonwood ranch, which was not

and could not be in question or investigated in the contempt proceeding. A title, derived by a

person prior to the suit, cannot be privy, as to that title, to a party of the suit. (Freeman on

Judgments, 4th ed. p. 453; Cromwell v. Co. Sac., 94 U. S. 351; Thrift v. Delaney, 69 Cal.

188; Bryan v. Halladay, 93 Cal. 241.)

XII. In Shea v. McNamara, 54 Cal. 170, the Court says: “A judgment is an estoppel only

as to parties and privies, and those only are privies whose interest in the subject matter of the

suit originated subsequently to its commencement,” citing Freeman on Judgments, sec. 162;

Campbell v. Hall, 16 N. Y. 575; 2 Smith Leading cases, p. 825.) “A judgment is an �� 5


estoppel only as to parties and privies, and those only are privies whose interest in the subject

matter of the suit originated subsequently to the commencement of the suit.” (Freeman on

Judgments, sec. 162; Bigelow, Estop. 74-81; Herman, Estop, sec. 46; 1 Greenleaf's Ev. 189;

Campbell v. Hall, 16 N. Y. 575; Horn v. Jones, 28 Cal. 203; Keokuk v. Missouri, 154 U. S.

310-314 (14 Sup. Ct. 597); Shea v. McNamara, 54 Cal. 170; Bryan v. Malloy, N. C. 508;

Scates v. King, 110 Ill. 456; Dooley v. Potter, 140 Mass. 49 (1 New Eng. 85); Coles v. Allen,

64 Ala. 98; Chester v. Bakersfield, 64 Cal. 42.)

XIII. Where a finding which points to judgment is supported by evidence, the fact that

other findings are not supported by the evidence, is immaterial, and is not ground for reversal.

(Wheat v. Bank, 119 Cal. 4.) The finding is never disturbed where the evidence is conflicting.

(Barker v. Gould, 122 Cal. 240; Stockton v. Glens, 121 Cal. 167; Santa Monica v. Hege, 119

Cal. 376; Loftus v. Fisher, 113 Cal. 286; Citizen's Bank v. Los Angeles, 121 Cal. 30; Johnson

v. Brown, 115 Cal. 694, and many Nevada cases.) Wrong findings, or failure to find, is

immaterial where other findings sustain the judgment. (Coyle v. Lamb, 123 Cal. 264; Gray v.

Wells, 118 Cal. 11.)

XIV. The defendants could not hide themselves behind the statute of limitations, for the

plaintiffs never were deprived of their water for five successive years, nor were the

defendants ever in uninterrupted possession of the water for five successive years. Authors v.

Bryant, 22 Nev. 242, says: “In order to establish a right by prescription to the use of water

claimed by another, the use must have been uninterrupted, adverse and under a claim of right,

and with the knowledge of the owner.” Adverse possession must be continuous and

uninterrupted for five years. (Alta v. Hancock, 85 Cal. 219; Wood, Statute Limitations, sec.

269.)

XV. “It is only when the water in the river becomes insufficient to supply all the

appropriators that the use of water belonging to another is adverse. We nowhere find in the

evidence that the defendant Estrada had been in the uninterrupted adverse use of the water as

against the right of plaintiff for five consecutive years.” (Egan v. Estrada, 56 Ariz. 721.)


XVI. Appellants contend that the decree is void for uncertainty, because, instead of

distributing the water by inches, it takes as the basis a quantity necessary to irrigate by acres.

(Dick v. Bird, 14 Nev. 163.) Judgment Affirmed. (Dick v. Caldwell, 14 Nev. 167.) This court

always sustained judgments for quantity of water sufficient to irrigate certain numbers of

acres. Thus, in Roeder v. Stein, 23 Nev. 95, the court found that the plaintiff had the first right

to enough water to irrigate one hundred and twenty-five acres. Judgment affirmed.

XVII. Counsel contend that the decree should have determined the measure of water to

which each of the defendants is entitled. There was no such objection made, and none appears

in record, and there is no such specification. But, no matter, it is no concern of the plaintiffs;

“they are not concerned in settling the relative priorities between the defendants, whose rights

are junior to plaintiffs'. That is a matter which the defendants must settle between

themselves.” (Lower Latham Ditch Co. v. Lauder Irrig. Co., 60 Pac. Cal. 629.)

P. M. Bowler, Jr., and Bigelow & Dorsey, for Appellants, in reply:

I. No watercourse, surface or subterranean, is established by the evidence, from the points

of diversion by the defendants, over, through and across the lands of plaintiffs. There is no

connection or identity of the water appropriated by the defendants and that claimed by the

plaintiffs.

II. The burden of proving that waters moving in the ground are flowing in a natural

watercourse, or in a defined channel, or are a part of a stream, is upon the plaintiff in this

action. The presumption is that they are not part of a stream or watercourse, nor flowing in a

definite channel. (Lux v. Haggin, 69 Cal. 225-418; Los Angeles v. Pomeroy, infra; Kinney on

Irrig., sec. 48; Hansen v. McCue, 42 Cal. 508; Tampa W. W. Co. v. Cline, 5 Am. St. Rep.

262; Ocean Grove v. Asbury Park, 40 N. J. Eq. 447.)

Bigelow & Dorsey and P. M. Bowler, Jr., for Appellants, in closing:

I. The objections of the respondents to the statement on ��

��


motion for a new trial, and their motion to disregard and to strike out the same on the ground

that it was not filed on time, are without foundation, and should be overruled. The statement

was filed and served in time. At page 8 counsel for the respondents say: “There was a

stipulation filed on the 12th of March, 1900, that all proceedings be stayed until the 30th day

of November, 1900, and that, within forty days thereafter, the defendant make application for

additional findings of fact, and prepare, file and serve notice of intention to move for a new

trial, and prepare, file and serve their statement in support of motion for new trial.” Within

the terms of, and the time limited by, the stipulation referred to in the above quotation, the

statement on motion for a new trial was filed and served in time. In line we quote from

Cutting's Complied Laws of Nevada, sec. 2620 (Stats. 1861, p. 6, sec. 10), as follows: “An

attorney and counselor shall have authority: First—To bind his client in any of the steps of an

action or proceeding, by his agreement filed with the clerk, or entered upon the minutes of the

court, and not otherwise.” A party may waive a rule of law or a statute, or even a

constitutional provision enacted for his benefit or protection, where it is exclusively a matter

of private right, and no considerations of public policy or morals are involved; and, having

once done so, he cannot subsequently invoke its protection. (Sentenis v. Ladew, 140 N. Y.

463; s. c. 35 N. E. R. 650; Blomberg v. Stewart, 67 Wis. 455-7-8; s. c. 30 N. E. R. 617-8;

Burt v. Oneida Com., 59 Hun, 234; Smith v. Smith, 119 N. C. 311-13; s. c. 25 S. E. R. 877;

20 Ency. Pl. & Pr. 607, and cases cited in note 7.) In O'Neale v. Cleaveland, 3 Nev. 485, in

construing a stipulation with regard to taking of testimony, the Court said (page 497): “Such

stipulations should always receive a fair and liberal construction, so as to carry out the

apparent intentions of the parties and promote fair trials on the merits, rather than a narrow,

contracted, technical interpretation calculated to take parties by surprise and defeat the ends

of justice.” There is nothing in the stipulation compelling the defendants to perform all or any

one of the acts mentioned in the stipulation, only within the period therein fixed—within

forty days after November 30, 1900.


II. The amendment to Section 182 of the practice act by the act of March 6, 1893 (Stats.

1893, p. 116), by necessary implication repealed the act of March 11, 1865 (Stats. 1865, p.

394), so that no implied findings are now permissible in this state. The court must now make

express findings of fact upon all the material issues raised by the pleadings.

III. If finding of fact are imperatively required upon every material issue raised by the

pleadings, it follows that a failure to find upon any one issue, which, if found against the

prevailing party, will render the decision against law, and entitle the losing party to a new

trial, when, in his notice of intention, he designates as a ground of motion for a new trial, that

the decision is against law. (Knight v. Roche, 56 Cal. 15, 18, 25, see p. 17; Brison v. Brison,

90 Cal. 323, 338; Haight v. Tryon, 112 Cal. 4, 6; Spotts v. Henley, 85 Cal. 186; Adams v.

Helving, 107 Cal. 298, 301.)


Henry Mayenbaum and J. B. Egan, for Petitioner:

I. In the fall of 1862, and spring of 1863, and long prior to any claim of defendants to any

of the waters of Reese river, the plaintiffs located their lands on Reese river, and made fences

around the lands. The water of Reese river then, and ever since, naturally overflowed and

overspread on said land, and had done so, from time immemorial, and made the land

meadow, grass and pasture land. The only value of said land is and always was the water so

overflowing it. Without said water the land is utterly valueless, and no grass or anything else

could grow thereon. The water is the very substance of the estate the plaintiffs had in said

land. The land so overflowed was and is of great value. The plaintiffs made great and

expensive improvements thereon. They and their families had their homes there ever since.

Now, it is contended that, because the plaintiffs did not divert the water by ditches, therefore

they had no right which the law would respect, and the defendants had the right to despoil the

plaintiffs of their right of the property they possessed for forty years. They are told in effect

that they must abandon their ranches and homes because the defendants, after all these years,

diverted the water by ditches.


II. The water is appurtenant to the land, and it can no more be taken away than the soil

itself. It is necessary to the soil to make it productive. No subsequent appropriator, nay, not

even a riparian proprietor, can take it away or divert it, as against a prior right, acquired by

necessary use of it on the land. (2 Washburn, Reap Prop. pp. 368-9; Kinney on Irrigation, sec.

267; Crooker v. Benton, 93 Cal. 365; Rapalje & Lawrence Law Dic. “Appurtenant.”)

III. The possession of the land, with the appurtenant water permeating all through the soil,

and necessary to the land, and which cannot be taken away without despoiling the meadow

and make it unproductive, is alone sufficient to maintain their right to such possession as

against all others who seek to divert the water, and especially those who base their right to do

so on subsequent appropriation or diversion. (Reno Water Co. v. Leete, 17 Nev. 203-208;

Scorpion S. M. Co. v. Marsano, 10 Nev. 370; Barnes v. Sabron, 10 Nev. 240.)

IV. The intent of the respondents is apparent by “their acts, by taking and holding the

possession of the land and water spread thereon, and by means thereof raising valuable crops,

pasturing their horses and cattle, etc., for a great many years.” As Kinney on Irrigation, sec.

150, says: “Appropriation of water is thus defined. Appropriation of waters is the intent to

take by some open physical demonstration of the intent and for some valuable use. The intent

of the respondents was apparent by everyday physical demonstration of their intent, for forty

years, by taking and holding possession of the land and of the water spread thereon and

permeating through it, and by means thereof harvesting valuable crops, pasturing their cattle

and horses, etc.”

V. The Court, in Thomas v. Giraud, et al., 6 Colo. 533, says: “If land be rendered

productive by the natural overflow of the water thereon, without the aid of any appliances

whatever, the cultivation of such land, by means of the water so naturally moistening the

same, is a sufficient appropriation of such water. The true test of appropriation of water is the

successful application thereof to the beneficial use, and the method of diverting or carrying

the same or making such application is immaterial.”

VI. A person who marks off the boundaries of land, and ��

� ��


uses the same for pasturage, and excludes others from the land adopted for pasturage, is as

much in actual possession of the land as though he had enclosed it. (Sheldon v. Mull, 67 Cal.

301; Courtney v. Turner, 12 Nev. 345.) Kinney on Irrigation, sec. 152, says: “The true test as

to whether the water can be held or not, is whether the same has been or is about to be applied

to some beneficial purpose, but the method of making such application is not material.”

VII. Long on Irrigation, sec. 42, says: “The mode of diverting and conducting the water is

wholly immaterial, and the irrigator may employ any means best suited to the existing

physical conditions, and all the circumstances of the case.”

VIII. It is said in the opinion that the decree is not certain and definite, and that the decree

must determine, in terms, the measure of water the defendants had to any of the Reese river

water that remained after the plaintiffs got what the decree specifies. It does not appear that

there was any water remaining after the plaintiffs were supplied. Nor does it appear that, if

any water were remaining, how much it was. None of the cases cited in the opinion hold that

the court must find or determine the rights of the defendants as to the water that may remain,

except perhaps on those states, where the statute requires it must be done. But it is no concern

of the plaintiffs, and, as the Court said in Lower Latham Ditch Co. v. Lauden Irrig. Co., 27

Colo. 267: “The plaintiffs are not concerned in settling the relative priorities between the

defendants, whose rights are junior.”

IX. Saint v. Guerrero. 17 Colo. 448, says: The plaintiff who has the prior right to the

water “may bring and maintain an action jointly against all parties junior in right to himself,

whenever the result of their acts, either joint or several, deprives him of his better right to the

use of the water, or substantially interferes therewith. He may thus secure protection to his

own priority, and leave the several junior appropriators to settle their relative priorities among

themselves.” It is enough for the plaintiffs to attend to their side of the case. The defendants

must attend to their side. The defendants never asked the court to parcel out ��

��


to them the water remaining over the amount decreed to plaintiffs.

X. A complete answer, then, to the contention that the court should have apportioned the

remaining water to defendants, is that that would be entirely for the benefit of the defendants,

and, by not asking this to be done, they waived it. A party may thus waive any right whatever,

even a statutory, aye, even a constitutional right. (Sedgwick, Stat. and Constitutional Laws,

111; Cooley's Const. Lim. 181; Robinson v. Bidwell, 22 Cal. 388.)

XI. The decree certainly did determine the rights of the plaintiffs. It determined that they

had the right to sufficient water to irrigate a certain number of acres, and enjoined the

defendants from diverting the same.

XII. So, in Roeder v. Stein, 23 Nev. 95, the “decree was that the plaintiff had the first right

to enough water to irrigate 125 acres, the quantity of water awarded was measured by the

number of acres. This court affirmed the order refusing a new trial.” Many cases are in the

Nevada Reports in which the water was measured by acres. In Holeman v. Pleasant Grove

Co., 8 Utah, 78, cited in the opinion, the court says: “The decree allowed plaintiff enough

water to irrigate his sixty acres of land. It may be difficult to determine how much water is

required to irrigate an acre, but it can be sufficiently approximated.” Decree affirmed.

XIII. The supreme court of this state, having for so long a period of time fully determined

that a decree measuring water by the number of acres is proper, the enlightened judges of this

court will not now consider this question open for discussion, but will adhere to those

decisions upon the wholesome maxim of stare decisis et non quieta movere. When a

principle has once become recognized as a rule of property, it should not be changed except

by the legislature. (Lemp v. Hastings, 4 Greene Iowa, 449; Grignon's Lessee v. Astor, 2 How.

U. S. 343; Sydner v. Gascoigne, 11 Tex. 455; Ewing v. Ewing, 24 Ind. 470; Reed v. Ownby,

44 Mo. 206; Fisher v. Iron Co., 10 Wis. 355; Van Winkle v. Constantine, 10 N. Y. 425;

Leavenworth v. Miller, 7 Kan. 479; Evans v. Job, 8 Nev. 344; Barstow v. Union Con., 10

Nev.386; O. F. Bank ��L��&&�,��&82


v. Quillen, 11 Nev. 109.) The necessity of this doctrine of stare decisis all courts recognize. I

cite a few cases from the decisions of the United States Supreme Court, the greatest and most

powerful of all the courts in the world: Patten v. Eaton, 1 Wheat. 476; Thatcher v. Powell, 6

Wheat. 119; Elmendorf v. Taylor, 10 Wheat. 152; Shelby v. Guy, 11 Wheat. 361; Jackson v.

Chew, 12 Wheat. 153; Ross v. Borland, 1 Pet. 655; Gardner v. Collins, 2 Pet. 58; Bank v.

Dudley, 2 Pet. 492; Powell v. Harmon, 2 Pet. 241; McCluny v. Silliman, 3 Pet. 277; U. S. v.

Morrison, 4 Pet. 124; Henderson v. Griffin, 5 Pet. 151; Green v. Neil, 6 Pet. 291; Massingil

v. Downs, 7 How. 767; Nesmith v. Sheldon, 7 How. 812; Luther v. Borden, 7 How. 1; Smith

v. Kernochan, 7 How. 198; Smith v. Hunter, 7 How. 738; Van Renseler v. Kirney, 11 How.

297; Webster v. Cooper, 14 How. 503; Jefferson Bank v. Skelly, 1 Black. 436; Sumner v.

Hicks, 2 Black. 533; Leffingwell v. Warren, 2 Black. 599; Lane Co. v. Oregon, 7 Wall. 71;

Christie v. Pridgeon, 4 Wall. 197; Nicholls v. Levy, 5 Wall. 433; Richmond v. Smith, 15

Wall. 429; Walker v. Harbor Comrs., 17 Wall. 650; Tioga R. R. Co. v. Blossburg R. R., 20

Wall. 138; State R. R. Tax Cases, 92 U. S. 576; South Ottowa v. Perkins, 94 U. S. 260; Town

of Scipio v. Wright, 101 U. S. 665.


The preliminary motion to strike out the statement, interposed by respondents in the

district court and renewed in this court, involves the construction of a stipulation between the

parties entered into on the day the findings were filed and the judgment rendered.

The stipulation, inter alia, provides that all proceedings in the action shall be stayed until

the 30th day of November, 1900, and that within forty days thereafter the appellants may

make application for additional findings, file and serve notice of intention to move for a new

trial, and file and serve the statement on motion for a new trial.

The notice of intention was filed and served on the 26th day of October, 1900, and the

proposed statement on motion for new trial was filed and served on the 5th day of January,

1901.


It is claimed by the respondents that, while under the stipulation, the notice of intention

may be filed at any time before the expiration of the forty days, the relative time for filing the

statement on motion for a new trial provided by the civil practice act (Comp. Laws, 3292),

after the filing of the notice of intention, was not changed by the stipulation, and therefore,

the statement not having been filed within five days after filing and serving the notice of

intention, it should be disregarded and stricken out.

It is a general rule that stipulations between parties should receive a fair and liberal

construction, in harmony with the apparent intention of the parties and the spirit of justice,

and in the furtherance of fair trials upon the merits, rather than a narrow and technical one,

calculated to defeat the purposes of their execution, and, in all cases of doubt, that

construction should be adopted which is favorable to the party in whose favor it is made.

(O'Neale v. Cleaveland, 3 Nev. 485; Insurance Co. v. Harris, 97 U. S. 331; Sweeney v.

Railway Co., 11 Mont. 523; 20 Enc. Pl. & Prac. 657, et seq.)

Under this rule it is clear to us that the construction contended for by respondents is too

narrow and technical. The appellants were not bound to perform any one or all of the acts

covered by the stipulation at any specified time. They could, we believe, under a liberal

construction in the order named, perform any or all of the acts at any date within the time

limited. To hold as contended by respondents would, it seems to us, necessitate the

interpolation of language not found in the stipulation; and, if such had been the intention of

the parties, it was useless and absurd to have included in the stipulation any matter relating to

the time of filing and serving the statement on motion for a new trial. The intention of the

parties, manifest from the language used, was that the stipulation should stand in lieu of the

provisions of the statute regulating these matters.

The case of State v. Cheney, 24 Nev. 222, cited by respondents in support of their

contention, is not in point, and the reading of the facts of that case is sufficient to distinguish

it from the case at bar, without discussion.

The motion to strike out will therefore be denied.

The respondents brought this action against appellants for ��

B��


the restitution of the waters of Reese river, and to restrain and enjoin them from diverting any

of the waters thereof, and from preventing the usual natural flow of the waters thereof, or any

portion thereof, from flowing to the lands of respondents. The complaint also contains a

general prayer for equitable relief.

Omitting all formal parts of the complaint, the matters pertinent to the question considered

on this appeal, as alleged, are that the respondent Walsh and his predecessors in interest were,

and had been since the 15th day of March, 1863, the owners and in the possession of certain

tracts of land containing 1,400 acres; that the respondent A. P. Maestretti and his

predecessors in interest were, and had been since said date, the owners and in possession of

certain tracts of land containing 480 acres; that the respondents James and Margaret Ryan and

their predecessors in interest were, and had been since said date, the owners and in the

possession of certain tracts of land containing 400 acres; that the respondent L. F. Maestretti

and his predecessors in interest were, and had been since said date, the owners and in the

possession of certain tracts of land containing 800 acres; that the respondent Mrs. Bircham

and her predecessors in interest were, and had been since said date, the owners and in

possession of certain tracts of land containing 400 acres—all of which lands are situated upon

Reese river, Lander county, Nevada; that said lands have been used during all said times for

agricultural purposes; that Reese river has from time immemorial, until the diversions by the

appellants in 1897, flowed over, through, and across said lands; that from the 15th day of

March, 1863, until the diversions made by appellants aforesaid, respondents and their

predecessors in interest appropriated and used the waters of the river for irrigating and

flowing over and through said lands, thereby raising crops of grass, hay, and vegetables; that

the appellants claim and assert rights to the waters of the river, which claims and assertions

are alleged to be subordinate and subject to the rights of the respondents; that the diversions

of the water by appellants since 1897 have been wrongful; and that appellants threaten to

continue the same.

The answer denied the material averments; set up prior ��B��

��


rights to all the water of Reese river by appropriation, and other matters not material to the

questions considered and determined on this appeal. The findings and decisions were for the

respondents. A motion for a new trial was interposed and denied, and this appeal is taken

from the order denying the motion.

The court found, among other matters, that Reese river had from time immemorial, and

until the diversions by appellants, flowed over, through, and across the lands of respondents;

that on the 15th day of March, 1863, the respondents and their predecessors in interest had

appropriated and used the waters of Reese river “in sufficient quantity” for irrigating and

flowing over part of their land. The court did not find the quantity of water appropriated by

any or all of the respondents, or that respondents had appropriated all the waters of the river.

The decision followed the findings, and a decree was entered perpetually enjoining the

appellants, and each of them, their agents, etc., “from diverting any of the water of Reese

river, and from in any way interfering with said water in such manner as to prevent said water

from flowing on the lands of respondents in sufficient quantity to irrigate the same.”

From a large mass of matter contained in a voluminous record we glean the following

established facts, which appear not to be controverted, and which must control the questions

which are clearly presented under a part of the assignments considered by the court:

Reese river has its source in the mountains of Nye county, and flows northerly into Lander

county. The lands mentioned in this proceeding lie along, upon, or in the vicinity of said

river. The quantity of water flowing in the river is variable, dependent upon the amount of

snow and rain falling upon its watershed at its head and along its course, and the watersheds

of its tributaries, during the various seasons.

The evidence does not show the quantity of water usually flowing in this stream, further

than at some periods there was sufficient for all the parties claiming rights thereto in this

proceeding, and at other times the quantity was insufficient to meet the claims of all.

Several miles above respondents' lands the river divides �� 6��

� �/��A��


into two forks, called the East and West Forks. The respondents' lands lie along or upon the

East and West Forks of the river, and the lands of the appellants are several miles south and

above the lands of respondents, and along the channel of the river above and near where it

divides into two forks.

The appellants and their predecessors in interest settled upon the lands mentioned in their

complaint in 1862 and 1863. The predecessors in interest of some of the respondents settled

on lands along the river a little later, but about the same time that the lands of appellants were

settled. The settlers upon the lands claimed by respondents had their several holdings

surveyed, marked the boundaries thereof, and protected the same to some extent by making

so-called ditch fences.

The ditches thus made were not for the purpose of irrigation, and were not so used for

many years after and until other rights of both respondents and appellants had been acquired

to the waters. The settlers upon respondents' land found wild grasses growing thereon at the

time of their settlement, suitable for hay and grazing, and cut and grazed the same for a

number of years. Up to 1869 whatever hay and grass grew upon these lands was produced by

the natural overflow of the waters of Reese river, and waters flowing from springs upon part

of the holdings.

No attempt was made to divert any of the waters of Reese river for the purpose of

irrigation until 1869, when the ditch marked on respondents' map by the figures 1, 2, and 3,

taken from the so-called West Fork, above the lands now held by Ryan and Maestretti, was

commenced. This ditch was not completed until many years after its commencement, and it

appears from the evidence that no water has run through a part of this ditch since 1891.

As to the Walsh lands, it appears from the testimony of the respondent, Walsh, that no

diversions were either made or attempted until 1870, and that the diversions made for the

purposes of irrigating his lands cover the period from 1870 to 1884. It is shown by his

testimony that he helped make the ditch marked “E to F” on respondents' map in 1870; the

ditch marked “J to K” on the same map, it appears, was ��

�� <"��,5�� &=-'��&=-1�� <I��$5�� &=='��


commenced and made about the same time; the ditch marked on the same map “L to N” was

commenced in 1874 or 1875; and the ditch marked “G to H” was made in 1884; and,

according to his statement, the last named ditch was made principally for the purpose of

drainage, and used afterwards for the purpose of drainage and irrigation.

It nowhere appears in the testimony what the size of any one of these ditches was, or what

is or was the carrying capacity of any one.

As to diversions of water for the purpose of irrigating the Ryan and Maestretti land, other

than the attempted diversion by the ditch marked “1, 2, and 3,” above referred to, it appears

that a dam at a point marked “7” on the map was constructed in 1869, and a ditch taken from

the dam to a point marked “8” thereafter.

It also appears that some dams were also placed in what is called the “Sampson Slough,”

running through these lands. It also appears that in the 70's one part of the ditch made to mark

the boundary of the west line of the Ryan place was used to irrigate part of the land.

The facts regarding the first diversion of water for the purpose of irrigating the Maestretti

land, formerly held by Bircham and Wallace, is of the most meager character.

It appears that S. B. Wallace, the former owner of this tract, after he and Bircham had

divided their holdings, in 1869, constructed two dams and turned water onto his meadow

land, but it is uncertain whether this water had its source in the river or in certain springs. The

date of the first diversion upon the Bircham land is left by the evidence to be conjectured.

Some time between 1863 and 1869 it appears that a dam was constructed in the so-called

West Fork of Reese river, above the Bircham house.

Whether the diversion so made was continued or abandoned is a matter, also, of doubt, as

it appears from the testimony of the witness Campbell that, for a period of twenty years or

more before the trial of this action, water to irrigate the Bircham land was diverted by a dam

in the river about twelve miles above the Bircham ranch.

It is not necessary to fully state the facts as to the diver��

��


sions made by the various appellants, but only such facts as illustrate the question discussed

and decided need be stated. The appellant Daniel T. Wallace purchased the so-called

McQuitty place, above respondents' lands, in 1870, and by means of dams and ditches

diverted water for irrigation. Whether these dams and ditches had been made and so used

before his purchase of the land is uncertain.

In 1873 Wallace located another ranch higher up on the river, and started to construct a

ditch for the purpose of irrigating this ranch. In 1877 he transferred his diversion of water,

under the advice of counsel, from the McQuitty place to his upper ranch, as it appears that the

amount of water used on the McQuitty ranch would irrigate much more land upon the upper

ranch.

Fred Ahlers, whose administrator is one of the appellants, settled upon Reese river in

1864, and commenced farming that year. He made diversions of the water of the river for the

purpose of irrigation, but the dates of such diversions and the amounts of water so diverted

are not shown by the testimony. The appellants Charles Ahlers and Hess claim rights through

Fred Ahlers, deceased. McMahon started farming on Reese river in 1864, and that year put

under cultivation eight acres, but the dates and amounts of diversions made by him are not

shown by the testimony.

The above facts are sufficient, as above stated, to illustrate the question considered and

determined by this court, and furnish a sufficient basis for its conclusion. It is well to note

here that the record does not disclose the quantity of water diverted at any time, by any

means, by any one or all of the parties to this action. Neither does it show the quantity

sufficient or necessary to irrigate the lands, or any part of the lands, of respondents, as found

by the court. Neither is there any showing in the record from which these facts, or any one of

these facts, could be ascertained by any known process.

Counsel, under the many assignments made, have discussed in their briefs nearly the entire

subject-matter of the law of irrigation prevailing in the arid and semi-arid states; but, as we

view the matter, it is necessary to consider only such questions as are plainly and sharply

made under the assign��

��


ment that the findings and decision of the court are contrary to, and not supported by, the

evidence, and contrary to law. The other questions, for various reasons appearing in the

record, the presentation of which would unnecessarily lengthen this opinion, have been

considered, but will not be determined.

It is evident from the facts recited that the finding of the court fixing the date of the

appropriation of respondents on the 15th day of March, 1863, is contrary to both the law and

the evidence.

This conclusion involves directly the question as to what constitutes an appropriation of

water, as used in the decisions of this court and the laws of this state as they have existed and

now exist.

Under two rules of the law may rights to use of water flowing in a natural stream be

acquired—under the rule of riparian rights and under the rule of appropriation.

It is conceded by counsel in this action, and it has been held by this court, that the doctrine

of riparian rights is so unsuited to the conditions existing in the State of Nevada, and is so

repugnant in its operation to the doctrine of appropriation, that it is not a part of the law, and

does not prevail here.

In order, therefore, to constitute a valid appropriation of water, within the meaning of that

term as understood by the decisions of this court and the laws of the state, and, as we believe,

by the decisions of the courts and laws of other states in the arid region, there must be an

actual diversion of the same, with intent to apply it to a beneficial use, followed by an

application to such use within a reasonable time. (McDonald v. Bear River Mining Co., 13

Cal. 220; Larimer Co. R. Co. v. People, 8 Colo. 614; Fort Morgan Land & Canal Co. v.

South Platte Ditch Co., 18 Colo. 1; Lowe v. Rizor, 25 Or. 551; Nevada Ditch Co. v. Bennett,

30 Or. 59; Offield v. Ish, 21 Wash. 277; Reservoir Co. v. Southworth, (Colo.) 21 Pac. 1030;

Simmons v. Winters, (Or.) 27 Pac. 7; Charnock v. Higuerra, 111 Cal. 473.)

While this court has never been required in its decisions to thus formally state the rule, yet

an examination of the various cases which have been before it, and the large number of

legislative acts, state and territorial, shows an actual diversion ��

��


of water to be one of the essential elements of an appropriation, within the meaning of that

term.

Under the rule announced above, the rights of the respondents to the use of the waters of

Reese river did not have their inception on the 15th day of March, 1863. Their rights were not

initiated by settlement upon the land, by having the same surveyed, or by marking the

boundaries thereof. No actual diversion was made on that date, or attempted on that date, and

for a period of several years after, as appears from the facts stated. Cutting wild grass

produced by the overflow of the river, or, as expressed by the witnesses, by the water of

Reese river coming down and spreading over the land, was not an appropriation of that water,

within the meaning of that term.

Neither was the grazing of the land an appropriation of the water, under the facts. The

established facts as to the use of the waters of the river by respondents from 1863 to 1869,

under the averments of paragraphs 14 and 15, as to the flowing of Reese river, and its

appropriation and use, is the mere assertion and proof of riparian rights, if anything; and all

parties concede that that rule does not prevail in Nevada.

If these facts should be held to constitute a valid appropriation of water, within the

meaning of that term, then, under the contention of counsel that Reese river is a well-defined

stream, with banks, bed, and channel, flowing over, through and upon respondents' land,

would the channel have the run full of water before respondents could obtain the quantity of

their appropriation, and before subsequent appropriators could acquire rights thereto, thus

entailing a wasteful use of that which is so essential and necessary to the welfare and

development of the state.

This leads up to another important question presented by the assignments, involving the

award of the injunction under the findings and facts.

It appears that the inception of the rights of the respondents to the waters of the Reese river

was not of the same date, but at different dates.

It appears that the rights of the respondent Walsh and the appellant Wallace were initiated

at or about the same time. The first diversion by Walsh was made by his prede��3��&=-8�


cessor, Crowley, in 1870. Other diversion made by himself and Crowley after his purchase of

Crowley's rights, if he purchased those rights, were made at intervals from 1870 to 1884.

As early as 1870 the appellant D. T. Wallace appropriated water from Reese river on the

McQuitty place, if McQuitty had not made the appropriation before Wallace became his

vendee.

In 1873 Wallace made a further appropriation on his upper place, and at a subsequent date

transferred his diversion from the McQuitty ranch to the upper ranch.

Under the settled rule of the law, it is not claimed by respondents that this transfer by

Wallace was not authorized and proper.

Without further reference to the facts of the case, it will be seen that in part, and to some

extent, the rights of the respondent Walsh and the appellant Wallace were initiated at the

same time, and that the claim of priority as between them, so far as this record shows, could

not be maintained by either.

The facts as to the appropriation of waters made by other respondents and appellants are

not the same, in many respects, as those recited in reference to the appropriations made by

Walsh and Wallace; but the above sufficiently illustrates the conclusion that the findings of

the court as to the priority of rights, and its decision thereon, are contrary to both the law and

the evidence.

Again, conceding, for the purpose of the argument, that the findings and decision of the

court as to the priority of right of the respondents are supported by the evidence and the law,

such findings are not sufficient to base a decision and decree of the court.

This is an equitable action to determine conflicting claims of right to the use of water by

appropriation.

The respondents did not claim by their complaint that they had appropriated all the waters

of the river, and the court did not find, expressly or impliedly, that they had.

It did find that they had appropriated sufficient water to irrigate certain portions of their

land—much less than they claimed in their complaint.


The appellants asserted by their answer rights to the water by appropriation, and denied the

rights of the respondents. If respondents' rights were prior, whatever surplus water flowed in

the stream after they had taken the quantity to which they were entitled became subject to

appropriation, under the decisions of this court.

It is conclusively shown, and not denied, that for many years appellants and their

predecessors in interest have done all those things necessary under the law to constitute a

valid appropriation of whatever surplus might remain after respondents had taken the amount

to which they were entitled.

All the parties, under the pleadings and proof, were claiming and asserting rights to the use

of the water of Reese river by appropriation; and all had acquired rights therein, and were

asking that those rights be determined.

The court, by its findings and decision, determined but one issue. It did not determine all

the rights of either of the respondents, or any of the rights of the appellants. It left

undetermined the quantity of water sufficient to irrigate respondents' lands, and to that extent

it left undetermined respondents' rights, and thereby all the rights of the appellants. It cannot

be ascertained from the findings or the decision when the respondents have taken the quantity

of water sufficient to irrigate their land, or whether respondents can take subordinate to

appellants' rights at any time any of the waters by virtue of their appropriation.

So far as the findings, express or implied, are concerned, based upon the pleadings and the

evidence, the quantity appropriated is left to mere conjecture—is left to be determined by

future litigation between the parties.

The parties have no right to determine what is sufficient or what is not sufficient to irrigate

their land.

The judgment and decree in this respect should be certain and definite, and, unless the

decree is certain and definite in this respect, it cannot be upheld, except, under the

circumstances of the case, the indefinite and uncertain quantity given by the decree is capable

of ascertainment. (In re Huntley, 29 C. C. A. 468; 85 Fed. 889; Dougherty v. Haggin, 56 Cal.

522; Barrows v. Fox, 98 Cal. 63; Ditch Co. v. Crane, 80 Cal. 81; Riverside Water Co. v.

Sargent, 112 Cal. 230; /��?��3��


Wallace v. Ditch Co., 130 Cal. 578; Drake v. Earhart, 2 Idaho, 716; Johnson v. Bielenberg,

14 Mont. 56; Smith v. Phillips, 6 Utah, 376; Holman v. Pleasant Grove City, 8 Utah, 78;

Irrigation Co. v. Jenkins, 8 Utah, 369; Irrigation Co. v. Vickers, 15 Utah, 374; Authors v.

Bryant, 22 Nev. 245.)

A decree should be based upon definite findings, and the findings can be no more definite

or certain than the evidence justifies; and where, as in the case at bar (an equitable action to

determine conflicting claims of right to the use of water, with the parties before the court),

there is nothing whatever in the record upon which to base findings or decision of those

rights, either expressly or impliedly, and the findings and decision leave a material part of the

controversy undetermined, or to be determined by piecemeal by future litigation, the action of

the court in leaving undetermined essential rights of all the parties cannot be upheld, and is

contrary to law. (Watson v. Sutro, 86 Cal. 500; People v. Gold Run Mining Co., 66 Cal. 155;

Quint v. McMullin, 103 Cal. 381; Frey v. Lowden, 70 Cal. 550; Feeney v. Chester, (Idaho) 63

Pac. 192.)

For the reasons given, the order denying the motion for a new trial will be reversed, and

the cause remanded for further action in accordance herewith.

Belknap, J: I concur.

Fitzgerald, J., being disqualified, did not participate.

____________

��26 Nev. 332, 332 (1902) Reno Mill Co. v. Westerfield��

[No. 1614.]

THE RENO MILL AND LUMBER COMPANY, a Corporation,

Appellant, v. W. J. WESTERFIELD, Respondent.

Evidence—Admissibility—Witnesses—Judge as Witness—Refusal to

Testify—Impeachment—Foundation—Appeal—New Trial—Questions Considered.

1. Where no foundation is laid for the impeachment of a witness by asking him if he has not made certain

contradictory statements, and calling his attention to the place where, the time when, and the persons to

whom or in whose presence he made such statements, it is not error for the judge, by whose testimony it is

sought to prove such contradictory statements, to refuse to testify.

2. Where the trial court considered only one question in ordering new trial, the supreme court on an appeal from

the order will not pass on matters alleged in the motion but not considered by the trial court. (Fitzgerald, J.,

dissenting.)

On Rehearing.

New Trial—Order—Appeal—Review.

1. An order merely directing a new trial because defendant was deprived of the testimony of a certain witness

does not affirmatively show it was made on one ground only.

2. A motion for new trial being made on several grounds—one of them insufficiency of evidence—and the

evidence being conflicting, so as to authorize the granting of new trial on that ground without abuse of

discretion, order granting new trial for the stated reason that defendant was deprived of the testimony of a

certain witness will be sustained, though such witness properly refused to testify.

Appeal from the Second Judicial District Court, Washoe County; B. F. Curler and G. F.

Talbot, Judges.

Action by the Reno Mill and Lumber Company against W. J. Westerfield. Judgment was

rendered in favor of plaintiff, and from an order granting a new trial, the plaintiff appeals.

Reversed. On rehearing, affirmed.


A. E. Cheney, for Appellant:

I. According to Westerfield's contention, his liability is to Holesworth and his promise to

the plaintiff was not a promise to pay Holesworth's indebtedness, but a promise to pay to the

plaintiff his own indebtedness to Holesworth. Such a promise is not within the statute of

frauds. (Browne on the Statute of Frauds, 5th ed., sec. 164.)

II. Gulling testifies that Westerfield said: “I will not have the money until October, and I

will pay then.” The company waited until October. This promise fixed his liability.


It supports and justifies the verdict. In the face of this express promise to pay a just debt, all

questions concerning the admission or rejection of testimony relating to whether there was a

contract are wholly immaterial. He is liable on that promise alone. That is the controlling fact.

(Quinn v. White, 26 Nev. 42, ante.)

III. No question was made of the sufficiency of the pleadings to hear all the proof, and no

question was made on the trial as to any variance between the pleadings and the proof, and no

such question can be raised in this court. (Bank v. Wills, 23 Nev. 59.)

IV. It is the duty of litigants to be active and diligent in procuring the testimony upon

which they rely to maintain their cause. Trials are not to be encouraged as experiments.

(Pinschower v. Hanks, 18 Nev. 106; Howard v. Winters, 3 Nev. 542.)

V. A new trial cannot be granted upon the ground of newly discovered evidence because

there is no competent proof of what that evidence is. The moving party must present the

affidavit of the new witness as to what he will testify, and the affidavit of a party or another

person, as to what they are informed his testimony will be, is insufficient. (Dunbar v.

Hollinshead, 10 Wis. 508; Jenny Lind Co. v. Bower, 11 Cal. 194; Arnold v. Skaggs, 35 Cal.

684-7-8; Hayne on New Trial and Appeal, sec. 93; 14 Enc. Pl. & Pr. 826.)

VI. “If the acts of surprise occurred during the trial, it is the duty of the aggrieved party to

call the court's attention to his misfortune at the earliest possible moment by a motion for a

continuance, supported by the usual affidavits.” (14 Enc. Pl. & Pr. 749, and cases cited.)

VII. Even if ordinary prudence could not have prevented the surprise, a new trial will not

be granted unless it appears: First, that the judgment is erroneous; second, that the applicant

has a good defense; third, that the evidence he can produce on a new trial will probably

change the result. (14 Enc. Pl. & Pr. 746, and cases cited.)

F. H. Norcross, for Respondent:

I. The question whether there was, or was not, an oral ��

/�� $��


contract between the defendant Westerfield and Holesworth for the construction of the house

for an agreed price, was the only material issue in the case. If there was, in fact, such a

contract, the plaintiff cannot recover from the defendant.

II. The refusal of Judge Curler to testify in the case, or to continue the trial so that his

testimony could be taken before another judge and jury, was a violation of the positive

provisions of our statute. (Comp. Laws, 3481.)

III. The refusal of the court to testify had taken away from the defendant the power to

impeach him; this ruling certainly relieved the defendant of the necessity of doing a vain and

foolish thing, as it would have been under the circumstances, to have examined Mr.

Holesworth as to his conversations with Judge Curler.

IV. While it is a general rule that the testimony proposed to be produced must be sworn to

by the witness, it is not in every case required. “The reason for requiring the affidavits of the

new witnesses is to guard against unfounded applications, and to present the best, rather than

a hearsay, evidence of what such witnesses will relate.” (Caldwell v. Dickenson, 29 Mo. 227;

14 Enc. Pl. & Pr. 826.)

V. “A nisi prius judge has jurisdiction on motion for new trial to decide, as a question of

fact, whether the scale of evidence against a verdict preponderates over that in favor of it; and

his decision setting it aside will not be reversed by the appellate court except for the more

cogent reasons, such as conclusive preponderance of evidence in favor of the verdict.”

(Phillpotts v. Blasdel, 8 Nev. 61.)

VI. “All points which could be urged in the court below on a motion for a new trial, either

for or against it, may be raised on appeal from the order granting or refusing it,” and where

the lower court has granted a new trial the appellate court will not reverse such order if any of

the grounds assigned in support of a new trial are sufficient. (McWilliams v. Herschman, 5

Nev. 263; McLeod v. Lee, 14 Nev. 398.)

VII. “The trial court's decision will always be presumed to have been in accordance with

the justice and merits of the case, unless the contrary plainly appears from the record.” (16

Am. & Eng. Enc. Law, 692.)


VIII. “Where the order granting a new trial is general in its terms, not specifying the

grounds upon which it is based, an expression of opinion by the trial court of a particular

error will not limit the review to that ground.” (People v. Flood, 102 Cal. 330. See, also,

Kauffman v. Mayer, 94 Cal. 269, 277; Shankin v. Hall, 100 Cal. 26-8; Mills v. Oregon

Railway Co., 102 Cal. 357; Galvin v. Palmer, 113 Cal. 46; Nally v. McDonald, 77 Cal. 284.)


I. The statute, having provided the grounds upon which a new trial may be granted, gives

the moving party, who has complied with the statute, the right to decision upon every

statutory ground which he has properly raised, and where a number of grounds have been

raised which were not passed upon by the lower court, and this court holds that it cannot

consider those grounds, for the reason that they have not been passed upon in the first

instance by the trial court, the case must be sent back to the court below with the specific

direction to pass upon all the points undisposed of and necessary to a complete determination

of the motion.

II. The motion for a new trial in this case was made upon several grounds and the

statement contains sixteen assignments of error, only one of which has been passed upon by

the trial court or by this court. The order of the lower court was reversed, because the point

upon which it granted a new trial is held to be erroneously decided, and this court has refused

to pass upon the other grounds upon which the motion for new trial was made, for the reason

that they were not considered by the trial court.

III. No objection having been made at the time the judge was called as a witness that his

testimony, in the event he should testify, would be inadmissible because it was for the

purpose of impeachment and the proper foundation had not been laid, that question was not

involved in the decision of the trial court, and, hence, cannot be considered on the appeal.

(McGurn v. McInnis, 24 Nev. 373; Paul v. Cragnaz, 25 Nev. 311; Hayne on New Trial &

Appeal, secs. 103, 280-3-4; 36 Cal. 510.)

IV. “The failure to lay a foundation for impeachment ��

��5


may be waived by failing to make objection in proper form.” (Jones on Evidence, sec. 849, p.

1868, and n. 12; Com. v. Smith, (Mass.) 40 N. E. 189.)

V. This court, in its majority opinion, after citing Hayne on New Trial & Appeal, sec. 284,

as its authority, answers the question as follows: “We concur in this reasoning, and think we

should restrict our view to the ground upon which the order was made.” After a very careful

examination and consideration of the authority upon which the majority of this court have

based their conclusion and decision, we are constrained to urge upon the consideration of this

court that its decision has gone farther than the authority it has cited goes, and that the learned

text writer, in considering the point in question, did not go so far as to hold that all points not

considered by the trial court could not be passed upon by the appellate court, but only those

points which involved discretion.

VI. Every litigant who moves for a new trial is entitled, as a matter of undeniable right, to

have every point which he has properly raised, considered and disposed of. (Shanklin v. Hall,

100 Cal. 26; Kauffman v. Maier, 94 Cal. 276; Nailly v. McDonald, 77 Cal. 284; Bank v.

Armstrong, 92 Mo. 265; Hewett v. Steele, 118 Mo. 463; Bradley v. Reppelle, 133 Mo. 545; 2

Enc. Pl. & Pr., p. 372, and authorities cited in notes; 12 Enc. Pl. & Pr., p. 975, and authorities

cited in notes; Hayne on New Trial & Appeal, sec. 2842, a and b.)


This action was brought to recover the value of building material furnished defendant and

used in the construction of his house, and for which he promised to pay its reasonable value.

The answer denied that the material was furnished defendant, or that he promised to pay

therefor, and alleged that it was sold to one Holesworth. Judgment was rendered for

$1,114.04. The district court granted a new trial upon the ground of error in the refusal of the

district judge to testify. The appeal is taken from this order.

During the progress of the trial and some time after the closing of plaintiff's case, the court

allowed respondent to recall Mr. Holesworth for further cross-examination for the ��


purpose of laying a foundation for impeachment. In the meantime, and before the witness had

been recalled, the judge presiding at the trial, and by whose testimony Holesworth was sought

to be impeached, after argument of counsel and due consideration, refused to be sworn and

testify. Holesworth was recalled, but counsel declined to further cross-examine, and no

foundation was laid for the impeaching evidence.

The necessity of laying the foundation for an impeachment and the reason upon which it is

founded were ably considered in the case of Mattox v. U. S., 156 U. S. 237.

The court said: “The authorities, except in some of the New England states, are almost

unanimous to the effect that, before a witness can be impeached by proof that he has made

statements contradictory or differing from the testimony given by him upon the stand, a

foundation must be laid by interrogating the witness himself as to whether he has ever made

such statements. Justice to the witness himself requires not only that he should be asked

whether he had ever made such statements, but his attention should be called to the particular

statement proposed to be proven, and he should be asked whether, at such a time and place,

he made that statement to the witness whose testimony is about to be introduced. This method

of impeachment was approved by this court in Conrad v. Griffey, 16 How. 46, wherein the

rule is stated to be ‘founded upon common sense, and is essential to protect the character of a

witness. His memory is refreshed by the necessary inquiries, which enable him to explain the

statements referred to, and show that they were made under a mistake, or that there was not

discrepancy between them and his testimony.'“

Of the rule as above announced Professor Greenleaf says: “This course of proceeding is

considered indispensable from a sense of justice to the witness, for, as the direct tendency of

the evidence is to impeach his veracity, common justice requires that, by first calling his

attention to the subject, he should have an opportunity to recollect the facts, and, if necessary,

to correct the statement already proven, as well as by a reexamination to explain the nature,

circumstances, �� 5


meaning, and design of what he is proven elsewhere to have said.” (Greenl. Ev. 462.)

In Runyan v. Price, 15 Ohio St. 1, one of the subscribing witnesses to a will had died. The

contestants offered in evidence his declarations respecting the capacity of the testator to make

a will at the time the one in question purported to have been made for the purpose of

impeaching his testimony.

“It seems to me,” said the court, “that to allow the death of the witness to work an

exception would be to destroy the principles upon which the rule rests, and deny the

protection which it was designed to afford. * * * In relieving one party of a supposed

hardship, an equally serious one might be inflicted upon the other. * * * Without, therefore,

the opportunity to the witness of explanation, or, to the party against whom offered, of

reexamination, we are of opinion that the supposed declarations lack the elements of

credibility which they should possess before they can be used legitimately to destroy the

testimony of the witness.”

The subject was considered by the Supreme Court of Colorado in Ryan v. People, 21 Colo.

125, in these words: “At the trial it was sought to impeach the evidence of the witness Dulin

by showing that at other times, before and after his deposition was taken, he had made

statements contrary to those contained in the deposition. This offer of proof on the part of the

defendant was rejected by the court, for the reason that the proper foundation had not been

laid for it, the attention of the witness Dulin while upon the stand not having been called to

these alleged contradictory statements, and he having had no opportunity to explain or deny

the same. Counsel concede the general rule to be that a witness cannot be impeached by

showing that he has made statements at other times inconsistent with his testimony, unless a

foundation be first laid by interrogating the witness himself as to whether or not he has made

such statements. This rule is of almost universal application. It is founded upon the soundest

principles, and supported by the great weight of English and American authority. The reasons

given for the rule are that justice requires that the attention of the witness should be first

called to the subject, in order that he may explain or deny the alleged contradictory

statements, � ��K��

�� !�:&I��6��&'��


and be given an opportunity upon ‘a reexamination to explain the nature, circumstances,

meaning, and design of what he is proved elsewhere to have said.' (1 Greenl. Ev., 14th ed.,

sec. 462.)”

In excuse of the course pursued it is said that it would have been a vain thing to have laid

the foundation for an impeachment after the judge had refused to be sworn. According to the

great weight of authority the rule was established for the protection of witnesses whose

veracity was assailed, and its enforcement is not a matter of form, to be changed by the

hardship of a particular case.

“The true principle of the rule,” said the Supreme Court of Kansas, “seems to be that the

witness whose testimony is to be impeached, and the party to be affected thereby, are of right

entitled to any explanation which the former can give of the statements imputed to him.”

(Greer v. Higgins, 20 Kan. 424.)

Having reached the conclusion that it was not error, under the facts in the court below, to

refuse to be sworn as a witness, counsel for respondent proceeds in his brief to the discussion

of other questions made in the statement upon motion for new trial.

The record shows that the new trial was ordered “for the reason that the defendant was

deprived of the testimony of Judge Curler at the former trial, and such testimony may have

been material.”

Both counsel concede that was the only ground considered by Judge Talbot, who heard the

motion for new trial. Under these circumstances, is it our duty to consider questions raised by

the statement on motion for new trial, and not considered by the judge before whom the

motion was made?

“If the grounds of action of the lower court be not shown by the record,” says Mr. Hayne,

“the supreme court must presume in support of such action that it was upon some ground

upon which it can be sustained. Thus, in Weddle v. Stark, 10 Cal. 302, where a motion for

new trial was made upon two grounds—insufficiency of the evidence and errors in law—and

the record did not show upon what ground the motion was granted, the supreme court

affirmed the order on the ground that the evidence was conflicting, and that the ��

��


order must be deemed to have been made on that ground. * * * But it is believed that this rule

should be applied only where the record shows a general order or decision of the court below,

without showing any of the grounds on which it was based. Where the order expressly states

that it was made on some one ground without mentioning the other grounds, it would seem

that it should be construed to mean that the order was made upon that ground only, and that

the other grounds were not considered.”

Again: “Where the unnoticed grounds involve questions of discretion, it is believed

(although no decision has been found upon the point) that the supreme court should not

undertake to determine them for the first time, but, if the case cannot be disposed of upon

other points, should send it back to the court below for the orderly disposition of the matter.

Unless this is done, the grossest injustice may result. Suppose, for example, that a motion for

new trial is made upon two grounds, viz., error in law, and insufficiency of the evidence, and

that the court below erroneously grants the motion on the ground of error in law, but does not

consider the other ground, and that there is a conflict of evidence. If the supreme court should

undertake to pass upon the question of the insufficiency of the evidence, it would have to

affirm the order on the ground that there is a conflict of evidence, and that the discretion of

the court below in the matter cannot be disturbed. But in the case supposed the court below

had never considered the evidence at all, and had never exercised its discretion. The only

ground upon which it acted was erroneous, and its action would be set aside were it not for

the fact that the supreme court, by undertaking to pass upon a question which the record

shows was not passed upon by the court below, creates an obstacle to stumble over. Is it not

manifest here that justice is defeated?” (Hayne, New Trial & App., sec. 284.)

We concur in this reasoning, and think we should restrict our review to the ground upon

which the order was made.

The order granting respondent a new trial should be reversed, and the cause remanded.

It is so ordered.




The statute plainly gives a litigant the right to have the testimony of the trial judge in a

case pending before said judge.

Comp. Laws 1900, sec. 3481, is as follows: “The judge himself, or any juror, may be

called as a witness by either party; but in such case it shall be in the discretion of the court or

judge to order the trial to be postponed, or suspended, and to take place before another judge

or jury.”

The counsel of respondent informed the court in due time that he desired to have the

testimony of the trial judge in the case, and actually called said judge as a witness.

The judge refused to testify, and in refusing, among other things, said: “I believe any error,

if it should be error for me to refuse at this stage of the trial, to testify as a witness—if this

shall be error, it is error that can be corrected as a matter of law upon the basis of newly

discovered evidence on motion for a new trial, unless the facts are such as warrant the court

in saying that due diligence has not been exercised on the part of either of the parties who

shall move for a new trial in the matter of getting the testimony of the judge. If I have not the

right arbitrarily to refuse to be sworn and give testimony in this case, it is a matter of right

that the demand of one of the parties to this case that I shall testify be respected and granted

as a matter of right that will be grounds for reversal upon a matter of law; and neither party

will suffer materially, the case having proceeded thus far, by going on with the case to

completion, and letting the error, if any, be corrected in a statement on motion for a new trial.

However, acting as the judge in this case, if I absolutely refuse to be sworn and testify, and it

shall appear that this testimony was discovered too late to be used upon this trial, or that it

can't be used, because, acting as judge, with the power in my own hands of refusing or

consenting to be sworn, I refuse to testify; and if it could be shown that it can thereafter be

produced upon a trial of the case, or would be proper to be produced thereafter—why the

motion for a new trial would be granted upon that ground.”

In the majority opinion it is not denied that a litigant has ��

�� .�<?�� !�� (��


the right to the testimony of the judge presiding at the trial of a cause, but it is therein said:

“During the progress of the trial, and some time after the closing of the plaintiff's case, the

court allowed respondent to recall Mr. Holesworth for further cross-examination for the

purpose of laying a foundation for impeachment. In the meantime, and before the witness had

been recalled, the judge presiding at the trial, and by whose testimony Holesworth was sought

to be impeached, after argument of counsel and due consideration, refused to be sworn and

testify. Holesworth was recalled, but counsel declined to further cross-examine, and no

foundation was laid for the impeaching evidence.”

Then, in said opinion, it is held that, because the technical foundation was not laid for the

impeaching evidence, such evidence was inadmissible and immaterial.

I cannot agree to that.

See what a position that was in which respondent's counsel found himself.

The trial judge had already informed counsel that he would not testify in the case; indeed,

had formally ruled that he would not testify, and to said ruling respondent took exception.

I think counsel for respondent had the right, and it was his duty, to ascertain whether he

had impeaching evidence, before he attempted to lay the foundation for such evidence. Then,

knowing he had no evidence with which to impeach, why should he lay or attempt to lay a

foundation for an impeachment that he knew he had no evidence to make? His position was,

indeed, an unhappy one. Under the view taken of the case by the majority, if he did not lay his

foundation, he could not impeach; and, if he did attempt to lay said foundation, he ran a risk

of great magnitude.

It was known to all that, by the refusal of the trial judge to testify, impeaching evidence

could not be obtained. Under such circumstances the witness could have made such answers

as he chose to the questions laying the foundation for impeachment, and counsel for

respondent would have been helpless. I think no one had the right to put counsel for

respondent in such a position; and that, as he could not get the impeaching testimony, and

knew that he could not get it, ��

��


he was excused from attempting to make the foundation for impeachment.

Counsel for appellant could have well argued to the jury the attempted impeachment and

its failure, thus prejudicing the case. “The law does not require a vain thing to be done,” and

to lay the foundation for an impeachment under such circumstances would have been wholly

a vain thing. Respondent, under the statute, had a right to the testimony of the trial judge. Of

this right he was deprived, and I think without fault of his; and therefore I think the trial court

acted properly in granting a new trial.

In my judgment there is another objection to the opinion of the majority in this case.

In his motion for a new trial respondent stated several grounds therefor. The trial judge

passed upon but one of those grounds, to wit, the one above discussed, and the same one

decided by the majority of this court. The trial judge granted a new trial to the respondent on

this ground alone, and this court, by the majority opinion, reverses the trial judge's order

granting a new trial, and not in any respect passing upon the other grounds for a new trial

urged by respondent. The effect of this order of reversal is to deny respondent a new trial, and

the case ends adversely to him, and he can never know whether his other grounds for a new

trial were good or bad. Some of the other grounds for new trial urged by respondent cannot,

in my opinion, be said to be so destitute of merit as not to require consideration of both the

trial court and this court. One I shall merely mention, to wit, the insufficiency of the evidence

to sustain the verdict of the jury. I think the respondent was at least entitled to the judgment

of the trial court on this question. He did not get it, and now, by the opinion of the majority,

as it seems to me, he never can get it.

The case cited in the majority opinion is a case in which the trial court made an order

granting a new trial, and the appellate court affirmed the said order, and sent the case back for

new trial, thus holding that litigants had the right to have all their grounds of new trial passed

upon. The contrary is the fact in this case. The trial court granted the motion for new trial, but

passing on but one point, thinking that point ��


sufficient; and this court reverses the order of the trial court, thus denying to respondent a

new trial; and, if he has not a new trial as stated above, the litigation ends adversely to him,

although several of the grounds urged by him for a new trial have never been passed upon or

noticed by either the trial court or the appellate court. Thus the very evil pointed out by Hayne

in his work on New Trial, cited in the majority opinion, is inflicted upon the respondent.

For the foregoing reasons I dissent from the judgment of the majority in this case, and

think that the order of the trial court granting a new trial should be affirmed.

On Rehearing.


In the opinion heretofore filed importance was attached to the statement of respective

counsel that the only matter considered by the judge before whom the motion for a new trial

was heard and determined was the refusal of Judge Curler to be sworn as a witness.

The record does not show this fact. It is as follows: “The court now renders its decision

upon defendant's motion for a new trial of this cause, and directs that a new trial of said cause

be granted, for the reason that the defendant was deprived of the testimony of Judge Curler at

the former trial, and such testimony may have been material.” This is the record, and by it we

must be governed.

It should be noticed that the above words do not exclude from consideration any ground

upon which the motion was made.

In Oullahan v. Starbuck, 21 Cal. 414, a similar question arose. The court in that case said:

“It is stated by appellant's counsel that the only ground upon which the court below based its

action in granting a new trial was a supposed error in its refusing to allow a peremptory

challenge to a juror after he had been accepted, though not sworn. We do not doubt such was

the fact, but the record does not show this, and by its contents we must be governed. * * *”

The question before us is the effect to be given to the terms of the order. Appellants

contend that, as the order allowing a new trial was made upon one ground only, it ��


should be construed as overruling the motion upon the other grounds.

To this view there are two answers:

First—The record does not affirmatively show that the order was made upon one ground

only, as was erroneously considered in the original opinion.

Second—Such construction would be unjust, for reasons fully stated in the case of

Kauffman v. Maier, 94 Cal. 276, following, where a similar question arose: “The proposition

of the appellant, that this court is limited upon this appeal to a consideration of the grounds

specified in the order granting the new trial, is untenable. A party has the right to move for a

new trial upon any or all of the grounds permitted by the statute, and if the record on which

his motion is based discloses more than one ground for which a new trial should be granted,

the court cannot, by stating in its order that the motion is granted upon one ground only, and

denied upon the others, deprive the other party of the right to a review by this court of the

entire record.

“The action of the court below is limited to granting or refusing a new trial, and, except in

those cases in which it is justified in limiting the new trial to one or more designated issues,

the effect of an order granting a new trial is to place the cause in the position it held before

any trial had been had. Upon an appeal from that order, this court will review the entire

record upon which the order was based, and, if there be found any error in the record which

would have justified the court in making the order, the order will be affirmed, upon the same

principles that an order sustaining a demurrer to a defective complaint will be sustained, even

though the ground upon which the trial court sustained it may be held untenable. A motion

for a new trial is a proceeding in the nature of a new action, wherein the statement or bill of

exceptions corresponds to the complaint, and the specifications of error to a demurrer thereto;

and the action of the trial court in sustaining the motion is to be treated on the same

principles. If there be any grounds upon which its action can be upheld, the order will be

sustained, irrespective of the particular ground given by that court, whether in an opinion or

by a statement in the order itself.


“A contrary rule might work great injustice. If a new trial is granted, the former decision is

set aside, and the party whose motion has prevailed is not ‘aggrieved,' and has no ground for

an appeal. By the order granting the new trial the judgment is vacated, and the cause is in the

same condition as when the issues were joined. But if, upon an appeal from that order, the

action by this court is limited to a review of merely the ground designated by the lower court,

and that ground should be held insufficient, the moving party would be deprived of the new

trial, to which the record might show that he is manifestly entitled.”

The motion for new trial was made upon several grounds, one of which was insufficiency

of the evidence to support the verdict. The evidence was conflicting. In such case the order of

the district court will not be disturbed, unless its discretion has been abused, and no abuse has

been shown.

It is ordered that the order of the district court allowing defendant a new trial be affirmed.

Fitzgerald, J.: I concur.

____________

��26 Nev. 347, 347 (1902) State v. Curler��

[No. 1617.]

STATE OF NEVADA, ex rel. OFFICE SPECIALTY MANUFACTURING COMPANY,

Relator, v. B. F. CURLER, as Judge of the Second Judicial District Court of the State of

Nevada, in and for Washoe County, Respondent.

Mandamus—Relators—Issuance of Writ—Review of Judicial Proceedings—Constitutional Law.

1. In view of the fact that Comp. Laws, 3543, provides that mandamus shall issue upon the affidavit and

application of the party beneficially interested, the old rule of practice, according to which mandamus

proceedings are instituted in the name of the state upon the relation of the party interested, will not be

disturbed.

2. The court will never pass upon constitutional questions, except when absolutely necessary to properly dispose

of the case.

3. Stats. 1901, p. 93, provided that whenever the county had, within five years previous to the act, acquired

property without paying therefor, the contract for which was void under Stats. 1867, p. 59, the person from

whom such land was acquired might at any time within sixty days from the approval of the act petition the

district judge of the district for the appointment of appraisers as to such property, and that the district judge

should hear such petition, and appoint three disinterested persons to appraise such property, etc., with a

view to allowing petitioners the value of such lands: Held, that, where the district judge heard the petition

of a person claiming the benefit of the statute, but refused to appoint the appraisers, mandamus would not

issue to compel the judge to make such appointment, since the power to hear, given him by the statute,

involved the power to determine, and, the determination upon such hearing being a judicial act, it could not

be reviewed by mandamus.

4. The question whether the court has exceeded his power and jurisdiction cannot be determined in mandamus.

Application by the State, on the relation of the Office Specialty Manufacturing Company,

for mandamus against B. F. Curler, Judge of the Second Judicial District Court, Washoe

County, to compel respondent to appoint appraisers under Stats. 1901, p. 93. Writ denied.


William Woodburn, Attorney-General, Torreyson & Summerfield, and F. H. Norcross, for

Relator:

I. “The right of the relator to bring an action by mandamus in the name of the state has

been recognized from the earliest period of our history as a state, and may be regarded �� 5


as a settled rule, which, if changed, should be done by the legislature.” (State v. Spicer, (Neb.)

54 N. E. 852.)

II. “No part of a statute should be rendered nugatory, nor any language be turned to mere

surplusage, if such consequences can properly be avoided.” (Torreyson v. Examiners, 7 Nev.

19.)

III. In the case of Town of Gulford v. Chenago Co., 3 Ker. 143, cited in relator's former

brief and referred to in the case of Blanding v. Burr, 13 Cal. 352, there will be found a state

of facts very similar to this case in so far as litigation is concerned. The following quotation

from the opinion of Mr. Justice Gray is very much to the point in this case: “The court could

not relieve them (the commissioners of highways) because the electors acted without statute

authority, and hence there was no legal obligation upon the part of the town as such to pay.

The moral obligation was not, and could not be, passed upon, by the court, for the reason that

the whole question turned upon the construction of a statute. * * * The legislature being the

only department of government that can provide the relief * * * must of necessity be the

exclusive judges, when the interest or the honor of the government justify a tax.”

W. H. A. Pike, for Respondent:

I. In Nevada mandamus is a civil proceeding, and the provisions governing the same are a

part of the act entitled “An act to regulate proceedings in civil cases in the courts of justice of

this state, and to repeal all other acts in relation thereto,” approved March 8, 1869 (Stats.

1869, pp. 196 and 264). Section 4 of said act provides that “every action shall be prosecuted

in the name of the real party in interest, except as otherwise provided in this act,” and this

proceeding does not come within any of the exceptions provided for. (Comp. Laws, 3099.)

Section 448 of said act further provides that the writ of mandate shall issue on the application

of the party beneficially interest. (Comp. Laws, 3543.) There being a plain and palpable

disregard of the statutes, the motion to quash and set aside the alternative writ of mandate and

dismiss the proceedings should be granted. (Florida Cent. R. Co. v. State, 31 Fla. 482;

Ottawa v. People, '=�@�


48 Ill. 233; Pike Co. v. People, 11 Ill. 205; People v. Police Justice, 41 Mich. 224; People v.

Rome R. Co., 103 N. Y. 95; Portland Stoneware Co. v. Taylor, 17 R. L. 33; Smith v.

Lawrence, 2 So. Dak. 185; Howard v. Huron, 5 So. Dak. 529; Heintz v. Monton, 7 So. Dak.

272; State v. Marston, 6 Kan. 528; State v. Jefferson Co., 11 Kan. 66; Haggerty v. Arnold, 13

Kan. 366; Elser v. Fort North, 27 S. W. Rep. (Tex.) 739; People v. Pacheco, 29 Cal. 210.)

II. If the court erred in its decision, the Office Specialty Manufacturing Company's remedy

was by way of an appeal, and, if no appeal was provided for in the act, then the Office

Specialty Company is without remedy, for the reason that, though the Supreme Court of the

State of Nevada by mandamus may compel a district court to act, it cannot say how the court

shall act; and, where it is vested with power to determine a question of fact, the duty is

judicial, and, however erroneous its decision may be, it cannot be compelled by mandamus to

alter its determination. (Poole v. Kinkead, 16 Nev. 222.)

III. The act not only seeks by compulsory arbitration, without any notice to Washoe

county, to compel her to pay for the furniture, but also seeks to deprive her of the judgment of

the district and supreme courts, and to subject her to the risk and expense of another contest,

and that by compulsory arbitration and without any notice to Washoe county whatever. The

act is clearly unconstitutional and void upon that ground. (DeChastellux v. Fairchild, 15 Pa.

St. 20; Trustees v. Bailey, 238; People v. Supervisors, 16 N. Y. 424; Moser v. White, 29

Mich. 59; Butler v. Supervisors, 26 Mich. 22; Hart v. Henderson, 15 Mich. 215; People v.

Goldtree, 44 Cal. 323; Grim v. Weissenberg School Dist., 98 Am. Dec. 237.)

IV. The legislature cannot make a law for a particular case between two contracting

parties contrary to existing law, and order the court to enforce it. (Ervine's Appeal, 55 Am.

Dec. 499.)

V. The act is also unconstitutional and void, for the reason that it imposes upon the judges

of the several district courts of this state the exercise of non-judicial functions, namely, the

exercise of executive functions.

VI. The act is unconstitutional and void for the reason ��0��+8�� +&��C��@@@��3��

��


that it is in contravention of Sections 20 and 21 of Article III of the Constitution, in that it is

special legislation regulating county business. (State v. Cal. M. Co., 15 Nev. 235; State v.

Con. Va. M. Co., 16 Nev. 434; Gulf Ry. Co. v. Ellis, 156 U. S. 150.)

William Woodburn, Attorney-General, Torreyson & Summerfield, and F. H. Norcross, for

Relator, in reply:

I. It is proper to bring mandamus proceedings in the name of the state. (13 Enc. Pl. & Pr.

668 and note 6; High, Ex. Leg. Rem. 430, 430a; State v. McCullough, 3 Nev. 202; Territory

v. Potts, 3 Mont. 364; 134 Mo. 304-5; 61 Ind. 584-591; 5 Ohio St. 497; 1 Okla. 42, 244, 247;

People v. San Francisco, 36 Cal. 605.)

II. The general practice in this state in mandamus has been to bring the action in the name

of the state, and there have been so few exceptions that such practice ought to be considered

established. (State v. Piper, 11 Nev. 243; Rider v. Brown, 1 Okla. 247.)

III. The act in question is not in contravention of Article III of the state constitution. It

does not impose a non-judicial duty upon the court, but one that is clearly judicial. (Tuolumne

Co. v. Stanislaus Co., 6 Cal. 443.) But even if the duties imposed were non-judicial in their

nature, the act would not for that reason be unconstitutional. (Sawyer v. Dooley, 21 Nev. 396;

People v. Provines, 34 Cal. 520; Staude v. Comrs., 61 Cal. 313; 6 Am. & Eng. Enc. Law, 2d

ed. 1060.)

IV. The point that the act of the legislature in question is special legislation cannot be well

taken. The act is general in form, and its language is plain. The intention of the legislature

must be deduced from the language of the act, and the courts cannot go beyond it. (State v.

Washoe Co., 6 Nev. 107; V. & T. R. R. Co. v. Comrs., 6 Nev. 68; Bank v. Quillen, 11 Nev.

109.)

V. Even if it could be shown that the legislature was induced to pass the act in order to

afford a remedy for relator, it would not thereby become a special act as contemplated by the

constitution. (Davis v. Los Angeles, 66 Cal. 42; Riche v. Franklin Co., 22 Wall. U. S. 67, 75.)

VI. The legislature has power to provide different reme ��

�� F� �


dies and modes of procedure for different classes of claims, and this power is well

recognized. (Washoe Co. v. Humboldt Co., 14 Nev. 135; Water Co. v. Lake Co., 45 Cal. 90;

Bank v. Shaber, 55 Cal. 90; Douglas Co. v. Taylor, 50 Neb. 530; Dale Co. v. Gunther, 46

Ala. 118; 7 Am. & Eng. Enc. Law, 2d ed. note, p. 958; Comp. Laws, 2127, 2112, 2161.)

VII. The legislature has supreme power over county and municipal governments, and can

direct that just claims be paid from the public treasuries, regardless of whether they are

legally enforcible, and the legislature is the sole judge of what is a just claim. (7 Am. & Eng.

Enc. Law, 2d ed. 970, and authorities cited in note 7; Beals v. Amador Co., 35 Cal. 624;

Blanding v. Burr, 13 Cal. 351; Gulford v. Chenago Co., 3 Ker. 143; Thomas v. Leland, 24

Wend. 65; 18 Barb. 616.)

VIII. The legislature has the power to provide for appraisers to fix the value of property to

be paid for by a county. (Tuolumne Co. v. Stanislaus Co., 6 Cal. 440; People v. Alameda Co.,

26 Cal. 646.)

IX. The act in question is not retroactive, and, even if it were, it would not thereby be

rendered unconstitutional. “Our constitution does not forbid the passage of retroactive laws.”

(Esser v. Spaulding, 17 Nev. 289; 3 Am. & Eng. Enc. Law, 757, 761; New Orleans v. Clark,

95 U. S. 644.)

X. It is well settled in the law that a county or municipal corporation cannot retain the

benefits of a void, or even a fraudulent, contract without being required to pay the reasonable

value of the same. (Argenti v. San Francisco, 16 Cal. 275, Auerbach v. Salt Lake Co., 63 Pac.

907; Waitz v. Ormsby Co., 1 Nev. 370, 377; Clarke v. Lyon Co., 8 Nev. 181.)


In 1901 the legislature passed an act entitled “An act authorizing the adjustment and

payment of certain claims against counties of this state” (Stats. 1901, p. 93), by which, briefly

stated, it was provided that whenever any county had within five years prior to the passage of

the act acquired any property of the value of $500 or more, for which no compensation had

been received and retained by the person, firm or corporation furnishing the same, by reason

of the contract for furnishing the same being adjudged void for not having �� <C�� KC�� !�� (��=�&=�1�5�� A��&2��&=�-�:0��


been entered into in accordance with the provisions of the act of the legislature entitled “An

act supplementary to an act entitled ‘An act to create a board of county commissioners in the

several counties of this state and to define their duties and powers,' approved March 8, 1865,”

approved February 19, 1867 (Stats. 1867, p. 59), the person, firm, or corporation furnishing

such property shall have the right at any time within sixty days after the approval of the act to

petition the district judge of the district including the county retaining such property for the

appointment of three disinterested persons as appraisers of such property, and the district

judge shall hear such petition, and upon the hearing of such petition shall appoint three

disinterested persons to appraise such property, and said appraisers shall within fifteen days

thereafter meet and appraise such property for its reasonable value, and shall, upon such

determination, certify to the district judge the amount for which they, or a majority of them,

have appraised such property, and thereupon the district judge shall certify to the county

auditor the amount which the appraisers have placed upon said property, and, upon the county

auditor receiving the certificate of the judge, he shall draw his warrant upon the general fund

of the county for the amount so certified to him, and shall deliver the same to the person

entitled to it, provided that said property shall not be appraised for an amount in excess of

that stipulated in the void contract.

The relator claimed the benefit of the provisions of this act, by petitioning the respondent,

the district judge of the district including Washoe county, for the appointment of the

appraisers named in the act. The matter was heard by the respondent upon various matters

and objections raised by Washoe county, represented at the hearing by its district attorney;

and upon such hearing the respondent refused to appoint the appraisers, basing his refusal

upon the unconstitutionality of the act cited. Thereupon the relator brings mandamus in this

court to compel respondent to appoint the appraisers provided for in this act, and to certify the

amount of any appraisement made to the county auditor, as thereby required.

The preliminary motion of the respondent to quash the ��

�� !�� F� ��


alternative writ and dismiss the proceeding, based upon the fact, appearing upon the face of

the relator's petition herein, that the writ was not issued upon the application of the person

beneficially interested, but was issued upon the unauthorized application of the state, will be

first considered and determined herein. While it is true that proceedings in mandamus, under

our statute, are of a civil nature, yet an examination of the cases brought in this court shows

that it has been almost the universal rule of practice, when private interests only have been

involved, to entitle the action in the name of the state on the relation of the person

beneficially interested; and we are not disposed at this late day to disturb this settled rule of

practice concerning a mere matter of formal title, the continuation of which does not in the

least affect injuriously the rights of the state or of parties seeking the enforcement of the

remedy.

In reaching this conclusion we are not without ample support in the statutes and decisions

of the court.

In the case of State v. Gracey, 11 Nev. 227, this court recognized this rule, and it has since

been acted upon by both bench and bar.

The statute prescribing the method of procedure also justifies and supports the rule. It does

not prescribe in what form the proceeding shall be entitled (Comp. Laws 1900, sec. 3543);

neither does it require that the writ shall be issued upon complaint provided for in ordinary

civil actions. On the contrary, that section authorizes the issuance of the writ upon affidavit

and application of the party beneficially interested, which, to say the least, partakes very

much of the character of a motion upon affidavit under our civil practice act; and while it is

the practice to consider the affidavit for the purpose of determining whether the showing

made is sufficient upon which to base the issuance of the writ, or to entitle the party to the

relief demanded, yet it may well be doubted, under the provisions of another section of the

civil practice act (Comp. Laws, 3602), relating to informalities and defective titles in

affidavits, whether any title whatever is necessary to make it sufficient as a basis, where it

appears from the affidavit that the remedy is sought by the party beneficially interested. The

fact is sufficiently shown by the ��

��


affidavit in this proceeding, and the motion to quash and dismiss will therefore be denied.

Many objections have been made by the respondent against the right of relator to the

peremptory writ, based upon the unconstitutionality of the Act of 1901, supra, but it is a

well-established rule of this and other courts that constitutional questions will never be

passed upon, except when absolutely necessary to properly dispose of the particular case, and,

as we view this proceeding, it is unnecessary, under the rule stated, to determine whether said

act is or is not constitutional.

We shall therefore confine the opinion to the consideration of the point whether this court

can, in mandamus, compel the respondent, under the law and the facts of this record, to

appoint the appraisers named in the act of 1901.

It is well to note here that it is shown by paragraph 7 of the relator's petition herein that the

respondent heard the petition to appoint appraisers on the 29th day of November, 1901, and

thereafter announced his decision thereon, refusing to appoint appraisers of such property, or

to do anything in the premises required; assigning as a reason therefor that the said act is

unconstitutional.

This is a sufficient statement of the facts considered, taken in connection with the law,

upon which to base our conclusion.

A discussion of the provisions of the act is therefore necessary, in order to determine just

what the duties of the respondent were, and to understand the rights and status of the relator

thereunder and in this proceeding.

From the language used in the act, it is apparent that the legislature intended to accomplish

certain definite purposes. It intended to validate contracts of boards of county commissioners

which had been adjudged void by the courts for the reason that such contracts had been

entered into in violation of the provisions of the General Statutes defining the powers and

duties of such boards, and thereby create legal demands against the counties, and give an

additional method for asserting such demands against them.

Whether or not the legislature of this state possesses such power over the counties as to

establish legal demands arising out of contracts declared void by the court, it is not our

pur�� 0��3��0��3��


pose either to discuss or determine; but it is well to note that the decisions of the Supreme

Court of the State of California cited in support of such power are based upon a constitution

containing no such limitations upon legislative power as are found in the constitution of this

state.

Assuming, therefore, that the act is constitutional, what was the status of relator with

reference to the act when it petitioned the respondent to appoint the appraisers named? It was

seeking to establish a legal demand against Washoe county by the method prescribed in that

act. The act itself did not fix or establish a demand of the relator against the county, and,

unless certain steps were taken and certain things done within the time limited, the relator

could have no rights whatever against the county growing out of his void and illegal contract.

In fact, relator denies that the act is of that special character establishing its demand against

Washoe county.

Neither can it be claimed that its demand against the county was established when it

petitioned the respondent to appoint the appraisers. It will be observed that the act does not

require a verification of the petition, and certainly the legislature, did not intend that the

counties of this state should become liable for any amount by the mere presentation to a

district judge of an unverified petition asserting a demand.

It will be further observed that, under the language of the statute, the district judge to be

petitioned may be in a county other than the one sought to be charged with a liability under

the act; and while it is true the act is summary in character, and provides a summary mode of

procedure, the district judge is required by the act to do something more than appoint

appraisers upon being asked. It requires, in direct terms, that he shall “hear” the petition, and

it cannot be doubted that the power to hear, conferred upon a judicial officer, carries with it

the power to determine or decide. If such was not the intention of the legislature—if the

petitioning of the district judge imposed the mere ministerial duty of appointing

appraisers—then it was useless to require a hearing before appointment, and the language of

the act requiring a hearing is absolutely meaningless.


We realize that it is often a very difficult matter to define the boundary between acts

ministerial and acts judicial, yet the language and purposes of this act have clearly defined the

character of the act of the district judge as a prerequisite to his making the appointment of

appraisers. He could appoint, or refuse to appoint, as he might decide after the hearing.

He exercised judicial functions. The power to appoint or not to appoint was a judicial act.

It appears from relator's petition that the respondent did not refuse to hear. If he had, a

different question would have been presented. He did refuse to appoint. We have, therefore, a

statute authorizing a judicial officer to perform a judicial act, with an admitted showing that

he had acted; and it is well settled by the decisions of this court that mandamus will lie to

compel an officer or tribunal exercising judicial functions to act—to hear—but never for the

purpose of reviewing or correcting judicial acts, however erroneous or wrong they may be.

(Cavanaugh v. Wright, 2 Nev. 166; State v. Wright, 4 Nev. 119; State v. Board of Comrs. of

Eureka Co., 8 Nev. 309; Water Co. v. Rives, 14 Nev. 431; Hoole v. Kinkead, 16 Nev. 217;

Nevada Cent. R. Co., v. District Court of Lander Co., 21 Nev. 409; State v. Board of Comrs.

of Lander Co., 22 Nev. 71; Hardin v. Guthrie, 26 Nev. 246, ante.)

But relator contends that the act is constitutional, and therefore the decision of the

respondent holding it unconstitutional is wrong. Hence it is our duty, it insists, under the facts

of the record, to compel the respondent, by the peremptory writ, to appoint the appraisers.

Even if we entertained views as to the constitutionality of the act contrary to the views of the

respondent, relator would not be entitled to the writ, as the issuance of the writ would require

that we pass judicially upon the facts presented in the petition to the respondent, and therein

exercise a power conferred exclusively upon him by the act of 1901, and, to that extent,

control and direct his judgment in the premises.

Again, if respondent, under the act, had the power or authority to determine the

constitutionality of the act (a power which the relator, it seems, does not controvert), then the

issuance of the peremptory writ involves a review and ��

�� :�� &28&�� ;�� J��


determination in mandamus of the correctness of the decision of the respondent upon that

constitutional question; but, if such power does not exist (the power to determine the

constitutionality of the act of 1901 in the proceeding before the respondent), then the issuance

of the peremptory writ by this court requires that we consider and determine that respondent

exceeded his power and jurisdiction—a question which cannot be considered and determined

in mandamus.

Adhering to the settled rules of the law, we must hold that, under the facts of this record,

mandamus will not lie, for the reasons given; and therefore the peremptory writ will be

denied, and the proceeding dismissed.

____________

��26 Nev. 357, 357 (1902) State v. Nev. Cent. R. R. Co.��

[No. 1613.]

THE STATE OF NEVADA, Respondent, v. THE NEVADA

CENTRAL RAILROAD COMPANY, et al., Appellants.

Taxation—Delinquent List—Evidence—Certificate—Exceptions—Materiality—Assessment —Rate.

1. Where, in an action to recover delinquent taxes, the original list, which, by Comp. Laws, 1106, the tax

receiver is required to file in the office of the auditor, is offered in evidence, such list, being prima facie

evidence by Section 1118, is admissible without the certificate of the auditor which is required when a

copy is issued.

2. Under Comp. Laws, 1118, the delinquent tax list filed with the auditor is prima facie evidence to prove the

assessment, property assessed, the delinquency, the amount of taxes due, and that all the forms of law have

been duly complied with. In an action to collect delinquent taxes, the defendant excepted to the admission

of the delinquent list in evidence on the ground that it did not comply with the form of the assessment roll

prescribed by Section 1093, and that the rate of taxation was higher than allowed by law, but made no

attempt to impeach the list by evidence. Section 3285 provides that no exception shall be regarded on

appeal unless it be material and affect the substantial right of the parties: Held, that the prima facie case

made by the list not having been impaired by evidence, the exception will be disregarded.

3. Where the admitted net profits of a railroad were $8,500, an assessment of the road for taxation at $175,000

was justified by evidence that the current rate of interest for loans of large amounts was from 4 to 6 per

cent.



Taxation—Delinquent List—Authority of Board—Burden of Proof. 1. Where in an action to collect delinquent

taxes, the state has put in evidence the delinquent tax list, which by statute is made prima facie evidence of

the assessment, it need not prove that the board of county commissioners had authority to levy the tax, or

introduce evidence of such levy; it being incumbent on the defendant, in order to successfully attack the

levy, to introduce the proceedings of the board making it, and specifically point out its illegal features and

fatal defects.

Action by The State of Nevada against the Nevada Central Railroad Company and others

to recover taxes. From a judgment for plaintiff, defendant appeals. Affirmed.



I. The district court erred in admitting the so-called delinquent list in evidence to make a

prima facie case against the objections of defendants. The book offered in evidence was not

the delinquent list which the statute makes prima facie evidence. (Comp. Laws, 1117-18;

People v. Reynolds, 28 Cal. 113-14.)

II. The making up of an assessment roll as required by law is a part of the assessment; and

the necessary foundation of all subsequent acts and proceedings. (Welty on Assessments, sec.

223, pp. 374-5; People v. Moore, 1 Idaho, 666-70; Oregon Bank v. Jordon, 17 Pac. Rep.

622-3; Farmers' Bank v. Board, 97 Cal. 325.)

III. “Our statute does not require a separate assessment or valuation of lands and

improvements, where both belong to the same owner, but on the contrary expressly directs

that both be valued together.” (Comp. Laws, 1093; State v. C. P. R. R., 10 Nev. 48, 59-60.)

All the authorities which we have been able to find upon this subject hold such irregularities

fatal and to render an assessment void. The provisions of our former revenue act: “That the

acts herein required between the assessment and the commencement of suit shall be deemed

directory merely, and no other answer shall be permitted,” were repeated in 1895. (Comp.

Laws, 1124; Gen. Stats. 1108; Stats. 1895, p. 39.)

IV. The proceedings to be valid from the levy to the collection of the tax must be

strictissimi juris. (Whitney v.��+9�,��>��+��3��


Thomas, 23 N. Y. 266; Cooley on Taxation, p. 353; Kelsey v. Abbott, 18 Cal. 618-19; People

v. Mahoney, 55 Cal. 288; Lake County v. S. B. Q. M. Co., 66 Cal. 20; Emeric v. Alvarda, 90

Cal. 446, 465.)

V. There were no liabilities in Lander county for the year 1900 contracted prior to January

1st of that year, which would authorize the levy for county purposes of more than $1.50 per

one hundred dollars' valuation. A levy and assessment of taxes at a higher rate than is allowed

by law renders the whole assessment void. (City of Antonia v. Raley, 32 S. W. (Tex.) 180,

183; State v. Union Trust Co., 68 Mo. 463; State v. St. Louis Ry. Co., 71 Mo. 88; Kemper v.

McClelland, 19 Ohio, 308, 327; Morris v. Davis, 75 Ga. 169, 174; Huse v. Morrison, 2

Greenl. (2 Me.) 375; Stetson v. Kempton, 13 Mass. 272; Libby v. Burnham, 15 Mass. 144;

Jayner v. School Dist., 57 Mass. (3 Cush.) 567; Clark v. Strickland, 2 Curt. 439; Black on

Tax Titles, 5th ed., sec. 312-315; Desty on Taxation, 487; Cooley on Taxation, 2d ed. 429.)

VI. The evidence shows without an attempt at contradiction that the value of the main and

side tracks, as given by defendant's general manager, was somewhat greater than the material

could be sold for in the market. “If the road does not pay current expenses, and cannot be

expected to do so, then it is worth no more than the value of its movable material less the cost

of taking up and getting it to market.” (State v. C. P. R. R. Co., 10 Nev. 74; State v. V. & T. R.

R. Co., 23 Nev. 283; 23 Nev. 432; 24 Nev. 53.)

William Woodburn, Attorney-General, A. J. Maestretti, J. B. Egan, and Henry

Mayenbaum, for Respondent:

I. In State of Nevada v. V. & T. R. R. Co., 24 Nev. 87, this court says: “That all questions

of fact relative to the economical management of the road for the purpose of determining the

net income of the road, and all questions relative to the rate of interest as a basis of

capitalization are questions of fact to be determined by the jury.”

II. “The specification of errors contained in the statement on motion for new trial is that

they are pointed out and designated in the foregoing transcript by exceptions Nos. 1, 2, 3, etc.,

and that the court erred in its rulings, is not suf��5��3� ��3��D��

�12�� 9��3��


ficient specification,” citing Code Civ. Proc. 659, subdv. 3, which is the same as our statute,

Comp. Laws, 3292, as above cited. (Corbett v. Job, 5 Nev. 205; Sherman v. Shaw, 9 Nev.

149; Dale v. Purvis, 78 Cal. 113.)

III. If there is any fault as to officers' certificates, or as to anything else, in the delinquent

list, the defendants cured it by their introduction in evidence of the assessment roll. (State v.

Sadler, 21 Nev. 18.)

IV. No irregularity in the assessment roll can vitiate the assessment roll unless the

taxpayer is injured thereby, however much the assessor may be liable to the state for not

following the statute strictly. (Comp. Laws, 3166, 3285; State v. C. P. R. R., 10 Nev. 48;

State v. W. U. Tel. Co., 4 Nev. 338, 347; State v. Sadler, 21 Nev. 13; State v. Eureka Con., 8

Nev. 29; State v. Manhattan, 4 Nev. 318; Desty, Taxation, sec. 115, vol. 2, 612-616; State v.

Northern Belle, 15 Nev. 386.)

V. “An accurate and pertinent description is only necessary, so far as the owner is

concerned, in order to enable him to ascertain from the assessment roll itself, that the tax

against him has been assessed on his land and not upon that of another.” (State v. Sadler, 21

Nev. 14; State v. Eureka Con., 8 Nev. 29; State v. Manhattan, 4 Nev. 325.) In State v. Sadler,

21 Nev. 17, this court says: “Any irregularity in this respect is a defense in an action to

recover taxes, only to the extent that the party has been injured thereby. (State v. C. P. R. R.,

10 Nev. 61; State v. Northern Belle, 15 Nev. 386.)

VI. Desty on Taxation, p. 454, says: “Giving an erroneous description of lands to the

assessor estops the owner from complaining of it. When a taxpayer puts several pieces of land

into his assessment list as one with a valuation as a whole, he cannot complain if the tax roll

follows his list.” (Desty, Taxation, p. 484; San Francisco v. Flood, 64 Cal. 584; Lake Co. v.

Sulphur Bank, 68 Cal. 14; Ward v. Board, 12 Mont. 23.) In State v. Manhattan, 4 Nev. 325,

the court says: “When the owner returns lists of his property, it in a manner makes him a

party to the listing and assessment.” (Desty, Taxation, sec. 615.)

VII. In San Francisco v. Flood, 64 Cal. 504, the court says: “It is the duty of the taxpayer

to furnish a sworn list �� 5


of his property to the assessor; if he fails to do so and any loss results to him, he is entitled to

no protection from the courts.” (State v. Washoe, 5 Nev. 317; State v. Washoe, 7 Nev. 83.)

VIII. Special verdict must find all the facts essential to a recovery. Thompson on New

Trial, vol. 2, sec. 2651, says: “It is a rule that a special verdict must state all the facts essential

to a recovery, and that nothing can be supplied by intendment,” citing a great many

authorities. Of course, if sufficient questions are submitted to embrace all the issues, that

would be equivalent to a general verdict. But if the special question submitted does not

embrace all the issues, it must be upon condition that the jury find a general verdict.

(Thompson, Trial, secs., 2676, 2677, 2650, and authorities cited.) Questions to the jury may

be allowed with a general verdict only. (Louisville R. R. v. Balch, 105 Ind. 93.)

IX. “To justify the court in rendering a judgment for the plaintiff on a special verdict, the

verdict must exhibit all the facts which it was necessary for the plaintiff to prove in order to

recover.” (Godsby v. Robertson, 1 Blakf. Ind. 247; Houseworth v. Bloomhuff, 54 Ind. 487;

Tillsburgh R. Co. v. Spencer, 98 Ind. 186; Hazard Powder v. Viergutz, 6 Kan. 471; Smith v.

Warren, 60 Tex. 462; Ross v. U. S., 12 Ct. of Cl. 565; First Nat. Bk. v. Peck, 8 Kan. 660;

Glants v. South Bend, 106 Ind. 305; Buntin v. Ross, 16 Ind. 209; Morrow v. Comrs., 21 Kan.

484, 503.)

X. Instruction for special finding must ask for general verdict. Louisville R. v. Worl, 107

Ind. 320, says: “The prayer for the submission of interrogatories to the jury is not proper

unless the court is also asked to instruct the jury to answer the question, in the event that they

render a general verdict.” So, in Killian v. Egen, 57 Ind. 480. And so, in Killian v.

Eigenmann, 57 Ind. 480: “The instruction must say: If they find a general verdict they may

answer the special question.” And in Taylor v. Turk, 91 Ind. 252: “If the request for

instruction to find specially on a particular question does not say: If they find a general

verdict, it is properly refused.” Our statute, Comp. Laws, 3272, is verbatim the statute of

California (Code Civ. Proc., sec. 625), and this is the same as the old practice act of

California, sec.


175, from which our practice act was originally taken. (State v. Robey, 8 Nev. 312.)


Trenmor Coffin, for Petitioner:

I. So far I have been able to discover, after a somewhat diligent search, the authorities are

uniform in holding that an excessive levy, such as appears upon the face of the pleadings and

proof in this case, renders the entire assessment void. A levy and assessment of taxes at a

higher rate than is allowed by law, or an assessment by an assessor at a rate higher than that

fixed by the board of county commissioners or other tax levying authority, renders the whole

assessment void. (City of Antonio v. Raley, 32 S. W. (Tex.) 180, 183; State v. Union Trust

Co., 68 Mo. 463; State v. St. Louis Ry. Co., 71 Mo. 88; Kemper v. McClelland, 19 Ohio, 308,

327; Morris v. Davis, 75 Ga. 169, 174; Huse v. Morrisio, 2 Greenl. (2 Me.) 375; Stetson v.

Kempton, 13 Mass. 272; Libby v. Burnham, 15 Mass. 144; Jayner v. School Dist., 57 Mass.

(3 Cush.) 567; Clark v. Strickland, 2 Curt. 439; Black on Tax Titles, 5th ed. secs. 312, 315;

Desty on Taxation, 487; Cooley on Taxation, 2d ed. 429.)

II. The proof is, without attempt at contradiction, that during the twelve years next

preceding the year 1900 the gross receipts of the railroad company were insufficient to pay

the operating expenses of the road, including taxes. There has been a loss in operating the

road in every year since 1888 except in two separate years, and in these years quartz mills

were building and made more freight and business than usual for the road, but no other such

improvements are in view or in prospect in the region served by that road, nor any

improvement in business in prospect. In the case of State v. C. P. R. R. Co., 10 Nev. 47, this

whole matter was very thoroughly considered by as able a bench as it has ever been the good

fortune of this state to have. From the opinion of Beatty, J., we make the following short

extract: “To determine the value of a railroad, then, the very first inquiry is as to its actual

cost. That prima facie, is its value. But if it appears that the actual cost was in excess of the

necessary cost, the necessary cost is its proper standard. If it further �� 5


appears that the net income of the road does not amount to current rates of interest on its

necessary cost, and is not likely to do so, or if the business of the road is likely to be

destroyed or impaired by competition or other causes, or, in short, if the utility of the road is

not equal to its cost, then its value is less than its cost, and must be determined by reference to

its utility alone.” It also appears in the evidence, without contradiction, that the value of the

defendants' railroad, under the above rule laid down by this court, was not to exceed $715 per

mile, whereas it was assessed at $1,580 per mile.

III. I submit that the only true basis upon which the value of the Nevada Central Railroad

can be estimated, under the evidence in this case, is that laid down in State v. C. P. R. R. Co.,

10 Nev. 74, which “is the value of its movable material, less the cost of taking it up and

getting it to market.” The above case has been reaffirmed and followed in State v. V. & T. R.

R. Co., 23 Nev. 295.

IV. No reason is given why 4 9/10 per cent was assumed as a basis for capitalizing the

value of the road upon its earnings. It is true that the testimony showed that the rate of interest

in New York was from 4 to 6 per cent per annum. The uncontradicted testimony of J. A.

Miller, a banker of Austin, was that the rate of interest in Lander county varied from 6 to 18

per cent per annum. It is also true that the owners of the Nevada Central Railroad have

ascertained to their sorrow that large sums of money, such as the assessment in this case,

cannot be successfully placed in Lander county. However, the road assessed is in fact in

Lander county. It is local to that county. It must do its business and derive its income under

the local conditions prevailing there. It must suffer its annual deficits and pay its taxes under

these local conditions. Why should it not also have the benefit of the local rate of interest in

determining its value by capitalization? It seems scarcely fair or reasonable that defendant

must be required to exist and continue in business and sustain and bear its losses and pay its

taxes under the lean and hungry local conditions of Lander county, and at the same time be

valued for the purposes of assessment and taxation upon the basis of the prosperous

conditions of New >��


York. Doubtless 4 9/10 per cent would be a fair basis upon which to capitalize and value and

assess a New York railroad. The Virginia and Truckee Railroad runs through three

counties—Washoe, Ormsby, and Storey—and has through connections with other lines of

railroad. It cost $3,780,000. It would cost $1,500,000 to build it now. In 1895 it was earning a

net profit of about $27,000 per annum. In capitalizing and ascertaining its value for the

purpose of taxation in Washoe county in 1895, the local rate of interest in Washoe county—8

per cent—was used by this court. (State v. V. & T. R. R. Co., 23 Nev. 297, 299.) The same

rate was used as to Storey county. (State v. V. & T. R. R. Co., 23 Nev. 436.) It is not apparent

why the defendant in this case should not have the benefit of at least the lowest local rate of

interest in Lander county—6 per cent per annum—in capitalizing and determining its value

for the purpose of assessment and taxation.


This is an action for taxes assessed against defendant for the year 1900. Plaintiff recovered

judgment for the full amount claimed, together with penalties, etc. Defendant appeals.

Error is assigned upon the introduction in evidence of the delinquent list, upon the ground

that it was not certified to by the auditor.

Section 1106, Comp. Laws, provides: “On the first Monday in December the ex officio tax

receiver, at the close of his official business on that day, shall enter upon the assessment roll a

statement that he has made a levy upon all the property therein assessed, the taxes upon which

have not been paid, and shall immediately ascertain the total amount of taxes then delinquent,

and file in the office of the auditor the list of all persons and property then owing taxes,

verified by the oath of himself or deputy, which shall be completed by the second Monday in

December, and shall be known as the delinquent list. * * *”

By Section 1118 the delinquent list is made prima facie evidence in any court to prove the

assessment, property assessed, the delinquency, the amount of taxes due and ��


unpaid, and that all the forms of law in relation to the assessment and levy of such taxes have

been complied with.

This was the mode of proof adopted in this case, and was in strict conformity with the

provisions of Section 1106 and Section 1118, Comp. Laws, and did not require certification

by the auditor.

Under the provisions of Section 1118, a copy of the delinquent list may be used for the

same purpose, and in that case the statute provides that the auditor, in whose custody the

original is, may certify to the copy.

In connection with this assignment it was urged that the delinquent list does not comply

with the requirements of Section 1093 of the revenue law, in that it does not follow the form

prescribed by the statute for the assessment roll in numerous particulars, and that the rate of

taxation was higher than allowed by law.

All these matters were prima facie established by the delinquent list, and no attempt in

evidence made to impeach it, nor to show that any substantial right of defendant was affected

by the failure of the officers to follow the statutory form.

Section 3285, Comp. Laws, provides that no exception shall be regarded upon motion for

new trial or on an appeal unless the exception be material and affect the substantial rights of

the parties.

In People v. Moore, 1 Idaho, 662, relied upon by appellant, the assessment was made

under a statute authorizing the officer, when the taxpayer does not own sufficient real estate

within the county to secure the payment of the tax, to seize and sell sufficient of the assessed

property to satisfy the taxes and costs.

In cases of this nature, where the remedy is special and summary, statutes are strictly

construed; and the owner has a right to insist upon a strict performance of all the material

requirements of the statute, and especially those which are designed for his security, and the

non-performance of which may operate to his prejudice. (21 Enc. Pl. & Prac. 394.)

“When process is extraordinary and in derogation of the common law, the steps leading to

it must all have been taken; and, if it issued under any other circumstances than those �� 5�:?��


under which the statute gives it to the officer issuing it, he will be a trespasser.” (Desty,

Taxn., p. 762, et seq.)

“A remedy is provided by statute for the enforcement of the tax by distress, and sale of

goods of the taxpayer; and the rule of the common law is that, when a statute creates a right

and provides a particular remedy, it is exclusive of all common-law remedies. But this

doctrine only applies to those to whom the statute is a rule of action.” (Burroughs, Taxn.,

253; State v. W. U. Tel. Co., 4 Nev. 347.)

Touching the business of the road for the purpose of determining its value, the testimony

upon the part of the state tended to show a profit of $17,090. It is claimed that this amount

should be reduced by miscellaneous account, $2,827.29; overcharges, $2,512.15; and taxes,

$3,237.85; aggregating the sum of $8,577.29. Admitting this contention in its entirety for the

purposes of the case, there would still remain sufficient evidence of valuation to support the

judgment.

This conclusion is reached in this way: The testimony concerning the current rate of

interest varied from 4 per cent per annum to 18 per cent per annum. Mr. Stokes, the president

of the defendant corporation, testified that the rate of interest in New York was from 4 to 6

per cent; and other witnesses testified that large sums of money, such as the assessment in

this case, could not be successfully placed in the State of Nevada, but such loans could be

made only in the money centers of the country. Defendant's property was assessed for the sum

of $174,663. The profit of the road, after making these deductions, amounts to the sum of

$8,512.71. This sum, capitalized at the rate of 4 9/10 per cent, approximates, for all practical

purposes, the amount of the assessment.

The judgment and order denying a motion for new trial are affirmed.



Counsel claim that the delinquent list showed upon its face an exorbitant and unlawful rate

of taxation.

The complaint alleged the levy of a tax of $2.65, in addition to the state's levy of $1, upon

each $100 value of property �� 18��

��%&88��C�� &8��%&88��


within the county, and, as special taxes, the levy of 50 cents upon each $100 value of property

within the town of Austin, for town purposes, and the levy of 10 cents upon each $100 value

of property within the county for the county road fund. The whole amount of the levy was

$6,554.25, of which $4,982.08 was count and special taxes, and $1,572.17 state tax.

The statute provides that the delinquent list shall be prima facie evidence to prove the

assessment, property assessed, the delinquency, the amount of taxes due and unpaid, and that

all the forms of law in relation to that assessment and levy of such taxes have been complied

with. The state availed itself of this evidence. As the case then stood, it was not incumbent

upon it to prove that an indebtedness not bonded or funded, and contracted prior to January

1st preceding the levy, existed, authorizing the board of county commissioners to levy a tax

for county purposes up to the limit of $2, nor to introduce evidence of that levy, or the levy of

other taxes authorized to be levied by boards of county commissioners, and going to make the

sum total of the levy in this case. The delinquent list did all that for it. To successfully attack

the levy, defendant should have introduced the proceedings of the board in making it, and

specifically pointed out its illegal features and fatal defects.

The question of the economical management of the road was submitted to the jury under

instructions that are not questioned. In determining the value of defendant's taxable property,

appellant claimed that items aggregating $8,577.29 should have been deducted from the

profits. We conceded the claim for the purposes of the case, and it was shown that a

profitable business remained, subject to taxation. But it was never admitted as a fact that this

sum should have been deducted from the profits. From $17,090 profits, $6,554.25 should be

deducted for taxes for the year, leaving $10,535.75 as net income. This sum should pay nearly

6 per cent per annum upon the assessed value of the property.

Rehearing denied.

____________

26 Nev. 369, 369 (1902)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

APRIL TERM, 1902.

____________

��26 Nev. 369, 369 (1902) Torreyson v. Bowman��

[No. 1616.]

J. D. TORREYSON & S. SUMMERFIELD, Copartners, Etc., Appellants,

v. JEROME BOWMAN, as Administrator, Etc., Respondent.

Administrators—Employing Attorneys—Action for Fees. Under Comp. Laws, 3055, providing that proceedings

is matters of estates shall be of record, and that all attorneys for estates, executors or administrators shall be

attorneys of record, with like powers as in other actions, and shall be entitled to reasonable compensation,

to be paid out of the estates, for services rendered, to be allowed by the court, an ordinary action will not

lie to bind an estate for services rendered by an attorney therefor.


Action by J. D. Torreyson and another, partners, as Torreyson & Summerfield, against

Jerome Bowman, as administrator of the estate of Samuel Bowman, deceased, Judgment for

defendant, and plaintiffs appeal. Affirmed.


Benjamin Curler, for Respondent:

I. The judgment in this case should be affirmed for the reason that, when the appellants

fail to file any points or authorities as required by the rules of this court, the judg��

��


ment appealed from should be affirmed. (Fulton v. Day, 8 Nev. 82; Finlayson v.

Montgomery, 14 Nev. 397; Robinson v. Longley, 18 Nev. 71; Goodhue v. Shedd, 17 Nev.

140; State of Nevada v. Myatt, 10 Nev. 163; Mathewson v. Boyle, 20 Nev. 88.)

II. As to the merits of this case, the plaintiffs cannot maintain their action for the reason

that attorneys' fees must be allowed by the probate court before they can be charged against

the estate of a deceased person. Section 3055, Comp. Laws of Nevada, 1900 (Cutting), is as

follows: “This act shall be liberally construed, to the end that justice may be done all parties,

and as speedy settlement of estates at the least expense secured; and all proceedings in

matters of estate shall be proceedings of record as other actions and proceedings; and all

attorneys for estates or executors or administrators or appointed in the proceedings shall be

attorneys of record with like powers and responsibilities as attorneys in other actions and

proceedings; and shall be entitled to receive a reasonable compensation, to be paid out of the

estate they respectively represent for services rendered, to be allowed by the court.” From the

above-quoted section it will be seen that the court is to determine the value of the services

rendered by an attorney in the settlement of an estate, and the court alone must fix the amount

to be allowed for said services, and is not bound to take even the opinion of professional

witnesses. (Estate of Dorland, 63 Cal. 281; Estate of Levison, 108 Cal. 450; Freese v. Pennie,

110 Cal. 467; Stuttmeister v. Superior Court, 72 Cal. 487.) In the absence of statutory

authority it follows that an estate is not liable to an attorney for his services at the instance of

the executor or the administrator, but that the administrator is liable in a suit by the attorney.

(Woerner, 2d ed. secs. 757, 758.)

III. Upon examination of the authorities, it will be seen that the legislature never intended

to authorize an executor or administrator of deceased persons to employ an attorney to

conduct the business of an estate and to fix the compensation of the attorney, or, as in this

case, to bring a suit against the estate for legal services rendered and alleged that they were

worth a reasonable sum. (Estate of Olaf Nicholson, 1 Nev. 518; Lucich v. Medin, 3 Nev. 104;

2 Woerner's Admn., secs. 515, 516.)



The appellants instituted this suit by complaint and summons in the district court against

the respondent, as administrator of the estate of Samuel Bowman, deceased, by which they

sought to recover a judgment for $500 for attorneys' fees, payable out of the estate of the

decedent. The demurrer interposed by the respondent was sustained, and, appellants refusing

to amend, judgment was rendered thereon against them. From this judgment they have

appealed.

The question presented here involves the action of the court in sustaining the demurrer.

The averments of the complaint material to the question decided are that on the ___ day of

August, 1900, the respondent, as administrator, employed appellants as attorneys to assist in

the course of the administration of the estate of the deceased; that thereupon the appellants

rendered legal services to respondent in and about said administration, and continued so to act

until the 3d day of April, 1901, when said employment was terminated by the respondent; that

the services rendered were reasonably worth the sum of $500.

By Section 269 (Comp. Laws, 3055) of the act to regulate the settlement of the estates of

deceased persons, it is provided, among other matters, that all proceedings in matters of

estates shall be proceedings of record, as other actions and proceedings, and that all attorneys

for estates, executors, or administrators, or appointed in the proceedings, shall be attorneys of

record, with like powers and responsibilities as attorneys in other actions and proceedings,

and shall be entitled to receive a reasonable compensation, to be paid out of the estates they

respectively represent, for services rendered, to be allowed by the court.

No such provision as the above is found in our old probate act, and under that act there

was no authority given to the administrator expressly to create the relation of attorney of

record of an estate, or an administrator or executor.

If necessary, the executor or administrator was authorized to employ counsel in a

particular matter, but such employment was terminated by the disposal of that matter.

The allowance for such services was made, not to the counsel, but to the administrator, as

a part of the necessary ��


expenses of administration. (Gen. Stats. 1885, sec. 2888; Douglass v. Folsom, 21 Nev. 446;

Estate of Nicholson, 1 Nev. 518; Lucich v. Medin, 3 Nev. 104; 93 Am. Dec. 376.)

It will be observed that the provisions of the new act not only change the rule as it existed

under the old one, but also create, as we believe, an exclusive remedy for the recovery for

such services against the estate in the hands of the administrator or executor.

Now, the executor or administrator is authorized to employ general counsel. Such counsel

are attorneys of record. Fees for their services are made a direct charge against the estate, and

are allowed to the attorneys employed. They are not required to look to the administrator for

their fees. By the provision of the later act the administrator or executor has no authority to

fix the fees to be charged against the estate for such services. Such power is reposed in the

court, and no formal suit is necessary. To what end? That there may be speedy and

inexpensive settlements of estates; that justice may be done all. Why, then, should the estate

be put to the expense of a trial, when all rights of the appellants are secured and protected by

this provision? The verdict of the jury might or might not be binding upon the court. The

remedy provided is both ample and exclusive. Whether the administrator or executor is

personally liable under his contract of employment, and whether the ordinary action lies for

such service against the administrator personally or individually, is not presented by this

record, and is not considered or determined.

We do hold that for the services alleged the ordinary action will not lie to obtain a

judgment binding the estate in the hands of the administrator or executor.

The judgment will therefore be affirmed.

____________

��26 Nev. 373, 373 (1902) State v. Davis��

[No. 1626.]

THE STATE OF NEVADA, ex rel. GEORGE E. KITZMEYER, Relator, v. SAMUEL P.

DAVIS, as State Controller, Respondent.

Courts—Suitable Court Room—Power to Provide—Statutory and Inherent Powers.

1. The Act of February 8, 1887 (Comp. Laws, 2040-2044), as amended by act of March 11, 1899, creating the

board of capitol commissioners, confers upon the board the control of the expenditure of all appropriations

for furnishing the capitol building and offices, and for defraying all contingent expenses of all state offices

about the building, etc., “unless otherwise provided.” Comp. Laws, 2518, originally enacted shortly after

the adoption of the state constitution, authorizes the supreme court to bind the state in providing a suitable

court room when the state has failed to do so: Held, that the court had the power to procure, at the expense

of the state, furniture for the court room, where the commissioners had refused to procure the same, Laws

1887, as amended by Laws 1899, not repealing Section 2518.

2. The supreme court possesses the inherent power to procure, at the expense of the state, suitable furniture for

its court room.

3. Since Stats. 1901, p. 60, sec. 38, which makes appropriations for the fiscal years 1901 and 1902 for the

current and contingent expenses of the supreme court, etc., appropriates money to pay for furniture for the

supreme court room, the question of the court's power, notwithstanding Const. art. IV, sec. 19, prohibiting

the withdrawal of money from the treasury except in consequence of an appropriation made by law, to

order furniture for its court room and require the state to pay therefor, in the absence of an appropriation

act, does not arise.

Original applications for writ of mandamus by The State, on the relation of George E.

Kitzmeyer, against S. P. Davis, State Controller. Granted.


Trenmor Coffin, for Relator:

I. The supreme court under the statutes of this state had authority to make the order

referred to, and the purchase price of the chairs must be paid out of the public treasury.

II. It is the duty of the state controller, by virtue of his office, to draw his warrant upon the

state treasury for the amount of said bill as allowed by the majority of the state board of

examiners.

III. The state controller, in his opinion overruling the supreme court, says: “I. The

supreme court has no authority to order furniture for the court room, such authority being

alone vested by law in the board of capitol commis��5

��26 Nev. 373, 374 (1902) State v. Davis��

sioners.” The controller refers to the act of February 8, 1887 (Stats. 1887, p. 40.) He doubtless

intended to refer to the act amendatory thereof, which supersedes it, found in Comp. Laws,

secs. 2040 to 2044. Sections 4 and 5 of the amendatory act are as follows: “2043. Sec. 4. Said

board shall have the supervision over and control of the state capitol building, the capitol

grounds and water works, the state printing office building and grounds, and all other state

buildings, grounds and properties not otherwise provided for by law.” “2044. Sec. 5. Said

board shall control the expenditure of all appropriations for furnishing, repairing and

maintaining said buildings and grounds, offices and property connected therewith; for

defraying all contingent expenses of all state and other officers about said building; for

transportation of books and documents; storage and transportation of state property, and for

salaries of porters, watchmen and laborers about said buildings and property, unless otherwise

provided.” (Comp. Laws, 1900, secs. 2043, 2044.) The last clause of each of these two

sections leaves the supreme court free to act if any statute can be found authorizing it to act

when emergency or necessity requires. Section 2518 of the Compiled Laws reads as follows:

“The supreme court shall hold its sessions at the capital of the state. If a room in which to

hold the court, together with attendants, fuel, lights and stationery, suitable and sufficient for

the transaction of business, be not provided by the state, the court may direct the sheriff of the

county in which it is held to provide such room, attendants, fuel, lights and stationery, and the

expense thereof shall be paid out of the state treasury.” This section seems to give clear

authority to the supreme court to act in the premises, untrammeled by other statutes.

IV. The ancient Roman tribunal in the basilica adjoining the forum was furnished with

seats; the seats were in the form of stone benches (usually marble) fixed and permanent. The

seats or benches were a part of the tribunal or room or hall in which justice was administered.

The Roman praetor sat upon the “curule chair” in the tribunal. (See Forum, Basilica,

Tribunal, and Proetor, Ency. Brittanica.) England was a Roman province for about four

hundred years.

��26 Nev. 373, 375 (1902) State v. Davis��

The Romans introduced their form of tribunal into England. The Roman praetor was the

prototype of the English chancellor and judge. The Roman basilica, including its tribunal, was

the prototype of all of our modern churches, assembly halls and court rooms. (Guizot's

History of England; Green's History of the English People.) We find the following concerning

an ancient English chancellor's court in Cunningham's Antiquities of the Inns of Court: “The

place where the lord chancellor anciently sat, and held this court, was at the upper end of

Westminster Hall, at that long marble table which is there situate (though now covered with

the courts there erected) whereunto are five or six steps of ascent; for in 36 E. III, when

Simon Langham, bishop of Ely, was made lord chancellor (which was on Sunday, the 19th of

February), the record says that on the Tuesday next following, taking the great seal with him

to Westminster, in fede marmorea, ubi cancellarii federe funt affueti, fedens, literas patentes,

confignari fecit, he placed himself in the marble chair wherein the chancellors used to sit and

sealed patents, etc. Which marble chair to this day remaineth, being fixed in the wall there,

over against the middle of that marble table.” (Historical Memorials, Cunningham; Part II,

Antiquities of the Inns of Court, p. 87.)

V. The phrase “sitting of court,” which is used as synonymous with “term of court” or

“session of court,” necessarily implies that the court room was always furnished with seats.

We doubt if an instance can be found in history of an Anglo-Saxon court “sitting” with its

judges and court's officers and counsel and litigants standing. (See Cunningham's Antiquities

of the Inns of Court, Part II.)

VI. “The security of human rights and the safety of free institutions require the absolute

integrity and freedom of action of courts. * * * Even without statutory enactment, however,

the court, as we have seen, possesses all powers necessary for the free and untrammeled

exercise of its functions.” (Bd. Comrs. Vigo Co. v. James v. Stout, 22 L. R. A. 398, 136 Ind.

53.)

VII. The court has inherent power to provide for itself, at public expense, whatever is

necessary for its comfort, or for the transaction of its business, and the court must neces��

��26 Nev. 373, 376 (1902) State v. Davis��

sarily be the judge of what is needed. (Comrs. v. Hall, 7 Watts (Pa.) 290; Watson v. County,

53 Mo. 133; Belvin v. City of Richmond, 85 Va. 574; Comrs. v. Hall, 7 Ind. 265; State v.

Smith, 5 Mo. App. 427; McCalmont v. County, 29 Pa. St. 417; Venango Co. v. Durban; 3

Grant's Cases (Pa.) 66; 93 N. C. 105; 115 Ill. 311; 42 Kan. 223.)

VIII. All appellate tribunals possess certain inherent powers essential to their

independence as courts of justice, the orderliness of the proceedings, preservation of their

dignity, and efficiency of action.” (2 Enc. Pl. & Pr. p. 12, and notes and authorities cited; see

also numerous other cases cited in notes, vol. 22 L. R. A. pp. 398-9; also in briefs of counsel

on pp. 402-406 of same volume.)

William Woodburn, Attorney-General, for Respondent:

I. No matter how just or equitable a claim against the state may be, no duty devolves upon

the controller to draw his warrant for the payment thereof until an appropriation be made by

law for the purpose. (Lithograph Co. v. Henderson, 32 Pac. Rep. 417; 18 Colo.; State v.

LaGrave, 23 Nev. 25; Goodykoontz v. Acker, 19 Colo. 360; Opinion of the Justices, 13 Colo.

316; Henderson v. Harvey, (Kan.) 21 Pac. 177 and Hubbell v. Stover, Id.; State v. Siebert, 99

Mo. 122; Journal Pub. Co. v. Kenney, 9 Mont. 389; State v. Holladay, 64 Mo. 526.)

II. When an appropriation made for any specific purpose by the legislature has been

exhausted, the refusal of the controller to draw his warrant for that specific purpose is right

and proper. (Collins v. State, (So. Dak. 1892) 51 N. W. 776; State v. Babcock, 18 Nev. 221.)

III. Claims must be allowed by the proper authority before controller is authorized to draw

his warrant on treasurer for amount of such claim. (Ingram v. Colgan, (Cal. 1895) 38 Pac.

Rep. 315.)

IV. The power and authority having been vested in the legislature by the constitution to

provide by law for meeting the expense of the state government, and the legislature having

made provision for meeting these expenses by specific appropriations, the money so

appropriated cannot be diverted ��

��

��26 Nev. 373, 377 (1902) State v. Davis��

from the purpose for which it was appropriated, and expended in a manner other or different

than that contemplated by the legislature. Such an interference by or on the part of a

coordinate branch of the state government is absolutely unauthorized and unwarranted, and is

expressly prohibited by the constitution, art. III, sec. 1: “* * * And no person charged with the

exercise of powers properly belonging to one of these departments shall exercise any

functions appertaining to either of the others, except in the cases herein expressly directed or

permitted.” (Burgoyne v. San Francisco Suprs., 5 Cal. 9; People v. Town of Nevada, 6 Cal.

143; Chard v. Harrison, 7 Cal. 113; People v. Sanderson, 30 Cal. 160; In re Griffith, 118 Ind.

83.)

Per Curiam:

The relator brings mandamus to compel the respondent to draw a warrant upon the

contingent fund on account of certain chairs and carpet furnished the supreme court room

upon the order of the court.

This court, as a matter of courtesy, having considered and determined of its own motion

that the articles named were necessary, directed its clerk to request the board of capitol

commissioners to purchase the same. This request was refused, whereupon the court directed

its bailiff, the sheriff of this county, to purchase and place in the court room the articles

required. In obedience to said order the bailiff purchased the same of the relator. He presented

his bill therefor to the board of examiners, a majority of which board approved the same, and

upon the presentation of the approved bill to the respondent he demanded a warrant upon the

treasurer for the amount therein, which demand was refused.

The respondent does not pretend that the articles furnished by the relator under the order

were not necessary; but, as we gather from his answer, bases his refusal to draw the warrant

upon two grounds: First, that the order of this court directing its bailiff to purchase is without

authority of law, and void, and therefore it did not create a binding liability against the state.

In support of this contention the respondent cites that cer�� A��=��&==-�� (��&&��&=22�

��26 Nev. 373, 378 (1902) State v. Davis��

tain act creating the board of capitol commissioners, approved February 8, 1887, as amended

March 11, 1899. (Comp. Laws, 2040-2044.)

The specific provision of the act relied upon is found in Section 5 of the act, and reads as

follows: “Said board shall control the expenditure of all appropriations for furnishing,

repairing and maintaining said buildings and grounds, offices and property connected

therewith; for defraying all contingent expenses of all state and other offices about said

building; for transportation of books and documents; storage and transportation of state

property, and for salaries of porters, watchmen and laborers about said buildings and property

unless otherwise provided.”

Respondent claims that under this section absolute control over the expenditure made by

the order of the court is given to this board.

This is an assumption not warranted by the section. The language of the section shows that

the legislature never intended to confer such broad and sweeping authority upon the board. If

it had any such intention it would never have incorporated into the section the language of the

proviso, “unless otherwise provided.”

Long before the passage of the act, which is assumed to grant this absolute control to the

board, and shortly after the adoption of the constitution, the legislature gave to this court, in

express terms (Comp. Laws, 2518), authority to bind the state in providing a suitable room in

which to hold its sittings when the state has failed to make such provision—the precise case

presented by this record—and, as above stated, it is not pretended that the articles directed to

be purchased by the order of the court were not necessary to render the court room suitable

for the purposes of the court.

Section 2518 stands as it was originally passed, unmodified and unrepealed.

If the legislature had intended to repeal it by the passage of the act creating the board of

capitol commissioners, it would have certainly omitted therefrom the proviso quoted, or

would have inserted other language from which such intention could have been inferred.

If the assumption of that absolute control over the pur��

��26 Nev. 373, 379 (1902) State v. Davis��

chase of supplies for this court exists in the board of capitol commissioners, under the act

creating it, as claimed by the respondent, then has the legislature made, if it has the power so

to do, a coordinate and independent branch of the government of this state dependent in the

exercise and discharge of its constitutional duties upon the will of a board consisting of

members of another department of state government.

Going still further, if such absolute control is given the board as claimed, then would the

right of the court to hold its sessions necessary for the administration of the law depend upon

the will of the board of capitol commissioners.

If this board has the absolute control, as claimed, then, by refusing to furnish the court

room with a stove or other means of heating, could it obstruct the court in its jurisdiction

during a greater part of each year. By refusing tables it could prevent the court making

records required by law.

To assume that the legislature did confer any such absolute power upon the board is to

assume that the legislature possesses unlimited power of legislation in that matter—that it

could by hostile legislation destroy the judicial department of the government of this state. In

the absence of the statutory authority given to the court by Section 2518, supra, there exists,

as we believe, the inherent power in the court, growing out of and necessary to the exercise of

its constitutional jurisdiction, to make the order.

This doctrine is not new, but has been recognized and acted upon by the courts of other

states, and we have been unable to find any authority which holds to the contrary.

In a case decided by the Supreme Court of the State of Indiana, discussing the power of a

court to make an order directing the sheriff to take charge of and operate an elevator in the

county building for the convenience of the court and litigants, where there were stairways

leading to the floor upon which the court room was situated, and where the board of county

commissioners having the control of the county building had made an order contrary to the

one made by the court, the court say: “Courts are an integral part of the government, and

entirely independent, deriving their powers from the constitution, in so far as such powers are

not ��

��26 Nev. 373, 380 (1902) State v. Davis��

inherent in the very nature of the judiciary. A court of general jurisdiction, whether named in

the constitution or established in pursuance of the provisions of the constitution, cannot be

directed or controlled or impeded in its functions by any of the other departments of the

government. The security of human rights, and the safety of free institutions, require the

absolute integrity and freedom of action of courts. * * * Even without statutory enactment,

however, the court, as we have seen, possesses all the powers necessary for the free and

untrammeled exercise of its functions.” (Board v. Stout, 136 Ind. 53.)

The same court, in another case, uses the following language: “The power of courts to

order necessary repairs to the court room is inherent, and incidental to jurisdiction, like the

power to punish for contempt.” (Board v. Gwin, 136 Ind. 562.)

The Supreme Court of the State of Wisconsin, in discussing the power of the

superintendent of the capitol building to appoint its janitor under the terms of an act similar in

character to the act creating the board of capitol commissioners, supra, uses this language: “It

is a power inherent in every court of record, and especially one of last resort, to appoint

necessary assistants charged with the care of its rooms and other like functions; and the court

itself is to judge of the necessity; and it is doubtful whether the court could be deprived of

this power by an act of the legislature.” (In re Janitor of Supreme Court, 35 Wis. 410.) See,

also, 22 L. R. A. 398, containing the case of Board v. Stout, above cited, and the numerous

cases cited in the note.

The respondent urges, as a second ground for his refusal, that Section 19, Article IV of our

constitution prohibits the withdrawal of money from the treasury but in consequence of an

appropriation made by law, and that, there being no appropriation for the purposes named in

the order of the court, his refusal is justified.

It is not necessary to discuss the question as to whether under the constitution, in the

absence of an act making an appropriation, the respondent is or is not authorized to draw his

warrant, as no such question is made by the record.

The legislature did, in 1901 (Stats. 1901, p. 60, sec. 38), ��&28&�� &28+��

�� !��

��26 Nev. 373, 381 (1902) State v. Davis��

in the general appropriation bill for the fiscal years of 1901 and 1902, make an appropriation

for the current expenses, telegraph, postal, and contingent for the state officers and the

supreme court, of which sum so appropriated there remains in the treasury an unexpended

balance much in excess of the amount of relator's claim.

We do not know of language more appropriate to be used in expressing the intent of the

legislature as describing the character of the relator's claim than one of current and contingent

expenses. The legislature could not anticipate just what contingencies might arise in the

administration of the judicial department and the other departments of state named in the act;

and, to meet just such unanticipated contingencies, the appropriation was made. Any attempt

of the legislature to forestall the contingent demands by specific items and specific amounts

would be absurd, and it therefore wisely set aside by the provision of the act cited a certain

sum to meet such necessary contingencies as might arise, that the administration of the

government's affairs might not be hampered or impeded for the want of necessary funds.

Let an order be entered granting the peremptory writ, with costs, for the relator.

____________

��26 Nev. 382, 382 (1902) Gotelli v. Cardelli��

[No. 1621.]

JOHN GOTELLI, et al, Respondent, v. ORLANDO

CARDELLI, et al., Appellants.

Diversion of Water—Irrigation Purposes—Improper Evidence—Facts Afterwards Admitted—Evidence

Withdrawn—Harmless Error—Extent of Right to Use Water.

1. In an action for damages for the diversion of water, the admission in evidence of the judgment roll in a

former action between the same parties for the purpose of showing the plaintiffs' right to maintain a dam

and ditch over the defendants' land was not error, it being afterwards admitted that the plaintiffs were the

owners of the dam, and had the prior right to use the water for irrigation purposes.

2. Where findings of fact in a former case were introduced, but afterwards withdrawn, and the jury instructed

not to consider them, there was no error.

3. Where evidence was introduced as to damages accruing since the commencement of the suit, but afterwards

withdrawn, and the jury instructed not to consider it, there was no error.

4. In an action for damages for the diversion of water, an instruction that, if it was found necessary to have a

ditch full of water to irrigate certain land during either of two preceding years, then the owner was entitled

to fill the ditch to its capacity during each season in the future, was improper, as the owner of land is only

entitled to so much water as is necessary for that particular year, which amount necessarily varies according

to the humidity of the season and the number of acres under cultivation.

Appeal from the First Judicial District Court, Lyon County; C. E. Mack, Judge.

Action by John Gotelli and others against Orlando Cardelli and others. From a judgment

and decree for plaintiffs, defendants appeal. Decree modified.


Torreyson & Summerfield, for Appellants:

I. The amount of water to which an appropriator is entitled is the amount actually applied

for the purposes of proper irrigation. (Simpson v. Williams, 18 Nev. 432.) The first

appropriator of water is only entitled to as much water as is necessary to irrigate his land, and

is bound, under the law, to make a reasonable use of it. (Barnes v. Sabron, 10 Nev. 217;

Union M. & M. Co. v. Dangberg, 81 Fed. 97; Combs v. Ditch Co., 17 Colo. 146.) “When the

necessity for the use of water does not exist, the right to divert it ceases.” (Stats. Nev. 1899, p.

115.)


II. The jury awarded respondents five and three-quarters miners inches of water for each

acre of their irrigated land as a prior appropriation to that of appellants, and the trial court

approved the verdict, and rendered its decree and injunction accordingly. That a jury of

intelligent men in the discharge of an oath-bounden duty could find such a verdict almost

staggers belief, but that a court should coolly adopt such a verdict and deny a new trial in the

premises is simply inexplicable.

III. The damages awarded respondents, amounting to the sum of $775, were grossly

excessive, and were doubtless intended by the jury to be commensurate with their very liberal

award of water. Being based upon an erroneous idea of the amount of respondents'

appropriation of water, the judgment must fall with the decree. The weight of the evidence,

and in fact the entire evidence without substantial conflict, irresistibly leads the unbiased

mind to the conclusion that the damages sustained by respondents were caused by their

prodigal use of water in irrigating their crops.

W. E. F. Deal and John Lothrop, for Respondents:

I. As a defendant has a right to make inconsistent defenses, plaintiffs were put upon their

proofs as to the right to maintain their dam and ditch on defendants' land, by the denials

contained in the answer to the allegations for legal relief. (Buhne v. Corbett, 43 Cal. 264;

Siter v. Jewett, 33 Cal. 92, 96, 97; Billings v. Drew, 52 Cal. 568.)

II. Courts only deal with a case as presented by the pleadings and the evidence, and a

perpetual injunction does not fix the right of the parties to this action except so long as the

same quantity of water is necessary to irrigate plaintiffs' land. (Brown v. Ashley, 16 Nev. 319,

and authorities cited.)

III. The amount of water this ditch would carry is immaterial if the full ditch was

necessary to the proper irrigation of plaintiffs' land. The testimony of the witnesses for

plaintiffs was positive as to the effect that all the water the ditch will hold is necessary to

properly irrigate their crops.

IV. A perpetual injunction against the wrongful acts of appellants was asked upon a

pleading which authorized one, if the evidence sustained the pleadings. The evidence showed�� !�� &288��<@�� F�� 5�:*��C��&��,��9&�


not only an invasion of respondents' rights, but that they would and did carry out their threats

in 1900 after the suit was brought. “In such case it is not necessary to show actual damages,

or a present use of the water, in order to authorize a court to issue an injunction and make it

perpetual.” (Brown v. Ashley, 16 Nev. 316, and authorities cited.)

Torreyson & Summerfield, for Appellants, in reply:

I. There is no inconsistency in the appellants' defenses as claimed to be by respondents.

Appellants' admission was not limited to their answer of respondents' alleged equitable cause

of action, but clearly applied to the complaint as an entirety. Under the Nevada statutes

pleadings are liberally construed, with a view of giving effect to the palpable intentions of the

pleader. In any event the arguments made by respondents' counsel do not appear to be borne

out by the authorities which he cites. They seem to apply only to answers in which there are

separate defenses pleaded separately, and of which one is purely negative and the other

affirmative. (Miles v. Woodward, 115 Cal. 308.)

II. The main fact in this appeal—to wit, that the jury awarded and the court decreed five

and three-quarters miners inches of water to the acre of land to respondents, and that

appellants are enjoined from molesting such flow of water regardless of their necessities and

the irrigation of their lands—remains of record.

III. In submitting this appeal counsel for appellants again urge that both the evidence of

this particular case and the general policy of all law upon the great economic question of the

proper use of water imperatively requires that this verdict and decree be unsanctioned by this

court.


Torreyson & Summerfield, for Petitioner:

I. This court in its opinion in this case has announced the correct principle of the law, to

wit: “The law is that an appropriator is only entitled to so much water economically used

within his appropriation as is necessary to irrigate his land. * * * The decree as entered, in

effect, allows respondents all the water their ditch will carry during the ��


irrigating season of each year irrespective of its necessity. * * * In this respect the decree is

erroneous and must be modified by eliminating therefrom all directions touching any fixed

quantity or volume of water to be taken in plaintiffs' ditch.” It is true plaintiffs are only

entitled to so much water as is necessary to properly irrigate their lands; the use must be an

economic use; there must not be a lavish use of water. The law even goes to the extent that

persons must have the best appliances and keep their ditches in the best of repair, so that the

use may be economic.

II. The court has said the decree must be modified by eliminating therefrom all directions

touching any fixed quantity or volume of water, but the court has not fixed the amount or

quantity of water to which the plaintiffs are entitled. In this respect the judgment of the court

is unsatisfactory. No amount is fixed. It now remains with defendants to say how much water

they will allow to flow down to plaintiffs. If plaintiffs are dissatisfied with the amount

defendants turn down, more litigation will ensue, and great expense be incurred, and we urge

upon the court that its decree be so modified as to name and fix a definite quantity of water to

which the plaintiffs are entitled, and thus end for all time this litigation, and determine the

rights of the respective parties.

III. If plaintiffs had a sufficient amount of water to irrigate their lands, and did not use it in

an economic manner, they were not entitled to any damages, and we earnestly urge upon this

court to fix the amount of water to which plaintiffs are entitled—the amount, by an economic

use of which would be sufficient to irrigate their 142 acres of land.


This is an action for damages for the diversion of water. Respondents are the owners of

lands upon the Carson river, and have the prior right to divert so much of the waters thereof

flowing through a described ditch situated upon defendants' lands, higher up the river, as is

necessary to irrigate 142 acres of land. A jury assessed the damages at $775.

1. The first assignment of error is the admission in evidence of the judgment roll in a

former action between the ��


same parties. The purpose of this evidence, as shown by an instruction of the court, was to

establish respondents' right to maintain a certain dam and ditch over appellants' lands.

Afterwards it was admitted that respondents were the owners of the dam and ditch, with the

prior right to the use of so much of the water as was necessary to irrigate the quantity of land

as the proof should establish. Appellants having admitted the facts which this evidence

tended to prove, its admission was not prejudicial.

2. The findings of fact in the former case were also introduced in evidence, but were

withdrawn by respondents, and the court instructed the jury not to consider them. A similar

motion and instruction were made and given touching evidence of damages accruing since the

commencement of the suit.

3. Respondents' instruction No. 5, as modified, reads as follows: “If you believe from the

evidence that it was necessary that plaintiffs should have sufficient of the waters of the

Carson river to fill their ditch to its full capacity during the irrigating season of 1898 and

1899, or either of said years, in order to have irrigated their crops properly on the lands

irrigated for crops for five years prior to the commencement of this action, then your verdict

should find that the plaintiffs are entitled to sufficient of the waters of Carson river to fill

their ditch to its capacity during the irrigating season; and, in determining the matter, it is

your duty to compare your knowledge and experience with the evidence in the case, and

determine what the fact is.” It was shown that the amount of land under cultivation in the

years 1898 and 1899 was 142 acres. The carrying capacity of the ditch was about 1,200

miners' inches. Some of plaintiffs' witnesses testified that a full ditch of water was necessary

to irrigate the growing crops. This liberal allowance may not be necessary in seasons of more

humidity, or in years when the cultivated area is less.

The law is that an appropriator is only entitled to so much water, economically used,

within his appropriation, as is necessary to irrigate his land. The necessary amount of water

varies with the seasons. The decree, as entered, in effect allows respondents all the water their

ditch will carry �� !��


during the irrigating season of each year, irrespective of its necessity, and enjoins appellants'

interference therewith. In this respect the decree is erroneous, and must be modified by

eliminating therefrom all directions touching any fixed quantity or volume of water to be

taken in plaintiffs' ditch. The error in the instruction does not affect the verdict returned by

the jury, and will not necessitate a reversal of the case.

The cause is remanded to the district court, with directions to modify and amend its decree

in compliance with these views, and when so amended the judgment and decree will be

affirmed. Each party to pay his own costs in this court.

Per Curiam:

Rehearing denied.

____________

��26 Nev. 387, 387 (1902) Price v. Ward��

[No. 1620.]

ALBERT F. PRICE, as Administrator, etc., Respond-

ent, v. M. E. WARD, Appellant.

Vendor and Purchaser—Rights of Purchaser—Notice of Equities—Right of Action Against Vendor. In an action

for damages caused by the sale by defendant to innocent purchasers of land belonging to plaintiff's

intestate, it appeared that intestate first mortgaged the land to defendant, and afterwards conveyed it to him

by an absolute deed, intended as security. At the time defendant conveyed the land the mortgage had not

been discharged of record, and intestate's estate claimed an interest after the delivery of the deed. No

inquiry concerning money matters between the estate and defendant was made by the purchasers: Held,

sufficient to put the purchasers on inquiry as to intestate's rights in the land, and, as under such conditions

they could obtain no greater rights than those held by defendant himself, plaintiff could not recover.

(Fitzgerald, J., dissenting.)


Action by Albert F. Price, as administrator of the estate of William E. Price, deceased,

against M. E. Ward. Judgment for plaintiff, and defendant appeals. Reversed.


A. E. Cheney, for Appellant:

I. Smith and Hilton were not bona fide purchasers because they had notice of all facts

relating to Price's claim. The ��D��/� ��

�� 0�� $�� /� �� D��!��

��26 Nev. 387, 388 (1902) Price v. Ward��

mortgage which Price gave to Ward had never been satisfied or discharged of record, and,

when Smith and Hilton purchased from Ward, the undischarged and unsatisfied mortgage

was constructive notice to them of Price's equity in the land. Whether the deed was a merger

of the mortgage depends upon the intention of the parties. That intention is a question of fact,

and no presumption of such intention arises from the mere execution of the deed. “Purchasers

cannot rely upon the record as showing merger. * * * They must go beyond this and ascertain

whether there has been a merger in fact; and they act at their own peril if they do not require

their grantor to produce the mortgage and note supposed to be merged, and discharge the

mortgage of record, or show that it constitutes a part of the title to the estate.” (1 Jones on

Mortgages, sec. 872; Aiken v. Milwaukee & St. P. Ry. Co., 37 Wis. 478, 479.)

II. “Purchasers are bound to use a due degree of caution in making their purchases, or they

will not be entitled to protection. Caveat emptor is one of the best settled maxims of the law,

and applies exclusively to a purchaser. He must take care, and make due inquiries, or he may

not be a bone fide purchaser. He is bound not only by actual, but also by constructive notice,

which is the same in its effect as actual notice. He must look to the title papers under which

he buys, and is charged with notice of all the facts appearing upon their face, or to the

knowledge of which anything there appearing will conduct him. He has no right to shut his

eyes or his ears to the inlet of information, and then say he is a bona fide purchaser without

notice.” (Simmons Creek Coal Co. v. Doran, 142 U. S. 437; Everdson v. Mayhew, 65 Cal.

163; Beatty v. Crewdson, 124 Cal. 577.)

III. The burden is on the purchaser to show that he did not have notice of a third person's

title. (Beatty v. Crewdson, 124 Cal. 577; Wilhoit v. Lyons, 98 Cal. 409.) “To entitle a party to

protection as a bona fide purchaser without notice, he must aver and prove the possession of

his grantor, the purchase of the premises, the payment of the purchase money in good faith,

without notice, actual or constructive, prior to and down to the time of its payment, for, if he

had notice, actual or constructive, at any moment of ��

�� 5

��26 Nev. 387, 389 (1902) Price v. Ward��

time before the payment of the money, he is not a bona fide purchaser.” (Everdson v.

Mayhew, 65 Cal. 167; Wilhoit v. Lyons, 98 Cal. 413; County Bank v. Fox, 119 Cal. 64; Boone

v. Chiles, 10 Pet. 213.)

Torreyson & Summerfield and F. H. Norcross, for Respondent:

I. A deed, though absolute in form, intended by the parties as security for money loaned,

is, in fact, a mortgage, with all its attributes, and nothing more. (Bingham v. Thompson, 4

Nev. 224; Saunders v. Stewart, 7 Nev. 200; Leahigh v. White, 8 Nev. 147; Cooks v.

Culberson, 9 Nev. 199; Pierce v. Traver, 13 Nev. 526; Brinkham v. Jones, 44 Wis. 512; 2

Jones on Mortgages, 114, 1120-3.)

II. While the proof is conclusive that Smith and Hilton were purchasers from Ward

without notice, actual or constructive, of the rights of Price as mortgagee in the premises,

nevertheless, we contend that the plaintiff was not required to establish such fact as essential

to his right of recovery. “The well-settled rule applies in this case, that a party is estopped

from impeaching or contradicting his own deed, or denying that he granted the premises that

his deed purports to convey.” (Van Kennen v. C. R. R. Co., 38 N. J. L. 167, cited and

approved in 15 Nev. 113; 11 Am. & Eng. Enc. Law, 2d ed. 402.)

III. In principle we cannot see where the defendant in this case should be allowed to avoid

the natural effect of his deed, any more than though the property was conveyed to avoid the

payment of creditors. In both cases a wrong is committed, and an unlawful advantage sought.

Certainly a wrong committed towards a poor debtor is no less to be frowned upon than one

against a rich creditor. (Allison v. Hogan, 12 Nev. 38; McCausland v. Ralston, 12 Nev. 195;

Peterson v. Brown, 17 Nev. 175.)

IV. Even if Smith and Hilton were purchasers mala fides from Ward, they would be but

joint tort feasors with Ward, and the remedy of Price could be had solely against Ward.

(Cooley on Torts, 133.)

V. It not appearing from the deed that a lesser estate is intended, a fee simple estate is

presumed to have been �� /� ��0�� $��

��26 Nev. 387, 390 (1902) Price v. Ward��

intended to pass from Ward to Smith and Hilton. This being the legal presumption, and Ward

being estopped from rebutting such presumption, it cannot be the law that plaintiff in this

action is required to establish by proof, independent of the deed, the very fact that is

presumed from the deed. (Sec. 1105, Civ. Code Cal.; Maybury v. Ruiz, 58 Cal. 15.)

VI. The matter of constructive notice is entirely a creation of the statute, and from the

statute of California the conclusion is that Smith and Hilton had notice of a deed absolute in

the name of M. E. Ward. (Civ. Code Cal., secs. 1213, 1113; Grellet v. Heilshorn, 4 Nev.

532.)

VII. As between Ward and Price, the deed executed by Price to Ward was a mortgage, but

being absolute in form, it vested the legal title to the property in Ward. (Brophy M. Co. v. B.

& D. M. Co., 15 Nev. 107.)

VIII. The mortgage from Price to Ward was executed and recorded nearly three years

before the deed was executed and recorded, and Smith and Hilton could not be charged with

notice of the mortgage. (20 Am. & Eng. Enc. Law, 597, and authorities cited in notes.)

IX. The deed absolute from Price to Ward was a higher muniment of title than the

mortgage, and even if it could be said that Smith and Hilton had constructive notice of the

mortgage, they would also have the record notice that the mortgage was extinguished by the

deed. “The taking and acquiring of a higher security merges and extinguishes the legal

remedy in the lower one.” (5 Lawson's Rights, R. & P., sec. 2580; Wann v. McNulty, 43 Am.

Dec. 58; Baker v. Baker, 75 Am. Dec. 243; Rump v. Gerkins, 59 Cal. 495.)

X. “Equity will prevent or permit a merger, as will best subserve the purposes of justice

and the actual and just intent of the parties.” (Jameson v. Hayward, 106 Cal. 688; McLain v.

Sullivan, 85 Ind. 174; Fowler v. Fay, 62 Ill. 375; Andrue v. Vreeland, 29 N. J. Eq. 474;

Watson v. Dundee, 12 Or. 474.)

A. E. Cheney, for Appellant, in reply:

I. Respondent's contention that Ward is estopped from contradicting or impeaching his

own deed has no application ��

��26 Nev. 387, 391 (1902) Price v. Ward��

in this action. They refer to 11 Am. & Eng. Enc. Law, 2d ed. p. 402, passing over the

pertinent statement of the law on page 400, namely: “Estoppels by deed do not bind strangers,

nor can they take advantage of them.” (11 Am. & Eng. Enc. Law, 2d ed. 400.) “A stranger

cannot be bound by, or take advantage of, an estoppel. An estoppel to be binding must be

reciprocal; and parties and privies only are bound thereby.” (Robinson v. Bates, 3 Metc. 42;

Kitzmiller v. Rensselaer, 10 Ohio, St. 64; Franklin v. Dorland, 28 Cal. 175; Rodgers v.

Donelan, 39 pac. 494.)

II. Equally inapplicable is the contention of respondent that the mortgage from Price to

Ward did not convey notice to Smith and Hilton because executed before Ward conveyed to

them. If it had been executed after Ward had conveyed to Smith and Hilton, there would have

been some reason in the contention. The rule is thus stated: “The purchaser is not charged

with notice from the record of conveyances from his grantor prior to such grantor's

acquisition of title.” (Wade on Notice, 214.)

III. The court having sustained defendant's demurrer and required the plaintiff to allege

and prove that Smith and Hilton were bona fide purchasers, and the plaintiff having

acquiesced in that ruling, answered over and taken no cross appeal, he cannot on this appeal

make any objection to the ruling of the court in that respect. “Where a demurrer to a pleading

is sustained, but the same facts are put in issue by amended pleadings, any error in the ruling

on the demurrer is waived.” (6 Enc. Pl. & Pr., 359, and notes 1, 2; 1 Enc. Pl. & Pr. 624, and

note 4; 2 Enc. Pl. & Pr. 515.)

IV. The foundation of plaintiff's action is that Ward sold this land in violation of the

agreement that he took the deed as further security for his debt. By what process of reasoning

authorities concerning the liability of a joint tort feasor is applicable to this action, we are

unable to ascertain. Respondent cites Cooley on Torts, page 133. The same authority, in

continuing the discussion, upon page 134, says: “The rules regarding remedies which are

applicable to breaches of contracts are obviously inapplicable here.” (Cooley on Torts, p.

134.)

��26 Nev. 387, 392 (1902) Price v. Ward��


This is an action for damages by reason of the sale by defendant to innocent purchasers

without notice of timber land owned by plaintiff's intestate. The complaint, among other

things, alleges, in effect, that plaintiff's intestate borrowed from defendant the sum of $1,000,

and secured its payment by his promissory note and a mortgage upon the above-mentioned

land; that thereafter the debt was further secured by a deed of conveyance of the land,

absolute in form, but intended by the parties as a mortgage, and in this connection it is alleged

that the promissory note is still in the possession of defendant; that defendant, upon the 14th

day of October, 1897, wrongfully conveyed the mortgaged premises to J. A. Smith and F. D.

Hilton for a valuable consideration, without notice of plaintiff's rights, and to his damage in

the sum of $10,300.

The answer denied, among other things, that the deed made by respondent was intended as

a mortgage, and also alleged that before the delivery of the deed to Smith and Hilton they had

notice that intestate's estate claimed an interest in the mortgaged land. A jury returned a

verdict for respondent, assessing his damages at $2,059. From the judgment and an order

denying a motion for new trial, defendant appeals.

The controlling questions at the trial were: (1) Whether the deed to the appellant was in

fact a mortgage; (2) if a mortgage, whether Smith and Hilton had notice that it was a

mortgage; (3) the damage, if any. The verdict being for respondent, the jury must have

considered that the deed to appellant was given and intended as a mortgage.

Upon the question whether Smith and Hilton were purchasers without notice, it was shown

that Ward received a deed of conveyance of the land from Price; that the mortgage had not

been discharged of record; that Price's estate claimed an interest in the property after the

delivery of the deed; that no inquiry concerning money matters between the estate and

defendant was made. This evidence was sufficient to put a purchaser upon inquiry. In support

of the order it is said that it was not essential to allege and prove that Smith and Hilton were

purchasers without notice of the equities of D��!�� /� ��

��

��26 Nev. 387, 393 (1902) Price v. Ward��

Price's estate, and that Ward is estopped from impeaching his own deed.

It is a sufficient answer to these suggestions that respondent amended his complaint in the

district court so as to allege that Smith and Hilton were purchasers without notice. The

amendment was made presumably in conformity to the rulings of the district court. The

material issues made by the pleadings were as above stated. The case was tried upon these

issues, and we have not right to disregard issues settled by the trial court, and not a subject of

review by the record.

Judgment and order reversed, and cause remanded.


Massey, C. J., concurring:

The record in this case shows conclusively that Smith and Hilton, the purchasers from

Ward of the land conveyed by Price in the deed intended as a mortgage, had actual notice of

the equities of Price in the land so conveyed; and it is well settled that a purchaser who has

knowledge that his grantor is holding the land under a deed absolute on its face, but intended

as a mortgage, obtains no greater or better estate than his grantor. (Houser v. Lamont, 55 Pa.

St. 311; Radford v. Folsom, 58 Iowa, 473; Kuhn v. Rumpp, 46 Cal. 299; Graham v. Graham,

55 Ind. 23; Smith v. Knoebel, 82 Ill. 392; Jenkins v. Rosenberg, 105 Ill. 157.)

Such conveyance is nothing more in effect than an assignment of a mortgage. (Halsey v.

Martin, 22 Cal. 645.)

The conveyance of Ward, therefore, could not operate to defeat any right of action held by

Price or those claiming under him with respect to the land, or for any damages committed by

Ward's grantees. Before Ward, therefore, could be held liable by Price, or those claiming

under him, for the value of the land conveyed to Smith and Hilton, it must be shown that they

purchased without notice of Price's equities. (Meehan v. Forrester, 52 N. Y. 277; Enos v.

Sutherland, 11 Mich. 538.)

I therefore concur.

____________

26 Nev. 395, 395 (1902)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

JULY TERM, 1902.

____________

��26 Nev. 395, 395 (1902) Wedekind v. Bell��

[No. 1619.]

GEORGE H. WEDEKIND, Respondent, v. C. B. BELL

and W. A. SLEEP, Appellants.

Action—Settlement—Appeal—Dismissal.

1. A conveyance by plaintiff of all his interest in the subject of the action to a third party, and settlement

pending appeal, between the latter and the defendant, in which it is agreed that the settlement shall not be

affected by the judgment of appeal, is a settlement of the entire controversy.

2. Where the parties to an appeal settle the controversy, the appeal will be dismissed though the cause has been

argued and submitted.

Appeal from the Second Judicial District Court, Washoe County; G. F. Talbot, Judge

presiding.

Action by George H. Wedekind against C. B. Bell and others. From a judgment for

plaintiff, defendants appeal. Dismissed.

[Note—Owing to the importance of the issues involved in this case, salient points on the

main issues are given from certain of the briefs. Other briefs were filed, but subsequently

withdrawn, and such, and replies thereto, are, of course, not given. Eugene Howell, Clerk of

the Supreme Court, and Alfred Chartz, Reporters.]

Thos. S. Ford and Benj. Curler, and W. A. Sleep, in pro. per., for Appellants: 0��

A��


Statement of Facts.

The complaint in this action contains two counts—one for ejectment, and one for an

injunction.

The case was brought in Washoe county by plaintiff Wedekind, to recover possession of a

portion of an alleged mining location called the Safeguard Mining Claim.

This mining location ran diagonally northwest and southeast, across the corner common to

sections 28, 29, 32 and 33, township 20 north, range 20 east, situated about four miles north

of Reno.

The center of the alleged location was laid in section 28, and as described in the complaint.

A triangular piece of said location—about 1 1/2 acres—was included within section 32.

Another triangular piece—about 2 3/4 acres—was included within section 28. The balance of

the location was included within sections 29 and 33.

The complaint alleged that defendants had entered upon the ledge of the Safeguard, within

the confines of section 32, and had mined thereon, and ousted plaintiff from a portion of said

ledge and asked for the recovery of possession, and an injunction.

Defendants Bell and Sleep, the only real persons named in the complaint, answered the

complaint, denying all the material allegations of the complaint, except their possession of a

portion of section 32, and this portion, owned and occupied by them, was the land affected by

the controversy.

The answer also interposed a special defense, to wit: That long prior to the discovery of

any mineral in said neighborhood, in 1881, James Conroy had entered the northeast quarter of

section 32, under the desert land act of Congress, and had paid for the land in that year

(1881), receiving his certificate of payment, and thereby making him the equitable owner

thereof. That in 1890 the government had issued its patent for the land; that Conroy had died;

that prior to his death he had filed a homestead thereon, under state law; that after his death

the land had been set aside by judgment of the probate court to his surviving widow, Delia

Conroy, and that Delia Conroy had conveyed to defendant Bell. It is also alleged that in the

year 1876 (long prior to the discovery of mineral) section 33 had been patented by the

government to ��3��D��B�� 3��

� �� A�F��A�F�� 99��/� ��


the Central Pacific Railroad Company, a corporation; that the corporation had conveyed the

land to one Frazer; that Frazer had conveyed said section 33 to plaintiff Wedekind, prior to

the time he made his mining location. The answer also alleged that section 29 was unpatented

railroad land.

It will thus be seen that, upon the pleadings and judgment roll, the question was squarely

presented, whether plaintiff could locate patented government land, containing a ledge having

an apex thereon, and follow the ledge into adjoining agricultural ground, both patents having

been granted prior to the discovery of mineral. This was especially true, as on the trial the

evidence showed that plaintiff's works and improvements were on 33, and defendants' works

and improvements were on 32 and the alleged ledge, running from 33 to 32.

During the progress of the trial in the court below, the plaintiff amended his complaint by

alleging that that portion of the Safeguard ledge which entered 32 had its apex upon 33. This

narrowed the issue upon this question to this precise point, and the only claim by plaintiff was

that a mining location, under the laws of Congress, could be made upon private patented land,

and the ledge followed by the locator into adjoining patented land.

The Safeguard location was made April 10, 1901, and on April 15th the complaint was

filed, and a temporary restraining order issued against defendants. About one month

thereafter the matter was heard by the lower court upon the question whether a temporary

injunction should be issued pending the trial. This hearing necessarily involved the merits,

and the injunction was denied. Thereafter the case came regularly on for trial before Judge

Talbot, and upon the trial of the case judgment was given in plaintiff's favor.

This judgment is to the effect that there is a ledge upon the Safeguard, having its apex in

section 33, which enters section 32; that the plaintiff is the owner of this ledge, and can

follow it into 32, and oust the defendants from the ledge, giving it to plaintiff, and restrains

defendants from working it.

But the judgment also decrees that defendants are the owners of the surface of section 32

and all mineral and ledges in 32, except the Safeguard ledge, which has its apex in 33.


Thereafter, due proceedings were had on motion for a new trial, which motion was

overruled, and this appeal is taken from the judgment and order overruling the motion for a

new trial.

Argument for Appellants.

I. Even if section 33 had been public mineral land of the United States, upon which a

mining location could be made, the plaintiff could not follow his ledge under a prior

agricultural patent in section 32. It has been so held. (Amador Medean G. M. Co. v. South

Spring Hill G. M. Co., 36 Fed. 668, 13 Saw. 523; Pacific Coast M. & M. Co. v. Spargo, 16

Fed. 348, 8 Saw. 647.)

II. The common-law rule governs mining land. In the court below respondents claimed

that Mr. Lindley, in his work on mines, disapproved of Judge Sawyer's reasoning in the case

of Amador v. South, etc., 8 Saw. 523, to the effect that the right to follow a vein is an

easement, Mr. Lindley claiming that it is an estate in adjoining land. (Lindley on Mines, vol.

2, sec. 612, p. 761.) But Mr. Lindley's views are not approved by the courts. But the question

is fully discussed in the case of Duggan v. Davey, 26 N. W. R. 890-3, and the conclusion is

reached that the owner of a mining claim owns everything from the boundary lines down

vertically to the center of the earth—subject to the right of his adjoining mine owner to follow

his ledge, and with the right to follow his own ledge beyond his side lines, into his adjoining

mine owner. That case is approved and commented on by Judge Ross in Doe v. Waterloo, 54

Fed. Rep. 937; approved also in 16 Fed. 348, and 36 Fed. 668.

III. In the case of Stanley v. Mineral Union, 26 Nev. 64, where a similar question is

raised, Justice Massey, speaking for the court, says: “A large number of authorities are cited

by the appellant to support this contention, and, in a proper case, would control, but as the

cases cited do not, as we believe, apply to the case at bar, we do not deem it necessary to

discuss or review them. The question must be determined, as we view it, by the application of

certain statutory rules, the enactment of our legislature.” That is to say, where the right is

claimed to locate mineral upon state lands, it is simply a question of what the state legislature

has ��


enacted. But where the party claims the grant direct from Congress the state enactments have

no application. We deem the present action “a proper case,” within the meaning of that

decision, wherein the adjudicated cases are applicable.

IV. In the eye of the law, sections 32 and 33 contains no mineral or ledges; the law does

not recognize proof that such mineral exists, after the patents have been exhibited in

evidence. (Standard Quicksilver Co. v. Habisha, 132 Cal. 115; Wormounth v. Gardner, 112

Cal. 510; Cowell v. Lammers, 21 Fed. Rep. 206; Richards v. Dower, 81 Cal. 54; Iron Silver

Co. v. Mike & Starr Co., 143 U. S. 404; Eureka Case, 4 Saw. 320.)

V. The United States Supreme Court said, in Deffebeck v. Hawke: “If, upon the premises

at that time there were not actual ‘known mines,' capable of being profitably worked for their

product so as to make the land more valuable for mining than for agriculture, a title to them

acquired under the preemption act cannot be successfully assailed.” (Cole v. United States,

123 U. S. 307, 326; Richards v. Dower, 81 Cal. 44; U. S. v. Reed, 28 Fed. 482; Gold Hill v.

Ish, 5 Or. 104; In re Abercrombie, 6 L. D. 393; Bellows v. Champion, 4 Copp's L. O. 17;

Nancy Ann Case, 3 L. D. 169; Hamish v. Wallace, 13 L. D. 108.) It is a general rule,

applicable to all classes of grants, that the subsequent discovery of mineral cannot affect the

title as it passed at the time of the grant. (Davis v. Wiebold, 139 U. S. 507; Deffebeck v.

Hawke, 115 U. S. 404; Hunt v. Steese, 75 Cal. 620; Richards v. Dower, 151 U. S. 658; Smith

v. Hill, 89 Cal. 122.) Discoveries made after title has passed from the United States, by which

the land becomes profitable to work as a mine, cannot affect the title. (Colorado Co. v.

United States, 123 U. S. 307; Deffebeck v. Hawke, 115 U. S. 392.) Where certificate of final

agricultural entry has been issued, no subsequent discovery of mineral can defeat the title of

the holder. (Arthur v. Early, 21 L. D. 92; Ray v. Stevenson, 15 L. D. 37.)

VI. Even if section 33 were government land of the United States, subject to location

under the mineral laws, and plaintiff had a ledge or surface apex, he could not dip under

section 32, when the latter section was not known to contain mineral the time the patent was

issued. The point has been clearly and definitely settled by two decisions of ��.C� ��0��0��$��9��A� ��=��D��3��0��&��A� �


high authority: Amador v. South Spring Hill, 36 Fed. 668; Pacific Coast v. Spargo, 16 Fed.

348.

VII. In all of the following cases attempts were made to locate mines upon patented

ground, or beneath patented ground, where a railroad, town site, or agricultural patent had

been granted, and in each and every case the court held against the mineral claimants. (Carter

v. Thompson, 65 Fed. 329; Buena Vista v. Solari, 67 Fed. 226; Dower v. Richards, 151 U. S.

653; Richards v. Dower, 81 Cal. 44; Gale v. Best, 73 Cal. 235; Smith v. Hill, 89 Cal. 122;

McCormick v. Sutton, 97 Cal. 573; Cowell v. Lammers, 21 Fed. 200; Pacific Coast v. Spargo,

16 Fed. 348; Standard Co. v. Habishaw, 132 Cal. 115; Railroad Co. v. Whitney, 132 U. S.

357; Railroad Co. v. Dunneyer, 113 U. S. 629; Carroll v. Safford, 3 How. 441; Witherspoon

v. Duncan, 4 Wall. 218; Wilcox v. Jackson, 13 Pet. 513.)

VIII. It is a well-settled principle of law that the decisions of the land department, upon

questions of fact, are conclusive when brought to notice in a collateral proceeding. (Shepley

v. Cowell, 91 U. S. 330; Quinby v. Connelly, 104 U. S. 427; U. S. v. Budd, 144 U. S. 168;

Johnson v. Cowsley, 13 Wall. 72; Warren v. Van Brunt, 19 Wall. 648; Moore v. Robbins, 96

U. S. 530.)

IX. Only unoccupied and unappropriated mineral lands of the United States are open to

exploration and survey. (Armstrong v. Lower, 6 Colo. 393; Henshaw v. Clark, 14 Cal. 461;

Soggs v. Merced, 14 Cal. 279; U. S. v. Castilero, 2 Black. 717; 3 Wall. 304.) The land

patented to the C. P. R. R. Co. was private land, and the exemption of mineral in that grant, as

well as others, must be determined by the law, and not by the clauses inserted in the patent.

This question is reviewed in Cowell v. Lammers, 21 Fed. 200, and in that case it is held that

the clause in the railroad patent, excluding all mineral lands, “should any such be found to

exist,” is void. The railroad company could not have acquired any extralateral rights under the

mineral laws, after the patent had been issued, and their grantees are in no better position.

X. The issuance of the first patent is a conclusive adjudication that there is no mineral

beneath the surface, and that the patent is conclusive of the fact, and binding on the ��


courts. (Gale v. Best, 78 Cal. 235; Irvine v. Talbot, 105 Cal. 237; Dreyfuss v. Badger, 108

Cal. 65; French v. Fyan, 93 U. S. 169; Johnson v. Towsley, 13 Wall. 72; Moore v. Roberts,

96 U. S.; St. Louis Co. v. Kemp, 104 U. S. 636; Steel v. Smelting Co., 106 U. S. 447; Butte v.

Sloan, 40 Pac. 217; Perley's Park v. Kerr, 130 U. S. 256; Dahl v. Ramheim, 132 U. S. 260.)

XI. It is a well-settled principle of law that no rights to mineral land can be initiated by

trespass. (Cowell v. Lammers, 21 Fed. 203; Atherton v. Fowler, 96 U. S. 513; Hosmer v.

Wallace, 97 U. S. 579; Quinby v. Conlan, 104 U. S. 421; Dole v. Meador, 16 Cal. 320.)

XII. A mining claim, in actual possession of the claimants, is valid, irrespective of the

mining laws. (Campbell v. Rankin, 99 U. S. 262; English v. Johnson, 17 Cal. 107; Rogers v.

Cooney, 7 Nev. 219; Table Mt. v. Stranahan, 20 Cal. 209; Hess v. Winder, 30 Cal. 355;

North N. M. Co. v. Orient M. Co., 11 Fed. 128.)

W. E. F. Deal, of Counsel, for Appellants:

I. The United States land office did, on or prior to the issuance to James Conroy of the

register's receipt on January 3, 1881, determine and decide that the northeast quarter of

section 32, township 20, was non-mineral land subject to purchase and sale, and this decision

is such a conclusive adjudication of the character of the land that no court can or will question

it, it being a determination of a question of fact within the jurisdiction of the land office

exclusively.

II. “When the law has confided to a special tribunal the authority to hear and determine

certain matters arising in the course of its duties, the decision of that tribunal, within the

scope of its authority, is conclusive upon all others.” (80 U. S. p. 83; French v. Fyan, 93 U. S.

171; Smelting Co. v. Kemp, 104 U. S. 465; Steel v. Smelting Co., 106 U. S. 451; Baldwin v.

Stark, 107 U. S. 465; Iron S. M. Co. v. Campbell, 107 U. S. 303; Heath v. Wallace, 138 U. S.

585; U. S. v. California Land Co., 148 U. S. 44.)

III. A complete title in fee simple passed to James Conroy and heirs to the northeast

quarter of section 32 on February 11, 1890, when the patent was signed and recorded in the

department of the interior at Washington City. (Houghton ��$� ��19�3��&=&��3��F��

(��F��19�3��+92��6F��B��=2�3��&==��&=�3��&&�E��0��0��F��&8+�E��0��9-=�;


v. Harding, 53 Cal. 181; Cruz v. Martinez, 53 Cal. 239; Ellzrath v. Ryan, 89 Cal. 188;

Teschmeyer v. Thompson, 18 Cal. 11; U. S. v. Schurz, 102 U. S. 378.)

IV. The patent to James Conroy contained the following reservations: “Subject to any

vested and accrued water rights for mining, agricultural, manufacturing, or other purposes,

and rights to ditches and reservoirs used in connection with such water rights as may be

recognized and acknowledged by the local customs, laws and decisions of courts, and also

subject to the rights of the proprietor of a vein or lode to extract and remove his ore

therefrom, should the same be found to penetrate or intersect the premises hereby granted, as

provided by law.” The reservation emphasized commencing with the words “and also” is

absolutely null and void, as it was wholly unauthorized by the act under which the land was

entered and purchased. (Deffeback v. Hawke, 115 U. S. 406; Davis v. Weibold, 139 U. S. 528;

Shaw v. Kellog, 170 U. S. 338.) The Supreme Court of the United States has never changed

or modified the principles established by the above authorities, as they clearly point out in

Shaw v. Kellog in discussing the opinion rendered by that court in the case of Barden v.

Northern Pacific R. R. Co., 154 U. S. 288. They say: “But there was no division of opinion as

to the question that when the legal title did pass, and it passed unquestionably by the

patent—it passed free from the contingency of the future discovery of mineral.” (Shaw v.

Kellog, 170 U. S. 339.) To use the language of the Supreme Court of the United States in

Shaw v. Kellog, page 339, the title “passed free from the contingency of future discovery of

minerals.”

Bigelow & Dorsey, for Respondent:

I. It seems to be well and firmly settled that possession of the surface where a vein apexes

is possession of the whole vein, and will support an action for trespass upon the vein after it

has passed through the side lines. (Montana M. Co. v. St. Louis M. Co., 102 Fed. 430, 435;

Bullion M. Co. v. Croesus M. Co., 2 Nev. 168, 178; Hyman v. Wheeler, 29 Fed. 347; Pardee

v. Murray, 2 Pac. 16, 4 Mont. 234; Mining Co. v. Cheeseman, 116 U. S. 533.)


II. The owner of a mine in the lands of another has a right to enter and work them,

“without the concurrence of the owner of the surface,” and that no trespass is thereby

committed. (Rockwell, 520; Earl of Cardigan v. Armitage, 2 Ban. & Cres. 197; 3 Dumford &

East, 414.)

III. A location of a mining claim by an alien is free from attack from anyone except the

government, and he may hold his interest as against all the world save the United States after

ore is found. (McKinley Creek M. Co. v. Alaska United M. Co., decided January 6, 1902,

advance sheet Sup. Ct. Rep. Jan. 15, 1902; Tornanses v. Melsing, 109 Fed. 710; Billings v.

Aspen M. Co., 51 Fed. 338, 344; 52 Fed. 250-1; Lone Jack M. Co. v. Megginson, 82 Fed. 89,

93; Wilson v. Triumph Con. M. Co., 56 Pac. 300-2; Manuel v. Wulff, 152 U. S. 505; Croesus

M. Co. v. Colorado Co., 19 Fed. 78, 82; Ferguson v. Neville, 61 Cal. 356, 359; Cornian M.

Co. v. Alexander, 2 So. Dak. 557; 51 N. W. 346; Wulff v. Manuel, 9 Mont. 274; 23 Pac. 723;

1 Lindley on Mines, sec. 234.)

IV. We claim that lodes or veins, having their apex outside of the agricultural grant are (to

the extent that such lodes or veins, on their course downward underlie it) reserved by law out

of such grant. Nor does this doctrine militate against the rule of law we may admit as

established, that the patent is conclusive evidence of the character of the land. The land

covered by the agricultural patent may be conclusively deemed to be agricultural, but this

does not imply that a lode under its surface, apexing outside of it, cannot be reserved without

impeaching the patent and changing the legal character of the land. The two titles—that of the

vein and that of the agricultural surface—may coexist without conflicting in a legal sense.

V. The appellants have no title to the segment of the vein beneath the surface of section

32 because its apex lies wholly within respondent's premises. (Tyler M. Co. v. Last Chance

M. Co., 71 Fed. 848; Tyler M. Co. v. Sweeney, 54 Fed. 292; Last Chance M. Co. v. Tyler, 61

Fed. 564; Consal Wyoming M. Co. v. Champion, 63 Fed. 541, 546; Del Monte M. Co. v. New

York, 66 Fed. 212; Fitzgerald v. Clark, 42 Pac. 73.) All these authorities hold that “if there is

any right emphatically granted by the mining laws, it is one in ��5


direct contravention of the common law.” See also, Jones v. Prospect Mountain Tunnel Co.,

21 Nev. 339; Roxina G. M. & T. Co. v. Cone, 100 Fed. 168; Driscoll v. Dunwoody, 16 Pac.

726; Montana Co. v. Clark, 42 Fed. 626; Reynolds v. Iron Silver M. Co., 116 U. S. 687,

which case at page 690 says: “Whether the defendant has title or is a mere trespasser, it is

certain that he is in possession, and that is a sufficient defense against one who has no title at

all and never had any.”

VI. It is too plain to require argument that the general policy of the government has been

to reserve mines from the operation of all grants of land west of the one hundredth meridian,

whether to the several states, in aid of the construction of railroads, or under any of the

settlement acts. “The uniform reservation of mineral lands from survey, from sale, from

preemption and from all grants, whether for railroad, public buildings or other purposes, fixed

and settled the policy of the government in relation to such lands.” (1 Lindley on Mines, sec.

47.) As the paramount proprietor, with all the rights of dominion and powers of alienation

that are incident to absolute ownership in individuals (Lux v. Haggin, 69 Cal. 225), the

government has adopted, prescribed and authorized the fixing of rules which sanction and

regulate the acquisition and enjoyment of mineral lands and mining right. Those rules

originated in and are evidenced and expressed by: 1—Local rules and customs; 2—State

legislation; 3—Acts of Congress.

VII. Now, what objection, on principle, can there be to the doctrine of the cases we have

referred to on this branch of the case? Under the law of Congress, the right of the owner of

even a lode mining claim is expressly restricted to such veins, lodes or ledges as have their

tops or apexes inside of the surface lines of their claims extended vertically downward. The

grant is only of the veins which have their tops within the claim; it excludes all veins or lodes

which have their tops outside of the claim, although in their depths they enter such ground.

Such being the law applicable to lode claims, a fortiori, is it the law as applied to agricultural

land? Certainly there is greater room for contending that a lode passes to the mining than to

the agricultural applicant for ��


patent. Assuredly there is more reason for contending that the patentee of a mining claim

(whose sole object in obtaining his title was to get, and the only value of whose ground lies

in, the precious metals from the veins discovered therein) is entitled to such veins where they

are not owned by some other locator or patentee, than there is for holding that the patentee of

agricultural lands (sold and bought for agricultural purposes alone, upon presumption and

under sworn proof that they were non-mineral in character) is entitled to any vein apexing

elsewhere. To put it otherwise, it is apparent that the substance of the grant of mineral lands,

is the mineral—the ore beneath the surface (Calhoun G. M. Co. v. Ajax G. M. Co., advance

sheets U. S. Sup. Ct. Rep. July 1, 1901, p. 890; Johnson v. Parks, 10 Cal. 447), while the

reverse is the case in respect to agricultural lands, where the surface is the principal thing, and

yet, as we have shown, the courts hold, as between mineral claimants, that the mere

possession of an apex, without extralateral right, without any title, may follow the vein

beneath the mining patent. Then why not beneath the agricultural grant? The reason of the

matter lies in the fact that the vein is an entity—it is an entire thing. Something must fix and

determine its ownership or possession. That something has been made, by custom, rule and

legislation, its apex. Whoever own that, or is in possession of that, is entitled to its

extralateral pursuit. When a tract of land is located or sold the government retains the

ownership of, and complete control over, all veins which apex elsewhere, and nothing can be

clearer than that the grantee of the government should succeed to its rights and titles in this

regard.

VIII. Our examination of the questions involved in the case at bar has developed the fact

that counsel engaged in the trial of such cases, and courts in deciding them, while discussing

the incidents of the ownership of veins, or of land containing them, frequently refer to the

common-law rule of usque ad coelum et ad orcum, and draw the conclusion that our mining

customs and laws, which award the right to pursue veins from their apexes beyond the

vertical planes drawn through surface boundaries, are in contravention of the common law.

“Strictly speaking, this is inaccurate. The grant ��


of the right of lateral pursuit is, in legal effect, a severance of the estate in the vein from the

ownership of the soil into which it penetrates after passing beyond the vertical planes drawn

through the surface boundaries of the location or patent. The government being the owner of

the fee may carve from it the ownership of the vein. It may grant the surface to one and the

vein to another. There was nothing in the common law which prohibits this severance. In fact,

it was expressly sanctioned. Instead of being in derogation of the common law, this class of

grants is in absolute harmony with it. * * * This dip or extralateral right is not a mere

easement. The estate thus granted in the vein is of the same dignity as that of a title in fee. It

is a title in fee as to the vein granted.” (2 Lindley, sec. 568.) That's the point—the sword

which severs the Gordian knot. The estate in the vein, when obtained by location or

possession of the apex, is in the nature of, and when obtained by ownership of the ground

embracing the apex is absolutely, a fee simple estate in an entire thing.

IX. Of course the appellants take refuge behind the doctrine that the issuance of patent is a

conclusive determination by the government that the land is agricultural, and that it is not

competent to reopen the question of the character of the land. In Smelting Co. v. Kemp, 104

U. S. 636, the court says, on page 646: “A patent, in a court of law, is conclusive of all

matters properly determinable by the land department. * * * Indeed the doctrine as to the

regularity and validity of its acts, where it has jurisdiction, goes so far that if, in any

circumstances under existing law, a patent would be held valid, it will be presumed that such

circumstance existed.” (Gale v. Best, 78 Cal. 240; Peabody Gold M. Co. v. Gold Hill M. Co.,

111 Fed. 817-819.) As said in Gale v. Best, 78 Cal. 235, by the court, on page 241: “It was a

part of the description of the land conveyed, and it may be strongly argued that, in such case,

although it was the duty of the land department to determine the character of the land before

the issuance of the patent, yet, as the patent shows upon its face that such duty was not

performed, the patentee must be held to have taken knowing its uncertain and unsubstantial

character.” In Reynolds v. Iron Silver M.


Co., 116 U. S. 687, the court, on page 607, said: “Without deciding on the effect of the

acceptance without protest of a patent, with such exceptions in the granting clause, where

their execution is the voluntary act of the officers who execute the instrument, it is sufficient

to say that these conditions but give expression to the intent of the statute.”

X. We claim that (a) by the common law of England, mines of precious metals by grant

from the sovereigns never passed unless expressly mentioned and expressly provided. (b)

There is no national common law. (c) The doctrine of intralimital rights is repugnant to and

inconsistent with the mining customs and laws of the State of Nevada. (d) That the

construction, force and effect of patents must be had and determined under and according to

the laws of the state where the real estate is situated.

XI. “The right of property in all mines of gold and silver within the realm, whether they

be in the lands of the crown or of the subject, is vested, prima facie, in the crown by

prerogative.” (Case of Mines, Plowd. 236; Case of Saltpetre, 12 Rep. 12; Bainbridge on

Mines, pp. 4, 31, 32, 33, 34, 35; Moore v. Smaw, 17 Cal. 220.)

XII. There is no national common law; though, herein, each state has its own common

law. (Wheaton v. Peters, 8 Pet. U. S. 658; Smith v. Alabama, 124 U. S. 478; U. S. v. Reed, 53

U. S. 12 How. 363; Forepaugh v. Delaware R. R. Co., 15 Am. St. 674.)

XIII. In Lilliebridge v. Lackawanna Coal Co., 143 Pa. St. 293, the court held that: “We

have for nearly half a century judicially regarded the ownership of mineral, where it has been

severed from the surface, as the ownership of land, to all intents and purposes.” (Caldwell v.

Copeland, 37 Pa. St. 427; Scranton v. Phillips, 94 Pa. St. 15; Sanderson v. Scranton, 105 Pa.

St. 460; Delaware R. R. Co. v. Sanderson, 109 Pa. St. 583; Williams v. Gibson, 84 Ala. 228;

Marvin v. Brewster, 55 N. Y. 538; Rickman v. Gillis, 57 N. Y. 68; Benavides v. Hunt, 69

Tex. 383; Silva v. Rankin, 80 Ga. 79; Knight v. Indiana Co., 47 Ind. 105; Arnold v. Stevens,

24 Pick. 106; Hartwell v. Camman, 10 N. J. 128; Massot v. Moses, 3 S. C. 168.)

XIV. The Supreme Court of the United States gave full �� C��


recognition to the binding force of the local rules, regulations, usages and customs before the

sanction of federal statutory enactment, and to the doctrine that they constitute the American

common law of mines. (Sparrow v. Strong, 3 Wall. 97, decided in 1865; Jamison v. Kirk, 98

U. S. 453, decided in 1878; King v. Edwards, 1 Mont. 239; Atchison v. Peters, 20 Wall. 510.)

And that doctrine has been approved and adopted as the law of Nevada. (Reno Works v.

Stevenson, 20 Nev. 274.)

XV. In United States v. Douglas-William Sartoris Co., 2 N. Y., the court, on page 293,

says: “It is no longer a question open to dispute that, when the government becomes a party to

a contract between itself and its citizens, it divests itself of its sovereignty in respect to the

terms and conditions of the contract, its construction and interpretation, and stands in the

same position with reference to the contract as a private individual.” (Citing Com. v.

Proprietors, 2 Gray, 350; Hamilton, Works, vol. 3, p. 518; Biddle Boggs v. Merced M. Co.,

14 Cal. 376.) It is perfectly clear that no title to lands can be acquired or passed unless

according to the laws of the state in which the same are situate. (Clark v. Graham, 6 Wheat.

579; 3 Washburn on Real Property, 238.) It is a principle firmly established, says the Supreme

Court in DeVaughan v. Hutchinson, 165 U. S. 570. (U. S. v. Crosby, 7 Cranch, 115; Clark v.

Graham, 6 Wheat. 577; McGood v. Scales, 9 Wall. 23, Brine v. Ins. Co., 96 U. S. 627; Jones

v. Habersham, 107 U. S. 174; Moseby v. Burron, 52 Tex. 396; Osborne v. McCartney, 121

Ill. 408.)

Thos. Wren, also for Respondent:

I. It goes without saying that the Supreme Court of the United States will, upon the

authorities cited, adopt the decisions of this court settling the extralateral rights of miners

under the statutes of this state, and of the United States, and the common law established by

the universal custom of the miners on this coast, giving extralateral rights, for more than fifty

years, and in Nevada from the meeting of the first legislature after its organization as a

territory, and continued and enlarged by state legislation ever since the admission of the state

into the union.


II. Logically, when the common law was adopted by the legislature of the Territory of

Nevada and subsequently by the state legislature, it was adopted subject to the rules,

regulations and customs of the miners, and those laws, regulations and customs have

continued in force ever since, and are now in force in this state, unless they have been in

some way modified or abolished by state or national legislation.

III. “The intent of the legislature controls the court not only in the construction of an act,

but also in determining whether a former law is repealed or not.” (Thorp v. Schooling, 7 Nev.

15; State v. Ross, 20 Nev. 61; Maynard v. Newman, 1 Nev. 271.)

IV. “When the law is doubtful it is the duty of the court to adopt that construction which

will be the least likely to produce mischief, and which will afford the most complete

protection to all parties.” (Arnold v. Stevenson, 2 Nev. 234; Haydon v. Board of Supervisors,

2 Nev. 371; O'Neil v. N. Y. M. Co., 3 Nev. 141.)

V. “Statutes relating to the same subject matter, which can stand together, should be so

construed as to make each effective.” (State v. Hoover, 5 Nev. 141; State v. Rogers, 10 Nev.

319.)

VI. When a law is capable of two constructions without doing violence to the language

used, courts should give it such construction as will be most beneficial to the public. (Haydon

v. Ormsby Co., 2 Nev. 371; O'Neil v. N. Y. & S. P. M. Co., 3 Nev. 141; Odd Fellows' Bank v.

Quillen, 11 Nev. 117.)

VII. The mining act of Congress, I contend, reserved all lodes from sale, having their top

or apex outside of a patented mining claim, or an agricultural patent, and on its dip

penetrating either the mineral patent or the agricultural patent.

VIII. Did the Central Pacific Railroad Company acquire title to that portion of the lode in

controversy having its top or apex in section 33, with extralateral rights to the lode on its dip?

If it did, Wedekind, the successor to the title acquired by the railroad company, became the

owner of that portion of the lode in dispute. The respondent had been in possession of the

lode in good faith under the Reno Star �� *�

�� (��


location, long before and at the time that Bell purchased of Mrs. Conroy the land under which

the lode dipped. If title was not acquired by the respondent, through the Central Pacific

Railroad or by actual possession, but all of that portion of the lode on its dip passing into and

under section 32 was still in the government, having been reserved from sale under the

mining act of Congress, then the respondent acquired title to that portion of the vein lying

west of the west line of section 33, under the Safeguard location. (Del Monte M. Co. v. Last

Chance M. Co., 171 U. S.)


This case was argued and submitted, but before judgment was rendered the justices of the

court were informed that the controversy between the plaintiff and the defendants had been

settled. We subsequently had citation served on each of the counsel for the respective parties

to the suit, that they appear before the court on a day named, and show cause why the case

should not be dismissed for the reason that all controversy between the parties plaintiff and

defendant as to the matter in litigation had ceased. On the day named, counsel representing

each side of the case appeared before the court, and stated that all controversy between the

parties had not ceased; but that only a part had been settled, and a part remained unsettled;

and requested the court to take the case on to a judgment. Counsel then stated to the court

exactly what had been done in the way of settlement between the parties plaintiff and

defendant. On the facts stated, two questions arise: First, is all controversy between the

plaintiff and defendants as to the property in suit settled? And, second, if settled, what

disposition of this case should be made by this court?

Under the facts as stated to the court, we think all controversy between the parties as to the

property in suit has been settled. Referring to the accompanying diagram, which is in all

essential respects a copy of an exhibit in the case, to wit: plaintiff's map A, with the Reno

Bell claim added, showing its easterly side line, line 9 (10 on the diagram)—one can

understand the matter.


Plaintiff claimed under his Safeguard mining location, laid, as can be seen by inspection of

the diagram, on four kinds of land, to wit: (1) unpatented lands of the United States in section

28; (2) unpatented railroad lands in sec-

DIAGRAM

(See book)

tion 29 belonging to plaintiff or under his control; (3) patented railroad land in section 33

belonging to plaintiff; and (4) lands patented, under desert-land applications, in section 32,

belonging to defendants. The matter in dispute ��

�� !�� 9+�


was the ore bodies under the surface of defendant's land in section 32. The plaintiff alleged

that the said ore bodies had their “apex” on his land in section 33, and on his Safeguard

mining location, partly lying on his said land in said section 33.

Plaintiff in his prayer for relief asked the judgment of the court that said ore bodies were

his by reason of their “apex” being on his said land and claim; and also that defendants be

perpetually restrained from interfering therewith.

On the hearing of the citation, it appeared that the plaintiff had conveyed to a third party,

Mr. John Sparks, all of plaintiff's rights, title, and interest to the lands and ore bodies lying to

the eastward of the easterly side line of the Reno Bell claim. Said easterly side line ran about

135 feet to the west of the ore bodies in dispute, said ore bodies being near the spot marked

on the diagram “Bell Shaft House”; northwesterly much further than the Safeguard location

extended; and southeasterly considerably further than said ore bodies were shown to extend.

It further appeared that Mr. Sparks and the defendants had settled all of their contention;

that it had been agreed that all suits between the parties except this suit in this court should be

dismissed; and that whatever judgment this court might render in this case should have no

effect on the said settlement, but that said settlement should in all respects stand, the

judgment of this court to the contrary notwithstanding.

To us it seems clear: (1) That the plaintiff, Mr. Wedekind, has conveyed all of his right,

title, and interest in the matter in controversy to a third party, Mr. Sparks; for the controversy

was as to land and ore bodies lying to the eastward of said Reno Bell easterly side line, and

nothing to the westward thereof was in controversy; and (2) that Mr. Sparks and the

defendants have settled all of their dispute as to the matter in controversy, the defendants

having conveyed all of their interest to Mr. Sparks. Of course, under the state of facts above

mentioned, Mr. Sparks has become dominus litis on each side of the case; and, under the

decisions of courts and in sound legal reason, the case should proceed no further for the want

of dominus litis on each side thereof.


The following authorities support this doctrine: Little v. Bowers, 10 Sup. Ct. 620, 33 L.

Ed. 1016; Henkin v. Guerss, 12 East, 247; Smith v. Railroad Co., 29 Ind. 546; Board of

Chosen Freeholders of Essex Co. v. Board of Chosen Freeholders of Union Co., 44 N. J.

Law, 438; McConnell v. Shields, 1 Scam. 582; Livingston v. D'Orgenoy, 1 Mart. (O.S.) 96;

Meeker v. Straat, 38 Mo. App. 239; Judson v. Jockey Club, 14 Misc. Rep. 350, 36 N. Y.

Supp. 126; Haley v. Bank, 21 Nev. 127; and State v. McCullough, 20 Nev. 154.

On the hearing of the citation to show cause, the question was raised whether, after a case

had been argued and submitted to the court for its decision and judgment, it could be disposed

of without decision and judgment for the reason that the parties to the suit had settled it

between themselves. We think it can, and should be.

In Judson v. Jockey Club, 14 Misc. Rep. 350, 36 N. Y. Supp. 126, cited above, and Dudley

v. Same, (Com. Pl. N. Y.) 36 N. Y. Supp. 128, a case had not only been argued and submitted

to the court for its decision, but the court had also rendered its judgment and decision, and the

same had been entered of record; and yet, when the court obtained knowledge that the suit

was fictitious, that there was not a dominus litis on each side thereof, it ordered its judgment

and decision to be withdrawn from the files of the court.

In the first of the last two cases, on page 127, 36 N. Y. Supp., the court says: “Courts of

judicature are organized only to decide real controversies between actual litigants. When,

therefore, it appears, no matter how nor at what stage, that a pretended action is not a genuine

litigation over a contested right between opposing parties, but is merely the proffer of a

simulated issue by a person dominating both sides of the record, the court, from a sense of its

own dignity, as well as from regard to the public interests, will decline a determination of the

fabricated case so fraudulently imposed upon it. (Lord v. Veazie, 8 How. 255, 12 L. ed. 1067;

Cleveland v. Chamberlain, 1 Black, 426; Wood-Paper Co. v. Heft, 8 Wall. 333; Bartemeyer

v. Iowa, 18 Wall. 134, 135; San Mateo Co. v. Southern Pac. R. Co., 116 U. S. 138;

Washington Market Co. v. District of Columbia, 137 U.S. 62, 11 Sup. Ct. 4; South Spring

Hill Gold Min. Co. v. Amador Medean Gold (��3��&'1�E��0��988��&+�0��3��2+&�

(��3��/��&'&�E��0��2��-88��&+�0��3��&89��3��0��D��H��B��3��&'2�E��0��98=��9&'��&9�0��3��=-��$��"�� *��'��B�


Min. Co., 145 U. S. 300, 12 Sup. Ct. 921; Manufacturing Co. v. Wright, 141 U. S. 696, 700,

12 Sup. Ct. 103; California v. San Pablo & T. R. Co., 149 U. S. 308, 314, 13 Sup. Ct. 876;

Hoskins v. Lord Berkeley, 4 Term R. 402; In re Elsam, 3 Barn. & C. 597; Wood v. Nesbitt,

(Sup.) 19 N. Y. Supp. 423.”

And in both cases, on the page following (page 128, 36 N. Y. Supp.), the court says: “The

report of the referee shows that the controversy before the court was fictitious; that the

transaction out of which it was supposed to grow—a horse race for stakes—was a pretended

contest, arranged so as to form the basis of suits at law in which, without real adversaries

before the court, an adjudication might be procured to use for other purposes than the

enforcement of the right involved in the pretended suits. Upon the intervention of third parties

having interests that might be affected by a decision in those proceedings, we ordered a

reference to ascertain the facts (36 N. Y. Supp. 126); and, the report of the referee bearing out

the contention of such parties, it only remains for us to dismiss the proceedings in this court

growing out of the pretended and collusive transactions referred to. In addition to the cases

already cited by us on the question of the right of third parties to intervene, we refer to the

case of Haley v. Bank, in the Supreme Court of Nevada on March 10, 1891, reported in 12 L.

R. A. 815, with note (s. c. 21 Nev. 127), in which it was held that an attorney, as amicus

curiae, may move to dismiss an action as collusive, and it is his duty to do so if he knows, or

has reason to believe, that the action is fictitious. We shall, therefore, enter an order

dismissing the appeal from the district court in the case of Judson v. Jockey Club, and the

appeal and the action in this court in Dudley v. Same Defendant, and direct that the opinions

of this court in those cases be withdrawn from the files, and that the costs of the reference be

paid by the parties to those appeals. All concur.”

We deem it proper to say here that the case before us is not in any objectionable or bad

sense “fictitious.” On the contrary, up to the time of the settlement thereof there was between

the parties a very real contest, and the contest was very earnestly carried on. There is no

possible blame attachable to any persons connected with the case. The settlement �� !��


of disputes amicably out of court instead of at arm's length in court is certainly commendable,

and not blamable. But, as stated above, when the controversy between the parties litigant

ceases, then the proceedings in court should follow its lead, and also cease.

It is ordered and adjudged that the case in this court is dismissed.

____________

��26 Nev. 415, 415 (1902) Taylor v. Nevada-Cal.-Ore. Ry.��

[No. 1623.]

A. J. TAYLOR, Respondent, v. NEVADA-CALIFORNIA-

OREGON RAILWAY, a Corporation, Appellant.

Master and Servant—Defective Machinery—Servant's Right to Continue Work—Notice to Master of

Defect—Promise to Repair—Assumption of Risk—Imminency of Danger—Excessive Damages.

1. Where a motion for a continuance in an action for injuries was based on the absence of a witness, who was

not present when the injury occurred, and the testimony which he was expected to give in regard to other

matters was not only immaterial, but could have been supplied by other witnesses, there was no abuse of

discretion in refusing the continuance.

2. If a servant, on noting a defect in machinery operated by him, notifies his master, and receives his promise to

repair it, he may continue to operate such machinery for a reasonable time without thereby assuming the

risks incident to the defect, provided the danger therefrom is not so imminent that a person of ordinary

prudence would refuse to continue the work.

3. A railroad engineer notified his employer that his engine tender, which was practically new, was rolling too

much on its trucks, and that it was getting dangerous, and received a promise that the defect would be

remedied. Four days later he again gave notice that the defect ought to be remedied at once, and received a

similar promise. The defect consisted of a gradually increasing weakness of the tender's springs, which, no

repairs being made, finally resulted, five days after the second notice, in the derailment of the engine and

plaintiff's injury, the front bolster of the tender having caught in the front truck, and lifted it from the track:

Held, that the question as to whether the danger was so imminent as to require plaintiff to discontinue

work, notwithstanding the promises to repair, was for the jury.

4. Whether plaintiff continued in the service after such a period of time had expired after the promises to repair

as would preclude all reasonable expectation that such promises would be fulfilled, was a question for the

jury.


5. In an action for personal injuries, plaintiff's evidence showed that he was 36 years old, and earning $100 per

month, when injured; and that his injuries consisted of a blow on the head, causing partial deafness, a burn

on the right leg, a burn and bruise on the arm, two ribs broken from the sternum, a depressed lung, a

permanently painful strain and separation of the muscular fibers of the back, rendering him permanently

weak, and causing lateral curvature of the spine, and permanently disabling him from following his

avocation or performing ordinary manual labor. Defendant's evidence tended to contradict plaintiff's as to

the extent of the injuries: Held, that a verdict of $15,500 was not so excessive as to show any improper

motive or bias on the part of the jury. (Fitzgerald, J., dissenting.)

Appeal from the Second Judicial District Court, Washoe County; W. D. Jones, Judge

presiding.

Action by Andrew J. Taylor against the Nevada-California-Oregon Railway Company.

From a judgment in favor of plaintiff, and from an order denying a new trial, defendant

appeals. Affirmed.


E. R. Dodge and W. E. F. Deal, for Appellants:

I. The respondent is not entitled to recover any damages against the appellant in this

action because he was under an obligation to exercise due care in protecting himself from

harm while discharging duties under which his liabilities to danger arose. He failed to

exercise such care, and exposed himself to dangers that were so threatening or obvious as

likely to cause injury at any moment, and was, notwithstanding any promises made by his

superiors, guilty of such contributory negligence as to defeat his claim for injuries so

received. (District of Columbia v. McElligott, 117 U. S. 633; Indianapolis R. R. Co. v.

Watson, 114 Ind. 20; Eureka v. Bass, 81 Ala. 200; Woodward Iron Co. v. Jones, 80 Ala. 128;

Vogt v. Houstain, 81 Minn. 180; Patnode v. Harter, 20 Nev. 311; Illinois Steel Co. v. Mann,

170 Ill. 200; S. C. Ry. Co. v. Finlayson, 16 Neb. 584; 29 Pac. 1007; 39 Pac. 85.)

II. It is after all not what the respondent thought would be the personal result to him, but

what, under the admitted facts, a reasonable man should think, and, there being no dispute

about the facts, it is a question of law and not of fact as to whether the danger was so

imminent that no reasonable man would take such risks, or, if he did take them, whether ��


he can hold his employer responsible for his injuries, notwithstanding the notice he gave and

the promise that was made to him. (Indianapolis R. R. Co. v. Watson, 114 Ind. 20; Woodward

Iron Co. v. Jones, 80 Ala. 128.)

III. It seems to be well settled by the weight of authorities that if a servant, whose master

has promised to repair defects in machinery used by him within a reasonable time, continues

in the service after such reasonable time has elapsed, knowing that the master has failed to

keep his promise so made, the servant, by so continuing in the service, will be deemed to

have assumed the additional risk and cannot recover for injury happening to him after he

becomes aware of the master's failure to perform his promise. (2 Thompson on Negligence,

1010; Wharton on Negligence, sec. 220; Eureka v. Bass, 80 Ala. 200; 60 Am. Rep. 152; Ind.

R. R. Co. v. Watson, 114 Ind. 20; File Am. Reps. 578; Counsel v. Hall, 145 Mass. 468;

Krutchfield v. Richmond R. R. Co., 78 N. C. 300; Stephen v. Duncan, 73 Wis. 404; 9 Am. St.

Reps. 806.)

IV. There is in the complaint an allegation of deprivation of capacity to follow a special

avocation, but there is no allegation or proof of total incapacity or inability to pursue some of

the numerous other callings or businesses open to all, therefore it was incumbent on

respondent to prove to what extent he had sustained pecuniary loss, and this he could only do

by showing his earning capacity at and for some time before the alleged injury and the

expectancy or probable duration of his life and his probable or possible future earnings. One

seeking damages for loss must show the loss sustained, and, as respondent asks damages for

such loss, the burden is on him to prove the value thereof. "General damages or such damages

as the law holds to be the necessary result of the cause of action set forth in the declaration

need not be specially pleaded, but it may be recovered under the general allegation of

damage." (5 Enc. Pl. & Pr. 717; Treadwell v. Whittier, 80 Cal. 575; Stevenson v. Smith, 28

Cal. 102-3-4; Mallery v. Thomas, 90 Cal. 644-7.)

V. “A jury cannot give compensation for loss of time, remuneration for which is paid,

etc., unless there is an allegation in the complaint as to these matters." (Dabovich v.�6��

&+�3�


Emeric, 12 Cal. 171.) "Special damages which are the natural but not necessary result of the

injury complained of must be specifically alleged." (5 Enc. Pl. & Pr. 719.)

Torreyson & Summerfield and F. H. Norcross, for Respondent:

I. It was not essential that plaintiff should prove his earning capacity either before or after

his injuries, for the reason that such proofs merely aid the court and jury in measuring the

damages. (Watson on Dam. Per. Injuries; Logansport v. Justice, 74 Ind. 386; Fisher v.

Jansen, 128 Ill., 549; Rosencranz v. Railroad Co., 108 Mo. 9.)

II. Evidence tending to establish the probable duration of respondent's life, while properly

admissible to aid the court and jury in formulating a basis of problematic calculation, was not

at all essential to entitle respondent to recover fair and reasonable damages to be fixed by the

court and jury from the general evidence of the case. (Watson on Dam. Per. Injuries, 634;

Railroad Co. v. Binion, 107 Ala. 645; Fisher v. Jansen, 128 Ill. 549; Bartley v. Trorlicht, 49

Mo. App. 214; Rosencranz v. Lindell R. Co., 108 Mo. 9; Walker v. Erie Co., 63 Barb. 260.)

III. In no case does the law ever require a proof of a higher degree of certainty than the

nature of the particular case admits. (Thompson v. Louisville Co., 8 So. 406; Lake Shore Co.

v. Peterson, 86 Ill. 375; Squires v. Chillicothe, 89 Mo. 226; Asbury v. Charlotte, 34 S. E.

354; Shepard v. Milwaukee, 15 Wis. 318; Allison v. Chandler, 11 Mich. 548.)

IV. The law, adjusting its principles to the persuasion of human reason, does not prescribe

any definite rule for the determination of the amount of damages which should be awarded in

personal injury cases, but leaves their assessment to the honest, deliberate, and unprejudiced

judgment of the jury, coinciding with the opinion of the trial court, and their verdict and

judgment will not be disturbed by appellate courts unless the amount is so large as to induce a

reasonable person, upon hearing the circumstances, to declare it outrageously excessive, or as

to suggest, at first blush, passion, prejudice, or corruption on the part of the jury. (Watson on

Dam. Per. Injuries, 525-6; Solen v. V. & T. R.


R. Co., 13 Nev. 138; Wheaton v. N. B. & M. Co., 36 Cal. 590; City of Panama v. Phelps, 101

U. S. 451; Blair v. Ry. Co., 43 Iowa, 676.)

V. The mere opinion of the court that the damages awarded by the jury are excessive is

not sufficient to warrant a reversal by an appellate court unless they are, per se, so excessive

as to indicate passion or prejudice. (Watson on Dam. Per. Injuries, 328; 1 Sutherland on

Damages, 810; Solen v. V. & T. R. R. Co., 13 Nev. 138; Lee v. S. P. Co., 101 Cal. 121; Engler

v. W. U. Tel. Co., 69 Fed. 187.)

VI. It should be constantly borne in mind that, in addition to the permanency of

respondent's injuries, it was clearly proven that the much more serious damage of a lifetime

of pain and agony resultant from the injuries to his back will surely ensue. For such pain and

suffering the law does not leave the sufferer remediless. (Wedekind v. S. P. Co., 20 Nev. 301;

Railroad Co. v. Harmon, 147 U. S. 571; Engler v. W. U. Tel. Co., 69 Fed. 188.)

VII. “If a servant, noting a defect in the appliance or place, complains to the master, who

promises that it shall be remedied, he may, in reliance upon the promise, continue in the

service for a reasonable time thereafter without thereby assuming the risk, provided the

danger is not of so imminent a character that a person of ordinary prudence would refuse to

continue in the service." (Barrows on Negligence, 120; Bailey's Master's Liability for Injuries

to Servant, 206; Hough v. Railroad Co., 100 U. S. 215; Stephenson v. Duncan, 73 Wis. 404;

Union Mfg. Co. v. Morrissey, 40 Ohio St. 150; Laning v. Railroad Co., 49 N. Y. 521;

Patterson v. Railroad Co., 76 Pa. St. 389; Conroy v. Vulcan Works, 62 Mo. 35; Greenleaf v.

Railway Co., 33 Iowa, 52; Le Clair v. Railroad Co., 20 Minn. 9; Marsh v. Chickering, 101 N.

Y. 396; Indianapolis R. Co. v. Watson, 114 Ind. 20; Lyttle v. Railroad Co., 84 Mich. 289;

Missouri F. Co. v. Abend, 107 Ill. 44; Linch v. Mfg. Co., 143 Mass. 206; Buzzeell v. Mfg.

Co., 48 Me. 113; Miller v. Mining Co., 55 Pac. 58; Texas R. Co. v. Bingle, 91 Tex. 287;

Standard Oil Co. v. Helmick, 148 Ind. 457; Parody v. Railroad Co., 15 Fed. 205;

Indianapolis Ry. Co. v. Ott, 11 Ind. App. 564; Buswell on Personal Injuries, pp. 434, 436.)

VIII. The time in which the servant is justified in con��

��!��


tinuing in his employment in reliance upon the master's promise to repair, without assuming

the risks, is such period of time as would not preclude all reasonable expectation that the

promise might be kept. (Hough v. Railroad Co., 100 U. S. 213; Stephenson v. Duncan, 73

Wis. 404; Shearman & Redfield on Negligence, 4th ed. sec. 215; 107 Ill. 44; 23 Ind. App.

78.)

IX. “Ordinarily whether a servant had waived the neglect of the master, and assumed the

risk after promise of repair, is a question for the jury." (Bailey's Master's Liability for Injuries

to Servant, 209; Laning v. Railroad Co., 49 N. Y. 521; Stephenson v. Duncan, 73 Wis. 407;

Union Mfg. Co. v. Morrissey, 40 Ohio St. 150; Hawley v. R. Co., 82 N. Y. 370; Missouri F.

Co. v. Abend, 107 Ill. 44; Patterson v. Railway Co., 76 Pa. St. 389; Hough v. Railroad Co.,

100 U. S. 213; Belair v. Ry. Co., 43 Iowa, 662; Buswell on Personal Injuries, pp. 435-6; 40 L.

R. A. 789, note c; 64 Minn. 449; 26 N. E. Rep. 1086.)

X. The affidavit for continuance is fatally defective in failing to show that there are not

other persons by whom appellant could prove the facts that were expected to be proven by the

sick witness. (State v. Marshall, 19 Nev. 240; State v. O'Flaherty, 7 Nev. 155; Hodges v.

Marsh, 31 N. E. 151; 4 Enc. Pl. & Pr. 887; Comp. Laws, 3255; Dist. Ct. Rule XII.)

XI. A new trial should not be granted on account of the refusal of the court to grant a

continuance when the affidavit of the sick witness himself has not been presented to the court

showing that he would testify to the facts desired to be proven by him, nor any showing made

to the court disclosing why such affidavit has not been procured. (Pilot Creek Co. v.

Chapman, 11 Cal. 161; People v. DeLacy, 28 Cal. 590; People v. Jocelyn, 29 Cal. 563;

Hayne on New Trial & Appeal, 63; Abbott's Trial Brief, Civil Jury Trials, 29.)

XII. A new trial should not be granted on account of the refusal to grant a continuance for

the reason that it was never shown at any time that the attendance of the sick witness could be

assured with a reasonable degree of certainty when his testimony would be desired. (Abbott's

Trial Brief, Civil Jury Trials, 28; Smyth v. Wilmington Co., 40 Atl. 189; $��@��3��

I��'9�,��-&��B�� 0�� '9�,��/��9''��)��/��'9�,��>��0��


Home Ins. Co. v. Galley, 43 Neb. 71; Rowland v. Shepard, 43 N. W. 344; Kelly v. Weir, 43

N. Y. Sup. 497; Campbell v. McCoy, 3 Tex. Civ. App. 298.)

E. R. Dodge and W. E. F. Deal, for Appellant, in reply:

I. In note e, 49 L. R. A. p. 38, under subhead "Contributory negligence inferred from

servant's knowledge of defects alone," it is said: "On general principles it is clear that, where

there can be no reasonable doubt that a person in a servant's position, who knew of the defect

in question, must also have understood the resulting risk, it may be ruled, as a matter of law,

that, for the purpose of defense, his information was complete. That appliance may be so

grossly or clearly defective that the servant must have known of the risk to which it exposed

him, was laid down in Sims v. Lindsay, (1898) 122 N. C. 678, 30 S. E. 18." See other

authorities thereunder cited. In a Montana case the supreme court, in holding that plaintiff, a

section hand on a defective car that had been promised to be replaced, could not recover, in

part said: "He never refused to use the car (hand car); he was never threatened to be

discharged if he did not use it." (McAndrews v. Montana Union Ry. Co., 39 Pac. 85-87.)

II. The common law being the rule of decision in our courts, the following, from the

second and last edition of Buswell on Personal Injuries, may aptly be quoted in support of

appellants' contention in the present case (see sec. 204): "By the common law, it is a part of

the implied contract between the employer and employee that the latter assume the ordinary

risks of the employment, which are apparent, and which he has the opportunity to detect. The

principle is that where the servant has a good an opportunity as the master to ascertain and

avoid the danger for himself, he will have no recourse against the master in case he is injured

thereby; and he accepts the employment upon this implied condition." (Priestly v. Fowler, 3

M. & W. 1; William v. Clough, 3 H. & N. 258; Griffiths v. Gidlow, 3 H. & N. 648; Paterson

v. Wallace, 1 Macq. 748; Seymour v. Maddox, 16 Q. B. 326, 20 L. J. Q. B. 327; Dynen v.

Leach, 26 L. J. N. S. Exch. 221.)

III. “It is not the province of courts to enforce the arbi��

�� M


trary edicts of juries, when it is apparent that their verdicts have been influenced by their

passions and prejudices rather than by the law and the facts." (Quigley v. C. P. R. R. Co., 11

Nev. 350-73.)


E. R. Dodge and W. E. F. Deal, for Petitioner:

I. The district court erred in refusing appellant's application for a postponement of the

trial, and its refusal was an abuse of its judicial discretion, for which this court ought to grant

a new trial. (Sec. 3255, Comp. Laws of Nev.; Dist. Ct. Rule XII; Choate & Brown v. The

Bullion M. Co., 1 Nev. 73; Beatty v. Sylvester, 3 Nev. 231; Brown v. Warren, 17 Nev. 421;

Yori v. Cohn, 26 Nev. 206.)

II. “The opinions of scientific witnesses are admissible in evidence, not only where they

rest on the personal observation of the witness himself, and on facts within his own

knowledge, but even when they are merely founded on the case as proved by the other

witnesses at the trial." (Taylor's Law of Evidence, 6th ed. sec. 1278, vol. 2, p. 229; Turnpike

Co. v. Leonhardt, 66 Md. 77.) "This knowledge may be derived from experience or from

direct study." (Am. & Eng. Enc. Law, vol. 12, p. 425.) "This knowledge may be derived from

experience or from direct study." (Am. & Eng. Enc. Law, vol. 12, p. 425.) "An expert witness

speaking upon a question of science may be asked in the presence of a given effect of what

cause either was or might be the resultant." (Meyer v. New York & H. R. R. Co., 98 N. Y. 645,

affirming 32 Hun, 644.)

III. Every hour that plaintiff ran this train, after knowing the defective condition of the

machinery, he was committing a wrong against the public, and would have been equally

liable with the defendant for any damage thereby occasioned to third parties. This is an

elementary proposition. (Buswell on Personal Inj., sec. 31; 5 Thompson on Corporations, sec.

6288; Cooley on Torts, p. 142.)

IV. Respondent and the appellant became joint wrong-doers from the time the defendant

was notified of the defects in the machinery, and the question arises: Can one wrong-doer

recover of his joint wrong-doer for injuries received in consequence of their wrong-doing?

Public policy forbids. (Spencer v. Harvey, 22 Cal. 336; Gaston v. Drake, 14 Nev.


181.) Not only are such contracts void, but the court on its own motion will deny all relief as

soon as the facts become apparent. And such action of the court does not depend upon any

formal pleading of the facts rendering the contract void. (Morrill v. Nightingale, 93 Cal. 452;

Kremer v. Earl, 91 Cal. 112; Prost v. More, 40 Cal. 347.) On such contracts the courts leave

the parties to them exactly where they find them, refusing all relief. (Vulcan Powder Co. v.

Hercules Powder Co. 96 Cal. 510.) The engineer was bound at all times to exercise the

greatest vigilance, caution and care to protect his passengers, but here we find that he entered

into a contract with the company to continue to run the engine after he knew it was

dangerous, and he seeks to recover on this kind of a contract.

V. In this case certainly when the springs got weaker, so that they would let the bolster go

further and invariably catch when the tender rocked and raised the wheels off the track, the

defect was so glaring that, with the utmost care and skill of respondent, the danger was still

imminent, that no one but a reckless man like respondent would have incurred. This court has

just as much right to pass upon this matter as a question of law, the facts undisputed, as the

jury had to decide the facts. (Woodworth v. Jones, 80 Ala. 128; Indianapolis R. R. Co. v.

Watson, 114 Ind. 20; Pittsburgh v. Spencer, 98 Ind. 186; Counsel v. Hall, 145 Mass. 468;

Wabash v. Locke, 112 Ind. 404; Holmes' Common Law, 120.)


This action was brought by the respondent to recover from appellant damages for personal

injuries, physical pain, and mental anguish caused and alleged to have been suffered by him

in a wreck while in the employment of appellant as engineer of one of its engines on the 30th

day of January, 1900, of which respondent was in charge at the time.

The material averments of the complaint, briefly stated, are that on or about the 15th day

of January, 1900, while acting as a locomotive engineer, he discovered that his engine was in

need of repair by reason of the fact that the springs connecting with the bolsters supporting

the tank on the ��

�� 6�


tender had become weakened from use, so that the tank was permitted to roll from side to

side when the engine was in motion; that upon discovering the condition of the springs he

notified E. Gest, the general manager of appellant, of such condition, and the effect thereof,

and requested him to have them repaired; that about the same time he gave a similar notice to

and made the same request of E. Smith, appellant's master of transportation; also at the same

time notified Gest and Smith of what was necessary to remedy the defect, namely, to fasten

pieces of iron upon the ends of the bolsters, so as to prevent the tank from rolling, and by

attaching safety chains, one at each corner of the truck, to prevent the trucks from turning

under the tender.

Thereupon Gest and Smith informed respondent that the engine would be repaired as

requested.

Shortly thereafter, and on the 30th day of January, 1900, while respondent was running the

engine, and by reason of the defect, the tank rolled to such an extent that the front bolster of

the tender caught in the frame of the truck of the tender in such a way that when the tank

rolled in the opposite direction it lifted the truck from the track, and the truck turned under

the tender, causing a derailment of the engine, throwing it over an embankment, and throwing

plaintiff from the engine so that he fell beneath a portion thereof, and was injured to the

extent of having two ribs on the left side broken and crushed into the left lung, the muscles of

the right arm bruised and burned, a blow received upon the head, causing the right ear to

become affected, so that it became necessary to lance the drum thereof; that the injury was

caused to respondent by reason of the negligence of appellant in failing to repair after being

notified by respondent of the defect.

The answer of the appellant put in issue all the material allegations of the complaint, and,

in addition thereto, set up other defenses not necessary to be stated, as no questions are

involved in this appeal under the same.

The case was tried before a jury, and a verdict in favor of the respondent returned for

$15,500 damages. From the judgment rendered thereon, and from the order denying

appellant's motion for a new trial, this appeal was taken.


The material facts controlling the questions made on this appeal under the assignment of

errors are as follows: The respondent, at the time of the trial, was 37 years old. During a

period of fifteen years preceding he was a locomotive engineer continuously in the

employment of the appellant. On or about the __ day of January, 1900, he discovered that the

tank of the tender of the locomotive which he was running was rolling from side to side,

caused by a gradual weakening of the springs under it from use, and that there was danger

that the bolster supporting the tank would catch under the arch bar of the truck, and the tank

rolling in the opposite direction would lift the truck from the track and derail the tender.

On or about the 21st day of January, 1900, respondent called the attention of the train

master and general manager of the appellant to the defect, and at the same time explained

what was necessary to remedy it. The train master at that time informed respondent that he

would see the general manager, and have it fixed. It required two days to make a trip over

appellant's road from Reno and return.

On or about January 25, 1900, the respondent went to the office of appellant's general

manager, and notified him that the tank was rolling too much, and that it ought to be fixed

right away. The general manager informed him that he would have the needed repairs made

right away. Relying upon the promises of the officers of appellant, the respondent continued

to run his locomotive until the 30th day of January, 1900, at which time, on his return trip to

Reno, when coming down a grade upon a curve in the road at the usual rate of speed, the

tender was derailed from the defect, the engine thereby thrown from the track over an

embankment and upon the respondent, inflicting the injuries complained of.

The following injuries to respondent were occasioned in the wreck: A blow upon his head,

causing almost deafness of a permanent character in his right ear; a burn upon his right leg; a

burn upon his right arm; two ribs broken, detached from the sternum, and depressed upon the

left lung; a permanently painful sprain and separation of the muscular fibers of the back,

rendering it permanently weak, causing lateral curvature of the spiral column, and

permanently dis��

��


abling respondent from following his avocation of locomotive engineer or performing

ordinary manual labor.

There was evidence before the jury tending to show that respondent's hearing would

gradually grow worse, and that the injury to the muscles of the back would cause continuous

pain in the future.

There was also evidence tending to show that respondent's earning capacity as a

locomotive engineer was about $100 per month. The engine and tender in use at the time of

the wreck were practically new, having been in use since the 13th day of December preceding

the accident.

When the cause was called for trial, the appellant applied to the court for a continuance.

The application was based upon the absence of a witness who was sick. The refusal of the

court to grant a continuance has been assigned as error.

It appears from the record that the witness on account of whose absence the continuance

was sought was not present when the accident causing respondent's injuries happened, and

was not even at that time within this state. His knowledge of the facts expected to be proven

by him as set out in the affidavit in support of the motion could have been based upon hearsay

alone, and such testimony was not even admissible.

The other testimony of the absent witness, relating to the incompetency of the respondent

to properly and skillfully run, operate, and control a locomotive engine with a train of cars

thereto attached with compressed air by means of a Westinghouse air brake, was not material

to any issue made by the pleadings (Comp. Laws 1900, sec. 3255); and, even if material, the

record shows that such expert testimony could have been supplied by other witnesses familiar

with the use of such mechanical appliances. It appearing that there was no abuse of discretion

in the refusal to grant the continuance (8 Enc. Pl. & Prac. 828; Choate v. Bullion Mining Co.,

1 Nev. 73), the action of the trial court thereon must be sustained.

Upon the facts stated, the appellant contends that continuance in the service by respondent

notwithstanding the promise of appellant to repair as a matter of law was such contributory

negligence as to defeat his claim for damages.


For this reason it is earnestly insisted by appellant that the verdict is against both the law and

the evidence.

While it may be true that it is the duty of the court in a proper case, upon the facts found,

to declare as a matter of law that there was such contributory negligence as would relieve the

master of all legal liability, yet such rule should be applied only in cases where, from the facts

found, such inferences only can be drawn.

The general rule applicable to cases of this character, established by the great weight of

authority, is that, if the servant, noting a defect in the machinery, complains to the master of

such defect, who promises that such defect shall be remedied, the servant may, in reliance

upon the promise, continue in the service for a reasonable time thereafter without thereby

assuming the risk, provided the danger is not of so imminent and immediate a character that a

person of ordinary prudence would refuse to continue in the service. (Hough v. Railroad Co.,

100 U. S. 215, 25 L. ed. 612; Stephenson v. Duncan, 73 Wis. 404; Manufacturing Co. v.

Morrissey, 40 Ohio St. 150; Laning v. Railroad Co., 49 N. Y. 521; Patterson v. Railroad Co.,

76 Pa. St. 389; Conroy v. Vulcan Iron Works, 62 Mo. 35; Greenleaf v. Railroad Co., 33 Iowa,

52; Indianapolis Railway Co. v. Watson, 114 Ind. 20; Railway Co. v. Ott, 11 Ind. App. 564;

Marsh v. Chickering, 101 N. Y. 396; Lyttle v. Railroad Co., 84 Mich. 289; Missouri Furnace

Co. v. Abend, 107 Ill. 44; Linch v. Manufacturing Co., 143 Mass. 206; Railroad Co. v.

Bingle, 91 Tex. 287; Parody v. Railroad Co., (C. C.) 15 Fed. 205.)

Upon the authorities above cited is also based the general rule that the time in which the

servant is justified in continuing in the service in reliance upon such promise without

assuming the risk is such a period as would not preclude all reasonable expectation that the

promise might be kept, and this is ordinarily a question for the jury.

We cannot, therefore, hold, as a matter of law, neither are we able to say as a matter of

fact, upon this record, as against the verdict of the jury, that the danger was so imminent and

immediate that the respondent, as a prudent man, should have refused to continue in the

service notwithstanding appellant's promise to repair.


As a matter of fact, the tank set up on springs, when filled with water and fuel, would

necessarily roll to some extent when running upon the road. The tender was new, and had

been used only a few weeks before the accident. The rolling of the tank was the result of the

gradual weakening of the springs from use. When respondent first called the attention of

appellant's officers to the defect, it was only “getting dangerous.” That the danger was not

imminent and immediate at that time appears from the fact that he continued to run the engine

and tender without accident. Even after he thought it was rolling too much, and had notified

appellant's officials on the 25th day of January, he continued to run it without accident.

The danger, therefore, at the time the promise was made, was not imminent and

immediate, but, measured by the defect shown, was progressively dangerous. It will not do to

say that because respondent knew the machinery was getting dangerous, and because the

accident did happen, as a matter of law and a matter of fact the danger was immediate and

imminent. To so hold would absolutely destroy the legal effect of the master's promise under

the rule stated. (Conroy v. Vulcan Iron Works, 6 Mo. App. 102.) Under the facts of this

record it was for the jury to say, under the rule stated, whether the danger was so imminent

and immediate that the respondent, as a reasonably prudent man, would have refused to

continue in the service notwithstanding appellant's promise to repair, and whether he did

continue under such promise such a period of time as to preclude all reasonable expectation

that the promise would be kept.

It is next urged by appellant that the damages awarded are so excessive as to appear to

have been given under the influence of prejudice. There was evidence showing that as the

result of the accident the respondent, who was about 36 years of age, received a blow upon

his head, causing permanent partial deafness of the ear, a burn upon his right leg, a burn and

bruise upon his arm, two ribs broken from the sternum and depressed upon the lung, a

permanently painful strain and separation of the muscular fibers of the back, rendering it

permanently weak, and causing a lateral curva��

��


ture of the spinal column, permanently disabling respondent from following his avocation as

a locomotive engineer, or performing ordinary manual labor. There was also evidence tending

to show his earning capacity as a locomotive engineer. The jury was justified in taking into

consideration all these facts in estimating the amount of damages, notwithstanding there was

evidence tending to show that the injuries were neither so extensive, permanent, nor painful

as claimed by respondent.

“There being no absolute fixed legal rule of compensation, appellate courts ought not to

interfere with the verdict unless it clearly appears that there has been such a mistake of the

principles upon which the damages were estimated, or some improper motive or bias

indicating passion or prejudice upon the part of the jury.” (Solen v. Railroad Co., 13 Nev.

138.)

Taking all these facts into consideration, we cannot say that it clearly appears that there

has been such a mistake of the principles upon which the damages were estimated or some

improper motive or bias indicating passion or prejudice upon the part of the jury.

“The amount of the verdict—although perhaps greater than we would have given—is not,

in our opinion, inconsistent with the exercise of an honest judgment upon the part of the jury,

whose special province it was to determine this question.” (Solen v. Railroad Co., supra.)

An examination of the other assignments relating to the exclusion and admission of

evidence convinces us that they are without merit, and therefore require no notice in this

opinion.

The judgment and order appealed from are affirmed.


Fitzgerald, J.:

I dissent. In two instances fatal errors were committed at the trial: (1) Appellant's motion

for a continuance should have been granted, the showing therefor being sufficient. The case

cited in the prevailing opinion, to wit, Choate v. Mining Co., 1 Nev. 73, is against, instead of

in ��


favor of, the doctrine it is cited to support. And (2) in several instances appellant's testimony

was erroneously ruled out.

By the Court:

Rehearing denied.


____________

��26 Nev. 430, 430 (1902) State v. Mack��

[No. 1624.]

THE STATE OF NEVADA, ex rel. THE BULLION AND EXCHANGE BANK, Relator, v.

C. E. MACK, as District Judge, Etc., Respondent, and DORA WILLIAMS, as Executrix,

Etc., Intervener.

Mandamus—Intervention—Claim Against Estate—Disqualification of Judge.

1. Comp. Laws, 1900, sec. 3694, provides that any person shall be entitled to intervene in an action who has an

interest in the matter in litigation, in the success of either of the parties, or an interest against both. A

corporation of which the district judge was a stockholder brought mandamus to compel him to pass upon a

claim against an insolvent estate: Held, that another claimant had sufficient interest to intervene by asking

that he be compelled to call another judge.

2. Comp. Laws, 1900, sec. 2545, provides that a judge shall not act in a proceeding in which he is interested.

Section 2869 provides that no district judge shall admit any will to probate, or grant letters, when interested

as next of kin, legatee, or devisee, when named as executor or trustee, or when a witness to a will. Section

2870 provides that when precluded from acting from the above causes, or “when he shall in any manner be

interested,” he shall call in another judge to hold court: Held, that a judge who was a stockholder of a

corporation presenting a claim against an estate was disqualified from passing thereon, and should call in

another judge to act.

3. No formal application for the calling of a qualified judge to pass upon a claim against an estate was necessary

where the record disclosed that the acting judge was disqualified.

4. The effect of the disqualification of a judge upon probate proceedings before such disqualification was

disclosed will not be considered where no such question is presented by the record.

Original mandamus by The State, on the relation of The Bullion and Exchange Bank,

against C. E. Mack, District Judge. Dora Williams, as the administratrix of the estate of Evan

Williams, deceased, intervenes. Application of relator denied and that of intervener granted.


��26 Nev. 430, 431 (1902) State v. Mack��

Trenmor Coffin, James G. Sweeney and A. E. Cheney, for Intervener, on right of

intervention in mandamus proceedings:

I. All the rules of practice and procedure applicable to ordinary civil actions are applicable

to proceedings in mandamus, so far as the nature and circumstances of a somewhat summary

proceeding will permit. (State v. Gracey, 11 Nev. 223, and authorities there cited; State v.

Curler, 26 Nev. 347; In re Bohnet v. The Mayor, 150 N. Y. 280; Bliss on Code Pleadings, 3d

ed. sec. 448.)

II. “Any third person having an interest in the success of the relator or respondent in a

mandamus suit, or an interest opposed to both, may intervene in the suit.” (13 Enc. Pl. & Pr.,

p. 665.) “In order to be entitled to intervene, it is enough to have an interest in the success of

either of the parties, or an interest opposed to both.” (State v. Pillsbury, 31 La. Ann. 1, 8-9.)

III. We have no case decided in recent years where intervention was refused upon the

ground that intervention was not permissible in mandamus proceedings. (State v. Wright, 10

Nev. 167, 172-3; Owens v. Colgan, 97 Cal. 454; People v. Austin, 46 Cal. 521-2; State v.

Patterson, 11 Neb. 269; State v. Matley, 17 Neb. 564; White's Bank v. Farthing, 101 N. Y.

344; Brennan v. Hale, 131 N. Y. 166, 168; People v. Supervisors, 135 N. Y. 528; In re

Bohnet v. The Mayor, 150 N. Y. 279; State v. Williams, 99 Mo. 291, 293-5; State v.

Minneapolis & St. L. Ry. Co., 39 Minn. 219, 222-3; Smith v. Power, 2 Tex. 57; Watkins v.

Kirchain, 10 Tex. 375; Wright v. Neathery, 14 Tex. 211; Commonwealth v. Martin, 170 Pa.

St. 118, 123; State v. Gratiot, 17 Wis. 245-7; Towle v. State, 110 Ind. 120; Livingston v.

McCarthy, 41 Kan. 20; Beecher v. Anderson, 45 Mich. 543, 547; Merrill on Mandamus, secs.

242a, 243, and authorities cited.)

IV. Intervention in mandamus is readily permitted where there is an allegation of

collusion or fraud. (State v. Matley, 17 Neb. 564; State v. Gratiot, 17 Wis. 245.)

V. Where it appears that other parties are necessary to a complete determination of a

controversy in mandamus the court may order them brought in, or where it appears that other

parties have an interest in the result of an action in ��

��

��26 Nev. 430, 432 (1902) State v. Mack��

mandamus, the court may order a notice served upon them of the pendency of the

proceedings. (State v. Board of Equalization, 10 Iowa, 160; Elisha Strong, Petitioner, 20

Pick. (Mass.) 484; Cross v. W. Va. Ry. Co., 34 W. Va. 747; White's Bank v. Farthing, 101 N.

Y. 348; Merrill on Mandamus, secs. 242a, 243, and authorities cited.)

Alfred Chartz, for Relator:

I. The right of intervention is granted by Section 3694, Compiled Laws of Nevada.

Petitioner must have an interest in the matter in litigation, in the success of either of the

parties to the action, or an interest against both. The right cannot be enlarged.

II. The first inquiry is: What is the matter in litigation? To ascertain this, we must go to

the affidavit praying for the writ of mandate. The prayer is that this court command

respondent to either approve or reject relator's claim filed against the estate of Evan Williams,

deceased. Judge Mack answers that he does not act upon said claim because he is a

stockholder in the Bullion and Exchange Bank, the claimant. The issue thus joined involves

the construction by this court of Section 2896, Compiled Laws of Nevada, which is the real

and sole object of the action, and there is no “matter in litigation” for the petitioner for

intervention to have any interest in, either in the success of either party, or any interest against

both.

III. The only interest said petitioner can possibly have in the action or proceeding is the

same interest that every citizen has in a correct decision by this court as to the jurisdiction and

authority of the district judges of this state, sitting as probate judges, to either approve or

reject claims filed against the estate in which such judge may have an interest, and it is only

upon the presumption that this court will not construe said section correctly, or a desire upon

the part of petitioner for intervention that this court construe this section incorrectly, that any

reason can be bound for seeking to intervene.

IV. This court is not called upon to decide that the relator's claim is good, or bad, or is

secured or unsecured, and it is not called upon to decide anything with reference to ��<3�� 5

��26 Nev. 430, 433 (1902) State v. Mack��

the claim of petitioner for intervention. “Cestui que trust are entitled to intervene to protect

their interests in suits affecting the trust property, but it has generally been held that such

intervention will be allowed only when the trustee has been guilty of fraud or negligence, or

is incompetent properly to represent the beneficiaries.” (17 Am. & Eng. Enc. Law, 2d ed. p.

184.)

V. The authorities cited by counsel do not seem to dispute the right, but they fail to decide

the point. The Enc. of Pl. & Pr., vol. 13, p. 665, stands as a text authority that the right does

exist, and I cannot conceive of any good and valid reason why it should not exist, as well as

in any other civil proceeding, but limited to the case made by the affidavit for relator and the

writ, and the answer to it. “The investigation should be limited to such facts as are necessary

to determine the rights of the parties properly before the court.” (State v. Wright, 10 Nev.

173.)

F. M. Huffaker and William Woodburn, for Respondent:

I. The right to intervene and the mode of exercising such right is purely statutory. (Chase

v. Evoy, 58 Cal. 348, 358.)

II. It seems to me clear that the legislature in enacting Section 3694 had in view Sections

3096 and 3097, but not 3543, and therefore no right to intervene in mandamus is given by our

statute.

III. In any event petitioner is not within the statute. “The matter in litigation,” between

relator and respondent, is the refusal of respondent, as judge, to do what the law enjoins in the

particular mentioned in the application for the writ. In this matter what possible interest has

petitioner with relator, or respondent, or adversely to both? This court has said what this

interest must be: “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 gain or lose

by the direct legal operation of the judgment which might be rendered in the suit between the

original parties.” (Harlan v. Eureka M. Co., 10 Nev. 92, reaffirmed in State v. Wright, 10

Nev. 172.)

IV. The relief sought by relator is to have respondent act in probate and pass upon its

claim. The relief sought �� 6��/��

��26 Nev. 430, 434 (1902) State v. Mack��

by petitioner is to have this court require respondent to call another judge to take jurisdiction

of the remaining matter of the settlement of the estate of Evan Williams, deceased. Is not,

then, the proposition of petitioner entirely distinct from the matter in litigation? Consequently

cannot be permitted to intervene.

V. Jurisdiction of the estate of deceased persons is a constitutional grant to the district

courts. Pursuant to this the legislature says: “The district judge of a decedent's county shall

have exclusive jurisdiction of the settlement of his estate.” (Section 2786, Compiled Laws.)

Then a district judge having jurisdiction of an estate cannot call another judge to sit in such

estate for any purpose, and if such other judge were called and came, he would be without

jurisdiction.

VI. The legislature has also said what shall oust a district judge of all jurisdiction of an

estate. (Section 2867, Compiled Laws.) Nothing of which is alleged in the petition, but were

it, I submit, it could not be inquired into by this court on mandamus.

VII. However, if a district judge refuses to act for want of jurisdiction, this court, before

directing him to act by mandamus, will determine he has jurisdiction. (Cavanaugh v. Wright,

2 Nev. 166; Floral Springs Water Co. v. Rives, 14 Nev. 431.) And this court has expressly

said, speaking by Justice Belknap: “The writ of mandamus lies to compel an inferior tribunal

or board to exercise its judgment and render a decision when failure of justice would

otherwise result from delay or refusal to act. Their conclusions may be reviewed and, if

erroneous, corrected, but not by this process.” (State v. Comrs. Eureka Co., 8 Nev. 309.) To

the same effect are State v. Wright, 4 Nev. 119; Kean v. Murphy, 19 Nev. 89; 14 Am. & Eng.

Enc. Law, 108 (1st ed.), and cases. Petitioner asks nothing of this, and cannot for this reason

intervene.

VIII. If respondent is now disqualified to proceed further he was ab initio unqualified to

assume jurisdiction; then there is no administration of said estate, no will probated, and no

claims against this estate, and nothing before this court. Every act of respondent in said estate

would be declared void, and another district judge would have to be called to, ab initio,

exercise jurisdiction. This necessarily ��

��26 Nev. 430, 435 (1902) State v. Mack��

involves the jurisdictional right of respondent concerning said estate, but, having acted,

assuming jurisdiction, this court on mandamus will not inquire into this.

IX. The legislature having plenary power, concerning this settlement of estates, to say

what shall be done, when and by whom, has positively said that the judge having jurisdiction

and his administration, and no one else, shall pass upon all claims filed. (Sec. 2896, Comp.

Laws.)

X. Petitioner cannot be permitted to intervene for the further reason that she asks this

court to disregard a positive law of legislature in probate, before cited, that the district judge

of a decedent's county shall have exclusive jurisdiction of the settlement of his estate, and all

she asks is, respondent having proceeded thus far with the settlement, that another district

judge be called to finish the settlement. For this there is no authority of law.

XI. Petitioner has entirely mistaken her remedy. Instead of seeking her object by

mandamus, she should have come by certiorari, for by this only can it be determined whether

an act of a judge is in excess of his jurisdiction. (Maynard v. Railey, 2 Nev. 313; Phillips v.

Welch, 12 Nev. 158; Esmeralda Co. v. Dist. Ct., 18 Nev. 438; Fletcher v. Osburn, 24 Nev.

187.)

Trenmor Coffin, James G. Sweeney and A. E. Cheney, for Intervener, in reply:

I. “Intervention in mandamus is readily permitted where there is an allegation of collusion

or fraud.” (State v. Matley, 17 Neb. 564; State v. Gratiot, 17 Wis. 245; State v. McCullough,

20 Nev. 154-158; Lord v. Veasie, 8 How. U. S. 251; Cleveland v. Chamberlain, 1 Black, 419;

People v. Pratt, 30 Cal. 223; Fletcher v. Peck, 6 Cranch, U. S. 147; 12 Enc. Pl. & Pr., p. 166,

and authorities cited.)

II. How is the court to know whether petitioner for leave to intervene has such an interest

as contemplated in the statute to entitle her to intervene, if she be not first allowed leave to

intervene, so that she can present to the court the facts on which she bases her right to

intervene” This was the procedure adopted in State v. Wright, 10 Nev. 167, and when the

court had heard the merits in said action, and found them to be unmeritorious, it dismissed the

petition.

��26 Nev. 430, 436 (1902) State v. Mack��

III. We understand the law and the practice to be that the district court and judge shall

decide that this court may review decisions already made, but should not give advice in

advance as to what decisions should be made. Even collusion for a laudable purpose will not

justify this court to give such advice in advance of a real and contested issue. (State v.

McCullough, 20 Nev. 154.)

IV. The judge's belief as to whether he is or is not qualified does not affect the fact. He

cannot remove the disqualification by disposing of his stock in the corporation. (Adams v.

Miner, 121 Cal. 372.)

V. Relator and intervener are both creditors of the estate of Evan Williams. They both

belong to the same class, that of creditors. Persons who belong to a class represented in a suit

may be heard on petition or motion. (11 Enc. Pl. & Pr. 499, notes and authorities cited.)

VI. Intervener, as executrix, creditor and devisee, has both the interest of a receiver of a

fund which is in the custody of the court, and of a creditor who is interested in the distribution

of the fund. Her interest in either of such capacities is sufficient to entitle her to intervene and

secure a proper administration and distribution of the fund, with all of the facts before the

court to enable it to act and decide justly and intelligently. (Ex parte Printup; Ex parte Elliott,

87 Ala. 148; Coffee v. Greenfield, 55 Cal. 382; Horn v. Volcano Water Co., 13 Cal. 62; 11

Enc. Pl. & Pr., p. 499, notes and authorities cited.)

VII. The court should grant leave to a party desiring to intervene unless it is evident that

there is no legal foundation for the request. (Savings Bank v. Circuit Judge, 98 Mich. 173.)

VIII. Intervener alleges and relator admits collusion. In such case intervention should be

allowed. (State v. Matley, 17 Neb. 564; State v. Gratiot, 17 Wis. 245.)

Alfred Chartz, for Relator, on the original petition:

I. Petitioner for intervention has been permitted to intervene, but she must take the suit as

she finds it. (Vol. 17, p. 185, 2d ed. Am. & Eng. Enc. Law, and authorities there cited.) (a)

She is bound by the record of the case at the time of her ��

��26 Nev. 430, 437 (1902) State v. Mack��

intervention. (Id.) (b) If she claims property in controversy she can interfere only so far as is

necessary to prove her right to it. She cannot under such circumstances contest the plaintiff's

claim against the defendant, or raise an issue as to the formality of the pleadings, or the

regularity of the procedure in the principal cause, nor can she plead exceptions having for

their object the dismissal of the action. (Id.) (c) She cannot change the issue between the

parties, nor raise a new one. (Id.) (d) She cannot insist upon a change in the form of the

proceedings, nor delay the trial of the action. (Id.)

II. This court having decided that intervener has such interest in the matter in litigation

that she would either gain or lose by the direct legal operation of the judgment which might

be rendered in either dismissing or issuing the writ, and intervener being limited to the case

made, her right is therefore limited to the presentation of authorities and to argument as to

whether respondent should or should not act upon the claim of relator.

III. The answer of respondent to the affidavit of relator and prayer for the writ admitting

the truth of each and every allegation in the affidavit, this court is bound to find the facts to be

as alleged, and, being limited by the case made, this court cannot go outside of the record to

hear any testimony whatsoever, for any purpose whatsoever.

IV. Section 133 of the probate act of 1861, being general section 2800 of Bailey &

Hammond's compilation, provided that a probate judge having a claim against an estate,

could present the same, and that he could appoint a probate judge of an adjoining county to

either approve or reject the same. If the contention of counsel for intervener is correct, that no

man should be judge of his own case, and that even an act of parliament making a man a

judge of his own case would be unconstitutional, what right would a probate judge have to

designate another probate judge to judge of his case? The very act of making such designation

by the probate judge having jurisdiction is an act of judgment in his own case—as fully so as

passing upon a claim of a corporation in which he owns some of the stock. In 1897 the

legislature passed a new probate act and repealed the old, and left out 0��+=88��

��26 Nev. 430, 438 (1902) State v. Mack��

Section 2800 referred to. Section 110 of the new act provides that any district judge may

present a claim against the estate and have the same rights and remedies in reference thereto

as any other creditor, thus providing that it shall go through the same channels, and the same

chanceries, and take the same course as any other claim. Section 111 provides that all claims

shall be presented to the district judge for his approval or rejection. This, then, brings us to

the rule laid down in Matter of Ryers, et al., 72 N. Y. 15: “That where a judicial officer has

not so direct an interest in the cause or matter as that the result must necessarily affect him to

his personal or pecuniary loss or gain, or where his personal or pecuniary interest is minute,

and he has so exclusive jurisdiction of the cause or matter by constitution or statute, as that

his refusal so act will prevent any proceeding in it, then he may act so far as there may not be

a failure of remedy, or, as it is sometimes expressed, a failure of justice.”

V. Judge Mack's action in either approving or rejecting relator's claim would in no wise

effect intervener's remedy. His interest is minute. He has exclusive jurisdiction of the matter

by statute.

F. M. Huffaker and William Woodburn, for Respondent:

I. The question involved in this proceeding arises from a condition in probate which is to

be resolved under the provisions of the probate law only, as it relates to the settlement of an

estate, which is vested exclusively in the district court of the county of the residence of the

decedent (Section 1, Stats. 1897, p. 119). The judge of this district court is charged with

certain duties in probate, obtaining jurisdiction of an estate, that he cannot delegate to any

other judge when this condition exists. By virtue of the legislative will the jurisdiction is

exclusive and the judge must perform the duties prescribed, and should he call another judge

such judge would have no jurisdiction. Counsel for intervener say: “The respondent, being

interested in the settlement of the estate of Evan Williams, deceased, is disqualified to act

therein, other than to perform the duty enjoined by law of calling a district judge of another

district to hold court in his county,” ��3��!��0��

��26 Nev. 430, 439 (1902) State v. Mack��

citing Cutting's Statutes, secs. 2870, 2545. This, to say the least, is a misleading statement, for

Section 2870 relates to Section 2869 only, which is: “No district judge shall admit to probate

any will or grant letters, etc., in any case where he shall be interested as next of kin to the

deceased, or as a legatee or devisee under the will, or where he shall be named as executor,

etc.” Which is not the case made by intervener, nor is respondent interested in the “settlement

of the estate.” The question in this proceeding concerns a claim against the estate, which is

not a jurisdictional matter, and Section 2545 has no application. I admit, without

qualification, if respondent came within either Section 2869 or 2545, he had no jurisdiction of

the settlement of the estate of Evan Williams, deceased.

II. The interest of a judge in probate that disqualifies is specifically stated in Section 2869,

and as to probate matters nothing else disqualifies, because the legislature has so stated, and

as to estates the only authority is the probate act. When the legislature eliminated the

provision of the former probate law regarding a claim being sent to another district judge, and

enacted Section 2895, Cutting's Stats. (Sec. 110, act of 1897) that “Any district judge may file

a claim against the estate of any deceased person, and have the same rights and remedies in

reference thereto as any other creditor filing a claim,” which are particularly specified in

Section 2896, Comp. Laws, 1900, to have, within a given time, the executor or administrator

endorse his action thereon, and the district judge, not the district court, act thereon, thus

clearly evincing the intention of the legislature that, so far as claims against an estate are

concerned, the district judge should pass upon all claims regardless of any interest he might

have therein. In which matter the question of investing a district judge with the authority to

hear and determine his own cause does not arise.

Trenmor Coffin, James G. Sweeney, and A. E. Cheney, for Intervener:

I. The respondent, being interested in the settlement of the estate of Evan Williams,

deceased, is disqualified to act ��

��< �� 5

��26 Nev. 430, 440 (1902) State v. Mack��

therein other than to perform the duty enjoined by law of calling a “district judge of another

district to hold court in his county.” (Cutting's Stats. 2870, 2545.)

II. The principle is so fundamental that no man can be judge of his own cause that any

attempt by the legislature to invest him with such a judicial power would be unconstitutional

and his action void. (Cooley on Const. Lim., p. 506; State v. Crane, 36 N. J. Law, 394, 403;

State v. Castleberry, 23 Ala. 88; Sutherland on Stat. Construction, 290, 291; Frevert v. Swift,

19 Nev. 363.)

III. The respondent, having entered upon the settlement of the estate of Evan Williams,

deceased, every other district judge is precluded, by the rules of the district court, from doing

any act or thing therein until requested by the respondent so to do. (Dist. Ct. Rule XLI.)

IV. The legal remedy which will defeat a mandamus “must be one which is adequate, that

is, one which reaches the end intended and actually compels the performance of the duty

refused.” (11 Enc. Pl. & Pr. 498; State v. Dist. Ct., 79 N. W. 960-962.)

V. “Mandamus will lie to compel an inferior judge to grant a change of venue, where, on

account of his disqualification to try the cause, or for some other reason, he has no discretion

to refuse to do so.” (19 Am. & Eng. Enc. Law, 2d ed. 834; Krumdick v. Crump, 98 Cal. 117;

State v. Castleberry, 23 Ala. 85; Graham v. Penbee, 111 Ill. 253, 259; State v. Clayton, 34

Mo. App. 563; 32 Pac. 800.)

VI. Pleadings in mandamus proceedings, under the code, are governed by the same rules

as regulate pleadings in other actions; and facts properly pleaded and not denied are admitted.

(13 Enc. Pl. & Pr. 734; State v. City of Oskosh, 70 N. W. 300.)

VII. In this case, the respondent has no discretion. His interest in the settlement of the

estate is manifest and admitted. The duty enjoined by law is simply ministerial. The fact of

his being interested in the settlement of the estate divests him of all discretion. (98 Cal. 119;

Heilbron v. Campbell, Judge, 23 Pac. 122-3; Gunn v. Lauder, 87 N. W. 999, 1005.)

��26 Nev. 430, 441 (1902) State v. Mack��


The relator brings mandamus to compel respondent, as district judge, to approve or reject

that certain claim of relator for the sum of $19,360.98 against the estate of Evan Williams,

deceased, which claim had been duly filed and presented and allowed in part by the executrix

of said estate.

By his answer the respondent bases his refusal to act upon said claim upon the admitted

fact that he is a stockholder of the relator.

Dora Williams, at the proper time, asked to intervene, basing her right thereto upon the

admitted facts that she was the widow of the deceased, executrix and devisee of his last will

and testament, and a creditor of the deceased, having filed her claim against the estate of

deceased, upon which claim she had objected to respondent's taking any action for the reasons

set up in respondent's answer to relator's petition, and that respondent had failed and refused

to call another judge, as required by law, to act upon her said claim. She asked that the

peremptory writ issue against respondent compelling him to call another judge.

It is averred, and not denied, that the estate of Williams is insolvent.

The pleadings present many other facts which we do not deem material.

Objection was made to the intervention at the proper time by relator and respondent, but

the court made an order allowing the intervention.

It has been settled by the decisions of this court (State v. Gracey, 11 Nev. 223; State v.

Curler, 26 Nev. 347) that a proceeding in mandamus, under our practice act regulating the

same, is a civil remedy, with the qualities and attributes of a civil action.

By Section 599 (Comp. Laws 1900, sec. 3694) of the civil practice act, it is provided that

any person shall be entitled to intervene in an action who has an interest in the matter in

litigation, in the success of either of the parties to the action, or an interest against both.

Under the facts and this statutory rule, we are of the opinion that the intervener, as a

claimant against the estate, ��

��F� ��

��26 Nev. 430, 442 (1902) State v. Mack��

has such an interest in the subject-matter and interest against both as authorized the order of

intervention. She is certainly interested as a claimant against this insolvent estate in having a

qualified judge called to pass upon, not only the relator's claim, but her claim also.

The approval of claims by the district judge under the act regulating the settlement of

estates (Comp. Laws 1900, sec. 2896) gives them the rank of acknowledged debts against the

estate, and authorizes their payment in the course of administration; and while it is true that

objections may be made on final accounting, yet the declared policy of the law is the speedy

and inexpensive settlement of estates. It follows, therefore, that the validity or invalidity of

claims against estates should be determined before payment, and not be held in abeyance until

final account by the action of a disqualified judge.

The answer of respondent to relator's petition shows, as we believe, such an interest, under

the facts, as would disqualify him to act upon relator's or intervener's claim under the rule of

the common law or the rule of our civil practice act, if such rule should prevail in probate

proceedings.

It is a rule of the common law that a judge shall not hear and determine actions in which

he is interested (Cooley, Const. Lim. p. 506; State v. Crane, 36 N. J. Law, 394; Bank v.

McGuire, (S. D.) 80 N. W. 1074, 47 L. R. A. 413), and it is the express declaration of our

statute (Comp. Laws, 1900, sec. 2545) that a judge shall not act in an action or proceeding in

which he is interested.

Under this statutory rule this court has held that the action of a disqualified judge is

absolutely void. (Frevert v. Swift, 19 Nev. 364; State v. Noyes, 25 Nev. 49.)

Jurisdiction of probate matters is vested by our constitution in the district courts, and, if

there were no other provision of law than the section of the civil practice act, supra, we

would be disposed to hold that its language was sufficiently broad to apply to “proceedings”

in probate; but we are not left in doubt as to what the rule should be, as the legislature, in the

act regulating the settlement of estates of deceased persons (Comp. Laws 1900, secs. 2869,

2870), has declared in substance � ��

��

��26 Nev. 430, 443 (1902) State v. Mack��

and in effect the same rule prevailing under the civil practice act in civil actions.

By Section 2869, supra, it is provided that no district judge shall admit any will to probate,

or grant letters testamentary or of administration in any case where he shall be interested as

next of kin to the deceased, or as a legatee or devisee under the will, or when he shall be

named as executor or trustee in the will, or shall be a witness thereto.

By Section 2870, supra, it is declared: “When any district judge who would otherwise be

authorized to act, shall be precluded from acting from the causes mentioned in the preceding

section, or when he shall in any manner be interested, he shall call a district judge of another

district to hold the court of his county; and such judge shall hold such court and be vested

with all the powers of the court and judge so disqualified, and shall retain jurisdiction as to all

subsequent proceedings in regard to the estate.”

This language is too plain to require construction. If the legislature did not intend that the

interest of the judge, other than the interest specified in Section 2869, should disqualify him

from acting, it would never have inserted in the section, “or when he shall in any manner be

interested.” If this language does not mean what it imports, it was useless and was

meaningless.

The facts shown by respondent's answer to relator's petition and in the petition for

intervention, not disputed, establish the respondent's disqualification, and under those facts

nothing remained to be done except to call another judge, which the statute authorized and

directed in mandatory terms.

No formal application for the calling of a qualified judge was necessary when the record

disclosed that respondent was disqualified, as admitted here. (Krumdick v. Crump, 98 Cal.

117; Heilbron v. Campbell, (Cal.) 23 Pac. 122; Gunn v. Lauder, (N. D.) 87 N. W. 999.)

It is not necessary either to consider or discuss what the effect of the respondent's

disqualification may or may not have been upon the proceedings in probate before such

disqualification was disclosed, as no such question is presented by this record.

��26 Nev. 430, 444 (1902) State v. Mack��

The peremptory writ upon the application of the relator will be denied, and granted upon

the application of the intervener.

Fitzgerald, J., concurs in the order.

Massey, C. J., did not participate in the above decision.

____________

��26 Nev. 444, 444 (1902) Rickard v. Geach��

[No. 1628.]

THOMAS RICKARD, Respondent, v. EDWARD GEACH,

Appellant.

Limitations—Open Mutual Current Account—Payment by Third Person—Elimination of Items—Evidence.

1. An open, mutual and current account sued on would have been barred by limitations but for the last two

items—one for 70 cents, and the other for $17.60. The 70 cents item had been charged to defendant on his

own credit, and the $17 upon the guaranty of a third person. Thereafter the creditor presented to such

guarantor a bill for both items, and the guarantor, without knowing that the 70 cents item was included in

such bill, paid the whole bill. The guarantor knew nothing about the account sued on, and defendant never

ratified the payment of the 70 cents, and the creditor testified that he included the 70 cents item in the bill

presented to the guarantor merely for convenience in bookkeeping, and because he thought such party

could collect it, and that he would have stricken it out if it had been objected to. Defendant was credited on

the account with a cash payment of $18.30, and the guarantor received a receipt for the same amount: Held,

that the payment and receipt did not so completely eliminate the 70 cents item from the account as to let in

the bar of limitations.

Appeal from the First Judicial District Court, Storey County; C. D. Mack, Judge.

Action by Thomas Rickard against Edward Geach. From a judgment in favor of plaintiff,

and from an order denying a new trial, defendant appeals. Affirmed.


Geo. D. Pyne, for Appellant:

I. “An open account is one in which some item of the contract is not settled by the parties,

whether the account consists of one item or of many; or where there have been running or

current dealings between the parties, and the account is kept open with the expectation of

further dealings.” (Burns v. Cronin, 18 Or. 414.)


II. Root gave an absolute receipt showing the application of the payment to the account of

these items, and the rule of law is: “That if the application of payment is once made by either

of the parties to any account, it is conclusive and both parties are bound by it.” (Bank of North

America v. Meredith, 2 Wash. (U. S.) 47; Miller v. Montgomery, 31 Ill. 350; Coon's Appeal,

52 Conn. 186; Cidmon v. Armstrong, 28 Me. 91; Poulvin v. Collin, 18 Mo. App. 583; Brown

v. Burns, 6 Me. 535; Dorsey v. Weyman, 6 Gill. (Md.) 59; Bank of Muskingham v. Carpenter,

7 Ohio, 21; Tooke v. Bonds, 29 Tex. 419; Muller v. Wilbracht, 47 Mo. 468.)

III. “An application by the creditor becomes irrevocable when he has exercised his right of

election and communicated the fact to the debtor.” (2 Parsons on Contracts, 6th ed. 630;

Johnson v. Thomas, 77 Ala. 367; Allen v. Cullin, 3 Den. N. Y. 284.)

IV. “In the absence of specific appropriation to particular items payment will be applied to

the earliest items of account.” (Hill v. Robbins, 22 Mich. 475; Connyton v. Patt, 105 Mass.

255; 2 Parsons on Contracts, 6th ed. 632; U. S. v. Kirkpatrick, 9 Wheat. 720.)

V. The statute of limitations has run against this account, and the findings are not only

contrary to the evidence, but contrary to and against law.

VI. “When there are separate and distinct transactions in an open account for which cash

payment is accepted by the creditor, these items do not form part of the account to take the

case out of the statute of limitations.” (Bristol v. Plymouth, 44 Mass. 222, cited in 4 Nev.

112.) Also, see for question as to specific payment extinguishing the specific items to which

said payment has been applied: Richardson v. Woodbury, 12 Cush. 280; Reed v. Boardman,

20 Pick. 446; Treadwell v. Moore, 34 Me. 112; Caldwell v. Wentworth, 14 N. H 431.)

Geo. N. Noel, for Respondent:

I. It is argued with a great deal of stress that the payment of the sum of $18.30 by Prater

on June 13, 1898, reverted back to the 14th of August, 1897, and removed the charges for the

shoe stand as well as the charges for the sweep shoes, ��

I��


which charge was made against Geach personally upon the sale and delivery of the shoe stand

eleven months prior to any payment. Replying to this line of argument, we submit to the court

that if, at any time between August 14, 1897, and June 13, 1898—the date of payment of the

sum of $18.30 by said Prater—said Root had been desirous of obtaining payment of his

account against said defendant, that he would not have been constrained, nor even permitted,

to commence one suit for the recovery of the sum of $433.93, and another for the recovery of

the sum of 70 cents, when both amounts constituted one entire running and open account

between the parties as shown by plaintiff's books of account introduced as exhibits in this

case. Could respondent have split his cause of action? We maintain that he could not, and

that, if he did so, it would be reprehensible and demurrable pleading, and refer to the

following authorities in support of this contention: Guresney v. Carver, 24 Am. Dec. 60;

Markham v. Middleton, 2 Stra. 1259; Stevens v. Lockwood, 13 Id. 644, Am. Dec.; Golvin v.

Corvin, 15 Id. 557, Am. Dec.; Bendernagle v. Cocks, 19 Am. Dec. 207.

II. The following authorities sustain respondent's view that the statute of limitations is

inapplicable to this case: “If any items of account are within six years, they will also take with

them such items as are beyond six years, so as to prevent the bar of the statute of limitations.”

(Cogswell v. Dolliver, 3 Am. Dec. 45.) “Held, if there be a mutual account of any sort

between plaintiff and defendant for any item for which credit has been given within six years,

that it is evidence of an acknowledgment of there being such an open account between the

parties and of a promise to pay the balance so as to take the case out of the statute of

limitations.” (Cogswell v. Dolliver, 3 Am. Dec. 45, and authorities cited on page 48 in notes

on same case; James v. Clapp, 116 Mass 358; Green v. Caldeleugh, 28 Am. Dec. 567; Waldo

v. Jolly, 4 Jones, 1, 174; Caldwell v. Beatty, 69 N. C. 371; Angell on Limitations, 129-130;

Warren v. Sweeney, 4 Nev. 101; Norton v. Lasco, 30 Cal. 134.) “A mutual account

commences to run only from the date of the last entry of credit, and the item of credit must

arise from the mutual act and consent of both parties.” (Hodge v. Manley, 60 Am. Dec.


253.) “The slightest acknowledgment of an indebtedness by a debtor will take the case out of

the operation of the statute of limitation.” (St. John v. Garver, 29 Am. Dec. 280; Newlin v.

Duncan, 25 Am. Dec. 66; Austin v. Bostwich, Am. Dec. 42.)

Geo. D. Pyne, for Appellant, in reply:

I. The question is not as to whether respondent could have split his cause of action into

several suits, and sued upon the 70-cent item alone, or whether he could have sued Prater

upon the 70-cent item or upon the item for $17.30, but whether Root did not treat the account

as two accounts against Geach, and accepted payment for one of them as shown by the receipt

marked Defendant's Exhibit I, which he wanted paid.

II. “Taking a receipt from the creditor expressing the debt upon which the payment is to

apply shows what application was intended by the parties.” (Stewart v. Keith, 12 Pa. St. 238;

Ordinary v. McCollom, 3 Stroth. 494.)

III. “Creditor's application may be evidenced by a receipt.” (Brown v. Rathbom, 3 Ham

275; Otto v. Klauber, 23 Wis. 471.)

IV. “When the payment was precisely the amount of one debt and not of another, it may

properly be inferred that the debtor intended it should be appropriated to the former.” (Robert

v. Gamil, 3 Cai. Cas. N. Y. 14; Davis v. Fargo, Clark's Chancery N. Y. 470.)


In the court below plaintiff, Rickard, received judgment against the defendant, Geach, for

the sum of $433.93. Defendant made a motion for a new trial, and the motion was denied.

Thereafter defendant appealed to this court from the said judgment and also the order denying

him a new trial. Plaintiff alleged that “a mutual, open, current, running, and continuous

account” existed between one A. J. Root and the defendant, the first item of which was on the

12th day of April, 1894, and the last on the 10th day of June, 1898; that on said account a

balance of $433.93 remained due and unpaid; and that said account had, for a valuable

con�� B��


sideration, been duly assigned by said Root to the plaintiff.

Defendant admits that the account between Root and himself was “open, mutual, running,

and continuous,” and he also admits the assignment, but he claims that the last item in said

account was on the 2d day of December, 1895; and that, as the suit was not commenced until

the 10th day of August, 1901, over four years had elapsed between the last item of the

account and the commencement of the suit thereon, and consequently the action was barred

by the statute of limitations.

Defendant's admission that the account between Root and himself was open, mutual, and

current renders many of the cases cited in the briefs of counsel only remotely, if at all,

applicable; for many of the said cases involved the question whether or not there had ever

been a mutual, open, and current account between the parties.

In the case before us that point is admitted, and the question to be considered and

determined is, when did the last item of the account take place? On the account as presented

and claimed by the plaintiff were two items as follows: “August 14th, 1897, one shoe stand,

$.70; June 10th, 1898, four sweep shoes, $17.60.” The total of the last two items is $18.30,

and on the account is a cash credit of $18.30 of the date of June 13, 1898. At the time that the

item of 70 cents for the shoe stand was contracted and charged, to wit, 14th of August, 1897,

there was certainly, under the admission of defendant, an open, mutual, and current account

between defendant and Root, for nothing had up to that time occurred to affect the account;

and the suit, having been commenced on the 10th day of August, 1901, was in time, provided

that nothing subsequently occurred to change the status of things. Counsel for the defendant

claims that a payment made had the effect of eliminating two items from the account, and

thereby letting in the bar of the statute.

The facts of the said payment were as follows: After the 70 cents item for the shoe stand

had been contracted, and the goods delivered, and the charge therefor made, the defendant

wanted to get the “sweep shoes” mentioned, but Root declined to let him have them.

Afterwards N. C. Prater told Root to let defendant have the “sweep shoes” and ��:D��;��


that he (Prater) would pay for them. Root then let defendant have the “sweep shoes,” and

charged them to defendant. Subsequently Root made a bill for the “sweep shoes,” and

included in the bill the item of the “shoe stand,” 70 cents, and presented it to said Prater, and

Prater paid it—the 70 cents item as well as the $17.60 item—thus making in all, as paid by

Prater, $18.30 the amount of the shoe stand item and the sweep shoes item. Root gave Prater

a receipt for the whole amount, $18.30, and subsequently entered a cash credit on his books

in favor of defendant for the sum of $18.30, this entry being on the 13th day of June, 1899.

Defendant claims that the payment by Prater of this bill of $18.30, including the 70 cents

item, and taking a receipt therefor, eliminated from the account the 70 cents item, and thus

the last item of the account took place on the 2d day of December, 1895, and therefore the

whole account was barred under the statute of limitations of four years. When Root was asked

why he put the 70 cents item into the bill that he presented to Prater, when Prater had not

ordered or agreed to pay that item, but only the $17.60 item, he said, in substance, that it was

for convenience in his bookkeeping; and he thought Prater could get the money out of the

defendant better than he (Root) could; and that, if Prater had objected to the 70 cents item, he

would have stricken it from the bill.

The question for decision is: Did the said payment and receipt, under the circumstances

stated, so completely eliminate the 70 cents item from the account as to make the last item of

said account to have taken place on the 2d day of December, 1895, and thus let in the bar of

the statute of four years? We think it did not. Certainly, when Root put the 70 cents item on

the bill that he presented to Prater, and received the money of the 70 cents item, and gave a

receipt therefor, he (Root) did not intend that his acts should have such effect as counsel for

defendant claims. Such a supposition would be contrary to human nature. No one could

suppose that a man in his senses would, in order to collect an item of 70 cents, whether owed

by Prater or not, intentionally let in the bar of the statute for a claim of $433.93. Prater, in

making the payment, could not have such an intent, because ��

��


he did not know anything about the matter. He did not know that the 70 cents item was not a

part of what he had agreed to pay. And the defendant could not have had such an intent,

because he had nothing to do with the placing of the 70 cents item on the Prater bill, or

Prater's payment thereof or taking a receipt therefor. Defendant was not bound by Prater's act,

for there is nothing in the testimony to show that defendant ever either ordered or ratified

Prater's act in paying the 70 cents item.

Suppose the situation were reversed—that the balance of the account had been in favor of,

instead of against, defendant, and defendant had sued Root, and Root had pleaded the statute

of limitations, and supported his plea by his act in getting the payment of the 70 cents from

Prater in the manner stated—could it be claimed with any showing of reason that his claim

would have been successful? Certainly not. Then with similar, though perhaps not with equal

reason, defendant's plea of the statute supported by such act must fail. If Root did wrong in

putting the 70 cents item on the Prater bill when Prater had not ordered it, it was a wrong to

Prater, but not to defendant. The trial judge, sitting without a jury, found as a matter of fact in

the case that the payment of the 70 cents was a payment on the general account between Root

and defendant, and not a payment of a special transaction, separate and apart from the open,

mutual, and current account. Under the testimony in the case this question was a matter of

fact to be determined by a jury, or, in case of a jury being waived, by the court sitting without

a jury. The trial court found this fact against the respondent, and under the evidence we

cannot say that the finding was not supported.

We conclude that the action was not barred by the statute of limitations, and it is ordered

and adjudged that the judgment of the district court herein and its order denying a new trial

be, and the same are, affirmed.


Belknap, J., was not present during the argument of the above case, and did not participate

in the decision.

____________

��26 Nev. 451, 451 (1902) Manning v. Bowman��

[No. 1627.]

A. H. MANNING, Appellant, v. JEROME BOWMAN, as Administrator

of the Estate of S. W. Bowman, Deceased, Respondent.

Agent—Compensation—Pleading—Admissions—Conclusiveness.

1. Where, in an action for services rendered as agent from June 30, 1896, to June 30, 1900, the answer alleged

the termination of the agency on February 24, 1897, there is an admission of liability for part of the time in

question which will render a general verdict for defendant erroneous, under Comp. Laws 1900, sec. 3160,

declaring allegations not specially contraverted to be taken as true.

2. Where the answer in action for services as agent admits liability for part of the time in question, the effect of

such admission cannot be avoided by testimony of plaintiff's witnesses inconsistent with the admission.


Action by A. H. Manning against Jerome Bowman, as administrator of the state of S. W.

Bowman, deceased. Judgment for defendant, and plaintiff appeals. Reversed.


Wren & Julien, for Appellant:

I. “The test of mental capacity is whether the person possesses sufficient mind to

understand, in a reasonable manner, the nature and effect of the act in which he is engaged,

and in order to avoid a contract it must appear not only that the party was of unsound mind or

insane when it was made, but that this unsoundness or insanity was of such a character that he

had no reasonable perception or understanding of the nature and terms of the contract.” (Hall

v. Unger, 4 Saw. U. S. 672; Ex parte Northington, 37 Ala. 496; 79 Am. Dec. 67.)

II. In Concord v. Rumney, the court says: “In no case at the present day is it a mere

question whether a party is insane. The point to be established is whether the party is so

insane as to be incapable of doing the particular act with understanding and reason.”

(Concord v. Rumney, 45 N. H. 428.)

Benjamin Curler, for Respondent:

I. All of the evidence of the witnesses was admissible �� 0��/��*��


expert and opinion evidence upon the issue as to the mental condition of said S. W. Bowman;

opinions of persons acquainted with his business and social habits, held to be admissible

evidence. (Estate of Brooks, 54 Cal. 471; People v. Fine, 77 Cal. 147; State v. Lewis, 20 Nev.

347; In re Carpenter, 79 Cal. 386; Wheelock v. Godfrey, 100 Cal. 578; People v. Pico, 62

Cal. 50; People v. Levy, 71 Cal. 623; Estate of Dalrymple, 67 Cal. 445; Estate of Wax, 106

Cal. 348; Holland v. Zollner, 102 Cal. 633; 2 Cal. Digest, p. 1518, secs. 49-53, incl.)

II. As a general rule, it may be stated that where a principal becomes insane after

appointing an agent, this operates per se as a revocation or suspension of the agent's authority,

except in cases where a consideration has been given, or the power is otherwise coupled with

an interest. (Bruce v. Gallagher, 5 Blatchf. U. S. 481; Berry v. Skinner, 30 Md. 567;

Matthiessen Refining Co. v. McMahon, 38 N. J. L. 537; Hill v. Day, 34 N. J. Eq. 150; Black

v. Garwood, 42 N. J. Eq. 276; Wills v. Manhattan Co., 2 Hall, N. Y. 495.)

III. Lunatics or persons who are actually insane cannot bind themselves civilly, and, where

insanity is proven, all question as to the validity of contracts made by them during the period

of insanity is at an end. (Corbett v. Smith, 7 Iowa, 60.)

IV. Habitual insanity, or that which in its nature is continuous and chronic, if once shown

to exist, raises a presumption in favor of its continued existence to the time of a contract,

attacked on the ground of mental unsoundness; and the burden of proof is on the party

asserting sanity and the validity of the contract. (Corbett v. Smith, Am. Dec. 431; Allen v.

Burryhill, 27 Iowa, 544; Richardson v. Strong, 55 Am. Dec. 430.)

V. A person may be capable of disposing by will, and yet incapable of making a contract,

or to manage his estate. For, to make a contract more than passive, memory must exist; there

must be sufficient active memory to collect particulars of business to be transacted and retain

them until their relations are perceived, and to form some rational judgment concerning them.

(Potts v. House, 50 Am. Dec. 329; Converse v. Converse, 52 Am. Dec. 58.)



This action is brought to recover judgment against the estate of Samuel W. Bowman,

deceased, for services rendered by plaintiff as his attorney and agent from June 30, 1896, to

June 30, 1900.

An answer was filed controverting some of the allegations of the complaint, but admitting

that upon the 17th day of January, 1881, deceased gave a general power of attorney to

plaintiff to transact business for him in this state, “and said plaintiff thereupon became and

thereafter continued to act as the agent of Samuel W. Bowman, deceased, until on or about

the 30th day of June, 1897, when said agency was terminated as hereinafter alleged.” Then

follows an allegation that upon the last-named day Samuel W. Bowman became non compos,

and incapable of legally transacting any business whatever, and remained incapacitated until

his death, June 30. 1900.

Before the trial the answer was amended, and February 24, 1897, instead of June 30th,

fixed as the day when incompetency occurred. A jury returned a general verdict for defendant.

By it they must have concluded that the incapacity of defendant arose upon the date fixed by

the amended answer, to wit, February 24, 1897.

From June 30, 1896, when the service commenced, to February 24, 1897, when it

terminated, nearly eight months elapsed, during which the answer admits plaintiff acted as

agent and attorney for decedent.

The admission must be taken as true for the purposes of this action. (Section 3160, Comp.

Laws 1900.)

Respondent seeks to avoid its effect by calling to his aid the testimony of one of

appellant's witnesses, who, upon cross-examination, testified that deceased attended to his

own business matters until February 24, 1897. This cannot help the case. The testimony is

inconsistent with the admission.

In Paige v. Willet, 38 N. Y. 31, where a similar question was considered, the court said:

“Such admissions are conclusive upon the parties litigant and upon the court, and no

contradictory evidence can properly be received, or if it is, either through inadvertence or tacit

consent, foisted into the case, is entitled to no consideration.” (11 Am. & Eng. Enc. Law, p.

447.)


The judgment and order denying a motion for a new trial are reversed, and cause remanded

for new trial.


Fitzgerald. J.:

I think the judgment in this case should be for the plaintiff for the sum of $200, being for

eight months' services at the rate of $25 a month, and, if plaintiff files with the clerk of the

lower court his consent to such a judgment within twenty days after the remittitur goes down,

then such should be the judgment in the case; but, if plaintiff fails to file such consent, then

the order denying a new trial should be reversed, and a new trial ordered.

____________

26 Nev. 455, 455 (1902)

REPORTS OF CASES

DETERMINED IN

THE SUPREME COURT

OF THE

STATE OF NEVADA

____________

OCTOBER TERM, 1902.

____________

��26 Nev. 455, 455 (1902) Dangberg v. Ruhenstroth��

[No. 1629.]

GEORGE F. DANGBERG, Appellant, v. LOUIS RUHEN-

STROTH, Respondent.

District Court—Jurisdiction—Trespass—Title—Equity.

1. Comp. Law, sec. 3604, provides that, in cases when the damages claimed for an injury to real property do not

exceed $300, the justices' courts shall have jurisdiction. Sections 780, 781, provide for damages against

any one grazing live stock on land to which another has title, or on which first payment has been made by

another. A complaint filed in the district court alleged trespasses by defendant's sheep on plaintiff's land, to

his damage in the sum of $100. Defendant demurred for lack of jurisdiction because of the amount

involved: Held, that, no issue being made save that of law raised by the demurrer, the court could not have

known whether title to real estate be involved, and properly sustained the demurrer.

2. The statute merely contemplates an action at law for damages, and an action brought thereunder is in no sense

an equity proceeding, so as to give the district court jurisdiction.

Appeal from First Judicial District Court, Douglas County; C. E. Mack, Judge.

Action by George F. Dangberg against Louis Ruhenstroth. From a judgment sustaining

defendant's demurrer, plaintiff appeals. Affirmed.



Alfred Chartz, for Appellant:

I. No cause of action would be stated without stating that plaintiff is and was the owner,

and had the legal title, or had applied to purchase the same and had made first payment

thereon. If the answer should admit plaintiff was the owner, this would save plaintiff from

introducing testimony thereon, but it would nevertheless be a fact in evidence, and without

such fact in evidence, the judgment would be worthless. Consent of parties cannot give

jurisdiction. (1 Nev. 82.)

II. “The parties shall not be at liberty to give evidence upon any question which involves

the title to, or the right of possession of, real property,” etc., “and if it appears from plaintiff's

own showing at the trial or from the answer of the defendant, verified by his oath, that the

determination of the action will necessarily involve either of such questions, the justice shall

suspend, etc.” (Sec. 3634, Comp. Laws, 1900.) Plaintiff cannot make any sort of showing,

without first showing title. It is the basis of his primary right, for an invasion of which the

statute provides a remedy. The justice is forbidden to hear any testimony whatsoever on the

point.

III. Section 3604 provides that if questions to real property be involved, the case shall be

certified as hereinafter provided, etc.

IV. The statute not only forbids justices of the peace to try the title to real estate, but

forbids them from hearing questions where the title is involved. See Sections 3604 and 3634,

and Sections 117 and 119 of the constitution.

V. In the case at bar title is involved in the fact that without involving it no case can be

stated. “The jurisdiction of justices of the peace will not be extended by inference or

implication, as the statutes conferring jurisdiction are strictly construed.” (18 Am. & Eng.

Enc. Law, 2d ed. p. 17.)

VI. The term contract has been construed to include only those contracts or agreements

which arise out of the course of dealing between the parties, and not such contracts as arise

remotely out of the compact of government.”

VII. “Where the jurisdiction of justices is confined to actions ex contractu, they have no

jurisdiction of actions for damages or action on the case. (Id., p. 20.)


VIII. The case at bar is strictly an action on the case, based upon the tort of the defendant.

There was no contract between the parties. It is plain that the cause of action arises out of the

compact of government whereby people have banded themselves together for mutual

protection, and agreed to abide by its rules, and that the action is based on the tort, wrong, or

delict of the defendant.

IX. “Actions for injuries to real property, and actions for trespass are rarely within the

jurisdiction of the justices of the peace.” (Id., p. 24.) “An action for injuries to a child must be

in form ex delicto, and as neither assumpsit nor debt will lie, a justice of the peace has no

jurisdiction.” (Id., p. 25, note 1.)

X. In Nevada justices of the peace have no jurisdiction of the action of forcible entry and

detainer, because evidence of title is involved. The same reasons certainly apply to the action

of trespass under the statute governing the case at bar. (Peacock v. Leonard, 8 Nev. 84.)

XI. “The question of title is raised in action of trespass before the justice if the plaintiff

offers deeds in evidence of his right of possession or claims such right under a third person,

whose ownership he proposed to show.” (Gay v. Hultz, 55 Mich. 327.)

XII. “In an action for trespass the plaintiff's right to compensation depends wholly upon

his right to the property.” (State of Nevada, ex rel. Anna Murphy and Martin Lutz, v. Richard

Rising, 10 Nev. 97.)

XIII. In the case at bar the title is put in issue by the pleadings, under a statute requiring it.

XIV. Schroeder v. Wittram, 66 Cal. 640, holds that if plaintiff has to prove or disprove the

title to land the justice has no jurisdiction, and calls attention to that section of the California

statute which forbids justices of the peace to listen to any testimony on the question of title.

XV. The statute is intended to cover equitable actions. “A statute which authorizes the

owner of land to take up and keep cattle or sheep found on the same, and to bring suit before

a justice of the peace against all the animals, in rem, for the recovery of the damages, when

they are less than $300, and which directs, upon the recovery of judgment, a �� 5


levy upon and sale of the property on execution, and, if there is an overplus of the proceeds, a

distribution of the same by the justice among the several owners of the animals, provides a

proceeding in equity to enforce a lien, and, in so far as it confers jurisdiction on the justice, is

unconstitutional.” (Young v. Wright, 52 Cal. 407.)

XVI. Section 781, Compiled Laws of 1900: “The live stock which is herded or grazed

upon the lands of another, contrary to the provisions of the first section of this act, shall be

liable for all damages done by said live stock while being unlawfully herded or grazed on the

lands of another, as aforesaid, together with costs of suit and reasonable counsel fees, to be

fixed by the court trying an action therefor, and said live stock may be seized and held by writ

of attachment issued in the same manner provided by the general laws of the State of Nevada,

as security for the payment of any judgment which may be recovered by the owner or owners

of said lands for damages incurred by reason of a violation of any of the provisions of this act,

and upon the claim and lien of a judgment or attachment in such an action shall be superior to

any claim or demand which arose subsequent to the commencement of said action.” It would

seem to be sufficient to set the decision in Young v. Wright and Section 781 side by side, to

show that Section 781, if it attempted to confer jurisdiction on a justice of the peace in such

case, would be unconstitutional.

William Woodburn, for Respondent:

I. The justices' courts have exclusive jurisdiction of actions of this character, except those

in which the title to real estate or mining claims or questions to boundaries of land are

involved. (Sec. 3604, Comp. Laws, p. 750.)

II. Justices' courts have jurisdiction until it appears from the plaintiff's own showing at the

trial of the case or from the verified answer of the defendant that the determination of the

action will necessarily involve the title to or the right of possession, or possession of the real

estate described in the complaint of appellant. (Sec. 3634, Comp. Laws.)

III. In an action of trespass upon real property plaintiff ��

��


may recover upon alleging, in addition to the injury complained of, his possession of the

premises, and his right to the possession is not involved unless the defendant tenders an issue

upon that fact. (Pollock v. Cummins, 38 Cal. 685.)

IV. In the case of Cornett, et al., v. C. Bishop, 39 Cal. 319, it was decided that a justice of

the peace has jurisdiction of an action for trespass on real estate where the right of possession

of the premises is not put in issue by the pleadings or controverted on the trial. (Schroeder v.

Wittraim, 66 Cal. 640; Lorenz v. Jacobs, 53 Cal. 24.)

V. To occasion a loss of jurisdiction in justices' courts, the title or right of possession

must be directly involved. The plaintiff may recover upon proof of possession merely, but the

jurisdiction of the justice may be ousted by the defendant's plea of freehold. The ownership or

right to the possession of the premises described in the complaint is not necessarily involved.

(State v. Rising, 10 Nev. 104; 39 Cal. 319.)

By the Court, Belknap, C. J.:

The complaint filed in the district court alleged ownership in plaintiff to certain described

lands in the county, and trespasses thereon by defendant's sheep, to plaintiff's damage in the

sum of $100, etc.

The district court sustained a demurrer upon the ground that it had no jurisdiction of the

subject-matter, for the reason that the amount claimed is less than $300.

The ruling is supported by the provisions of Section 509 of the civil practice act (Section

3604, Comp. Laws), which, among other things, provides that justices' courts shall have

jurisdiction of an action for damages for injury to real or personal property if the damages

claimed do not exceed the sum of $300.

Appellant contends that, in order to establish his cause of action, it was incumbent upon

him to allege and prove title, or that, under the provisions of Sections 780, 781, Comp. Laws,

he had made first payment on the land, and that for either of these reasons the title to the real

estate was involved.

It is a sufficient answer to this position to say that no issue � ��

��


had been made except the issue of law raised by the demurrer, and that the court could not

have known whether title to real estate would be involved.

It is also claimed that the proceeding is one in equity, and therefore not within the

jurisdiction of the justice of the peace; and Young v. Wright, 52 Cal. 407, is cited in support

of this view. That was a case in which the owner of land, acting under the provisions of the

trespass law of California (Stats. Cal. 1873-4, p. 50), took up trespassing sheep, and thereafter

commenced an action in rem against the animals in the court of a justice of the peace,

recovered judgment, and set up the proceedings in attempted justification of the seizure and

detention to an action by the owner of the sheep for their recovery.

It was held that the jurisdiction attempted to be conferred upon justices' courts by the

statute was essentially a proceeding in equity to enforce a lien, of which subject district

courts, under the constitution of California, had exclusive jurisdiction, and that the statute

was unconstitutional.

There is a broad distinction between the two statutes. Ours does not sanction the

restraining of animals by the owner of land, and provide for a lien in his favor for their care

before suit. It contemplates only an action at law for damages for the trespass, with counsel

fees and costs of suit.

Judgment and order affirmed.

____________

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